Weight of the Evidence • Motion in Limine • Rule 404(b) Evidence • Consent to Search

Commonwealth v. Bidwell, PICS Case No. 14-0130(C.P. Monroe Dec. 17, 2013) Higgins, J. (26 pages).

The court denied defendant’s post-sentence motion seeking a new trial on the grounds that the verdict was against the weight of the evidence, that the court erred in denying his motion in limine to suppress the commonwealth’s proffer of Rule 404(b) evidence, that the court erred in denying defendant’s motion for a mistrial after a police officer testified to defendant’s refusal of consent to a search of a truck and that the Omnibus court erred in denying his pre-trial motion challenging the legality of the stop, detention, seizure and search of his truck and seeking to suppress the evidence seized therefrom.

After receiving a tip from a confidential informant that the defendant and Argot would be driving a red tractor trailer on a run to pick up methamphetamine, the police initiated a traffic stop of a red tractor trailer driven by Argot in which Bidwell was a passenger. During the traffic stop, the officer asked Argot for consent to search the vehicle and Argot indicated that the truck belonged to Bidwell, who refused consent for a search. Execution of the warrant revealed three bags of methamphetamine. Bidwell was charged with conspiracy; manufacture, delivery or possession with intent; intentional possession of a controlled substance and use or possession of drug paraphernalia and found guilty of all counts.

Bidwell argued that the verdict was against the weight of the evidence failed because the commonwealth’s expert witness proved that the bags contained methamphetamine, Bidwell had constructive possession of the drugs, methamphetamine was found behind the passenger seat, he was nervous upon the initiation of the traffic stop and the commonwealth introduced testimony of Argot and two others that Bidwell regularly distributed methamphetamine to his employees. The conspiracy charge was supported by the agreement with Argot to obtain and transport the methamphetamine and Argot’s driving of the truck satisfied the over act element.

The court did not err in denying the motion in limine to preclude the testimony of Argot and two others that Bidwell had previously shared methamphetamine with them. A conviction is not required in order to admit evidence of prior bad acts, the probative value of the evidence outweighed its prejudicial effect and the evidence was admitted for the limited purpose of proving intent, motive and common scheme or plan.

Prior to trial, the court had ruled that the officer could not testify at trial about Bidwell’s refusal of consent to search the truck and the prosecution refrained from eliciting such testimony from the officer on direct examination. The officer’s testimony about Bidwell’s refusal of consent was elicited by defense counsel on cross examination. The court offered a cautionary instruction at the time and defense counsel refused. Bidwell was not entitled to a new trial when he elicited testimony in abrogation of his own motion in limine.

The court reviewed the determination of the omnibus court because, sitting as a post-verdict court, the court is not bound by the coordinate jurisdiction rule. The omnibus court correctly ruled that the information from a known confidential informant and subsequent corroboration thereof was sufficient to support a finding of reasonable suspicion to stop the truck and issue a warrant even though the affidavit of probable cause for the warrant did not state the reliability or training of the canine used. The information received through multiple informants was corroborated by the patrol officer and was sufficiently reliable to support a finding or probable cause.