Com. v. Johns, P. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
PERCY WILLIAM JOHNS :
:
Appellant : No. 3605 EDA 2018
Appeal from the Judgment of Sentence Entered November 8, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004872-2017
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 21, 2020
Percy William Johns (Appellant) appeals from the judgment of sentence
imposed after a jury convicted him of possession of a controlled substance,
possession with intent to deliver a controlled substance (PWID), and
possession of drug paraphernalia.1 We affirm.
The trial court summarized the facts of this case as follows:
On January 18, 2017, Appellant was pulled over by Officer
Waltman and Officer Barag [of the City of Chester Police
Department] after the vehicle [Appellant] was driving failed to
come to a complete stop at a stop sign and failed to properly use
its turn signal. As part of routine police procedure, the police
asked for Appellant’s license, registration, and proof of insurance.
The police also performed a routine warrant search of [] Appellant
through NCIC (National Crime Information Center). In doing so,
the police discovered that Appellant had an active warrant out of
the City of Chester.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 35 P.S. § 780-113(a)(16), (30), (32).
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After determining that Appellant had an active warrant, police
followed standard protocol and asked Appellant to step out of the
vehicle. Appellant was then “pat[ted] down” to ensure that he did
not have any weapons on his person. Appellant was then
transported to the police station. Officer Barag asked Appellant if
he had any drugs hidden on his person, as bringing drugs into the
jail could result in further charges, after which Appellant advised
police that he was in possession of illegal contraband. All of these
actions undertaken by police are standard protocol. Police then
recovered crack cocaine and $200 on Appellant.
Police declined to charge Appellant with his traffic infractions
due to his willingness to act as a police informant. After
Appellant’s release he engaged in a conversation with Officer
Barag regarding the 16 bags of drugs recovered on his person.
Appellant advised Officer Barag that the bags were for sale, he
usually purchased an “eight ball” (a street term for 3.5 grams of
cocaine), and that he broke the drugs down to 3.5 gram bags,
which he sold for $10. [However,] Appellant never acted as a
police informant, resulting in the aforementioned charges being
filed against him.
Trial Court Opinion, 7/30/19, at 2-3 (citations to the notes of testimony
omitted).
On October 5, 2018, a jury convicted Appellant of the above-referenced
crimes. On November 8, 2018, the trial court sentenced Appellant to an
aggregate term of 42 to 84 months of incarceration. This timely appeal
followed.
On appeal, Appellant presents the following issues for review:
1. Did the [trial court err] in allowing the Commonwealth to
cross-examine [] Appellant on his prior record and to introduce
the non-crimen falsi prior convictions?
2. Did the [trial court err] in precluding Appellant to present
[sic] opinion lay witness testimony going to the core of the
defense’s case?
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Appellant’s Brief at 1-2.
First, Appellant argues that the trial court abused its discretion in
allowing the Commonwealth to cross-examine him about his prior PWID
conviction. Appellant contends that evidence of prior crimes is inadmissible if
the past crime was not a crimen falsi.
We begin with our standard of review:
“The admission of evidence is solely within the discretion of the
trial court, and a trial court’s evidentiary rulings will be reversed
on appeal only upon an abuse of that discretion.”
Commonwealth v. Reid, [] 99 A.3d 470, 493 ([Pa.] 2014). An
abuse of discretion will not be found based on a mere error of
judgment, but rather occurs where the court has reached a
conclusion that overrides or misapplies the law, or where the
judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will. Commonwealth v. Davido,
[] 106 A.3d 611, 645 ([Pa.] 2014).
Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015).
Pennsylvania Rule of Evidence 404(b) governs the admissibility of prior
bad acts evidence, and provides:
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited uses. 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.
(2) Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake or lack of accident.
In a criminal case this evidence is admissible only if the probative
value of the evidence outweighs its potential for unfair prejudice.
Pa.R.E. 404(b)(1)-(2).
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With respect to Rule 404(b), this Court has explained:
“[E]vidence of prior crimes is not admissible for the sole purpose
of demonstrating a criminal defendant’s propensity to commit
crimes.” Commonwealth v. Melendez–Rodriguez, 856 A.2d
1278, 1283 (Pa. Super. 2004). Nevertheless, “[e]vidence 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.” Id. 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. Commonwealth v. Chmiel, 889 A.2d 501
(Pa. 2005). When offered for a legitimate purpose, evidence of
prior crimes is admissible if its probative value outweighs its
potential for unfair prejudice. Commonwealth v. Hairston, 84
A.3d 657 (Pa. 2014)[.]
Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (en banc)
(citations modified).
Prior to his trial, Appellant sought to prevent the Commonwealth from
introducing evidence of his prior PWID conviction in its case-in-chief. See
N.T., 10/2/18, at 13-15. The trial court determined that Appellant’s past PWID
conviction was inadmissible, but explained, “if [Appellant] opens the door[,]
I’ll consider it and may allow it in. I’ll see how he testifies.” Id. at 15.
At trial, the following transpired:
By [The Commonwealth]:
Q. Okay. Did I hear you say that you’re a functional crack
addict?
A. That’s what I -- I function. Like, I can still pay my bills and
stuff like that. I’m addicted to crack.
Q. Okay. You’re a functioning crack addict if there is such a
thing?
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A. Okay.
Q. And are you also selling that you don’t -- are you also saying
that you’re not a drug dealer?
A. I’m not a drug dealer. I’m not -- I ain’t say I never sold
drugs. I’m not a drug dealer though.
Q. Okay. So you have sold drugs in the past?
A. Yes.
Q. Okay. In fact, you’ve been convicted of that?
A. Yes.
Q. You -- and what drug was that?
A. Heroin.
Q. Okay. So you’ve sold heroin in the past, but you don’t sell
crack?
A. No.
Q. You don’t even sell crack to support your own drug habit?
A. No. I work to support my drug habit.
N.T., 10/4/18, at 310-11.
Appellant’s defense at trial, in part, was that the drugs that the police
found on him were for personal use and not distribution. See id. at 289-300.
Appellant testified in his defense, stating that he was merely a “functional
addict,” id. at 292, and that he was not a “drug dealer,” id. at 310. By
testifying that he was not a drug dealer, Appellant opened the door for the
Commonwealth to introduce evidence of his past PWID conviction. As this
Court has explained, “[a] litigant opens the door to inadmissible evidence by
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. . . creat[ing] a false impression refuted by the otherwise prohibited
evidence.” Commonwealth v. Nypaver, 69 A.3d 708, 716 (Pa. Super.
2013). In this case, Appellant created a false impression by asserting that he
was not a “drug dealer,” but was instead only a “functional addict” when he in
fact had a prior conviction for PWID. See N.T., 10/4/18, at 292, 310-11.
Based on Nypaver, the Commonwealth could question Appellant about his
past PWID conviction to refute the false impression Appellant created with his
testimony. See Nypaver, 69 A.3d at 716. Therefore, the trial court did not
abuse its discretion in allowing the Commonwealth to introduce evidence of
Appellant’s past conviction of PWID.
Second, Appellant argues that the trial court erred in precluding him
from calling two lay opinion witnesses, Tracy Martin (Martin) and Samuel
Rhodes (Rhodes), who would have testified about facts related to the “drug
scene.” Appellant’s Brief at 10. Specifically, Appellant asserts that the two
witnesses would have testified that the amount of drugs the police found on
Appellant was consistent with personal use rather than distribution.
With respect to Martin’s testimony, the trial court ruled that Appellant
sought to elicit expert testimony, as opposed to lay opinion testimony, from
Martin, and he was not qualified to testify as an expert regarding whether the
amount of drugs Appellant possessed was consistent with personal use. See
Trial Court Opinion, 7/30/19, at 5; see also N.T., 10/2/18, at 9-10; 12-13.
The court stated that it could not conclude that “one’s history as a criminal
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translates to specialized training in deciphering and understanding the
criminal behavior of others.” Trial Court Opinion, 7/30/19, at 5.
Our Supreme Court has stated:
Rule 702 of the Pennsylvania Rules of Evidence speaks to the
general admissibility of expert testimony where scientific evidence
is at issue, and provides that a witness who is qualified as an
expert 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 a 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.” Thus, to be admissible, the expert testimony must be
beyond the knowledge possessed by a layperson and assist the
trier of fact to understand the evidence or determine a fact in
issue.
Commonwealth v. Walker, 92 A.3d 766, 780 (Pa. 2014).
We agree with the trial court’s assessment that evidence relating to drug
distribution, specifically testimony indicating whether or not the amount of a
controlled substance possessed by a criminal defendant is consistent with the
intent to deliver, requires specialized knowledge beyond that possessed by a
layperson. As this Court has repeatedly held, “[e]xpert opinion testimony
is . . . admissible concerning whether the facts surrounding the possession of
controlled substances are consistent with an intent to deliver rather than with
an intent to possess it for personal use.” Commonwealth v. Carpenter, 955
A.2d 411, 414 (Pa. Super. 2008) (emphasis added; quotations and citation
omitted). “The expert testimony of a witness qualified in the field of drug
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distribution, coupled with the presence of drug paraphernalia, is sufficient to
establish intent to deliver.” Id.
Thus, we agree with the trial court’s determination that Appellant sought
to use Martin to introduce expert testimony relating to drug distribution when
Martin was not qualified to do so. Indeed, the record reflects no attempt on
the part of Appellant to qualify Martin as an expert witness. See N.T.,
10/2/18, at 9-10; 12-13. Therefore, the trial court did not abuse its discretion
in excluding Martin’s testimony. See Woodard, 129 A.3d at 494.
Regarding Rhodes’ testimony, prior to trial, Appellant’s counsel stated
that Rhodes was “out of the picture,” that he had not “spoken with [Rhodes]
at all,” and that he did not “have the foggiest idea as to what [Rhodes] might
testify to.” N.T., 10/2/18, at 9. On that basis, the trial court determined that
Rhodes would not testify at trial and Appellant did not contest the court’s
determination. Consequently, Appellant has waived any appellate claim
relating to Rhodes’ testimony. See Pa.R.A.P. 903(a) (“Issues not raised in
the lower court are waived and cannot be raised for the first time on appeal.”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/20
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