J. S03001/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                  v.                       :
                                           :
ERIC WATSON,                               :         No. 322 EDA 2014
                                           :
                        Appellant          :


       Appeal from the Judgment of Sentence, December 16, 2013,
          in the Court of Common Pleas of Philadelphia County
            Criminal Division at No. CP-51-CR-0012373-2012


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                  v.                       :
                                           :
ERIC WATSON,                               :         No. 323 EDA 2014
                                           :
                        Appellant          :


       Appeal from the Judgment of Sentence, December 16, 2013,
          in the Court of Common Pleas of Philadelphia County
            Criminal Division at No. CP-51-CR-0012374-2012


BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED APRIL 18, 2016

     Eric Watson appeals from the December 16, 2013 judgment of

sentence   following   his   convictions   of   aggravated   assault,   recklessly
J. S03001/16


endangering another person,1 and fleeing or attempting to elude a police

officer.2 We affirm.

        The trial court provided the following factual history:

                    Trial began on August 7, 2013.           At trial,
              Defendant was represented by Gary S. Silver,
              Esquire and the Commonwealth attorney was
              Kevin Harden, Esquire. During the Commonwealth’s
              opening statement, defense counsel objected to the
              prosecutor’s reference to the arresting officers
              recovering a small packet that had fallen from the
              area of Defendant’s person. The Commonwealth’s
              attorney specifically said, “(Defendant) almost
              seriously injured Officer Allen over one pack of
              heroin.”    Defense counsel argued that allowing
              evidence of the drugs would be unfairly prejudicial to
              the Defendant. The prosecutor responded that the
              evidence should be admitted as evidence of motive
              as to why the Defendant acted in the manner that he
              did. This Court ruled that the admission of the
              evidence was effectively an untimely motion in limine
              made by the Commonwealth during trial, and
              granted the motion, thereby overruling defense
              counsel’s motion. Additionally, this Court ruled that
              defense counsel was allowed to argue to the jury
              that the charge of intentional possession of a
              controlled substance was discharged at the
              preliminary hearing due to lack of evidence. In
              addition, a curative instruction was read twice to the
              [jury], once upon re-entering the courtroom after
              the objection and again at the close of trial. Defense
              counsel then motioned for a mistrial, on the grounds
              that the evidence was unfairly prejudicial to the
              Defendant, and this Court denied the motion.


1
  The Commonwealth charged appellant with two counts of recklessly
endangering another person, with one count at CP-51-CR-0012373-2012
and the other count at CP-51-CR-0012374-2012. All other charges against
appellant were filed at CP-51-CR-0012373-2012.
2
    18 Pa.C.S.A. §§ 2702, 2705, and 75 Pa.C.S.A. § 3733, respectively.


                                       -2-
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                 The Commonwealth called Officer Santos
          Higgins (“Higgins”) to testify first. Higgins testified
          he had been a Philadelphia Police Officer for 8 years,
          and had been assigned to the 17th District since he
          graduated from the academy. On June 29, 2012,
          Higgins was assigned to patrol in the 17th District
          with his partner, Officer Samuel Allen (“Allen”) and
          Officer Joseph Marrero (“Marrero”) as part of a
          marked RPC unit known as 17 Tac One. Higgins
          testified that the patrol vehicle was proceeding
          westbound on the 1500 block of Reed Street when
          he saw Defendant, driving a blue minivan, come
          from the 1400 block of South Hicks Street and then
          turn onto the 1500 block of Reed Street. Higgins
          stated that when Defendant turned, he disregarded a
          stop sign. The officers pulled Defendant over at the
          1600 block of Reed Street, at which point Higgins
          and Allen approached the vehicle. Higgins further
          testified that he became suspicious when Defendant
          was seen moving around in the vehicle after he had
          been pulled over.

                 Higgins testified that he approached the car
          from the passenger side, and ordered Defendant to
          roll down his window. Defendant did not roll down
          the window initially, but instead stared straight
          ahead in silence. Eventually, Defendant rolled down
          the window about a quarter of an inch on the driver’s
          side and unlocked the doors, at which point Higgins
          opened the passenger door and Allen opened the
          driver’s door. Higgins testified Allen began to speak
          with Defendant, and Higgins recalled Defendant only
          asking “why?” in response. Higgins stated that in his
          opinion, Defendant did not seem to be intoxicated or
          suffering from a medical condition at the time.
          Higgins testified Defendant had a cell phone on his
          lap, and Allen ordered him to turn it off. At that
          time, he observed Defendant grabbing the gearshift
          and steering wheel, and hitting the gas. Higgins
          testified Allen was pinned between the door of the
          vehicle and the doorframe, and held onto the vehicle
          as it moved. Higgins testified that he then stepped
          into the car through the open door on the passenger
          side. Once in the car, Higgins drew his firearm on


                                   -3-
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          Defendant and ordered him to stop the car, which he
          did. Higgins then pulled the key out of the vehicle.

                 The Commonwealth’s next witness was
          Marrero. Marrero testified that he had been assigned
          to the 17th District for approximately 4 years.
          Marrero testified that on the night of June 29, 2012,
          he was on patrol with Higgins and Allen. Marrero
          stated that when Defendant was stopped, he
          remained in the patrol vehicle to run Defendant’s
          vehicle’s license plate number on the mobile data
          terminal while Higgins and Allen approached the
          Defendant. Marrero testified that he overheard Allen
          asking Defendant multiple times to roll down his
          window and turn off his cell phone, to which
          Defendant only said “no” in response.         Marrero
          testified that he saw Defendant’s vehicle suddenly
          move forward with Higgins being dragged along the
          blacktop and Allen pinned between the door and the
          doorjamb of the vehicle. Marrero stated that he saw
          that Higgins was able to regain his footing and jump
          into the car, after which it came to a stop about
          20-30 feet from where it had been initially pulled
          over. Marrero and Allen then pulled Defendant from
          his vehicle and arrested him. Marrero testified that
          he saw something fall from Defendant’s area after
          Defendant was pulled from the car. He then told
          Allen that he had seen a small object fall from
          Defendant.

                The    third  and    final  witness   for   the
          Commonwealth was Allen. Allen testified that he had
          been assigned to the 17th District for the entire
          5½ years he had been a Philadelphia Police Officer.
          On the night of June 29, 2012, Allen had been
          assigned to 17 TAC One as the driver of the patrol
          vehicle. Allen testified that the patrol vehicle was
          heading westbound on the 1500 block of Reed
          Street, at which point he observed a blue minivan
          driven by Defendant traveling northbound on the
          1400 block of Hicks Street. The minivan then turned
          westbound onto the 1500 block of Reed Street,
          disregarding a stop sign in the process. Allen stated
          that after the minivan proceeded to the 1600 block


                                  -4-
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          of Reed Street, he signaled for Defendant to pull
          over, which Defendant did. Allen testified that he
          shined a spotlight into Defendant’s minivan, where
          he observed Defendant reaching towards the back of
          the vehicle, but could not see if Defendant was
          touching anything.

                Allen testified he approached Defendant’s
          minivan on the driver’s side, and knocked on the
          window indicating for Defendant to roll down the
          window. Allen stated Defendant refused to do so,
          but did not say anything. Allen testified that he
          again asked Defendant to roll down the window and
          unlock the door, and Defendant eventually complied.
          Allen testified that after Defendant rolled down the
          window and unlocked the door, he opened the door
          in order to better see what Defendant was doing. At
          that point, Allen noticed that there was a cell phone
          on Defendant’s lap with an open call. Allen testified
          he asked Defendant to turn the phone off and to
          shut off the car, but Defendant did not do so. Allen
          stated that Defendant then put the car into gear and
          drove. Allen testified that when Defendant pulled
          away, the door closed on him, and he held on to the
          door and the doorjamb. Allen stated that, although
          he was not injured by Defendant’s actions, he was
          afraid of being dragged underneath the car or
          smashed between Defendant’s vehicle and another
          car which was parked about 10-15 feet ahead of
          Defendant’s vehicle.

                 Allen testified that he recovered something
          from the scene, and defense counsel objected to the
          testimony. In a sidebar discussion, this Court ruled
          that the Commonwealth could allow the witness to
          testify that there was a recovery of narcotics, and
          then reminded defense counsel that they were
          allowed to explain to the jury that the charge was
          dismissed. When the jury was brought back into the
          courtroom, Allen testified that he recovered a blue
          glassine packet containing an off-white powder that
          was alleged to be heroin near the Defendant’s
          vehicle. On cross-examination, the defense did not
          further inquire about the drugs or question the


                                  -5-
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            witness about the fact that the charge had been
            discharged due to lack of evidence.           The
            Commonwealth then rested, and Defense rested.

                  During his closing statement, defense counsel
            raised the issue of the drugs that were allegedly
            found at the scene. He informed the jury that there
            were no charges related to drugs at this trial because
            another judge had discharged the drug offense. In
            response to the argument that the drugs could be
            used to explain motive on the part of the Defendant,
            defense counsel argued since the matter was
            discharged for lack of evidence, there could be no
            motive for something not in existence.

Trial court opinion, 8/22/14 at 3-7 (citations omitted).

      The trial court also provided the following procedural history:

                  On June 29, 2012, Defendant was arrested and
            charged with aggravated assault, fleeing or
            attempting to elude an officer, and two counts of
            recklessly endangering another person [“REAP”].

                  On August 7 to August 9, 2013, a trial was
            held in the presence of a jury. On August 9, 2013,
            Defendant was found guilty on all charges.          On
            December 16, 2013, this Court sentenced Defendant
            to 2 to 5 years state incarceration [] plus 5 years
            reporting probation on the aggravated assault
            charge, 1 to 2 years state incarceration on the
            charge of fleeing or attempting to elude an officer to
            run concurrently with the aggravated assault charge,
            1 to 2 years state incarceration on the first charge of
            REAP (CP-51-CR-0012373-2012) to run concurrently
            with the aggravated assault charge, and 11½ to
            23 months incarceration on the second REAP charge
            (CP-51-CR-0012374-2012) to run consecutively to
            the aggravated assault charge, for a total aggregate
            sentence of 3½ to 7 years state incarceration.[3] As

3
  We note that appellant’s aggregate sentence is no less than two years,
eleven and one half months and no more than six years, eleven months.
(See notes of testimony, 12/16/13 at 39.)


                                     -6-
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           a condition of this Court’s sentence, Defendant was
           ordered to undergo random urinalyses, to obtain
           drug treatment while in jail and to seek and maintain
           employment upon release.

                 On December 23, 2013, Defendant filed a
           Motion for Reconsideration through counsel.      On
           January 15, 2014, Defendant filed a Notice of Appeal
           to Superior Court.[4]      On June 9, 2014, after
           receiving all of the notes of testimony, this Court
           ordered Defense counsel to file a Concise Statement
           of Errors Complained of on Appeal [p]ursuant to
           Pa.R.A.P. 1925(b) by June 30, 2014. On June 25,
           2014, Mr. Gary Silver, Esquire, requested to
           withdraw as counsel for Defendant and requested an
           extension of time to file the Concise Statement of
           Errors. On June 26, 2014, this Court ordered that
           Mr. Silver be withdrawn as counsel for Defendant
           and granted new counsel thirty days following
           appointment to file the 1925(b) Statement.
           Mr. Douglas Earl, Esquire, was then appointed as
           counsel for Defendant and given until July 30, 2014
           to file the 1925(b) Statement of Errors, which
           counsel did so on that date.

Id. at 2-3 (footnote omitted).

                 On August 22, 2014, this Court filed an opinion
           responding to the issues raised in the Concise
           Statement of Errors filed July 30, 2014.          On
           September 8, 2014, Defendant, through counsel,
           filed a petition with the Superior Court seeking
           remand to add supplemental issues.                On
           November 10, 2014, the Superior Court remanded
           the case and instructed counsel to file a
           Supplemental Concise Statement of Errors within 21
           days, and defense counsel did so on December 1,
           2014.

4
  Although the present appeal appears to be premature, in response to a
rule to show cause by this court, appellant’s counsel supplied a copy of the
praecipe for entry of order denying post sentence motions by operation of
law. We will therefore “regard as done what should have been done,” and
consider the appeal as timely filed.


                                   -7-
J. S03001/16



Supplemental trial court opinion, 12/8/14 at 2-3. The trial court, pursuant

to Pa.R.A.P. 1925(a), provided a supplemental opinion in response to

appellant’s supplemental concise statement of errors complained of on

appeal on December 8, 2014.

      Appellant initially raises the following issues for our review:

            1.     Did the trial court abuse its discretion by
                   refusing to declare a mistrial after the
                   prosecutor’s improper reference in his opening
                   statement to Defendant’s alleged drug activity?

            2.     Even if a mistrial were not warranted, did the
                   trial court abuse its discretion by holding that
                   the Commonwealth was allowed to elicit
                   testimony relative to the alleged drugs found
                   at the scene, even though the court
                   acknowledged that the prosecutor failed to
                   provide reasonable notice of his intent to use
                   this evidence, and even though the probative
                   value of the evidence was outweighed by its
                   prejudicial effect?

Appellant’s brief at 4.

      Appellant raises the following additional issues for review in his

supplemental Rule 1925(b) statement:

            a.     The evidence was insufficient to support
                   Defendant’s conviction for aggravated assault
                   because there was insufficient evidence to
                   establish that Defendant attempted to cause or
                   intentionally or knowingly caused bodily injury
                   to any of the officer-complainants in question;

            b.     The evidence was insufficient to support
                   Defendant’s    convictions   for     recklessly
                   endangering another person because there was
                   insufficient evidence    to   establish    that


                                      -8-
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                  Defendant engaged in conduct that placed
                  anyone in danger of death or serious bodily
                  injury; and,

            c.    The evidence was insufficient to support
                  Defendant’s conviction [for] fleeing or evading
                  a police officer because there was insufficient
                  evidence to establish that Defendant fled from
                  the police.

Appellant’s supplemental Rule 1925(b) statement, 12/1/14 at 2. 5

      In his first issue for our review, appellant alleges prosecutorial

misconduct. Specifically, appellant avers that the Commonwealth referenced

a bag of heroin that was allegedly in appellant’s possession at the time of his

arrest and that the trial court erred in denying appellant’s request for a

mistrial. (See appellant’s brief at 10.)

            With regard to the denial of mistrials, the following
            standards govern our review:

                  In criminal trials, the declaration of a
                  mistrial serves to eliminate the negative
                  effect wrought upon a defendant when
                  prejudicial elements are injected into the
                  case or otherwise discovered at trial. By
                  nullifying the tainted process of the
                  former trial and allowing a new trial to
                  convene, declaration of a mistrial serves
                  not only the defendant’s interests but,

5
   Appellant failed to include any of the three issues raised in his
supplemental Rule 1925(b) statement in his brief. As a result, appellant
waives these issues on appeal, and we will not review them on the merits.
See Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014), cert. denied,
135 S.Ct. 1405 (2015) (“Where an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived. It is not the obligation of an appellate court to formulate appellant’s
arguments for him” (citation and internal brackets omitted)).


                                      -9-
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                  equally important, the public’s interest in
                  fair trials designed to end in just
                  judgments. Accordingly, the trial court is
                  vested with discretion to grant a mistrial
                  whenever the alleged prejudicial event
                  may reasonably be said to deprive the
                  defendant of a fair and impartial trial. In
                  making its determination, the court must
                  discern     whether      misconduct      or
                  prejudicial error actually occurred, and if
                  so, . . . assess the degree of any
                  resulting prejudice. Our review of the
                  resulting    order   is   constrained    to
                  determining whether the court abused its
                  discretion.

Commonwealth v. Hogentogler, 53 A.3d 866, 877-878 (Pa.Super. 2012),

appeal denied, 69 A.3d 600 (Pa. 2013) (citations omitted). “The remedy

of a mistrial is an extreme remedy required ‘only when an incident is of such

a nature that its unavoidable effect is to deprive the appellant of a fair and

impartial tribunal.’” Id. at 878 (citations omitted).

      When reviewing a claim of prosecutorial misconduct, we use the

following standard of review:

                   Our standard of review for a claim of
            prosecutorial misconduct is limited to whether the
            trial court abused its discretion. In considering this
            claim, our attention is focused on whether the
            defendant was deprived of a fair trial, not a perfect
            one.      Not every inappropriate remark by a
            prosecutor    constitutes    reversible error.      A
            prosecutor’s statements to a jury do not occur in a
            vacuum, and we must view them in context. Even if
            the prosecutor’s arguments are improper, they
            generally will not form the basis for a new trial
            unless the comments unavoidably prejudiced the
            jury and prevented a true verdict.



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Commonwealth v. Bedford, 50 A.3d 707, 715-716 (Pa.Super. 2012)

(en banc), appeal denied, 57 A.3d 65 (Pa. 2012) (citations omitted). See

also Commonwealth v. Robinson, 877 A.2d 433, 441 (Pa. 2005)

(prosecutorial misconduct does not occur unless the jurors form a fixed bias

and hostility toward the defendant based on the prosecutor’s comments).

This court has held that any taint from a prosecutor’s improper statements

may be cured by a curative instruction to the jury, and that courts are

compelled to consider “all surrounding circumstances before finding that

curative instructions [are] insufficient and the extreme remedy of a mistrial

is required.”   Commonwealth v. Bracey, 831 A.2d 678, 682 (Pa.Super.

2003), appeal denied, 844 A.2d 551 (Pa. 2004) (citations omitted). A jury

is presumed to have followed instructions provided by the trial court.

Commonwealth v. Elliott, 80 A.3d 415, 445 (Pa. 2013), cert. denied,

135 S.Ct. 50 (2014), citing Commonwealth v. DeJesus, 860 A.2d 102,

111 (Pa. 2004).

      Appellant relies heavily on Commonwealth v. Satzberg, 516 A.2d

758 (Pa.Super. 1986), in which this court found that the lower court had

erred by denying the defendant’s motion for a mistrial. In Satzberg, “the

assistant district attorney during his opening remarks referred to [the

defendant] as a ‘bum,’ and said [the defendant] ‘did nothing for two and a

half years except to do drugs.’” Id. at 762.




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      In finding in favor of the defendant in Satzberg, this court stated,

            The prosecutor’s statements about [the defendant’s]
            drug habits effectively prejudiced the jury against
            [the defendant,] especially with the present media
            and political focus on the dangers inherent in drug
            use. During the entire trial, the jury heard the
            evidence with the knowledge that the prosecution
            believed [the defendant] to be a heavy drug user.
            Furthermore, the assistant district attorney’s
            description of appellant as a “bum” interjected into
            the case his personal views about [the defendant.]
            During a trial, a prosecutor’s personal opinions about
            a defendant are inappropriate since such statements
            are fundamentally inconsistent with a prosecutor’s
            role as an administrator of justice.           Accord
            Commonwealth v. Evans, 479 Pa. 100, 103, 387
            A.2d 854, 855 (1978).

Id. Appellant also cites Commonwealth v. Vazquez, 617 A.2d 786, 788

(Pa.Super. 1992), in which this court held that a curative instruction for the

jury was insufficient to cure the prejudice from a Commonwealth’s witness’

remarks regarding “lists of known drug dealers.”       Specifically, the court

stated that the purpose of the witness’ reference to “lists of known drug

dealers” was “to convince defense counsel and/or the jury of the certainty of

the identification by supporting it through reference to something arguably

not susceptible to human error, i.e., a computer list of ‘known drug

dealers.’” Id. (emphasis in original).

      Both of these cases are distinguishable from the instant appeal. First,

the Commonwealth’s attorney did not insert his own personal views about

appellant into his opening statement.        The relevant statement from the

Commonwealth’s opening statement is as follows:


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            [Officer Marrero] comes and as they’re pulling this
            defendant out of the vehicle, he noticed something
            fall so he tells Officer Allen something fell, but he’s
            handcuffing this defendant with Officer Higgins, so
            Officer Allen, after he gets himself together, he goes
            right there to that door area where they pulled the
            defendant out of the vehicle and he almost seriously
            injured Officer Allen over one pack of heroin.

Notes of testimony, 8/7/13 at 30. Second, unlike Vasquez, there was no

claim made to the jury that could “arguably be [insusceptible] to human

error,” that could not be cured with a curative instruction.    When denying

appellant’s motion for a mistrial, the trial court made the following curative

instruction to the jury:

            Good afternoon, ladies and gentlemen. When we
            ended earlier today, there was an objection by
            defense, I’m going to overrule the objection, and I’m
            going to give you a cautionary instruction about what
            you have heard in terms of the Commonwealth’s
            opening statement.

            You heard the Commonwealth’s opening statement
            indicating the defendant was in possession of a
            controlled substance for which he is not on trial here
            today. This argument is before you for a limited
            purpose. That is for the Commonwealth’s purpose of
            tending to show that there was no mistake at the
            time the defendant was engaged in the activities
            related to the vehicle.

            This argument must not be considered by you in any
            way other than for the purpose I just stated. You
            must not regard this argument as showing that the
            defendant is a person of bad character or criminal
            tendencies from which you might be inclined to infer
            guilt.




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Id. at 77. Before releasing the jury to begin its deliberations, the trial court

provided another curative instruction:

            You have heard evidence tending to prove that the
            defendant was in possession of a controlled
            substance. This evidence is before you for a limited
            purpose, that is, for the purpose to show motive.
            This evidence must not be considered by you in any
            other way other than for the purpose I just stated.
            You must not regard this evidence as showing that
            the defendant is a person of bad character or
            criminal tendencies from which you might be inclined
            to infer guilt.

Notes of testimony, 8/9/13 at 132-133.          As noted above, the jury is

presumed to follow any curative instruction it receives from the trial court.

See Elliott, 80 A.3d at 445.

      Moreover, in order for a claim of prosecutorial misconduct to be

successful, “the unavoidable effect of the comments at issue was to

prejudice the jurors by forming in their minds a fixed bias and hostility

toward the defendant, thus impeding their ability to weigh the evidence

objectively and render a true verdict.” Robinson, 877 A.2d at 441, quoting

Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa. 2002) (citation

omitted).

      Here, appellant has failed to establish that the unavoidable effect of

the Commonwealth’s attorney’s statement prejudiced the jurors and formed

a fixed bias and hostility toward appellant in the minds of the jurors, and

that such a fixed bias or hostility impeded their ability to objectively consider




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the evidence and return a true verdict pursuant to Robinson.                 We,

therefore, find that appellant’s first issue is without merit.

      In his second issue, appellant avers that the trial court abused its

discretion by permitting the Commonwealth to “elicit testimony relative to

the alleged drugs found at the [crime] scene.”          (Appellant’s brief at 7.)

Specifically, appellant alleges that the Commonwealth did not provide

reasonable notice of its intentions to present evidence of a packet of heroin

having allegedly been found in appellant’s possession and that the trial court

erred by permitting the Commonwealth’s witnesses “to testify that they

recovered ‘a small object’ and a ‘blue glassine packet containing an off-white

powder which was alleged heroin’ from the ground where [appellant] was

arrested.” (Id. at 13-14.)

      When reviewing a lower court’s decision to admit evidence, we are

held to the following standard:

                   The admission of evidence is a matter
                   vested within the sound discretion of the
                   trial court, and such a decision shall be
                   reversed only upon a showing that the
                   trial court abused its discretion.        In
                   determining whether evidence should be
                   admitted, the trial court must weigh the
                   relevant and probative value of the
                   evidence against the prejudicial impact of
                   the evidence. Evidence is relevant if it
                   logically tends to establish a material fact
                   in the case or tends to support a
                   reasonable     inference     regarding     a
                   material fact. Although a court may find
                   that evidence is relevant, the court may
                   nevertheless conclude that such evidence


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                is inadmissible on         account   of   its
                prejudicial impact.

          Commonwealth v. Weakley, 972 A.2d 1182, 1188
          (Pa.Super. 2009) (quoting Commonwealth v. Reid,
          571 Pa. 1, 811 A.2d 530, 550 (2002)). “An abuse of
          discretion is not merely an error of judgment, but is
          rather the overriding or misapplication of the law, or
          the exercise of judgment that is manifestly
          unreasonable, or the result of bias, prejudice, ill-will
          or partiality, as shown by the evidence of record.”
          Id. at 1188-89 (citing Commonwealth v. Carroll,
          936 A.2d 1148, 1152-53 (Pa.Super. 2007)). “An
          abuse of discretion may result where the trial court
          improperly weighed the probative value of evidence
          admitted against its potential for prejudicing the
          defendant.” Id. (quoting Commonwealth v. Viera,
          442 Pa.Super. 348, 659 A.2d 1024, 1028 (1995)).

                The threshold inquiry with admission of
                evidence is whether the evidence is
                relevant.    “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 the existence of a material
                fact.”    Commonwealth v. Spiewak,
                533 Pa. 1, 617 A.2d 696, 699 (1992). In
                addition, evidence is only admissible
                where the probative value of the
                evidence     outweighs     its  prejudicial
                impact. Commonwealth v. Story, 476
                Pa. 391, 383 A.2d 155, 160 (1978).

          Commonwealth        v.   Stokes,    78   A.3d 644
          (Pa.Super.2013) (internal citations modified for
          uniformity); see also Pa.R.E. 401; 402; 403.

Commonwealth v. Antidormi, 84 A.3d 736, 749-750 (Pa.Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014).




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      This court has addressed Pa.R.E. 404(b)(3)’s notice requirement.

            “In criminal cases, the prosecution shall provide
            reasonable notice in advance of trial, or during trial if
            the court excuses pretrial notice on good cause
            shown, of the general nature of any such evidence it
            intends to introduce at trial.” Pa.R.E. 404(b)(4).
            The purpose of this rule “is to prevent unfair
            surprise, and to give the defendant reasonable time
            to prepare an objection to, or ready a rebuttal for,
            such evidence.” Pa.R.E. 404, cmt. However, there
            is no requirement that the “notice” must be formally
            given or be in writing in order for the evidence to be
            admissible. Commonwealth v. Mawhinney, 915
            A.2d 107, 110 (Pa.Super. 2006)[, appeal denied,
            932 A.2d 1287 (Pa. 2007)].

Commonwealth v. Lynch, 57 A.3d 120, 125-126 (Pa.Super. 2012),

appeal denied, 63 A.3d 1245 (Pa. 2013). The Lynch court also stated that

the defendant was afforded sufficient notice when he was provided with

pretrial discovery, “which included [a witness’] statements referring to

Lynch’s conduct over the last five years.” Id. at 126.

      Here, the Commonwealth provided adequate notice to appellant and

his trial counsel regarding the reference of the packet of heroin allegedly in

his possession.    It is undisputed that the Commonwealth included the

evidence of a packet of heroin in the pretrial discovery provided to the

defense. (Commonwealth’s brief at 10; appellant’s brief at 15.) Therefore,

because the Commonwealth notified the defense that it intended to use the

evidence at trial during pretrial discovery, we find that the Commonwealth

provided adequate notice to the defense.




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      We now turn to whether the evidence of appellant allegedly possessing

a packet of heroin was properly admitted under Pa.R.E. 403. We agree with

the trial court’s analysis that the evidence’s probative value outweighs its

prejudicial value, and is therefore admissible. As set forth by the trial court:

                  Here, the evidence of heroin found at the
            scene was highly probative of the Defendant’s
            motive to commit the charged crimes.             The
            Commonwealth argued that if the Defendant were in
            possession of a controlled substance at the time he
            was stopped by the police, then that would provide a
            motive for him to attempt to drive away from
            Officers Allen and [Higgins].     Furthermore, this
            evidence was probative of an absence of mistake in
            the Defendant’s actions, as it tended to show that
            the Defendant acted in accordance with a motive to
            escape as opposed to accidentally moving his car
            forward. As discussed above, the evidence was not
            unduly prejudicial to the Defendant, and any
            prejudicial effect was ameliorated by the Court
            providing cautionary instructions to the jury after
            ruling on the objection and again at the close of the
            case.    Thus, this Court committed no error in
            allowing evidence of heroin found at the scene to
            show Defendant’s motive and to show that there was
            an absence of mistake.

Trial court opinion, 8/22/14 at 11-12.        We find that the evidence was

properly admitted under Pa.R.E. 403, and the trial court did not abuse its

discretion by admitting the evidence of appellant allegedly possessing a

packet of heroin.

      Judgment of sentence affirmed.      Appellant’s application to submit a

reply brief is granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/18/2016




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