HomeMy WebLinkAboutCP-21-CR-0001261-2012
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CP-21-CR-1261-2012
V. :
: CHARGE: 1. UNLAWFUL POSSESSION OF
: SCHEDULE II, CONTROLLED SUBSTANCE;
: 2. UNLAWFUL DELIVERY, MANUFACTURE,
: POSSESSION WITH INTENT TO DELIVER
: SCHEDULE II, CONTROLLED SUBSTANCE
: - COCAINE
WALLACE A. HOLLEY :
OTN: T119522-4 : AFFIANT: TPR. CLINT LONG
IN RE: OPINION PURSUANT TO PA.R.A.P. 1925
Ebert, J., June 3, 2015 –
Wallace A. Holley, Defendant in the above-captioned matter, appeals following
his jury trial and sentence. Defendant specifically complains of the following error:
The trial court abused its discretion by allowing the prosecution’s expert to
give an opinion that some of the text messages found on Defendant’s cell
phone were consistent with drug trafficking, thus back dooring in evidence
1
that was not authenticated or was inadmissible hearsay.
For the following reasons, this Court did not err in allowing the prosecution’s expert to
offer an opinion that some of the text messages found on Defendant’s cell phone were
consistent with drug trafficking.
Procedural History
Defendant was found guilty of the above-captioned charges following a jury trial
held on October 16-17, 2012. On December 18, 2012, Defendant was sentenced at
Count 2 to incarceration in the State Correctional Institute for five to ten years.
1
Concise Statement of Matters Complained of on Appeal, filed April 29, 2015
Defendant was given an aggravated range sentence for three reasons: (1) Defendant is
a predator who recruits weak individuals to participate in his criminal activities so that he
may mask his role as the primary leader, (2) Defendant is a poor candidate for
rehabilitation, and (3) Defendant is a habitual offender. Count 1 merged with Count 2
for sentencing.
On September 6, 2013, Defendant filed a Petition for Reinstatement of Appellate
Rights. This Petition was granted on September 18, 2013. Thereafter, Defendant filed
a Notice of Appeal and a Concise Statement on November 19, 2013, where his
appointed counsel, Allen Welch, Esquire, stated he did not find anything of merit to
complain of on appeal. On December 11, 2013, Defendant’s appeal was dismissed for
his failure to comply with Pa.R.A.P. 3517.
Defendant then filed a pro se Post-Conviction Relief Act (PCRA) Petition.
Counsel was appointed for Defendant and an Amended PCRA was filed on January 20,
2015, seeking the reinstatement of Defendant’s direct appellate rights. A PCRA hearing
was held on March 6, 2015. On March 13, 2015, this Court issued an Order of Court
reinstating Defendant’s right to file a direct appeal. The instant appeal followed.
Statement of Facts
Trooper Clint Long was on duty on the morning of September 4, 2011. Trooper
Long encountered a black Mitsubishi Eclipse traveling in the southbound left lane of
Interstate 81. It was 8:00 a.m. on a Sunday morning and there was no other traffic or
vehicles in the vicinity. The Trooper continued to follow the vehicle in the left lane and
clocked it at 60 miles per hour in a 65 mile per hour zone. The car continued traveling
in the left lane below the speed limit for several miles and did not pull over to the right.
2
The Court notes that under the provisions of §3313 of the Vehicle Code, all vehicles are
required to be driven in the right-hand lane on a limited access highway having two or
more lanes. 75 Pa.C.S.A. §3311(d). Obviously, Interstate 81 is such a highway. When
the Trooper activated his emergency lights, the driver, instead of pulling over to the right
shoulder of the highway, drove onto the grass median in the middle of the Interstate and
stopped. For safety purposes the driver had to be instructed to pull over to the right
shoulder.
A white female, Cherry Carter, was driving the vehicle and Defendant was in the
front passenger’s seat. Cherry Carter did not have her driver’s license with her, but
provided her name and other information to Trooper Long. Trooper Long was unable to
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locate Cherry Carter in the system when he ran the information provided to him.
Trooper Long then asked Defendant for his information. Defendant handed
Trooper Long a Job Corps ID. Defendant did not have a driver’s license or any other
identification. After running both Cherry and the Defendant’s information and not finding
anything, Trooper Long called for backup. Corporal Douglas Howell arrived and spoke
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with Defendant. While speaking with Defendant, Corporal Howell saw him with a cell
phone on his person and asked Defendant to leave it in the car. Corporal Howell took
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the phone from the Defendant and placed it on the passenger seat of the car. The
warrant affidavit of probable cause (See Comm. Exhibit 13) indicated that “the second
phone, which belonged to the passenger Holley, was found on the passenger seat.
Interestingly, when that cell phone data was analyzed, it did contain calls from “Cherry”
with a phone number listed as 301-331-7956. This is the number stated in the
2
Notes of Testimony, In Re: Jury Trial, 47-55, Oct. 16-17, 2012 (hereinafter N.T. at __)
3
N.T. at 55-61
4
N.T. at 127
3
Commonwealth’s Exhibit 14 as belonging to Cherry Carter. (See Comm. Exhibit 14,
page 3, Item No. 12). It would appear that Cherry Carter, using her cell phone with the
number 301-331-7956, placed text messages to the phone in question on September 2,
2011, at 9:01 a.m. and 9:15 a.m. The phone in question sent a text message back to
“Cherry” on September 2, 2011, at 9:12 a.m. (See Comm. Exhibit 14, page 10, Items
No. 76, 77 and 78). The phone in question had incoming calls from Cherry, who was
using cell phone 301-331-7956, as follows:
DATE TIME EXHIBIT 14 REFERENCE
September 2, 2011 10:41 a.m. Page 15, Item 17
September 2, 2011 11:00 a.m. Page 15, Item 18
September 2, 2011 12:03 p.m. Page 15, Item 21
September 2, 2011 3:07 p.m. Page 16, Item 41
September 2, 2011 9:55 p.m. Page 17, Item 55
September 3, 2011 7:20 p.m. Page 18, Item 78
September 3, 2011 7:30 p.m. Page 18, Item 79
Additionally, there were outgoing calls from the phone in question, number 443-990-
3483 to Cherry at 301-331-7956 as follows:
DATE TIME EXHIBIT 14 REFERENCE
September 3, 2011 10:17 p.m. Page 19, Item 7
September 3, 2011 10:21 p.m. Page 19, Item 8
September 3, 2011 10:24 p.m. Page 19, Item 10
September 3, 2011 10:24 p.m. Page 19, Item 11
September 3, 2011 10:30 p.m. Page 19, Item 12
4
Interestingly, all of the communications by and to “Cherry” occurred on the Friday and
Saturday before the Defendant’s traffic stop and arrest on Sunday, September 4, 2011.
Obviously, this was the time when the Baltimore, Hagerstown, Chambersburg trip would
have been planned or ongoing. Circumstantially, this would establish that the other cell
phone in the car with number 443-990-3483, which was found in the physical
possession of the Defendant, was indeed the Defendant’s cell phone.
Since neither of their identifying information would come up on the computer,
both Cherry Carter and Defendant were asked to come back to the barracks so Trooper
Long and Corporal Howell could ascertain who they were and that there were no
outstanding warrants. Cherry Carter and Defendant were informed they could leave the
barracks after it was ascertained there were no warrants for their arrest. The vehicle
was towed to the police station in anticipation of receiving a search warrant. A search
warrant was obtained for the vehicle and cocaine was found hidden inside a container
5
of trail mix on the rear seat of the car. In total, 11.4 grams of cocaine was found in the
6
vehicle. Thereafter, Trooper Clint Long obtained a search warrant for Defendant’s
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cell phone.
Cherry Carter was present and testified at the trial. She testified that she drove
Defendant to Baltimore, Maryland from Hagerstown, Maryland on September 3, 2011,
where Defendant picked up the cocaine. She then drove Defendant back to
Hagerstown where Defendant made a drug sale. Cherry next drove Defendant to
Chambersburg, Pennsylvania where Defendant made additional sales of cocaine.
Cherry stated she agreed to drive Defendant around in exchange for cocaine.
5
N.T. at 61-66
6
N.T. at 143
7
N.T. at 71-72
5
Defendant was supposed to have a large sale of cocaine in Chambersburg, but it did
not occur, so they left Chambersburg around 7:00 a.m. on the morning of September 4,
2011, after which they were pulled over by Trooper Long. After they were pulled over,
Cherry testified that the Defendant took the cocaine out of his pocket and placed it in
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the bowl of trail mix.
At trial, the Commonwealth offered Corporal Douglas Howell as an expert
witness. Corporal Howell has conducted hundreds of drug investigations and was
recognized as an expert in drug investigation and trafficking. Corporal Howell stated
that as part of his expert knowledge he is familiar with drug-related text messages and
the terminology used in them.
Defendant objected to any reference made to the messages on his cell phone,
based on the Pennsylvania Superior Court case Commonwealth v. Koch, 39 A.3d 996
(Pa. Super. 2011). Defendant argued that since the text messages could not be
authenticated and contained inadmissible hearsay it would be prejudicial to permit
discussion of the phone’s messages. The Commonwealth argued that they believed
they had established authentication and should be permitted to ask questions about the
nature of the text messages. This Court ruled that while the specific language of the
text messages would not be admitted, the prosecution could ask Corporal Howell to
offer his expert opinion on whether the cell phone traffic he observed was consistent
with someone involved in drug trafficking. Defendant was provided with the broadest
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latitude for cross-examination.
8
N.T. at 24-32
9
N.T. at 110-15
6
Thereafter, Corporal Howell offered his expert opinion that he reviewed the text
messages on Defendant’s cell phone and found that some of the messages were
consistent with drug trafficking. He also admitted that many more messages on the
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phone were not drug-related. On cross-examination, Corporal Howell stated that he
believed this was Defendant’s phone because he saw it in the Defendant’s possession
during the traffic stop, and was handed the phone by the Defendant, and was told it was
Defendant’s phone by Trooper Long following the search warrant, but that he could not
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say with 100 percent certainty.
In addition to the drug-related text messages, Corporal Howell stated he believed
the drugs found in the vehicle were not for personal use because no crack pipe or other
means of ingestion were found in the vehicle and the drugs were packaged in smaller
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bags which would not be cost effective to purchase for personal use.
Discussion
Defendant argues that this Court erred in permitting Corporal Howell to give his
expert opinion about the contents of the text messages found on his cell phone,
because this “back-doored” in evidence that was not authenticated and was
inadmissible hearsay. This Court did not err.
The standard of review for admission of evidence is that the:
admission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial court
clearly abused its discretion. Admissibility depends on relevance
and probative value. Evidence is relevant if it logically tends to
establish a material fact in the case, tends to make a fact at issue
more or less probable or supports a reasonable inference or
presumption regarding a material fact.
10
N.T. at 115-16
11
N.T. at 127
12
N.T. at 117-18
7
Commonwealth v. Lavanduski, 907 A.2d 3, (Pa. Super. 2006) (internal citations
omitted). An abuse of discretion cannot be found “merely because an appellate court
might have reached a different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as
to be clearly erroneous”. Commonwealth v. Laird, 988 A.2d 618 (Pa. 2010) (internal
citations omitted).
Defendant relied on Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011) at
trial to argue that any reference to the cell phone should not be admitted. In Koch, two
cell phones were seized during the execution of a search warrant, one of which the
appellant identified as her cell phone. The trial court permitted the Commonwealth to
introduce testimony and a transcript of thirteen drug-related text messages found on the
appellant’s phone. Koch, 39 A.3d at 999. The jury found appellant guilty as an
accomplice on the possession with intent to distribute charge and guilty as an
accomplice on the possession charge. Id. at 1000.
On appeal, the Pennsylvania Superior Court reversed the trial court ruling and
held that the text messages should not have been admitted because they had not been
13
authenticated and also contained inadmissible hearsay. The Commonwealth
conceded that the appellant did not author all of the text messages on her phone. The
Superior Court found that the text messages were not authenticated because appellant
did not author all the messages and there was no evidence offered that the appellant
was the one who wrote the drug-related text messages, such as testimony from the
13
In the instant matter, since the actual text messages were not admitted, there is no hearsay violation.
Therefore the majority of this opinion will focus on authentication.
8
recipients of the text messages or any contextual clues within the messages themselves
that would reveal the identity of the sender. Id. at 1006-07.
Recently, the Pennsylvania Supreme Court has reviewed and affirmed the
Superior Court’s decision with an evenly divided Court. Commonwealth v. Koch, 106
14
A.3d 705 (Pa. 2014) (hereinafter “Koch II”). In Koch II, the Supreme Court agreed that
the text messages contained inadmissible hearsay and a new trial was warranted.
However, in the opinion in support of affirmance, the Supreme Court did not agree that
the text messages had not been authenticated. The Supreme Court stated that the
burden for authentication is low and can be proven by distinctive characteristics, such
as information specifying an author-sender, reference to relevant events that precede or
follow the communication in question, or any other facts that show the communication to
be what the proponent claims it is. Koch II, 106 A.3d at 712-13. The Supreme Court
offered this further standard for authentication of electronic communications:
The authentication inquiry will, by necessity, be fact-bound and case-by-
case, but, like courts in many other states, we believe that authorship is
relevant to authentication, particularly in the context of text messages
proffered by the government as proof of guilt in a criminal prosecution.
This is not an elevated “prima face plus” standard or imposition of an
additional requirement. Rather, it is a reasonable contemporary means of
satisfying the core requirement of Rule 901 when a text message is the
evidence the Commonwealth seeks to admit against a defendant; the
Commonwealth must still show that the message is what the
Commonwealth claims it to be, and authorship can be a valid (and even
crucial) aspect of the determination.
Koch II 106 A.3d at 714. The Supreme Court still found that authentication was met,
even though no evidence was admitted establishing that the appellant was the author of
the text messages. The Court reasoned, since the appellant was charged as both an
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When a decision is made by an equally divided court, no precedent is established and the holding is
not binding. See Commonwealth v. James, 427 A.2d 148 (Pa. 1981).
9
accomplice and a conspirator, authorship of the messages was not as important as it
might be under different facts. Id. at 714. The Court did note that the appellant
admitted ownership of the cell phone and that other evidence from the Commonwealth
showed that the messages on the phone indicated drug sales activity. Id.
In order to authenticate evidence a proponent must introduce sufficient evidence
that the matter is what it purports to be. Pa.R.E. 901. Authentication can be proven by
circumstantial evidence. Koch, 39 A.3d at 1003. Additionally, the proponent of a
document need only present some prima facie evidence that the item is what it is
purported to be. The ultimate determination of authenticity is for the jury.
Commonwealth v. Brooks, 508 A.2d 316, 320 (Pa. Super. 1986).
In this case, unlike Koch, the actual text messages themselves were not offered
as evidence. Instead, Corporal Howell, testifying as an expert in drug investigations
and trafficking, offered his expert opinion that text messages contained on Defendant’s
phone indicated that the person using that phone was involved in drug trafficking.
Ownership of the cell phone was established through Trooper Long, who received the
search warrant for the phones, and stated that the cell phone belonged to Defendant.
Furthermore, the cell phone in question was in Defendant’s possession on September
4, 2011, prior to him being taken to the barracks. Similar to Koch II, authorship of the
text messages was not as important in this case, since the actual text messages
themselves were not offered as evidence. Therefore, the low burden of authentication
was met in this case under either Koch or Koch II and Corporal Howell was able to offer
his expert opinion that Defendant’s cell phone contained drug-related text messages.
10
The Defendant was free to cross-examine Corporal Howell regarding the text
messages and in fact did attempt to cast doubt on whether Defendant owned the cell
phone. For example, Corporal Howell did admit on cross-examination that he could not
say with one hundred percent certainly who “owned” the cell phone in question, but that
the phone was found in Defendant’s possession.
Defendant argued that allowing Corporal Howell to testify to the text messages
as an expert was a way to backdoor in otherwise inadmissible hearsay. However, an
expert is permitted to base an opinion on facts that he has been made aware of or has
personally observed. An expert’s opinion may still be admitted at trial even though the
underlying facts used to form the opinion are not admissible, as long as those facts are
those that experts in the field would reasonably rely on. Pa.R.E. 703. Here, there is no
doubt that an expert in drug trafficking and drug investigations would use cell phone text
messages to form an opinion about whether certain messages were drug-related.
There was no error in permitting Corporal Howell to offer his expert opinion that
text messages found on Defendant’s phone, after obtaining a valid search warrant, were
drug-related, especially when the contents of the messages themselves were not
admitted. As the fact-finders, the jury was free to believe all, part, or none of Corporal
Howell’s testimony regarding the messages on the phone.
Additionally, any error, if any, in allowing Corporal Howell to offer his opinion that
Defendant’s cell phone contained drug-related text messages was harmless. An error
is considered harmless,
where the properly admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so insignificant by
comparison that the error could not have contributed to the verdict.
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Koch, 39 A.3d at 1006 (internal citations omitted). Harmless error rests on the premise
that “a defendant is entitled to a fair trial but not a perfect one”. Id. (internal quotations
and citations omitted). In Koch, the admission of the text messages was not considered
harmless error because it was “not a case where the Commonwealth presented
overwhelming properly admitted evidence regarding \[the appellant’s\] involvement in
drug transactions”. Id.
In this case, there was an abundance of other evidence presented by the
Commonwealth from which the jury could convict Defendant of unlawful possession and
possession with intent to deliver. Perhaps most importantly was the testimony of Cherry
Carter, the driver of the vehicle who was with Defendant that day. She testified that she
drove Defendant to Baltimore where Defendant picked up cocaine. She then drove
Defendant back to Hagerstown and Chambersburg where Defendant made drug sales.
Cherry and Defendant left Chambersburg around 7:00 a.m. in the morning, where they
were pulled over by Trooper Long. After they were pulled over, Cherry testified that the
Defendant took the cocaine out of his pocket and placed it in the bowl of trail mix,
indicating the cocaine was Defendant’s. The bowl was found in close proximity to the
Defendant. Corporal Howell also testified that no crack pipes or other modes of
ingestion were found in the vehicle, indicating the cocaine was for delivery and not for
personal use. Also, Corporal Howell stated that the way the cocaine was packaged
meant it was for sale and not personal use. This was clearly not a situation like Koch.
Here, the Commonwealth presented overwhelming evidence for the jury to convict
Defendant.
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Conclusion
There was no error in allowing Corporal Howell to state his expert opinion that
the cell phone in the Defendant’s possession contained drug-related text messages,
especially since experts are permitted to base their opinions on inadmissible evidence.
Authentication, or ownership of the cell phone, was established through circumstantial
evidence and through information obtained by the search warrant. Corporal Howell’s
testimony did not allow in otherwise inadmissible evidence, as the actual contents of the
text messages were not disclosed. Additionally, there was overwhelming evidence for
the jury to convict Defendant, even without the expert opinion testimony regarding the
cell phone text messages.
By the Court,
______________________
M. L. Ebert, Jr., J.
District Attorney’s Office
Marlin Markley, Esquire
Court Appointed Counsel for Defendant
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