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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

BRANDON RAHEEM HAYES

                        Appellant                    No. 374 MDA 2016


           Appeal from the Judgment of Sentence March 5, 2015
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0002408-2014


BEFORE: BOWES, PANELLA AND JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                       FILED DECEMBER 16, 2016

      Brandon Hayes appeals from the March 6, 2015 judgment of sentence

of three and one-half to seven years imprisonment and thirty days

probation, which was imposed after he was found guilty of person not to

possess, firearms not to be carried without a license, and possession of a

small amount of marijuana. We affirm.

      The following facts were adduced at trial.       On March 16, 2014,

Appellant was a passenger in the front seat of a vehicle that was stopped at

a DUI checkpoint on the business loop of Interstate 83 north of York City.

Corporal Alan Trees of the Pennsylvania State Police directed his attention to

the driver of the vehicle, Claudia Calderon, who produced her license and

other paperwork. Trooper Jeremy Corrie approached the passenger side of
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the vehicle. Both troopers testified that the odors of marijuana and alcohol

emanated from the vehicle.     In response to Corporal Trees’ inquiry, Ms.

Calderon admitted that she had been drinking, but she passed a field

sobriety test and breathalyzer.   Thereafter, Ms. Calderon consented to a

search of her car, and Appellant was directed to exit the vehicle.     Police

found a loaded Smith & Wesson .357 Magnum revolver protruding from

beneath the passenger seat in which Appellant had been sitting, and a

partially burned marijuana cigarette.   Appellant admitted ownership of the

marijuana cigarette but he and Ms. Calderon denied any knowledge of the

firearm.   The firearm was loaded with six rounds of Remington-Peterson

brand .357 Magnum ammunition stamped with “R&P”.

     Upon determining that there were outstanding warrants for Appellant,

the officers took him into custody and charged him with receiving stolen

property, person not to possess a firearm, firearms not to be carried without

a license and possession of a small amount of marijuana.       While in jail,

Appellant made a phone call during which he made cryptic references to a

“joint under the seat” and stated that, “he had wiped it down.” N.T. Non-

Jury Trial, 2/5/15, at 58, 59.    Since the firearm was devoid of prints,

Corporal Trees interpreted the latter remark to mean that Appellant had

wiped down the gun located under his seat to remove any fingerprints. The

parties stipulated that Appellant was a person who was prohibited from

possessing a firearm.

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      Prior to trial, the Commonwealth filed a motion in limine seeking a

ruling from the trial court on the admissibility of evidence that on December

31, 2013, Appellant possessed fourteen rounds of .357 Magnum ammunition

bearing the brand stamp R&P, which was the same brand of ammunition

contained in the firearm seized from the vehicle. The court ruled that Officer

Jason Jay of the York City Police Department could testify that when he

searched Appellant on that date, Appellant had that ammunition on his

person.

      Following a bench trial on February 5, 2015, Appellant was convicted

of all charges except receiving stolen property, and he was sentenced as

aforesaid. On October 16, 2015, Appellant filed a PCRA petition alleging that

trial counsel was ineffective for failing to file a requested direct appeal. The

Commonwealth agreed to the reinstatement of Appellant’s direct appeal

rights since he had not been properly advised of those rights at sentencing,

and an order to that effect issued on February 4, 2016. Appellant filed the

instant direct appeal and timely complied with the trial court’s order to file a

Rule 1925(b) concise statement of errors complained of on appeal. The trial

court penned its Rule 1925(a) opinion, and this matter is now ready for our

review.

      Appellant presents one issue for our consideration: “Whether the trial

court erred by granting the Commonwealth’s Motion in Limine to admit prior




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bad acts of Appellant, namely his possession of .357 magnum ammunition

three months prior to the incident?” Appellant’s brief at 6.

      For challenges to evidentiary rulings, our review is limited to a

determination whether a trial court abused its discretion. Commonwealth

v. Aikens, 990 A.2d 1181, 1184-85 (Pa.Super. 2010).            “A trial court's

decision will not be reversed absent a clear abuse of discretion. An abuse of

discretion is not merely an error of judgment, but rather where the

judgment is manifestly unreasonable or where the law is not applied or

where the record shows that the action is a result of partiality, prejudice,

bias or ill will.” Id. at 1184-85(citations omitted).

      The trial court ruled the ammunition evidence admissible under the

exceptions delineated in Pa.R.E. 404(b)(2) for evidence of prior crimes and

bad acts. Since the evidence was not offered to show that Appellant acted in

conformity therewith or that he had a propensity to commit such crimes, the

trial court concluded that Appellant’s possession of identical ammunition

three months before the stop tended to identify Appellant as the owner of

the loaded .357 Magnum found under his seat.

      “Evidence is relevant when it has any tendency to make a fact more or

less probable than it would be without the evidence; and the fact is of

consequence in determining the action.” Pa.R.E. 401. “All relevant evidence

is admissible, except as otherwise provided by law.      Evidence that is not

relevant is not admissible.” Pa.R.E. 402. Furthermore, relevant evidence is

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only admissible where the probative value of the evidence outweighs its

prejudicial impact.   Commonwealth v. Owens, 929 A.2d 1187, 1189,

(Pa.Super. 2007). “The court may exclude relevant evidence if its probative

value is outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.

      At issue is the admissibility of evidence that, three months prior to the

stop herein, Appellant possessed ammunition of the same caliber and stamp

as that found in the loaded .357 Magnum found under his seat.          Pa.R.E.

404(b) governs the admissibility of evidence of a party’s prior wrongs or

other acts, and it provides in pertinent part:

      (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) and (2).




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      Our High Court summarized the law governing the admissibility of

prior bad acts evidence in Commonwealth v. Sherwood, 982 A.2d 483,

497 (Pa. 2009):

      Generally, evidence of prior bad acts or unrelated criminal activity
      is inadmissible to show that a defendant acted in conformity with
      those past acts or to show criminal propensity. Pa.R.E. 404(b)(1).
      However, evidence of prior bad acts may be admissible when
      offered to prove some other relevant fact, such as motive,
      opportunity, intent, preparation, plan, knowledge, identity, and
      absence of mistake or accident. Pa.R.E. 404(b)(2). In determining
      whether evidence of other prior bad acts is admissible, the trial
      court is obliged to balance the probative value of such evidence
      against its prejudicial impact. Commonwealth v. Powell, 598
      Pa. 224, 956 A.2d 406, 419 (2008).

Id. at 497.    Decisions such as whether evidence is too remote to be

probative   rest   within   the   sound    discretion   of   the   trial   judge.

Commonwealth v. Christine, 125 A.3d 394 (Pa. 2015).

      Appellant contends that evidence that he possessed ammunition of the

same caliber and brand as that loaded in the firearm found underneath his

seat three months prior to the stop herein “lacked a temporal and logical

connection to the crime to be relevant.”        Appellant’s brief at 11.      He

maintains further that, “Even if the evidence is relevant, it was overly

prejudicial to prove constructive possession of the firearm.” Appellant’s brief

at 11. Finally, Appellant contends that the evidence was inadmissible prior

bad acts evidence under Pa.R.E. 404(b)(1) and (b)(3).

      The Commonwealth counters that because the ammunition inside the

.357 Magnum revolver found underneath the Appellant’s seat “matched the


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ammunition previously seized[,]” it was admissible to establish Appellant’s

possible connection with a .357 Magnum and to suggest that the proximity

of the firearm to Appellant was not an accident. Appellant relies upon two

cases in support of his position that the York City incident three months

before was too remote to be of any probative value. First, he attempts to

distinguish Commonwealth v. Miles, 681 A.2d 1295 (Pa. 1996), where we

affirmed the trial court’s admission of evidence that the defendant

brandished a .357 Magnum when he robbed a young boy just hours before a

murder.   We found such evidence admissible to prove that the defendant

possessed such a weapon at the time of the murder.             Second, in

Commonwealth v. Owens, supra, we upheld the trial court’s ruling that

shotgun shells seized from the defendant’s car three days after a shooting

that were similar to those used in the shooting were admissible as they

linked the defendant to the crime. Appellant argues that, due to the three-

month gap between the first incident and the DUI stop herein, the evidence

of his possession of the same type of ammunition lacked the requisite

probative value to be admissible.

     Although the time between Appellant’s prior possession of ammunition

and the crime herein was longer than a few hours or days, we find it

temporally proximate enough to make it more probable that he, rather than

the driver, possessed the gun found under his seat. See Commonwealth

v. Weakley, 972 A.2d 1182, 1190 (Pa.Super. 2009) (eight month lapse of

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time between crimes did not render the other crimes evidence too tenuous

for admission); see also Commonwealth v. Shoatz, 366 A.2d 1216 (Pa.

1976) (possession of the same type of military weapons used in the murder

was admissible to connect the defendant to the crime that occurred one and

one-half years after the incident and viewing the time interval between the

two events as bearing on the weight of the evidence, not its competency).

       Appellant argues further that there was nothing unique about the

ammunition that would suggest a signature or pattern.            He contrasts the

facts herein with those in Commonwealth v. Broaster, 863 A.2d 588

(Pa.Super. 2004),1 where the trial court ruled admissible the .45 caliber

handgun defendant discarded just prior to his arrest even though it was not

the .45 caliber murder weapon. The court found therein that the fact that

both handguns were of the same caliber and uniquely loaded by staggering

three rounds from different manufacturers was probative of a signature that

linked the defendant to the murder. Similarly, in Shoatz, supra, evidence

that   the   defendant      possessed     advanced   military-type   weapons   and

ammunition when he was arrested was admitted to prove that the defendant

____________________________________________


1
   In Broaster v. Houtzdale, 2011 U.S. Dist. LEXIS 86832 (E.D. Pa. 2011),
the district court conditionally granted habeas corpus relief on the ground
that counsel was ineffective for failing to object to the state court instruction
about the inferences the jury could draw from petitioner's possession of a
different handgun of the same caliber as the murder weapon three months
after the murder.



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conspired with a militant group that killed police officers. The court viewed

his possession of weapons that were inaccessible to the public generally as

probative of the defendant’s affiliation with the group. We find evidence that

Appellant possessed ammunition of the same caliber and stamp to be

sufficiently distinctive to link Appellant to the firearm in the vehicle, and

thus, admissible under Pa.R.E. 404(b)(2).

      Appellant does not dispute that evidence offered to prove identity, and

absence of mistake or accident, is admissible under Pa.R.E. 404(b)(2).

However, he maintains that even Rule 404(b)(2) evidence may be

inadmissible under Pa.R.E. 404(b)(3), where, as here, its probative value is

outweighed by its prejudicial effect.

      We do not find the evidence to be unfairly prejudicial.   It was not a

weapon nor was it the type of evidence that would ordinarily inflame the

passions of the factfinder and suggest a decision on an improper basis.

Furthermore, this was a bench trial. We find it unlikely that the trial court

would be improperly swayed by this evidence or accord it any greater weight

than it deserved. Hence, Officer Jay’s testimony regarding Appellant’s prior

possession of fourteen rounds of .357 Magnum ammunition bearing the

stamp R&P, which was identical to the ammunition in the .357 Magnum

found under Appellant’s seat herein, was more probative than prejudicial on




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the issue of whether Appellant constructively possessed the .357 Magnum. 2

Thus, we find no abuse of discretion in its admission.

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2016




____________________________________________


2
  Appellant suggests that the cases relied upon by the Commonwealth and
the trial court are distinguishable as they involved crimes that were “more
than just a possessory crime and instead involved use of the weapon to
commit assault, robbery or a murder.” Appellant’s brief at 18. Appellant
offers no rationale why the nature of the crime warrants different treatment,
and we can think of none.



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