Com. v. Chubb, S. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SCOTTY LEE CHUBB :
:
Appellant : No. 1505 MDA 2019
Appeal from the Judgment of Sentence Entered September 6, 2019
In the Court of Common Pleas of Snyder County Criminal Division
at No(s): CP-55-CR-0000366-2018
BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, P.J.: FILED: APRIL 6, 2020
Scotty Lee Chubb appeals from the judgment of sentence entered in the
Snyder County Court of Common Pleas. On appeal, Chubb argues the trial
court erred in admitting hearsay testimony at trial. After careful review, we
affirm.
Chubb was charged with four counts of possession with intent to
distribute heroin and two counts of criminal use of a communication facility. 1
A jury convicted Chubb of all six counts. The trial court sentenced Chubb to
an aggregate sentence of 52 to 150 months’ imprisonment. Further, the trial
court, pursuant to 61 Pa. C.S.A. §§ 4501-4512, imposed a recidivism risk
reduction incentive (“RRRI”) sentence of 39 months.
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1 See 35 P.S. §780-113(a)(30) and 18 Pa. C.S.A. §7512(a).
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Shortly thereafter, the Commonwealth filed a motion to amend Chubb’s
RRRI sentence from 39 months to 43 months and 10 days. The trial court
granted the Commonwealth’s motion, and Chubb filed a motion to reconsider,
which was denied.2 This timely appeal followed.
In his only issue, Chubb argues that it was erroneous for the trial court
to admit hearsay testimony given by Agent Andrew Sproat regarding the
results of the search of the confidential informant prior to the sale. See
Appellant’s Brief, at 14. We review a trial court’s evidentiary rulings, including
rulings on the admission of hearsay for an abuse of discretion. See
Commonwealth v. Walter, 93 A.3d 442, 449 (Pa. Super. 2014). Hearsay is
an out-of-court statement offered for the truth of the matter asserted. See
Pa.R.E. 801(c). Generally, hearsay evidence is inadmissible unless it falls
within one of the exceptions to the hearsay rule set forth in the Rules of
Evidence. See Commonwealth v. Yarris, 731 A.2d 581, 591 (Pa. 1999).
Specifically, Chubb alleges that Agent Sproat’s testimony was
impermissible hearsay because he did not personally conduct the search. See
Appellant’s Brief, at 14. Detective William Knights, who was an unavailable
witness, conducted the search. See id., at 13. As such, Chubb contends that
he suffered prejudice due to the admission of this hearsay evidence. See id.,
at 14.
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2Chubb filed a direct appeal during the pendency of his post-sentence motion.
As a result, Chubb’s direct appeal was quashed as premature pursuant to
Commonwealth v. Claffey, 80 A.3d 780, 783 (Pa. Super. 2013). See
Superior Court Order, 08/21/2019.
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Both the Commonwealth and the trial court contend that Chubb has
waived this issue by failing to object before the witness answered the
question. In the alternative, both assert that any error in admitting the
evidence was harmless.
We agree that any error in the trial court’s ruling was harmless when
viewed against the record as a whole. Even where the trial court erroneously
admits evidence, this Court may still sustain the verdict if it finds the error
harmless. See Commonwealth v. McClure, 144 A.3d 970, 975 (Pa. Super.
2016). An error is harmless only if it could not have contributed to the verdict.
See id., at 975-976. This Court will find harmless error where the error did
not prejudice the appellant, or the prejudice was de minimis. See
Commonwealth v. Brown, 185 A.3d 316, 330 (Pa. 2018). Similarly, where
“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,” we will
deem the error harmless. Id. (citation omitted).
Here, we must note that Chubb makes only a bald assertion of prejudice
based upon the admissibility of hearsay testimony. In contrast, we note the
hearsay evidence only concerned the results of a search of the confidential
informant prior to the controlled buy.
Far from being a major piece of the Commonwealth’s case, this evidence
was presented merely to reinforce the eyewitness testimony that Chubb gave
the confidential informant narcotics. Notably, the confidential informant
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testified that he arranged to buy heroin from Chubb. See N.T., Jury Trial,
5/21/19, at 122. He was strip searched, and testified that he had no narcotics
on him prior to the controlled buy. See id. The police provided him with
currency with recorded serial numbers. See id., at 124. Police searched his
vehicle prior to the buy and found no narcotics. See id., at 124-125.
The confidential informant then purchased seven bags of heroin from
Chubb for $100. See id., at 127. Two undercover police officers were sitting
within five feet of the transaction. See id. Another officer sat in the
confidential informant’s vehicle and watched the transaction from there. See
id., at 54. When the confidential informant returned to his vehicle, he handed
the officer seven bags of heroin. See id., at 62-68. The confidential informant
stated that he had provided the currency to Chubb in exchange for the heroin.
See id., at 72, 135.
Given this record, we are satisfied, beyond a reasonable doubt, that
testimony regarding the results of the search prior to the sale, if error at all,
was harmless. See Commonwealth v. Hardy, 918 A.2d 766, 777 (Pa. Super.
2007). The jury clearly credited the confidential informant’s testimony, as well
as the testimony of the surveilling officers. The informant testified that the
police found no narcotics on him when he was strip-searched. We therefore
conclude that any error in allowing one officer, who was not present for the
strip-search, to testify to the results of the search was harmless error.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/06/2020
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