Com. v. Barry-Gibbons, S.

J-S13003-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
STEPHEN BARRY-GIBBONS,
Appellant No. 11 WDA 2018
Appeal from the Judgment of Sentence Entered September 29, 2017
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-02-CR-0003148-2016
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 17, 2019
Appellant, Stephen Barry-Gibbons, appeals from the judgment of
sentence of 27½-55 years’ imprisonment, imposed after he was convicted of
criminal conspiracy to commit possession with the intent to deliver and
numerous other offenses. We affirm in part and vacate in part.
We adopt Appellant’s comprehensive statement of the case:1
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 The Commonwealth’s brief does not contain a counter-statement of the case,
so we assume it substantially agrees with Appellant’s rendition of the factual
and procedural history of this matter. See Pa.R.A.P. 2112 (“The brief of the
appellee … need contain only a summary of argument and the complete
argument for [the] appellee, and may also include counter-statements of any
of the matters required in the appellant’s brief as stated in Pa.R.A.P. 2111(a).
Unless the appellee does so, or the brief of the appellee otherwise challenges
the matters set forth in the appellant’s brief, it will be assumed the appellee
is satisfied with them, or with such parts of them as remain unchallenged.”).
J-S13003-19
The Commonwealth charged Appellant, by criminal information,
with one count, respectively, of criminal conspiracy to commit
possession with the intent to deliver, 18 Pa.C.S.[] § 903[;]
possession with the intent to deliver (93 grams of heroin), 35 P.S.
§ 780-113(a)(30)[;] possession with [the] intent to deliver (763
grams of cocaine), 35 P.S. § 780-113(a)(30)[;] possession of drug
paraphernalia, 35 P.S. § 780-113(a)(32)[;] possession of a
controlled substance (93 grams of heroin), 35 P.S. § 780-
113(a)(16)[;] possession of a controlled substance (763 grams of
cocaine), 35 P.S. § 780-113(a)(16)[;] persons not to possess
firearms, 18 Pa.C.S.[] § 6105(c)(2)[;] and receiving stolen
property, 18 Pa.C.S.[] § 3925(a). These charges stemmed from
allegations that the City of Erie Police recovered five baggies of
suspected heroin weighting [sic] 93 grams, ten baggies of
suspected cocaine weighing 763 grams, stolen handguns, a digital
scale, a hydraulic press, plastic baggies and a manual press from
Appellant’s residence at 1055 West 30th Street, Upstairs, Erie,
Pennsylvania on May 19, 2016[,] after the execution of a search
warrant.
On February 3, 2017, Appellant filed an Omnibus Pre-Trial Motion,
in which Appellant asked … the trial court to suppress the evidence
seized, as [violating] the Federal and State Constitutions, due to
a lack of probable cause to obtain a warrant. On April 13, 2017,
Appellant filed a Supplemental Omnibus Pre-Trial Motion. The trial
court held a suppression hearing, and denied Appellant’s motions.
On July 26, 201[7], the Commonwealth filed a motion to introduce
evidence of Appellant’s prior bad acts under Pa.R.E. 404(b).
Specifically, the Commonwealth sought to introduce the police’s
observation of an alleged drug transaction between Appellant and
Ashley Dumas on the day that the police obtained the warrant.
Ms. Dumas gave a video-recorded statement to police, which
resulted in Appellant being charged for this separate transaction
at Docket 3146 of 2016; however, Ms. Dumas died of a drug
overdose prior to trial. The Commonwealth sought to admit
testimony that the officers observed Appellant leave 1055 West
30th Street and travel to a nearby area where the female entered
the passenger seat. Also, that upon exiting the vehicle, the female
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was found in possession of heroin, and the officers observed
Appellant immediately returning to 1055 West 30th Street.[2]
The case proceeded to trial against Appellant and his co-
defendant, Franzora Smith, and the Commonwealth presented the
testimony of Andre Collins. N.T. Trial, 8/14/17, at 31. Collins
testified that his parents own rental properties, including 1055
West 30th Street, Erie, Pennsylvania, and he helps manage those
properties. Id. at 31-[3]2. Collins testified that Appellant signed
a lease for this property in July of 2015. Id. at 32-[3]3. The
original term of the lease was six months, but it became month to
month. Id. at 34. Collins testified that Appellant was current on
his rent through May of 2016, but later clarified that Appellant had
paid through April of 2016. Id. at 34, 48. Collins did not know if
anyone else resided there with Appellant. Id. at 34. Collins
primarily collected the rent from Appellant, but a young lady
sometimes paid him instead. Id. at 34-[3]5. Appellant never
notified Collins that the woman lived there, which the lease
required. Id. at 35.
On cross-examination, Collins admitted that Appellant had
provided him with thirty days written notice of his intent to
terminate in March or April of 2016. Id. at 37-[3]8. Collins
admitted that Appellant did have other people pay the rent on his
behalf when Appellant was not in the area. Id. at 38. Collins also
stated that he saw two or three other individuals going into or out
of Appellant’s apartment two weeks prior to the police’s search of
the apartment. Id. at 41-[4]2, 49. Appellant was not with them.
Id. at 49. He further testified that he received complaints that
other individuals that he had evicted from another property were
entering Appellant’s second story apartment without
authorization. Id. at 45. These individuals were accessing that
apartment with keys. Id. at 46.
Next, Leiah Smith testified that, in May of 2016, she was in a
relationship with Appellant[,] and was arrested with him and Mr.
Smith on the same charges. Id. at 51. Ms. Smith testified that
the Commonwealth allowed her to go into the [accelerated
rehabilitative disposition (ARD)] program in exchange for her
testimony. Id. at 52. Ms. Smith testified that she met Appellant
two months prior in Detroit, Michigan[,] and had never been to
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2The trial court granted the Commonwealth’s request to introduce this prior
bad acts evidence. See Appellant’s Brief at 43; Commonwealth’s Brief at 9.
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Erie prior to May of 2016. Id. She arrived in Erie with Appellant
two or three days prior to her arrest. Id. at 53. Appellant told
Ms. Smith that he operated a number of different businesses,
including cleaning and transportation services and an online
business, and had a dealer’s license for automobiles. Id. at 54.
She came to Erie to help him drive a car that he had purchased
back to Detroit and to meet his mother. Id. Appellant’s cousin,
Yusef, came with them. Id. at 53.
When they arrived in Erie, they went to the apartment on 1055
West 30th Street, and Mr. Smith was there. Id. at 55. She stayed
overnight there throughout her stay and never saw drugs in the
house. Id. at 56. However, she did see a gun and a rifle. Id.
On May 19, 2016, the day of the arrest, Appellant told her that
they were going to pick up the car, but would first stop at his
mother’s to do laundry. Id. at 57. Ms. Smith packed all of her
belongings into the trunk of Appellant’s rental car, including her
purse, and got into the front passenger seat. Id. They stopped
at CVS because Appellant had to do a money transfer. Id. at 58.
During her time in Erie, she did notice that Appellant had a large
sum of cash, but did not know the amount. Id. at 59. She
admitted that, upon their arrest, the police discovered $14,000.00
in her purse in the trunk of the car, but testified that she did not
put the money there. Id. She testified that Appellant had access
to the trunk after she put the purse there. Id.
On cross-examination, Ms. Smith explained that her trip to Erie
with Appellant did not raise any red flags to her. Id. at 62. She
believed Appellant needed a sum of money to purchase the car.
Id. When she was arrested, some of her personal toiletries were
at 1055 West 30th Street. Id. at 63. She testified that Yusuf also
stayed with them at that apartment. Id. at 64. Appellant stayed
with them one night in the apartment and stayed elsewhere
another night. Id. at 65. She could not recall if Mr. Smith stayed
there or if he was merely in and out. Id. She recalled two or
three other people visiting the apartment while she stayed there.
Id. at 66. She heard female voices in the apartment when she
stayed there. Id. at 77. Ms. Smith never saw drugs or guns in
the vehicle during her trip. Id. at 66. She first saw a gun leaning
up against the wall in the apartment on the day she was arrested,
but never saw Appellant or Mr. Smith in possession of that gun.
Id. at 68, 72. During cross, she testified she only saw one gun.
Id. at 74. Ms. Smith admitted that she sat in jail for three months
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and was only released when she agreed to testify for the
Commonwealth. Id. at 71.
[Sergeant] Michael Chodubski from the Erie Police Department
testified that he conducted surveillance on 1055 West 30th Street
and developed two persons of interest from his observations, Juan
and J.B. Id. at 83. [Sergeant] Chodubski identified J.B. in a
photograph exiting the second story apartment carrying two cell
phones. Id. at 86; Commonwealth’s Exhibit 7. [Sergeant]
Chodubski stated that most people involved in drug trafficking
have multiple cell phones. Id. at 86. When [Sergeant] Chodubski
later arrested J.B., he identified him as Franzora Smith. Id. at 87.
On the day of Appellant’s arrest, [Sergeant] Chodubski and other
members of the Vice Unit followed Appellant most of the day. Id.
at 88. At one point, Appellant went to the 3400 block of Cascade
[Street] where he parked on the side of the street and a white
female approached the car, got into the car, and exited a couple
of minutes later. Id. at 90. When Appellant left, the detectives
approached the woman, and the police recovered five grams of
heroin from her. Id. at 91. The police obtained a search warrant
for 1055 West 30th Street[,] and served the warrant
approximately three hours later. Id.[] Thereafter, Appellant and
Mr. Smith were arrested. Id. at 92.
On cross, [Sergeant] Chodubski testified that he received a
complaint about a male named Juan, who he knew to be
Appellant, from an individual in March of 2016, which commenced
the investigation. Id. at 93. In March, April and May of 2016, the
police did not conduct any controlled purchases involving
Appellant. Id. at 96-[9]7. [Sergeant] Chodubski only saw
Appellant in Erie on two occasions during the investigation: April
20, 2016 and May 19, 2016. Id. at 97-[9]8. On April 20, 2016,
the police surveilled Appellant but did not receive any information
of evidentiary value. Id.[] [Sergeant] Chodubski admitted that
neither he[,] nor any of the detectives surveilling Appellant[,] saw
him with any drugs or guns on May 19, 2016. Id. at 100. They
also never saw him secrete any item from his vehicle to his
residence or from his residence back to the vehicle. Id. The
detective also testified that he conducted a videotaped interview
of the white female at the police station prior to securing the
search warrant. Id. at 108-[0]9. [Sergeant] Chodubski
confirmed that a judge signed the warrant at 7:13 p.m. Id. at
109. [Sergeant] Chodubski admitted that he had never seen
anyone sell drugs out of the house at 1055 West 30th Street. Id.
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at 113. When confronted with a police report stating that the
white female was videotaped at 8:17 p.m., [Sergeant] Chodubski
changed his testimony to say that they interviewed her before
getting the warrant, but did not record her statement until he
obtained the warrant. Id. at 117. [Sergeant] Chodubski admitted
that he did not obtain any fingerprint o[r] DNA evidence for any
of the items seized from the residence. Id. at 120. He also
admitted that he did not know who lived in the apartment, but
said Mr. Smith and Appellant had access to it. Id. at 131.
After the cross-examination, the trial court agreed with the
Commonwealth that defense counsel’s questioning had opened
the door to the Commonwealth[’s] presenting more testimony
about the white female. Id. at 121-[2]6. Specifically, the trial
court permitted this re-direct because trial counsel questioned the
timing of the warrant and the credibility of the officer as to when
he received the information. Id. at 127. The trial court stated
that it was only reasonable to give the officer the opportunity to
explain why and how he did what he did. Id. After cross-
examination was completed, the trial court recessed for the day.
On re-direct, [Sergeant] Chodubski identified the search warrant
and affidavit of probable cause, and the trial court introduced this
into evidence. [N.T. Trial, 8/15/2017,] at 24. [Sergeant]
Chodubski explained that, after making their observations of the
white female, the police took her back to the station, interviewed
her, and used that information in the affidavit of probable cause
to obtain the warrant. Id. at 25. The police then faxed the
warrant to the district judge’s office and then took her recorded
statement. Id. [Sergeant] Chodubski said that the police
recorded the statement for later use at trial. Id. Due to the
woman’s death, her statement could not be played to the jury.
Id. [Sergeant] Chodubski also testified that the police sent the
five grams of heroin that she purchased in the car to the State
Police Crime Lab, who confirmed that the baggie contained heroin.
Id. at 26.
[Sergeant] Chodubski also testified that Appellant made a post-
arrest statement that he was aware of three handguns and one
rifle in the residence. Id. at 27. Appellant said one of the guns
was not functional and that the handguns came from a female
whose boyfriend had been arrested and she did not want them
anymore. Id. at 27. Appellant said she gave them to him to hide.
Id. [Sergeant] Chodubski produced a State Police Report that all
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of the recovered guns were functional. Id. at 28;
Commonwealth’s [Exhibit] 15.
[Sergeant] Chodubski also testified that two controlled buys were
performed with J.B. on May 3, 2016 and May 11, 2016[,] and that
the police used pre-recorded buy money in those transactions.
Id. at 29. When the police arrested Mr. Smith on May 19, 2016,
they uncovered approximately $1[,]500.00, which contained $40
of the pre-recorded buy money. Id.
On re-cross, [Sergeant] Chodubski confirmed that he had no prior
relationship with the white female and that he did not have any
personal knowledge as to whether she had the heroin on her
person prior to going to Appellant’s car. Id. at 31. [Sergeant]
Chodubski admitted that this was not a controlled buy and that
the woman avoided charges by agreeing to cooperate with the
police. Id.
Defense counsel then asked about Appellant’s statement to police
and why Appellant only partially completed and did not ultimately
sign the Miranda[3] waiver form. Id. at 31. [Sergeant]
Chodubski stated that Appellant said he did not want to go on
video for the statement but wanted to provide cooperation. Id.
[Sergeant] Chodubski said the police did not memorialize their
discussion with him by video or written statement. Id. at 32.
Next, Detective Matthew Benacci testified that he was contacted
to assist with taking Appellant into custody on May 19, 2016. Id.
at 37. The detectives followed Appellant’s car into CVS, and
Appellant went into the store. Id. at 38. [Detective] Benacci took
Ms. Smith and Yusef Musafir into custody. Id. He took a cell
phone from Ms. Smith’s person, and two cell phones from Musafir.
Id. at 39. Appellant had left the key to the car in the vehicle, and
it was attached to a key ring with multiple other keys. Id. at 40.
The keys … opened the exterior door to 1055 West 30th Street.
Id. at 40, 61. However, there was not a key to the actual
apartment door. Id. at 61. Appellant had left four cell phones in
the vehicle and two more were recovered on his person. Id. at
40-[4]1. [Detective] Benacci also recovered Ms. Smith’s purse in
the trunk, which contained a brown shopping bag with
$14[,]005.00 inside. Id. at 42.
____________________________________________
3 Miranda v. Arizona, 384 U.S. 436 (1966).
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After participating in these apprehensions, [Detective] Benacci
went back to 1055 West 30th Street to conduct further
surveillance. Id. at 43. [Detective] Benacci had been told that
J.B. had been outside of the residence talking on a cell phone. Id.
at 43-[4]4. He observed J.B.[’s] being picked up by a silver sedan,
and the police stopped the vehicle and arrested him. Id. at 44.
A search of Mr. Smith revealed sandwich baggies containing
cocaine and heroin and $1[,]534.00, including some controlled
buy funds. Id. They also recovered two cell phones and two sets
of keys on his person to the apartment. Id. at 45-[4]6. The
sandwich baggies contained numerous corners of small doses. Id.
[Detective] Benacci also participated in the search of 1055 West
30th Street. Id. at 47. The officers announced the warrant and
then entered the apartment with Mr. Smith’s keys. Id. at 47.
Next, Lieutenant Mike Nolan from the Erie Police Department
testified as an expert in drug investigations, specifically,
possession with the intent to deliver. Id. at 69. First,
[Lieutenant] Nolan testified as a fact witness that he arrested
Appellant inside the CVS store, while Appellant sat at a Western
Union terminal. Id. at 74-[7]5. [Lieutenant] Nolan opined that
Western Union is a common way for drug dealers to transfer
money out of town because identification is not required. Id. at
75. At the time of his arrest, Appellant had $619 in cash on his
person. Id. at 77.
The police submitted the baggies of suspected drugs found on Mr.
Smith’s person to the State Police Crime Lab, and the lab
confirmed that one contained 2.34 grams of heroin and the other
contained 1.96 grams of powder cocaine. Id. at 79.
[Lieutenant] Nolan was also present for the search of the
apartment. Id. at 83. The officers discovered a Mosberg tactical
.22 rifle leaning against the corner of the room in the front parlor
of the apartment. Id. at 87. The[y] also discovered a clock in
the parlor, which when the cover was removed, contained
suspected narcotics. Id. at 88-[8]9. Specifically, there was a
baggie of marijuana (8.75 grams), two baggies of heroin (9.24
grams), and three baggies of crack cocaine (32.16 grams). Id.
at 89-90. These quantities and their packaging [were] consistent
with bulk purchase. Id. at 91. Officers also found two digital
scales, a screw press, and a bottle of creatinine in the kitchen.
Id. at 91-[9]3. In the kitchen drawer, the officers also found a
baggie containing 7.92 of lidocaine (a topical sedative) and 9.79
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grams of a non-controlled sleep aid. Id. at 93-[9]4. [Lieutenant]
Nolan opined that these substances were consistent with cutting
agents. Id. at 94-[9]5. The officers also found a razor blade with
white powder on it, which is consistent with the packaging of small
quantities of drugs. Id. at 95. They also found inositol powder,
baking soda, acetone, vinyl gloves and a respirator, which was
consistent with trying to increase the quantity of drugs for sale.
Id. at 97.
Officers also searched bags of garbage on the apartment’s back
deck and found hundreds of sandwich baggies with both [corners]
cut off. Id. at 98. They also found vacuum seal bags consistent
with the transport of large quantities of drugs. Id. at 99. In a
bedroom that did not appear to be utilized, the officers found a
hydraulic press. Id.[] Further, the officers found a prescription
bottle for Appellant in the bathroom’s medicine cabinet, and four
pieces of mail addressed to Appellant at that address, including a
Time Warner cable bill. Id. at 100. On the back of one envelope
in the apartment, the officers found notations consistent with an
owe sheet. Id. at 101; Exhibit 55. After unscrewing a piece of
trim beneath the bathroom sink, [Lieutenant] Nolan uncovered
three handguns wrapped in a T-shirt and a knotted baggie
containing a large amount of loose ammunition. Id. at 104. There
was also another plastic bag [containing] a large number of other
suspected bags of cocaine and heroin. Id. at 104-[0]5.
The officers determined that one of the firearms had been
reported stolen “a few months prior” in a burglary. Id. at 105-
[0]6. Some of the baggies under the sink contained non-
controlled substances; however, 33.82 grams of heroin was
recovered there as well. Id. at 106-[0]7. They also recovered
113.48 grams of crack cocaine and 615 grams of powder cocaine.
Id. at 107. [Lieutenant] Nolan characterized the quantity of drugs
as indicative of dealing, not using, and opined that the street value
of all the cocaine (760 grams) was $76,000.00. Id. at 108. The
street value of all of the heroin recovered (43 grams) was
$8[,]000.00. Id.[4]
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4 Appellant notes that,
Lieutenant Nolan testified that the total weight of the heroin in the
apartment was 43 grams, not 93 grams. Even the total heroin
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[Lieutenant] Nolan testified that, when [Sergeant] Chodubski was
speaking with Appellant after the arrest, [Lieutenant] Nolan
walked into the interview room. Id. at 112. Appellant looked up
at him and said, “Good job, Mike, good fucking job.” Id.
Appellant then put his head down and shook his head. Id.
Appellant also told the officers that he had sent a brick of cocaine
and 100 grams of heroin to Erie and that it arrived two days before
he got to Erie. Id. at 113. He said he hid three guns, although
someone else had brought them to the apartment. Id.
The assistant district attorney asked the [lieutenant] if Appellant
made any proposals to them about wanting to work for the Erie
Police Department. Id. at 114. According to [Lieutenant] Nolan,
Appellant said that he would help them get some “bigger fish” but
he could not go to the county prison. Id. at 114. [Lieutenant]
Nolan explained to the jury that Appellant did not want to be
charged at that time because he would go to the county prison on
a parole violation and people would learn that he had been
arrested. Id. at 114. Appellant’s counsel asked for a sidebar, due
to [Lieutenant] Nolan’s reference to Appellant’s parole status. Id.
at 115. Counsel asked for a mistrial due to the prejudicial
reference to Appellant’s criminal history. Id. After much back
and forth between the parties, the trial court decided to deny the
request for a mistrial but … tell the jury to disregard any of the
statement Appellant made to [Lieutenant] Nolan in the interview
room that would have given any indication that the men knew
____________________________________________
weight calculated from the September 15, 2017 [Pennsylvania
State Police] Lab Report was 44.07 grams. Nevertheless, the
sentencing sheets prepared in Appellant’s case provided
guidelines for possession with the intent to deliver heroin between
50-100 grams, specifically, 93. This resulted in an [Offense
Gravity Score (OGS)] of 10, rather than 8[,] for possession with
[the] intent to deliver (heroin) and an invalidly inflated OGS for
conspiracy to deliver heroin as well. However, this claim to the
calculation was not raised by trial counsel at [the] time of
sentencing or in a post-sentence motion.
Appellant’s Brief at 48 n.2 (internal citations omitted). We agree that
Appellant has waived this claim, as whether the court used an incorrect
offense gravity score is a challenge to the discretionary aspects of a sentence.
See Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012).
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each other. Id. at 125. The [c]ourt then gave an instruction. Id.
at 127.
On cross-examination, [Lieutenant] Nolan testified that he had no
evidence Appellant actually used Western Union when he was
seated at the terminal. Id. at 139. [Lieutenant] Nolan also
testified that Appellant had keys on his key ring for both the
exterior and interior doors of the second floor apartment. Id. at
144. [Lieutenant] Nolan admitted that the pieces of mail found in
the apartment for Appellant were from 2015[,] and two others
were from March 24 and 28 of 2016. Id. at 150. Further, the
date on the pill bottle was August 25, 2014. Id. at 151.
[Lieutenant] Nolan reiterated that no controlled buys were
conducted with Appellant during the investigation. Id. at 155.
[Lieutenant] Nolan did testify, however, that they did some
controlled buys with a person named Dee during the course of the
investigation. Id. at 159. The parties stipulated that the three
handguns were stolen, and then the Commonwealth rested. Id.
at 171-[7]2.
The defense called Taleshia Johnson. Ms. Johnson testified that
she lived at 1150 East 20th Street, in Erie, Pennsylvania[,] in May
of 2016[,] and was eight and one-half months pregnant with
Appellant’s child at the time. Id. at 174. She had planned for
Appellant to attend her baby shower on May 21, 2016. Id. at 175.
Appellant came into town that week and stayed with her on two
nights. Id. at 178. He had a key to her residence. Id. at 178.
She recalled him staying with her on the night prior to his arrest.
Id. at 179.
After deliberation, the jury convicted both men of all counts. N.T.
Trial, 8/16/17, at 46-51. The [c]ourt excused the jury and then
found both men guilty of persons not to possess. Id. at 54-[5]5.
On September 29, 2017, the trial court sentenced Appellant to an
aggregate sentence of twenty-seven and one-half to fifty-five
years’ imprisonment. Three days after sentencing, Appellant’s
privately retained attorney filed a petition to withdraw. On
October 31, 2017, the trial court granted counsel’s request to
withdraw. Trial counsel never filed a direct appeal despite
acknowledging in his petition to withdraw that Appellant desired
an appeal.
A flurry of docket activity occurred thereafter, culminating in
Appellant[’s] filing a timely first [Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546,] petition, which was docketed
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by the Clerk of Courts on November 20, 2017. Therein, Appellant
sought the reinstatement of his direct appeal rights and the
appointment of counsel. By [o]rder dated December 5, 2017, the
PCRA court reinstated Appellant’s direct appeal rights, but denied
Appellant’s request for appointment of counsel until Appellant filed
the necessary documentation establishing his eligibility.
Appellant filed a timely pro se [n]otice of [a]ppeal with the
accompanying financial information establishing his indigenc[e].
Id. at 44. The [c]ourt did not appoint counsel, but directed that
Appellant could proceed [in forma pauperis] and must file a
[c]oncise [s]tatement within 21 days. Appellant filed a pro se
[c]oncise [s]tatement, and the trial court filed an opinion.
On May 29, 2018, the Superior Court entered an [o]rder
acknowledging that Appellant had requested counsel, the trial
court had previously permitted counsel to withdraw, and the trial
court had not appointed counsel believing it lacked jurisdiction.
The Superior Court remanded the record for a Grazier[5] hearing
and retained jurisdiction. By [o]rder dated July 3, 2018, the trial
court appointed the Public Defender’s Office, and the undersigned
entered her appearance in the Superior Court.
The undersigned filed a Petition for Continued Remand to File
Counseled Concise Statement and Preparation of Amended
[Pa.R.A.P.] 1925(a) Opinion, which the Superior Court granted.
Appellant filed this counseled [c]oncise [s]tatement on August 21,
2018, and the trial court ordered the transmission of the record
without filing a further opinion.
Appellant’s Brief at 11-26 (some internal citations omitted).
Appellant presents the following issues for our review:
1. Did the Commonwealth present insufficient evidence to sustain
Appellant’s conviction for receiving stolen property where the
evidence does not establish the element that Appellant knew the
guns were stolen or believed they were probably stolen?
2. Did the trial court commit an abuse of discretion when it denied
Appellant’s request for a mistrial as the Commonwealth’s witness
made reference to Appellant[’s] being on parole and where the
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5 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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language of the trial court’s instruction did not adequately address
or cure the prejudice?
3. Did the trial court commit an abuse of discretion when it
determined that Appellant’s cross-examination of [Sergeant]
Chodubski opened the door to the previously excluded out-of-
court statements of Ashley Dumas?
4. Did the trial court impose illegal sentences for simple
possession at Counts Five and Six where these convictions merged
with the sentences for possession with the intent to deliver at
Counts Two and Three of the information?
Appellant’s Brief at 10 (unnecessary capitalization omitted).
Before we delve into Appellant’s issues, we address the trial court’s
failure to file an amended Rule 1925(a) opinion. “The Rules of Appellate
Procedure make the filing of a 1925(a) opinion mandatory…. The purpose of
this rule is to provide the appellate court with a statement of reasons for the
order so entered in order to permit effective and meaningful review of the
lower court decisions.” Commonwealth v. Hood, 872 A.2d 175, 178 (Pa.
Super. 2005) (citations omitted). Moreover, “[o]rdinarily, the remedy for non-
compliance with [Rule] 1925(a) is a remand to the trial court with directions
that an opinion be prepared and returned to the appellate court.” Id. (citation
omitted). Nevertheless, this Court has stated that “the lack of a Rule 1925(a)
opinion is not always fatal to our review, because we can look to the record
to ascertain the reasons for the order.” Id. (citation omitted). Further, this
Court has declined to remand for the preparation of a Rule 1925(a) opinion
where the issue on appeal raises a question of law because, “in deciding an
issue of law, an appellate court need not defer to the conclusions of the trial
court.” Cooke v. Equitable Life Assur. Soc. of U.S., 723 A.2d 723, 727
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(Pa. Super. 1999) (declining to remand for the preparation of a Rule 1925(a)
opinion addressing a contract interpretation issue because “[t]he reasoning of
the trial court is not crucial to our determination of contract interpretation”);
see also Commonwealth v. Haughwout, 837 A.2d 480, 487 n.11 (Pa.
Super. 2003) (“We note that the trial court never issued a specific ruling or
opinion addressing Haughwout’s constitutional claims. However, in deciding
issues of law, an appellate court need not defer to the conclusions of the trial
court. Accordingly, the lack of a trial court opinion in the instant case does
not hamper our review.”) (citation omitted).
Here, Appellant raises claims challenging the sufficiency of the evidence,
the denial of his request for a mistrial, the admissibility of certain evidence,
and the legality of his sentence. The trial court’s reasoning for denying
Appellant’s request for a mistrial and allowing certain evidence to be admitted
at trial are apparent from the trial transcript. Further, sufficiency and legality
of sentencing claims constitute questions of law, for which this Court does not
need to defer to the conclusions of the trial court. See Commonwealth v.
Fennell, 105 A.3d 13, 15 (Pa. Super. 2014) (“Issues relating to the legality
of a sentence are questions of law[.]”) (citation omitted); Commonwealth
v. Teems, 74 A.3d 142, 144 (Pa. Super. 2013) (“A challenge to the sufficiency
of the evidence is a question of law, subject to plenary review.”) (citation
omitted). Consequently, the trial court’s failure to prepare an amended Rule
1925(a) opinion does not inhibit our review, and we therefore proceed to the
merits of Appellant’s arguments.
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Issue 1
In Appellant’s first issue, he asserts that “[t]he Commonwealth
presented insufficient evidence to sustain [his] conviction for receiving stolen
property where the evidence does not establish as a matter of law that
Appellant knew the guns were stolen or believed they were probably stolen.”
Appellant’s Brief at 28 (emphasis omitted). He therefore asks us to vacate
his judgment of sentence for this offense. Id. at 34.
We apply the following standard of review to sufficiency claims:
A challenge to the sufficiency of the evidence is a question of law,
subject to plenary review. When reviewing a sufficiency of the
evidence claim, the appellate court must review all of the evidence
and all reasonable inferences drawn therefrom in the light most
favorable to the Commonwealth, as the verdict winner. Evidence
will be deemed to support the verdict when it establishes each
element of the crime charged and the commission thereof by the
accused, beyond a reasonable doubt. The Commonwealth need
not preclude every possibility of innocence or establish the
defendant’s guilt to a mathematical certainty. Finally, the trier of
fact while passing upon the credibility of witnesses and the weight
of the evidence produced, is free to believe all, part or none of the
evidence.
Teems, 74 A.3d at 144-45 (citation omitted).
Receiving stolen property is statutorily defined as follows:
(a) Offense defined.--A person is guilty of theft if he
intentionally receives, retains, or disposes of movable property of
another knowing that it has been stolen, or believing that it has
probably been stolen, unless the property is received, retained, or
disposed with intent to restore it to the owner.
(b) Definition.--As used in this section the word “receiving”
means acquiring possession, control or title, or lending on the
security of the property.
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18 Pa.C.S. § 3925. “Based upon this definition, this Court has identified the
elements of the crime … to be: (1) intentionally acquiring possession of the
movable property of another; (2) with knowledge or belief that it was probably
stolen; and (3) the intent to deprive permanently.” Commonwealth v.
Robinson, 128 A.3d 261, 265 (Pa. Super. 2015) (en banc) (citations
omitted).
Here, Appellant solely contests whether the Commonwealth established
the second element, i.e., that he had “guilty knowledge of the crime.”
Appellant’s Brief at 28-29. He directs us to Robinson, wherein we explained:
Importantly, the Legislature expressly defined the required mental
state [for receiving stolen property] as “knowing” or “believing.”
Because the Legislature excluded mental states such as
recklessness, negligence, or naïveté about the stolen status of the
property, those mental states are insufficient. This reasoning is
consistent with the common recognition that penal statutes are to
be strictly construed. Thus, courts may not hold that a less
culpable mental state satisfies a criminal statute where the statute
demands proof of the more culpable mental state.
Robinson, 128 A.3d at 265 (internal citations omitted).
Moreover, we observe that,
[a] fact-finder may infer guilty knowledge that property was stolen
based upon the recency of the theft, the place or manner of
possession, alterations to the property indicative of theft, the
defendant’s conduct or statements at the time of arrest (including
attempts to flee apprehension), a false explanation for the
possession, the location of the theft in comparison to where the
defendant gained possession, the value of the property compared
to the price paid for it, or any other evidence connecting the
defendant to the crime.
In Interest of P.S., 158 A.3d 643, 651 (Pa. Super. 2017) (citing Robinson,
128 A.3d at 268)). Significantly, possession of stolen property, by itself, is
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not sufficient to prove guilty knowledge. Robinson, 128 A.3d at 269
(citations omitted).
In the case sub judice, the Commonwealth argues that “the nature of
the stolen items and the circumstances in which the items were found must
be considered.” Commonwealth’s Brief at 3. It contends that “[f]irearms,
while not overly difficult to obtain, are a regulated item that one typically does
not obtain in a casual way. Beyond the inherent nature of firearms, here, the
firearms were found in a residence from which Appellant was conducting the
sale of illegal drugs.” Id. It points to the testimony of Lieutenant Nolan, who
described the high value of firearms in the drug trade and shared that “drug
dealers like to have guns taken in as [a] trade for drugs. We see it all the
time and most of the guns we [have] recovered from drug dealers are stolen.”
Commonwealth’s Brief at 4 (quoting Lieutenant Nolan’s testimony at N.T.
Trial, 8/15/2017, at 109-10). The Commonwealth argues that this
“information lends context to the surrounding circumstances the jury
considered in this case[,]” and “the fact that two stolen firearms and two other
firearms were recovered also tends to show that [Lieutenant] Nolan’s
experience specifically applied in this case, as multiple stolen firearms lends
credence to the argument that the firearms are used as currency.” Id. at 5.
The Commonwealth also adds that “the jury … had the ability to consider the
explanation given by … Appellant of how the firearms came into his
possession.” Id. It recounts that “[Sergeant] Chodubski testified that
Appellant explained he obtained the firearms from a female acquaintance’s
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boyfriend who had been arrested. Specifically, [Appellant] indicated to
[Sergeant] Chodubski that the female told him she didn’t want them anymore
and that she gave the firearms to [Appellant] to hide.” Id. (citation omitted).
The Commonwealth says “[i]t is possible the jury wholly rejected the
explanation Appellant gave to [Sergeant Chodubski] as not credible and thus
considered it as a factor tending to point to guilt. Alternatively, the fact that
… Appellant was given the firearms with the instruction to hide them could
also have been considered as indicative of guilt.” Id. at 5-6.
Appellant, on the other hand, argues that “[t]he parties stipulated that
the firearms were stolen, but the only specific testimony about any of the
firearms came from [Lieutenant] Nolan that one of the firearms had been
reported stolen ‘a few months prior’ in a burglary.” Appellant’s Brief at 32
(citations omitted). Appellant reasons that, “[a]s one gun was stolen a few
months before its discovery and the Commonwealth presented no evidence as
to when the others were stolen, the Commonwealth cannot establish recency
as a matter of law.” Id. (citation omitted). Further, he discerns that “there
is no evidence of record that connects [Appellant] to the actual thefts of the
firearms. There is no evidence as to when [Appellant] gained possession of
the firearm[s]. There is no evidence that anyone altered the weapon[s] or
marred/mutilated the serial number[s].” Id. at 33. He also insists that,
“[w]hile the Commonwealth presented testimony that drug dealing is violent
and that firearms are utilized in the drug trade, this testimony does not offer
any insight into what Appellant knew about the weapons. It also does not
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prove that those charged with drug crimes only possess stolen weapons or
believe their weapons were probably stolen.” Id. (citation omitted). Finally,
Appellant maintains that his explanation for how the guns came into his
possession — that a female whose boyfriend had been arrested gave them to
him — “does not suggest guilty knowledge of the firearms’ stolen status.
Rather, it suggests that the woman was not comfortable with having the guns
in her home, wanted to be rid of them, and did not want her boyfriend to get
them back. At the very worst, it suggests only that Appellant knew her
boyfriend should not have firearms in his possession.” Id. at 34.
We agree with Appellant that the evidence was insufficient to prove that
he believed that the firearms had probably been stolen. That Lieutenant Nolan
testified that most of the guns recovered from drug dealers are stolen does
not demonstrate that Appellant believed his firearms were probably stolen.
As Appellant posits, “the Commonwealth cannot satisfy its burden of proving
a particular individual’s mens rea with generalizations about the drug trade.”
Id. Furthermore, Sergeant Chodubski’s testimony that “[Appellant] stated
that the handguns came from a female, that her boyfriend was recently
arrested on drug charges and she didn’t want them anymore, so she gave
them to him to hide” does not establish, beyond a reasonable doubt, that
Appellant believed they were probably stolen. N.T. Trial, 8/15/2017, at 27.
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Accordingly, we reverse Appellant’s conviction for receiving stolen property
and vacate his judgment of sentence for that offense.6
Issue 2
In Appellant’s second issue, he contends that “[t]he trial court
committed an abuse of discretion when it denied Appellant’s request for a
mistrial as the Commonwealth’s witness made reference to Appellant[’s] being
on parole and where the language of the trial court’s instruction did not
adequately address or cure the prejudice.” Appellant’s Brief at 34-35
(emphasis omitted). For such claims, we apply the following standard of
review:
The trial court is in the best position to assess the effect of an
allegedly prejudicial statement on the jury, and as such, the grant
or denial of a mistrial will not be overturned absent an abuse of
discretion. A mistrial may be granted only where the incident
upon which the motion is based is of such a nature that its
unavoidable effect is to deprive the defendant of a fair trial by
preventing the jury from weighing and rendering a true verdict.
Likewise, a mistrial is not necessary where cautionary instructions
are adequate to overcome any possible prejudice.
Commonwealth v. Parker, 957 A.2d 311, 319 (Pa. Super. 2008) (citation
omitted). Further, we acknowledge:
____________________________________________
6 Appellant received a sentence of 33-66 months’ incarceration for this
offense, which was to run concurrently with his sentence of 60-120 months’
incarceration for persons not to possess a firearm. See Appellant’s Brief at 7-
8 (setting forth the trial court’s sentencing order). Because we can vacate
this sentence without upsetting the overall sentencing scheme, we need not
remand. See Commonwealth v. Thur, 906 A.2d 552, 569-70 (Pa. Super.
2006) (determining that the trial court’s overall sentencing scheme was not
disturbed and no remand was necessary where the appellant’s aggregate
sentence was not affected by vacating his DUI sentence).
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A mistrial is warranted when a juror could reasonably infer from
the facts presented that the accused had engaged in prior criminal
activity. When the statement at issue relates to a reference to
past criminal behavior, [t]he nature of the reference and whether
the remark was intentionally elicited by the Commonwealth are
considerations relevant to the determination of whether a mistrial
is required. A singular, passing reference to prior criminal activity
is usually not sufficient to show that the trial court abused its
discretion in denying the defendant’s motion for a mistrial. When
the trial court provides cautionary instructions to the jury in the
event the defense raises a motion for mistrial, [t]he law presumes
that the jury will follow the instructions of the court.
Id. (internal citations and quotation marks omitted).
Here, Appellant complains of the following testimony given by
Lieutenant Nolan:
[The Commonwealth:] Okay. Now, real quick here, Sergeant
Chodubski testified that [Appellant] was transported to the Erie
Police Department where Sergeant Chodubski began an interview
with [Appellant], right?
[Lieutenant Nolan:] Yes.
[The Commonwealth:] And you came into that interview halfway
through, right?
[Lieutenant Nolan:] Yes.
[The Commonwealth:] Just … tell me what happened when you
walked into that room, Lieutenant Nolan?
[Lieutenant Nolan:] I walked – [Appellant] was seated in the far
corner of the room from the door, so when you walk in, he’s the
first one I see. So I walked into the room and I saw him and he
was sitting. He looked up at me and … he said, “Good job, Mike,
good fucking job,” and he kind of put his head down and shook
his head.
[The Commonwealth:] Now, he was freely talking to you, correct?
[Lieutenant Nolan:] Yes.
[The Commonwealth:] From that point on?
[Lieutenant Nolan:] Yes.
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[The Commonwealth:] Was there a reference made to the drugs
that were recovered from this house?
[Lieutenant Nolan:] Yes.
[The Commonwealth:] Okay. If you could tell us about that part
of your conversation with [Appellant]?
[Lieutenant Nolan:] Well, Sergeant Chodubski and Triana were
talking to him. I was doing something else. Triana called me,
said, “Hey, he’s starting to talk to us, do you want to come down
and help?” So I did, that’s when my initial encounter with him
occurred there. They had not told him yet what we had found.
And one of the detectives, I heard him ask him … how much did
you bring here when you came? Apparently, they were that far
along in the conversation. How much did you bring here? And
his answer was, how much did you find? And I looked at him,
[and] said, we found it, we got it all, we found it. And so I didn’t
tell him how much, but I told him we found it. And then he kind
of … let out a big sigh, then he … explained what he said.
Can I refer to my report to get that?
[The Commonwealth:] Absolutely.
[Lieutenant Nolan:] Okay. Well, I quoted him here. He said, “Oh,
you got it all?” That was a question he asked me. And then he
said that he had sent a brick of cocaine and a hundred grams of
heroin to Erie and that it arrived two days before he got here. He
didn’t elaborate on how it got here or who brought it here. And
he also explained that he hid the three guns. I didn’t note that he
said where, but he said he hid the three guns and that someone
else, though, had brought them to the apartment[,] not him.
[The Commonwealth:] Okay. Now, lastly, it’s also common that[,]
from time to time[,] you do use people that you think may be
beneficial for you to further investigations, correct?
[Lieutenant Nolan:] Yes, we do.
[The Commonwealth:] Did [Appellant] make any proposals to you
about wanting to work for the Erie Police Department?
[Lieutenant Nolan:] Yes, he did.
[The Commonwealth:] What did he say in that respect?
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[Lieutenant Nolan:] Well, he told us that he’d be willing to help us
get some bigger fish, and that. But he said he couldn’t go to the
county prison. So what that means is he can’t charge me now,
because if I go to the county prison, I’m on parole, and I’ll be
locked up in there or … everyone is going to know that I was –
that’s what it was. Everyone is going to know that I was locked
up.
[Appellant’s counsel:] Your Honor, excuse me. May we have a
sidebar?
N.T. Trial, 8/15/2017, at 111-14.
At that point, Appellant’s counsel requested a mistrial, explaining that
Lieutenant Nolan’s comment “implies clearly that [Appellant] has a criminal
history which is not otherwise admissible and is prejudicial.” Id. at 115.
However, Appellant’s co-defendant — Mr. Smith — did not join in the request
for a mistrial, because Mr. Smith believed that some of Appellant’s
conversation with the detectives helped his defense. Id. at 119, 121. The
trial court and the parties then debated if the trial court should grant a mistrial
or give a curative instruction, during which time Appellant did not clearly
object to the trial court’s giving a curative instruction. See id. at 119 (“I just
don’t think there’s any way of curing that with an instruction.”); id. at 122
(“It’s just glaringly obvious. I just don’t know. It’s brutal.”); id. at 124 (“From
my perspective, Your Honor, I just don’t know how … I recover from that.”).
Upon discussing the matter with the parties, the trial court conveyed that it
was “going to deny the motion for [a] mistrial because it was a comment in
passing, and … [the court would] tell the jury to disregard any of the
conversation that Lieutenant Nolan had with [Appellant] when he came into
the interrogation room, up and through the point that he would have given
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any indication there that they somehow knew each other….” Id. at 125. Mr.
Smith’s counsel immediately sought clarification as to whether he is “allowed
to get into any of the statements that [Appellant] made regarding his taking
ownership of those items down in the residence[.]” Id. at 126. The trial court
directed that Mr. Smith was allowed to do that, but he could not get into any
prior relationship between Lieutenant Nolan and Appellant. Id. Further, the
trial court indicated that Mr. Smith’s counsel would not have to re-elicit this
testimony from Lieutenant Nolan, but instead could rely on the initial
testimony Lieutenant Nolan gave. Id. at 126-27. Appellant’s counsel did not
seek clarification or object to the phrasing of the trial court’s proposed curative
instruction. See id. The trial court then reiterated its ruling, stating its finding
that “this was just a comment in passing and not an intentional act by the
Commonwealth to frustrate the case or prejudice [Appellant].” Id. at 127.
The trial court subsequently gave the jury the following instruction:
[The court:] I’m going to give you an instruction with regard to
Lieutenant Nolan’s testimony that he had when he entered the
interrogation room with [Appellant] up until the point indicating
that they had some kind of prior relationship is to be disregarded
by you, fully and completely. And it’s not evidence in this case
under any circumstances, nor can it be used by you during your
deliberations in this case. Does everybody understand that?
(Jurors nod affirmatively.)
[The court:] Because those statements, that will be totally
disregarded by you, all right? Continue with your examination of
Lieutenant Nolan.
Id. at 127-28.
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Appellant now argues that, although the Commonwealth did not appear
to have intentionally elicited the at-issue remark from Lieutenant Nolan,
Lieutenant Nolan “offered a gratuitous and unnecessary explanation including
the parole status. Given [Lieutenant] Nolan’s twenty-five years of experience
in the Erie Police Department, … this remark evidenced a strong desire to
prejudice Appellant in the eyes of the jury.” Appellant’s Brief at 39 (citations
omitted). Moreover, Appellant says the trial court’s curative instruction did
not cure the prejudice because the trial court “did not clearly instruct the jury
to not consider Appellant’s parole status.” Id. at 40. According to Appellant,
“[t]he jury could have interpreted [the instruction] to mean that they should
not consider the ‘Good job, Mike’ statement and nothing more.” Id. Appellant
also advances that, “[e]ven if the instruction could have been interpreted to
include the conversation up through [Lieutenant] Nolan’s discussion of
Appellant’s parole status, the instruction to fully and completely disregard the
evidence ran contrary to the trial court’s decision to allow the Commonwealth
and Mr. Smith’s attorney to make continued reference to the contents of this
conversation during closings, while allowing Appellant’s counsel to argue the
evidence was stricken.” Id. (citation omitted).
We discern no abuse of discretion. As the Commonwealth aptly
reasoned:
[T]he reference to Appellant’s prior criminal record and parolee
status was unintentional and innocuous. The specific nature of …
Appellant’s criminal history was not discussed, and the reference
was made in passing during questioning about a conversation
between Appellant and [Lieutenant] Nolan. Additionally, it was
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not additional commentary [Lieutenant] Nolan gave. Rather, he
was merely repeating what Appellant said to him.
Appellant also argues that the curative instruction given was
insufficient to cure the prejudice. … While general, the instruction
was not vague. Specifically, the [c]ourt instructed the jury not to
consider the conversation between Appellant and … [Lieutenant]
Nolan until and throughout the portion indicating they had a prior
relationship. Rather than specifically call additional attention to
the passing reference of Appellant’s parolee status, the [c]ourt
framed the instruction generally in an abundance of caution. This
was not a decision made flippantly or in an off[-]handed manner.
Instead[,] the nature of the instruction and what to instruct on
was discussed with all parties prior to the jury[’s] entering the
courtroom. Moreover, trial counsel chose not to have the
instruction clarified or expanded upon signifying the acceptance of
the nature of the instruction as sufficient.
Commonwealth’s Brief at 7-8 (internal citation omitted).
We find these points persuasive. Initially, we determine that the trial
court did not abuse its discretion in finding that Lieutenant Nolan’s remark did
not warrant a mistrial, as it was made in passing and Lieutenant Nolan was
repeating what Appellant had told him. In addition, to the extent Appellant
complains of the specific curative instruction presented by the trial court, we
deem that argument waived as Appellant’s counsel did not clearly object to
the trial court’s providing a curative instruction in the first place, let alone
challenge the particular instruction given or seek clarification regarding it.
See Commonwealth v. Page, 965 A.2d 1212, 1222 (Pa. Super. 2009) (“No
objection was made concerning the adequacy of the cautionary instruction.
Where an objection is made, then a curative instruction issued, [the]
appellant’s only challenge is to the adequacy of the curative instruction.
Because Appellant did not object to the instruction, any claim in relation to its
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adequacy is waived.”) (citation omitted). Accordingly, the trial court did not
abuse its discretion in denying Appellant’s request for a mistrial.
Issue 3
In Appellant’s third issue, he argues that “[t]he trial court committed an
abuse of discretion when it determined that Appellant’s cross-examination of
[Sergeant] Chodubski opened the door to the previously excluded out-of-court
statements of Ashley Dumas.” Appellant’s Brief at 42 (emphasis omitted).
Appellant explains that “the Commonwealth [had] filed a pre-trial request to
introduce the officers’ personal observations of the interaction between
Appellant and Ms. Dumas on May 19, 2016…. [T]he Commonwealth did not
seek to introduce any out-of-court statements made by Ms. Dumas about what
happened in the car with Appellant or from whom she received the suspected
heroin.” Id. at 43. Appellant says that the Commonwealth followed these
parameters during its direct examination of Sergeant Chodubski. Id (citation
omitted). Yet, on cross-examination, Appellant “inquired about the
preparation of the search warrant, whether it occurred before or after their
station interview with Dumas, whether it occurred before or after their video-
recorded statement with Dumas, and whether they received the signed
warrant before or after the video-recorded statement with Dumas.” Id. at
43-44 (citation omitted). According to Appellant, based on his cross-
examination, the Commonwealth consequently “took the position that
Appellant had so questioned the officer’s credibility as to whether Dumas
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received drugs from Appellant that Appellant had opened the door to re-direct
beyond the scope of the prior agreement.” Id. at 44. As a result, Appellant
explains the following occurred:
[T]he Commonwealth’s attorney clarified that [Sergeant]
Chodubski should be permitted to testify as to why he interviewed
[Dumas], why he preserved her statement, that Dumas had died,
and that “the white female said that she got the heroin from the
person in the vehicle, not going to say who that person is, she’s
[sic] not going to say she identified [Appellant].” [N.T. Trial,
8/15/2017], at 4-5. The trial court agreed and stated:
[E]ven though that’s right on the edge — that’s in the
hearsay realm, it explains why the police officer did what he
did in taking her to the police station, doing the affidavit,
and Lieutenant Nolan[’s] taking routine [sic] that was
eventually going to execute the search warrant. And I did
that because during the course of cross-examination by
defense counsel, I believe that you asked questions that
really challenged the credibility of [Sergeant Chodubski] and
the value of whatever information that he received from the
white female, who is no longer available due to her untimely
death. And what is left in my impression immediately is that
[Sergeant Chodubski] had absolutely no basis for what he
did in going back to the station and obtaining a search
warrant and the affidavit attached to the search warrant. It
… really opened the door. In fact, it surprised me that you’re
doing what you’re doing because I think it opened the door
for you to rehabilitate the police officer to explain to the jury
why he took the procedures that he did. … And he did, you
know, obtain heroin. She told him at the time that she
bought it from [Appellant]. And you’re not getting into that
area but — identifying him.
Id. at 5-6.
On re-direct, the Commonwealth introduced the search warrant
and affidavit into evidence, discussed [Sergeant] Chodubski’s
transport of Dumas to the station, discussed his procedure for
interviewing her when they arrived, had the officer explain that
they record a statement for use at future trial, and that Dumas
had died from a heroin overdose after the arrest. Id. at 24-25.
The Commonwealth also showed [Sergeant] Chodubski an exhibit,
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which he identified as “the five grams of heroin that she purchased
that day from the car.” Id. at 26. [Sergeant] Chodubski further
testified that … the baggie contained 5.07 grams of heroin. Id.
Appellant’s Brief at 44-46.
Appellant now argues that the trial court abused its discretion in allowing
this testimony. He concedes that permitting Sergeant Chodubski to testify
about “his transport of Dumas to the station and his procedure for interviewing
and recording individuals was [a] fair response to the challenge to his
credibility[,]” and that “reference on re-direct to Dumas’[s] death would
eliminate any question in the minds of the jury as to why the Commonwealth
did not call Dumas to corroborate his recollection.” Id. at 47. However,
Appellant contends that “Dumas’[s] statement to police about where she
received the drugs does nothing to refute Appellant’s challenge to [Sergeant]
Chodubski’s recollection of the timing of the warrant.” Id. Instead, he says
that “[t]he admission of this hearsay statement merely allowed the
Commonwealth to directly tie Appellant to the delivery, without affording
Appellant the ability to confront the source of this information.” Id. Appellant
adds that his “counsel did not attack Dumas’[s] credibility. Frankly, Dumas’[s]
credibility was never at issue, because the entirety of the direct and cross[-
]examination of [Sergeant] Chodubski related to his actions and his
observations.” Id. at 46.
We apply the following standard of review:
The admissibility of evidence is solely within the discretion of the
trial court and will be reversed only if the trial court has abused
its discretion. An abuse of discretion is not merely an error of
judgment, but is rather the overriding or misapplication of the law,
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or the exercise of judgment that is manifestly unreasonable, or
the result of bias, prejudice, ill-will or partiality, as shown by the
evidence of record.
Commonwealth v. Nypaver, 69 A.3d 708, 716 (Pa. Super. 2013) (citations
omitted).
Both parties agree that the statements of Ashley Dumas were
inadmissible hearsay. See Appellant’s Brief at 42-43; Commonwealth’s Brief
at 9. Notwithstanding, “[a] litigant opens the door to inadmissible evidence
by presenting proof that creates a false impression refuted by the otherwise
prohibited evidence.” Nypaver, 69 A.3d at 716 (citations omitted). In
addition to attacking the timing of the warrant during his cross-examination,
Appellant suggested that Sergeant Chodubski lacked probable cause to
execute the warrant. See N.T. Trial, 8/14/2017, at 105 (asking if Dumas’s
vehicle was observed by the police prior to Sergeant Chodubski’s seeing
Dumas enter Appellant’s vehicle); id. at 106 (noting that it was not a
controlled purchase and that the police believed the heroin found on Dumas
came from Appellant); id. at 107-08 (inquiring about who wrote the search
warrant, where it was done, and how Dumas’s statements were
memorialized); id. at 109-11 (asking how Sergeant Chodubski got the warrant
signed by a judge and who was in physical possession of the warrant when
investigators entered the apartment at 1055 West 30 th Street); id. at 116
(questioning, again, if Sergeant Chodubski had interviewed Dumas before
applying for and obtaining the search warrant). As the Commonwealth
discerns, “[t]hrough cross examination, Appellant gave the impression that
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something problematic was occurring with respect to the search warrant, Ms.
Dumas’s cooperation and/or statement[,] and how [Sergeant] Chodubski
obtained and/or used that information. Such an impression opens the door
with respect to otherwise inadmissible hearsay in order to correct that
implication.” Commonwealth’s Brief at 11; see also id. at 11-12 (“During
cross-examination, Appellant called into question the basis for the search
warrant, which was in part Dumas’s statement that she received heroin from
the other occupant of the vehicle she got out of. Presenting that information
for the jury is the only thing that can eliminate the impression that the search
warrant was insufficient or [Sergeant] Chodubski conducted himself
improperly.”). We agree with the Commonwealth, and conclude that the trial
court did not abuse its discretion by allowing testimony that Dumas had
indicated that she purchased the five grams of heroin from the person in the
vehicle.
Issue 4
Finally, Appellant states that “[t]he trial court imposed … illegal
sentences for possession of a controlled substance where Appellant was
convicted for possession with the intent to deliver the same substances.”
Appellant’s Brief at 47 (emphasis omitted). He explains that, “the
Commonwealth charged Appellant at Count Two with possession with intent
to deliver (93 grams of heroin) and at Count Three with possession with intent
to deliver (763 grams of cocaine). At Counts Five and Six, the Commonwealth
charged Appellant with simple possession of the same substances and
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quantities of substances.” Id. at 48 (citations and footnote omitted). Citing
to Commonwealth v. Murphy, 592 A.2d 750 (Pa. Super. 1991), Appellant
maintains that “[t]he trial court should have merged for sentencing purposes
the crimes of possession of controlled substances and possession with intent
to deliver since both charges stemmed from the same act of possession.” Id.
at 753 (citations omitted); see also Appellant’s Brief at 48. He advances that
“[t]he trial court appeared to recognize that these sentences should have
merged, but instead elected to impose concurrent sentences[,]” and asks that
we vacate the concurrent sentences imposed for simple possession at Counts
Five and Six. Id. at 48-49. The Commonwealth agrees. See
Commonwealth’s Brief at 12 (“In review of the relevant case law and the
record, the Commonwealth would agree that Appellant was illegally sentenced
at these counts as Count 5 should have merged with Count 2 and Count 6
should have merged with Count 3.”). Consequently, we vacate the concurrent
sentences imposed for simple possession at Counts 5 and 6. Again, because
we can vacate these sentences without upsetting the overall sentencing
scheme, we need not remand. See Thur, supra.Judgment of sentence for 18 Pa.C.S. § 3925(a) (receiving stolen
property), 35 P.S. § 780-113(a)(16) (possession of a controlled substance -
93 grams of heroin), and 35 P.S. § 780-113(a)(16) (possession of a controlled
substance - 763 grams of cocaine) vacated. Judgment of sentence affirmed
in all other respects. Jurisdiction relinquished.
Judge Ott joins this memorandum.
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Judge Strassburger files a concurring and dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/17/2019
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