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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                     :
                                          :
RANDY D. STOKES,                          :          No. 360 WDA 2019
                                          :
                        Appellant         :


     Appeal from the Judgment of Sentence Entered February 1, 2019,
              in the Court of Common Pleas of Warren County
             Criminal Division at No. CP-62-CR-0000415-2017


BEFORE: SHOGAN, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED SEPTEMBER 13, 2019

      Randy D. Stokes appeals from the judgment of sentence entered on

February 1, 2019 by the Court of Common Pleas of Warren County Criminal

Division following his conviction of one count each of possession of a controlled

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

three counts of criminal use of a communication facility.1 After careful review,

we affirm.

      The trial court provided the following factual and procedural history:

             In October 2017, the Warren County Drug Task Force
             began covertly communicating with [appellant] over
             social media and text messaging. Through these
             messages, [appellant] agreed to deliver one gram of
             methamphetamine to an undercover officer at a set
             location in Warren, Pennsylvania. On October 20,

1 35 P.S. §§ 780-113(a)(30) and (16), and 18 Pa.C.S.A. § 7512(a),
respectively.
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            2017, the Drug Task Force met [appellant] at the
            location where he was taken into custody. At the time
            of arrest, a clear plastic bag was found in the center
            console of his vehicle which contained 2.9 grams of
            white crystal-like substances, along with other items
            consistent of drug paraphernalia. A subsequent field
            test of the white substance yielded a positive result
            for methamphetamine.

            ....

            On January 15, 2019, a jury found [appellant] guilty
            of possession with intent to deliver, possession of [a]
            controlled substance, and three counts of criminal use
            of [a] communication facility.        The jury found
            [appellant] not guilty of [one count] of criminal use of
            [a] communication facility as well as possession of
            drug paraphernalia. [The trial court] also found
            [appellant] not guilty of operating a vehicle without
            valid inspection.     [Appellant] was sentenced on
            February 1, 2019.[2] On March 1, 2019, [appellant]
            filed a notice of appeal . . . .

Trial court opinion, 3/4/19 at 1-2 (extraneous capitalization omitted).

      Appellant filed a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b) with his timely notice of appeal. The trial court

filed an opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issue for our review:

            Did the trial court abuse its discretion by overruling
            defense counsel’s objection to the introduction of
            evidence, specifically text messages exchanged
            between [appellant] and an undercover police officer
            on dates not noted in the criminal information as well
            as messages that referenced [appellant’s] prior
            criminal record?


2 The trial court imposed an aggregate sentence of 54-108 months’
imprisonment, with credit for time served.


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Appellant’s brief at 8.

        Before we can address the merits of appellant’s appeal, we must first

determine whether the issue is properly before us.            The Commonwealth

contends that appellant waived his issue on appeal because he failed to timely

object to the admission of text messages between appellant and an

undercover police officer. (Commonwealth’s brief at 1; see also trial court

opinion, 3/4/19 at 2-3.)      Appellant argues that he properly preserved this

issue    for   appellate   review   when   he   raised   an    objection   prior   to

Detective Joseph Bees reading the text messages as part of his testimony.

        The Pennsylvania Rules of Evidence state that in order to preserve a

claim of error involving the admission of evidence, a party must, on the record,

make a timely objection and state the specific ground for the objection.

Pa.R.E. 103(a)(1).     See also Commonwealth v. Parker, 847 A.2d 745,

749-750 (Pa.Super. 2004) (“[I]t is well settled that failure to raise a

contemporaneous objection constitutes a waiver of [an evidentiary] claim.”).

        Here, the record reflects that appellant failed to object to the admission

of the text messages at issue.

               Q:   Officer Bees, I am showing you what I have
                    marked as Commonwealth’s Exhibit 1; do you
                    recognize that?

               A:   Yes, these are the – this            is   the   text
                    conversations with [appellant.]

               Q:   And did you print these out? Or, not print them,
                    but save them?



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            A:    I did.

            [The Commonwealth:] Your Honor, at this time I
            would ask that Commonwealth Exhibit 1 be entered
            into evidence.

            THE COURT: [Appellant’s counsel?]

            [Appellant’s counsel:] No objection, Your Honor.

            THE COURT:     They’re admitted collectively as
            Commonwealth Exhibit 1.

Notes of testimony, 1/15/19 at 34-35 (emphasis added).

      The record further reflects Detective Bees began reading the text

messages aloud as they were simultaneously displayed for the jury on a

projector. (Id. at 36-71.) As Detective Bees read the text messages for the

jury, appellant raised objections pertaining to the dates of the text messages

and references to appellant’s criminal history contained within the text

messages. (Id. at 39, 44.)

      We find that appellant failed to contemporaneously raise his objections.

Indeed, appellant raised his objections after the text messages had already

been admitted into evidence. Put another way, and as noted by the trial court,

at the time of appellant’s objections, the text messages were already part of

the record. (See trial court opinion, 3/4/19 at 3.) Accordingly, appellant’s

sole issue is waived on appeal.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2019




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