J-A30020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

BENJAMIN J. RIVERA

                        Appellant                   No. 59 MDA 2016


         Appeal from the Judgment of Sentence December 8, 2015
            In the Court of Common Pleas of Dauphin County
           Criminal Division at No(s): CP-22-CR-0000978-2015

BEFORE: BOWES, OLSON and STABILE, JJ.

MEMORANDUM BY OLSON, J.:                       FILED FEBRUARY 14, 2017

      Appellant, Benjamin J. Rivera, appeals from the judgment of sentence

entered on December 8, 2015, as made final by the granting of his post-

sentence motion on December 28, 2015. We affirm.

      The trial court accurately summarized the factual background of this

case as follows:

      On November 11, 2014, around noon, Officer [Darrin] Bates [of
      the Harrisburg Police Department’s Street Crimes Unit (“SCU”)]
      was on surveillance in an area encompassing the 1200 and 1300
      blocks of Derry Street where it intersects with Evergreen,
      Berryhill, Howard[,] and Vernon Streets. Officer Bates was
      working as part of the SCU. He testified that 95% of his work
      with the SCU involves illegal drug[-]related activity.

      The area where Officer Bates was conducting surveillance on the
      date of the incident is, in his years of experience, an area of
      high-crime and high-drug activity including the sale of
      heroin. . . . Officer Bates identified Appellant as the person he
      had been surveilling on November 11, 2014. He testified to
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     noticing Appellant because he saw him engage in what he
     perceived to be a hand-to-hand drug deal with an unidentified
     Hispanic male. Officer Bates did not radio other officers to
     respond because he was not absolutely certain of what he had
     seen and the other male had left the area very quickly. He did
     not want to cause confusion among the officers so he decided to
     continue watching [Appellant] to see if [he] engaged in drug
     related activity again. Following the first encounter, Appellant
     went back to the corner at Derry and Mulberry Streets where he
     stood by a corner store.

     Officer Bates next saw another Hispanic male walk up to
     Appellant when they each took out a single monetary bill and
     exchanged them. [Officer] Bates saw Appellant put the bill in his
     wallet which he observed to be very thick with money. He
     explained that, in his extensive experience with street level drug
     dealers, the operations are run like a business in that separate
     people will hold the money and the drugs then the person with
     the money will exchange it in case it is marked by an undercover
     police officer posing as a buyer. Officer Bates believed that
     Appellant and the other man were engaging in the above-
     described money laundering activity.        Appellant, who was
     wearing a grey and white zip-up hoodie, proceeded to ride away
     on his red bicycle down Evergreen Street, as he had periodically
     been doing during the surveillance period, and return to the
     corner to stand in front of the store.

     While on the corner, Officer Bates saw a person later identified
     as Frank Wissler (“Wissler”) pull to the curb in a white vehicle
     with his wife on the north side of the 1200 block of Derry Street.
     The pair exited the car and walked to the intersection of Derry
     and Evergreen Streets where [Wissler] spoke on his cellphone
     briefly. Seconds later, Officer Bates saw Appellant arrive to the
     location on his red bicycle. Wissler and Appellant walked over to
     the vehicle with their backs turned, interacted for a couple of
     seconds then, Appellant rode away. Wissler and his wife entered
     the car and also pulled away failing to use a turn signal at an
     intersection. Based on all of his observations of Appellant that
     day and his law enforcement experience, Officer Bates firmly
     believed that a drug transaction had just taken place between
     Wissler and Appellant.

     In light of his observations and conclusions drawn therefrom,
     Officer Bates radioed to other officers in the area to conduct a


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     traffic stop of Wissler and to find and detain Appellant. When he
     radioed the other units, [Officer] Bates provided [] Appellant’s
     physical description and direction of travel. Appellant rode away
     on Derry Street to 13th Street where he made a right turn going
     southbound.

     Officers Anthony Fiore and Jon Fustine, also of the SCU, spotted
     Appellant as he fled while picking up speed. Officer [] Fiore []
     received the radio call from Officer Bates that instructed him to
     detain the described individual for further investigation of a
     suspected hand-to-hand illegal drug transaction. He and Officer
     Fustine drove to the location and spotted the individual who he
     identified as Appellant riding his red bicycle south on 13th
     Street. Officer Fiore testified that he could clearly see him as he
     was only half a block away and Appellant matched the
     description.

     Officer Fiore stated that Appellant had been riding the bike at a
     normal speed until he and Officer Fustine exited their vehicle, at
     which time he sped up and travelled east on Kittatinny Street,
     then turned south on Buckthorn Street. He did not comply with
     their demand to stop.       Officer Fiore continued to pursue
     Appellant on foot for several hundred feet and eventually
     discovered that he had abandoned the bike.          The Officers
     eventually located him on foot when he exited an alley between
     two houses at 314 and 316 South 14th Street. Appellant was
     detained at that location while Officer Bates continued his
     investigation.

     While waiting, Officer Fiore searched the footpath taken by
     Appellant on his flight. He found a large quantity of money in a
     roll that was few inches thick totaling $482[.00]. Appellant
     claimed that the bundle of money was not his. When Officer
     Bates arrived on scene he searched Appellant and retrieved his
     cellphone and wallet which only contained $20[.00].

     While Officers Fiore and Fustine were pursuing Appellant, Officer
     Donald Bender [], a K-9 officer assigned to the SCU, assisted
     Officer Bates by conducting a traffic stop of Wissler. He had
     received radio instructions from Bates that included a description
     of Wissler’s car, the license plate number[,] and that the
     occupants were suspected to have been involved in an illegal
     narcotics transaction.     Officer Bates testified that he had
     witnessed Wissler fail to use a turn signal when he left Derry


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        Street. Officer Bender located the vehicle and made contact with
        Wissler, the driver, and his passenger. When Officer Bender ran
        his name, he discovered that Wissler was wanted in California on
        a felony charge. Wissler was taken out of the car, detained[,]
        and [read his rights. A fellow officer], who was also on the
        scene of the traffic stop, observed a packet of suspected heroin
        on the seat when Wissler exited the vehicle. Wissler then
        admitted to having three more packets in the center console of
        the car and gave officers permission to search the vehicle.

        Once officers radioed Bates that Wissler had been detained,
        [Officer Bates] proceeded to that location to continue his
        investigation of the suspected drug deal. Officer Bates also
        [read Wissler his rights]. During Officer Bates’ questioning of
        Wissler he said a person named Benji had sold him some heroin.
        Wissler described Benji as a Hispanic male who was riding a red
        bike and wearing a white and grey hoodie. Wissler showed
        Officer Bates the number he called to contact Benji. Later, when
        [Officer Bates] recovered Appellant’s cellphone, [Officer Bates]
        had Officer Fiore dial the number provided by Wissler and the
        call connected to Appellant’s phone.

Trial Court Opinion, 3/25/16, at 2-7 (internal citations, footnotes, and

honorifics omitted).

        The procedural history of this case is as follows. On April 20, 2015,

the    Commonwealth     charged   Appellant   via   criminal   information   with

possession with intent to deliver a controlled substance 1 and possession of

drug paraphernalia.2     On November 9, 2015, Appellant filed a motion to

suppress.    At the conclusion of a suppression hearing on November 30,

2015, the trial court denied Appellant’s suppression motion.


1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(32).




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       On December 8, 2015, Appellant was convicted of both offenses. He

was immediately sentenced to an aggregate term of 27 to 72 months’

imprisonment.       On December 16, 2015, Appellant filed a post-sentence

motion addressing the fine imposed by the trial court.        On December 28,

2015, the trial court granted Appellant’s post-sentence motion. This timely

appeal followed.3

       Appellant presents two issues for our review:

    1. Did not the [trial] court err in denying [Appellant’s] motion to
       suppress when the police effected a seizure of [Appellant’s]
       person under Article 1, Section 8, of the Pennsylvania
       Constitution without reasonable suspicion and when [Appellant’s]
       subsequent flight and discarding of evidence is deemed not to
       constitute an abandonment under Article 1, Section 8, of the
       Pennsylvania Constitution?

    2. Did not the [trial] court err in overruling [Appellant’s] objection
       to the introduction of a hearsay statement from a non-testifying
       declarant implicating [Appellant] as the person who sold him
       illegal drugs when such statement did not qualify for admission
       under [Pennsylvania Rule of Evidence] 803(1) and when the
       introduction    of    such    statement    violated   [Appellant’s]
       constitutional right of confrontation?

Appellant’s Brief at 5 (complete capitalization removed).

       In his first issue, Appellant argues that the trial court erred in denying

his suppression motion.     “Once a motion to suppress evidence has been


3
  On January 11, 2016 the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b).    On January 20, 2016, Appellant filed his concise
statement. On March 25, 2016 the trial court issued its Rule 1925(a)
opinion. Both of Appellant’s issues were included in his concise statement.




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filed, it is the Commonwealth’s burden to prove, by a preponderance of the

evidence, that the challenged evidence was not obtained in violation of the

defendant’s rights.” Commonwealth v. Evans, 2016 WL 7369120, *3 (Pa.

Super. Dec. 20, 2016) (citation omitted).       “Our standard of review in

addressing a challenge to a trial court’s denial of a suppression motion is

whether the factual findings are supported by the record and whether the

legal conclusions drawn from those facts are correct.” Commonwealth v.

Simonson, 148 A.3d 792, 796 (Pa. Super. 2016) (citation omitted). “[O]ur

scope of review is limited to the factual findings and legal conclusions of the

[trial] court.” In re L.J., 79 A.3d 1073, 1080 (Pa. 2013) (citation omitted).

“Because the Commonwealth prevailed before the [trial] court, we may

consider only the evidence of the Commonwealth and so much of the

evidence for the defense as remains uncontradicted when read in the

context of the record as a whole.” Commonwealth v. Valdivia, 145 A.3d

1156, 1159 (Pa. Super. 2016) (citation omitted). “Where the [trial] court’s

factual findings are supported by the record, we are bound by these findings

and may reverse only if the [trial] court’s legal conclusions are erroneous.”

Commonwealth v. Palmer, 145 A.3d 170, 173 (Pa. Super. 2016) (citation

omitted).

      Appellant contends that Officers Fiore and Fustine seized him when

they exited the patrol vehicle.   According to Appellant, Officers Fiore and

Fustine, at that time, lacked the requisite reasonable suspicion to seize him.



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Thus, Appellant argues that they unconstitutionally forced him to discard the

currency that Officer Fiore later found on the ground. The Commonwealth,

on the other hand, argues that Appellant was not seized until after he began

fleeing. The Commonwealth also argues that Officers Fiore and Fustine had

reasonable suspicion to detain Appellant in order to investigate whether he

was engaged in illegal drug activity.

      “The Fourth Amendment to the United States Constitution and Article

I, Section 8 of the Pennsylvania Constitution protect individuals from

unreasonable searches and seizures[.]” Commonwealth v. Korn, 139 A.3d

249, 258 (Pa. Super. 2016), appeal denied, 2016 WL 6107660 (Pa. Oct. 18,

2016) (citation omitted). “To safeguard these rights, courts require police to

articulate the basis for their interaction with citizens in three increasingly

intrusive situations.” Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa.

Super. 2013) (internal alteration, quotation marks, and citation omitted).

      This Court has described the three types of police/citizen interactions,

and the necessary justification for each, as follows:

      The first of these is a “mere encounter” (or request for
      information) which need not be supported by any level of
      suspicion, but carries no official compulsion to stop or to
      respond. The second, an “investigative detention[,]” must be
      supported by a reasonable suspicion; it subjects a suspect to a
      stop and a period of detention, but does not involve such
      coercive conditions as to constitute the functional equivalent of
      an arrest. Finally, an arrest or “custodial detention” must be
      supported by probable cause.




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Commonwealth v. Stilo, 138 A.3d 33, 36 (Pa. Super. 2016) (citation

omitted).

      Moreover:

      Under Pennsylvania law, any items abandoned by an individual
      under pursuit are considered fruits of a seizure. Those items
      may only be received in evidence when an officer, before giving
      chase, has at least the reasonable suspicion necessary for an
      investigatory stop. Stated another way, when one is
      unconstitutionally seized by the police, i.e. without reasonable
      suspicion or probable cause, any subsequent flight with the
      police in pursuit continues the seizure and any contraband
      discarded during the pursuit is considered a product of coercion
      and is not admissible against the individual.

Commonwealth v. Taggart, 997 A.2d 1189, 1193 (Pa. Super. 2010),

appeal denied, 17 A.3d 1254 (Pa. 2011).

      As this Court has explained:

      To establish grounds for reasonable suspicion, the officer must
      articulate specific observations which, in conjunction with
      reasonable inferences derived from those observations, led him
      reasonably to conclude, in light of his experience, that criminal
      activity was afoot and that the person he stopped was involved
      in that activity. The question of whether reasonable suspicion
      existed at the time the officer conducted the stop must be
      answered by examining the totality of the circumstances to
      determine whether the officer who initiated the stop had a
      particularized and objective basis for suspecting the individual
      stopped. Therefore, the fundamental inquiry of a reviewing
      court must be an objective one, namely, whether the facts
      available to the officer at the moment of the stop warrant a
      person of reasonable caution in the belief that the action taken
      was appropriate.

Commonwealth v. Postie, 110 A.3d 1034, 1039–1040 (Pa. Super. 2015)

(internal alterations and citation omitted).




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      Even if we assume, contrary to the Commonwealth’s opening position,

that Appellant was seized prior to fleeing from Officers Fiore and Fustine,

and not after he commenced evasive efforts, we conclude that the police

possessed reasonable suspicion that Appellant was engaged in criminal

activity. Appellant cites three cases in support of his argument that Officers

Fiore and Fustine lacked reasonable suspicion to detain him. All three cases,

however, are distinguishable from the case at bar.

      In Commonwealth v. Donaldson, 786 A.2d 279 (Pa. Super. 2001),

appeal denied, 800 A.2d 931 (Pa. 2002), the police officer did not witness a

hand-to-hand transaction. See id. at 280. Instead, the police officer only

witnessed individuals enter and exit a vehicle in a high-drug area. See id.

This Court held that entering and exiting a vehicle in a high-drug area did

not provide police reasonable suspicion to detain the driver of the vehicle.

See id. at 284.

      Similarly, in Commonwealth v. Carter, 779 A.2d 591 (Pa. Super.

2001), the police officer did not witness a hand-to-hand transaction.    See

id. at 592. Instead, police only witnessed an individual place his hand in his

pocket while conversing with an individual in a vehicle in a high-drug area.

See id.   This Court held that placing one’s hands in one’s pocket while

conversing with an individual in a high-drug area did not provide police with

reasonable suspicion to detain an individual. See id. at 593-594.




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     Likewise, in Commonwealth v. Tither, 671 A.2d 1156 (Pa. 1996),

the police officer did not witness a hand-to-hand transaction.      See id. at

1157. Instead, police only witnessed an individual reach into a vehicle in a

high-drug area.   See id.     Our Supreme Court held that reaching into a

vehicle in a high-drug area did not provide police with reasonable suspicion

to detain the driver of the vehicle. See id. at 1158-1159.

     Instead, we find instructive this Court’s decision in Clemens. In that

case, an experienced police officer witnessed what he believed to be a hand-

to-hand drug transaction between the defendant and an unknown individual

in a high-drug area. See Clemens, 66 A.3d at 380. The defendant then

left the scene of the hand-to-hand transaction.      See id.    This Court held

that, “Given these specific and articulable facts . . . an objectively

reasonable police officer would have reasonably suspected that [the

defendant] sold narcotics to the unidentified man.” Id. (internal quotation

marks omitted).

     Similarly, in Commonwealth v. Daniels, 999 A.3d 590 (Pa. Super.

2010), a police    officer   “witnessed   [an   individual]   walk up   to   [the

defendant’s] car, reach through the window, and hand [the defendant] what

appeared to be United States currency in exchange for a small item.” Id. at

597 (citation omitted). The officer knew this to be a high-drug area. Id.

(citation omitted). This Court held that any argument that these facts did




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not provide the police officer reasonable suspicion that a drug transaction

occurred was frivolous. See id.

      In this case, Officer Bates, a police officer with extensive narcotics

experience, witnessed what he believed to be a hand-to-hand drug

transaction involving Appellant4 and a separate narcotics transaction

between Appellant and Wissler.       Officer Bates also witnessed what he

believed to be drug-related money laundering involving Appellant.        From

these facts, Officer Bates acquired specific and articulable facts establishing

that Appellant engaged in illegal narcotics sales. Officer Bates then relayed

his reasonable suspicion to Officers Fiore and Fustine.     Thus, as Officers

Fiore and Fustine had reasonable suspicion to detain Appellant, the currency

discarded by Appellant was legally seized.        Accordingly, the trial court

properly denied Appellant’s suppression motion.

      In his second issue, Appellant argues that the trial court erred in

admitting Wissler’s statement to police that he bought drugs from an

individual matching Appellant’s description despite the fact that Wissler did

4
  Officer Bates testified that he was not 100% certain that he witnessed a
drug transaction; however, based upon his experience he was very confident
that the hand-to-hand transaction he witnessed was drug related. This was
essentially the same testimony that this Court found sufficient to give police
reasonable suspicion in Clemens. In Clemens, the police officer testified
that he was not 100% certain he that he witnessed a drug transaction;
however, based upon his experience he was very confident that the hand-to-
hand transaction he witnessed was drug related. See Clemens, 66 A.3d at
380. Accordingly, any argument that Officer Bates’ equivocation meant
police lacked reasonable suspicion to pursue Appellant is without merit.




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not testify at trial. When evaluating a trial court’s ruling on the admission of

evidence, “[o]ur task is to evaluate the trial court’s decision for an abuse of

discretion, and we may not disturb the trial court’s ruling merely because we

would have ruled differently.”    Commonwealth v. Sitler, 144 A.3d 156,

169 (Pa. Super. 2016) (en banc) (citation omitted).

      The trial court admitted Wissler’s statement under the present sense

impression exception to the rule against hearsay. That exception provides

that a hearsay statement is admissible if it is “describing or explaining an

event or condition, made while or immediately after the declarant perceived

it.” Pa.R.Evid. 803(1). “The exception allows testimony concerning events

observed by the declarant regardless of whether or not the declarant was

excited. The statement must be made at the time of the event or so shortly

thereafter that the declarant would be unlikely to have the opportunity to

decide to make a false statement.” Bugosh v. Allen Refractories Co., 932

A.2d 901, 914 (Pa. Super. 2007), appeal dismissed, 971 A.2d 1228 (Pa.

2009).

      Whether the challenged statement qualifies as a present sense

impression requires us to decide if Wissler’s declaration to Officer Bates

came so shortly after the events in question that Wissler would have been

unlikely to have had the opportunity to engage in reflective thought or

conjure a falsehood. We find instructive this Court’s decision in Croyle v.

Smith, 918 A.2d 142 (Pa. Super. 2007). In Croyle, this Court found that a



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statement given approximately ten minutes after a motorcycle accident was

not a present sense impression because it was not given so shortly after the

event that the declarant did not have the opportunity to decide to make a

false statement. See id. at 150.

      We   also   find   instructive    our     Supreme   Court’s    decision   in

Commonwealth v. Wholaver, 989 A.2d 883 (Pa. 2010).                  In Wholaver,

the defendant made a statement to his brother approximately five to ten

minutes after seeing his family’s dead bodies.        Id. at 906.   Although our

Supreme Court addressed the admission of the statement under the excited

utterance exception to the rule against hearsay, its reasoning is applicable in

the present sense impression context.           Specifically, our Supreme Court

stated that “five to ten minutes was sufficient time for [the defendant] to

have engaged in reflective thought[.]” Id. at 907. As noted above, when

an individual has sufficient time to engage in reflective thought prior to

making a statement, that statement is not a present sense impression. See

Bugosh, 932 A.2d at 914.

      In the case sub judice, there was no testimony regarding the exact

duration between when Wissler bought drugs from Appellant and when

Appellant made the statement to police. The evidence, however, indicates

that there was at least a five minute gap between the transaction and

Wissler’s statement. Specifically, Officer Bates radioed Officer Bender who

then stopped Wissler.      Officer Bender then checked Wissler’s identity,



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J-A30020-16


realized he had a warrant out of California, asked him to exit the vehicle,

and then read Wissler his rights. Officer Bender then radioed Officer Bates

who traveled to that location, and read Wissler his rights again. Only then

did Wissler state he bought drugs off of an individual matching Appellant’s

description. It is nearly impossible that this chain of events occurred in less

than five minutes.   Accordingly, we conclude that the trial court erred in

admitting Wissler’s statement to police as a present sense impression.5

       Having determined that the trial court erred in admitting Wissler’s

statement to Officer Bates, we next turn to whether that error was harmless.

See Commonwealth v. McClure, 144 A.3d 970, 975–76 (Pa. Super. 2016)

(citation omitted) (“In the event of an erroneous admission of evidence, a

verdict can still be sustained if the error was harmless.”). “Harmless error

exists if . . . the properly admitted and uncontradicted evidence of guilt was

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

comparison that the error could not have contributed to the verdict.”

Commonwealth v. Mitchell, 135 A.3d 1097, 1106 (Pa. Super. 2016),

appeal denied, 145 A.3d 725 (Pa. 2016) (citations omitted).                The

Commonwealth bears the burden of proving that an error was harmless

beyond a reasonable doubt.      See Commonwealth v. Konias, 136 A.3d


5
  We also do not ascertain a basis in the record for admission of the
statement under a different exception to the rule against hearsay.




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1014, 1022 (Pa. Super. 2016), appeal denied, 145 A.3d 724 (Pa. 2016)

(citation omitted).6

      In this case, the properly admitted and uncontradicted evidence of

guilt was overwhelming.         Specifically, Officer Bates testified that he saw

Appellant and Wissler engage in what he believed to be a drug transaction.

Moreover, Officer Bates witnessed Appellant engage in what be believed to

be a separate hand-to-hand drug transaction and a drug-related money

laundering exchange. Appellant discarded most of the currency from these

transactions   as   he   fled    police    and     that   currency   was   recovered.

Furthermore, police found heroin in Wissler’s center console when he exited

the vehicle. Three bags of that heroin were stamped “black death.” N.T.,

12/7/15, at 37. When police later obtained a search warrant for Appellant’s

phone, they discovered text messages sent by Appellant in which he stated

that heroin stamped “black death” was selling like “hotcakes.”             Id. at 49.

Leaving aside Wissler’s improperly admitted statement, this evidence

showed beyond a reasonable doubt that Appellant was guilty of possession

with intent to deliver a controlled substance and possession of drug


6
  Because we apply the same standard for harmless error if evidence is
admitted in contravention of the Pennsylvania Rules of Evidence as we do
when evidence is admitted in contravention of the United States
Constitution, we need not address Appellant’s confrontation clause
argument. Cf. Davis v. Ayala, 135 S.Ct. 2187, 2197 (2015) (explaining
standard for harmless error analysis when evidence is admitted in
contravention of United States Constitution).




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paraphernalia. The prejudicial effect of Wissler’s statement to police was

thereby so insignificant by comparison that its erroneous admission could

not have contributed to the verdict. Accordingly, the admission of Wissler’s

statement was harmless error and we affirm Appellant’s judgment of

sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/14/2017




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