Com. v. Pierce, R. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAMONE PIERCE :
:
Appellant : No. 983 WDA 2019
Appeal from the Judgment of Sentence Entered June 10, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0008454-2018
BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED MARCH 27, 2020
Ramone Pierce (Appellant) appeals from the judgment of sentence
imposed after a jury convicted him of two counts of possession with intent to
deliver a controlled substance (PWID).1 We affirm in part and vacate in part.
Appellant’s convictions arise out of a controlled purchase of narcotics by
a confidential informant (CI), which occurred on May 8, 2018 (the “May 8
controlled buy”). On that date, police observed Appellant exit his residence,
enter his white Chrysler 300, and drive to a nearby restaurant to conduct the
pre-arranged drug transaction. In the parking lot of the restaurant, the CI
entered Appellant’s car and purchased a plastic bag containing approximately
7 grams of narcotics, with $1,250 in pre-recorded U.S. currency. Relevant to
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1 35 P.S. § 780-113(a)(30).
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this appeal, the bag contained a compound mixture comprised of inseparable
amounts of heroin and fentanyl. The police subsequently apprehended
Appellant and charged him with two counts of PWID and other drug charges.
Prior to trial, the Commonwealth filed a notice of its intent to present
evidence of other crimes or wrongs at trial, pursuant to Pennsylvania Rule of
Evidence 404(b)2 (Rule 404(b) motion). The Commonwealth asserted:
[After the May 8 controlled buy, o]n May 28, 2018, [police] officers
again arranged a controlled buy with [the same] CI from
[Appellant] (the May 28 controlled buy). During the surveillance
of the May 28 controlled buy, after the CI contacted [Appellant]
to arrange for the purchase of heroin, officers watched [Appellant]
exit [his] residence … and enter his white Chrysler 300. Officers
then followed [Appellant] and observed him meet with the CI.
After [Appellant] and the CI departed, the CI was searched and
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2 Rule 404(b) provides, in relevant part, as follows:
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that[,] on a
particular occasion[,] the person acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident. In a
criminal case[,] this evidence is admissible only if the probative value of
the evidence outweighs its potential for unfair prejudice.
Pa.R.E. 404(b).
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found in possession of suspected heroin.[3] [Appellant] is
currently only charged in connection with the May 8 controlled
buy.[4] At trial, the Commonwealth intends to offer evidence[,
pertaining to the May 28 controlled buy, which] tend[s] to prove
that [Appellant] has committed some other crimes, wrongs, or
acts that establish intent, identity, the absence of mistake or
accident.
Rule 404(b) motion, 12/19/18, at 3 (footnotes added; footnote in original,
paragraph numbering and breaks omitted).
In opposition to the Rule 404(b) motion, Appellant filed a motion in
limine seeking to exclude evidence related to the May 28 controlled buy. Prior
to the beginning of Appellant’s jury trial, the trial court denied Appellant’s
motion and ruled that the evidence was admissible under Rule 404(b).
At trial, the CI was not called to testify on behalf of the Commonwealth,
purportedly out of concern for the CI’s safety. The defense attacked the
credibility of the CI and his or her account that Appellant had sold narcotics
to the CI. The defense emphasized that no other witness implicated Appellant
in the May 8 controlled buy, and the police did not recover any narcotics,
contraband, or pre-recorded buy money during a subsequent search of
Appellant’s residence.
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3Notably, the CI purchased the same amount of suspected narcotics, for the
same purchase price, as he did previously in the May 8 controlled buy. The
drug transaction also occurred outside the same restaurant where the CI had
met Appellant during the May 8 controlled buy.
4 The Commonwealth did not conduct laboratory testing of the purported
narcotics that Appellant sold to the CI during the May 28 controlled buy.
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The jury found Appellant guilty of two counts of PWID (counts 1 and 4).
Importantly, one count pertained to the heroin contained in the compound
mixture that Appellant sold to the CI, and the other count pertained to the
fentanyl. The jury acquitted Appellant of the remaining drug charges.
On June 10, 2019, the trial court imposed identical sentences on both
of Appellant’s PWID convictions: 30 to 75 months in prison, followed by one
year of probation. The trial court ordered the sentences to run concurrently.
Appellant timely filed a notice of appeal. The trial court ordered him to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and
he timely complied. The trial court then issued a Rule 1925(a) opinion.
Appellant presents two issues for our review:
I. DID THE TRIAL COURT VIOLATE THE DOUBLE JEOPARDY
CLAUSES OF THE UNITED STATES AND PENNSYLVANIA
CONSTITUTIONS BY SENTENCING [APPELLANT] SEPARATELY
FOR POSSESSION WITH THE INTENT TO DELIVER EACH
COMPONENT OF A COMPOUND MIXTURE?
II. DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IT
DENIED [APPELLANT’S] MOTION IN LIMINE SEEKING TO
PRECLUDE THE COMMONWEALTH FROM INTRODUCING
EVIDENCE RELATED TO THE PURCHASE OF DRUGS WHICH
OCCURRED AFTER THE INCIDENT IN QUESTION AND [SUCH
EVIDENCE] WAS MORE PREJUDICIAL THAN PROBATIVE OF
ANY OF THE ISSUES AT TRIAL?
Appellant’s Brief at 7.
In his first issue, Appellant argues that pursuant to the recent decision
of this Court in Commonwealth v. Ramsey, 214 A.3d 274 (Pa. Super. 2019),
the trial court violated his protection against double jeopardy by sentencing
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him on two separate counts of PWID, where the charges pertained to a single
compound mixture comprised of two inseparable controlled substances. See
Appellant’s Brief at 14-17.5 We agree that Ramsey is directly on point and
controlling, as did the trial court in its Rule 1925(a) opinion.6
In Ramsey, the appellant was convicted of, and sentenced on, two
separate PWID counts stemming from his single sale of a compound mixture
comprised of two inseparable controlled substances, i.e., heroin and fentanyl.
Ramsey, 214 A.3d at 276. We held that the sentence violated the appellant’s
protection against double jeopardy, stating:
[a]ppellant received separate sentences for two counts that each
alleged, at bottom, a single criminal act in violation of [35 P.S. §]
780-113(a)(30). Each count pertained to a different controlled
substance. However, as [a]ppellant observes, there is nothing in
the plain language of [s]ection 780-113(a)(30) that states that
the particular drug delivered is an element of the offense – all that
is required is that a controlled substance is delivered. Rather, the
specification of the particular drug delivered relates only to the
[offense gravity score] and the maximum possible penalties for
violating the Drug Act. [See] 204 Pa. Code § 303.15 (assigning
an offense gravity score to each offense and subcategorizing
(a)(30) offenses by type (or schedule) of substance and weight));
see also 35 P.S. §§ 780-113(f), (n), (o) (stating the grading and
maximum penalties for particular schedules of substances).
***
[W]e conclude that the trial court violated [a]ppellant’s protection
against double jeopardy by imposing separate sentences for
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5This claim presents a question of law; therefore, our standard of review is
de novo, and our scope of review is plenary. Commonwealth v. Mullins,
918 A.2d 82, 84 (Pa. 2007).
6 The Commonwealth likewise agrees. See Commonwealth Brief at 11.
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convictions that stemmed from his single sale of a compound
substance containing inseparable controlled substances.
Ramsey, 214 A.3d at 278 (emphasis added; citations to brief and quotation
marks omitted). The Ramsey Court also held that the separate sentences
imposed on the respective PWID convictions were illegal because the
convictions merged for sentencing purposes. See id. at 278-79.
Pursuant to Ramsey, we must vacate one of Appellant’s PWID
convictions (count 4) and the corresponding sentence imposed on that
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conviction.7, 8
We next address Appellant’s second issue challenging the trial court’s
denial of his motion in limine, and admission of other act evidence regarding
the May 28 controlled buy, pursuant to Pa.R.E. 404(b). See Appellant’s Brief
at 18-26. Appellant contends that unfairly prejudicial evidence was
improperly proffered to (1) establish that he had a criminal propensity; and
(2) bolster the credibility of the CI, who did not testify at trial. See id. at 25-
26. Appellant further emphasizes that the purported narcotics that he sold to
the CI during the May 28 controlled buy were never tested, and complains
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7 We need not vacate the entire judgment of sentence and remand for
resentencing, as our decision does not alter the trial court’s overall sentencing
scheme, and the sentence imposed on Appellant’s PWID conviction at count 1
is legal. Specifically, because the respective sentences imposed on both PWID
convictions were identical and the trial court ordered the sentences to run
concurrently, no remand is necessary. See Commonwealth v. Alicea, 449
A.2d 1381, 1385 n.9 (Pa. 1982) (stating that where a case requires the
correction of a sentence, the reviewing Court has the option of either
remanding for resentencing or amending the sentence directly);
Commonwealth v. Henderson, 938 A.2d 1063, 1067 (Pa. Super. 2007)
(stating that “since appellant’s sentences were concurrent, the trial court’s
overall sentencing scheme has not been compromised, and it [wa]s not
necessary to remand for re-sentencing[,]” after we vacated an unlawful
sentence imposed on one count in a multi-count case); Commonwealth v.
Thur, 906 A.2d 552, 569-70 (Pa. Super. 2006) (same).
8 Unlike Ramsey, the trial court in this case did not err in imposing a sentence
on Appellant’s single lawful conviction of PWID, nor does Appellant make this
claim. Cf. Ramsey, 214 A.3d at 282-83 (holding that the sentencing court
erred in calculating Ramsey’s prior record score, vacating the judgment of
sentence, and remanding for resentencing).
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that the Commonwealth only had a “hunch that it’s probably a drug
mixture[.]” Id. at 22 (emphasis in original).
We review orders denying motions in limine, and granting the admission
of evidence, for an abuse of discretion. Commonwealth v. Mangel, 181
A.3d 1154, 1158 (Pa. Super. 2018).
Even where evidence of other crimes is prejudicial, it may
be admitted where it serves a legitimate purpose. Pursuant to the
Pennsylvania Rules of Evidence, these other purposes include,
inter alia, proving: (1) motive; (2) intent; (3) the absence of
mistake or accident; (4) a common scheme, plan or design
embracing the commission of two or more crimes so related to
each other that proof of one tends to prove the other; or (5) to
establish the identity of the person charged…. Pa.R.E. 404(b)(2).
Rule 404(b) does not distinguish between prior and subsequent
acts.
Commonwealth v. Wattley, 880 A.2d 682, 685 (Pa. Super. 2005) (citations
omitted); see also Commonwealth v. Collins, 703 A.2d 418, 423 (Pa.
1997) (“[a]lthough evidence of a subsequent offense is usually less probative
of intent than evidence of a prior offense, evidence of a subsequent offense
can still show the defendant’s intent at the time of the prior offense.”).
When offered for one of the above legitimate purposes, other bad act
evidence is admissible if its probative value outweighs its potential for “unfair
prejudice.” Pa.R.E. 404(b)(2). “‘Unfair prejudice’ means a tendency to
suggest a decision on an improper basis or to divert the jury’s attention away
from its duty of weighing the evidence impartially.” Commonwealth v.
Dillon, 925 A.2d 131, 141 (Pa. 2007) (quoting Pa.R.E. 403, cmt).
“Additionally, when weighing the potential for prejudice, a trial court may
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consider how a cautionary jury instruction might ameliorate the prejudicial
effect of the proffered evidence.” Id.
One of the permissible purposes for which other bad act evidence can
be introduced is to prove the identity of the person charged with the
commission of the crime. Commonwealth v. Weakley, 972 A.2d 1182,
1189 (Pa. Super. 2009). Additionally,
[e]vidence of other crimes is admissible when it tends to prove a
common scheme, plan or design embracing the commission of two
or more crimes so related to each other that proof of one tends to
prove the others or to establish the identity of the person charged
with the commission of the crime on trial.
Commonwealth v. Callen, 198 A.3d 1149, 1164 (Pa. Super. 2018) (citation
omitted). “Factors to be considered to establish similarity are the elapsed
time between the crimes, the geographical proximity of the crime scenes, and
the manner in which the crimes were committed.” Commonwealth v. Cain,
29 A.3d 3, 7 (Pa. Super. 2011) (citation omitted).
Instantly, there were numerous similarities between the May 8 and May
28 controlled buys. Namely, they (1) occurred at the same location; (2)
involved the same CI; (3) occurred within 20 days of each other; and (4)
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involved the same amount of narcotics9 and purchase price. See N.T., 3/14-
15/19, at 9. Thus, the evidence concerning the May 28 controlled buy was
properly admitted under Rule 404(b), since both of the controlled buys were
closely linked temporally10 and geographically, evidenced the like manner in
which Appellant conducted the crimes, and showed his intent and common
scheme to sell narcotics. See, e.g., Commonwealth v. Kinard, 95 A.3d
279, 286 (Pa. Super. 2014) (en banc) (holding that the trial court properly
exercised its discretion in admitting evidence of appellant’s subsequent bad
acts, i.e., inculpatory prison phone calls discussing ongoing drug transactions,
where the probative value of the calls, though “highly prejudicial,”
“outweighed the potential for prejudice in that it was circumstantial evidence
of appellant’s intent, proof of his motive, and identity as the actor in the [prior]
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9 Appellant’s objection that the purported narcotics he sold to the CI during
the May 28 controlled buy were never tested is unavailing; Appellant’s actions
constituted a nearly identical bad act, even assuming that the drugs were
counterfeit. See 35 P.S. § 780-113(a)(30) and (f) (imposing criminal liability
for the distribution of counterfeit controlled substances). Additionally, the
prosecution explained to the jury why Appellant was not charged in connection
with the May 28 controlled buy, i.e., to protect the identity and safety of the
CI. See N.T., 3/14-15/19, at 71-72; see also Commonwealth v. Reid, 811
A.2d 530, 550 (Pa. 2002) (explaining that other bad act evidence can be
admitted where it tends to demonstrate the chain or sequence of events which
formed the history of the case and the natural development of the facts).
10 Contrary to Appellant’s claim, the two controlled buys were not too remote
in time. See, e.g., Commonwealth v. Clayton, 483 A.2d 1345, 1349 (Pa.
1984) (admitting subsequent bad act evidence of a shooting where the
offenses were substantially similar, and stating that “the time span of four
months between the two incidents [does not] render this evidence
inadmissible in view of the numerous similarities between the incidents.”).
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PWID charge.”); Callen, supra; Commonwealth v. Echevarria, 575 A.2d
620, 623 (Pa. Super. 1990) (holding evidence that the CI purchased cocaine
from defendant on two occasions shortly before defendant’s arrest for a third
sale of cocaine was relevant to the charge of PWID, and properly admitted
under Rule 404(b)).
Moreover, the trial court properly weighed the probative value of the
other bad act evidence in light of the potential for unfair prejudice in
accordance with Pa.R.E. 404(b)(2). See Kinard, 95 A.3d 279, 286 (stating
that “[i]n conducting the probative value/prejudice balancing test, courts must
consider factors such as the strength of the other crimes evidence, the
similarities between the crimes, the time lapse between crimes, the need for
the other crimes evidence, … and the degree to which the evidence probably
will rouse the jury to overmastering hostility.” (citation and quotations
omitted)). Further, although the bad act evidence was certainly prejudicial,
the prejudice was ameliorated by a cautionary instruction that the trial court
issued to the jury, see N.T., 3/14-15/19, at 186, explaining the limited
purpose for which it could consider the evidence. See Dillon, supra; see
also Commonwealth v. Cash, 137 A.3d 1262, 1280 (Pa. 2016) (stating that
“[i]t is well settled that the jury is presumed to follow the trial court’s
instructions[.]”) (citation omitted). Accordingly, we conclude that the trial
court did not err in exercising its discretion in admitting the subsequent bad
act evidence under Rule 404(b).
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Consistent with the foregoing, we vacate Appellant’s conviction and
sentence, in part (on count 4 – PWID), and affirm the judgment of sentence
in all other respects.
Judgment of sentence vacated in part and affirmed in part. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2020
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