Com. v. Rivera, A.

J-A22001-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTONIO JUAN RIVERA :
:
Appellant : No. 2018 MDA 2019
Appeal from the Judgment of Sentence Entered August 2, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0003002-2018
BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED OCTOBER 05, 2020
Antonio Juan Rivera (Appellant) appeals from the judgment of sentence
imposed after a jury convicted him of criminal conspiracy (to commit
possession with intent to deliver a controlled substance).1 We affirm.
The trial court summarized the facts and procedural history as follows:
In April 2018, Detective Michael Vance [(Detective Vance)]
of the Lancaster County Drug Task Force received information
from a confidential informant (“CI”) about a large-scale movement
of heroin from New York and New Jersey to Lancaster County. The
CI explained that on April 29, 2018, a woman, Xiomara Figueroa
[(Figueroa)], would be driving to New Jersey to pick up a large
quantity of heroin. The CI informed Detective Vance of the make,
model, color, and [license] plate number of the vehicle [Figueroa]
would be driving. Although Detective Vance was told the date of
the trip, he did not know the route or time of the trip[;]
surveillance cars were placed at multiple locations along the most
logical routes to and from New Jersey.
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1 See 18 Pa.C.S.A. § 903; 35 P.S. § 780-113(a)(30).
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On April 30, 2018 at around 2:00 [a.m.], Detective Vance
spotted the wanted vehicle with two occupants stopped at a gas
station in Berks County. By pure coincidence, Ms. Figueroa and
her sister, Kiomara Figueroa [(Kiomara)], had stopped to grab
something to eat at the exact same intersection that Detective
Vance himself had chosen for his surveillance. Detective Vance
[eventually conducted a stop and investigatory detention of the
vehicle.] … Vance’s partner, Detective Anthony Lombardo, used
K-9 Officer Bear to sniff the vehicle[,] which revealed a positive
hit. Detective Vance proceeded to search the vehicle and found a
white bag in the back seat of the car[,] which contained 5,000
bags of heroin [mixed with fentanyl]. Ms. Figueroa and [Kiomara]
were then taken back to the police station for questioning.
During the interview, Ms. Figueroa stated she was traveling
back from New Jersey after “picking up something” for
[Appellant]. [Appellant] … sent Ms. Figueroa to New Jersey in a
rental car. The car was rented by [Appellant’s] girlfriend, Haydee
Gomez. [Appellant’s] cousin, Genol Torres [(Torres),] also known
as “Bossy,” brought the car to Ms. Figueroa. Detective Vance
knew [] Torres as a drug dealer because the Lancaster Drug Task
Force had previously participated in the prosecution of [] Torres
for drug dealing prior to the incident at hand.
Ms. Figueroa received the address of the New Jersey
destination through a text message from [Appellant,] and she was
instructed to return the car to the Turkey Hill in Landisville. Ms.
Figueroa said she was not free to diverge from her given travel
path and had received strict instructions from [Appellant] to
maintain her speed, not smoke in the car, or do anything else that
would cause suspicion on her trip. [Appellant] kept tabs on her
through multiple text messages and phone calls throughout the
trip.
As part of this arrangement, Ms. Figueroa was also given
spending money for the trip in the amount of $200 to $300. She
was told there was a black bag in the glove box and that it was to
be exchanged for a white bag in New Jersey. As was the usual
arrangement, once she arrived at the address in New Jersey, a
man unfamiliar to Ms. Figueroa came out to the vehicle, grabbed
the black bag in the glove box and placed a white bag in the
backseat of the vehicle. Ms. Figueroa did not know the contents
of the bag, but she had a suspicion it was drugs. As the field test
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and subsequent lab report showed, the white bag contained
approximately 120 grams of heroin and fentanyl.
As the traffic stop was taking place, Ms. Figueroa texted
[Appellant] to let him know she had been pulled over in the rental
car. After “back to back to back to back” text messages from
[Appellant], he eventually called her while she was being
interviewed by Detective Vance at the police station. Detective
Vance had Ms. Figueroa answer the phone call from [Appellant].
[Appellant] asked Ms. Figueroa, “Did they grab everything?” to
which Ms. Figueroa responded, “Everything.” At which point
[Appellant] hung up abruptly.
At the time of these events, [Appellant] was on federal
parole for conspiracy to defraud the United States government by
selling, importing or manufacturing defaced firearms. On May 2,
2018, [Appellant] was visited by Federal Parole Agent Damien
Mscisz [(Agent Mscisz)] at [Appellant’s] home in Landisville.
During this visit, Agent Mscisz observed a number of [cellular]
phones with [Appellant,] and [Appellant] confirmed they were all
his. At Agent Mscisz’s request, [Appellant] unlocked one phone
[that] was on his person and handed it to Agent Mscisz. Agent
Mscisz looked through the phone and noted seeing “owe sheets”
in the phone’s “Notes” application.[FN] Another Agent aiding in the
visit brought to Agent Mscisz’s attention a large amount of cash,
which prompted Agent Mscisz to contact the Drug Task Force and
Detective Vance.
[FN]IOU or owe sheets are a ledger between drug dealers
to track debts.
As a result of the information gathered about [Appellant],
[he] was arrested and … charged with [] one count of possession
with intent to deliver a controlled substance [(PWID)]; and [] one
count of conspiracy to [commit PWID]. Attorney Michael Marinaro
[(defense counsel)] entered his appearance on June 8, 2018, the
date of [Appellant’s] arraignment. …
On September 19, 2018, [Appellant] filed an omnibus pre-
trial motion [(OPT Motion),] alleging [claims not pertinent to the
instant appeal…. On February 11, 2019, a hearing was held on
the [OPT] Motion[; the trial court granted relief on Appellant’s
suppression of evidence claim, and] denied all other claims. A
trial date was then scheduled for May 22, 2019.
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Prior to the trial, both parties submitted additional motions.
On May 10, 2019, [Appellant] filed a pro se Rule 600 Motion []
(hereinafter “Rule 600 Motion”). The motion alleged [that
Appellant] was being denied his right to a speedy trial. [Defense
counsel] never submitted a formal Rule 600 motion on behalf of
[Appellant,] and no action was taken on [the Rule 600] Motion
prior to trial.
On May 17, 2019, the Commonwealth filed a notice of intent
under Rule of Evidence 404(b) [(Rule 404(b) Motion)], which
outlined their proposed evidence [regarding Appellant’s] prior bad
acts as it related to the history of the case. Immediately preceding
voir dire, [the trial court] ruled on the Motion and granted it only
insofar as to allow Ms. Figueroa to testify that she had [previously]
made similar transactions like the one at issue.
The trial commenced as scheduled on May 22, 2019. During
its case in chief, the Commonwealth presented two expert
witnesses. Detective Vance was qualified without objection as an
expert in the packaging and distribution of heroin in Lancaster
County to testify about this specific investigation. Detective Adam
Weber [(Detective Weber)] was qualified, also without objection,
as an expert in drug packaging and distribution in Lancaster
County to testify about the methods used when performing drug
investigations in general. Part of Detective Vance’s testimony was
to educate the jury about his familiarity with [Appellant] and
others involved in the drug trade related to [] Torres. Detective
Weber’s testimony was [offered] to educate the jury on what
constructive possession could look like in these drug transactions.
The parties also made several stipulations, one of which was that
the State Police lab report determined that the narcotics found in
Ms. Figueroa’s car was approximately 120 grams of heroin with
fentanyl [(hereinafter, “the weight stipulation”)].
After a three-day trial,[2] the jury began its deliberations.
On the verdict slip, the [PWID] count contained a range of weights
that [Appellant] could be found guilty of possessing. The
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2 On the third day of trial, defense counsel, for the first time, requested the
court to allow Appellant to call Torres in his case-in-chief, even though Torres
had not been subpoenaed or listed as a defense witness. The trial court denied
this request.
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conspiracy charge did not list out those weight options.
Ultimately, [Appellant] was found not guilty of the [PWID] charge
but guilty of conspiracy.
Trial Court Opinion, 3/12/20, at 1-6 (unnumbered) (some citations, footnotes
and capitalization omitted; one footnote added).
On August 2, 2019, the trial court sentenced Appellant to serve 6 to 30
years in prison. Appellant filed a timely post-sentence motion, which was
eventually denied by operation of law. Pa.R.Crim.P. 720(B)(3). Appellant
then timely filed a notice of appeal, followed by a court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal.
Appellant presents six issues for our review:
1. Whether the court abused its discretion by allowing Detective
Vance to testify that [Appellant] was a drug associate of []
Torres?
2. Whether the court abused its discretion by precluding
[Appellant] from offering testimony from [] Torres[,] which was
both exculpatory and contrary to evidence presented by the
Commonwealth[,] thereby depriving [Appellant] of due process
and the right to present a complete defense?
3. Whether the court should have addressed the merits of
[Appellant’s] speedy trial motion because trial commenced
after the mechanical run date?
4. Whether the court abused its discretion by permitting the
Commonwealth to offer prior bad acts evidence?
5. Whether the court erroneously permitted the Commonwealth’s
narcotics expert to opine that [Appellant] constructively
possessed the heroin at issue?
6. Whether the court abused its discretion by assigning an
[offense gravity score] of 11 to the conspiracy charge because
[Appellant] was acquitted of PWID and the verdict sheet did
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not allow for the jury to find any quantity of controlled
substance in connection with the conspiracy?
Appellant’s Brief at 10 (issues renumbered, some capitalization omitted). 3
Appellant first argues that the Commonwealth elicited improper
testimony from Detective Vance that Appellant and Torres were known drug
associates. See id. at 10, 29-30, 49-51; see also N.T., 5/23/19, at 213-15.
According to Appellant, “Torres was injected into the case by the
Commonwealth,” over the defense’s timely objection and motion for a mistrial.
Appellant’s Brief at 29.
“Questions concerning the admissibility of evidence are within the sound
discretion of the trial court and we will not reverse a trial court’s decision
concerning admissibility of evidence absent an abuse of the trial court’s
discretion.” Commonwealth v. LeClair, 2020 Pa. Super. 174, at *10 (Pa.
Super. 2020) (citation omitted). “An abuse of discretion is not merely an error
of judgment, but is rather the overriding or misapplication of the law, or the
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3 For Appellant’s first issue, he does not provide a corresponding discussion of
this issue under a separate heading in the argument section of his brief. See
Pa.R.A.P. 2119(a) (requiring the appellant to divide the argument section into
separate sections for each issue set forth in the statement of questions
presented, with distinctive headings for each such section). Rather, he
sporadically addresses the matter in connection with portions of his second
and fifth issues. See Appellant’s Brief at 29-30, 49-51. We will overlook this
defect, but caution counsel in the future. See Commonwealth v. Levy, 83
A.3d 457, 461 n.2 (Pa. Super. 2013) (declining to find waiver where omissions
did not impede review, and citing Pa.R.A.P. 105(a) (providing rules shall be
liberally construed to secure the just, speedy and inexpensive determination
of every matter)).
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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. Antidormi, 84 A.3d 736, 750 (Pa. Super. 2014)
(citations omitted). We also review the denial of a mistrial request for an
abuse of discretion. Commonwealth v. Radecki, 180 A.3d 441, 457 (Pa.
Super. 2018); see also id. (a mistrial “is an extreme remedy that must be
granted only when an incident is of such a nature that its unavoidable effect
is to deprive defendant of a fair trial.”).
The record undermines Appellant’s bald claim; indeed, it was Appellant,
not the Commonwealth, that injected Torres into the case, in an attempt to
shift culpability from Appellant to Torres. Specifically, defense counsel first
brought up Torres during cross-examination of Figueroa, and eventually got
Figueroa to disclose that Torres was the individual who provided her with the
rental vehicle prior to her trip to New Jersey. N.T., 5/22/19, at 100-01. Only
then, on re-direct, did the prosecutor inquire about Torres in response. Id.
at 114-15 (Figueroa clarifying that Appellant, not Torres, gave her the address
of the drug house in New Jersey). Moreover, it was defense counsel, not the
Commonwealth, who initially brought up Torres during cross-examination of
Detective Vance. N.T., 5/23/19, at 197; see also id. at 202 (defense counsel
inquiring whether Torres could have been the person who set up the drug
transaction). In response on re-direct, the prosecutor elicited testimony from
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Detective Vance that Appellant and Torres were associated in selling narcotics.
Id. at 213-15.
The record shows defense counsel opened the door by introducing
Torres into Appellant’s trial; therefore, the prosecutor was permitted to “make
fair comment on the admitted evidence and [] provide fair rebuttal to defense
arguments.” Commonwealth v. Spotz, 18 A.3d 244, 288 (Pa. 2011); see
also id. (stating “[e]ven an otherwise improper comment may be appropriate
if it is in fair response to defense counsel’s remarks. Any challenge to a
prosecutor’s comment must be evaluated in the context in which the comment
was made.” (citations omitted)). Moreover, the trial court correctly opined
that while Detective Vance’s remarks
may touch on the ultimate issues submitted to the jury, it was not
an error to allow the jury to hear them. [Appellant] suffered no
prejudice because it is up to the jury to weigh the credibility of
Detective Vance’s testimony and be the ultimate arbiters of fact.
Trial Court Opinion, 3/12/20, at 11-12 (unnumbered); see also Pa.R.E. 704
(an opinion or inference is not objectionable just because it embraces an
ultimate issue). Accordingly, the trial court acted well within its discretion in
permitting Detective Vance’s testimony at issue and denying Appellant’s
motion for a mistrial. Appellant’s first issue is meritless.
In his second issue, Appellant contends the trial court abused its
discretion in precluding defense counsel from presenting Torres’s testimony in
Appellant’s case-in-chief. See Appellant’s Brief at 21-34. Though Appellant
concedes the defense made this request on the final day of trial, he disputes
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the trial court’s determination that this constituted a discovery violation. See
id. at 29-30 (arguing the late request was unavoidable under the
circumstances and there was no prejudice to the Commonwealth). Appellant
asserts the court’s improper denial of his right to present rebuttal/exculpatory
evidence deprived him of a fair trial and his right to present a defense. Id. at
22.
“[D]ecisions involving discovery in criminal cases lie within the
discretion of the trial court. We will not reverse a trial court’s order absent an
abuse of that discretion.” Commonwealth v. Alston, 2020 Pa. Super. 123,
at *17 (Pa. Super. 2020) (citations and quotation marks omitted). We have
explained that
[i]f a discovery violation occurs, the court may grant a trial
continuance or prohibit the introduction of the evidence or may
enter any order it deems just under the circumstances.
Pa.R.Crim.P. 573(E). The trial court has broad discretion in
choosing the appropriate remedy for a discovery violation. Our
scope of review is whether the court abused its discretion in not
excluding evidence pursuant to Rule 573(E). A [party] seeking
relief from a discovery violation must demonstrate prejudice.
Commonwealth v. Brown, 200 A.3d 986, 993 (Pa. Super. 2018) (some
citations omitted).
In Gill v. McGraw Elec. Co., 399 A.2d 1095 (Pa. Super. 1979) (en
banc), our Court set forth the factors a court must consider in determining
whether or not a witness should be precluded for failure to comply with
discovery rules:
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(1) the prejudice or surprise in fact of the party against whom the
excluded witnesses would have testified[;] (2) the ability of that
party to cure the prejudice[;] (3) the extent to which waiver of
the rule against calling unlisted witnesses would disrupt the
orderly and efficient trial of the case or of cases in the court[; and]
(4) bad faith or willfulness in failing to comply with the court’s
order.
Id. at 1102.
Here, on the morning of the final day of trial, the following exchange
transpired concerning defense counsel’s late proffer of Torres:
[Defense counsel]: Your Honor, [Appellant] came into the
courtroom [today] and indicated that he wanted an individual to
testify on his behalf. That individual is in Lancaster County Prison.
His name is Genol Torres. The offer of proof would be that
[Torres] gave the vehicle to [Figueroa, i.e., for her to pick up the
narcotics in New Jersey,] and my client had nothing to do with it.
THE COURT: Commonwealth?
[The prosecutor]: Your Honor, this is a last-minute desire to have
someone subpoenaed. I understand the defense has an absolute
right to put on their defense in their case-in-chief. I will state that
Mr. Torres does have an attorney. …
***
[Defense counsel]: Your Honor, Mr. Torres was an individual that
came to my attention today by my client[, who] desires [Torres]
to testify. I didn’t have that information, certainly not back in
August 2018 when [the defense was] asked for reciprocal
discovery. Mostly that’s for expert witnesses and things to that
effect. As far as [Appellant’s] defense, we don’t have to disclose
who is going to be testifying on our behalf. But that is a very late
request based upon the circumstances of the testimony that has
been before Your Honor.
***
THE COURT: All right. Very good. So we are going to proceed
with the case. If it becomes possible to get Mr. Torres here with
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counsel, we will do that but if not, given the late and improper
disclosure of this witness, we will proceed without him.
N.T., 5/24/19, at 225-27. The trial court subsequently denied defense
counsel’s request. See id. at 270 (ruling, “it is too late of a disclosure after
efforts were made by all counsel and the Sheriff’s Department to make Mr.
Torres available. Given the very late notice, it is highly prejudicial and it is …
undue given the potential conflicts from trial counsel for Mr. Torres.”).
In its Pa.R.A.P. 1925(a) opinion, the trial court reasoned as follows in
support of its ruling:
In addition to the untimeliness of the [defense’s] proffered
witness [request], Mr. Torres was represented by Attorney Ray
Stout, who also represented [] Figueroa’s sister, Kiomara [], with
the then[-]pending charges [against Kiomara] arising from the
same incident. This presented a glaring conflict of interest for
[Attorney] Stout to accurately counsel and represent both parties.
Furthermore, Mr. Torres was incarcerated. Every effort to
coordinate legal counsel and transportation from the prison was
made for Mr. Torres to take the stand, but the late disclosure
prevented it as a practical matter.
Despite all of that, the relevance of Mr. Torres’s testimony
to [Appellant’s] case-in-chief was, at best, speculative.
[Appellant] cannot rely on the speculative nature of what Mr.
Torres would or would not have said in hopes of a better outcome.
It was [Appellant] that failed to disclose this information. It was
[Appellant] that attempted to weaponize the Rules of Criminal
Procedure to put the Commonwealth at a disadvantage. The only
proper remedy was to preclude testimony from Mr. Torres, and
the preclusion did not prejudice [Appellant] in any way.
Trial Court Opinion, 3/12/20, at 9-10 (unnumbered) (citations omitted); See
also Gill, 399 A.2d at 1102. We agree with the trial court’s sound rationale
and determination, which is supported by the record and the law. Finally, in
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light of our disposition on Appellant’s first issue, supra, there is no merit to
Appellant’s objection in his instant issue that “the court ordered preclusion
notwithstanding the fact that the Commonwealth injected [] Torres into the
case and his testimony was fair rebuttal to same.” Appellant’s Brief at 22.
Accordingly, we discern no abuse of the trial court’s discretion and Appellant’s
second issue fails.
In his third issue, Appellant contends that the trial court erred in denying
his pro se Rule 600 Motion, where his trial purportedly commenced 17 days
after the one-year time bar of Pa.R.Crim.P. 600(A)(2)(a), and the trial court
improperly attributed periods of delay to the defense. See Appellant’s Brief
at 37-45. We disagree.
This Court reviews a ruling under Rule 600 pursuant to an
abuse-of-discretion standard. … Additionally, when considering a
Rule 600 claim, this Court must view the record facts in the light
most favorable to the winner of the Rule 600 motion. It is, of
course, an appellant’s burden to persuade us the trial court erred
and relief is due.
Additionally, when considering the trial court’s ruling, this
Court is not permitted to ignore the dual purpose behind Rule 600.
Rule 600 serves two equally important functions: (1) the
protection of the accused’s speedy trial rights, and (2) the
protection of society. In determining whether an accused’s right
to a speedy trial has been violated, consideration must be given
to society’s right to effective prosecution of criminal cases, both
to restrain those guilty of [a] crime and to deter those
contemplating it. However, the administrative mandate of Rule
600 was not designed to insulate the criminally accused from good
faith prosecution delayed through no fault of the
Commonwealth. So long as there has been no misconduct
on the part of the Commonwealth in an effort to evade the
fundamental speedy trial rights of an accused, Rule 600 must be
construed in a manner consistent with society’s right to
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punish and deter crime. In considering these matters, courts
must carefully factor into the ultimate equation not only the
prerogatives of the individual accused, but the collective right of
the community to vigorous law enforcement as well.
Commonwealth v. Martz, 2020 Pa. Super. 104, **10-11 (Pa. Super. 2020)
(emphasis added; citations and ellipses omitted).
Rule 600 provides in relevant part as follows:
(C) Computation of Time
(1) For purposes of paragraph (A) [(general one-year
time bar)], periods of delay at any stage of the
proceedings caused by the Commonwealth when the
Commonwealth has failed to exercise due diligence
shall be included in the computation of the time within
which trial must commence. Any other periods of delay
shall be excluded from the computation.
Pa.R.Crim.P. 600(C).
To summarize, the courts of this Commonwealth employ
three steps in determining whether Rule 600 requires dismissal of
charges against a defendant. First, Rule 600(A)[(2)(a)] provides
the mechanical run date. Second, we determine whether any
excludable time exists pursuant to Rule 600(C).[4] We add the
amount of excludable time, if any, to the mechanical run date to
arrive at an adjusted run date.
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4 We have explained that
“[e]xcludable time” is classified as periods of delay caused by the
defendant. Pa.R.Crim.P. 600(C)(2). “Excusable delay” occurs
where the delay is caused by circumstances beyond the
Commonwealth’s control and despite its due diligence. Due
diligence is a fact-specific concept that must be determined on a
case-by-case basis. Due diligence does not require perfect
vigilance and punctilious care, but rather a showing by the
Commonwealth that a reasonable effort has been put forth.
Commonwealth v. Moore, 214 A.3d 244, 248-49 (Pa. Super. 2019)
(citations and quotation marks omitted).
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Commonwealth v. Bethea, 185 A.3d 364, 371 (Pa. Super. 2018) (footnote
added; citations, emphasis, and ellipses omitted).
[I]n assessing any period of delay under Rule 600, it is critical to
ascertain the cause of such delay. Stated in the most general
terms, when the Commonwealth causes delay, the Rule 600 clock
continues to tick; when the defendant causes delay, the clock
stops.
Commonwealth v. Barbour, 189 A.3d 944, 958 (Pa. 2018) (emphasis in
original). Finally, periods of judicial delay are excludable from Rule 600.
Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017).
The trial court in the instant case concluded Appellant’s Rule 600 claim
is “utterly meritless”:
The criminal complaint was filed May 3, 2018[,] at the same
time as [Appellant’s] incarceration. On August 8, 2018, there was
one continuance granted[,] with time [attributable to] the
Commonwealth. On August 30, 2018, the case was listed for
trial on October 26, 2018. On September 19, 2018, [defense
counsel] filed [the OPT] Motion. On February 11, 2019, a hearing
was held to decide the merits of that Motion. Trial commenced on
May 22, 2019.
From the filing of the criminal complaint on May 3, 2018 to
the commencement of the trial on May 22, 2019, 382 days
elapsed, which is 17 days after the mechanical computation of
time under Rule 600. However, 145 days are attributable to
the [OPT] Motion filed on September 1[9], 2018, all time of
which is excluded from the computation under Rule 600.[FN] With
those 145 days excluded from the computation of time, even
without any other [d]efense continuances, his trial commenced
within 237 days from the filing of the criminal complaint.
Court congestion, including the busy holiday season
[FN]
from November to January, attributed to the delay in
scheduling the hearing until February 11, 2019. [See
Mills, supra (periods of judicial delay are excludable).]
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Moreover, it is worth nothing that [Appellant’s] Rule 600
Motion was filed pro se even though he was represented at the
time he filed it. Any document filed by a defendant represented
by an attorney will simply be forwarded to the attorney for review.
Pa.R.Crim.P. 576(A)(4). This was done and significantly[,]
[defense counsel] did not refile a formal motion on behalf of
[Appellant], most likely because the [Rule 600 claim] was entirely
without legal or factual merit.
Trial Court Opinion, 3/12/20, at 8-9 (unnumbered) (emphasis added; footnote
in original). The record supports the trial court’s rationale and determination,
and we likewise conclude Appellant’s Rule 600 Motion was patently frivolous
and properly denied by the trial court. The Commonwealth did not seek to
evade Appellant’s speedy trial rights in any fashion. See Martz, supra.
Appellant’s third issue fails.
In his fourth issue, Appellant argues that the trial court abused its
discretion in granting the Commonwealth’s Rule 404(b) Motion and permitting
Figueroa to testify to prior, similar incidents where she had transported large
quantities of suspected narcotics at Appellant’s behest.5 See Appellant’s Brief
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5 At the beginning of trial, the trial court considered further argument on the
Rule 404(b) Motion. See N.T., 5/22/19, at 3-5. The Commonwealth
explained that it had provided defense counsel with a copy of a recorded police
interview during discovery; in the recording, Figueroa described the several
prior occasions on which she had transported suspected drugs for Appellant.
Id. at 3. Defense counsel stated that he had reviewed this recording and the
Commonwealth’s averments in the Rule 404(b) Motion were consistent with
the recording. Id.
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at 34-37. Appellant contends this evidence severely prejudiced him and
portrayed him as a repeat offender to the jury. Id. at 36.
Evidence of prior bad acts, while generally not admissible to prove bad
character or criminal propensity, can be admissible to show, inter alia, a
common plan or scheme where the probative value of such evidence
outweighs its potential for unfair prejudice.6 Pa.R.E. 404(b)(2); see also Ivy,
146 A.3d at 251 (“[a]n exception to Rule 404(b) exists that permits the
admission of evidence where it became part of the history of the case and
formed part of the natural development of facts.”). “‘Unfair prejudice’ means
a tendency to suggest a decision on an improper basis or to divert the jury’s
attention away from its duty of weighing the evidence impartially.”
Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007) (quoting Pa.R.E.
403, Comment). Additionally, “when weighing the potential for prejudice, a
trial court may consider how a cautionary jury instruction might ameliorate
the prejudicial effect of the proffered evidence.” Dillon, 925 A.2d at 141.
In the instant case, the trial court opined that it properly admitted the
prior bad acts evidence at issue:
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6 To determine whether the common plan or scheme exception applies, a trial
court must examine the details and surrounding circumstances of each
criminal incident to assure that the evidence reveals criminal conduct which is
distinctive as to become the signature of the same perpetrator.
Commonwealth v. Ivy, 146 A.3d 241, 253 (Pa. Super. 2016) (explaining
that the circumstances of the crimes need not be identical, but there must be
a “logical connection between them.”).
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Ms. Figueroa testified that she had performed trips for [Appellant]
like the one sub judice around ten times. (N.T.[, 5/22/19,] at 81).
In these transactions[,] she always used a rented car provided by
Mr. Torres. (Id. at 82). [Appellant] would then provide her with
an address and instructions throughout the trip. (Id.) The
transactions were always the same: get the rental car with one
bag, receive an address, make an exchange at the address for a
different bag, receive a return address, [and finally,] return the
rental car with the different bag to that address. (Id.) This
evidence demonstrates the common scheme and plan of
[Appellant], Mr. Torres, and Ms. Figueroa. It also shows why Ms.
Figueroa was the subject of Detective Vance’s investigation. The
jury should be and was presented with this evidence, along with
the rest of the Commonwealth’s witness testimony and
[Appellant’s] own testimony. The weight and credibility of this
evidence was placed in the hands of the jury. Ms. Figueroa’s
testimony of the prior transactions showed the natural progression
of facts leading up to the current transaction, and its probative
value as to the ultimate issue far outweighed any prejudice to
[Appellant].
Trial Court Opinion, 3/12/20, at 12-13 (unnumbered) (some capitalization
omitted).
Our review discloses that the trial court’s above analysis is supported by
the record and the law. The evidence of prior bad acts evidence in this case
was highly probative to the charged crimes, and the Commonwealth “did not
seek to inflame the jury’s sensibilities with references to matters other than
the legal proposition relevant to the case.” Antidormi, 84 A.3d 736, 751 (Pa.
Super. 2014). Additionally, because defense counsel, well prior to trial, had
reviewed Figueroa’s police interview describing her prior drug transports for
Appellant, we are unpersuaded by Appellant’s claim of unfair surprise. Finally,
the trial court issued a cautionary instruction concerning the limited purpose
for which the jury could consider Appellant’s prior bad acts. See N.T.,
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5/24/19, at 325-26. This ameliorated any prejudice this evidence may have
caused Appellant. See Dillon, 925 A.2d at 141; see also Commonwealth
v. Speight, 854 A.2d 450, 458 (Pa. 2004) (a jury is presumed to follow a trial
court’s instructions). Appellant’s fourth issue is meritless.
In his fifth issue, Appellant contends that the trial court erred in
admitting inappropriate expert testimony from Detectives Weber and Vance,
which deprived Appellant of a fair trial. See Appellant’s Brief at 45-51. We
disagree.
The admissibility of expert evidence is within the sound discretion of the
trial court, and we will not reverse absent a manifest abuse of discretion.
Commonwealth v. Leap, 202 A.3d 386, 390 (Pa. Super. 2019). Expert
testimony is admissible when it “involves explanations and inferences not
within the range of ordinary training[,] knowledge, intelligence and
experience.” Commonwealth v. Walker, 92 A.3d 766, 788 (Pa. 2014)
(citation omitted).
Preliminarily, to the extent Appellant challenges the admission of
Detective Vance’s testimony that Torres and Appellant were drug associates,
see Appellant’s Brief at 49-51, we need not address this claim, as we already
rejected it in connection with Appellant’s first issue, supra.
Regarding Detective Weber’s expert testimony, Appellant contends that
the trial court improperly overruled defense counsel’s objection and permitted
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the Detective to opine that Appellant constructively possessed the narcotics
seized from Figueroa’s vehicle with the intent to deliver. Id. at 46.
Detective Weber was qualified as an expert in the field of heroin
distribution in Lancaster County, without objection by defense counsel. See
N.T., 5/23/19, at 234.7 On direct examination, Detective Weber provided the
jury a definition for constructive possession. Id. at 235 (defining the term as
“not having [an object] in [the accused’s] physical control or not having it in
their possession.”). Based on his training and unchallenged drug experience,
Detective Weber opined that Appellant constructively possessed the narcotics
in question. Id. at 244.
Appellant “concedes that expert testimony is admissible concerning
whether the facts surrounding the possession of controlled substance are
consistent with an intent to deliver[.]” Appellant’s Brief at 46 (citing
Commonwealth v. Ratsamy, 934 A.2d 1233, 1236 (Pa. 2007)). However,
he claims that expert testimony regarding constructive possession is
inadmissible. Id. In this regard, Appellant primarily relies upon a decision of
the New Jersey Supreme Court, State v. Reeds, 962 A.2d 1087 (N.J. 2009).
See Appellant’s Brief at 48-49.
____________________________________________
7 Although Detective Weber was not involved in the investigation into the
instant crimes, he was present in the courtroom for Appellant’s entire trial and
had reviewed all discovery materials. Id. at 234-35.
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It is black-letter law that decisions of sister states are not binding
precedent on this Court. See Commonwealth v. Arthur, 62 A.3d 424, 429,
n.9 (Pa. Super. 2013). Additionally, whether Appellant possessed the
narcotics was a relevant fact at issue to the charges against him (i.e., PWID),
and witnesses may testify to ultimate issues before the jury. See Pa.R.E. 704,
supra.
Nevertheless, even if, arguendo, the trial court erred in admitting
Detective Weber’s testimony, such error was harmless. The harmless error
doctrine “reflects the reality that the accused is entitled to a fair trial, not a
perfect trial.” Commonwealth v. Hairston, 84 A.3d 657, 671 (Pa. 2014)
(citation omitted). An error may be deemed harmless, inter alia, where (a) it
did not prejudice the defendant or the prejudice was de minimis, see
Hairston, 84 A.3d at 671; or (b) “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.” Commonwealth v. Moore, 937 A.2d 1062, 1073 (Pa. 2007).
Here, the jury acquitted Appellant of PWID; it convicted him of criminal
conspiracy, which does not include a possessory element like PWID. Thus,
Appellant did not suffer any prejudice from Detective Weber’s testimony
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concerning constructive possession, and any error was entirely harmless.8
Appellant’s fifth issue entitles him to no relief.
In his sixth and final issue, Appellant contends that the sentencing court
erred in assigning an offense gravity score (OGS) of 11 to Appellant’s
conspiracy conviction. See Appellant’s Brief at 52-54.
Appellant challenges the discretionary aspects of his sentence, from
which there is no absolute right to appeal. See Commonwealth v. Hill, 66
A.3d 359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant has
preserved the sentencing challenge for our review, by raising it in a timely
post-sentence motion, he or she must (1) include in their brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence, pursuant to Pa.R.A.P. 2119(f); and
(2) show that there is a substantial question that the sentence imposed is not
appropriate under the Sentencing Code. Hill, 66 A.3d at 363-64.
Here, Appellant’s brief contains a Rule 2119(f) Statement. Additionally,
his claim presents a substantial question for our review. See
____________________________________________
8 Moreover, the uncontradicted evidence of Appellant’s guilt was
overwhelming. See Moore, supra. Figueroa testified in detail about
Appellant’s coordinating and facilitating the drug transportation from New
Jersey. See generally N.T., 5/22/19, at 52-121. Indeed, Figueroa stated
that she had previously done ten nearly identical drug transports for Appellant.
See id. at 3-5, 81-85. It is well settled that “even the uncorroborated
testimony of a single witness may alone be sufficient to convict a defendant.”
Commonwealth v. Crosley, 180 A.3d 761, 768 (Pa. Super. 2018) (citation
omitted).
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Commonwealth v. Sunealitis, 153 A.3d 414, 421 (Pa. Super. 2016) (a claim
that sentencing court used an incorrect OGS presents a substantial question);
Commonwealth v. Archer, 722 A.2d 203, 210-11 (Pa. Super. 1998) (en
banc) (same).
Accordingly, we will review the merits of Appellant’s claim, mindful of
our standard of review: “Sentencing is a matter vested in the sound discretion
of the sentencing judge, and a sentence will not be disturbed on appeal absent
a manifest abuse of discretion.” Commonwealth v. Barnes, 167 A.3d 110,
122 n.9 (Pa. Super. 2017) (en banc) (citation omitted).
Appellant contends the sentencing court improperly utilized an OGS of
11 in imposing sentence on the conspiracy conviction. See Appellant’s Brief
at 52-54. Appellant points out that this OGS was based upon the weight of
the narcotics in question (120 grams); however, the jury never made a finding
as to the actual weight (i.e., since the portion of the verdict slip regarding the
conspiracy charge did not require the jury to make a finding on the weight of
the narcotics involved). Id. at 53-54 (citing Alleyne v. United States, 570
U.S. 99, 108 (2013) (holding facts that increase mandatory minimum
sentences must be submitted to the jury and found beyond a reasonable
doubt)).
This issue lacks merit. Appellant fails to acknowledge that defense
counsel entered into the stipulation that the narcotics weighed 120 grams. It
is settled that a stipulation is binding on the parties and the court. See
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Commonwealth v. Mitchell, 902 A.2d 430, 460 (Pa. 2006); see also
Commonwealth v. Belak, 825 A.2d 1252, 1256 n.10 (Pa. 2003) (stating a
stipulation “is a declaration that the fact agreed upon is proven, and it must
be enforced according to its terms.”). Finally, contrary to Appellant’s claim,
Alleyne is unavailing and inapplicable. Cf. Commonwealth v. Rivera, 154
A.3d 370, 378-79 (Pa. Super. 2017) (en banc) (where, unlike here, the court
sentenced defendant under a mandatory minimum sentencing provision based
on the weight of narcotics seized, holding that a stipulation as to weight cannot
serve to circumvent Alleyne).
Judgment of sentence affirmed.
Judge Shogan joins the memorandum.
Judge Stabile concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/05/2020
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