J-S74025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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