Com. v. Sledge, A. ( 2023 )

J-A06015-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRA RYAN SLEDGE, SR. :
:
Appellant : No. 673 WDA 2022
Appeal from the Judgment of Sentence Entered February 25, 2022
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0002693-2019
BEFORE: OLSON, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: MAY 23, 2023
Appellant, Andra Ryan Sledge, Sr., appeals from the February 25, 2022
judgment of sentence entered in the Court of Common Pleas of Fayette County
that imposed an aggregate sentence of 4 to 8 years’ incarceration to be
followed by 12 months’ probation. On January 6, 2022, a jury convicted
Appellant of manufacture, delivery, or possession with the intent to
manufacture or deliver a controlled substance (Count 1), possession of a
controlled substance (Count 2), and possession with the intent to use drug
paraphernalia (Count 3).1 We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. 780-113(a)(30), (16), and (32), respectively.
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The trial court summarized the factual history as follows:
On June 28, 2019, the Fayette County [Drug] Task Force [(“the
task force”)] assisted by police officers from the City of
Connellsville Police Department served a search warrant for the
property located at [] North Pittsburgh Street in Connellsville,
Pennsylvania, known as "The Studio".[2] Members of the task
force arrived at the location and were [granted] entry by
[Appellant]. When the [task force] officers entered the
residence[,] Appellant's brother[] was present. In the back room
of the residence, the task force [officers] located a [shoebox] with
several baggies of varying sizes[, which contained] crack cocaine
and [United States] currency. The sum of [$2,300.00] was in the
[shoebox]. The [shoebox] also contained various papers with []
Appellant's name on them and a [prescription] bottle of medicine
also with his name on it. []Appellant was found to have [$502.00]
on his person. During the search, measuring cups, pots[,] and
pans were found on the counters in the kitchen area with white
residue in them. The task force located [six cellular telephones]
in the residence.
Trial Court Opinion, 7/29/22, at 2 (record citations and extraneous
capitalization omitted; paragraph formatting modified).3
On January 6, 2022, a jury convicted Appellant of the aforementioned
offenses. On February 25, 2022, the trial court sentenced Appellant to 4 to 8
years’ incarceration, to be followed by 12 months’ probation, on the
manufacture, delivery, or possession with the intent to manufacture or deliver
a controlled substance conviction. Sentencing Order (Count 1), 2/25/22. On
____________________________________________
2 We omitted the specific numerical address of the subject property relevant
to this appeal.
3For ease of reference, we have assigned page numbers to the trial court’s
unpaginated opinion.
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Appellant’s two remaining convictions, the trial court imposed no further
penalty. Sentencing Order (Counts 2 and 3), 2/25/22.4
On February 25, 2022, Appellant filed a post-sentence motion,
requesting a new trial. Appellant asserted that he was entitled to a new trial
because, inter alia, (1) the Commonwealth failed to provide “the search
warrant for the cellular [tele]phones, or the information extracted from the
cellular [tele]phones” to Appellant during pre-trial discovery in violation of
Pennsylvania Rule of Criminal Procedure 573 and Brady v. Maryland, 373
U.S. 83 (1963); and (2) the trial court abused its discretion in denying
Appellant’s requests for a mistrial on the grounds the Commonwealth violated
Appellant’s Fifth Amendment right to remain silent when Detective James
Tyler Garlick (“Detective Garlick”), on cross-examination, testified that
Appellant did not deny he was selling drugs when asked by the investigating
police officers, and the Commonwealth mentioned Appellant’s silence during
its closing argument. See Post-Sentence Motion, 2/25/22. On May 17, 2022,
____________________________________________
4We note that two separate sentencing orders were entered on the trial court
docket.
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the trial court denied Appellant’s post-sentence motion.5 This appeal
followed.6
Appellant raises the following issues for our review:
[1.] Did the trial court err in denying Appellant's motion to
suppress all evidence found at [the North] Pittsburgh Street
[property in] Fayette County, Pennsylvania, based upon the
[warrant’s lack of specificity as to which particular] unit
[would] be searched?
[2.] Did the trial court abuse its discretion in failing to grant
Appellant's motion for a mistrial based upon the
Commonwealth's failure to serve the search warrant for the
cellular [tele]phones and by not providing [] Appellant with
the results of the search or the supplemental reports of the
affiant?
[3.] Did the Commonwealth violate Appellant's guaranteed right
of access to evidence under the due process clause of the
[United] States Constitution by failing to provide the search
warrant for the cellular [tele]phones, the results of the
search of the [cellular tele]phones, or the supplemental
reports of the affiant?
[4.] Did the trial court abuse its discretion in failing to grant
Appellant's motion for a mistrial based upon [Detective]
Garlick's comments [regarding] Appellant's post[-]arrest
silence and the [Commonwealth’s] reiteration of Appellant's
post-arrest silence in its closing argument?
[5.] Did the trial court abuse its discretion in failing to grant
Appellant's motion for a mistrial based upon the testimony
of Detective Thomas Patton that he was assisting
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5 On March 31, 2022, Appellant filed a brief in support of his post-sentence
motion. On April 8, 2022, the Commonwealth filed a memorandum of law in
opposition to Appellant’s post-sentence motion. On April 13, 2022, the trial
court entertained argument on the matter.
6 Both Appellant and the trial court complied with Pennsylvania Rule of
Appellate Procedure 1925. See Pa.R.A.P. 1925.
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[Detective] Garlick in a drug investigation into illegal
narcotics being sold out of the premise[s] when Appellant
was not charged with said crime nor was there any evidence
presented that said crime occurred?
Appellant’s Brief at 8 (extraneous capitalization omitted).
Appellant’s first issue challenges the trial court’s order denying his
omnibus pre-trial motion, which sought to suppress physical evidence
uncovered during a search of the North Pittsburgh Street property. Appellant’s
Brief at 12-15.
“Once a motion to suppress evidence has been filed, it is the
Commonwealth's burden to prove, by a preponderance of the evidence, that
the challenged evidence was not obtained in violation of the defendant's
rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa. 2012);
see also Pa.R.Crim.P. 581(H) (stating, “[t]he Commonwealth shall have the
burden of going forward with the evidence and of establishing that the
challenged evidence was not obtained in violation of the defendant's rights”).
Our standard of review for an order denying a motion to suppress is
well-established.
[We are] limited to determining whether the suppression court's
factual findings are supported by the record and whether the
legal conclusions drawn from those facts are correct. Because
the Commonwealth prevailed before the suppression court, we
may consider only the evidence of the Commonwealth and so
much of the evidence for the defense as remains uncontradicted
when read in the context of the record as a whole. Where the
suppression court's factual findings are supported by the
record, we are bound by these findings and may reverse only if
the [suppression] court's legal conclusions are erroneous.
Where, as here, the appeal of the determination of the
suppression court turns on allegations of legal error, the
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suppression court's legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the
conclusions of law of the [suppression court] are subject to our
plenary review.
Commonwealth v. Mbewe, 203 A.3d 983, 986 (Pa. Super. 2019) (quotation
marks omitted), quoting Commonwealth v. Kemp, 195 A.3d 269, 275
(Pa. Super. 2018).
A review of the record demonstrates that on February 14, 2020,
Appellant filed an omnibus pre-trial motion. In his omnibus motion, Appellant
asserted that the physical evidence uncovered during the search of the North
Pittsburgh Street property should be suppressed because the search warrant
lacked sufficient specificity as to the areas of the premises where probable
cause supported the search. Omnibus Motion, 2/14/20, at ¶¶13-16.
Appellant averred that the North Pittsburgh Street building “is a mixed
residential and commercial property comprised of a former convenience store
in the rear, facing Decatur Avenue, a front portion [of the building,] and two
apartments in the upstairs” with the “front and rear [portions of the building
serving as] common areas for the apartments and either entrance [being]
used to access the apartments.” Id. at ¶¶8-9. Appellant argued that “[t]he
search warrant in question seeks [authority] to search the entire building
despite the fact that the affidavit of probable cause states that [police] officers
only viewed the [c]onfidential [i]nformant enter and exit through [a certain
apartment door in the North Pittsburgh Street building.]” Id. at ¶16.
Appellant asserted that the police officers “did not have probable cause to
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search the entire building based upon the facts set forth in the [a]ffidavit of
[p]robable [c]ause and, as a result, the search warrant[, and all items seized
as a result of the search,] must be suppressed.” Id. at ¶¶17-18.
It is well-established that for a search warrant to be
constitutionally valid, the issuing authority must decide that
probable cause exists at the time of its issuance, and make this
determination on facts described within the four corners of the
supporting affidavit, and closely related in time to the date of
issuance of the warrant.
Commonwealth v. Korn, 139 A.3d 249, 253 (Pa. Super. 2016), appeal
denied, 159 A.3d 933 (Pa. 2016); see also Pa.R.Crim.P. 203(D) (stating, “at
any hearing on a motion for the return or suppression of evidence, or for
suppression of the fruits of evidence, obtained pursuant to a search warrant,
no evidence shall be admissible to establish probable cause other than the
affidavits provided for in [Pennsylvania Rule of Criminal Procedure 203(B)]”).
Pennsylvania Rule of Criminal Procedure 203(B) states that, “No search
warrant shall issue but upon probable cause supported by one or more
affidavits sworn to before the issuing authority in person or using advanced
communication technology. The issuing authority, in determining whether
probable cause has been established, may not consider any evidence outside
the affidavits.” Pa.R.Crim.P. 203(B). “[P]robable cause exists when, based
upon a totality of the circumstances set forth in the affidavit of probable cause,
there is a fair probability that evidence of a crime will be found in a particular
place.” Korn, 139 A.3d at 254, citing Commonwealth v. Lyons, 79 A.3d
1053 (Pa. 2013).
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Aside from the requirement that the search warrant be supported by
probable cause, the search warrant, to be constitutionally sound, must also
describe the place to be searched and the items to be seized with specificity.
Korn, 139 A.3d at 253; see also Commonwealth v. Turpin, 216 A.3d 1055,
1067 (Pa. 2019). “The place to be searched must be described precisely
enough to enable the executing officer to ascertain and identify, with
reasonable effort, the place intended, and where probable cause exists to
support the search of the area so designated, a warrant will not fail for lack of
particularity.” Turpin, 216 A.3d at 1067 (brackets omitted). “[W]here a
search warrant adequately describes the place to be searched and the items
to be seized[,] the scope of the search extends to the entire area in which the
object of the search may be found.” Id. at 1069 (original quotation marks
and original brackets omitted). Moreover, our “Supreme Court has held a
‘practical, common-sense’ approach should be taken in determining whether
the place to be searched is specified with sufficient particularity.” Korn, 139
A.3d at 253, citing Commonwealth v. Carlisle, 534 A.2d 469 (Pa. 1987);
see also Commonwealth v. Leed, 186 A.3d 405, 415 (Pa. 2018) (stating
that, “both the magistrate in his or her pre-search determination, and the trial
court in its post-search review must read probable cause affidavits in a
common[-]sense fashion to ascertain whether probable cause exists” (citation
and footnote omitted)).
In the instant matter, the trial court, on May 19, 2020, denied
Appellant’s omnibus motion, succinctly stating that “the information contained
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in the search warrant affidavit is sufficient to establish probable cause[.]” Trial
Court Order, 5/19/20. In a supplemental opinion, filed July 11, 2022, the trial
court explained,
In the [omnibus motion,] Appellant claimed that the search
warrant lacked specificity because the residence is part of a
multi-unit complex, and the warrant listed both house numbers in
the address. Appellant argued that the warrant should have only
included [the single] address [where] the police saw the
confidential informant enter and exit when conducting the
investigation. Appellant claims that[,] therefore[,] the warrant
should not be allowed for the entirety of the complex due to the
confidential informant only entering and exiting through one door
of the complex. However, in the affidavit of probable cause for
the warrant it stated that the criminal activity was taking place at
the location of “N. Pittsburgh St. front and rear.”
. . . According to the affidavit, the confidential informant in the
investigation [identified] the location of the drug activity as “[the]
N. Pittsburgh St.” [property.] The [confidential] informant stated
that the residence was the location of drug trafficking and that
[the confidential informant] purchased the drugs from Appellant.
The confidential informant did not state that the criminal activity
was taking place in only one of the units. Furthermore, the
affidavit refers to the residence of [] Appellant as being [“the N.
Pittsburgh St. property,] front and rear.” Therefore, there is no
ambiguity as to the location of the residence.
Trial Court Opinion, 7/11/22, at 3-4.
A review of the search warrant demonstrates that the items to be
searched for, and potentially seized, were described as,
Controlled substances, drugs, paraphernalia, records of drug
transactions and indicia, and [United States] currency in proximity
of any illicit drugs. Specifically, “CRACK” COCAINE, scales,
baggies, safes, and other items used in violation of the Controlled
Substances, Drugs, Device, and Cosmetic Act. Items used to
protect and facilitate a drug distribution business such as
weapons, pagers, receipts, owe sheets, and cellular [tele]phones,
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computers, hard drives, any and all electronic storage mediums[,]
and contents therein.
Search Warrant, 6/28/19, at 1, 6. The search warrant described the premises
to be searched as,
[] N[.] Pittsburgh St[.] (front and rear) Connellsville, Fayette
County, Pennsylvania, the front of which is a two-story building
with red stone (first story) and tan siding (second story) facing
west on the eastern side of N[.] Pittsburgh St[.], and the rear of
which (attached with access to the front) is a single-story blue
brick building with glass double doors known as “The Studio,”
facing east on the western side of Decatur Ave[.] across from [a
senior citizens center. Appellant], known as “Drey,” age 34, and
those not yet known to your affiant to reside, frequent, or
otherwise stay in the residence located at [] N[.] Pittsburgh St[.],
front and rear, known as The Studio.
Id. at 1, 7. The affidavit of probable cause set forth, in pertinent part, the
following averments in support of establishing probable cause:
6. In June [] 2019[,] while working for the Fayette County
[Bureau of Investigations, affiant,] along with [another police
detective,] investigated a controlled drug transaction conducted
at [] N[.] Pittsburgh St[.], front and rear, Connellsville, Fayette
County, Pennsylvania. At this time[,] a [confidential informant]
arranged to purchase “CRACK” COCAINE from inside that
residence, occupied [by Appellant.] The [confidential informant]
and his/her belongings were searched and found to be free of all
monies and contraband. The [confidential informant] was then
given official funds to make the purchase. The [confidential
informant] was kept under constant surveillance from our meeting
location until he/she arrived at [] N[.] Pittsburgh St[.], front and
rear. The [confidential informant] entered through the eastern
glass double doors of the building, facing Decatur Ave[.], and
remained inside for a short period of time before exiting those
same doors. [Police detectives] kept the [confidential informant]
in our view as he/she returned to our meeting location where the
[confidential informant] handed over a small plastic baggie corner
of suspected CRACK COCAINE. The [confidential informant] and
his/her belongings were again searched and found to be free of all
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monies and contraband. The [confidential informant] advised
[police detectives] that he/she entered the residence and met with
[Appellant], and the [confidential informant] handed [Appellant]
the money who then retrieved the CRACK COCAINE from a small
black box behind the television while in the living room of the
residence, which is also attached to the double doors used as an
entrance.
7. Within the past 48 hours of application of this search warrant,
during an investigation involving [another police detective and
affiant], a [confidential informant] was used in making a
controlled buy from the residence of [Appellant] at [] N[.]
Pittsburgh St[.], front and rear. The [confidential informant] was
searched and found to be free of monies and controlled
substances. The [confidential informant] was provided with
official funds and kept under constant surveillance by [police]
officers as he/she arrived at [] N[.] Pittsburgh St[.], front and
rear. The [confidential informant] again entered through the
eastern glass double doors of the building, facing Decatur Ave[.],
and remained inside for a short period of time before exiting those
same doors. [Police detectives] kept the [confidential informant]
in our view as he/she returned to our meeting location where the
[confidential informant] handed over multiple small plastic baggie
corners of suspected “CRACK” COCAINE. The [confidential
informant] and his/her belongings were again searched and found
to be free of all monies and contraband. The [confidential
informant] advised [police detectives] that he/she entered the
residence and met with [Appellant], and the [confidential
informant] handed [Appellant] the money who then retrieved the
CRACK COCAINE from a small black box behind the television
while in the living room of the residence.
Id. at 3-4.
The thrust of Appellant’s argument in his omnibus motion was that,
because the premises was a multi-unit building comprised of two commercial
units and two residential units, the averments contained in the affidavit of
probable cause failed to set forth sufficient facts to establish probable cause
to search each unit (commercial and residential) because the confidential
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informant only entered and exited through the double glass doors in the rear
of the building. We disagree.
We concur with the trial court, and the record supports, that the affidavit
of probable cause identified the property to be searched as “[] N. Pittsburgh
St., front and rear” and described the property as consisting of a complex
comprised of a two-story building in the “front” affronting North Pittsburgh
Street and a one-story building in the “rear” affronting Decatur Avenue. See
Search Warrant Application, 6/28/19, at Affidavit of Probable Cause ¶4.
(describing the premises to be searched as “[] N[.] Pittsburgh St[.], front and
rear”). The affidavit of probable cause described the rear portion of the
complex as being attached to, and with access to, the front portion of the
complex. Id. The affidavit of probable cause further stated that Appellant
was the occupant of the “residence” located at “[] N[.] Pittsburgh St[.], front
and rear.”
In the affidavit of probable cause, the affiant stated that he observed
the confidential informant enter and exit the building through the “double
glass doors,” which, according to the affidavit of probable cause, were located
in the one-story structure in the rear of the property. The confidential
informant informed the affiant that, after handing Appellant the official funds,
the confidential informant witnessed Appellant retrieve a small plastic baggie
containing what was believed to be a controlled substance from “behind the
television while in the living room of the residence.” Although the confidential
informant does not identify the specific location of the “living room of the
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residence,” i.e. whether it was located in one of the commercial units or in
one of the residential units, it is clear from the description of the premises
that an individual entering the one-story portion of the structure located in
the rear of the property had access to the other units, both commercial and
residential, in the structure and that Appellant was the “resident” or had
apparent access to the entire property. Therefore, based upon the
circumstances of the case sub judice, there were sufficient facts set forth in
the affidavit of probable cause to establish that controlled substances, and
other indicia of drug trafficking, were located in all portions of the building
occupied by Appellant.7 As such, we discern no error in the trial court order
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7 When the application is read as a whole in a common-sense fashion, as is
required by the issuing authority, the term “residence” in the case sub judice
encompasses the entire complex. At the suppression hearing, Appellant
presented a “commercial/industrial review document” setting forth
information relating to the North Pittsburgh Street property utilized by Fayette
County to assess the value of the property for, inter alia, tax purposes. See
Defendant’s Exhibit 1. This evidence, however, cannot be relied on by the
issuing authority, nor can it be relied on by the trial court in disposing of
Appellant’s omnibus motion for the purpose of assessing whether the issuing
authority erred in determining that probable cause existed for the issuance of
the search warrant. See Trial Court Opinion, 7/11/22, at 3-4. Probable cause
must exist within the four corners of the affidavit.
Moreover, the fact that the building was subdivided into two residential units
and two commercial units was not in dispute and did not prevent the issuing
authority, at the time he or she reviewed the affidavit of probable cause and
the application for a search warrant, from viewing the complex as a single unit
over which Appellant exercised control for purposes of storing, processing, or
packaging controlled substances.
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denying Appellant’s omnibus motion to suppress the physical evidence seized
from the “[] N. Pittsburgh St., front and rear” property.
Appellant’s second and third issues challenge the trial court’s denial of
Appellant’s request for a new trial based upon discovery violations pursuant
to Pennsylvania Rule of Criminal Procedure 573, as well as due process
violations pursuant to Brady, supra, and stemming from the non-disclosure
of evidence potentially useful to the defense.8 Appellant’s Brief at 16-22.
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8 We note that, within the context of his second issue, Appellant conflates a
request for a mistrial with a motion for a new trial. See Appellant’s Brief at
16-19 (asking this Court to review the trial court’s denial of a “motion for a
mistrial” based upon a discovery violation).
Recently, our Supreme Court explained the distinction between a request for
a mistrial and a motion for a new trial, in pertinent part, as follows:
[A] party's request for a mistrial [] is not a request for a new trial.
A mistrial is a step removed from a new trial, precluding the
inference that a request for a mistrial is a request for a new trial.
Often, a mistrial results in an order for a new trial, but that is not
categorically true.
...
[I]n deciding whether a mistrial is warranted, the [trial] court is
not inquiring whether the asserted basis for relief warrants a new
trial. Instead, the [trial] court inquires whether the alleged
prejudicial event deprived the defendant of a fair trial.
Conversely, when ruling upon a motion for a new trial, the [trial]
court's inquiry asks specifically whether the asserted basis for
relief entitles the movant to a new trial.
Commonwealth v. Wardlaw, 249 A.3d 937, 949 (Pa. 2021) (citation
omitted).
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Typically, we review a trial court’s order denying a motion for a new trial
under an abuse of discretion standard. Commonwealth v. Bell, 167 A.3d
744, 746 (Pa. Super. 2017), aff’d, 211 A.3d 761 (Pa. 2019), cert. denied, 140
S.Ct. 934 (2020). In so doing,
we must review the [trial] court's alleged mistake and determine
whether the [trial] court erred and, if so, whether the error
resulted in prejudice necessitating a new trial. If the alleged
mistake concerned an error of law, we will scrutinize for legal
error. Once we determine whether an error occurred, we must
then determine whether the trial court abused its discretion in
ruling on the request for a new trial.
Bell, 167 A.3d at 746 (citation and original brackets omitted); see also
Commonwealth v. Smith, 955 A.2d 391, 394 (Pa. Super. 2008) (en banc)
(stating that, “decisions involving [alleged violations of the rules of] discovery
in criminal cases lie within the discretion of the trial court”). When the error
involves an alleged Brady violation, however, such a challenge presents a
question of law, for which our standard of review is de novo and our scope of
review is plenary. Commonwealth v. Bagnell, 235 A.3d 1075, 1084 (Pa.
2020).
Here, Appellant asserts that the Commonwealth violated Rule 573 and
his due process rights pursuant to Brady, supra, and its progeny, when it
failed to disclose the existence of a search warrant for the six cellular
telephones seized on June 28, 2019, as well as the results and supplemental
reports concerning “the search” of those cellular telephones. Appellant’s Brief
at 16-22. Appellant argues that the Commonwealth “highlighted throughout
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its case-in-chief that the cellular [tele]phones themselves were indicative of
drug trafficking” and, as such, the “fact that no evidence of drug trafficking
existed on the [cellular telephones] is exculpatory.” Id. at 21. Appellant
contends that “this information was [withheld] by the Commonwealth” and
that he was “prejudiced by the Commonwealth withholding the search warrant
for the cellular [tele]phones, the data extracted from the cellular [tele]phones,
and the supplemental reports.” Id. Appellant asserts that a new trial is the
only appropriate remedy for the non-disclosure of this evidence because the
existence of a search warrant was not disclosed “until near the conclusion of
the trial” and the Commonwealth did not provide the results of the search of
the cellular telephones to Appellant until nine months after the conclusion of
the trial. Id. at 19.
In Brady, the United States Supreme Court held that the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment irrespective of the good
faith or bad faith of the prosecution. The [United States] Supreme
Court subsequently held that the duty to disclose such evidence is
applicable even if there has been no request by the accused, and
that the duty encompasses impeachment evidence as well as
directly exculpatory evidence. On the question of materiality, the
[United States Supreme] Court [] noted that such evidence is
material if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would
have been different. The materiality inquiry is not just a matter
of determining whether, after discounting the inculpatory
evidence in light of the undisclosed evidence, the remaining
evidence is sufficient to support the jury's conclusions. Rather,
the question is whether the favorable evidence could reasonably
be taken to put the whole case in such a different light as to
undermine confidence in the verdict. Thus, there are three
necessary components that demonstrate a violation of the Brady
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strictures: the evidence was favorable to the accused, either
because it is exculpatory or because it impeaches; the evidence
was suppressed by the prosecution, either willfully or
inadvertently; and prejudice ensued.
Commonwealth v. Burke, 781 A.2d 1136, 1141 (Pa. 2001) (citations and
quotation marks omitted); see also Commonwealth v. Brown, 200 A.3d
986, 994 (Pa. Super. 2018). “Exculpatory evidence favorable to the accused
is not confined to evidence that reflects upon the culpability of the defendant.
Exculpatory evidence also includes evidence of an impeachment nature that
is material to the case against the accused.” Commonwealth v. Kinard, 95
A.3d 279, 289 (Pa. Super. 2014). “Pursuant to Brady and its progeny, the
prosecutor has a duty to learn of all evidence that is favorable to the accused
which is known by others acting on the government's behalf in the case,
including the police. Thus, the Commonwealth's obligation extends to
exculpatory evidence in the files of police agencies of the same government
bringing the prosecution.” Commonwealth v. Santos, 176 A.3d 877, 883
(Pa. Super. 2017) (citations and original quotation marks omitted), appeal
denied, 189 A.3d 986 (Pa. 2018).
Pennsylvania Rule of Criminal Procedure 573, in pertinent part, states,
Rule 573. Pretrial Discovery and Inspection
...
(B) Disclosure by the Commonwealth.
(1) Mandatory. In all court cases, on request by the defendant,
and subject to any protective order which the Commonwealth
might obtain under this rule, the Commonwealth shall disclose to
the defendant's attorney all of the following requested items or
information, provided they are material to the instant case. The
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Commonwealth shall, when applicable, permit the defendant's
attorney to inspect and copy or photograph such items.
(a) Any evidence favorable to the accused that is material
either to guilt or to punishment, and is within the possession
or control of the attorney for the Commonwealth;
(b) any written confession or inculpatory statement, or the
substance of any oral confession or inculpatory statement,
and the identity of the person to whom the confession or
inculpatory statement was made that is in the possession or
control of the attorney for the Commonwealth;
(c) the defendant's prior criminal record;
(d) the circumstances and results of any identification of the
defendant by voice, photograph, or in-person identification;
(e) any results or reports of scientific tests, expert opinions,
and written or recorded reports of polygraph examinations
or other physical or mental examinations of the defendant
that are within the possession or control of the attorney for
the Commonwealth;
(f) any tangible objects, including documents, photographs,
fingerprints, or other tangible evidence; and
(g) the transcripts and recordings of any electronic
surveillance, and the authority by which the said transcripts
and recordings were obtained.
(D) Continuing Duty to Disclose. If, prior to or during trial,
either party discovers additional evidence or material previously
requested or ordered to be disclosed by it, which is subject to
discovery or inspection under this rule, or the identity of an
additional witness or witnesses, such party shall promptly notify
the opposing party or the court of the additional evidence,
material, or witness.
(E) Remedy. If at any time during the course of the proceedings
it is brought to the attention of the court that a party has failed to
comply with this rule, the court may order such party to permit
discovery or inspection, may grant a continuance, or may prohibit
such party from introducing evidence not disclosed, other than
testimony of the defendant, or it may enter such other order as it
deems just under the circumstances.
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Pa.R.Crim.P. 573(B)(1), (D), and (E). Thus, Rule 573 “requires the disclosure
of evidence by the Commonwealth where it is: (1) requested by the defendant,
(2) material to the case, and (3) within the possession or control of the
prosecutor.” Brown, 200 A.3d at 994 (citation and original quotation marks
omitted).
“Pursuant to both Brady and Rule 573, the Commonwealth [is] only
required to disclose material evidence.” Commonwealth v. Maldonodo,
173 A.3d 769, 781 (Pa. Super. 2017), appeal denied, 182 A.3d 991 (Pa.
2018). “[U]nless the omission deprived the defendant of a fair trial, there [is]
no constitutional violation requiring that the verdict be set aside[,] and absent
a constitutional violation, there [is] no breach of the prosecutor's
constitutional duty to disclose.” Maldonodo, 173 A.3d at 781. “A violation
of discovery does not automatically entitle [a defendant] to a new trial.
Rather, [the defendant] must demonstrate how a more timely disclosure
would have affected his[, or her,] trial strategy or how he[, or she,] was
otherwise prejudiced by the alleged late disclosure.” Brown, 200 A.3d at
986.
Here, in denying Appellant’s request for a new trial, the trial court
stated,
The [cellular telephones] were sent to the Allegheny County Crime
Lab to extract the contents of the [cellular telephones. A police
detective] testified that drug dealers generally have numerous
[cellular telephones] to conduct their drug sales. Six [cellular
telephones] were recovered at the property. The [police] officers
obtained a search warrant for the search of the [cellular
telephones] but failed to provide [a copy of the search warrant]
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to the Commonwealth or to counsel for the defense. [A police]
officer testified that no evidence was retrieved from the [cellular
telephones]. He later testified that the content of the [cellular
telephones] had no evidentiary value and that their evidentiary
value was the large number of [cellular telephones discovered] at
the property.
The police failed to provide a copy of the [search] warrant and the
reports related to the [cellular telephones] to either the
Commonwealth or the defense[,] and[, at trial,] the [police
detective] did not have the reports as part of his file. As to a
Brady violation, the evidence that the crime lab was not able to
extract any information from the [cellular telephones] was not
exculpatory to the accused, nor was it suppressed by the
Commonwealth, as the police had failed to turn it over to the
Commonwealth for release. The fact that no information was
extracted from the [cellular telephones] was not prejudicial to
[Appellant]. The lack of information about the contents of the
[cellular telephones] is neither exculpatory [nor] inculpatory
evidence. It is not a violation of the mandatory discovery rule.
Trial Court Opinion, 7/29/22, at 4-5 (record citations omitted). Moreover, the
trial court explained that “the Commonwealth[‘s inability] to obtain
information from the [cellular telephones] was disclosed at trial and[,]
therefore, there was no due process violation.” Id. at 6. The trial court stated
that any prejudice Appellant may have suffered as a result of the
Commonwealth’s failure to disclose the search warrant and the reports
pertaining to the content of the cellular telephones was ameliorated by the
trial court’s jury instruction “that [the] only evidence that the jury should
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consider about the [cellular telephones] was the number of [cellular
telephones] in the residence.”9 Id. at 5.
A review of the record demonstrates that, at trial, Detective Garlick10
testified that, upon execution of a search warrant, six cellular telephones were
seized from the North Pittsburgh Street property. N.T., 1/6/22, at 138. When
asked about the significance of the six cellular telephones, Detective Garlick
explained that,
drug dealers will often communicate with people looking to
purchase drugs through the use of cellular [tele]phones
particularly text messages and things of that nature. Drug
dealer[s] will often have numerous cellular [tele]phones because
it makes it more difficult to extract [information from] them and
find any evidence of communication of drug activities.
Id. Detective Garlick stated that the cellular telephones remained in police
custody except when in the custody of the Allegheny County Crime Lab where
the cellular telephones underwent an extraction process. Id. at 139, 149.
Detective Garlick explained that an extraction process “is an attempt to break
into the [cellular telephones] through [use of] the pass code and download
the contents [of the cellular telephone.]” Id. at 139. Detective Garlick further
explained that the extraction process could take an extensive period of time
____________________________________________
9 We note that the trial court’s jury instructions were not transcribed as part
of the notes of testimony from Appellant’s trial. N.T., 1/6/22, at 196.
10Detective Garlick, who, at the time of trial, was employed by the City of
Connellsville Police Department, as well as the Fayette County Bureau of
Investigations, was admitted as an expert in the field of drug investigation.
N.T., 1/5/22, at 103.
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and that, in fact, the extraction process, as of Appellant’s trial, had been
completed on only five of the six cellular telephones. Id. at 139-141. When
asked if “any relevant material” had been extracted from the five cellular
telephones, Detective Garlick replied in the negative. Id. at 139, 141.
On cross-examination, Detective Garlick stated that the cellular
telephones were subjected to the extraction process pursuant to a search
warrant, which authorized the search of the cellular telephones. Id. at 147.
Detective Garlick did not have a copy of the search warrant with him at trial
to review as part of his testimony because the police “didn’t retrieve any
evidence from the [cellular telephones.]” Id. at 148. Detective Garlick agreed
that the standard procedure was to file the search warrant with the local
magisterial district judge and to serve a copy of the search warrant on defense
counsel. Id. Detective Garlick explained his police report did not indicate that
the cellular telephones had been sent to a crime lab to undergo the extraction
process because “our administrative assistant prepares our reports for us and
the [cellular telephones] had no evidentiary value” except “the number of
[cellular telephones], the sheer number of them, had evidentiary value.” Id.
at 152. Throughout his cross-examination, Detective Garlick maintained that
the failure to mention the search warrant and the subsequent search of the
cellular telephones vis-à-vis the extraction process in the police report was
because no information was able to be extracted from the cellular telephones
and there was nothing to report. Id. at 153-154.
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Upon review of the record, we discern no error of law or abuse of
discretion in the trial court’s denial of Appellant’s request for a new trial based
upon the Commonwealth’s failure to disclose the search warrant and the
forensic reports pertaining to the search of the cellular telephones. The search
warrants are not evidence, and the search inventory (produced to Appellant)
revealed that six cellular telephones were seized from the North Pittsburgh
Street property. The discovery, and subsequent seizure, of six cellular
telephones, as documented in the search inventory, was circumstantial
evidence that the six cellular telephones were used as part of a drug operation
simply because they were recovered from a scene in which other drug
paraphernalia, as discussed infra, was discovered and drug dealers often used
numerous cellular telephones to conduct their illegal sales (a point reiterated
numerous times by Detective Garlick during his testimony). Also, reports
showing that no information had been extracted from the cellular telephones
were neither exculpatory nor inculpatory evidence. Since Appellant
maintained at length that no data recovered from the cellular telephones
linked him to drug trafficking activity, we concur with the trial court that
Appellant failed to demonstrate how he was prejudiced by the non-disclosure
of forensic reports relating to the cellular telephones. Put differently,
Appellant failed to demonstrate how learning of this information during
pre-trial discovery would have altered his trial strategy. As the record
demonstrates, defense counsel extensively questioned Detective Garlick on
cross-examination about the fact that no information indicating that the
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cellular telephones had been used as part of a drug operation was retrieved
from the cellular telephones. Lastly, the trial court indicated that it instructed
the jury that the “only evidence [] the jury should consider about the [cellular
telephones] was the number of [cellular telephones retrieved from] the
residence.” Trial Court Opinion, 7/29/22, at 5; see also Commonwealth v.
Vucich, 194 A.3d 1103, 1113 (Pa. Super. 2018) (stating, “[i]t is well[-]settled
that the jury is presumed to follow the trial court's instructions” (citation
omitted)), appeal denied, 199 A.3d 885 (Pa. 2018). Therefore, we find
Appellant’s issues raising claims of discovery and Brady violations to be
without merit.
Appellant’s fourth and fifth issues challenge the trial court’s denial of
Appellant’s request for a mistrial based upon reference to Appellant’s
post-arrest silence at trial, and reference to evidence demonstrating Appellant
committed an un-charged crime to infer his guilt in the present crimes
charged. Appellant’s Brief at 23-27.
The denial of a motion for a mistrial is assessed on appellate
review according to an abuse of discretion standard. It is primarily
within the trial court's discretion to determine whether defendant
was prejudiced by the challenged conduct. On appeal, therefore,
this Court determines whether the trial court abused that
discretion. An abuse of discretion is not merely an error of
judgment; rather, discretion is abused when the law is overridden
or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-will,
as shown by the evidence or the record.
Commonwealth v. Padilla, 923 A.2d 1189, 1192 (Pa. Super. 2007)
(citations and quotation marks omitted), appeal denied, 934 A.2d 1277 (Pa.
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2007). “[A] mistrial is an extreme remedy only warranted when the prejudice
to the movant cannot be ameliorated to ensure a fair trial. A mistrial is not
necessary where cautionary instructions are adequate to overcome any
possible prejudice.” Commonwealth v. Risoldi, 238 A.3d 434, 458
(Pa. Super. 2020), appeal denied, 244 A.3d 1230 (Pa. 2021).
In his fourth issue, Appellant asserts that the trial court erred in denying
his request for a mistrial based upon Detective Garlick’s reference to
Appellant’s post-arrest silence and the Commonwealth’s reiteration of
Appellant’s post-arrest silence as part of its closing argument. Appellant’s
Brief at 23-25.
Generally, “[t]he admissibility of evidence is a matter for the discretion
of the trial court[,] and a ruling thereon will be reversed on appeal only upon
a showing that the trial court committed an abuse of discretion.”
Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012), cert. denied,
569 U.S. 922 (2013). To the extent the question presents as “an issue
involving a constitutional right, it is a question of law[ and,] thus, our standard
of review is de novo, and our scope of review is plenary.” Commonwealth
v. Baldwin, 58 A.3d 754, 762 (Pa. 2012).
“Both the United States Constitution and the Pennsylvania Constitution
protect every person against being compelled to be a witness against himself
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or herself.”11 Commonwealth v. Molina, 33 A.3d 51, 57 (Pa. Super. 2011)
(en banc), affirmed, 104 A.3d 430 (Pa. 2014) (plurality opinion). “[T]he right
against self-incrimination prohibits use of a defendant's [] silence as
substantive evidence of guilt, unless it falls within an exception such as
impeachment of a testifying defendant or fair response to an argument of the
defense.”12 Molina, 104 A.3d at 451; see also Molina, 33 A.3d at 62(stating, “the Commonwealth cannot use a non-testifying defendant's []
silence to support its contention that the defendant is guilty of the crime
charged as such use infringes on a defendant's right to be free from
self-incrimination”); Commonwealth v. DiPietro, 648 A.2d 777, 782 (Pa.
1994) (stating, “[t]he testimonial reference to [a defendant’s] post-arrest
silence, the absence of an adequate cautionary instruction, and the further
exploitation of [the defendant’s] post-arrest silence during closing argument
constitute reversible error and mandate a new trial”); but cf.
Commonwealth v. DiNicola, 866 A.2d 329, 337 (Pa. 2005) (noting that, “an
explicit reference to silence is not reversible error where it occurs in a context
____________________________________________
11 The Fifth Amendment of the United States Constitution, in pertinent part,
states that, “[n]o person . . . shall be compelled in any criminal case to be a
witness against himself[.]” U.S. CONST. amend. V. Similarly, Article I,
Section 9 of the Pennsylvania Constitution, in pertinent part, states that, “[i]n
all criminal prosecutions, the accused . . . cannot be compelled to give
evidence against himself[.]” Pa. CONST. art. I, § 9.
12In the context of an individual’s right against self-incrimination, it is without
consequence whether a defendant’s “silence” occurred “pre or post-arrest, or
pre or post-Miranda warnings[.]” Molina, 104 A.3d at 450; see also
Miranda v. Arizona, 384 U.S. 436 (1966).
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not likely to suggest to the jury that silence is the equivalent of a tacit
admission of guilt”); Commonwealth v. Adams, 104 A.3d 511, 517 (Pa.
2014) (stating that, “the right against self-incrimination is not burdened when
the reference to silence is circumspect and does not create an inference of an
admission of guilt” (original quotation marks omitted)).
If a defendant’s silence is improperly referenced, this Court must then
examine whether the improper reference contributed to the verdict or was
harmless error, thus negating the necessity of a mistrial. Commonwealth
v. Rivera, 255 A.3d 497, 506 (Pa. Super. 2021), appeal granted, 273 A.3d
510 (Pa. 2022). “[A]n error can be harmless only if an appellate court is
convinced beyond a reasonable doubt that the error is harmless.” Molina,
104 A.3d at 454, citing Commonwealth v. Story, 383 A.2d 155, 162 (Pa.
1978). An error is harmless when
(1) the error did not prejudice the defendant or the prejudice was
de minimis; (2) the erroneously admitted evidence was merely
cumulative of other untainted evidence which was substantially
similar to the erroneously admitted evidence; or (3) the properly
admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict.
Molina, 104 A.3d at 454, quoting Commonwealth v. Wright, 961 A.2d 119,
143 (Pa. 2008). Our evaluation of the harmlessness of an improperly admitted
reference to a defendant’s silence is predicated on the fundamental notion
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that a “defendant is entitled to a fair trial but not a perfect one.”13
Commonwealth v. Noel, 104 A.3d 1156, 1169 (Pa. 2014) (stating that,
“although a perfectly conducted trial is indeed the ideal objective of our judicial
process, [a] defendant is not necessarily entitled to relief simply because of
some imperfections in the trial, so long as he[, or she,] has been accorded a
fair trial” (original brackets and original quotation marks omitted)). Thus, “[i]f
a trial error does not deprive [a] defendant of the fundamentals of a fair trial,
his[, or her,] conviction will not be reversed.” Id.Here, the record demonstrates that the following exchange occurred
between Appellant’s counsel and Detective Garlick during cross-examination:
[Defense Counsel:] Where in the [police] report does it say
that you sent the [cellular telephones] to
the Allegheny [County] Crime Lab or the
extraction lab?
[Detective Garlick:] It’s not indicated in [] this copy of the
[police] report. Again, our administrative
assistant prepares our reports for us and
the [cellular telephones] had no
evidentiary value so, at least, what was
within them had no evidentiary value, but
the number of them, the sheer number of
them, had evidentiary value.
____________________________________________
13Typically, the Commonwealth bears the burden of establishing that the error
was harmless beyond a reasonable doubt. Molina, 104 A.3d at 454.
Nonetheless, in the interest of ensuring a fair trial, this Court may undertake
a harmless error analysis sua sponte. Commonwealth v. Hamlett, 234 A.3d
486, 492 (Pa. 2020) (stating that, “the availability of discretionary sua sponte
review in appropriate cases serves as an exception to the ordinary rule that
the government bears the burden of persuasion relative to harmless error”).
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[Defense Counsel:] It wouldn’t have evidentiary value to
[Appellant] if he had access, because
there is no evidence of drug dealing in his
[cellular telephone], so he is not selling
drugs; correct?
[Detective Garlick:] [Appellant] had the opportunity to
express that to us when I questioned him
at the Studio.
N.T., 1/6/22, at 152. Thereupon, defense counsel objected and requested a
mistrial on the ground, inter alia, that Detective Garlick “was not responsive
to [the] question and brought up [Appellant’s] right to remain silent and that
[Appellant] said nothing.” Id. at 152. The trial court, without explanation
and without first hearing from the Commonwealth, denied Appellant’s request
for a mistrial. Id. In its Rule 1925(a) opinion, however, the trial court
explained that it denied Appellant’s request for a mistrial because “[t]he
comment[,] while elicited by the defense, [] is not clear that it references []
Appellant’s post-arrest silence.” Trial Court Opinion, 7/29/22, at 6-7 (stating
that, “[t]he reference was contextual, brief[,] and did not highlight []
Appellant’s silence as evidence of guilt”). We disagree.
Detective Garlick, who testified as an expert in the field of drug
investigations, indicated throughout his testimony that although the police
were unable to extract information from the cellular telephones, indicating
that the cellular telephones had been used in drug transactions, the
“evidentiary value” of the cellular telephones was inherent in the fact that six
cellular telephones had been recovered from the premises during the
execution of the search warrant. In other words, the cellular telephones
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provided no direct evidence linking Appellant to drug trafficking but, rather,
provided circumstantial evidence based upon the number of cellular
telephones recovered from the premises. Defense counsel’s question
emphasized that because no direct evidence was recovered from the cellular
telephones linking Appellant to drug trafficking activity, Appellant was not
selling drugs. Detective Garlick responded by indicating that Appellant did not
deny he was selling drugs when Detective Garlick questioned Appellant at the
premises. Thus, Detective Garlick’s statement referenced Appellant’s right to
remain silent when confronted with questions pertaining to his involvement in
drug trafficking activities. In other words, Detective Garlick’s testimony
implied, in the presence of the jury, that Appellant’s silence in the face of
questioning constituted an admission that he sold drugs. Consequently, we
find Detective Garlick’s statement - “[Appellant] had the opportunity to
express that to us when I questioned him at the Studio” – referenced
Appellant’s right to remain silent.
Nonetheless, we find that Detective Garlick’s statement constituted
harmless error because any prejudicial effect of the statement was rendered
insignificant by the overwhelming evidence of guilt that was properly admitted
and uncontradicted. For example, several of the police officers indicated that
Appellant had keys to the property and provided the police officers access to
the property. N.T., 1/5/22, at 21, 50, 106. Detective Garlick indicated that
paperwork was located during the execution of the search warrant, showing
Appellant as the owner of the building. N.T., 1/6/22, at 134. During the
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execution of the search warrant, $2,300.00 in United States currency was
discovered in a shoebox along with a large bag of cocaine and multiple smaller
bags of cocaine. N.T., 1/5/22, at 29-34; see also N.T., 1/6/22, at 134. The
shoebox also contained several documents bearing Appellant’s name,
including a traffic citation issued to Appellant, tax documents showing
Appellant’s ownership of the property, and a prescription bottle bearing
Appellant’s name. N.T., 1/6/22, at 134. Moreover, drug paraphernalia,
including scales, burners, and spoons containing white residue, were located
in the kitchen area of the building. N.T., 1/5/22, at 59-63. Detective Thomas
Patton (“Detective Patton”), who was admitted as an expert in the field of drug
investigation, testified that the evidence seized from the property, including
the drug paraphernalia discovered in the kitchen area, the large amounts of
currency on-hand, the amount of cocaine, both in large quantities and smaller,
broken-down “baggies,” indicated, in his opinion given to a reasonable degree
of certainty, that the property was used by drug dealers for the purpose of
packaging controlled substances, namely cocaine and crack cocaine, for the
purpose of distribution. Id. at 54-68.
Accordingly, we conclude that the admission of Detective Garlick’s
testimony pertaining to Appellant’s silence, which was offered as substantive
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evidence of guilt, constituted a harmless error in light of the otherwise
overwhelming evidence of Appellant’s guilt.14
In his fifth issue, Appellant contends the trial court erred in denying his
request for a mistrial based on the Commonwealth’s presentation of testimony
____________________________________________
14 Appellant asserts that Detective Garlick’s reference to Appellant’s
post-arrest silence was exploited by the Commonwealth in its closing
argument. Appellant’s Brief at 23. A review of the record demonstrates the
following statement by the Commonwealth during its closing argument:
Those are the three charges, ladies and gentlemen. [Defense
counsel] wants to go on about the [cellular telephones]. I could
have easily not brought the [cellular telephones] here today and
show[n] you them at all. We brought them to show you, because
they were part of the search. We don’t get to write the script for
the facts of the case. If I [did], I am sure that I would have
[written a] script that we [] found great evidence on the [cellular
telephones], we didn’t. That is why you didn’t hear anything. I
still showed you the [cellular telephones] because it was part of
the execution of the search warrant. I am not hiding anything
from you.
Exhibit [Number] 7 shows that [cellular telephones], those six
[cellular telephones] were inventoried immediately after the
search and that inventory was immediately filed and provided to
[defense counsel] and at no point was any request made to look
at the [cellular telephones] by [defense counsel].
N.T., 1/6/22, at 195. Defense counsel objected to the Commonwealth’s
statement on the ground Appellant had no burden in this case. Id. The trial
court sustained the objection and offered a cautionary instruction, stating,
“[Appellant] has no burden.”
Aside from the trial court’s cautionary instruction correcting the
Commonwealth’s improper statement pertaining to Appellant having a burden
of proof as to his innocence in the instant criminal matter, we find no specific
reference, as Appellant contends, by the Commonwealth exploiting Detective
Garlick’s testimony regarding Appellant’s post-arrest silence.
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that Appellant was guilty of the aforementioned criminal charges since he
committed an uncharged crime. Appellant’s Brief at 26-27. Specifically,
Appellant asserts that Detective Patton improperly testified that he was
assisting Detective Garlick “in a drug investigation into illegal narcotics [sales
at] the [North Pittsburgh Street property].” Id. at 26. Appellant argues that
Detective Patton’s testimony “was irrelevant because the Commonwealth did
not charge [Appellant] with the controlled purchases [by a confidential
informant of a controlled substance] utilized to obtain the search the warrant.”
Id. at 27.
To reiterate, the admissibility of evidence is within the sound discretion
of the trial court and will only be reversed for an abuse of that discretion.
Johnson, 42 A.3d at 1027.
Evidence of one crime is generally inadmissible against a
defendant being tried for another crime. While generally not
admissible to prove bad character or criminal propensity, evidence
of crimes, wrongs, or other acts is admissible when proffered for
some other relevant purpose so long as the probative value
outweighs the prejudicial effect. Permissible purposes to admit
other bad acts evidence include motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident, subject to the [trial] court's weighing of the
probative value and the potential for unfair prejudice against the
defendant.
Commonwealth v. Crispell, 193 A.3d 919, 936 (Pa. 2018) (citations,
quotation marks and original brackets omitted), relying on Pa.R.E. 404(b)(2).
“In addition, evidence of crimes, wrongs, or other bad acts may be admissible
as res gestae when relevant to furnish the complete story or context of events
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surrounding the crime.” Crispell, 193 A.3d at 936 (original quotation marks
omitted); see also Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988)
(stating that, the res gestae exception, also known as the “complete story
rationale,” permits evidence of other criminal acts to be admitted “to complete
the story of the crime on trial by proving its immediate context of happenings
near in time and place”).
In denying Appellant’s request for a mistrial, the trial court explained,
[Detective Patton] made no mention of [] Appellant being under
investigation or being [specifically] involved in [the] investigation.
[Detective Patton’s] testimony was offered to denote the extent
and focus of the task force’s investigation that day. The testimony
related to a location at which more than one person was residing.
In his testimony, there was no implication that [] Appellant was
the target of the investigation or even under investigation. There
was no statement that would have prejudiced [] Appellant or
interfered with his ability to obtain a fair trial.
Trial Court Opinion, 7/29/22, at 7.
A review of the record demonstrates the following exchange between
the Commonwealth and Detective Patton during direct examination:
[Commonwealth:] All right. Detective Patton were you
working on a particular task on June 28,
2019?
[Detective Patton:] Yes, ma’am.
[Commonwealth:] Can you tell the jury some background
about that task and what you were
doing?
[Detective Patton:] I was assisting the lead investigator,
Detective Garlick, in a drug investigation
into illegal narcotics being sold out of what
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we called [“]The Studio[” (located along
North Pittsburgh Street).]
N.T., 1/5/22, at 45 (emphasis added). Thereafter, defense counsel objected
and requested a mistrial on the ground, inter alia, that Appellant was “not
charged with selling [illegal narcotics] from the building[.]” Id. at 46.
Examining Detective Patton’s statement within the context of his
testimony as a whole, we concur with the trial court that Detective Patton did
not reference Appellant or Appellant’s involvement in selling illegal narcotics
from the premises. While the testimony references an investigation of a
crime, i.e. the selling of illegal narcotics, this other crime was not associated
with Appellant to show his bad character and his propensity for committing
criminal acts nor was the potential other crime directly associated with
Appellant. Rather, as the trial court notes, this statement merely references
the activity and location of the drug task force on that date and explains
Detective Patton’s involvement in the investigation in order to put his
subsequent testimony into context as he discussed the events on June 28,
2019. In other words, this statement merely “complete[s] the story of the
crime on trial by proving its immediate context of happenings near in time and
place” and explains how the individual who is about to offer testimony on the
events became involved in the investigation. As such, we discern no abuse of
discretion by the trial court in permitting the testimony and denying
Appellant’s request for a mistrial.
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For the reasons set forth herein, we affirm Appellant’s judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2023
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