Commonwealth v. Wright

255 A.3d 542

COMMONWEALTH of Pennsylvania

v.Bry'Drick Da'Michael WRIGHT, Appellant

No. 815 MDA 2020

Superior Court of Pennsylvania.

Submitted April 8, 2021

Filed June 09, 2021

James J. Karl, Harrisburg, for appellant.

Ryan H. Lysaght, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant, Bry'Drick Da'Michael Wright, appeals from the judgment of sentence of 42 to 84 months’ incarceration entered in the Court of Common Pleas of Dauphin County after a jury found him guilty of Possession With Intent to Deliver ("PWID"), Possession of Marijuana—Small Amount Personal Use, and Use or Possession of Drug Paraphernalia.¹ He challenges the denial of his motion to suppress a state parole officer's warrantless vehicle search, the sufficiency of evidence offered to prove his constructive possession of contraband recovered from the vehicle, and the admission of incriminating text messages retrieved from his cell phone. We affirm.

The trial court's Pa.R.A.P 1925(a) opinion provides the pertinent facts and procedural history, as follows:

A criminal complaint [charging Appellant with multiple narcotics and firearm violations] was filed October 4, 2018 and Bry'Drick Da'Michael Wright (hereinafter "Appellant") was formally arraigned January 4, 2019. On February 25, 2019, Appellant filed a pre-trial motion to suppress, and a suppression hearing was held March 21, 2019. On June 19, 2019, [the trial court] denied Appellant's pre-trial motion to suppress. On December 19, 2019, Appellant's Motions in limine and demand for an offer of proof regarding cell phone extraction were ordered to be heard immediately prior to trial.

[Appellant's jury trial commenced on March 9, 2020. The Commonwealth presented evidence that,] [o]n October 4, 2018, Adult Parole Officer ("APO") [Arlen] Shipley and Harrisburg Police Officer Daril Foose partnered to perform a probation check on Appellant's brother, Marquis Emery, an individual who was under APO Shipley's supervision at the time. [N.T.] Jury Trial, March 9-11, 2020, page 52 (hereinafter "N.T. at ––––"). While performing the check, the two noticed the smell of "freshly burnt marijuana." N.T. at 59.

APO Shipley [testified] that Appellant stood up and in doing so revealed that he was sitting on a small bag of marijuana, which Appellant quickly admitted was his. N.T. at 61-62. After noticing Appellant trying to give a car key to Angela Murray, APO Shipley questioned Appellant about the key, to which Appellant replied that it was just a key to his locker at work. N.T. at 95-96. APO Shipley subsequently [used the key to] perform a search of the Chevrolet Impala and found a handgun in the center console. N.T. at 71.

Officer Foose [testified] that Appellant admitted that he was sitting on the bag of marijuana prior to standing up. N.T. at 94. After APO Shipley found the gun, Officer Foose placed Appellant under arrest and searched the remainder of the car, finding a white shopping bag containing marijuana and four bundles of fentanyl and heroin, as well as a brown box containing multiple empty white and blue heroin baggies. N.T. at 103.

Officer Foose obtained consent from Appellant to search his cell phone, N.T. at 114, and noticed that his phone contained messages with multiple individuals for the purchase of firearms as well as the distribution and sale of drugs. N.T. at 115. Subsequently, Officer Foose seized the cell phone and ordered a "phone dump" – forensic samples of the cell phone's content.[fn]

[FN] Commonwealth exhibits 21 through 27 contain the messages seized in the phone dump.

Chief John Goshert also testified about the messages contained on the Appellant's cell phone. First, he testified to several messages that linked the phone to the Appellant. See N.T. at 197, 198. For example, one of these text messages says, "you're texting why not take my calls Bry'Drick[.]" N.T. at 198, Commonwealth's Exhibit 28. There was no indication that the reply messages were sent by someone other than the Appellant. Additionally, Chief Goshert testified about text messages that linked the Appellant to the Chevy Impala. N.T. at 200. These included messages sent to the Appellant that said, "grab the Impala come get a n***a[,]" to which the Appellant responded, "on my way." Commonwealth's Exhibit 21-22.[fn] Finally, Chief Goshert testified about several text messages relating to smoking marijuana. N.T. at 203-230. See generally Commonwealth's Exhibits 9-20.

[FN] There were additional text messages linking the Appellant to the Chevy Impala. N.T. at 200-203.

[At the conclusion of the jury trial], Appellant was found guilty [of the above-listed offenses]. On April 28, 2020, ... he was sentenced to a 42 to 84-month sentence [of incarceration on the charge of PWID] and [an additional 12-month probationary term to run concurrently.] On May 4, 2020, Appellant filed a post-sentence motion raising a weight of the evidence claim. On May 19, 2020, [the trial court] denied Appellant's post-sentence motion.

On June 9, 2020, a timely notice of appeal was filed in the Pennsylvania Superior Court. In compliance with [the trial court's] 1925 order, Appellant filed an "Amended Statement of Errors Complained of on Appeal" ("Concise Statement") [raising multiple issues].

Trial Court Opinion, 7/22/2020, at 1-4.

Appellant presents the following questions for this Court's consideration:

1. Did not the court err in denying Appellant's motion to suppress the fruits of the warrantless search of a vehicle by a state parole agent and a police officer?

2. Did not the court err in admitting text messages extracted from a cell phone when the Commonwealth failed to authenticate such evidence under Pa.R.E. 901 by establishing Appellant's authorship of such communications?

3. Was not the evidence insufficient to sustain a conviction for possessing contraband that was found in a vehicle that Appellant did not own when there was insufficient proof of his constructive possession of the contraband and when he was merely present along with a group of other persons on a porch near the parked vehicle?

Appellant's brief, at 7.

In Appellant's first issue, he maintains the court erred in denying his motion to suppress all evidence obtained from the state parole agent's warrantless vehicle search of the Chevrolet Impala. The standard of review an appellate court applies when considering an order denying a suppression motion is well established. "On review from an order suppressing evidence, we ‘consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted.’ " Commonwealth v. Johnson , 202 A.3d 125, 127 (Pa. Super. 2019). "This Court is bound by the factual findings of the suppression court where the record supports those findings and may only reverse when the legal conclusions drawn from those facts are in error." Commonwealth v. Haynes , 116 A.3d 640, 644 (Pa. Super. 2015).

Because the Commonwealth prevailed in the suppression court, we consider only the Commonwealth's evidence and the evidence presented by Appellant that remains uncontradicted. Commonwealth v. Harlan , 208 A.3d 497, 499 (Pa. Super. 2019). Additionally, we may consider only the evidence presented at the suppression hearing. In re L.J. , 622 Pa. 126, 79 A.3d 1073, 1085–1087 (2013).

At Appellant's March 21, 2019 suppression hearing, Agent Shipley was the sole witness, and he testified that on the evening of October 4, 2018, Officer Foose and he visited 1720 North Street, Harrisburg, the approved parole residence of Marquis Emery, Appellant's brother,² who had been under Agent Shipley's active supervision as a high-risk offender. N.T., Suppression Hearing, 3/21/19 at 6. As they drove toward the address—from which authorities had recently confiscated 120 bundles of heroin and a firearm, and which is otherwise situated in a high-crime, high-drug neighborhood—they noticed four males sitting on the porch. As they alighted the vehicle, both the agent and officer detected the smell of freshly burnt marijuana. N.T. at 8-10.

Agent Shipley addressed the group and recognized Appellant once he began talking with him. N.T. at 11. Specifically, the agent knew Appellant was Emery's brother and that he was also on state parole, a status to which Appellant admitted during their conversation. N.T. at 11-13. When Agent Shipley asked Appellant to stand for a consented-to pat-down, he observed a bag of marijuana on Appellant's chair. N.T. at 13, 26. The agent also noticed Appellant was making a subtle attempt to pass a set of keys and a single key to his aunt, Angela Murray, but he ordered the group to leave the keys where they were. N.T. at 13-14, 29. At this point, Agent Shipley indicated to Appellant that he was addressing him as state parole agent to state parolee. N.T. at 15.

When asked what the set of keys were for, Appellant said the set belonged to his father's van, which he had just driven to the present location. Agent Shipley used the keys to perform a consent search of the van, which yielded no contraband. N.T. at 14-15. The agent returned to the porch and asked Appellant what the single key was for, and Appellant claimed it was for his work locker. The agent deemed this a lie, he testified, as he knew from its distinctive shape and size that it was a vehicle key. N.T. at 16-17.

With key in hand, Agent Shipley walked directly to a white Chevrolet Impala and used the key to unlock and open a door. He entered the vehicle and observed a semiautomatic firearm in the center console. N.T. at 17-18. He alerted Officer Foose and other officers now on the scene of his finding and allowed them to complete the search, which uncovered additional marijuana, heroin, and fentanyl. N.T. at 18-19.

Appellant argues that the small amount of marijuana discovered in his possession and the prior drug-related history of his bro...