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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SCOTTY LEE CHUBB                           :
                                               :
                       Appellant               :   No. 1505 MDA 2019

       Appeal from the Judgment of Sentence Entered September 6, 2019
        In the Court of Common Pleas of Snyder County Criminal Division
                        at No(s): CP-55-CR-0000366-2018


BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:                   FILED: APRIL 6, 2020

        Scotty Lee Chubb appeals from the judgment of sentence entered in the

Snyder County Court of Common Pleas. On appeal, Chubb argues the trial

court erred in admitting hearsay testimony at trial. After careful review, we

affirm.

        Chubb was charged with four counts of possession with intent to

distribute heroin and two counts of criminal use of a communication facility. 1

A jury convicted Chubb of all six counts. The trial court sentenced Chubb to

an aggregate sentence of 52 to 150 months’ imprisonment. Further, the trial

court, pursuant to 61 Pa. C.S.A. §§ 4501-4512, imposed a recidivism risk

reduction incentive (“RRRI”) sentence of 39 months.




____________________________________________


1   See 35 P.S. §780-113(a)(30) and 18 Pa. C.S.A. §7512(a).
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         Shortly thereafter, the Commonwealth filed a motion to amend Chubb’s

RRRI sentence from 39 months to 43 months and 10 days. The trial court

granted the Commonwealth’s motion, and Chubb filed a motion to reconsider,

which was denied.2 This timely appeal followed.

         In his only issue, Chubb argues that it was erroneous for the trial court

to admit hearsay testimony given by Agent Andrew Sproat regarding the

results of the search of the confidential informant prior to the sale. See

Appellant’s Brief, at 14. We review a trial court’s evidentiary rulings, including

rulings on the admission of hearsay for an abuse of discretion.                      See

Commonwealth v. Walter, 93 A.3d 442, 449 (Pa. Super. 2014). Hearsay is

an out-of-court statement offered for the truth of the matter asserted. See

Pa.R.E. 801(c). Generally, hearsay evidence is inadmissible unless it falls

within one of the exceptions to the hearsay rule set forth in the Rules of

Evidence. See Commonwealth v. Yarris, 731 A.2d 581, 591 (Pa. 1999).

         Specifically,   Chubb   alleges       that   Agent   Sproat’s   testimony   was

impermissible hearsay because he did not personally conduct the search. See

Appellant’s Brief, at 14. Detective William Knights, who was an unavailable

witness, conducted the search. See id., at 13. As such, Chubb contends that

he suffered prejudice due to the admission of this hearsay evidence. See id.,

at 14.
____________________________________________


2Chubb filed a direct appeal during the pendency of his post-sentence motion.
As a result, Chubb’s direct appeal was quashed as premature pursuant to
Commonwealth v. Claffey, 80 A.3d 780, 783 (Pa. Super. 2013). See
Superior Court Order, 08/21/2019.

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      Both the Commonwealth and the trial court contend that Chubb has

waived this issue by failing to object before the witness answered the

question. In the alternative, both assert that any error in admitting the

evidence was harmless.

      We agree that any error in the trial court’s ruling was harmless when

viewed against the record as a whole. Even where the trial court erroneously

admits evidence, this Court may still sustain the verdict if it finds the error

harmless. See Commonwealth v. McClure, 144 A.3d 970, 975 (Pa. Super.

2016). An error is harmless only if it could not have contributed to the verdict.

See id., at 975-976. This Court will find harmless error where the error did

not prejudice the appellant, or the prejudice was de minimis. See

Commonwealth v. Brown, 185 A.3d 316, 330 (Pa. 2018). Similarly, where

“the properly admitted and uncontradicted evidence of guilt was so

overwhelming and the prejudicial effect of the error was so insignificant by

comparison that the error could not have contributed to the verdict,” we will

deem the error harmless. Id. (citation omitted).

      Here, we must note that Chubb makes only a bald assertion of prejudice

based upon the admissibility of hearsay testimony. In contrast, we note the

hearsay evidence only concerned the results of a search of the confidential

informant prior to the controlled buy.

      Far from being a major piece of the Commonwealth’s case, this evidence

was presented merely to reinforce the eyewitness testimony that Chubb gave

the confidential informant narcotics. Notably, the confidential informant

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testified that he arranged to buy heroin from Chubb. See N.T., Jury Trial,

5/21/19, at 122. He was strip searched, and testified that he had no narcotics

on him prior to the controlled buy. See id. The police provided him with

currency with recorded serial numbers. See id., at 124. Police searched his

vehicle prior to the buy and found no narcotics. See id., at 124-125.

      The confidential informant then purchased seven bags of heroin from

Chubb for $100. See id., at 127. Two undercover police officers were sitting

within five feet of the transaction. See id. Another officer sat in the

confidential informant’s vehicle and watched the transaction from there. See

id., at 54. When the confidential informant returned to his vehicle, he handed

the officer seven bags of heroin. See id., at 62-68. The confidential informant

stated that he had provided the currency to Chubb in exchange for the heroin.

See id., at 72, 135.

      Given this record, we are satisfied, beyond a reasonable doubt, that

testimony regarding the results of the search prior to the sale, if error at all,

was harmless. See Commonwealth v. Hardy, 918 A.2d 766, 777 (Pa. Super.

2007). The jury clearly credited the confidential informant’s testimony, as well

as the testimony of the surveilling officers. The informant testified that the

police found no narcotics on him when he was strip-searched. We therefore

conclude that any error in allowing one officer, who was not present for the

strip-search, to testify to the results of the search was harmless error.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/06/2020




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