Com. v. Watson, E. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ERIC WATSON, : No. 322 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, December 16, 2013,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0012373-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ERIC WATSON, : No. 323 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, December 16, 2013,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0012374-2012
BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 18, 2016
Eric Watson appeals from the December 16, 2013 judgment of
sentence following his convictions of aggravated assault, recklessly
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endangering another person,1 and fleeing or attempting to elude a police
officer.2 We affirm.
The trial court provided the following factual history:
Trial began on August 7, 2013. At trial,
Defendant was represented by Gary S. Silver,
Esquire and the Commonwealth attorney was
Kevin Harden, Esquire. During the Commonwealth’s
opening statement, defense counsel objected to the
prosecutor’s reference to the arresting officers
recovering a small packet that had fallen from the
area of Defendant’s person. The Commonwealth’s
attorney specifically said, “(Defendant) almost
seriously injured Officer Allen over one pack of
heroin.” Defense counsel argued that allowing
evidence of the drugs would be unfairly prejudicial to
the Defendant. The prosecutor responded that the
evidence should be admitted as evidence of motive
as to why the Defendant acted in the manner that he
did. This Court ruled that the admission of the
evidence was effectively an untimely motion in limine
made by the Commonwealth during trial, and
granted the motion, thereby overruling defense
counsel’s motion. Additionally, this Court ruled that
defense counsel was allowed to argue to the jury
that the charge of intentional possession of a
controlled substance was discharged at the
preliminary hearing due to lack of evidence. In
addition, a curative instruction was read twice to the
[jury], once upon re-entering the courtroom after
the objection and again at the close of trial. Defense
counsel then motioned for a mistrial, on the grounds
that the evidence was unfairly prejudicial to the
Defendant, and this Court denied the motion.
1
The Commonwealth charged appellant with two counts of recklessly
endangering another person, with one count at CP-51-CR-0012373-2012
and the other count at CP-51-CR-0012374-2012. All other charges against
appellant were filed at CP-51-CR-0012373-2012.
2
18 Pa.C.S.A. §§ 2702, 2705, and 75 Pa.C.S.A. § 3733, respectively.
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The Commonwealth called Officer Santos
Higgins (“Higgins”) to testify first. Higgins testified
he had been a Philadelphia Police Officer for 8 years,
and had been assigned to the 17th District since he
graduated from the academy. On June 29, 2012,
Higgins was assigned to patrol in the 17th District
with his partner, Officer Samuel Allen (“Allen”) and
Officer Joseph Marrero (“Marrero”) as part of a
marked RPC unit known as 17 Tac One. Higgins
testified that the patrol vehicle was proceeding
westbound on the 1500 block of Reed Street when
he saw Defendant, driving a blue minivan, come
from the 1400 block of South Hicks Street and then
turn onto the 1500 block of Reed Street. Higgins
stated that when Defendant turned, he disregarded a
stop sign. The officers pulled Defendant over at the
1600 block of Reed Street, at which point Higgins
and Allen approached the vehicle. Higgins further
testified that he became suspicious when Defendant
was seen moving around in the vehicle after he had
been pulled over.
Higgins testified that he approached the car
from the passenger side, and ordered Defendant to
roll down his window. Defendant did not roll down
the window initially, but instead stared straight
ahead in silence. Eventually, Defendant rolled down
the window about a quarter of an inch on the driver’s
side and unlocked the doors, at which point Higgins
opened the passenger door and Allen opened the
driver’s door. Higgins testified Allen began to speak
with Defendant, and Higgins recalled Defendant only
asking “why?” in response. Higgins stated that in his
opinion, Defendant did not seem to be intoxicated or
suffering from a medical condition at the time.
Higgins testified Defendant had a cell phone on his
lap, and Allen ordered him to turn it off. At that
time, he observed Defendant grabbing the gearshift
and steering wheel, and hitting the gas. Higgins
testified Allen was pinned between the door of the
vehicle and the doorframe, and held onto the vehicle
as it moved. Higgins testified that he then stepped
into the car through the open door on the passenger
side. Once in the car, Higgins drew his firearm on
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Defendant and ordered him to stop the car, which he
did. Higgins then pulled the key out of the vehicle.
The Commonwealth’s next witness was
Marrero. Marrero testified that he had been assigned
to the 17th District for approximately 4 years.
Marrero testified that on the night of June 29, 2012,
he was on patrol with Higgins and Allen. Marrero
stated that when Defendant was stopped, he
remained in the patrol vehicle to run Defendant’s
vehicle’s license plate number on the mobile data
terminal while Higgins and Allen approached the
Defendant. Marrero testified that he overheard Allen
asking Defendant multiple times to roll down his
window and turn off his cell phone, to which
Defendant only said “no” in response. Marrero
testified that he saw Defendant’s vehicle suddenly
move forward with Higgins being dragged along the
blacktop and Allen pinned between the door and the
doorjamb of the vehicle. Marrero stated that he saw
that Higgins was able to regain his footing and jump
into the car, after which it came to a stop about
20-30 feet from where it had been initially pulled
over. Marrero and Allen then pulled Defendant from
his vehicle and arrested him. Marrero testified that
he saw something fall from Defendant’s area after
Defendant was pulled from the car. He then told
Allen that he had seen a small object fall from
Defendant.
The third and final witness for the
Commonwealth was Allen. Allen testified that he had
been assigned to the 17th District for the entire
5½ years he had been a Philadelphia Police Officer.
On the night of June 29, 2012, Allen had been
assigned to 17 TAC One as the driver of the patrol
vehicle. Allen testified that the patrol vehicle was
heading westbound on the 1500 block of Reed
Street, at which point he observed a blue minivan
driven by Defendant traveling northbound on the
1400 block of Hicks Street. The minivan then turned
westbound onto the 1500 block of Reed Street,
disregarding a stop sign in the process. Allen stated
that after the minivan proceeded to the 1600 block
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of Reed Street, he signaled for Defendant to pull
over, which Defendant did. Allen testified that he
shined a spotlight into Defendant’s minivan, where
he observed Defendant reaching towards the back of
the vehicle, but could not see if Defendant was
touching anything.
Allen testified he approached Defendant’s
minivan on the driver’s side, and knocked on the
window indicating for Defendant to roll down the
window. Allen stated Defendant refused to do so,
but did not say anything. Allen testified that he
again asked Defendant to roll down the window and
unlock the door, and Defendant eventually complied.
Allen testified that after Defendant rolled down the
window and unlocked the door, he opened the door
in order to better see what Defendant was doing. At
that point, Allen noticed that there was a cell phone
on Defendant’s lap with an open call. Allen testified
he asked Defendant to turn the phone off and to
shut off the car, but Defendant did not do so. Allen
stated that Defendant then put the car into gear and
drove. Allen testified that when Defendant pulled
away, the door closed on him, and he held on to the
door and the doorjamb. Allen stated that, although
he was not injured by Defendant’s actions, he was
afraid of being dragged underneath the car or
smashed between Defendant’s vehicle and another
car which was parked about 10-15 feet ahead of
Defendant’s vehicle.
Allen testified that he recovered something
from the scene, and defense counsel objected to the
testimony. In a sidebar discussion, this Court ruled
that the Commonwealth could allow the witness to
testify that there was a recovery of narcotics, and
then reminded defense counsel that they were
allowed to explain to the jury that the charge was
dismissed. When the jury was brought back into the
courtroom, Allen testified that he recovered a blue
glassine packet containing an off-white powder that
was alleged to be heroin near the Defendant’s
vehicle. On cross-examination, the defense did not
further inquire about the drugs or question the
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witness about the fact that the charge had been
discharged due to lack of evidence. The
Commonwealth then rested, and Defense rested.
During his closing statement, defense counsel
raised the issue of the drugs that were allegedly
found at the scene. He informed the jury that there
were no charges related to drugs at this trial because
another judge had discharged the drug offense. In
response to the argument that the drugs could be
used to explain motive on the part of the Defendant,
defense counsel argued since the matter was
discharged for lack of evidence, there could be no
motive for something not in existence.
Trial court opinion, 8/22/14 at 3-7 (citations omitted).
The trial court also provided the following procedural history:
On June 29, 2012, Defendant was arrested and
charged with aggravated assault, fleeing or
attempting to elude an officer, and two counts of
recklessly endangering another person [“REAP”].
On August 7 to August 9, 2013, a trial was
held in the presence of a jury. On August 9, 2013,
Defendant was found guilty on all charges. On
December 16, 2013, this Court sentenced Defendant
to 2 to 5 years state incarceration [] plus 5 years
reporting probation on the aggravated assault
charge, 1 to 2 years state incarceration on the
charge of fleeing or attempting to elude an officer to
run concurrently with the aggravated assault charge,
1 to 2 years state incarceration on the first charge of
REAP (CP-51-CR-0012373-2012) to run concurrently
with the aggravated assault charge, and 11½ to
23 months incarceration on the second REAP charge
(CP-51-CR-0012374-2012) to run consecutively to
the aggravated assault charge, for a total aggregate
sentence of 3½ to 7 years state incarceration.[3] As
3
We note that appellant’s aggregate sentence is no less than two years,
eleven and one half months and no more than six years, eleven months.
(See notes of testimony, 12/16/13 at 39.)
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a condition of this Court’s sentence, Defendant was
ordered to undergo random urinalyses, to obtain
drug treatment while in jail and to seek and maintain
employment upon release.
On December 23, 2013, Defendant filed a
Motion for Reconsideration through counsel. On
January 15, 2014, Defendant filed a Notice of Appeal
to Superior Court.[4] On June 9, 2014, after
receiving all of the notes of testimony, this Court
ordered Defense counsel to file a Concise Statement
of Errors Complained of on Appeal [p]ursuant to
Pa.R.A.P. 1925(b) by June 30, 2014. On June 25,
2014, Mr. Gary Silver, Esquire, requested to
withdraw as counsel for Defendant and requested an
extension of time to file the Concise Statement of
Errors. On June 26, 2014, this Court ordered that
Mr. Silver be withdrawn as counsel for Defendant
and granted new counsel thirty days following
appointment to file the 1925(b) Statement.
Mr. Douglas Earl, Esquire, was then appointed as
counsel for Defendant and given until July 30, 2014
to file the 1925(b) Statement of Errors, which
counsel did so on that date.
Id. at 2-3 (footnote omitted).
On August 22, 2014, this Court filed an opinion
responding to the issues raised in the Concise
Statement of Errors filed July 30, 2014. On
September 8, 2014, Defendant, through counsel,
filed a petition with the Superior Court seeking
remand to add supplemental issues. On
November 10, 2014, the Superior Court remanded
the case and instructed counsel to file a
Supplemental Concise Statement of Errors within 21
days, and defense counsel did so on December 1,
2014.
4
Although the present appeal appears to be premature, in response to a
rule to show cause by this court, appellant’s counsel supplied a copy of the
praecipe for entry of order denying post sentence motions by operation of
law. We will therefore “regard as done what should have been done,” and
consider the appeal as timely filed.
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Supplemental trial court opinion, 12/8/14 at 2-3. The trial court, pursuant
to Pa.R.A.P. 1925(a), provided a supplemental opinion in response to
appellant’s supplemental concise statement of errors complained of on
appeal on December 8, 2014.
Appellant initially raises the following issues for our review:
1. Did the trial court abuse its discretion by
refusing to declare a mistrial after the
prosecutor’s improper reference in his opening
statement to Defendant’s alleged drug activity?
2. Even if a mistrial were not warranted, did the
trial court abuse its discretion by holding that
the Commonwealth was allowed to elicit
testimony relative to the alleged drugs found
at the scene, even though the court
acknowledged that the prosecutor failed to
provide reasonable notice of his intent to use
this evidence, and even though the probative
value of the evidence was outweighed by its
prejudicial effect?
Appellant’s brief at 4.
Appellant raises the following additional issues for review in his
supplemental Rule 1925(b) statement:
a. The evidence was insufficient to support
Defendant’s conviction for aggravated assault
because there was insufficient evidence to
establish that Defendant attempted to cause or
intentionally or knowingly caused bodily injury
to any of the officer-complainants in question;
b. The evidence was insufficient to support
Defendant’s convictions for recklessly
endangering another person because there was
insufficient evidence to establish that
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Defendant engaged in conduct that placed
anyone in danger of death or serious bodily
injury; and,
c. The evidence was insufficient to support
Defendant’s conviction [for] fleeing or evading
a police officer because there was insufficient
evidence to establish that Defendant fled from
the police.
Appellant’s supplemental Rule 1925(b) statement, 12/1/14 at 2. 5
In his first issue for our review, appellant alleges prosecutorial
misconduct. Specifically, appellant avers that the Commonwealth referenced
a bag of heroin that was allegedly in appellant’s possession at the time of his
arrest and that the trial court erred in denying appellant’s request for a
mistrial. (See appellant’s brief at 10.)
With regard to the denial of mistrials, the following
standards govern our review:
In criminal trials, the declaration of a
mistrial serves to eliminate the negative
effect wrought upon a defendant when
prejudicial elements are injected into the
case or otherwise discovered at trial. By
nullifying the tainted process of the
former trial and allowing a new trial to
convene, declaration of a mistrial serves
not only the defendant’s interests but,
5
Appellant failed to include any of the three issues raised in his
supplemental Rule 1925(b) statement in his brief. As a result, appellant
waives these issues on appeal, and we will not review them on the merits.
See Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014), cert. denied,
135 S.Ct. 1405 (2015) (“Where an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived. It is not the obligation of an appellate court to formulate appellant’s
arguments for him” (citation and internal brackets omitted)).
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equally important, the public’s interest in
fair trials designed to end in just
judgments. Accordingly, the trial court is
vested with discretion to grant a mistrial
whenever the alleged prejudicial event
may reasonably be said to deprive the
defendant of a fair and impartial trial. In
making its determination, the court must
discern whether misconduct or
prejudicial error actually occurred, and if
so, . . . assess the degree of any
resulting prejudice. Our review of the
resulting order is constrained to
determining whether the court abused its
discretion.
Commonwealth v. Hogentogler, 53 A.3d 866, 877-878 (Pa.Super. 2012),
appeal denied, 69 A.3d 600 (Pa. 2013) (citations omitted). “The remedy
of a mistrial is an extreme remedy required ‘only when an incident is of such
a nature that its unavoidable effect is to deprive the appellant of a fair and
impartial tribunal.’” Id. at 878 (citations omitted).
When reviewing a claim of prosecutorial misconduct, we use the
following standard of review:
Our standard of review for a claim of
prosecutorial misconduct is limited to whether the
trial court abused its discretion. In considering this
claim, our attention is focused on whether the
defendant was deprived of a fair trial, not a perfect
one. Not every inappropriate remark by a
prosecutor constitutes reversible error. A
prosecutor’s statements to a jury do not occur in a
vacuum, and we must view them in context. Even if
the prosecutor’s arguments are improper, they
generally will not form the basis for a new trial
unless the comments unavoidably prejudiced the
jury and prevented a true verdict.
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Commonwealth v. Bedford, 50 A.3d 707, 715-716 (Pa.Super. 2012)
(en banc), appeal denied, 57 A.3d 65 (Pa. 2012) (citations omitted). See
also Commonwealth v. Robinson, 877 A.2d 433, 441 (Pa. 2005)
(prosecutorial misconduct does not occur unless the jurors form a fixed bias
and hostility toward the defendant based on the prosecutor’s comments).
This court has held that any taint from a prosecutor’s improper statements
may be cured by a curative instruction to the jury, and that courts are
compelled to consider “all surrounding circumstances before finding that
curative instructions [are] insufficient and the extreme remedy of a mistrial
is required.” Commonwealth v. Bracey, 831 A.2d 678, 682 (Pa.Super.
2003), appeal denied, 844 A.2d 551 (Pa. 2004) (citations omitted). A jury
is presumed to have followed instructions provided by the trial court.
Commonwealth v. Elliott, 80 A.3d 415, 445 (Pa. 2013), cert. denied,
135 S.Ct. 50 (2014), citing Commonwealth v. DeJesus, 860 A.2d 102,
111 (Pa. 2004).
Appellant relies heavily on Commonwealth v. Satzberg, 516 A.2d
758 (Pa.Super. 1986), in which this court found that the lower court had
erred by denying the defendant’s motion for a mistrial. In Satzberg, “the
assistant district attorney during his opening remarks referred to [the
defendant] as a ‘bum,’ and said [the defendant] ‘did nothing for two and a
half years except to do drugs.’” Id. at 762.
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In finding in favor of the defendant in Satzberg, this court stated,
The prosecutor’s statements about [the defendant’s]
drug habits effectively prejudiced the jury against
[the defendant,] especially with the present media
and political focus on the dangers inherent in drug
use. During the entire trial, the jury heard the
evidence with the knowledge that the prosecution
believed [the defendant] to be a heavy drug user.
Furthermore, the assistant district attorney’s
description of appellant as a “bum” interjected into
the case his personal views about [the defendant.]
During a trial, a prosecutor’s personal opinions about
a defendant are inappropriate since such statements
are fundamentally inconsistent with a prosecutor’s
role as an administrator of justice. Accord
Commonwealth v. Evans, 479 Pa. 100, 103, 387
A.2d 854, 855 (1978).
Id. Appellant also cites Commonwealth v. Vazquez, 617 A.2d 786, 788
(Pa.Super. 1992), in which this court held that a curative instruction for the
jury was insufficient to cure the prejudice from a Commonwealth’s witness’
remarks regarding “lists of known drug dealers.” Specifically, the court
stated that the purpose of the witness’ reference to “lists of known drug
dealers” was “to convince defense counsel and/or the jury of the certainty of
the identification by supporting it through reference to something arguably
not susceptible to human error, i.e., a computer list of ‘known drug
dealers.’” Id. (emphasis in original).
Both of these cases are distinguishable from the instant appeal. First,
the Commonwealth’s attorney did not insert his own personal views about
appellant into his opening statement. The relevant statement from the
Commonwealth’s opening statement is as follows:
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[Officer Marrero] comes and as they’re pulling this
defendant out of the vehicle, he noticed something
fall so he tells Officer Allen something fell, but he’s
handcuffing this defendant with Officer Higgins, so
Officer Allen, after he gets himself together, he goes
right there to that door area where they pulled the
defendant out of the vehicle and he almost seriously
injured Officer Allen over one pack of heroin.
Notes of testimony, 8/7/13 at 30. Second, unlike Vasquez, there was no
claim made to the jury that could “arguably be [insusceptible] to human
error,” that could not be cured with a curative instruction. When denying
appellant’s motion for a mistrial, the trial court made the following curative
instruction to the jury:
Good afternoon, ladies and gentlemen. When we
ended earlier today, there was an objection by
defense, I’m going to overrule the objection, and I’m
going to give you a cautionary instruction about what
you have heard in terms of the Commonwealth’s
opening statement.
You heard the Commonwealth’s opening statement
indicating the defendant was in possession of a
controlled substance for which he is not on trial here
today. This argument is before you for a limited
purpose. That is for the Commonwealth’s purpose of
tending to show that there was no mistake at the
time the defendant was engaged in the activities
related to the vehicle.
This argument must not be considered by you in any
way other than for the purpose I just stated. You
must not regard this argument as showing that the
defendant is a person of bad character or criminal
tendencies from which you might be inclined to infer
guilt.
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Id. at 77. Before releasing the jury to begin its deliberations, the trial court
provided another curative instruction:
You have heard evidence tending to prove that the
defendant was in possession of a controlled
substance. This evidence is before you for a limited
purpose, that is, for the purpose to show motive.
This evidence must not be considered by you in any
other way other than for the purpose I just stated.
You must not regard this evidence as showing that
the defendant is a person of bad character or
criminal tendencies from which you might be inclined
to infer guilt.
Notes of testimony, 8/9/13 at 132-133. As noted above, the jury is
presumed to follow any curative instruction it receives from the trial court.
See Elliott, 80 A.3d at 445.
Moreover, in order for a claim of prosecutorial misconduct to be
successful, “the unavoidable effect of the comments at issue was to
prejudice the jurors by forming in their minds a fixed bias and hostility
toward the defendant, thus impeding their ability to weigh the evidence
objectively and render a true verdict.” Robinson, 877 A.2d at 441, quoting
Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa. 2002) (citation
omitted).
Here, appellant has failed to establish that the unavoidable effect of
the Commonwealth’s attorney’s statement prejudiced the jurors and formed
a fixed bias and hostility toward appellant in the minds of the jurors, and
that such a fixed bias or hostility impeded their ability to objectively consider
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the evidence and return a true verdict pursuant to Robinson. We,
therefore, find that appellant’s first issue is without merit.
In his second issue, appellant avers that the trial court abused its
discretion by permitting the Commonwealth to “elicit testimony relative to
the alleged drugs found at the [crime] scene.” (Appellant’s brief at 7.)
Specifically, appellant alleges that the Commonwealth did not provide
reasonable notice of its intentions to present evidence of a packet of heroin
having allegedly been found in appellant’s possession and that the trial court
erred by permitting the Commonwealth’s witnesses “to testify that they
recovered ‘a small object’ and a ‘blue glassine packet containing an off-white
powder which was alleged heroin’ from the ground where [appellant] was
arrested.” (Id. at 13-14.)
When reviewing a lower court’s decision to admit evidence, we are
held to the following standard:
The admission of evidence is a matter
vested within the sound discretion of the
trial court, and such a decision shall be
reversed only upon a showing that the
trial court abused its discretion. In
determining whether evidence should be
admitted, the trial court must weigh the
relevant and probative value of the
evidence against the prejudicial impact of
the evidence. Evidence is relevant if it
logically tends to establish a material fact
in the case or tends to support a
reasonable inference regarding a
material fact. Although a court may find
that evidence is relevant, the court may
nevertheless conclude that such evidence
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is inadmissible on account of its
prejudicial impact.
Commonwealth v. Weakley, 972 A.2d 1182, 1188
(Pa.Super. 2009) (quoting Commonwealth v. Reid,
571 Pa. 1, 811 A.2d 530, 550 (2002)). “An abuse of
discretion is not merely an error of judgment, but is
rather the overriding or misapplication of the law, 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.”
Id. at 1188-89 (citing Commonwealth v. Carroll,
936 A.2d 1148, 1152-53 (Pa.Super. 2007)). “An
abuse of discretion may result where the trial court
improperly weighed the probative value of evidence
admitted against its potential for prejudicing the
defendant.” Id. (quoting Commonwealth v. Viera,
442 Pa.Super. 348, 659 A.2d 1024, 1028 (1995)).
The threshold inquiry with admission of
evidence is whether the evidence is
relevant. “Evidence is relevant if it
logically tends to establish a material fact
in the case, tends to make a fact at issue
more or less probable, or supports a
reasonable inference or presumption
regarding the existence of a material
fact.” Commonwealth v. Spiewak,
533 Pa. 1, 617 A.2d 696, 699 (1992). In
addition, evidence is only admissible
where the probative value of the
evidence outweighs its prejudicial
impact. Commonwealth v. Story, 476
Pa. 391, 383 A.2d 155, 160 (1978).
Commonwealth v. Stokes, 78 A.3d 644(Pa.Super.2013) (internal citations modified for
uniformity); see also Pa.R.E. 401; 402; 403.
Commonwealth v. Antidormi, 84 A.3d 736, 749-750 (Pa.Super. 2014),
appeal denied, 95 A.3d 275 (Pa. 2014).
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This court has addressed Pa.R.E. 404(b)(3)’s notice requirement.
“In criminal cases, the prosecution shall provide
reasonable notice in advance of trial, or during trial if
the court excuses pretrial notice on good cause
shown, of the general nature of any such evidence it
intends to introduce at trial.” Pa.R.E. 404(b)(4).
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, cmt. However, there
is no requirement that the “notice” must be formally
given or be in writing in order for the evidence to be
admissible. Commonwealth v. Mawhinney, 915
A.2d 107, 110 (Pa.Super. 2006)[, appeal denied,
932 A.2d 1287 (Pa. 2007)].
Commonwealth v. Lynch, 57 A.3d 120, 125-126 (Pa.Super. 2012),
appeal denied, 63 A.3d 1245 (Pa. 2013). The Lynch court also stated that
the defendant was afforded sufficient notice when he was provided with
pretrial discovery, “which included [a witness’] statements referring to
Lynch’s conduct over the last five years.” Id. at 126.
Here, the Commonwealth provided adequate notice to appellant and
his trial counsel regarding the reference of the packet of heroin allegedly in
his possession. It is undisputed that the Commonwealth included the
evidence of a packet of heroin in the pretrial discovery provided to the
defense. (Commonwealth’s brief at 10; appellant’s brief at 15.) Therefore,
because the Commonwealth notified the defense that it intended to use the
evidence at trial during pretrial discovery, we find that the Commonwealth
provided adequate notice to the defense.
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We now turn to whether the evidence of appellant allegedly possessing
a packet of heroin was properly admitted under Pa.R.E. 403. We agree with
the trial court’s analysis that the evidence’s probative value outweighs its
prejudicial value, and is therefore admissible. As set forth by the trial court:
Here, the evidence of heroin found at the
scene was highly probative of the Defendant’s
motive to commit the charged crimes. The
Commonwealth argued that if the Defendant were in
possession of a controlled substance at the time he
was stopped by the police, then that would provide a
motive for him to attempt to drive away from
Officers Allen and [Higgins]. Furthermore, this
evidence was probative of an absence of mistake in
the Defendant’s actions, as it tended to show that
the Defendant acted in accordance with a motive to
escape as opposed to accidentally moving his car
forward. As discussed above, the evidence was not
unduly prejudicial to the Defendant, and any
prejudicial effect was ameliorated by the Court
providing cautionary instructions to the jury after
ruling on the objection and again at the close of the
case. Thus, this Court committed no error in
allowing evidence of heroin found at the scene to
show Defendant’s motive and to show that there was
an absence of mistake.
Trial court opinion, 8/22/14 at 11-12. We find that the evidence was
properly admitted under Pa.R.E. 403, and the trial court did not abuse its
discretion by admitting the evidence of appellant allegedly possessing a
packet of heroin.
Judgment of sentence affirmed. Appellant’s application to submit a
reply brief is granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2016
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