J-S21003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KENNETH J. SPONSLER

                            Appellant                 No. 208 WDA 2016


            Appeal from the Judgment of Sentence January 12, 2016
                 In the Court of Common Pleas of Blair County
              Criminal Division at No(s): CP-07-CR-0000935-2015
                            CP-07-CR-0000941-2015


BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                            FILED APRIL 26, 2017

        Kenneth J. Sponsler appeals from the judgment of sentence, entered

in the Court of Common Pleas of Blair County, following his conviction for

multiple offenses stemming from a narcotics transaction.1 After review, we

affirm.




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Sponsler was charged and convicted of possession of a controlled
substance, 35 P.S. §780-113(a)(15) (heroin), delivery of a controlled
substance, 35 P.S. §780-113(a)(30), and criminal conspiracy, 18 Pa.C.S.
§903.
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       On September 8, 2014, the West IV Drug Task Force2 (“Task Force”)

coordinated a controlled buy of heroin between a previously developed

confidential informant (“CI”) and an associate of Sponsler, Dennis Campbell.

The CI informed Task Force Sergeant Christopher Moser he had arranged a

purchase with Campbell to buy five packets of heroin for one hundred

dollars, and that the heroin “would come from a white male named Ken

[Sponsler].” N.T. Trial, 10/19/15, at 140. The CI stated Sponsler drove a

blue Saturn vehicle. Before the CI initiated the buy, Sergeant Moser strip-

searched him for contraband and found none.             Sergeant Moser then

provided the CI with one hundred dollars buy money, and another Task

Force officer drove the CI to meet Campbell at his apartment.

       After the CI arrived, he entered Campbell‟s apartment, where he

observed Campbell make a phone call to a person Campbell identified as

Sponsler.    Shortly thereafter, Sergeant Moser observed Sponsler arrive at

the apartment in a blue Saturn, license plate number HFG5160, registered to

“Kenny Sponsler.” Sponsler entered the apartment and proceeded to the

bathroom in Campbell‟s bedroom. Campbell gestured, with head nods, for

the CI to give him the buy money, and took receipt of the one hundred

dollars from the CI.       Campbell then followed Sponsler into the bathroom.


____________________________________________


2
 The West IV Task Force consists of law enforcement officers of the Altoona
County Police Department, the Altoona County Sheriff‟s Department, the
Pennsylvania State Parole Office, and the Blair County Parole Office.



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The CI did not follow Sponsler and Campbell into the bathroom, stating

doing so would have been irregular and may have compromised the heroin

transaction.    Moments after Campbell entered the bathroom, he and

Sponsler exited, and Campbell handed the CI five bags of heroin. Afterward,

the CI left Campbell‟s apartment and turned the heroin over to the Task

Force.    During the course of the controlled buy, the CI constantly

communicated with Sergeant Moser via cellular text messaging.

      On April 01, 2015, Altoona Police Patrolman Fred Wasser and Agent

Hauser of the State Parole Office, during the course of a countywide raid,

executed an arrest warrant for Sponsler stemming from the September 8,

2014 heroin transaction. Following a lengthy chase, Patrolman Wasser and

Agent Hauser apprehended Sponsler.

      On October 15, 2015, Sponsler proceeded to jury trial. During direct

examination of Patrolman Wasser, the Commonwealth elicited the following

testimony:

      PATROLMAN WASSER: My assignment was the arrest, capture of a
      target.

      …

      COMMONWEALTH: And did you go by yourself to execute this
      assignment or were you given a partner?

      A.: I was assigned a team member force the day. That team
      member was Agent Hauser with the State Parole Office.

      Q.: And does State Parole and other entities such as the
      Sheriff‟s Department and county parole participate in executing
      these sweeps or drug raids?

      A.: Yes, sir.

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N.T. Trial, 10/19/15, at 101-02.     Wasser‟s mention of “the State Parole

Office” prompted Sponsler‟s counsel to make a motion for mistrial on the

grounds the Commonwealth introduced fatal prejudice.       Id.   Prior to trial,

the Commonwealth and Sponsler agreed not “to mention parole and any

kind of reference to it.” Id.   The trial court denied Sponsler‟s motion, but

offered to provide the jury a cautionary instruction. Id. Sponsler declined

the offer and acknowledged on the record that the testimony regarding the

State Parole Agent “was not prompted by the Commonwealth,” but rather,

“was a spontaneous answer from the officer.” Id.

      Later, during direct examination of Patrolman Daniel Vasil, Sponsler

again requested sidebar to discuss the introduction of potentially prejudicial

testimony. The Commonwealth assured the court it would not ask any

questions about the State Parole Office or State Parole Agents, and, in fact,

had prepared no such questions.       N.T., 10/19/15, at 120.     Neither the

Commonwealth nor Sponsler called State Parole Agent Hauser to testify.

      On January 12, 2016, the court sentenced Sponsler to three to six

years‟ imprisonment. On February 1, 2016, Sponsler filed a timely appeal,

and on February 5, 2016, the court granted Sponsler leave to proceed on

appeal in forma pauperis pursuant to Pa.R.A.P. 522(d). The trial court did

not serve a Pa.R.A.P. 1925(b) order to Sponsler until August 23, 2016. On

September 12, 2016, he timely filed a Pa.R.A.P. 1925(b) concise statement

of matters complained of on appeal. Sponsler presents the following issues

for our review:

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           1. Whether the trial court erred where it denied Sponsler‟s
              mistrial motion after Commonwealth‟s witness testified
              that a State Parole Officer assisted executing an arrest
              warrant for Sponsler, where the jury could have
              reasonably inferred that the accused had engaged in other
              unrelated criminal activity?

           2. Whether the evidence presented by the Commonwealth
              was sufficient to sustain the verdict when no one was able
              to observe the alleged delivery of drugs, which left the jury
              to decide the case on speculation and conjecture?

         Sponsler   first   claims Patrolman Wasser‟s testimony created an

inference in the minds of the jurors of prior criminal activity on the part of

Sponsler, which created unfair prejudice and therefore denied him a fair

trial.

         Where a defendant challenges testimony on the basis that it refers to

prior criminal activity, the operative question is whether or not a juror “could

reasonably infer from the facts presented that the accused had engaged in

prior criminal activity.” Commonwealth v. West, 656 A.2d 519, 521 (Pa.

Super. 1995) (citation omitted). However, there is no per se rule that any

mention of a defendant's prior criminal activity warrants a mistrial. See

Commonwealth v. Valerio, 712 A.2d 301, 303 (Pa. Super. 1998) (“there

is no „per se‟ rule requiring a new trial for every reference” to appellant‟s

prior criminal activity).      Rather, reference to prior criminal activity only

warrants reversal if the record illustrates that prejudice resulted from the

reference.     See Commonwealth v. Nichols, 400 A.2d 1281, 1281 (Pa.

1979) (“passing references” to criminal activity do not warrant reversal).




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      Sergeant Wasser‟s testimony that a State Parole Agent participated in

the execution of Sponsler‟s arrest warrant does not reference prior criminal

activity on the part of Sponsler. Rather, it created potentially prejudicial

ambiguity as to the role of the state parole office in this case. The

Commonwealth sought to clarify the role of the state parole office by

submitting testimony to the jury that various law enforcement agencies

participate in countywide sweeps and drug raids.          There are no other

references to parole in the record. Additionally, the record indicates the

intent of the prosecutor in asking this question was merely to “introduce the

fact [Sergeant Wasser] was not by himself.” N.T. Trial, 10/19/15, at 103.

      Sponsler concedes the Commonwealth did not intentionally elicit

testimony regarding the state parole agent, and the Commonwealth took

special care to prevent further incidental references to the State Parole

Office. Id. at 103, 120.    See Commonwealth v. Richardson, 437 A.2d

1162 (Pa. 1981) (nature of reference to prior criminal conduct of defendant

as well as whether Commonwealth intentionally elicited remark are

considerations relevant to determination of whether mistrial is required when

witness refers to prior criminal conduct of defendant).

      Moreover, the trial court offered to provide the jury with a cautionary

instruction. N.T. Trial, 10/19/2015, at 103. Commonwealth v. Ford, 607

A.2d 764, 766-67 (Pa. Super. 1997) (“[I]n certain situations, curative

instructions may suffice to remove the taint of unintentional and innocuous

reference to prior criminal activity.”); see Commonwealth v. Rhodes, 378

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A.2d 901 (Pa. Super. 1977) (where it is evident that introduction of an

improper reference was not intentional and nature of comment was

innocuous, immediate and effective curative instructions may remedy error).

However, Sponsler‟s counsel declined the trial court‟s offer to provide an

instruction. This tactical decision does not necessarily defy convention nor

does it necessitate a mistrial. See Commonwealth v. Gilliard, 446 A.2d

951, 953 (Pa. Super. 1982) (mistrial not granted where trial judge offered to

give cautionary instruction to cure witness‟ prejudicial remark, but appellant

declined for tactical reasons).           Indeed, in some instances, cautionary

instructions are more prejudicial than curative.        See Commonwealth v.

DeCampli, 364 A.2d 454, 459 (Pa. Super. 1976). (“Any doubt in the minds

of the jury about appellant's prior criminal conduct was eradicated by the

sheer number of times that the court was forced to give cautionary

instructions, which only served to underscore the meaning of the prejudicial

testimony.”).

       After review, we conclude the references to Agent Hausler and the

State Parole Office did not deprive Sponsler of a fair trial. Therefore, the

remarks are not grounds for mistrial.

       In his final claim, Sponsler asserts that the evidence was insufficient to

support the verdict.3 In reviewing a challenge to the sufficiency of the

____________________________________________


3
  We note that the trial court‟s Rule 1925(b) opinion fails to address
Sponsler‟s challenge to the sufficiency of the evidence. The trial court states
(Footnote Continued Next Page)


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evidence, we must determine whether, viewing the evidence in the light

most favorable to the Commonwealth as verdict winner, together with all

reasonable inferences therefrom, the trier of fact could have found that each

and every element of the crimes charged was established beyond a

reasonable doubt. Commonwealth v. Randall, 758 A.2d 669, (Pa. Super.

2000).

      It is important to note the distinctions between a claim challenging the

sufficiency of the evidence and a claim that challenges the weight of the

evidence.     See Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.

2000). Acknowledging this distinction, we proceed with our analysis.

      In order to convict an accused of possession with intent to deliver

under 35 P.S. § 780-113(a)(3)), “the Commonwealth must prove that he

both possessed the controlled substance and had an intent to deliver that

substance.”     Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super.

2011) (citations omitted).

      The CI testified that he contacted Campbell with the intent to purchase

five packets of heroin for one hundred dollars, and that Campbell told him


                       _______________________
(Footnote Continued)

with respect to issue 2, “For the defense matter #2 the verdict was against
the weight of the evidence, the court will rely on the record.” Nevertheless,
we are able to review Sponsler‟s claim.           See Eiser v. Brown &
Williamson Tobacco Corp., 938 A.2d 417 (Pa. 2007) (failure of trial court
to address issues raised by appellant in 1925(b) statement impedes
appellate review).



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Sponsler would provide the heroin. The CI, Campbell and Sponsler met at

Campbell‟s apartment, where the heroin transaction occurred. The CI did

not give payment or take receipt of the heroin until after Sponsler arrived

and met in private with Campbell. Although Campbell and Sponsler were out

of the CI‟s view immediately before the CI gave payment and took receipt of

the heroin, the CI testified this was normal.

      This evidence, viewed in light most favorable to the Commonwealth,

establishes that Sponsler had possession of at least five packets of heroin

and   planned   and   participated   in   the   distribution   of   heroin.   See

Commonwealth v. West, 937 A.2d 516 (Pa. Super. 2007) (evidence was

sufficient to support conviction for delivering cocaine; confidential informant

telephoned police and arranged to buy cocaine, officers searched confidential

informant‟s person and vehicle before the drug buy to verify that he did not

possess drugs or money, officers gave confidential informant currency to

purchase cocaine, officers observed confidential informant meet with

defendant, afterward the confidential informant gave the police cocaine he

had just purchased; confidential informant would later testify, at trial, that

he bought the cocaine from appellant).

      Judgment of sentence affirmed.




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J-S21003-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2017




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