NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

Transcription

1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. DARRYL RINGLER Appellant No. 797 WDA 2012 Appeal from the Judgment of Sentence April 19, 2012 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J. MEMORANDUM BY LAZARUS, J. FILED: August 27, 2013 Darryl Ringler appeals from his judgment of sentence, entered in the Court of Common Pleas of Allegheny County, after a jury found him guilty of possession with intent to deliver a controlled substance (PWID) 1 and possession of a controlled substance. 2 Upon careful review, we vacate the conviction and judgment of sentence and remand for a new trial. The charges in this matter arise from an incident in which Officer James Ilgenfritz pulled over Steven Lux and Tanner Shawl for a routine traffic violation in the area of Ringler s home at 354 West 15 th Street in 1 35 P.S (a)(30) P.S (a)(16).

2 Homestead, Pennsylvania. 3 N.T. Trial, 1/24/2012, at After initiating the traffic stop, Lux quickly admitted to Officer Ilgenfritz that he possessed heroin. Id. at 46, 35. Officer Ilgenfritz arrested Lux and Shawl and transported them to the police station. Id. Both men were offered immunity from prosecution if they would assist in capturing whoever had sold them the heroin. Id. at 47. Officer Ilgenfritz prepared a photo array containing Darryl Ringler s image, and Lux identified Ringler as the one who sold the heroin, although he could not name him or give a street address of the house in question. 4 Id. at Of the two drug buyers, only Lux testified at trial, telling the court that he and Shawl went to the block in question to buy heroin. Id. at Lux testified that he gave Shawl $20 to purchase the drugs, and that Shawl exited the vehicle, approached Ringler s residence and that Ringler waived Shawl into the house. Id. Shawl returned with.01 grams of heroin, and the two drove off, only to be pulled over by Officer Ilgenfritz. Id. at 34. Lux also testified that before going to Ringler s block, Shawl had called an unnamed drug dealer, who had referred Shawl to Ringler. Id. at 32. Ringler s attorney objected on hearsay grounds, but the trial judge overruled 3 Officer Ilgenfritz had been in the vicinity after his supervisor radioed him that he was suspicious of a car pulled up in front of Ringler s address. N.T. Trial, 1/24/2912, at 28, 45. Officer Ilgenfritz arrived shortly thereafter, and saw Lux and Shawl pull away. Id. 4 It is unclear from the record when or how Ringler was eventually arrested

3 the objection, reasoning that the testimony was course of conduct evidence, explaining why Lux and Shawl had gone to Ringler s home in the first place. Id. Lux then testified that the unnamed drug dealer had told Shawl to go see Darryl. Id. Ringler was convicted of the above offenses on January 25, 2012, and received a standard range sentence of 2-4 years of incarceration, with credit for time served, for the PWID conviction, and no further penalty for the possession conviction. N.T. Sentencing, 4/19/2012, at 12. Ringler did not file post-sentence motions, but timely filed the instant appeal, raising the following questions for our review: 1. Did the trial court abuse its discretion in admitting hearsay testimony concerning a material element of the crimes charged on grounds that it explained course of conduct where the exact conduct it was admitted to explain had already been testified to by the witness? 2. Did the Commonwealth fail to prove beyond a reasonable doubt every element of the offenses of possession of a controlled substance and possession of a controlled substance with the intent to distribute where no direct evidence was present that [] Ringler possessed or sold drugs and any inference of guilt[] could have only rested on mere suspicion or surmise? Appellant s Brief, at We reverse the order of the issues from the order of Ringler s Brief

4 Ringler claims that the trial court erred in allowing inadmissible hearsay testimony onto the record. The relevant exchange between the prosecutor and Lux on direct examination was as follows: Q: Let s talk a little bit more about the circumstances for the day. Were you with anybody? A: Yes. Tanner Shawl. Q: Did the two of you just decide off of a whim to go and purchase heroin in Homestead? A: Tanner made a phone call and a dealer referred us to that residence. Q: Did he refer you to anybody in particular? A: Yes. ATTORNEY DE LOSA: Objection. Hearsay, Your Honor. ATTORNEY CANNON: You Honor, it is not being offered for the truth of the matter asserted. It is being offered merely to show the course of conduct of the witnesses as to why they went to the defendant s house to buy heroin. JUDGE DURKIN: What s your question again? ATTORNEY CANNON: The question is did they direct you to anybody in particular. JUDGE DURKIN: Okay. I will allow it to show the course of conduct. Go ahead. Q: Whom did they direct you to? A: Darryl. N.T. Trial, 12/24/2012, at 32. Our standard of review regarding the admissibility of evidence is an abuse of discretion. [T]he admissibility of evidence is a matter addressed to the sound discretion of the trial court and... an appellate court may only - 4 -

5 reverse upon a showing that the trial court abused its discretion. Commonwealth v. Weiss, 776 A.2d 958, 967 (Pa. 2001) (citations omitted). An abuse of discretion is not a mere error in judgment but, rather, involves bias, ill will, partiality, prejudice, manifest unreasonableness, or misapplication of law. Commonwealth v. Hoover, 16 A.3d 1148, 1150 (Pa. 2011). Rule 801 of the Pennsylvania Rules of Evidence defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Pa.R.E By definition, an-out-of court statement offered not for its truth, but rather to explain a witness s course of conduct, is not hearsay. Commonwealth v. Rega, 933 A.2d 997, 1017 (Pa. 2007). This category of non-hearsay is known as course of conduct evidence, and is often applied to police, allowing them to explain what information they were acting on when they pursued a particular avenue of investigation. See e.g. Commonwealth v. Johnson, 42 A.3d 1017, 1035 (Pa. 2012). However, there are limitations on what may be admitted as course of conduct evidence, and it cannot be said that every out-of-court statement having bearing upon subsequent... conduct is to be admitted, for there is great risk that, despite cautionary jury instructions, certain types of statements will be considered by the jury as substantive evidence of guilt. Commonwealth v. Dent, 837 A.2d 571, 579 (Pa. Super. 2003)

6 In the instant case, the Commonwealth concedes that the testimony of Lux was inadmissible hearsay. Commonwealth Brief, at 13. We concur with this assessment. While our course of conduct case law would allow general testimony that Lux and Shawl thought they could purchase heroin at the location in question, specifically allowing Lux to testify that Shawl had told him that an unnamed, third-party, drug dealer had told Shawl to go see Darryl goes far beyond explaining their actions that night. This testimony by Lux, especially in the absence of a cautionary instruction from the trial court, could be considered by the jury as substantive evidence of guilt. Dent, 837 A.2d at 579. While the Commonwealth concedes the trial court s error, it also argues that the error was harmless, and we analyze the matter accordingly. Our Supreme Court has explained that: [H]armless error exists in three alternative scenarios: [1] where the error did not prejudice the defendant or the prejudice was de minimis, [2] the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence, or [3] 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. Commonwealth v. Chmiel, 889 A.2d 501, 529 (Pa. 2005). The burden of establishing that the error was harmless rests upon the Commonwealth. Commonwealth v. Story, 383 A.2d 155, 162 n.11 (Pa. 1978); see also Commonwealth v. Fransen, 42 A.3d 1100, 1113 (Pa. Super. 2012)

7 In the instant case, we cannot find that the error was harmless. Excluding the hearsay evidence, what remains on the record is Lux s testimony that he and Shawl drove to the block in question, that he gave Shawl $20, that Ringler let Shawl into 354 West 15 th St., and that Shawl later retuned with heroin. While this certainly suggests that Shawl purchased the drugs from Ringler, it is highly circumstantial, as no witness testified as to what occurred within the house, and no evidence was presented that drugs or drug distribution paraphernalia were recovered from Ringler. However, the hearsay testimony that a drug dealer told Shawl to go see Darryl about purchasing heroin significantly strengthens the Commonwealth s case, as it suggests that Ringler, and not some other occupant of the home, was the source of the heroin. Accordingly, we cannot find that the omission of the hearsay testimony would have made no difference to the outcome of the trial, and therefore, reversible error has occurred and we must vacate the convictions. Chimel, 889 A.2d at 529. We turn briefly to Ringler s second claim that there was not sufficient evidence to convict him. The elements of PWID are possession of a narcotic, and intent to distribute that narcotic. 35 P.S (a)(30). After evaluating the record in the light most favorable to the Commonwealth as the verdict winner, we hold that there was sufficient evidence from which a jury could find that Ringler possessed heroin with the intent to deliver. See Commonwealth v. Stays, 40 A.3d 160, 167 (Pa. Super. 2012) (we may not substitute our judgment for that of the fact finder; thus, so long as the - 7 -

8 evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant s crimes beyond a reasonable doubt, the appellant s convictions will be upheld. ). The testimony that Shawl approached the house with $20 and Ringler let Shawl into the house, and Shawl then returned with heroin supports an inference that Ringler possessed the heroin, and then sold it to Shawl, proving intent. Thus, there is sufficient evidence on the record to support the conviction. Judgment of sentence and conviction vacated. Case remanded for a new trial. Jurisdiction relinquished. SHOGAN, J., Concurs in the result. Judgment Entered. Deputy Prothonotary Date: 8/27/