J. A26001/10 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, : : : : : : : : : Appellee v. JAMEL BAILEY, Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1797 EDA 2009 Appeal from the Judgment of Sentence entered on May 14, 2009 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. CP-51-CR-0008896-2008 BEFORE: MUSMANNO, PANELLA and SHOGAN, JJ. MEMORANDUM: Filed: January 21, 2011 Jamel Bailey (“Bailey”) appeals from the judgment of sentence imposed following his convictions of possession of a controlled substance, possession with intent to deliver a controlled substance (“PWID”), possession of drug paraphernalia, possession of an instrument of crime (“PIC”), and person not to use or possess a firearm. See 35 P.S. 780- 113(a)(16), (30), (32); 18 Pa.C.S.A. §§ 907, 6105. We affirm. We note that the trial court has set forth a thorough recitation of the underlying factual history and testimony at trial. See Trial Court Opinion, 12/22/09, at 2-8. We adopt this recitation for the purposes of this appeal. See id. On March 2, 2008, Bailey was arrested after the police found individual packets of crack cocaine on his person and numerous packets of crack J. A26001/10 cocaine and two handguns from Bailey’s bedroom. Bailey was held in custody while the Philadelphia Police Department prepared an Arrest Report under the Preliminary Arraignment Reporting System (“PARS report”).1 At the preliminary (bail) arraignment, the bail commissioner was provided with pre-trial information including the PARS report. While the PARS report was not provided to defense counsel, the bail commissioner, pursuant to the Municipal Court internal operating procedure, read the parts of the PARS report that he considered in setting bail at the arraignment.2 was set at $50,000. Bailey’s bail Defense counsel then sought a copy of the PARS report, which was denied. On March 20, 2008, Bailey filed a writ of habeas corpus based upon the withholding of the PARS report. Following a hearing, the trial court denied this writ. After a preliminary hearing was held, the charges against Bailey were held over for court. 1 The PARS reports contain a summary of the facts underlying the charges, including information on the investigating officers, witnesses and victims. The PARS reports are utilized at the preliminary arraignment in lieu of the district attorney’s office presenting the information and for coordination by the court’s administrators, the police and the district attorney’s office. 2 Originally, the PARS reports, which began in 1997, were being inserted in the file maintained by the court and therefore open to the public; this practice was discontinued in 2007 due to a request by the Philadelphia District Attorney’s Office and approval of the President Judge of the Philadelphia Municipal Court. Currently, the report cannot be publicly accessed as it is considered an internal police document. However, the Philadelphia District Attorney’s Office has initiated a pilot program wherein PARS reports are provided to defendants within 24 hours of their arrest. Further, the District Attorney’s Office is seeking to procure a case management system that would allow electronic discovery to be submitted to defense counsel over a secure web-based system. -2- J. A26001/10 Bailey filed a Motion to suppress all of the evidence recovered by the police. The trial court denied the Motion after which the case proceeded to a bench trial. The trial court found Bailey guilty of the above-mentioned crimes. Thereafter, the trial court sentenced Bailey to five to ten years in prison for the PWID conviction plus a consecutive term of ten years of probation for the firearm conviction and five years of probation for the PIC conviction, concurrent to the term of probation for the firearm conviction. No further penalty was imposed on the other convictions. Bailey filed a post-sentencing Motion, which the trial court denied. Bailey filed a timely Notice of appeal. Following receipt of the notes of testimony, the trial court ordered Bailey to file a Pennsylvania Rule of Appellate Procedure 1925(b) concise statement. Bailey filed a timely Concise Statement and the trial court issued an Opinion. On appeal, Bailey raises the following questions for our review: 1. Was [the] proceeding fundamentally unfair because [Bailey] was denied the PARS report and any of the information that was given to a bail commissioner and used to set his bail at and prior to his preliminary hearing? 2. Was the criminal complaint in this matter insufficient to allow counsel to effectively represent [Bailey’s] interest? 3. Did the trial court err in denying [Bailey’s] pre-trial motion to suppress physical evidence found in the home in question insofar as there was no valid warrant, no valid consent, nor any other applicable exception to the warrant requirement? 4. Was the verdict against the weight of the evidence where no reasonable factfinder could believe the irreconcilable -3- J. A26001/10 inconsistencies and contradictions in the police officers’ testimony? Brief for Appellant at 4 (capitalization omitted). In his first claim, Bailey contends that he is entitled to an arrest of judgment because he was denied the PARS report prior to the preliminary hearing even though the bail commissioner utilized this in setting the bail. Id. at 15. Bailey argues that he was denied his fundamental right to an open fair and Constitutions as hearing there under are no the United protections States to and ensure Pennsylvania that the bail commissioner utilizes accurate information in setting bail. Id. at 15, 19-20. Bailey also argues that any ex parte submissions affect the liberty of a defendant and that he should be given the opportunity to challenge any submissions made at the bail hearing and relied upon in deciding bail. Id. at 16, 19-22. Bailey further asserts that the PARS reports are part of the public record and therefore should be made available to the defense. Id. at 16-17, 18. Bailey cites to Commonwealth v. Upshur, 924 A.2d 642 (Pa. -4- J. A26001/10 2007),3 for the proposition that any item filed with a court as part of the permanent record of the case and relied upon during the course of making a decision, including the preliminary hearing, is part of the public record. Brief for Appellant at 17-18. Bailey seeks either an arrest of judgment and the dismissal of this case with prejudice or a new trial. Id. at 22.4 “The purpose of a preliminary hearing is to avoid the incarceration or trial of a defendant unless there is sufficient evidence to establish a crime was committed and the probability the defendant could be connected with 3 In Upshur, as part of its prima facie case at the defendant’s preliminary hearing before a district judge, the Commonwealth played an audio recording of the defendant threatening one of the victims. Upshur, 924 A.2d at 645. A local television station sought access to the audiotape in order to broadcast it. Id. The Supreme Court stated that “any item that is filed with the court as part of the permanent record of a case and relied on in the course of judicial decision-making will be a public judicial record or document.” Id. at 648. The Supreme Court further stated that a presumption of openness attaches to public judicial documents, and access to public judicial documents can be denied only when the presumption of openness is outweighed by circumstances warranting closure of the document to public inspection. Id. at 651. The Supreme Court opined that audio tapes played at a preliminary hearing constituted part of the public judicial record to which the media had a presumptive right of access under the common law. Id. at 652. 4 We note that the Pennsylvania Association of Criminal Defense Lawyers (“PACDL”) has filed amicus curiae brief in support of Bailey’s position. Specifically, the PACDL contends that the bail-setting process is a critical stage of the criminal process, and therefore, defendants should be entitled to access to the PARS report to meet notions of fair play and procedural due process. Amicus Curiae Brief at 7-8. The PACDL argues that the court cannot use evidence at a bail hearing that defendants cannot view or contest. Id. at 8. The PACDL also argues that defendants should have access to the PARS report to prepare for a preliminary hearing, to request a modification of bail, and to seek the preservation of evidence. Id. at 8-10. -5- J. A26001/10 the crime.” Commonwealth v. Jackson, 849 A.2d 1254, 1257 (Pa. Super. 2004). At this hearing the Commonwealth bears the burden of establishing at least a prima facie case that a crime has been committed and that the accused is probably the one who committed it.... It is not necessary for the Commonwealth to establish at this stage the accused’s guilt beyond a reasonable doubt.... In order to meet its burden at the preliminary hearing, the Commonwealth is required to present evidence with regard to each of the material elements of the charge and to establish sufficient probable cause to warrant the belief that the accused committed the offense. Commonwealth v. McBride, 595 A.2d 589, 591 (Pa. 1991) (citations omitted). Further, pursuant to Rule 540 of the Rules of Criminal Procedure, a defendant must be given a copy of the criminal complaint and the affidavit of probable cause, if the defendant is arrested pursuant to a warrant, at the preliminary arraignment. See Pa.R.Crim.P. 540(B), (C); see also Pa.R.Crim.P. 542 (setting forth the defendant’s rights at the preliminary hearing); Commonwealth v. Fleming, 794 A.2d 385, 388 (Pa. Super. 2002) (stating that the Rules of Criminal Procedure do not authorize discovery prior to formal arraignment). Here, any alleged defects related to the preliminary hearing are immaterial as Bailey had proceeded to a bench trial and had been found guilty of the crimes beyond a reasonable doubt. It is well-settled that “[o]nce appellant has gone to trial and been found guilty of the crime, any defect in the preliminary hearing is rendered immaterial.” Jackson, 849 A.2d at 1257; see also Commonwealth v. Hess, 414 A.2d 1043, 1048 -6- J. A26001/10 (Pa. 1980) (stating that “if it is determined at trial that the evidence of the Commonwealth is sufficient to be submitted to the jury, then any deficiency in the presentation before the district justice would have been harmless.”); Commonwealth v. Worrall, 609 A.2d 851, 852 (Pa. Super. 1992) (stating that “when a defendant has been proven guilty beyond a reasonable doubt in a trial completed without reversible error, it would be inappropriate as well as foolish to require a new preliminary hearing or trial.”). Further, we cannot grant Bailey relief on his claims that his constitutional rights at the preliminary hearing had been violated based upon the same reasoning. See Commonwealth v. Tyler, 587 A.2d 326, 328 (Pa. Super. 1991) (stating that appellant’s claims that he was denied his right to confrontation at the preliminary hearing were immaterial as the Commonwealth had met its burden of proving appellant’s guilt at trial). Moreover, Bailey has not raised any claims related to the sufficiency of the evidence presented at trial and as noted, infra, Bailey’s remaining claims on appeal are without merit. Finally, Bailey is not entitled to relief based upon the holding in Upshur as that case concerned different rights and interests than whether a criminal defendant is entitled to the PARS report at his/her preliminary hearing. Accordingly, we -7- J. A26001/10 cannot grant Bailey relief on his claim.5 In his second claim, Bailey contends that the Criminal Complaint was insufficient for counsel to present a meaningful defense. Brief for Appellant at 22, 24-25. Bailey argues that the Complaint did not indicate whether he was accused of actually possessing or constructively possessing the contraband and firearm, whether the contraband was possessed by an uncharged co-conspirator, the specific location of the contraband, or the details of the alleged transaction. Id. at 23-24. Bailey asserts that the inadequate Complaint, along with the failure to provide the PARS report, denied him the ability to effectively defend himself. Id. at 25. Bailey seeks an arrest of judgment and dismissal of his case or a new trial. Id. at 26. According to the Rules of Criminal Procedure, a criminal complaint must include a summary of the facts sufficient to advise the defendant of the nature of the offense charged, but neither the evidence nor the statute allegedly violated need be cited in the complaint. However, a citation of the statute allegedly violated, by itself, shall not be sufficient for compliance with this subsection[.] 5 While the Philadelphia District Attorney’s Office is attempting to provide discovery at an earlier stage, we recognize that, in light of the critical nature of the preliminary hearing in assuring that the Commonwealth has a legal basis for prosecuting a person, the better course may be for the Commonwealth to allow the defense to obtain a copy of the PARS reports. Because the relevant parts utilized by the bail authority in setting bail are read at the hearing pursuant to the internal operating procedure in the Municipal Court, see N.T., 12/5/07, at 25, 33-34, it appears that the reports could be provided to the defense. -8- J. A26001/10 Pa.R.Crim.P. 504(6)(a). Although the complaint “need not set forth the facts relating to an offense with the particularity of an indictment[,] ... a minimum amount of detail is required.” Commonwealth v. Smouse, 594 A.2d 666, 668 (Pa. Super. 1991) (citations omitted). Accordingly, courts must determine whether a defendant was sufficiently informed of the nature of the offense charged and that he might be placed on trial for such offense. Commonwealth v. Donaldson, 488 A.2d 639, 641 (Pa. Super. 1985). Here, the Criminal Complaint alleged that on March 2, 2008, Bailey committed the following acts: At/Near 3931 N. 9th Street, [Bailey] unlawfully possessed a controlled substance, to wit, crack cocaine (PNW: 68.2 grams), in sufficient quantity and/or under sufficient circumstances as to indicate an intent to deliver plus items used to package and distribute a controlled substance. [Bailey] also possessed two firearms with one loaded. Complaint, 3/3/08, at 1. The Complaint further stated the specific charges that were brought against Bailey: PWID, possession of a controlled substance, possession of drug paraphernalia, and PIC. The Criminal Complaint accused Bailey of committing a host of crimes including possessing with the intent to distribute crack cocaine and the possession of two firearms at and near his residence on March 2, 2008. In addition, the Complaint provided details supporting its contentions that Bailey intended to distribute the crack cocaine. Although the Complaint did not identify the precise location of the drugs and firearm or the exact time that the sales occurred, whether the drugs were constructively or actually -9- J. A26001/10 possessed, or details of a transaction, the information set forth generally accused Bailey of the nature of the crimes for which he was arrested and charged. See Smouse, 594 A.2d at 668 (stating that criminal complaint was sufficient where it stated that defendant intentionally, knowingly, recklessly or negligently caused the death of victim by beating him about the head and neck on September 10, 1989 in Pittsburgh, but did not identify the precise situs of the killing, the exact time that it occurred, or facts supporting a conclusion that defendant committed the offense in the manner described). Consequently, because Rule 504 does not require a detailed statement of relevant evidence, but instead requires a summary of facts to advise Bailey of crimes that he is facing, we conclude that the Complaint was sufficient and that Bailey is not entitled to relief. In his third claim, Bailey contends that the trial court erred in denying his Motion to suppress the evidence found in his grandmother’s home as there was no search warrant, no valid consent, and no other applicable exceptions to the warrant requirement. Brief for Appellant at 26. Bailey argues that his grandmother’s consent to search his bedroom was invalid as the police did not have any reason to believe that she had authority to consent to a search. Id. at 27-28. Bailey asserts that it was unreasonable to believe that he would allow his grandmother access to his room since it contained the contraband. Id. at 28-29. - 10 - Bailey further argues that the J. A26001/10 consent was invalid because the police purposefully removed him from the area so that there would be no objection to the search. Id. at 27, 29. Here, the trial court has set forth the relevant standard of review and case law, and has thoroughly and correctly addressed Bailey’s claims.6 See Trial Court Opinion, 12/22/09, at 11-14. We adopt the trial court’s sound reasoning for the purposes of this appeal and conclude that Bailey’s claims are without merit. See id. In his fourth claim, Bailey contends that the verdict was against the weight of the evidence as the police officers’ testimony contained inconsistencies and contradictions. Brief for Appellant at 30. Bailey argues that the trial court failed to resolve or acknowledge the fact that the officers’ testimony was inconsistent as to the events leading up to his arrest and the search of his bedroom. Id. at 32. Bailey further argues that there were inconsistencies in handwriting on the consent to search form. Id. at 33. Here, the trial court has set forth the relevant law and determined that Bailey’s weight of the evidence claim is without merit. 6 See Trial Court We note that in addressing Bailey’s claim that the police removed him from the scene so that he would not object to the search of his bedroom, the trial court indicated that Bailey had voluntarily absented himself from his grandmother’s home to sell drugs on the street. See Trial Court Opinion, 12/22/09, at 13-14. We note that the evidence also showed that Bailey fled the scene upon seeing the police. See N.T., 3/3/09, at 14-15; see also Commonwealth v. Yancoskie, 915 A.2d 111, 114 (Pa. Super. 2006) (stating that the consent of a third party is valid as long as there is no evidence that the police removed the potentially objecting tenant from the premises to avoid objection). - 11 - J. A26001/10 Opinion, 12/22/09, at 9-11. We adopt the sound reasoning of the trial court for the purposes of this appeal. See id. As an addendum, we note the following related to Bailey’s claims regarding the consent to search form. Police Officer Gregory Fagan testified that he completed the search form utilizing two different types of pens. N.T., 3/3/09, at 72-73. As noted in the trial court’s Opinion, the fact-finder was free to believe all, part, or none of the evidence presented. See Trial Court Opinion, 12/22/09, at 10 (citing Commonwealth v. Rice, 902 A.2d 542, 546 (Pa. Super. 2006)). Accordingly, Bailey’s claims that the verdict was against the weight of the evidence based upon the purported inconsistencies in the consent form are without merit. Thus, we conclude that Bailey’s weight of the evidence contention is without merit. Judgment of sentence affirmed. - 12 -