J-S49028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KARL K. MYERS,

                            Appellant                 No. 3243 EDA 2013


          Appeal from the Judgment of Sentence November 7, 2013
            In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-36-CR-0004755-2011


BEFORE: OLSON, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                           FILED DECEMBER 23, 2014

       Karl K. Myers appeals from the judgment of sentence imposed on

November 7, 2013 in the Court of Common Pleas of Montgomery County,

following his convictions on 14 counts of drug related charges.1 He received

an aggregate sentence of 14 to 30 years’ incarceration. The charges arose

from Myers’ participation in a cocaine distribution ring operating out of a

barbershop.      In this timely appeal, Myers claims the trial court erred in

failing to grant a mistrial after the Commonwealth presented evidence to the

jury it claimed it did not have, and in permitting a police officer to testify as
____________________________________________


1
 The charges included: one count each of corrupt organization, 18 Pa.C.S. §
911(b)(3); dealing in proceeds of unlawful activities, 18 Pa.C.S. §
5111(a)(1); conspiracy, 18 Pa.C.S. § 903(a); three counts of criminal use of
a communication facility, 18 Pa.C.S. § 7512(a); and four counts each of
possession of cocaine, 35 P.S. § 780-113(a)(16) and possession of cocaine
with the intent to deliver 35 P.S. 780-113(a)(30).
J-S49028-14



an expert witness who also testified as a fact witness.2      After a thorough

review of the certified record, the submissions by the parties and relevant

law, we affirm on the sound basis of the trial court’s opinion dated January

9, 2014.

       We write briefly to supplement the trial court’s reasoning regarding

Myers’ first issue. Prior to trial, the Commonwealth informed Myers’ counsel

the Commonwealth would be presenting certain surveillance videos of the

barbershop, but that Myers would not be in any of the portions shown. This

resulted in a stipulation agreeing to the admission of the video.        Myers’

counsel highlighted the fact his client was never seen at the barbershop in

his opening statement.         Nonetheless, the Commonwealth showed a brief

portion of a video showing Myers exiting his car outside the barbershop. The

trial court appropriately concluded the Commonwealth had violated the

terms of the agreement.          However, the trial court denied the motion for

mistrial.   Instead, the trial court gave a very strong limiting instruction to

the jurors highlighting the improper nature of the evidence and instructing

the jury that on no account could they consider the evidence.            In its

Pa.R.A.P. 1925(a) opinion, the trial court denied Myers relief based upon the


____________________________________________


2
  Our standard of review for the denial of a motion for mistrial is one of an
abuse of discretion. See Commonwealth v. Padilla, 923 A.2d 1189, 1192
(Pa. Super. 2007). Decisions regarding the admission of evidence are also
reviewed for abuse of discretion. See Commonwealth v. Feliciano, 67
A.3d 19, 27 (Pa. Super. 2013).



                                           -2-
J-S49028-14



strength of the instruction and the lack of any indication that the jury

ignored the instruction.

      While we agree with the trial court’s analysis, we also note that there

was sufficient evidence beyond the video surveillance to support the

convictions, and therefore, even if the trial court erred in refusing to grant a

mistrial the error was, at most, harmless error.         Myers was identified

multiple times on wiretap recordings negotiating for the purchase of

substantial amounts of cocaine. He was also under surveillance as people

from the barbershop travelled to South Philadelphia to meet Myers to deliver

the cocaine he had ordered over the phone.         Accordingly, whether Myers

was ever at the barbershop was of minimal importance.

      Because our review has found no abuse of discretion on the part of the

trial court, we affirm the judgment of sentence.

      Judgment of sentence affirmed. Parties are directed to attach a copy

of the January 9, 2014 trial court opinion in the event of further

proceedings.

      Judge Stabile joins the memorandum.

      Judge Olson concurs in the result.




                                     -3-
J-S49028-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2014




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   9IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY
                             PENNSYLVANIA
                          CRIMINAL DMSION


   COMMONWEALTH OF PENNSYLVANIA                         CP-46-CR-0004 755-2011

               V.

  KARL K. MYERS                                         3243 EDA 2013


                                      OPINION

  CARPENTER J..                                        JANUARY 9,2014


                       FACTUAL AND PROCEDURAL HISTORY

               Appellant, Karl K. Myers, appeals from the judgment of sentence

  imposed on November 7, 2013, following a five day jury trial at which he was

  convicted of corrupt organizations, four counts of possession of cocaine, four

  counts of possession with intent to deliver, dealing in proceeds of unlawful

  activities, three counts of criminal use of communications facility and criminal

 conspiracy.

               From April of 2011, through May of 2011, the Montgomery County

 Detective Bureau, along with the Tredyffrin Township Police Department,

 conducted a wiretap investigation and utilized video surveillance, uncovering a

 large and sophisticated cocaine distribution ring. The drug ring was centrally

 operated out of A & L Head's Up Hair Studio at 932 Upper Gulph Road,

 Tredyffrin Township, Montgomery County, Pennsylvania. Appellant was

. convicted for his major role in the drug distribution organization.
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                 On January 4, 2013, a hearing on pretrial motions filed by

   Appellant and his two co-defendants, Patrick Wedderburn and Michael Dennis,

   was conducted. Subsequently, on January 7, 2013, the three-defendant jury trial

   commenced, at the conclusion of which Appellant was found guilty of the

  aforementioned charges.

                Sentencing was held on November 7, 2013, atwhich time an

  aggregate sentence of 14 to 30 year's imprisonment. This timely appeal was

  filed on November 22, 2013.

                                        ISSUES

  1.    Whether the motion for a mistrial was properly denied.

  II.   Whether Detective Revnolds provided proper testimony.

                                     DISCUSSION

 I.     The motion for a mistrial was properly denied.

                First on appeal, Appellant contends that this Court erred in

 denying his request for a mistrial after the jury was shown video surveillance of

 him when the Commonwealth told defense counsel prior to trial that said

 evidence did not exist and that Appellant was not in any of the video

. recordings.

                During the testimony of Detective Michael Reynolds, the

 Commonwealth was eliciting testimony about a search warrant which was

 issued for a 2007 Acura, with license plate number HMB-4823 and registered to

 Appellant. (Trial by Jury, V. 3 1/ 9/13 pp. 5 - 6). The detective stated that the

search warrant was never executed because the vehicle could not be located. Id.

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  at 6. At that juncture, the Commonwealth showed a videotape of Appellant at

  the barbershop exiting the Acura which was the subject of the search warrant.

 Id. at 6 - 7. Defense counsel made an objection and requested a sidebar. Id. at
 7.

              Once out of the presence of the jury, defense counsel made a

 motion for a mistrial, stating that any prejudice to his client could not be

 overcome based on his opening statement to the jury and his cross-

 examinations of the various witnesses. Id. at 8. Defense counsel explained that

 he had received an email from the Assistant District Attorney on the Sunday

 prior to trial which counsel represented that the email stated in part, ..... Also,

 we will be using some fixed surveillance video of the barbershop. Karl is not in

 any of them." Id. Defense counsel argued that despite the Assistant District

Attorney's representation to the contrary, the jury has now been shown that the

car that Appellant drove in, an Acura, and which was registered to Appellant,

was at the barbershop and that Appellant was seen by the jury in a video at the

barbershop. Id. at 9.

             The Commonwealth agreed that the email was sent, but disagreed

with defense counsel's reading of that email. The Commonwealth asserted that

the email doesn't say Appellant was never seen at the barbershop; but rather, it

states that the Commonwealth will be using some fixed surveillance and that

Appellant is not in any of them. Id. The Commonwealth argued that the email

was not sent in bad faith, and explained that that the time the email was sent,

the Commonwealth was using videos where Appellant was not seen at the

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 barbershop. However, subsequent to that email, the Commonwealth stated that

 it found other fixed surveillance in which Appellant is depicted.at the

 barbershop. Id. at 9 - 10. The Commonwealth also argued that because this

 Court had, two days prior, stated that it would be allowed to use any and all

 video or audio evidence and that defense counsel had the hard drives of all of

 that evidence for over a year and a half prior to trial, defense counsel was on

notice that Appellant could be seen in video surveillance at the barbershop. Id.

             This Court agreed that what the Commonwealth told defense

counsel in the email was that Appellant was not in any of the video surveillance

of the barbershop and that defense counsel had every right to rely on that -

assertion in telling the jury that Appellant is not going to be seen in a video. Id.

at 12 - 13. This Court never told the Commonwealth that it could use video

evidence that it told a lawyer it wasn't going to use. Id. at 14. At that point, this

Court denied the motion for a mistrial without prejudice. Id. at 14. This Court

stated that at a break it wanted defense counsel to discuss with Appellant

whether Appellant really does want a mistrial. Id. The objection was sustained,

the evidence was stricken from the record and the jury was given a cautionary

instruction. Id. at 14 - 15. The cautionary instruction was as follows:


           . All right then, members of the jury, I'll remind you that
             in the oath you took what you swore to do, among
             other things, is follow my instructions on the law.
             Everyone in this courtroom, every defendant, every
             lawyer has the absolute right to rely on the fact that
             you will follow my instructions to the letter.



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·,
                    There was an objection to the last piece of evidence.
                   That objection is sustained. That evidence is not
                   admissible. It's stricken from the record. You must
                   obliterate it from your mind. It can have no bearing on
                   this trial. Strike it from your notes. Never refer to it.
                   Never think about it. It was improper and
                   impermiSSible. It's not part of this case. You must
                   completely disregard it. You must follow the
                   instruction that it may have no bearing whatsoever in
                   you deliberations in any way in this case. All right?

                   Please proceed.

      Id. at 15 - 16.

                   Defense counsel never pursued a mistrial. The record is silent as to

      whether he ever discussed a mistrial with Appellant, and whether that was

      something that he wanted.

                   It is well-settled that the review of a trial court's denial of a motion

     for a mistrial is limited to determining whether the trial court abused its·

     discretion. Commonwealth v. Chamberlain, 612Pa. 107, 175-176, 30 A.3d381,

     422 (2011); Commonwealth v. Simpson, 562 Pa. 255, 754 A.2d 1264, 1272

     (2000). "An abuse of discretion is not merely an error of judgment, but if in

. reaching a conclusion the law is overridden or misapplied, or the judgment

     exercised is manifestly unreasonable, or the result of partiality, prejudice, bias

     or ill-will ... discretion is abused." Commonwealth v. Wright, 599 Pa. 270, 310,

     961 A.2d 119, 142 (2008) (quoting Christianson v. Ely, 575 Pa. 647,838 A.2d

     630, 634 (2003) (internal quotations omitted». A mistrial is an extreme remedy

     and a trial court may grant a mistrial only "where the incident upon which the

     motion is based is of such a nature that its unavoidable effect is to deprive the


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

 true verdict." Wright, 961 A,2d at 142; Simpson, 754 A,2d at 1272. A mistrial is

 not necessary where cautionary instructions are adequate to overcome

 prejudice. Commonwealth v. Spotz, 552 Pa. 499, 716 A,2d 580,593 (1998);

 Comnionwealth v. Lawson, 519 Pa. 175, 546 A,2d 589, 594 (1988). Whether the

 harm can be removed by curative instructions will be within the sound

 discretion of the trial court. Commonwealth v. Maloney. 469 Pa. 342, 365 A,2d

 1237 (1976).

             In this case, this Court determined that the cautionary instruction

was appropriate to remove the harm that the inadmissible evidence caused. The

instruction was firm, direct, specific, comprehensive and plain. Appellant has

offered nothingto rebut the presumption the jury followed the trial court's

instructions. Simpson,at 1272 (jury is presumed to follow trial court's

instructions to disregard inadmissible evidence). Accordingly, this Court did

not abuse its discretion in refusing to grant a mistrial.

             In addition, defense counsel abandoned his request for a mistrial.

This Court denied it without prejudice. Defense counsel was instructed to

confer with Appellant to determine Whether that was something he would want.

The record is silent as to whether counsel did discuss the issue with Appellant

and what Appellant's answer was.




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  II.   Detective Michael Reynolds provided proper testimony.

               Appellant's second issue on appeal is whether this Court erred in

 permitting the investigating police personnel who was a fact witness to testify

 as an expert witness.

              In this case, Detective Michael Reynolds was the affiant of the

 wiretap investigation, and oversaw the handling of the entire investigation,

 including listening to the conversations, reading all of the reports from

 surveillance and he was present while the interceptions were conducted at the

 plant, where the listening took place. (Pretrial Motions 1/4/13 p. 24). At trial,

 Detective Reynolds testified as a fact witness to the extenJ that he outlined a

 summary and scope of the investigation. As an expert witness he interpreted

 the linguistic jargon that was captured on the wiretap, and interpreted what his

observations were from the video surveillance. This was proper.

             The Superior Court in Commonwealth v. Carter, 589 A.2d 1133

(Pa.Super. 1991), has ruled that expert testimony from an officer who has.just

served as an eyewitness is prejudicial, reasoning that H[e]xpert opinion evidence

[after eyewitness testimony] ... encouraged the jurors to shift their focus from

determining the credibility of the Officers' eyewitness testimony, and allowed

them instead, to defer to the Officers' expertise as narcotics detectives. Id. at

1134. The Court warned that such testimony has been condemned as an

invitation for the trier of fact to abdicate its responsibility to ascertain the facts

relying upon the questionable premise that the expert is in a better position to

make such a judgment. Id.

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            Under the facts of this case, the concerns in Carter are not

implicated because Detective Reynolds was never an eyewitness to any of the

drug transactions for which he provided an opinion. The Commonwealth

presented numerous surveillance officers as fact witnesses who did testify as to

the facts surrounding the video surveillance that they conducted. Detective

Reynolds testimony did not run afoul of the concerns that the Superior Court

expressed in Carter; therefore, the detective's testimony was proper.

                                 CONCLUSION

            Based on the forgoing analysis, the judgment of sentence entered

on November 7, 2013, should be affirmed.




                                           BY THE COURT:



                                               cJ(mC~··
                                           WILLIAM R. CARPEN R    J.
                                           COURT OF COMMON PLEAS
                                           MONTGOMERY COUNTY
                                           PENNSYLVANIA
                                           38TH JUDICIAL DISTRICT
Copies sent 1/9/14 t01
  first class mail,

Gina Capuano, Esquire

Interoffice mail to~
Robert Falin, Esquire .• ADA



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