Commonwealth v. Cole

1

COMMONWEALTH OF PENNSYLVANIA v. KENNETH JEROME COLE Appellant

No. 157 EDA 2023

J-A14029-24

Superior Court of Pennsylvania

December 2, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered July 15, 2022 In the Court of Common Pleas of Chester County Criminal Division at No: CP-15-CR-0002635-2020

BEFORE: LAZARUS, P.J., STABILE, J., and LANE, J.

MEMORANDUM

STABILE, J.

Appellant Kenneth Jerome Cole, appeals from the judgment of sentence imposed on July 15, 2022, as made final by the denial of his post-sentence motion on December 13, 2022. Among other claims, Appellant challenges the sufficiency and weight of the evidence to support his convictions of possession with intent to deliver, possession of a controlled substance and person not to possess firearms. Concluding that Appellant's claims are waived, as well as meritless, we affirm.

On August 20, 2020, several members of the Chester County High Intensity Drug Trafficking Area task force executed a search warrant at the home of Appellant and his wife, Nicole Gantt located at 24 West Fifth Avenue, Coatesville, Pennsylvania. N.T., Jury Trial, 2/28/22-3/3/22, at 217, 227. Officer Scott Neuhaus assisted in the execution of the warrant as part of the Emergency Response Team. Id. at 205. His primary assignment was to enter and secure the residence. Id. at 208. After entering, Officer Neuhaus observed Appellant and Ms. Gantt emerge from the main bedroom dressed in what appeared to be sleep attire.^[1] Id. at 209. Once everyone in residence was secured, Detective Jonathan Shave began his investigation. Id. at 210.

Inside the main bedroom, Detective Shave asked Ms. Gantt which items belonged to Appellant, and she identified all items on the right side of the bed. Id. at 233-34. After being questioned, Ms. Gantt was allowed to collect her things and remove her children from the residence. Id. at 234.

Detective Shave started his search on the side of the bedroom identified as Appellant's. He recovered two cell phones - an Alcatel phone and a blue Verizon LG phone. Id. at 241. He then searched a plastic bag in that area, which contained: (1) a chain leather wallet with Appellant's identification card, $300-$400 in cash and several keys^[2]; (2) a pill bottle for alprazolam in the name of Loretta Brown; (3) a pill bottle with a knotted bag of cocaine inside; (4) a pill bottle with three small bags of crack cocaine and three miscellaneous pills; (5) a pill bottle with 71 pills stamped LP-115; (6) a pill bottle with 31 white round pills stamped 230; (7) a pill bottle with 44 blue, round pills stamped M30; (8) a coupon with Appellant's name on it; (9) mail with a return address for Appellant; (10) $616 in cash, banded together with Appellant's driver's license, and three Pennsylvania assistance cards; and (11) an empty bag that typically contains smaller plastic bags, known as Apple bags, which are commonly used to package controlled substances. Id. at 242-44, 252-53, 258-61, 264-65.

Several pieces of mail addressed to Appellant were found on the right side of the bed. Id. at 266. Detective Shave searched another plastic bag which contained: (1) several Apple bags in various colors; (2) a knotted plastic bag of methamphetamine; (3) a pill bottle for oxycodone in the name of Harry Sellers; and (4) a Ziploc bag with miscellaneous loose bags and small rubber bands. Id. at 268-70, 273.

While continuing to search Appellant's side of the bedroom, Detective Shave found a cloth Gucci bag which contained: (1) a key fob for a Lincoln; (2) four bundles of $1,000, a total of $4,000 in cash; (3) a Ruger 9mm firearm with an Apple bag stuck in the slide; (4) a pill bottle with a knotted plastic bag of cocaine; (5) rubber bands; and (6) miscellaneous pills. Id. at 276-77.

In the wicker nightstand on Appellant's side, Detective Shave recovered marijuana, a digital scale, rolling papers, and Appellant's checkbook. Id. at 298. Detective Shave also recovered a red drawstring bag that contained more Apple bags, a pill bottle with 40 white bars, rubber bands, and a coupon in Appellant's name. Id. at 303-05. Another set of keys was recovered from a rack next to the front door with a lanyard with a tribute to Dowoun Phillips (Appellant's mother), and a key that opened the front door of 24 West Fifth Avenue. Id. at 309-11. Inside of a kitchen cabinet, officers recovered two digital scales and stainless-steel cooking utensils, all of which had a white powdery residue on their surfaces. Id. at 313-14.

During the search of 24 West Fifth Avenue, Detective Shave obtained information to support a search of 214 Andrew Road, Coatesville, Pennsylvania, a residence owned by Appellant's stepfather, Roland Phillips. Id. at 320-21, 424. Detective Thomas Hyland assisted in the execution of the search warrant at that home. Id. at 422-23. Mr. Phillips informed Detective Hyland that Appellant kept items in a locked room in his home, but he did not have a key. Id. at 425. Detective Hyland had a set of keys from the search of 24 West Fifth Avenue on his person, and one of those keys unlocked the room.^[3] Id. at 425-26. After opening the room and ensuring that no one was inside, Detective Hyland closed and locked the room until he obtained a search warrant for the locked room. Id. at 426-27.

In executing the search warrant of the room identified as Appellant's, Detective Hyland recovered two Sentry safes, a .22 caliber handgun and a black and pink revolver from the closet. Id. at 431, 436. In searching the rest of the room, officers found: (1) a pill bottle with 52 white pills; (2) kitchen instruments with white residue on them; (3) a digital scale and clear lid with white residue; (4) a box of sandwich bags; (5) assistance cards for Appellant and Chekesha Pate; (6) mail addressed to Appellant; (7) a plate with a razor blade and suspected cocaine; (8) a cup with Apple bags and rubber bands; (9) a kitchen pot; (10) a clear jar with suspected marijuana; (11) a bag containing multiple Apple bags; (12) a measuring cup; (13) a plastic container with white, clumpy powder (later determined not to be a controlled substance); (14) two cell phones; (15) $183 in cash; (16) a pill bottle with over a dozen pills inside it; and (17) various types of ammunition. Id. at 432-46, 455.

The two safes found in the closet were transported to the Chester County training facility and manually opened. Id. at 457. One of them contained $48,950.00 in cash.^[4] Id. at 479. All the suspected controlled substances seized pursuant to the warrants were sent to a lab for testing. Id. at 482. The parties stipulated to the lab results. Id. at 484. Several of the pills were identified as controlled substances: 31 oxycodone and acetaminophen, 71 hydrocodone, 62 alprazolam, 27 amphetamine, 44 oxycodone, and 1 cocaine and clonazolam [sic]. Id. at 484-89. There were also several pills that were not controlled substances: 23 sildenafil (commonly known as Viagra), 51 gabapentin, naproxen and acetaminophen. Id. Additionally, 8.47 grams of cocaine, 1.89 grams of methamphetamine and 23.61 grams of marijuana were seized. Id.

Based on the items recovered from the two residences, Detective Shave opined that large quantities of drugs were being distributed from them.^[5] Id. at 507. Specifically,

This is street level sales which generates a large amount of currency. You can see that there's, you know, $60,000 was seized in this investigation. There's cocaine sales. There's prescription pills sales. There's noncontrolled substances sales. This is - this is drug dealing.

The tools are all right there. You've got firearms to protect your assets. You know, there's instruments to weigh, package. We've seen . . . instruments for taking a large amount of cocaine, cooking cocaine, breaking it off into smaller portions, bagging it up into the small Apple bags, and then . . . the sale of those small bags, those small red bags filled with cocaine, that generates money. That generates a lot of money.

Again, the pills are the same thing. The pills are possessed for sale. There's a lot of pills. There's opiates, there's benzos, there's the amphetamines, those are all pills that one person shouldn't have. There's no label, so you can't tell where they have come from, but they're all possessed with the intent to distribute them for street sales.

Id. Moreover, Detective Joseph Nangle, who was accepted as an expert in investigating controlled substances and controlled substance trafficking, opined that Appellant possessed controlled substances with the intent to deliver and distribute them. Id. at 588, 594. He explained:

Based upon the quantities and the variety of drugs that [Appellant] possessed showed me that he was distributing these drugs. A person . . . doesn't usually possess multiple drugs. The way they're packaged, they were in pill bottles with no sticker on them. They were categorized with each type of drug.

They were kept together in a location with the firearm accessible to them. They were packaged - some of them were packaged in bags, and then there was also the bags that were new bags, which obviously somebody that was a user wouldn't have new bags in their possession. Those bags were there for other drugs to be put into them for [Appellant] to sell. The cell phones were another indication.

* * * *

. . . [P]eople that are distributing drugs also possess firearms for protection. I also mentioned that they are also used by people that were to - people that steal drugs or come across drugs and will trade them for drugs when they don't have the currency to do so.

Id. at 594-95. He further opined that the cash found in the homes was "packaged in rubber bands and . . . in a safe," suggesting that the...