Com. v. Delvalle, J. ( 2016 )

J-S28032-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JESUS DELVALLE,
Appellant No. 3465 EDA 2014
Appeal from the Judgment of Sentence November 3, 2014
in the Court of Common Pleas of Bucks County
Criminal Division at No.: CP-09-CR-0002812-2014
BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 11, 2016
Appellant, Jesus Delvalle, appeals from the judgment of sentence
entered on November 3, 2014, following his jury conviction of possession
with intent to deliver (PWID)1 heroin and related offenses. On appeal,
Appellant challenges the denial of his motion for a change of venue and the
admission of evidence regarding a firearm recovered from his vehicle. For
the reasons discussed below, we affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113 (a)(30).
J-S28032-16
We take the underlying facts and procedural history in this matter
from the trial court’s November 6, 2015 opinion and our independent review
of the certified record.
On or around December 22, 2013, the Newtown Township
Police Department investigated a brand of heroin labeled “Watch
the Throne.” Detective Dale Keddie previously investigated this
brand and was aware of two cell phone numbers tied to the
“Watch the Throne” brand, which he passed along to Detective
Jason Harris to further investigate. (These cell phone numbers
became known to police during the investigation of a fatal
overdose in Bucks County. However, no evidence was presented
to the jury about the fatality.) Detective Harris received records
from the cellular provider, which revealed that the subscriber for
the number 267-588-2933 was the Appellant, and the subscriber
for the number 267-600-6763 was Domingo Cruz.
On or around January 7, 2014, Detective Keddie contacted
Officer Richard Gramlich of the Philadelphia Police Department to
conduct an undercover investigation of the Appellant. On
January 15, 2014, Officer Gramlich placed a call to the
Appellant’s cell phone, identified himself as “Ricky Fish,” and
spoke to Wilcidez Nunez about purchasing heroin. Officer
Gramlich told Mr. Nunez that he was coming from Bristol, Bucks
County. When he met Mr. Nunez that day, he purchased four
bundles of “Real Steel” brand heroin, which Mr. Nunez removed
from a pink zipper pouch. Later that day Officer Gramlich called
Mr. Nunez to request the “Watch the Throne” brand, but Mr.
Nunez informed him that that brand was no longer in existence,
and that the new brand was “Real Steel.”
On January 29, 2014, Officer Gramlich parked at the Home
Depot on 1336 Bristol Pike in Bensalem, Bucks County, and
made calls to both 267-588-2933 and 267-600-6763. Officer
Gramlich spoke to Mr. Nunez as well as another individual, who
identified himself as Kenko, to arrange for the purchase of
heroin. Later that day, Officer Gramlich purchased ten bundles
of heroin from Mr. Nunez at 3700 Aramingo Avenue in
Philadelphia. After this purchase, Officer Gramlich asked Mr.
Nunez for a discount on his next purchase, and Mr. Nunez
advised him that he would have to ask an individual named
Johnny.
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On January 30, 2014, Officer Gramlich called the 267-588-
2933 number from the Home Depot parking lot in Bensalem and
Johnny answered the phone. Johnny directed Officer Gramlich to
wait an hour and call Kenko. When Officer Gramlich called the
same number an hour later, Johnny answered and advised him
to call the other phone number. Before Officer Gramlich could
call Kenko, Mr. Nunez called Officer Gramlich and they arranged
a purchase of heroin at the Aramingo Avenue location. Officer
Gramlich purchased approximately ten bundles of heroin at the
discount approved by Johnny.
On February 24, 2014, Officer Gramlich called the 267-
588-2933 number and an individual named Juan answered.
Officer Gramlich requested the same discount he was given
previously, but Juan said he had to check with Johnny for
approval. Subsequently, Juan sold Officer Gramlich ten bundles
of heroin on Stella Street in Philadelphia. On March 13, 2014,
Officer Gramlich arranged another purchase with Kenko, who
sought approval for the same discount through Johnny. Later
that day Juan again sold Officer Gramlich heroin.
From January 27, 2014 to March 21, 2014, Detective
Joseph George of the Philadelphia Police Department conducted
telephone pole camera video surveillance on 3076 Braddock
Street in Philadelphia, which was confirmed to be the Appellant’s
residence. Detective George observed the Appellant going back
and forth between the property and two vehicles, a Chevrolet
pickup and an Oldsmobile, parked in front of the house. On
numerous occasions, the Appellant would approach the
Chevrolet pickup truck, look both ways, remove an item from
[the] driver’s door of the vehicle, and put it under his jacket
before returning to the house. The Appellant would also
frequently approach the Oldsmobile, remove an item from the
trunk, and return to the Braddock Street residence. Both
vehicles, a Chevrolet pickup truck and Oldsmobile sedan, were
registered to the Appellant. Detective George never saw anyone
else drive either vehicle.
Detective Michael Mosniak of the Bucks County District
Attorney’s Office executed a search warrant for the Oldsmobile.
He discovered a large amount of cash in the trunk and a plastic
bag full of documents in the glove compartment.
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On March 13, 2014, Detective Steven Clark of the
Bensalem Police Department conducted a drug investigation at
the Neshaminy Motor Inn in Bensalem Township, Bucks County.
During the investigation, he obtained a package of heroin with
the label “Real Steel.” Detective Clark also found a cell phone
near the heroin, and discovered that a call was made from that
cell phone to the 267-588-2933 number on March 11, 2014 at
approximately 9:00 p.m. (This cell phone number was found
during the investigation of a fatality. The Court precluded any
evidence that this was a fatal overdose.)
On March 21, 2014, Officer Caroline Williams of the
Philadelphia Police Department stopped a vehicle occupied by
Benjamin Cruz-Hernandez, later determined to be Kenko, and
arrested him. In the vehicle, Officer Williams recovered a cell
phone for which the number was 267-600-6763. On that date,
Sergeant Daniel Dutch of the Philadelphia Police Department
arrested Wilcidez Nunez and seized a cell phone for which the
number was 267-588-2933.
On March 21, 2014, Officer Joseph Press of the
Philadelphia Police Department executed a search warrant for
the Chevrolet pickup truck parked outside of 3076 Braddock
Street. Officer Press found ten racks of heroin, a pink pouch
containing cash and thirteen packets of heroin, and a black
plastic bag containing a handgun and ammunition. The items
were located on the driver’s side. Detective Keddie, who also
participated in the search of 3076 Braddock Street and the
vehicles, seized six thousand three hundred dollars from the
Oldsmobile.
The Appellant, Wilcides Nunez, Jose Andeno (who referred
to himself as Juan to Officer Gramlich) and Benjamin Cruz-
Hernandez were arrested on March 21, 2014. The Appellant was
asked some limited questions when he was arrested. Later that
day, the Appellant was interviewed by Drug Enforcement
Administration Agent Frank Costobile at the Philadelphia Field
Division DEA. DEA Analyst Maria Cramer, who is fluent in
Spanish, assisted with translation. Ms. Cramer read the
2
Appellant his Miranda[ ] rights from a Spanish Miranda rights
____________________________________________
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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form and he waived his rights. During the interview, the
Appellant confirmed that he lived at 3076 Braddock Street in
Philadelphia and that the heroin in the Chevrolet truck belonged
to him. He also stated that Kenko, Jose, and Wil sold heroin for
him on the street.
Mr. Nunez testified at trial that Johnny was the Appellant.
He also testified that the Appellant was in charge of the heroin
dealing organization. When Mr. Nunez worked for the Appellant,
he reported to the Appellant’s house each day to retrieve a cell
phone and heroin, which he carried in a pink pouch. If a
customer asked for a discount, Mr. Nunez had to seek approval
from Johnny.
(Trial Court Opinion, 11/06/15, at 1-5) (record citations omitted).
On June 5, 2014, the Commonwealth filed a criminal information in
Bucks County charging Appellant with PWID, three counts of criminal
conspiracy,3 criminal use of a communication facility,4 and three counts of
corrupt organizations.5 (See Criminal Information, 6/05/14, at 1-2).
Subsequently, Appellant sought a change of venue to Philadelphia County.6
A hearing on Appellant’s motion took place on August 8, 2014. On August 9,
2014, the trial court denied the motion. (See N.T. Suppression Hearing,
8/09/14, at 4).
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3
18 Pa.C.S.A. § 903.
4
18 Pa.C.S.A. § 7512(a).
5
18 Pa.C.S.A. § 911(b)(1)-(3).
6
For reasons not readily ascertainable, the trial court did not docket
Appellant’s omnibus pre-trial motion seeking a change of venue until August
22, 2014, approximately two weeks after the trial court held a hearing on
the motion.
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A jury trial took place on September 10, through 12, 2014. During the
trial, Appellant made an oral motion in limine to preclude testimony about
the discovery of a gun in Appellant’s vehicle. (See N.T. Trial, 9/10/14, at
164-65). On September 11, 2014, the trial court denied the motion. (See
N.T. Trial, 9/11/14, at 76). On September 12, 2014, the jury found
Appellant guilty of all charges with the exception of a single count of corrupt
organizations. On November 3, 2014, the trial court sentenced Appellant to
an aggregate term of incarceration of not less than twelve nor more than
twenty-four years. On November 18, 2014, the trial court issued an
amended sentencing order, reducing the sentence to not less than ten nor
more than twenty years.
On November 26, 2014, Appellant filed the instant, timely appeal. On
December 3, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). On
December 19, 2014, Appellant filed a timely Rule 1925(b) statement. On
November 6, 2015, the trial court issued an opinion. See Pa.R.A.P. 1925(a).
On appeal, Appellant raises the following questions for our review:
1. Did not the trial court err in denying the motion to
set venue in Philadelphia rather than Bucks County,
as the entirety of the case involved drug selling and
an alleged drug racketeering organization in
Philadelphia, with not even one criminal act by any
defendant occurring elsewhere?
2. Did not the trial court err in permitting introduction
of a firearm and ammunition as there was no
weapons charge, the firearm and ammunition were
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irrelevant to the charges, and the impact of said
evidence was unfairly prejudicial?
(Appellant’s Brief, at 5) (unnecessary capitalization omitted).
In his first issue, Appellant argues that the trial court erred in denying
his motion for a change of venue. (See Appellant’s Brief, at 15-19).
Specifically, Appellant claims that no “act, criminal or otherwise,” happened
in Bucks County. (Id. at 15). He claims he was prejudiced because he is
Hispanic and less than five percent of Bucks County is Hispanic while more
than thirteen percent of the population of Philadelphia County is Hispanic.
(See id. at 18). We disagree.7
Initially, we note that, “[t]he standard of review for a denial of a
motion for change of venue is whether there has been an abuse of discretion
on the part of the trial judge.” Commonwealth v. Devries, 112 A.3d 663,
666 (Pa. Super. 2015) (citation omitted). It is settled that all Courts of
Common Pleas have statewide subject matter jurisdiction in criminal cases.
____________________________________________
7
The Commonwealth argues that Appellant waived his challenge to the trial
court’s refusal to change venue because he did not raise this claim prior to
the conclusion of the preliminary hearing as required by Pa.R.Crim.P. 109
and 134. Pennsylvania Rule of Criminal Procedure 109 never mentions
venue; rather it refers to a “defect in the form or content of a complaint,
citation, summons, or warrant, or a defect in the procedures of these rules.”
Pa.R.Crim.P. 109. Thus, it is inapplicable. After a thorough review of the
record, we believe that it is inappropriate to resolve this matter by waiver
pursuant to Pa.R.Crim.P. 134 because the merits of the waiver issue were
fully litigated below, without objection by the Commonwealth.
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See 42 Pa.C.S.A. § 931(a); see also Commonwealth v. Bethea, 828 A.2d
1066, 1074 (Pa. 2003), cert. denied, 540 U.S. 1118 (2004).
Venue challenges concerning the locality of a crime, . . . stem
from the Sixth Amendment to the United States Constitution and
Article I, § 9 of the Pennsylvania Constitution, both of which
require that a criminal defendant stand trial in the county in
which the crime was committed, protecting the accused from
unfair prosecutorial forum shopping. Thus, proof of venue, or
the locus of the crime, is inherently required in all criminal cases.
Commonwealth v. Gross, 101 A.3d 28, 33 (Pa. 2014). Moreover,
[b]ecause the Commonwealth selects the county of trial, we now
hold it shall bear the burden of proving venue is proper—that is,
evidence an offense occurred in the judicial district with which
the defendant may be criminally associated, either directly,
jointly, or vicariously. Although our sister states are not in
agreement as to the requisite degree of proof, we find the
Commonwealth should prove venue by a preponderance of the
evidence once the defendant properly raises the issue. Venue
merely concerns the judicial district in which the prosecution is
to be conducted; it is not an essential element of the crime, nor
does it relate to guilt or innocence. Because venue is not part of
a crime, it need not be proven beyond a reasonable doubt as
essential elements must be. Accordingly, applying the
preponderance-of-the-evidence standard to venue challenges
allows trial courts to speedily resolve this threshold issue without
infringing on the accused’s constitutional rights. Like essential
elements of a crime, venue need not be proven by direct
evidence but may be inferred by circumstantial evidence.
Appellate review of venue challenges, similar to that applicable
to other pre-trial motions, should turn on whether the trial
court’s factual findings are supported by the record and its
conclusions of law are free of legal error.
Id. at 33-34 (footnotes and citations omitted). Further, even if venue is
improper in the county of trial, dismissal of the case is not the proper
remedy. See id. at 34. Because the matter of venue is purely a procedural
one, Appellant is not entitled to relief on his claim unless he establishes
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actual prejudice. See Pa.R.Crim.P. 109; see also Commonwealth v.
Miskovitch, 64 A.3d 672, 689 (Pa. Super 2013), appeal denied, 78 A.3d
1090 (Pa. 2013) (citation omitted). In cases where criminal activity occurs
in two judicial districts, our Court examines whether there is a “nexus” with
the county where the case was tried. Miskovitch, supra at 688.
Here, there was clearly a nexus between Bucks County and the crimes.
As the trial court stated:
During the pretrial hearing on August 8, 2014, the parties
stipulated that the connections to Bucks County were the
telephone calls to and from Officer Gramlich, who identified
himself as being from Bucks County and declared his intent to
resell the heroin in Bucks County, telephone calls from the phone
recovered at the Neshaminy Motor Inn in Bucks County, and
three overdoses, two fatal, that occurred in Bucks County from
the “Watch the Throne” brand. Each of the overdose victims
had one or both of the organization’s cell phone numbers saved
in their cell phones. Further, after the Appellant was arrested,
the investigating officers continued to monitor the two cell
phones, and approximately five out of eleven customers looking
to purchase large amounts of heroin were from Bucks County.
The Appellant argued that the transactions, stash houses, and
vehicles were located in Philadelphia and that a Bucks County
trial would be prejudicial to the Appellant because of the
difference between the demographics of Bucks County and
Philadelphia County.
Here, the nexus between the criminal activity and Bucks
County was sufficient because the Appellant’s employees
received calls from Officer Gramlich and sold heroin to him with
the awareness that he was coming from Bucks County and would
be reselling the heroin in Bucks County. Importantly, on one
occasion, Mr. Nunez called Officer Gramlich in Bucks County to
arrange a heroin sale. The investigation also revealed several
overdose victims and other heroin purchasers in Bucks County
who used the Appellant’s heroin brand and had done business
with the two telephone numbers belonging to Appellant’s
organization.
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(Trial Ct. Op., at 8) (record citations omitted). We agree with the trial court
that this is more than sufficient to establish a nexus between Bucks County
and the criminal activities. See Miskovitch, supra at 688 (finding sufficient
nexus between Allegheny County and criminal activity, even though robbery
at issue took place in Westmoreland County, where car used in robbery was
stolen from Allegheny County and later abandoned there); see also Gross,
supra at 34-35.
Moreover, even if Appellant had demonstrated that there was an
insufficient nexus between Bucks County and the criminal activities, his
claim would fail because he has not shown prejudice. In order to
demonstrate prejudice, Appellant must show that he suffered
undue expense in appearing before the court . . ., that he was
unable to obtain the presence of witnesses or evidence related to
his defense because of the location, that the Commonwealth
engaged in forum shopping in order to achieve an advantage
over the defense, or that he was deprived of a fair and impartial
trial.
Bethea, supra at 1077.
Here, Appellant has not done so; instead, he offers a speculative and
bald argument that, because Philadelphia County has a greater percentage
of Hispanics, they would have been less likely to be influenced by the
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“inflammatory and improper” statements in the Commonwealth’s closing.8
(Appellant’s Brief, at 19; see id. at 18-19). Firstly, Appellant has pointed to
nothing that would demonstrate that merely because Philadelphia County
has a larger Hispanic population than Bucks County, this would have
resulted in more Hispanics on the jury.9 Secondly, and more importantly,
Appellant’s argument, in essence, is a claim that a more Hispanic and urban
jury would have ignored the overwhelming evidence discussed in the trial
court’s opinion, not to mention the trial court’s instructions, and acquitted
Appellant. We reject this contention. Further, it is clear that while Appellant
has a right to a jury selected by non-discriminatory criteria, see Batson,
supra at 85-86, he is not entitled to a jury with the racial make-up of his
choice. See Commonwealth v. Carson, 913 A.2d 220, 235 (Pa. 2006),
cert. denied, 552 U.S. 954 (2007) (“a defendant’s right to an impartial jury
____________________________________________
8
We note that Appellant does not argue on appeal that the Commonwealth
committed prosecutorial misconduct in its closing arguments. Further, we
note the sole legal authority Appellant cites in support of his claim,
Commonwealth v. Poplawski, 852 A.2d 323, 328 (Pa. Super 2004), is
utterly inapposite, since it concerns the grant of PCRA relief based upon a
claim that trial counsel was ineffective for failing to object to the
prosecutor’s opening and closing statements. See Poplawski, supra at
325-26.
9
Appellant does not describe the racial make-up of the Bucks County jury,
and has not raised a claim that the prosecutor exercised peremptory strikes
in a racially discriminatory manner in violation of Batson v. Kentucky, 476
U.S. 79 (1986).
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of his peers does not entitle him to a jury of his choice.”) (citation omitted).
The United States Supreme Court has aptly stated:
The American tradition of trial by jury, considered in
connection with either criminal or civil proceedings, necessarily
contemplates an impartial jury drawn from a cross-section of the
community. This does not mean, of course, that every jury must
contain representatives of all the economic, social, religious,
racial, political and geographical groups of the community;
frequently such complete representation would be impossible.
Thiel v. Southern Pacific Co., 328 U.S. 217, 220 (1946) (citations
omitted). Thus, Appellant has not shown that he was prejudiced by having
the case venued in Bucks County. See Bethea, supra at 1077. His first
claim lacks merit.
In his second issue, Appellant maintains that the trial court erred in
denying his motion in limine to preclude evidence of the gun and
ammunition found in his motor vehicle. (See Appellant’s Brief, at 20-23).
Specifically, Appellant claims it was “prejudicial error” to admit evidence of a
firearm and a large amount of ammunition where “there was no weapons
charge leveled against [A]ppellant or any codefendant.” (Appellant’s Brief,
at 20). Also, Appellant contends that the evidence of the firearm was
offered solely to show that he was a violent person. (See Appellant’s Brief,
at 20-23). Again, we disagree.
Our standard of review concerning the grant or denial of a motion in
limine is well settled.
A motion in limine is a procedure for obtaining a ruling on
the admissibility of evidence prior to or during trial, but before
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the evidence has been offered. A trial court’s decision to grant
or deny a motion in limine is generally subject to an evidentiary
abuse of discretion standard of review.
The admissibility of evidence is at the discretion of the trial
court and only a showing of an abuse of that discretion, and
resulting prejudice, constitutes reversible error.
The term discretion imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion,
within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge. Discretion must
be exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary actions.
Discretion is abused when the course pursued represents not
merely an error of judgment, but where the judgment is
manifestly unreasonable or where the law is not applied or
where the record shows that the action is a result of partiality,
prejudice, bias or ill will.
Where the discretion exercised by the trial court is
challenged on appeal, the party bringing the challenge bears a
heavy burden. . . . [I]t is not sufficient to persuade the appellate
court that it might have reached a different conclusion if, in the
first place, charged with the duty imposed on the court below; it
is necessary to go further and show an abuse of the
discretionary power. . . . We emphasize that an abuse of
discretion may not be found merely because the appellate court
might have reached a different conclusion, but requires a
showing of manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support as to be clearly
erroneous.
To constitute reversible error, an evidentiary ruling must
not only be erroneous, but also harmful or prejudicial to the
complaining party.
Commonwealth v. Williams, 91 A.3d 240, 248-49 (Pa. Super. 2014) (en
banc) (quotation marks, some indentations, and citations omitted).
Further, evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of the
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action more probable or less probable that it would be without the
evidence.” Pa.R.E. 401. “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 a
material fact.” Commonwealth v. Loughnane, 128 A.3d 806, 818 (Pa.
Super. 2015) (citation omitted). This Court has stated:
Relevant evidence may nevertheless be excluded if its
probative value is outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
Because all relevant Commonwealth evidence is meant to
prejudice a defendant, exclusion is limited to evidence so
prejudicial that it would inflame the jury to make a decision
based upon something other than the legal propositions relevant
to the case. As this Court has noted, a trial court is not required
to sanitize the trial to eliminate all unpleasant facts from the
jury’s consideration where those facts form part of the history
and natural development of the events and offenses with which
[a] defendant is charged.
Commonwealth v. Broaster, 863 A.2d 588, 592 (Pa. Super. 2004), appeal
denied, 876 A.2d 392 (Pa. 2005) (quotation marks, footnote and citations
omitted).
As noted above, Appellant argues that evidence was improperly
admitted under Pennsylvania Rule of Evidence 404, which provides in
pertinent part:
(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
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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).
Here, at trial, Appellant claimed he was an honest businessperson who
bought and sold used cars, not a drug dealer. (See N.T. Trial, 9/12/14, at
94-110). The presence of a firearm in close proximity to drugs in Appellant’s
car, (see N.T. Trial, 9/11/14, at 78-84) was relevant to prove not only that
Appellant was a drug dealer but also the person in charge of the
organization. See Commonwealth v. Watley, 81 A.3d 108, 115 (Pa.
Super. 2013), appeal denied, 95 A.2d 277 (Pa. 2014) (noting possession of
gun is one of several factors in determining whether drugs are for personal
use or for sale); see also, United States v. Adams, 759 F.2d 1099, 1108-
09 (3d Cir. 1985), cert. denied, 474 U.S. 906 (1985)10 (recognizing weapon
seized from alleged drug dealer’s home as probative of “motive, opportunity,
intent, [and] plan” because such weapons are “as much ‘tools of the trade’
as drug paraphernalia”). As the trial court stated:
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10
“While we recognize that federal court decisions are not binding on this
court, we are able to adopt their analysis as it appeals to our reason.”
Kleban v. Nat. Union Fire Ins. Co. of Pittsburgh, 771 A.2d 39, 43 (Pa.
Super. 2001) (citation omitted).
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The guns and rounds were admitted into evidence because
they were found in close proximity to drugs in a vehicle that the
Appellant repeatedly accessed. Indeed, he was seen removing
items from the truck and it was titled in his name. . . . The
probative value of this evidence outweighed its prejudice
because this weapon would logically be used to protect Appellant
and the drugs found in the truck.
(Trial Ct. Op., at 13). Thus, we find no error in the admission of this
evidence.
Moreover, even if we were to find error, Appellant has not shown that
he was prejudiced. Our Supreme Court has stated:
An error will be deemed harmless where the appellate court
concludes beyond a reasonable doubt that the error could not
have contributed to the verdict. If there is a reasonable
possibility that the error may have contributed to the verdict, it
is not harmless. In reaching that conclusion, the reviewing court
will find an error harmless where the uncontradicted evidence of
guilt is overwhelming, so that by comparison the error is
insignificant. . . .
Commonwealth v. Mitchell, 839 A.2d 202, 214-15 (Pa. 2003) (citation
omitted).
Here, the evidence regarding the gun came through the testimony of
Philadelphia Police Officer Joseph Press, who searched Appellant’s truck.
(See N.T. Trial, 9/11/14, at 81-111).
[Commonwealth]. What are some of the items that you found
[in the truck] that you and I have discussed prior to your coming
here today?
[Officer Press]. I recovered a black plastic bag containing ten
racks of heroine (sic), alleged heroine (sic). Also a pink purse
containing 13 packets of alleged heroine (sic) and $288 USC. As
well I recovered another black plastic bag containing a handgun,
a Ruger P89, serial number 314 dash 0—80262. Also two empty
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magazines, one magazine containing 15 found—15 rounds of
nine millimeter live rounds. Another magazine containing 12 9
millimeter rounds. And a third magazine containing 29 9
millimeter rounds.
[Trial Court]: Members of the jury, I will instruct you that
[Appellant] is not charged with any violation of the law with
respect to a weapon.
* * *
[Commonwealth]. Can you describe, Officer Press, how close in
proximity were these items all to each other?
[Officer Press]. They were all right next to each other . . .
(Id. at 83-84). The Commonwealth then displayed the guns and bullets to
the jury. (See id. at 86-88). This was the only mention of the gun by the
Commonwealth. As discussed above, the evidence against Appellant
concerning the sale of narcotics was overwhelming. This evidence included
surveillance evidence that demonstrated Appellant’s control of the heroin
stashed in his truck, the monies concealed in another of Appellant’s vehicles,
his connection to the cell phones used in the operation, the testimony of one
of his employees, and Appellant’s own admissions to the police. Given this,
the prejudice arising from a brief mention of a gun seized during the search
of Appellant’s vehicle was de minimis. See Commonwealth v. Passmore,
857 A.2d 697, 711 (Pa. Super. 2004), appeal denied, 868 A.2d 1199 (Pa.
2005) (error is harmless when “the prejudice was de minimis[.]”).
Moreover, the trial court provided three cautionary instructions to
which defense counsel agreed, (see N.T. Trial, 9/11/14, at 84, 275-76; N.T.
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Charge, 9/12/14, at 26), and which the jury is presumed to have followed,
see Commonwealth v. Spotz, 716 A.2d 580, 587 (Pa. 1998), cert. denied,
526 U.S. 1070 (1999). Therefore, we conclude that Appellant has not
demonstrated that he was prejudiced by the introduction of the evidence.
Accordingly, for the reasons discussed above, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2016
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