J-S53025-14

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL RAY JAMES,

Appellant No. 318 WDA 2014

Appeal from the Judgment of Sentence of February 6, 2014

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0000939-2013

BEFORE: DONOHUE, OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.: FILED NOVEMBER 10, 2014

Appellant, Michael Ray James,1appeals from the judgment of sentence 

following his jury trial convictions for two counts each of possession with 

intent to deliver a controlled substance (PWID) and possession of a 

controlled substance, and one count each of endangering the welfare of a 

child, possession of drug paraphernalia, and conspiracy.2 We affirm.

The trial court set forth the facts and procedural history of this case as 

follows:

____________________________________________

1

 Appellant was tried jointly with his co-defendant, Deshuna Crosby. Crosby 

is currently appealing her judgment of sentence in a companion case, 231 

WDA 2014. 

2

 35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), 18 Pa.C.S.A. 

§ 4304, 35 P.S. § 780-113(a)(32), and 18 Pa.C.S.A. § 903, respectively. 
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On February 12, 2013, Appellant and a co-conspirator, 

De’Shuna Crosby, were found by the U.S. Marshall’s 

Fugitive Task Force in Room 327 of the Wyngate Hotel in 

Summit Township[, Pennsylvania]. The Task Force was 

serving an arrest warrant on Appellant after receiving a tip 

that he was at the hotel.

When the Task Force arrived to serve the arrest 

warrant, the officers knocked and announced their 

presence. After a few minutes, Appellant answered the 

door, stepped into the corridor and was placed in handcuffs. 

Still inside the hotel room were Crosby and her fourmonth old infant. Appellant claims to be the infant’s father. 

The officers directed Crosby to step into the hallway. 

Crosby initially ignored the request, walked back into the 

room, picked up [a] car seat with the infant [inside of it], a 

baby bag and a coat. Crosby then exited the room.

Crosby was asked whether she had anything illegal or 

any weapons. Crosby denied possession of anything illegal 

or having weapons and voluntarily began emptying her 

pants’ pockets. The officers asked her if they could search 

the car seat. Crosby consented and lifted the baby from the 

car seat. In the car seat, the officers found three baggies of 

white and/or tan substances later identified as 53.6 grams 

of heroin and 128.9 grams of cocaine. There were two 

plastic bags of cocaine and one plastic bag of heroin.

When Appellant realized the drugs were discovered, he 

exclaimed, “-- those aren’t hers. They’re mine. That’s not 

hers. It’s mine.” At trial [following the denial of Appellant’s 

motion to suppress evidence], Appellant testified that he 

knew the drugs were in the room and admitted that he was 

in possession of the drugs. Appellant admitted to being a 

drug dealer of marijuana. 

Upon a search of Crosby’s person, the police found 

almost $2[,]600.00 hidden inside Appellant’s bra. Crosby 

was unemployed. In fact, Crosby was in the Erie County 

Prison Work Release Program and only had permission to 

leave to apply for jobs on that day. 
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A digital scale used for weighing drugs and plastic 

baggies used for packaging drugs were found in plain view 

in the hotel room on top of the microwave. No drug 

paraphernalia for immediate use of the drugs was found in 

the hotel room or on Appellant or Crosby. Appellant and 

Crosby denied using the drugs which were found and denied 

possessing any paraphernalia for drug usage. There was no 

evidence in the room to suggest that other people had been 

there using drugs.

Appellant filed an [o]mnibus pre-trial [m]otion which 

was denied by the Honorable Judge Ernest DiSantis by 

[o]rder [on] September 30, 2013. After a [joint] jury trial 

[with co-conspirator Crosby] on November 12th and 13th, 

2013, Appellant was found guilty [of the aforementioned 

charges].

* * *

Appellant was sentenced on January 10, 2014, as 

follows:

Count 1: Conspiracy/[PWID]: 48 to 96 months 

of incarceration concurrent with Count 2, a sentence 

in the mitigated range;

Count 2: [PWID cocaine]: mandatory minimum 

of 48 to 96 months [] of incarceration consecutive to 

Count 5;

Count 3: Endangering the Welfare of a Child: 9 

to 18 months of incarceration consecutive to Count 

2, a sentence in the mitigated range;

Count 4: Possession of Drug Paraphernalia: 6 to 

12 months of incarceration concurrent with Count 2;

Count 5: [PWID heroin]: mandatory minimum 

[] of 5 [to] 10 years of incarceration consecutive to 

Docket Number 930 of 2013;

Count 6: Possession of a Controlled Substance 

[(heroin)]: Merged with Count 5;
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Count 7: Possession of a Controlled Substance 

[(cocaine)]: Merged with Count 2.

On January 21, 2014, Appellant filed a [m]otion for 

[r]econsideration of [s]entence or [s]entence [m]odification 

which was denied by [o]rder on February 6, 2014. 

On February 20, 2014, Appellant filed a [n]otice of 

[a]ppeal [challenging] the [o]rders [dated] September 30, 

2013, January 10, 2014 and February 6, 2014. Appellant 

filed a [Pa.R.A.P.] 1925(b) [c]oncise [s]tatement of [errors] 

[c]omplained of on [a]ppeal on March 7, 2014, and an 

[a]mended [Rule 1925(b) statement] on March 14, 2014. 

Trial Court Opinion, 3/25/2014, at 1-3 (record citations omitted).3

On appeal, Appellant presents the following issues for our review:

A. Whether the suppression court [erred] when it refused to 

suppress the items found in the car seat, holding 

Appellant’s child, following a warrantless search?

B. Whether the trial court [erred] in [its] pre-trial ruling to 

allow the Commonwealth’s use of Appellant’s prior 

testimony indicating that he was a marijuana dealer?

Appellant’s Brief at 4 (superfluous capitalization omitted).

In his first issue presented, Appellant argues that the suppression 

court erred by failing to suppress the physical evidence obtained by police. 

Id. at 11-15. More specifically, Appellant asserts that he had a reasonable 

expectation of privacy in the baby car seat. Id. at 11-12. Appellant claims 

that the trial court erred by finding “the search was still permissible as either 

____________________________________________

3

 Judge William R. Cunningham authored the March 25, 2014 opinion. On 

March 28, 2014, Judge Ernest J, DiSantis, Jr. authored a supplemental 

opinion pursuant to Pa.R.A.P. 1925(a) addressing Appellant’s suppression 

issue, because he presided over Appellant’s omnibus pretrial motions.
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‘consented to’ by [] Crosby, a ‘search incident to a lawful arrest’ of [] 

Crosby, or pursuant to the ‘inevitable discovery doctrine.’” Id. at 12. 

Appellant argues that officers did not have reasonable suspicion at the time 

of the car seat search and that when Crosby took the baby out of the carrier 

at the request of police, “[t]hose actions are consistent with a person 

believing they had no choice.” Id. at 14. Appellant further claims that the 

search could not be considered as incident to the arrest of either himself or 

Crosby because: “1) If the supposed lawful arrest was [Appellant], he was 

in handcuffs and unable to reach the car seat or utilize any items contained 

therein; 2) If the supposed lawful arrest was [] Crosby, she was not under 

arrest at the time of the search, nor did the officers know she was going to 

be arrested at that point.” Id. Moreover, Appellant asserts that “[e]ven if 

they had arrested [] Crosby before the search, no testimony was offered to 

even suggest that the police would have searched the car seat as a matter 

of course prior to turning the child over to the relative.” Id. at 15. Finally, 

Appellant argues that if the search were incident to Crosby’s arrest, “there 

[was] no justification for a warrantless searching of closed or concealed 

areas outside the arrestee’s immediate control.” Id. 

Our standard of review of an order denying suppression motion is wellsettled:

We are limited to determining whether the lower court's 

factual findings are supported by the record and whether 

the legal conclusions drawn therefrom are correct. We may 

consider the evidence of the witnesses offered by the 

Commonwealth, as [the prevailing party], and only so much 
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of the evidence presented by [the] defense that is not 

contradicted when examined in the context of the record as 

a whole. We are bound by facts supported by the record 

and may reverse only if the legal conclusions reached by the 

court were erroneous.

Commonwealth v. Landis, 89 A.3d 694, 702 (Pa. Super. 2014) (citation 

omitted).

In this case, the suppression court offered a plethora of grounds to 

support its denial of Appellant’s motion to suppress. First, the suppression 

court determined that Appellant had no expectation of privacy in the car seat 

because he had voluntarily abandoned it. Trial Court Opinion, 3/28/2014, at 

6-7. The suppression court further noted that Appellant was impermissibly 

raising constitutional claims on behalf of his co-defendant, Crosby. Id. at 7. 

Moreover, the suppression court determined that Crosby had actual or 

apparent authority to voluntarily consent to search the car seat. Id. at 7-9. 

The suppression court also determined that police had probable cause to 

arrest Crosby because she was in violation of the terms of her work release 

when police found her at an unauthorized location. Id. at 9. Finally, the 

suppression court noted that, pursuant to the doctrine of inevitable 

discovery, after both Appellant and Crosby were arrested, the police would 

have discovered the narcotics hidden in the infant’s car seat. Id. 

We agree with the suppression court that under the facts established 

at Appellant’s suppression hearing Crosby and Appellant shared joint 

authority over the car seat and that Crosby, through her actions, gave 

implied consent for the officers’ search. Because we conclude that the 
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officers effectuated a consensual search with the permission of one who 

enjoyed common authority over the car seat, we hold that Appellant is not 

entitled to relief on his first claim.

Here, the baby car seat was in a hotel room with equal access to 

Appellant and Crosby. Moreover, the seat was used to transport an infant 

parented by both Crosby and Appellant. “The law is well-settled that a 

warrantless search may be made with the voluntary consent of a third party 

who possesses ‘common authority over or other sufficient relationship to the 

premises or effects sought to be inspected.’” Commonwealth v. Gibbons, 

549 A.2d 1296, 1300 (Pa. Super. 1988) (citations omitted). “Common 

authority rests on mutual use of the property by persons generally having 

joint access or control for most purposes, so that it is reasonable to 

recognize that any of the co-inhabitants [or co-possessors] has the right to 

permit the inspection in his own right and that the others have assumed the 

risk that one of their number might permit the common area to be 

searched.” Id. at 1301 (ellipses and citation omitted).

“[A]ctual consent, implied consent, search incident to lawful arrest, 

and exigent circumstances may negate the necessity of obtaining a warrant 

before conducting a search.” Commonwealth v. Riedel, 651 A.2d 135, 

139 (Pa. 1994). “[T]he Commonwealth bears the burden of establishing 

that a consent is the product of an essentially free and unconstrained 

choice—not the result of duress or coercion, express or implied, or a will 
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overborne—under the totality of the circumstances.” Commonwealth v. 

Caban, 60 A.3d 120, 130 (Pa. Super. 2012). 

Here, the evidence showed that: 1) Appellant is the infant’s father; 2) 

after Appellant was placed in handcuffs, Crosby remained in the hotel room 

with the infant; 3) when asked to step into the hallway, Crosby came out 

with the infant, inside the car seat, and a diaper bag. The testimony of the 

circumstances establishes Crosby’s common authority over the car seat. 

Thereafter, when asked if police could search her, Crosby “voluntarily began 

to empty her pockets” and she “voluntarily bent over, pulled the baby out 

and let [the officer] look at the car seat.” N.T., 9/30/2013, at 9. While she 

did not verbally reply, Crosby’s actions show implied consent. Upon review 

of the certified record, there is no additional evidence that Crosby was under 

undue police coercion or duress at the time of the search. Accordingly, the 

car seat was under the joint control of Appellant and Crosby and Crosby 

voluntarily consented to a search. Thus, the search was permissible and the 

suppression court properly denied relief. As such, Appellant’s first issue is 

without merit.

In his second issue presented on appeal, Appellant claims the trial 

court erred by allowing the Commonwealth to present Appellant’s prior 

testimony, in an unrelated case, wherein he admitted to selling marijuana 

and ecstasy. Appellant’s Brief at 16-18. Appellant claims that evidence of 

selling marijuana and ecstasy was irrelevant to whether he possessed 

cocaine and heroin with intent to deliver it. Id. at 17. Further, Appellant 
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argues that the trial court erred in permitting the aforementioned prior act 

evidence, because the potential for unfair prejudice outweighed its probative 

value. Id. at 17. 

On this issue, the trial court determined:

Appellant testified on direct appeal that he possessed the 

drugs in question, but that he was not intending to sell 

them. This testimony opened the door to Appellant’s prior

testimony under oath at a homicide trial to being a drug 

dealer. Appellant cannot use his status as a drug dealer to 

defend a homicide charge and then later deny his testimony 

about being a drug dealer to defeat the present drug 

dealing charges. Because of the patent inconsistencies, 

Appellant would have been lying under oath at one of his 

trials. Therefore, it was permissible impeachment evidence 

to allow inquiry to Appellant’s prior sworn testimony 

admitting to dealing drugs in Erie County.

Trial Court Opinion, 3/25/2014, at 8.

“It is axiomatic that evidence of prior crimes is not admissible for the 

sole purpose of demonstrating a criminal defendant's propensity to commit 

crimes.” Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1283 

(Pa. Super. 2004)(citation omitted). However, this rule is not without 

exception:

Evidence may be admissible in certain circumstances where 

it is relevant for some other legitimate purpose and not 

utilized solely to blacken the defendant's character. It is 

well-established that reference to prior criminal activity of 

the accused may be introduced where relevant to some 

purpose other than demonstrating defendant's general 

criminal propensity. Thus, evidence of other crimes may be 

introduced to show[:]

1) motive; 2) intent; 3) absence of mistake or 

accident; 4) a common scheme or plan; and 5) 
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identity. The evidence may also be admissible to 

impeach the credibility of a testifying 

defendant; to show that the defendant has used the 

prior bad acts to threaten the victim; and in 

situations where the bad acts were part of a chain or 

sequence of events that formed the history of the 

case and were part of its natural development. 

Id. (emphasis added).

Here, at the beginning of trial, the Commonwealth told the trial court 

that it intended to use Appellant’s testimony from an unrelated trial wherein 

Appellant admitted to selling marijuana “in the event that [Appellant] 

testifie[d] ... for impeachment purposes.” N.T., 1/12/213, at 5-6. In this 

case, Appellant testified that an independent third party drug dealer rented 

the hotel room where police found Appellant and Crosby. Id. at 108. 

Appellant claimed that the drugs found by police were not his and he did not 

intend to sell those drugs. Id. The Commonwealth was permitted to 

impeach Appellant’s testimony. The fact that counsel for Appellant elicited 

the testimony during direct examination, instead of the Commonwealth 

cross-examining Appellant with the prior testimony concerning marijuana 

sales, is a distinction without a difference. We discern no error and 

Appellant’s second issue is without merit.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/10/2014