Com. v. Bowers, B.

J-A02041-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON OBRYAN BOWERS :
:
Appellant : No. 744 WDA 2022
Appeal from the Judgment of Sentence Entered December 29, 2021
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0001023-2020
BEFORE: BOWES, J., OLSON, J., and MURRAY, J.
MEMORANDUM BY OLSON, J.: FILED: MAY 3, 2023
Appellant, Brandon Obryan Bowers, appeals from the judgment of
sentence entered on December 29, 2021, as made final by the denial of his
post-sentence motion on June 10, 2022, following his jury trial convictions for
simple possession of narcotics, possession with intent to deliver narcotics,
recklessly endangering another person, and criminal use of a communication
facility.1 We affirm.
We briefly summarize the facts and procedural history of this case as
follows. On July 15, 2020, the Commonwealth filed a criminal complaint
alleging that, on July 12, 2019, Appellant delivered fentanyl to Michael
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1 35 P.S. § 780-113(a)(16), 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 2705,
and 18 Pa.C.S.A. § 7512(a), respectively.
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Herndon (the decedent) who ultimately overdosed and died.2 Following a
three-day trial, on November 18, 2021, the jury convicted Appellant of the
aforementioned crimes. On December 29, 2021, the trial court sentenced
Appellant to an aggregate term of 10 to 20 years of imprisonment, consecutive
to any sentence Appellant was already serving. On January 3, 2022, the trial
court filed an amended sentencing order merging the sentences imposed for
simple possession of narcotics and possession of narcotics with intent to
deliver. This timely appeal resulted.3
On appeal, Appellant presents the following issues for our review:
I. Did the trial court err in permitting Officer Jesse DiPietro to
testify in the capacity as an expert witness and render an
expert opinion when he had not been so qualified?
II. Did the trial court err in depriving Appellant of the right to
cross-examine Officer Jesse DiPietro related to his training
and experience in the field of narcotics when he testified in
the capacity as an expert witness and rendered an expert
opinion?
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2 In addition to the crimes for which Appellant was convicted, the
Commonwealth charged Appellant with third-degree murder, involuntary
manslaughter, and drug delivery resulting in death. See 18 Pa.C.S.A.
§§ 2502(c), 2504(a), and 2506(a), respectively. The jury, however,
ultimately acquitted Appellant of these homicide-related offenses.
3 On January 7, 2022, the trial court granted Appellant’s extension request to
permit the filing of a post-sentence motion after the receipt of the trial
transcripts. Appellant filed a timely post-sentence motion on March 21, 2022.
The trial court denied relief by order entered on June 10, 2022. Thereafter,
Appellant filed a timely notice of appeal on June 21, 2022. On June 23, 2022,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on July 7, 2022. On August 15, 2022, the trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a).
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III. Did the trial court err in permitting the Commonwealth to
introduce evidence related to the possession and
distribution of marijuana to an unknown party as the same
was irrelevant, overly prejudicial and the Commonwealth
failed to file proper notice under [Pa.R.E.] 404(b)?
Appellant’s Brief at 11 (complete capitalization omitted).
Appellant’s first two issues pertain to the admission of testimony by
Commonwealth trial witness, Officer Jesse DiPietro and, thus, we will examine
them together. First, Appellant argues that Officer DiPietro testified in the
capacity as both an expert and lay witness when the Commonwealth elicited
him “to render an expert opinion even though he had not been identified as
such or qualified in that capacity.” Id. at 20. Appellant claims that
Pennsylvania courts have routinely held that expert testimony is required to
decipher for a jury “coded and encrypted language utilized by drug
traffickers.” Id. at 19 (citation omitted). Appellant cites an exchange at trial,
wherein the Commonwealth questioned Officer DiPietro about his training and
experience with drug investigations and observations regarding the use of
code or slang narcotics terms and the average length of drug sale
conversations. Id. at 20-23. Although Officer DiPietro was not offered as an
expert, Appellant argues that the officer “gave an opinion based upon his
training that he believed that the communications between Appellant and [the
victim] were consistent with the sale and delivery of narcotics.” Id. at 33.
In his second issue presented, Appellant contends that the trial court
compounded its initial error by denying Appellant the opportunity to
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cross-examine Officer DiPietro “as to his training, experience, qualifications,
and/or expert opinion.” Id. at 41. Appellant claims, therefore, that his right
to confront and cross-examine Officer DiPietro regarding his qualifications as
an expert was also violated. Id. at 41-45.
Our Supreme Court has previously determined:
An appellate court generally reviews a trial court's decisions
regarding the admissibility of evidence for an abuse of discretion.
Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012)
(“An abuse of discretion may not be found merely because an
appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such a lack of support so as to be
clearly erroneous.”) (citations and quotations omitted). [When
the examination or interpretation of our evidentiary rules involves
a question of law our] standard of review is de novo and our scope
of review is plenary. Commonwealth v. Brown, 52 A.3d 1139,
1176 (Pa. 2012). When interpreting our rules of evidence, we
must ascribe to the words of these rules their plain and ordinary
meaning. Id. (citation omitted).
[Pennsylvania] Rule [of Evidence] 701 permits lay witnesses to
provide opinion testimony only if such testimony meets three
limiting criteria:
Pa.R.E. 701. Opinion Testimony by Lay Witnesses
If a witness is not testifying as an expert, testimony in the
form of an opinion is limited to one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony
or determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
Pa.R.E. 701. The first and second criteria outlined in the rule are
self-explanatory, in that they simply require that a [lay] witness's
opinion testimony be based upon personal knowledge and be
helpful to the jury in understanding the witness's testimony or a
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fact at issue. The final limiting criteria precludes lay witness
opinion testimony based upon scientific, technical, or other
specialized knowledge that falls within the realm of expert opinion
testimony as outlined by Rule 702, which provides as follows:
Pa.R.E. 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized
knowledge is beyond that possessed by the average
layperson;
(b) the expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; and
(c) the expert's methodology is generally accepted in the
relevant field.
Pa.R.E. 702. [Our Supreme Court has] explained that “expert
testimony is permitted only as an aid to the jury when the subject
matter is distinctly related to a science, skill, or occupation beyond
the knowledge or experience of the average layman.”
Commonwealth v. Duffey, 548 A.2d 1178, 1186 (Pa. 1988)
(citation omitted). [Our Supreme Court has] also recognized that
the standard for qualifying as an expert is a liberal one and the
witness need only have “‘any reasonable pretension to specialized
knowledge on the subject matter under investigation’” and the
weight to be given to the expert's testimony is for the factfinder.
Commonwealth v. Gonzalez, 546 A.2d 26, 31 (Pa. 1988),
quoting Kuisis v. Baldwin-Lima-Hamilton Corp., 319 A.2d
914, 924 (Pa. 1974) (additional citation omitted); see also
Comment, Pa.R.E. 702. [Moreover,] “expertise, whether acquired
as a result of formal education or by experience, is expertise.”
Commonwealth v. Auker, 681 A.2d 1305, 1317 (Pa. 1996).
* * *
In [Commonwealth v.] Huggins, [68 A.3d 962 (Pa. Super.
2013),] the Superior Court considered whether Rules 701 and 702
precluded a police officer from testifying as both a lay and expert
witness. Huggins, 68 A.3d at 966, 974. The [Huggins] court
ultimately held that the plain language of these rules “do not
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preclude a single witness from testifying, or offering opinions, in
the capacity as both a lay and expert witness on matters that may
embrace the ultimate issues to be decided by the fact-finder,” so
long as the jury is properly instructed to avoid confusion. Id. at
967, 974. In reaching this conclusion, the panel referenced
federal case law highlighting the difficulty in distinguishing
between an officer's lay and expert testimony:
We have explained that a law enforcement officer's
testimony is lay opinion if it is limited to what he observed
... or to other facts derived exclusively from a particular
investigation .... On the other hand, an officer testifies as
an expert when he brings the wealth of his experience as an
officer to bear on those observations and makes connections
for the jury based on that specialized knowledge.
Id. at 969, quoting United States v. Christian, 673 F.3d 702,
709 (7th Cir. 2012) (additional quotations and citations omitted).
The panel also acknowledged that distinguishing between an
officer's expert and lay testimony “is often far from clear” when
that officer possesses specialized knowledge and was also
personally involved in [investigating] the facts underlying the
case. Id. It explained that “‘the inferences officers draw when
observing and responding to situations cannot always be
separated from the expertise they bring to evaluate those
situations. Their observations are guided by experience and
training and thus, at least some of their fact testimony will be
influenced by specialized knowledge.’” Id. quoting Christian, 673
F.3d at 708.
Commonwealth v. Jones, 240 A.3d 881, 889–891 (Pa. 2020) (original
brackets omitted).
In Commonwealth v. Rose, 172 A.3d 1121 (Pa. Super. 2017), citing
United States v. Kilpatrick, 798 F.3d 365, 379 (6th Cir. 2015), this Court
further recognized that law enforcement officers should be qualified as experts
when interpreting intercepted conversations that use “slang, street language,
and the jargon of the illegal drug trade.” Rose, 172 A.3d at 1130 (citation
omitted). Whereas, an ”officer's lay opinion is admissible only when the law
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enforcement officer is a participant in the conversation, has personal
knowledge of the facts being related in the conversation, or observed the
conversations as they occurred.” Id. (citation omitted). When a witness
testifies in dual capacities, the trial court must exercise “its gatekeeping
function” to “minimize any juror confusion” by directing the Commonwealth
“to delineate between” the witness’ “expert and fact-based opinions[,]”
permit “rigorous cross-examination” of the proffered witness “regarding his
expertise and the substance of his testimony” and issue “cautionary
instructions throughout trial.” Huggins, 68 A.3d at 974.
Finally, we note:
It is well settled that the test to be applied when qualifying an
expert witness is whether the witness has any reasonable
pretension to specialized knowledge on the subject under
investigation. Such knowledge need not be obtained through
formal education but may have been acquired by other training or
experience. Moreover, a defendant's right of confrontation
includes the right to cross-examine witnesses about possible
motives to testify.
* * *
The scope of cross-examination is a matter within the discretion
of the trial court and will not be reversed absent an abuse of that
discretion.
Commonwealth v. Saunders, 946 A.2d 776, 785–786 (Pa. Super. 2008)
(cleaned up); see also Commonwealth v. Baez, 720 A.2d 711, 727 (Pa.
1998) (“The qualification of an expert witness is a matter within the sound
discretion of the trial court and will be reversed only for a clear abuse of
discretion.”).
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Here, applying the foregoing legal precepts, we agree with Appellant
that the trial court erred in concluding that the challenged portion of Officer
DiPietro’s testimony was offered and admitted solely as lay opinion. The
Commonwealth questioned Officer DiPietro at length about his expertise in
“drug interdiction,” his work with the Attorney General Mercer County Drug
Task Force, and his special training in narcotics investigation including drug
identification, lingo, and packaging. N.T., 11/16/2021, at 240-245.
Moreover, while Officer DiPietro was called upon primarily as a fact witness to
testify regarding his investigation of the charged crimes, we have little doubt
that Officer DiPietro summoned the wealth of his experience in law
enforcement when he explained for the jury the nature of the drug trafficking
exchanges that occurred in this case as well as the meaning of certain coded
words used in exchanges between Appellant and the decedent. As to those
aspects of Officer DiPiero’s testimony, there is no dispute that he was not a
participant in the text messages, had no personal knowledge of the facts being
related in the conversation, and/or did not observe the conversations as they
occurred. Instead, Officer DiPietro was asked to provide his insights gained
through his occupational training and experience, not within the average
layperson’s knowledge as required under Rule 702(a), to describe encrypted
jargon used in narcotics’ sales. See Rose, 172 A.3d at 1131 (Witness “should
have been qualified as an expert in order to testify to the meaning of any of
the particular words within the conversations.”). As such, the trial court
should not have permitted Officer DiPietro to testify as an expert, or as a
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witness testifying in dual capacities.4 Accordingly, we conclude that the trial
court misapplied the law and abused its discretion in permitting Officer
DiPietro to testify as an expert witness regarding the content of Appellant’s
text messages with the decedent without first securing the proper formalities
from the Commonwealth, allowing Appellant to fully cross-examine the
witness regarding his training and experience, and then properly guiding and
instructing the jury.
Having determined that the trial court abused its discretion, we next
turn to whether the error was harmless. See id., citing Commonwealth v.
McClure, 144 A.3d 970, 975–976 (Pa. Super. 2016) (“In the event of an
erroneous admission of evidence, a verdict can still be sustained if the error
was harmless.”). “Harmless error exists if the [Commonwealth] proves either:
(1) the error did not prejudice the defendant or the prejudice was de minimis;
or (2) the erroneously admitted evidence was merely cumulative of other
untainted evidence which was substantially similar to the erroneously
admitted evidence; or (3) the properly admitted and uncontradicted evidence
of guilt was so overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have contributed to the
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4 The Commonwealth is required to disclose expert opinions during pretrial
discovery and inspection. See Pa.R.Crim.P. 573(B)(1)(e). The trial court may
order “an expert whom the attorney for the Commonwealth intends to call in
any proceeding” to prepare a report. Pa.R.Crim.P. 573(B)(2)(b). The trial
court is also required to properly instruct the jury to avoid confusion when a
witness testifies in a dual capacity as a fact and expert witness. Huggins, 68
A.3d at 974. Here, there is no dispute that these requirements were not met.
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verdict.” Commonwealth v. Burno, 154 A.3d 764, 787 (Pa. 2017) (citation
omitted).
In this case, in addition to the text messages between Appellant and the
decedent, the Commonwealth presented the testimony of two individuals,
Michelle Jordan (Jordan) and Travis Pratt (Pratt), who were living with
Appellant at the time of the alleged narcotics delivery. Jordan testified that
Appellant appeared agitated when he learned that the decedent suffered a
fatal overdose the night before. N.T., 11/17/2021, at 21. Appellant admitted
to Jordan that the text message he sent to the decedent referred to fentanyl
and that he was nervous that the message was incriminating. Id. at 24.
Appellant asked Jordan to help him manufacture an alibi and an excuse for
the text messages. Id. at 28-34. Jordan testified that Appellant asked her
to “help him figure out how to erase” the text messages, because he was
“concerned he would get in trouble … for providing [the decedent] the drugs.”
Id. at 39-40. Appellant “wanted [Jordan] to tell the police that when he saw
[the decedent] that night, the night that [he] passed away, [] that [Appellant]
was dropping off headphones.” Id. at 44. Jordan further testified that
Appellant stated that “he’d given [the decedent] more [fentanyl] in the past
and nothing like this ha[d] ever happened.” Id. at 39. Jordan confirmed that
Appellant had fentanyl on the night the decedent died, because she and
Appellant used it. Id. at 58-59. Likewise, Pratt testified Appellant told him
that the police confiscated his cellular telephone, Appellant gave the decedent
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“stuff” the day before he died, Pratt believed the term “stuff” referred to
narcotics, and Appellant exclaimed to Pratt, “I’m fucked.” Id. at 106-107.
The Commonwealth additionally presented the testimony of Matthew
Thompson (Thompson). In 2020, Thompson “frequented the same hotel” as
Appellant and testified that Appellant admitted that he killed the decedent.
N.T., 11/18/2021, at 39-41. Thompson further testified that Appellant asked
him to kill Jordan and Pratt for $10,000.00 for “giving the police information.”
Id. at 41-42.
Finally, we note that the Commonwealth also presented the testimony
of Detective Michael Songer (Detective Songer), in his capacity as a narcotics
expert.5 Id. at 57-68. Detective Songer testified that the text messages at
issue contained “drug lingo communication[s]” wherein Appellant “texts [the
decedent] and tells him that he had some fire gray that he wanted him to try.”
Id. at 65. Detective Songer explained that “[g]ray is what is commonly
referred to as fentanyl … just based upon the color.” Id. “[I]f it’s higher
potency or better quality, then it’s referred to as fire.” Id.
Based on this overwhelming evidence, we conclude that the trial court’s
error in permitting Officer DiPietro to testify as a lay witness regarding the
meaning of the text messages was harmless. The error was de minimus,
cumulative of other untainted evidence, and the prejudicial effect of the error
was insignificant by comparison to the overwhelming evidence of guilt.
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5The trial court accepted Detective Songer as an expert and Appellant did not
object. N.T., 1/18/2022, at 62.
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Furthermore, we note that the trial court instructed the jury to weigh the
evidence and make its own credibility determinations. See N.T. 11/18/2021,
at 139-145. We presume the jury followed the court’s instructions. See
Rose, 172 A.3d at 1131 (citation omitted). As such, we discern that Appellant
is not entitled to relief on his first two issues as presented.
Next, Appellant argues that the trial court erred by permitting Detective
Songer to testify regarding the distribution of marijuana to an unknown
individual. Appellant’s Brief at 45-58; see also id. at 53 (“Detective Songer
was permitted to give an expert opinion that the day prior [to decedent’s
death], that [Appellant] had picked up a ‘zip’ i.e. ounce of marijuana to give
to an unknown individual.”). Appellant first contends that the testimony
pertaining to the distribution of marijuana to an unknown individual
constituted a prior bad act under Pa.R.E. 404(b). Id. Appellant next posits
that the Commonwealth was required, but failed to, give proper notice that it
was presenting Rule 404(b) testimony. Id. at 47-50.
The text message at issue stated:
I stopped yesterday. Nobody home. I had some fire gray I
wanted you to try. I went over tonight for a zip for someone. But
not getting any more until tomorrow after work. I barely have
any. I have maybe a 30 for the next 24 hours, and I need a g for
24 hours, so it’s gonna be a rough one until after work, brother.
I’m sorry.
Trial Court Opinion, 8/15/2022, at 6.
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As previously stated, we review the admission of evidence for an abuse
of discretion. “Evidence of a crime, wrong, or other act is not admissible to
prove a person's character in order to show that on a particular occasion the
person acted in accordance with the character.” Pa.R.E. 404(b)(1). We have
previously determined:
Evidence of prior crimes is not admissible for the sole purpose of
demonstrating a criminal defendant's propensity to commit
crimes. Nevertheless, evidence may be admissible in certain
circumstances, where it is relevant for some other legitimate
purpose and not utilized solely to blacken the defendant's
character. Specifically, other crimes evidence is admissible if
offered for a non-propensity purpose, such as proof of an actor's
knowledge, plan, motive, identity, or absence of mistake or
accident.[6] When offered for a legitimate purpose, evidence of
prior crimes is admissible if its probative value outweighs its
potential for unfair prejudice.
Unfair prejudice means a tendency to suggest decision on an
improper basis or to divert the jury's attention away from its duty
of weigh[]ing the evidence impartially.
Evidence will not be prohibited merely because it is harmful
to the defendant. This Court has stated that it is not
required to sanitize the trial to eliminate all unpleasant facts
from the jury's consideration where those facts are relevant
to the issues at hand and form part of the history and
natural development of the events and offenses for which
the defendant is charged. Moreover, we have upheld the
admission of other crimes evidence, when relevant, even
where the details of the other crime were extremely
grotesque or highly prejudicial.
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6 “Additionally, evidence of prior crimes and bad acts may be admitted where
the acts were part of a chain or sequence of events that formed the history of
the case and were part of its natural development.” Commonwealth v.
Golphin, 161 A.3d 1009, 1021 (Pa. Super. 2017), citing Commonwealth v.
Powell, 956 A.2d 406 (Pa. 2008).
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Commonwealth v. Green, 271 A.3d 393, 402 (Pa. Super. 2021) (internal
citations and quotations omitted), appeal denied, 280 A.3d 329 (Pa. 2022).
Pursuant to Pa.R.E. 404(b)(3), before presenting prior bad act evidence,
“[i]n criminal cases, the prosecution must provide reasonable written notice
in advance of trial so that the defendant has a fair opportunity to meet it, or
if the court excuses pretrial notice on good cause shown, of the specific nature,
permitted use, and use of any such evidence[.]” Pa.R.E. 404(b)(3). The
purpose of this rule “is to prevent unfair surprise, and to give the defendant
reasonable time to prepare an objection to, or ready a rebuttal for, such
evidence.” Pa.R.E. 404, Comment. Where the Commonwealth has provided
the defendant with discovery containing evidence of the prior bad acts, the
defendant has sufficient notice of the proffered evidence prior to trial. See
Commonwealth v. Lynch, 57 A.3d 120, 126 (Pa. Super. 2012), citing
Commonwealth v. Stallworth, 781 A.2d 110, 118, n.2 (Pa. 2001).
On this issue, the trial court determined:
The full text message was shown to the jury to enable the jury to
fully understand the context of the communication between
Appellant and the deceased. Any reference to Appellant’s
providing drugs to a third party was stated in passing as it was
neither the focus of the message nor the Commonwealth’s
purpose for introducing this particular message. The
Commonwealth did not introduce the evidence to prove
Appellant’s criminal propensity as prohibited by Pa.R.E. 404(b),
but to establish Appellant communicated about and supplied the
deceased with drugs.
Trial Court Opinion, 8/15/2022, at 7.
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Upon review of the certified record and applicable law, we discern there
was no abuse of discretion. Initially, we note that the text message at issue
was provided during discovery, so we reject Appellant’s contention that he did
not have proper notice. Next, we observe that the text message at issue
showed a close relationship between Appellant and the decedent wherein
Appellant brought a sample of fentanyl to the decedent and did so without
solicitation. The text message revealed an established association, a motive
for Appellant to obtain an additional supply of fentanyl to deliver to the
decedent, and a plan to meet for an exchange. Moreover, Detective Songer
testified that the subsequent responses to the above cited text message
revealed that the decedent “was confused about what [drugs] he thought
[Appellant] had” for sale. N.T., 11/18/2021, at 67. In one response,
Appellant asked the decedent if he wanted marijuana. See id. at 66
(“[Appellant] replied back, bud with a question mark. ‘Bud’ would be slang
for marijuana, for marijuana buds, and he asks [the decedent], you want to,
with a question mark.”). The decedent responded that he could not smoke
marijuana. Id. at 66-67. Detective Songer, therefore, interpreted the text
message at issue to mean that Appellant possessed marijuana available for
delivery, but did not have enough fentanyl for the decedent and that he would
not be able to get any more for 24 hours. Id. at 72. Thus, the portion of the
text relating to the sale of marijuana to an unknown person was part of a
chain or sequence of events that formed the history of the case and was part
of its natural development. Furthermore, this evidence was not introduced to
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show Appellant had a general propensity to sell narcotics. Rather, the
Commonwealth sought to clarify that the decedent requested, and ultimately
received fentanyl but not marijuana, from Appellant. The admitted evidence
was relevant to the question of whether Appellant delivered drugs to the
decedent which resulted in his death.7 Accordingly, for all of the foregoing
reasons, Appellant is not entitled to relief on his final claim on appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2023
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7 We note, however, that the jury acquitted Appellant on all charges related
to the decedent’s death. Thus, it appears that the jurors believed that
Appellant delivered drugs to the decedent, but were unable to conclude that
the fatal overdose resulted from that delivery.
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