J-S59025-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                   :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                     Appellee                   :
                                                :
             v.                                 :
                                                :
DORRELL ANTWUN McLAURIN,                        :
                                                :
                     Appellant                  :   No. 288 WDA 2015

           Appeal from the Judgment of Sentence January 28, 2015,
                     Court of Common Pleas, Erie County,
              Criminal Division at No. CP-25-CR-0000508-2014

BEFORE: BOWES, DONOHUE and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                               FILED OCTOBER 20, 2015

       Dorrell Antwun McLaurin (“McLaurin”) appeals from the January 28,

2015 judgment of sentence entered by the Erie County Court of Common

Pleas following his convictions of three counts of possession of a controlled

substance (marijuana, cocaine and ecstasy, respectively), three counts of

possession    with    intent     to   deliver   a   controlled   substance   (“PWID”)

(marijuana, cocaine and ecstasy, respectively), and one count of possession

of drug paraphernalia.1 Upon review, we affirm.

       The trial court aptly summarized the facts of this case as follows:

                The genesis of these charges occurred on
             December 18, 2013 at approximately 6:00 a.m.,
             when City of Erie Police Officers, with the assistance
             of the Erie SWAT Team and other agencies, served a
             search warrant at 941 East 23rd Street, Erie,
             Pennsylvania. Trial Transcript, Day One, November


1
    35 P.S. § 780-113(a)(16), (30), (32).

*Former Justice specially assigned to the Superior Court.
J-S59025-15


          18, 2014 (“T.T. 1”), pp. 31 -33. The residence was
          owned by Joune McLaurin. [Id. at] 100. [Joune]
          McLaurin was not present during the search and was
          not called as a witness at trial.

             The search warrant was obtained on December
          18, 2013, following two controlled buys of marijuana
          at the residence. The first controlled buy was
          performed within two weeks of issuance of the
          search warrant; the second buy was performed
          within 48 hours of issuance of the warrant. [Id. at]
          84-86; Trial Transcript, Day Two, November 19,
          2014 (“T.T. 2”), p. 7. Each controlled buy was for
          $60.00. T.T. 2, p. 8. Detective Michael Chodubski,
          Erie Police Department Drug and Vice Unit, an expert
          in vice and narcotics investigations and lead
          detective in this case, was involved with the
          controlled buys and the subsequent issuance and
          execution of the search warrant on December 18,
          2013. Detective Chodubski made photocopies of the
          currency used for the controlled buys. T.T. 1, pp. 80
          -83, 86.

              On the morning of December 18, 2013, the police
          announced their presence and intent to search the
          residence, and knocked on the door. As there was no
          response, officers forced entry through the front and
          rear doors. [Id. at] 34-37. [McLaurin] was brought
          downstairs from the second floor by SWAT Team
          officers. [McLaurin] was wearing boxer shorts and a
          tank shirt. He was accompanied by a female, Honey
          Lucas, who was believed to be [McLaurin]’s
          girlfriend. Also in the residence were Lucas’ four
          children, and another individual, James Dunlap.
          Dunlap was in the front TV room. [Id. at] 38-41; 56-
          57.

             The police assisted [McLaurin] in getting
          [McLaurin]’s diabetes medication, his breakfast, and
          his clothing [from a laundry basket containing folded
          clothes] so he could dress. [Id. at] 40-42. …




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             The parties stipulated [that] a total of 35.02
          grams of marijuana was found in the residence. [Id.
          at] 101. The marijuana consisted of 34.14 grams of
          marijuana found in two knotted sandwich baggies in
          a pair of jeans in the master bedroom upstairs, and
          a small bag of marijuana in a kitchen cupboard. [Id.
          at] 50; 88; 91; 101. The street value of homegrown
          marijuana was from $1,500.00 to $2,000.00 per
          pound; the street value of any medical grade
          marijuana was from $5,000.00 to $6,000.00 per
          pound. T.T. 2, p. 34.

             The parties stipulated [that] fifty-eight ecstasy
          tablets weighing 18.33 grams were found in a
          Twinkie box in a kitchen cupboard. T.T. 1, pp. 89;
          101. The street value of the ecstasy was from
          $10.00 to $20.00 per pill, or from $580.00 to
          $1,160.00 for all the pills recovered. [Id. at] 105.

             The parties stipulated [that] cocaine weighing a
          total of 15.09 grams was recovered during the
          search. [Id. at] 90; 101. A bag of crack cocaine and
          shake was found in a kitchen cupboard, next to the
          ecstasy pills and the small bag of marijuana. [Id. at]
          90 -91. Three knotted baggies containing cocaine
          were found in an orange pill bottle under the
          mattress of a child’s bed, in a child’s bedroom which
          adjoined the master bedroom upstairs. [Id. at] 42 -
          45; 90, 92. The police found a book bag in the
          master bedroom which contain[ed] a knotted baggie
          holding a white powdered substance, and numerous
          food storage bags containing marijuana residue. [Id.
          at] 51; 62-63. The street value of the cocaine was
          approximately $100.00 per gram, or $1,500.00. T.T.
          2, p. 34.

             Cash totaling $6,036.00 was seized from the
          residence. $5,000.00 was found inside a Crown
          Royal bag, which was found inside the pocket of a
          Yale Bulldog college-type jacket hanging from the
          door adjoining the master bedroom and the child’s
          bedroom room. The $5,000.00 was [“]stacked,[”] or
          bundled together in thousand dollar increments. T.T.



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          1, p. 45-47. The size of the men’s jacket and men’s
          clothing was consistent with [McLaurin]’s size and
          shape. [Id. at] 67.

             The sum of $1,036.00 was found in [McLaurin]’s
          black leather wallet, on the floor of the master
          bedroom, next to the adult clothing. Eighty dollars
          ($80.00) of the money in [McLaurin]’s wallet was
          Erie Police Department “buy money” from the
          previous controlled purchases of marijuana at the
          residence. [Id. at] 61 -62; 97 -98; T.T. 2, p. 36. The
          police determined this based on the photocopies of
          the currency used for the previous controlled drug
          purchases. T.T.. 2, p. 97. The wallet also contained
          [McLaurin]’s identification card, and medical cards
          for [McLaurin] and the children. T.T. 1, pp. 47-49.

             Weapons and ammunition were also found in the
          residence. The police found a loaded firearm, a
          Ruger P95 9mm semiautomatic pistol, under the
          mattress in the master bedroom. [Id. at] p. 49. A
          Ruger P85 9mm gun was found in the kitchen
          cupboard, next to the crack cocaine, ecstasy pills,
          and marijuana. [Id. at] 91. A Smith and Wesson
          Model MP15-22 AR rifle loaded with a magazine of 24
          rounds was found under the mattress of the small
          child’s bed, along with the baggies of cocaine
          contained in the orange pill bottle. [Id. at] 91 -92.
          Ammunition was found in a third bedroom. [Id. at]
          93. A Camel 12-gauge shotgun was found in the
          basement. [Id.] A box of Winchester Superior .22
          caliber ammunition was found in a kitchen cupboard.
          [Id. at] 94. A spent 9mm casing was found on the
          kitchen floor. [Id.]

             Additional items, including the following, were
          recovered from the residence: a food storage bag
          containing marijuana residue, labeled “Larry OG[,]”
          which was found in the kitchen, [Id. at] 51 -52; 63;
          a red container, labeled “King Louis OG 23 percent
          total cannabinoids for medical use only[,]” which was
          found in a kitchen cupboard, [Id. at] 96; and four
          brand–name cell phones, which were found in the



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            living room. [Id. at] 53; 65. A digital scale was found
            on the living room floor. [Id. at] 53, 64. A trash
            collection bill addressed to [McLaurin] at the
            residence was found in kitchen cupboard, next to the
            drugs. The due date on the bill was August 26, 2013,
            approximately four months prior to the search. [Id.
            at] 96. A box of Glad sandwich baggies, and smaller,
            tear apart Ziploc Apple Baggies with the print of a
            crown on them, were found in the same kitchen
            cupboard. [Id. at] 95-96; 99.

               [McLaurin] was arrested. At the police station,
            [McLaurin] admitted to Detective Chodubski that
            everything found in the residence belonged to him,
            including the drugs and the guns. [Id. at] 107.

Trial Court Opinion, 6/4/15, at 1-5.

      The day before trial commenced, McLaurin filed a motion in limine

seeking to exclude, inter alia, evidence of the firearms and buy money

discovered during the search of the home.            The trial court denied the

motion.

      Thereafter,   a   two-day   jury     trial   commenced,    at   which     the

Commonwealth presented the above-summarized information.                  McLaurin

presented one witness – his mother – who testified, in relevant part, that he

resided with her at 712 Chestnut Street; she knew nothing about 941 East

23rd Street; and she did not know anyone named Joune McLaurin.

      On   November     19,   2014,    a   jury    convicted   McLaurin    of   the

aforementioned charges. The trial court sentenced him on January 28, 2015

to an aggregate term of eighteen to sixty months of incarceration, followed

by one year of probation.



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         This timely appeal followed. McLaurin raises one issue for our review:

“Whether the trial court abused its discretion by admitting irrelevant

evidence involving weapons and marked U.S. currency since the prejudicial

impact of that evidence outweighed any probative value?” McLaurin’s Brief

at vi.

         We review challenges to the admissibility of evidence according to the

following standard:

                 Admission of evidence is a matter within the
              sound discretion of the trial court, and will not be
              reversed absent a showing that the trial court clearly
              abused its discretion. Not merely an error in
              judgment, an abuse of discretion occurs when the
              law is overridden or misapplied, or the judgment
              exercised is manifestly unreasonable, or the result of
              partiality, prejudice, bias, or ill-will, as shown by the
              evidence on record.

Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009) (internal

citations omitted), cert. denied, 562 U.S. 857 (2010).

         We begin by addressing the trial court’s admission of the marked Erie

Police Department buy money found in McLaurin’s wallet.                   The record

reflects that Detective Chodubski testified that prior to the execution of the

search warrant at 941 East 23rd Street, a confidential informant working

with the Erie Police Department made two controlled buys of marijuana at

that location – one within two weeks of the search, the other within forty-

eight hours of the search. N.T., 11/18/14, at 84-86. Prior to the controlled

buys occurring, Detective Chodubski photocopied each of the dollar bills that



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the confidential informant would use to purchase the drugs.        Id. at 86.

Detective Chodubski further testified that when police conducted the search

of 941 East 23rd Street, they found $1036 in McLaurin’s wallet, $80 of which

was marked money used in the controlled buys. Id. at 97.

      McLaurin argues that by permitting the admission of evidence that he

possessed money from the controlled buys, the trial court impermissibly

permitted evidence of McLaurin’s prior bad acts. McLaurin’s Brief at 17-18.

The trial court found the evidence was admissible as “it tended to establish

[McLaurin]’s intent to deliver drugs, and the evidence was sufficiently linked

to [McLaurin] to warrant its admission.” Trial Court Opinion, 6/4/15, at 13

(citing Commonwealth v. Matthews, 609 A.2d 204, 206, 207 (Pa. Super.

1992)). We agree.

      Pennsylvania Rule of Evidence 404(b) precludes the use of other

crimes, wrongs, or acts to prove the defendant’s culpability for the instant

crime. Pa.R.E. 404(b)(1). Such evidence may be admissible, however, for

other purposes, including but not limited to “proof of motive, opportunity,

intent, preparation, plan, knowledge, identity or absence of mistake or

accident.” Pa.R.E. 404(b)(2). “In a criminal case this evidence is admissible

only if the probative value of the evidence outweighs its potential for unfair

prejudice.” Id.

      As the trial court recognizes, this Court has previously decided the

question of the admissibility of evidence regarding a controlled buy in a



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prosecution for PWID where the defendant is not being charged with any

crimes related to the controlled buy.    See, e.g., Matthews, 609 A.2d at

206-07; Commonwealth v. Washington, 573 A.2d 1123, 1126 (Pa.

Super. 1990).     In determining whether evidence of a controlled buy is

admissible to show the defendant’s intent for a PWID charge, courts must

consider “whether there was sufficient quantum of proof linking [the

defendant] with the uncharged criminal act so as to make it relevant to the

question of [the defendant]’s intent.” Washington, 573 A.2d at 1126.

               To keep sight of the underlying policy of
            protecting the accused of unfair prejudice, courts
            must balance the actual need for the other crimes
            evidence in the light of the issues, the evidence
            available to the prosecution, the convincingness of
            the evidence that other crimes were committed and
            that the accused was the actor, the strength or
            weakness of the other crimes evidence in supporting
            the issue, and the degree to which the jury will
            probably be roused by the evidence to over-
            mastering hostility.

Id. (citation omitted).

      Applying the above balancing test in the case at bar, we conclude that

Detective Chodubski’s testimony about the controlled buys was properly

admitted into evidence. Beginning with the first element, we note that there

was some evidence available to the prosecution to prove that McLaurin

possessed the drugs with the intent to deliver, e.g., the presence of a digital

scale, drug packaging materials, large amounts of cash, and guns in the

home. See Matthews, 609 A.2d at 206 (referring to scales, drug packaging



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materials and a loaded handgun as indicia of drug dealing); N.T., 11/18/14,

at 103, 105-06. Although Detective Chodubski testified that the amount of

ecstasy and cocaine found in the home was inconsistent with personal use,

he    admitted that    the   amount of marijuana found     in the   home –

approximately thirty-five grams – could have been for personal use, as the

amount of marijuana found was only slightly more than what the law

considers “a small amount of marijuana.” Id. at 103-05; see 35 P.S. § 780-

113(a)(31) (identifying thirty grams of marijuana as “a small amount”).

Thus, we conclude, as we did in Matthews, that “since the quantity of the …

marijuana might not be so great as to raise a reasonable inference of ‘intent

to deliver[,]’ … such evidence [was] needed (although not absolutely

necessary) to establish [the defendant]’s intent to deliver.” Matthews, 609

A.2d at 206.

       Turning to the second and third elements of the test, the record

reflects that the controlled buys took place at 941 East 23rd Street and were

close in time to the execution of the search warrant. N.T., 11/18/14, at 85-

86.    Detective Chodubski photocopied each dollar bill the confidential

informant used to purchase the drugs.      Id. at 86.   When executing the

search warrant, police found $80 of the marked buy money in McLaurin’s

wallet.   Id. at 97.   As McLaurin admitted that the marijuana belonged to

him, the evidence that he possessed the buy money convincingly ties him to




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the sale of the marijuana to the confidential informant and strongly supports

a finding that McLaurin possessed the marijuana with the intent to deliver.

      Addressing the final element of the test, McLaurin does not argue, and

we have no basis to conclude, that evidence that he sold marijuana to a

confidential police informant would “rouse[ the jury] to over-mastering

hostility.”     Washington, 573 A.2d at 1126.            The record reflects that

Detective Chodubski did not go into any unnecessary detail about the

controlled buys, limiting his testimony to relevant information concerning the

fact that the controlled buys occurred, the police recorded the money used

in the buys, and the recorded money was found in McLaurin’s possession.

      The evidence of McLaurin’s possession of marked money was relevant

to prove McLaurin’s intent with respect to his possession of the marijuana

found at the residence. Furthermore, we conclude that the probative value

of this evidence was high and outweighed the potential for unfair prejudice.

See Pa.R.E. 404(b)(2).          As McLaurin acknowledges, Detective Chodubski

testified     that   McLaurin   admitted   that   he   possessed   the   marijuana.

McLaurin’s Brief at 14; N.T., 11/18/14, at 107. Therefore, assuming the jury

found Detective Chodubski’s testimony credible, the sole question before the

jury was whether McLaurin possessed the drugs with the intent to deliver.

Although, as stated above, the Commonwealth presented evidence that

supported an inference that McLaurin did not have the marijuana solely for

personal use, there was other evidence that weighed against such a finding



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as well.   As such, evidence that he sold marijuana to the confidential

informant was needed to establish his intent to deliver.      See Matthews,

609 A.2d at 206. We therefore conclude that the trial court did not abuse its

discretion by permitting the Commonwealth to present evidence of the

controlled buys.

      McLaurin further argues that the trial court abused its discretion by

permitting the Commonwealth to present evidence that the police found

guns when executing the search warrant. McLaurin’s argument is based in

part upon his assessment “that at all times relevant to these proceedings,

there were almost daily reports of shootings” in Northwestern Pennsylvania,

which he contends would have prejudiced the jury in their deliberations.

McLaurin’s Brief at 15-16. As McLaurin recognizes, however, this argument

was not raised before the trial court.   Id. at 15.   Therefore, it is waived.

See   Commonwealth        v.   Murray,   83   A.3d    137,   159   (Pa.    2013)

(“preservation of the specific argument in support of the ground for reversal

is required for appellate review”) (citation omitted); Pa.R.A.P. 302(a).

      McLaurin further urges us to “view this matter as the admission of

evidence of other crimes, wrongs or acts.”        McLaurin’s Brief at 17-18.

However, it is neither wrong nor illegal to possess a firearm. As there was

no evidence presented at trial that McLaurin’s possession of the firearms in

question was unlawful, we cannot evaluate the admission of this evidence as




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being that of a crime, wrong or bad act.      See Commonwealth v. Dean,

693 A.2d 1360, 1367 (Pa. Super. 1997).

      We therefore review this matter under traditional principles of

admissibility.    In this respect, McLaurin states that there was no evidence

tying him to the guns, i.e., no fingerprints found on the guns, and thus,

there was no “real or actual link” between McLaurin and the guns.

McLaurin’s Brief at 15. Therefore, McLaurin asserts that “the introduction of

testimony concerning the weapons would have only had the impact of

prejudicing the jury in determining whether the Commonwealth had met its

burden of proof with regard to [PWID] of the three separate drug felony

charges.” Id. In advancing this argument, McLaurin ignores the evidence

presented that he admitted to Detective Chodubski that “everything found in

the residence is mine.”       N.T., 11/18/14, at 107.     Detective Chodubski

testified that he specifically followed up and asked if the guns belonged to

McLaurin, and McLaurin responded, “yes.” Id.

      Furthermore, the record reflects that Detective Chodubski testified,

without objection, as an expert in the field of vice and narcotics

investigations.    Id. at 80-81.   He testified that in his expert opinion, the

controlled substances recovered from the house were possessed with the

intent to deliver and were not for personal use.      Id. at 102.   One of the

bases for this opinion was that there were multiple firearms found in the

home:



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                 Drug dealing is a cash business, and as you all
              know, there’s home invasions that happen all the
              time, and drug dealers need to protect their
              proceeds from what they deal. And that’s their main
              way to protect themselves is the firearms. And in
              this incident, there were five. There was [sic] five
              guns that were found, not all of them loaded, but all
              were functional.

Id. at 105.

      “Evidence is admissible in a criminal case if it logically or reasonably

tends to prove or disprove a material fact in issue, tends to make a fact

more or less probable, or if it is a basis for or supports a reasonable

inference or presumption regarding the existence of a material fact.” Dean,

693 A.2d at 1367; Pa.R.E. 401, 402. Furthermore, “[a]n expert may base

an opinion on facts or data in the case that the expert has been made aware

of or personally observed. If experts in the particular field would reasonably

rely on those kinds of facts or data in forming an opinion on the subject,

they need not be admissible for the opinion to be admitted.” Pa.R.E. 703.

      The evidence of the guns was relevant to prove a material fact; here,

that McLaurin possessed the drugs with the intent to deliver.            Detective

Chodubski relied in part upon the presence of firearms in the home in

arriving at his expert opinion that McLaurin possessed the controlled

substances found in the home with the intent to deliver. We therefore find

no abuse of discretion in the trial court’s admission of the evidence.

      Judgment of sentence affirmed.




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J-S59025-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/20/2015




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