J-S30034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DERRICK ANTHONY CLAY

                            Appellant                No. 2966 EDA 2014


          Appeal from the Judgment of Sentence September 22, 2014
             In the Court of Common Pleas of Montgomery County
                Civil Division at No(s): CP-46-CR-0007615-2013


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                              FILED MAY 06, 2016

        Derrick Anthony Clay (“Appellant”) appeals from the judgment of

sentence entered in the Montgomery County Court of Common Pleas,

following his bench trial convictions for criminal attempt to commit

possession of a controlled substance by misrepresentation, fraud, forgery,

deception or subterfuge,1 criminal conspiracy to commit possession of a

controlled substance by misrepresentation, fraud, forgery, deception or

subterfuge,2 criminal conspiracy to possess a controlled substance,3 criminal


____________________________________________


1
    18 Pa.C.S. § 901(a); 35 P.S. § 780-113(a)(12).
2
    18 Pa.C.S. § 903(a)(1); 35 P.S. § 780-113(a)(12).
3
    18 Pa.C.S. § 903(a)(1); 35 P.S. § 780-113(a)(16).
J-S30034-16



attempt to possess a controlled substance,4 identity theft,5 criminal

conspiracy to commit identity theft,6 criminal attempt to commit identity

theft,7   criminal   conspiracy     to   commit   insurance   fraud/motor   vehicle

insurance rate determination,8 criminal attempt to commit insurance

fraud/motor vehicle insurance rate determination,9 and false identification to

law authorities.10 We affirm.

        The trial court accurately set forth the facts and procedural history of

this case in its opinion; therefore, we have no reason to restate them. See

Trial Court Pa.R.A.P. 1925(a) Opinion, filed October 7, 2015 (“Trial Court

Opinion”), at 1-4.

        Appellant raises the following issue and attendant sub-issues for our

review:


____________________________________________


4
    18 Pa.C.S. § 901(a); 35 P.S. § 780-113(a)(16).
5
    18 Pa.C.S. § 4120(a).
6
    18 Pa.C.S. § 903(a)(1); 18 Pa.S. § 4120(a).
7
    18 Pa.C.S. § 901(a); 18 Pa.C.S. § 4120(a).
8
 18 Pa.C.S. § 903(a)(1); 18 Pa.C.S. § 4117(a)(1). Our Supreme Court held
18 Pa.C.S. § 4117(b)(1) unconstitutional in Commonwealth v. Stern, 701
A.2d 568, 573 (Pa.1997) to the extent that it regulated conduct of attorneys
engaged in the practice of law.
9
    18 Pa.C.S. § 901(a); 18 Pa.C.S. § 4117(a)(1).
10
     18 Pa.C.S. § 4914(a).



                                           -2-
J-S30034-16


       WHETHER THE LEARNED TRIAL COURT ABUSED ITS
       DISCRETION BY PERMITTING THE COMMONWEALTH TO
       INTRODUCE EVIDENCE OF ALLEGED PRIOR BAD ACTS
       PURSUANT TO PA.R.E. 404(B)(3) AND CONSIDERING
       SUCH ALLEGED PRIOR BAD ACTS WHEN RENDERING ITS
       VERDICT FINDING APPELLANT GUILTY OF THE CHARGES
       AGAINST HIM IN THAT:

          A) THE COMMONWEALTH DID NOT SEEK TO
          INTRODUCE EVIDENCE OF APPELLANT’S ALLEGED
          PRIOR BAD ACTS UNTIL THE DAY OF TRIAL,
          WITHOUT PROPER NOTICE TO APPELLANT OR TO
          DEFENSE COUNSEL, IN VIOLATION OF THE
          REASONABLE NOTICE REQUIREMENTS SET FORTH
          IN THE RULE, AND NOT EXPRESSLY FINDING GOOD
          CAUSE TO DISPENSE WITH THE REASONABLE
          NOTICE REQUIREMENT;

          B) THE COMMONWEALTH WAS PERMITTED TO
          PRESENT EVIDENCE FROM WITNESSES AND
          PRESENT    EXHIBITS    THAT    HAD   NOT  BEEN
          PREVIOUSLY DISCLOSED TO THE APPELLANT OR TO
          DEFENSE      COUNSEL      IN    VIOLATION   OF
          PA.R.CRIM.[P.] 573(B)(1)(C)[;]

          C)   THE   IMPROPER    ADMISSION   OF    THE
          COMMONWEALTH’S EVIDENCE OF APPELLANT’S
          ALLEGED    PRIOR   BAD    ACTS   PREJUDICED
          [APPELLANT] AND THE TRIAL COURT SPECIFICALLY
          STATED IN ANNOUNCING ITS VERDICT THAT IT
          CONSIDERED SUCH EVIDENCE IN FORMULATING
          ITS VERDICT[;] AND

          D) THE ADMISSION OF THE COMMONWEALTH’S
          ALLEGED    PRIOR   BAD   ACTS    EVIDENCE,  IN
          VIOLATION OF THE REASONABLE NOTICE RULE OF
          PA.R.E. 404(B)(3) AND WITHOUT PROVIDING THE
          DEFENSE WITH THE WITNESSES AND EXHIBITS
          PRIOR TO TRIAL IN VIOLATION OF THE DISCOVERY
          RULE PA.R.CRIM.[P.] 573(B)(1)(C) CONSTITUTES A
          VIOLATION OF APPELLANT’S DUE PROCESS RIGHTS
          AS GUARANTEED BY THE DUE PROCESS CLAUSE OF
          THE 14TH AMENDMENT[?]


                               -3-
J-S30034-16


Appellant’s Brief at 7.

      Appellant argues the trial court erred by allowing evidence that his co-

defendant had previously attempted to submit forged prescriptions to obtain

controlled substances.    Appellant claims the prosecutor did not give him

notice that he intended to introduce prior bad act evidence and concludes his

due process rights were violated and he is entitled to a new trial.       We

disagree.

      “The admission of evidence is solely within the discretion of the trial

court, and a trial court’s evidentiary rulings will be reversed on appeal only

upon an abuse of that discretion.” Commonwealth v. Woodard, 129 A.3d

480, 494 (Pa.2015) (quoting Commonwealth v. Reid, 99 A.3d 470, 493

(Pa.2014)).

      The Pennsylvania Rules of Evidence provide:

         (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.

         (3) Notice in a Criminal Case. In a criminal case the
         prosecutor must provide reasonable notice in advance of
         trial, or during trial if the court excuses pretrial notice on


                                     -4-
J-S30034-16


         good cause shown, of the general nature of any such
         evidence the prosecutor intends to introduce at trial.

Pa.R.E. 404.

      Although evidence of a defendant’s prior acts is not admissible to show

his bad character or propensity to commit bad acts, it is admissible where

“there is a legitimate reason for the evidence, such as to establish: 1)

motive; 2) intent; 3) absence of mistake or accident; 4) a common scheme

or plan; and 5) identity.”    Commonwealth v. Reid, 811 A.2d 530, 550

(Pa.2002).     Further, the evidence may also be admissible “to impeach the

credibility of a testifying defendant”. Id.

      “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. Sherwood, 982 A.2d

483, 497 (Pa.2009) (quoting Commonwealth v. Powell, 956 A.2d 406,

419 (Pa.2008)).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Garrett D.

Page, we conclude Appellant’s issue and sub-issues merit no relief. The trial

court opinion thoroughly discusses and properly disposes of the questions

presented.     See Trial Court Opinion, at 4-10 (finding: evidence of co-

defendant’s previous attempts to submit forged prescriptions for controlled

substances properly admitted to show existence of common scheme or plan;

and Appellant’s due process rights not violated where Appellant’s and co-

                                      -5-
J-S30034-16


defendant’s cases were consolidated, evidence involved co-defendant’s prior

acts, not Appellant’s criminal record, prosecutor provided notice of all

evidence to co-defendant’s attorney, Appellant’s attorney declined to request

copy of evidence that previously was given to co-defendant’s attorney, and

trial court expressly stated that it placed little or no weight on prior bad acts

evidence). Accordingly, we affirm on the basis of the trial court opinion.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2016




                                      -6-
                                                                                Circulated 04/14/2016 12:10 PM




 IN THE COURT OF COMMON PLEAS OF MONTGOMERY c'o:tJN*Y;;P.ENNSYLVANIA
                        CRIMINAL DIVISION          . ,_, . .,.. )(.:;/ j
                                                                     20 IS OCT - 7 f:M 10: I 3 "-JL1

 COMMONWEALTH                 OF PENNSYLVANIA
                                                                    No. CP-46-CR-0007615-2013

                         v.
                                                                                   2966 EDA 2014
DERRICK ANTHONY CLAY


                                             OPINION

Page, J.                                                                       October 6, 2015

                               FACTS AND PROCEDURAL HISTORY

           On October 7, 2013, Appellant Derrick Anthony Clay ("Appellant") was arrested along

with his son, Anthony Hakeem Clay, for submitting a forged prescription for a controlled

substance to a pharmacy in a Walmart in West Norritown Township, Pennsylvania. The

Commonwealth's       motion to consolidate the resulting cases against the two parties was granted

on June 6, 2014. Come June 12, 2014, however, Anthony Clay pleaded guilty, whereas

Appellant exercised his right to a bench trial.

           Immediately prior to commencement      of the trial, the Commonwealth    made an oral

motion in limine to submit evidence that on July 13, 2013, Anthony Clay had attempted to

submit two forged prescriptions to another pharmacy, one of which used the same doctor's name

as was used in the instant offense. Appellant's objections were overruled and the motion was

granted.

       Appellant was subsequently found guilty by the undersigned of criminal attempt to

commit possession of a controlled substance by misrepresentation, fraud, forgery, deception or
                  1
    subterfuge,       criminal    conspiracy      to commit         possession   of a controlled   substance   by

    misrepresentation,      fraud, forgery, deception or subterfuge.' criminal conspiracy to possess a

    controlled substance,'        criminal attempt to possess a controlled substance," identity theft,5

    criminal conspiracy to commit identity theft, 6 criminal attempt to commit identity theft," criminal

    conspiracy to commit insurance fraud/motor vehicle insurance rate determination, 8 criminal

    attempt to commit insurance fraud/motor vehicle insurance rate determination,9 and false
                                                              0
    identification to law enforcement authorities.'               On September 22, 2014, based on an agreement

    between the Commonwealth and Appellant, this Court sentenced Appellant to incarceration for a

    period of time-served to twenty-three months, two years' of consecutive probation, twenty-four

    hours of Community Service, and to pay the costs of prosecution.

            Appellant, who is represented by the Office of the Public Defender of Montgomery

    County, filed a timely Notice of Appeal to the Superior Court of Pennsylvania on October 14,

    2014. On November            13, 2014, this Court entered an order requesting that Appellant file a

    concise statement of the errors complained of on appeal within twenty-one days (the due date

being December 4, 2014) and stating that "Appellant is notified that issues shall be deemed

waived if not properly included in the Statement timely filed and served pursuant to Pa. R.A.P.

    1925(b)." No statement was filed by Appellant, and this Court entered an opinion on December

    15, 2014, pronouncing that Appellant had waived all issues for purposes of appeal.




1
  18   Pa. C.S.A. § 90 I (a) and 35 Pa. C.S.A. § 780-1 I 3(a)( 12)
2
  18   Pa. C.S.A. § 903(a)( 1) and 35 Pa. C.S.A. § 780- l I 3(a)( 12)
3
  18   Pa. C.S.A. § 903(a)(l) and 35 Pa. C.S.A. § 780- I I 3(a)( 16)
4
  18   Pa. C.S.A. § 901 (a) and 35 Pa. C.S.A. § 780- I l 3(a)( 16)
5
  18   Pa. C.S.A. § 4120(a)
6
  18   Pa. C.S.A. § 903(a)(I) and 18 Pa. C.S.A. § 4120(a)
7
  18   Pa. C.S.A. § 901 (a) and 18 Pa. C.S.A. § 4120(a)
8
  18   Pa. C.S.A. § 903(a)(1) and 18 Pa. C.S.A. § 4117(a)( 1)
9
  18   Pa. C.S.A. § 901(a) and 18 Pa. C.S.A. § 4117(a)(I)
1018
        Pa. C.S.A. § 4914(a)



                                                               2
                 On January 27, 2015, Appellant's counsel filed a Motion for Limited Remand with the

        Superior Court of Pennsylvania, claiming that a staff reduction within the Office of the Public

        Defender was responsible for Appellant's failure to file a concise statement within the prescribed

       time period. In response, the Superior Court issued an order on February 25, 2015, allowing

       Appellant an additional twenty-one days to file a concise statement, and providing this Court

""~'   thirty days from receipt of that statement to file a supplemental opinion.

                 That same day, February 25, 2015, Appellant's counsel filed a motion entitled "Concise

       Statement of Errors Complained of on Appeal." Rather than a list of appealable issues, however,

       the document advised that:

                 Pursuant   to Pa. R.A.P.    1925(c)(4) and the Superior Court's decision in
                 Commonwealth v. Goodwin, 928 A.2d 287, 292-293 (Pa. Super. 2007), the
                 undersigned after a conscientious review of the record, certifies that there are no
                 non-frivolous issues upon which a direct appeal from the Judgement of Sentence
                 can be based. Accordingly, counsel, on appeal, will be proceeding in accordance
                 with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),
                 Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009), and
                 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981 ).

       The following day, February 26, 2015, Appellant's counsel filed an "Amended                 Concise

       Statement of Errors Complained of on Appeal," this time containing substantive issues for

       review.

                 The undersigned entered a supplemental opinion on March 24, 2015. However, the

       supplemental opinion was based on the concise statement filed on February 25, 2015, and did not

       contemplate the substantive issues expressed in the amended concise statement filed on February

       26, 2015. Accordingly, the Superior Court filed an order on August 24, 2015, directing the

       undersigned     to prepare   a second supplemental      opinion   within thirty days. The instant

       supplemental opinion is filed in response.




                                                         3
                                                                  ISSUES

                            In his amended concise statement         of errors complained     of on appeal, Appellant
         ~!!~~

,~~ la~
I''1;.i ~,"'c~~<    complains of the following:

,~ 0)                       1.      The learned trial court abused its discretion by permitting the
~):1-;<
                            Commonwealth to introduce over Appellant's strenuous objection, alleged prior
-, ""'
Nlri~,                      bad acts of Appellant Clay, pursuant to Pa. R.E. 404(b)(3) and considering such
                            alleged prior bad acts when rendering its verdict finding Appellant guilty of the
Iii~~'
w, . ,
l.,~ (.)1                   charges against him in that:
                                    a.       The Commonwealth did not seek to introduce evidence of
                                    Appellant's alleged prior bad acts until the day of trial, without any prior
                                    notice to Appellant or to defence counsel, in violation of the reasonable
                                    notice requirement set forth in Pa. R.E. 404(b )(3) and not expressly
                                    finding good cause to dispense with the reasonable notice requirement;
                                   b.        The Commonwealth was permitted to present evidence from
                                   witnesses and present exhibits that had not been previously disclosed to
                                   the Appellant or to defence counsel, in violation of Pa. R. Crim. P.
                                   573(8)( I)( c );
                                   c.        The improper admission of the Commonwealth's evidence of
                                   Appellant's alleged prior bad acts prejudiced the Appellant in that the trial
                                   court specifically stated in announcing its verdict that it considered such
                                   evidence when formulating its verdict; and
                                   d.        The admission of the Commonwealth's alleged prior bad acts
                                   evidence, in violation of the reasonable notice rule of Pa. R.E. 404(b)(3)
                                   and without providing the defence with the witnesses and exhibits prior to
                                   trial, in violation of Pa. R. Crim. P. 573(B)(l)(c), constitutes a violation of
                                   Appellant's due process rights as guaranteed by the Due Process Clause
                                   and the Fourteenth Amendment.




                                                       STANDARD OF REVIEW

                           Evidentiary decisions are within the trial court's discretion and will not be reversed absent

                   a clear abuse of that discretion. Commonwealth v. Edwards, 903 A.2d 1139, 1 I 56 (Pa. 2006)

                   (citation omitted).




                                                                     4
                                                    ANALYSIS

           Invoking the exception to the prohibition on the introduction into evidence of prior

     crirnes.. wrongs, or other acts outlined in Rule 404(b )(2), the Commonwealth                      introduced

 evidence!'    that Appellant's     former codefendant, Anthony Clay, had previously attempted to

 submit two forged prescriptions for controlled substances. One of the forged prescriptions

 referenced    the same doctor's         name as the forged prescription             in the instant trial. The

 Commonwealth        intended to use this evidence to prove Anthony Clay's intent to commit the

 instant offense or of the existence of a common scheme or plan. As Appellant was charged as a

 conspirator to the instant crime, and could also have been found liable under accomplice theory,

the evidence of Anthony Clay's prior bad act was relevant to Appellant's charges.

           On appeal, Appellant does not contest the relevance of the evidence or maintain that the

probative value of the evidence does not outweigh its potential for unfair prejudice, but asserts

that the Commonwealth prejudiced Appellant and violated his right to due process by failing to

adhere to the notice requirements of Rule 404(b)(3) of the Pennsylvania Rules of Evidence and

Rule 573(B)( 1 )( c) of the Pennsylvania Rules of Criminal Procedure.




11
   An officer, a pharmacy technician, and two doctors (Drs. Dissin and Kramer) testified, and two physical
prescriptions were entered as exhibits C-1 and C-2. The officer testified that he had recovered C-2, which lists Dr.
Kramer, from the person of Anthony Clay at the pharmacy. Dr. Kramer testified that he was never Anthony Clay's
physician. The pharmacy technician verified that C-1, which listed a Dr. Dissin as the prescribing physician, had
been given to her by a black male who was not Appellant (presumably Anthony Clay, as the officer had testified that
the other person apprehended at the pharmacy that day was a white female). There was no testimony that C-2 was
ever presented to the pharmacy clerk.


                                                         5
                                         l


         I.     Appellant had sufficient notice of the evidence under the rules.

                A.      Rule 404(b)(3)

                Appellant   claims that introduction    of the evidence was a violation of the notice

         requirement of Rule 404(b)(3), which states that in a criminal case "the prosecutor must provide

l11l!   reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good
~~

~.11    cause shown, of the general nature of any such evidence the prosecutor intends to introduce at

        trial." Pa. R.E. 404(b)(3). The notice need not be in writing for the evidence to be admissible.

        Commonwealth v. Lynch, 57 A.3d 120, 126 (Pa. Super. Ct. 2012). Nor need the notice be

        formally given. See id (finding that the facts listed in the affidavit and the testimony at the

        preliminary hearing put defendant on notice that the prior bad acts would be introduced at trial).

        The requirement is designed to prevent unfair surprise and give defendants time to prepare an

        objection or rebuttal. Commonwealth v. Hicks, 91 A. 3d 47, 53 (Pa. 2014).

                In the instant case, this Court heard the motion immediately before trial commenced. A

        few weeks prior, the prosecutor had asked the defense attorneys "specifically if there were any

        clients, an[y] issues or anything." Tr. 16:9-12, June 12, 2014. The prosecutor was not informed

        until the day of trial that the attorneys had a conflict and that the codefendant would enter an

        open guilty plea. Until that moment, the Commonwealth had been anticipating that the evidence

        would coine in under the case against Appellant's codefendant. The prosecutor provided due

        notice of evidence of the prior bad act to the codefendant's attorney.

               Not only did the prosecutor provide notice to codefendant's         attorney, the prosecutor

        believed that discovery was being shared with Appellant's          attorney. He claims that when

        providing a disk of a video to Appellant's attorney prior to trial, the prosecutor asked Appellant's

        attorney if the codefendant's    attorney needed a copy. Appellant's attorney responded in the




                                                          6
negative, and the prosecutor interpreted this remark to mean that the defense attorneys were

looking at all of the evidence together. Appellant's attorney contested that his remark was

regarding the video-disk alone and claimed that he had no knowledge of the prior bad act, nor

that evidence of the act would be admitted at trial.

        This Court found that Appellant had sufficient notice of the potential for the introduction

of the evidence. Appellant was charged with conspiracy, and this charge was listed on the bill of

information. As of the filing of the bills, Appellant knew that any act by a coconspirator in

furtherance of the conspiracy was admissible against Appellant at trial. Appellant also agreed to

consolidate the trials, and was therefore was on further notice that all evidence against Anthony

Clay would be heard at his trial. Appellant did not object to consolidation on the grounds that

evidence of Anthony Clay would be prejudicial against his client. Furthermore, the rule only

requires that Appellant be informed of the general nature of the evidence, not what specific

witnesses and documents would be admitted. Pa. R.E. 404(b )(3). Appellant, knowing and

accepting that he was to be tried for conspiracy with a coconspirator, had ample time to prepare

an objection or rebuttal to the evidence. Hicks, 91 A.3d at 53.

       B.      Rule 573(B)(l)(c)

       Appellant claims that introduction of the evidence was a violation of the notice

requirement of Rule 573(8)( I)( c) of the Pennsylvania Rules of Criminal Procedure, which states

that "on request by the defendant" the Commonwealth shall disclose to the defendant's attorney

"the defendant's prior criminal record." Pa. R. Crim. P. 573(B)(l)(c). Appellant's argument fails

because the cited portion of the rule refers only to the defendant's criminal record when it is

specifically requested by a defendant. Here, the prior bad act was not part of Appellant's

criminal record.




                                                 7
          II.        Admission of the evidence did not prejudice Appellant.

(!)                  Appellant claims that admission of the evidence in violation of the notice rules entitles
I"'~
~!!       him to a new trial. An erroneous ruling by a trial court on an evidentiary issue does not require
'\,
~j        an appellate court to grant relief where the error is harmless beyond a reasonable doubt.
'\,
N         Commonwealth v. Northrip, 945 A.2d 198, 203 (Pa. Super. Ct. 2008). Harmless error exists

!:"l'o   where:

                      (I) the error did not prejudice the defendant or the prejudice was de minimis; (2)
                     the erroneously admitted evidence was merely cumulative of other untainted
                     evidence which was substantially similar to the erroneously admitted evidence; or
                     (3) 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.

         Commonwealth v. Fransen, 42 A.3d 1100, 1113 (Pa. Super. Ct. 2012). A mistrial may only be

         granted where the error complained of "is of such a nature that its unavoidable effect is to

         deprive the defendant of a fair trial by preventing the jury from weighing and rendering a true

         verdict." Commonwealth v. Johnson, 107 A.3d 52, 77 (Pa. 2014).

                    Here, the properly admitted and uncontradicted evidence of guilt was overwhelming.

         Appellant entered the pharmacy with the codefendant who handed the pharmacist the forged

         prescription. They were standing right next to each other at the pharmacy counter when the

         codefendant handed in the forged prescription. Tr. 67, 70-71. The prescription was unarguably

         forged.12 When the police apprehended the codefendant, Appellant fled. When police

         apprehended Appellant, he provided them with fake identification. Both parties asserted that they




         12
              This fact was uncontested at argument.


                                                             8
didn't know each other. Eventually, Appellant stated to police that he knew his son was going to

submit a forged prescription and was there to drive him.13 Tr. 72- 73.

         Moreover, the error did not prejudice Appellant or the prejudice was de minimis. The

undersigned, in rendering the verdict, stated, "I did not put a lot of credence - I'11 use the word

'weight' to the July 13 prior bad acts issue, even though there was a motion in Iimine that I

granted, I didn't put a lot of weight to what was heard on that. What I did put weight in is what I

heard today as to the 10- 7 of 2013 incident. That is the germane issue." Tr. 104 :22-105 :4. The

uncontradicted evidence of guilt in combination with the miniscule consideration that the prior

bad act was given by the undersigned makes the introduction of that act harmless. Fransen, 42

A.3d at 1113.



1n:---1ntroducfionofllftYevidence--did non,folateAppellant's righnifdueprlfc-ess-. · - · · ---· ·· ----                ·

         Appellant lastly claims that introduction of the evidence without proper notice violates

Appellant's rights under the United States Constitution, which states that no person shall be

deprived of life, liberty, or property without due process of law.14 U.S. Const. amend. 5.15 While

not capable of an exact definition, the basic elements of procedural due process are adequate

notice, the opportunity to be heard, and the chance to defend oneself before a fair and impartial

tribunal having jurisdiction      over the case. Commonwealth v. Wright, 961 A.2d 119, 132 (Pa.

2008). In contrast to notice required under statute, due process notice requirements are flexible

and non-technical and require no particular form or procedure. Harrington v. Com., Dep't of


13
   The officer testified that Derrick Clay said, "[O]kay, that's my son, Anthony. He called me, said he was going to
pass a script and he needed a ride - or no, he needed somebody to ride with.... We came up here, we came in, and
that's the way this whole thing unfolded." Tr. 72:21-73:3.
14
   Appellant makes no argument under the Pennsylvania Constitution, but it has been decided that the rights
provided under Pa. Const. Art. I, § 9 are coextensive with the due process protections of the United States
Constitution. Commonwealth v. Snyder, 713 A.2d 596 (Pa. 1998).
15
   As made applicable to state proceedings by U.S. Const. amend. 14.


                                                         9
ti~
t:1
~j
~I                Transp., Bureau of Driver Licensing, 763 A.2d 386, 391 (Pa. 2000). Furthermore, there is no

(t~               general constitutional right to discovery in a criminal case. Commonwealth v. Sullivan, 820 A.2d

{li!~             795 (Pa. Super. Ct. 2003). Ultimately, for a governmental proceeding to be violative of the

~~                constitutional guarantee of due process, it must offend "some principle of justice so rooted in the
(tu
\~
I\~               traditions and conscience of our people as to be ranked as fundamental." Wright, 961 A.2d at 132

                  ( citations omitted).

                             As discussed above, Appellant had adequate notice that he was being tried for conspiracy

                  and would have to defend himself against any alleged acts by his coconspirator. Appellant

                 agreed to the consolidated trial and had ample opportunity to request a copy of discovery that

                 had been provided to codefendant and he did not do so. Had codefendant not pled guilty and the

                 trial had proceeded as planned, Appellant's counsel would have been equally unprepared. There

           · - · · --rsn6-c6iistitufionartigliCto discovery, and Appellant had adequate opportunity artrial to· cross- ·

                 examine the Commonwealth's evidence and ensure its accuracy. Introducing the evidence at trial

                 of a prior bad act committed by codefendant was not so egregious as to offend a fundamental

                 principle of justice. Wright, 961 A.2d at 132.




                                                              CONCLUSION

                        For all of the aforementioned reasons, this Court's decision should be AFFIRMED.

                                                                  BY THE COURT:

        Copies of the above Opinion
        Mailed on October 6, 2015
        By Interoffice Mail to:
        Robert M. Falin, Esquire, ADA
        Raymond Roberts, Esquire, Assistant Public Defender               TTD. PAGE,         J.
        By First Class Mail to:
        Derrick Anthony Clay, Appellant



      J~J.?x~
        Judicial Secretary

                                                                    10
