NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P

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1 NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF PENNSYLVANIA v. : : GARY LAMAR COLEMAN, : No MDA 2012 : Appellant : Appeal from the Judgment of Sentence, March 22, 2012, in the Court of Common Pleas of Lycoming County Criminal Division at No. CP-41-CR BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 19, 2013 Gary Lamar Coleman appeals the judgment of sentence entered on March 22, 2012 in the Court of Common Pleas of Lycoming County. We affirm. A brief recitation of the facts follows. Charles and Angela Hill called 911 to report they were watching drug transactions in front of their home on 678 Fourth Avenue. They reported a description of the vehicles and the men who were involved. The 911 dispatcher relayed information to the police as the call evolved. Ms. Hill reported two different vehicles were involved, a silver Lexus Sedan and a gold or tan colored car which she could not describe. Ms. Hill provided the dispatcher with the license plate number for the Lexus; however, the 911 dispatcher later received information that the registration number provided actually belonged to a Cadillac. The individual

2 in the gold car was a black male with dreadlocks, blue pants, and a white sleeveless T-shirt. 1 The other individual was a tall, skinny black male who had short hair and was in his early 20 s; he was wearing a black or blue sleeveless T-shirt and darkish jeans. Mr. Hill then got on the phone and stated that the Lexus was actually gold in color. Mr. Hill also explained that he got into a verbal altercation with a black male with a shaved head who was wearing a black or blue sleeveless T-shirt and jeans. This male threatened Mr. Hill, stating he was going to shoot or pop him while simultaneously holding his hand like a gun and trigger. The Hills identified themselves to the operator and provided their phone number and address. Within ten minutes of hearing the call, Assistant Chief Jim Bies, with the Penn College Police Department, observed a black male matching the description of one of the actors. He saw a man later identified as appellant who had dreadlocks and was wearing blue running pants and a white sleeveless T-shirt. Appellant was exiting a residence approximately two blocks from the location where the incident was reported. Appellant and a woman got into a vehicle and Officer Bies followed. The woman driving the car pulled over and stopped. Appellant got out of the vehicle and approached the officer, yelling at him for following their car. Officer Bies was in an unmarked police car but in full uniform. The officer got out of his car and 1 Throughout the testimony, this type of shirt was referred to as a wife beater T-shirt

3 told appellant he wished to speak with him; appellant refused and re-entered his vehicle. Shortly thereafter, two officers with the Williamsport Bureau of Police arrived and detained appellant. The officers transported appellant to the Hill home where they immediately identified him as one of the individuals involved in the transactions in front of their home. While they had initially identified the car as a gold Cadillac during the 911 call, when they pulled up with the officers to the show-up, they told the officers yeah, that s the Cadillac when in fact the car was a gold Lincoln. Appellant was searched and the police recovered $671. Six baggies of crack cocaine and a baggie of marijuana were found during the search of the vehicle. Appellant was charged with violations of the Controlled Substance Act, including possession with intent to deliver cocaine ( PWID ). At trial, the Commonwealth called Agent Donald Mayes of the Williamsport Bureau of Police to testify as an expert in the area of drug possession and sales. Following a jury trial on December 14 and 16, 2011, appellant was convicted of PWID, possession of a small amount of marijuana, possession of cocaine, and possession of drug paraphernalia. On March 22, 2012, appellant was sentenced to 27 months to 6 years incarceration. Appellant filed a post-sentence motion on April 2, The motion was denied on 2 The actual tenth day, April 1, 2012, fell on a Sunday. Thus, appellant had until the following day to timely file his post-sentence motion. See 1 Pa.C.S.A (excluding weekends and holidays from the computation of time)

4 June 15, 2012, and appellant filed a timely notice of appeal. Following careful review, we affirm. Appellant presents the following issues for our review: Appellant s brief at DID THE LOWER COURT ERR BY FAILING TO SUPPRESS EVIDENCE SEIZED FOLLOWING AN INVESTIGATORY DETENTION FOLLOWING A STOP FROM KNOWN INDIVIDUALS, BUT THE APPELLANT S APPEARANCE ONLY PARTIALLY MATCHING THE DESCRIPTION? 2. DID THE TRIAL COURT ABUSE ITS DISCRETION BY DENYING THE APPELLANT S REQUEST FOR A MISTRIAL DURING TESTIMONY OF THE COMMONWEALTH S EXPERT WITNESS CONCERNING PWID AFTER HE REFERRED TO [APPELLANT] AS A GANGSTER AND DRUG DEALER? The first issue presented on appeal is whether the court erred in denying appellant s motion to suppress. 4 Appellant claims that the investigatory detention by the police was not supported by reasonable 3 Appellant complied with the trial court s order to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion. 4 Appellant filed a motion to suppress challenging a statement made before he received Miranda warnings, the stop of the vehicle, and the show up identification; two hearings were held on the matter. The first hearing was on December 17, 2010; the Commonwealth played a copy of the 911 recording and presented the testimony of the two officers, Officer James Douglas and Officer David Pletz who both arrived after appellant had been detained by Officer Bies. On February 1, 2011, the Commonwealth presented the testimony of Officer Bies. Thereafter, on March 19, 2011, the court granted appellant s motion regarding a Miranda issue and denied the motion regarding the investigatory stop and the show-up identification

5 suspicion. A review of the facts presented at the suppression hearings follows. On June 2, 2010, Officer Bies heard a radio report about an alleged drug deal that had occurred in the 600 block of Fourth Avenue. (Notes of testimony, 2/1/11 at 5.) One of the suspects was described as a black male wearing a sleeveless T-shirt (either white or black), bright blue running pants, and dreadlocks. (Id. at 6-8.) Two different vehicles were described; one was initially described as a Cadillac and the other as a Lexus. (Id. at 7.) The registration number for one of the vehicles was provided, but Officer Bies did not catch it fast enough to copy it down. (Id. at 19.) Officer Bies got into his unmarked police vehicle and drove down Memorial Avenue. Here he observed appellant exit a residence at 1024 Memorial Avenue; appellant had dreadlocks and was wearing blue running pants and a white sleeveless T-shirt. (Id. at 8.) The officer also noticed a tan or gold colored Cadillac in front of the residence. 5 (Id. at 8-9.) Officer Bies radioed-in the license plate number as HLY (Id. at 9.) A woman exited the residence and talked with appellant; the two then got into the vehicle with appellant entering the front passenger seat. (Id. at 9-10.) Officer Bies followed the Lincoln to Isabella Street where it pulled around the corner on Fifth Avenue and stopped. (Id. at ) Appellant 5 On cross-examination, it was clarified that the car was actually a Lincoln. (Id. at ) The officer radioed the registration number but did not hear back if this car was connected with the reported incident. (Id. at 16.) - 5 -

6 got out of the vehicle and approached the officer, yelling at him for following their car. (Id. at ) Officer Bies, who was in full uniform, stepped out of his vehicle and told appellant that he needed to talk to him and for appellant to keep his hands where he could see them. Officer Bies testified that he wanted to talk to appellant as he matched the description given over the 911 call. (Id. at 12.) Appellant responded that he did not want to talk to the officer and got back into the car. (Id. at12-13.) Officer Bies ordered appellant to remain out of the car and to keep his hands where he could see them, but appellant got back into the car and shut the door. At this moment, Agent Sorage and Captain Kontz arrived and blocked appellant s vehicle from leaving. They ordered appellant out of the car and told him to get down on the ground. (Id. at 14.) 6 Appellant argues that the investigatory detention was not supported by reasonable suspicion based upon the description provided in the 911 call. The Commonwealth claims that a stop was not conducted. Rather, a mere encounter escalated into an investigative detention. On appeal, the Commonwealth argues that the totality of the circumstances in the instant case provides more than adequate grounds to establish a reasonable suspicion of criminal activity. We agree. We begin our analysis of the suppression issues with this standard of review: 6 We note the 911 recording was played twice for the suppression court

7 [I]n addressing a challenge to a trial court s denial of a suppression motion [we are] limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Since the [Commonwealth] prevailed in the suppression court, we may consider only the evidence of the [Commonwealth] and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa.Super. 2010), quoting Commonwealth v. Bomar, 573 Pa. 426, 445, 826 A.2d 831, 842 (2003). The appellate courts have mandated that law enforcement officers, prior to subjecting a citizen to an investigatory detention, must harbor at least a reasonable suspicion that the person seized is then engaged in unlawful activity. Commonwealth v. Barber, 889 A.2d 587, 593 (Pa.Super. 2005), citing Commonwealth v. Nagle, 678 A.2d 376 (Pa.Super. 1996). Reasonable suspicion is a less demanding standard than probable cause because it can be established by information that is different in quantity and quality than that required for probable cause; it can arise from information that is less reliable than that required to show probable cause. Commonwealth v. Emeigh, 905 A.2d 995, 998 (Pa.Super. 2006) (citation omitted). To meet the standard of reasonable suspicion, the officer must point to specific and articulable facts which, together with the rational inferences therefrom, reasonably warrant the intrusion. In - 7 -

8 ascertaining the existence of reasonable suspicion, we must look to the totality of the circumstances to determine whether the officer had reasonable suspicion that criminal activity was afoot. Barber, supra at 593 (citations and quotations omitted). Further, police officers need not personally observe the illegal or suspicious conduct, but may rely upon the information of third parties, including tips from citizens. Id. Commonwealth v. Smith, 904 A.2d 30, (Pa.Super. 2006). On the issue of the source and reliability of the police officer s information, this court has opined as follows: When the underlying source of the officer s information is an anonymous call, the tip should be treated with particular suspicion. However, a tip from an informer known to the police may carry enough indicia of reliability for the police to conduct an investigatory stop, even though the same tip from an anonymous informant would likely not have done so. Indeed, a known informant places himself at risk of prosecution for filing a false claim if the tip is untrue, whereas an unknown informant faces no such risk. Commonwealth v. Swartz, 787 A.2d 1021, (Pa.Super. 2001) (en banc) (citations omitted). The information supplied by the informant must be specific enough to support reasonable suspicion that criminal activity is occurring. Commonwealth v. Allen, 555 Pa. 522, 725 A.2d

9 (1999). To determine whether the information provided is sufficient, we assess the information under the totality of the circumstances. Id. 7 Herein, the information supplied to Officer Bies came from identified informants. This indicates a high degree of reliability. See Swartz, supra. The information provided was sufficiently specific. The informants provided information about the occupants of the vehicles, providing a physical description and detailed information as to what they were wearing. The informants also described the vehicles that the suspects were driving. The information also described the conduct of the occupants; that is, that they were engaged in drug activity. The information provided the approximate location of where the illegal activity had occurred. Within ten minutes of the original dispatch, an officer patrolling the area noticed appellant, who matched the physical description of one of the individuals involved, leave a residence approximately two blocks from the reported illegal activity. Appellant got into a gold-colored vehicle; while the gold-colored vehicle was reported to be a Cadillac, this vehicle was a Lincoln. Upon following the gold vehicle for a short time in an unmarked police car, 7 We note that appellant cites Commonwealth v. Jones, 845 A.2d 821 (Pa.Super. 2004), for the proposition that the identity of the informer alone does not render the underlying information sufficient. Jones appears to be inconsistent with other case law, which has found that knowing the identity of the informant does sufficiently heighten the reliability of the information because where the informant s identity is known, he or she risks prosecution for giving false information to police. A member of the Jones panel dissented on this basis

10 the vehicle appellant was a passenger in stopped. Appellant exited and confronted the officer, who was in uniform, about why they were being followed. At this point, the officer directed appellant to keep his hands where the officer could see them and stated that he wanted to talk to appellant. Appellant refused and got back into the car. Appellant was ordered out and refused to obey orders given by the officer. Under the totality of the circumstances, Officer Bies was fully justified in detaining appellant. 8 He matched the description of one of the men involved and he got into a vehicle that was similar to one of the vehicles described. He was also observed in close proximity in both time and place to where the crime occurred. Therefore, the suppression court did not err in denying this portion of appellant s motion. Next, appellant argues that the trial court abused its discretion by denying his motion for a mistrial after the Commonwealth s expert referred to him as a gangster and drug dealer during cross-examination. No relief is due. As a trial judge has broad powers concerning the conduct of a trial, the decision whether to declare a mistrial is within the sound discretion of the trial judge and will not be reversed absent a flagrant abuse of discretion. 8 We note that in his brief on appeal, appellant attempts to challenge the search of the vehicle. This allegation was not presented to the trial court in appellant s concise statement. Thus, it is waived. See Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998)

11 Commonwealth v. Bracey, 831 A.2d 678, 682 (Pa.Super. 2003), appeal denied, 577 Pa. 685, 844 A.2d 551 (2004). A mistrial is an extreme remedy... [that]... must be granted only when an incident is of such a nature that its unavoidable effect is to deprive defendant of a fair trial. Commonwealth v. Vazquez, 617 A.2d 786, (Pa.Super. 1992), citing Commonwealth v. Chestnut, 511 Pa. 169, 512 A.2d 603 (1986), and Commonwealth v. Brinkley, 505 Pa. 442, 480 A.2d 980 (1984). Moreover, when the trial court gives prompt curative instructions, an abuse of discretion will not readily be found. Commonwealth v. Hoffman, 447 A.2d 983, 984 (Pa.Super. 1982). A mistrial must be granted only where the alleged prejudicial event may reasonably be said to deprive the defendant of a fair and impartial trial. Commonwealth v. Fetter, 770 A.2d 762, 768 (Pa.Super. 2001). The circumstances which the court must consider include whether the improper remark was intentionally elicited by the Commonwealth, whether the answer was responsive to the question posed, whether the Commonwealth exploited the reference, and whether the curative instruction was appropriate. Id. When the trial court provides cautionary instructions to the jury in the event the defense raises a motion for mistrial, we presume that the jury will follow the instructions. Commonwealth v. Parker, 957 A.2d 311, 319 (Pa.Super. 2008), appeal denied, 600 Pa. 755, 966 A.2d 571 (2009)

12 We now review the facts pertinent to this issue. At trial, the Commonwealth introduced Agent Donald Mayes of the Williamsport Bureau of Police to opine that the cocaine seized from the car was possessed with intent to deliver rather than for personal use. On direct examination, Agent Mayes testified that the six knotted bags of cocaine, totaling 1.8 grams, were located inside a larger bag, known as a distribution bag. (Notes of testimony, 1/14/11 at 133.) The agent testified that this is typically how drugs are packaged in -- what it appears to be are corners of a zip-lock bag that were ripped off, tied in a knot. That s a common way we buy cocaine. (Id. at 134.) The officer explained that the larger bag is filled with the knotted bags so the seller would reach in, get your product out, and hand it off to people. If you have to throw it away it s all in one bag and you can throw it all away without forgetting one or two in your packet. (Id.) He explained that each bag would be sold from $20 to $50 on the street. (Id.) The agent s opinion was based upon the totality of the circumstances, including the fact that there were the six small bags in a distribution bag, the way the drugs were packaged, the money found on appellant s person, which included 28 twenty dollar bills, and the lack of paraphernalia. (Id. at , 140.) On cross-examination, the agent was questioned as to what a crack or cocaine user looked like. (Id. at ) He acknowledged that certain people could use 1.8 grams of cocaine in one day but he noted that

13 appellant appeared to be healthy and in good shape. (Id. at 148.) Defense counsel questioned the agent about how appellant looked in court that day as compared to the previous times he had been seen; counsel s questions suggested that appellant looked more like a cocaine addict than a dealer. The agent responded that he had always known appellant to look fine, He s not what I m used to seeing as a cocaine user, a crack user. He s just not. He s a gangster. He s a drug dealer. (Id. at ) Defense counsel objected and the trial court provided the following curative instruction: Id. at Ladies and gentlemen, [Defense Counsel] properly objected to the fact of the agent s characterizations of the Defendant. At the beginning I said that -- I indicated in my initial instructions to you that you have to follow the instructions of the Court, and I am instructing you at this point that you re to give no weight to the fact that the agent referred to Mr. Coleman as a gangster and, in fact, the conclusion that he is a drug dealer is for you. The agent may give or may opine on that which is reasonably connected to delivery of drugs, but the characterization was inappropriate and you are instructed to disregard it and give it no weight in your deliberations. Here, the comments referring to appellant as a drug dealer and gangster did not warrant a mistrial, and thus the trial court did not err when it denied appellant s motion. The record clearly indicates that the 9 We note that as the agent left the witness stand, he openly apologized for his comments. (Id. at 153)

14 comments were in response to questions on cross-examination and not questions posed by the prosecution. As the trial court also states, the agent did not include appellant s appearance in his list of factors supporting his opinion that the drugs were possessed with intent to deliver, minimizing the importance of the comment. The trial court immediately issued a curative instruction to the jury, informing them that they were not to consider the agent s terms drug dealer or gangster. 10 Taking all of these factors into consideration, appellant was not denied a fair trial. Judgment of sentence affirmed. Judgment Entered. Interim Deputy Prothonotary Date: 6/19/ In his brief on appeal, appellant now attempts to challenge the propriety of the trial court s curative instruction. Such a claim is waived as appellant did not lodge an objection in the trial court or include this issue in his Rule 1925(b) statement. See Lord, supra; Commonwealth v. Thoeun Tha, A.3d, 2013 WL (Pa.Super. 2013)