J-S63034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

DOUGLAS FERRIN

                             Appellant                 No. 1772 EDA 2015


             Appeal from the Judgment of Sentence April 10, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0007236-2014

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                    FILED SEPTEMBER 27, 2016

        Appellant, Douglas Ferrin, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas.               Appellant

challenges (1) the weight of the evidence, (2) the sufficiency of the

evidence, and (3) the admission of evidence of a prior crime. We affirm.

        The trial court summarized the facts of this case as follows:

              On May 7, 2014, members of the Philadelphia Police
           and Fire Departments responded to an explosion at 114
           West Queen Lane around 4:00 a.m. Upon their arrival,
           police officers found Appellant outside bleeding profusely
           from his right hand. In response to the officers’ inquiries
           about what happened, Appellant replied that he had been
           playing with a firecracker. Detective Timothy Brooks from
           the Philadelphia Police Bomb Disposal and ATF Arson and
           Explosive Task Force was called to the scene, followed a
           trail of blood, and discovered a post─blast scene outside in
           the rear of the property. Based upon his belief that an
           improvised explosive device (“IED”) had been involved in

*
    Former Justice specially assigned to the Superior Court.
J-S63034-16


           the incident as well as information he received from other
           officers on the scene, the detective entered the residence.
           Inside the home, he recovered three IEDs and several
           other materials and objects known to be components of
           IEDs. Based on these facts, Appellant was charged with:
           [Weapons of Mass Destruction] WMD, as a Felony in the
           Second Degree:[1] Arson, as a Felony in the Second
           Degree:[2] [Causing] a Catastrophe, as a Felony in the
           Third Degree:[3] and related misdemeanor charges. He
           was eventually found guilty of WMD and [Possessing
           Instruments of Crime4] PIC.

Trial Ct. Op., 12/15/15, at 1-2.

        At trial, Detective Brooks testified to the following regarding his

investigation:

           [The Commonwealth]: [W]ho did you go with?

           A: I originally responded and met Lieutenant Sylvester
           Burton . . . . He is the assistant fire marshall [sic] in
           Philadelphia. He was at the scene as well as Officer Daniel
           Sweeney. . . . I was met by Sergeant Simpson . . . who’s
           also a bomb technical [sic] as well.

           Q: And generally, when you get to a site of an explosion,
           what is your duty?

           A: Our duty is to investigate the cause of the explosion,
           what happened and what circumstances brought [sic] the
           explosion to happen.


1
    18 Pa.C.S. § 2716(a), (c)(1).
2
    18 Pa.C.S. § 3301(c)(1).
3
  18 Pa.C.S. § 3302(a). We note that the trial court indicates he was
charged with Risking a Catastrophe. However, the certified record reveals
that he was charged with Causing a Catastrophe.
4
    18 Pa.C.S. § 907(a).



                                      -2-
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                                 *    *    *

          Myself and Lieutenant Burton did a 360, which is where
       we walk around the area. When you are conducting an
       investigation in a post blast you start at the far reaches of
       the blast scene.

                                 *    *    *

       Q: Where did you start?

       A: The sidewalk in front of the house. There was a blood
       trail coming out of the house.

                                 *    *    *

          We walked down the alley way . . . .

          As we get to the back there was a significant amount of
       blood in the back. There was what I believe to be a
       homemade smoker you would use to smoke meats or food.
       And on top of that there was a piece of plywood with two
       burn marks in it. There were pieces of plastic that, in my
       experience, are similar to components of a [IED].

                                 *    *    *

       There was a broken window on the─storm door that was
       open, and the window was shattered. There was glass
       under the window, and there were pieces of human flesh in
       various spots near the back door and near the wooden
       smoker.

                                 *    *    *

       Q: And about how far from the neighbor’s is the smoker?

       A: Ten feet.

       Q: How far from [Appellant’s] house?

       A: Ten feet, a foot.

                                 *    *    *


                                     -3-
J-S63034-16


       Q: So did you determine where the actual blast site was?

       A: Based on my experience, I believe it happened in or
       near that smoker.

                               *    *    *

       Q: Now, after checking the backyard, what did you do?

       A: . . . I went around to the front, and the front door was .
       . . locked. When I went from the backyard to the front, I
       looked in the side window and I could see the dining room
       table had items on there, including a bottle of alcohol.

          In the manufacturing of homemade explosives, alcohol
       can be used in the manufacturing process.

                               *    *    *

          Based on the fact that we had been told that he was
       playing with fireworks─I believe that’s the exact term
       relayed to me─and based on seeing the alcohol and blood
       going in the house, I contacted the Philadelphia District
       Attorney’s Office. And after confirming with them, I made
       a warrantless search of the property.

                               *    *    *

          We walked in through the living room into the dining
       room, and off to the left there was a sewing machine. On
       top of the sewing machine, there was a pill bottle, and it
       had what I believed to be fly paper attached to it. It also
       has a fuse wick sticking out of the bottom of it, and it was
       sealed with an epoxy material.

                               *    *    *

       We found on the dining room table, later in the
       investigation, we discovered a three-part epoxy, two parts
       you mix and a hardener.

       Q: Now, after making the observations, what did you do
       next?



                                   -4-
J-S63034-16


       A: Based on my experience,             that   was   similar   in
       construction to an [IED].

       Q: . . . What do you mean when you say [IED]?

       A: It’s exactly what it sounds like.     An [IED] means it’s
       homemade.

                               *     *    *

       Every bomb or explosive device has four components, be
       that a nuclear weapon down to small firecrackers. There’s
       [sic] the same four components. It’s like buying a car.
       Some have a lot [sic] extra than others [sic] cars. You can
       get different bells and whistles. A nuclear device has a lot
       of bells and whistles to make it go off. But there’s four
       basic components; a power source, an initiator, an
       explosive [sic] a container. Those are the four things they
       have. When you have those four things, you have a bomb
       or an explosive device.

                               *     *    *

       [A] bomb can be anything that you fill with an explosive as
       long as it’s contained. If an explosive is contained, it’s
       highly dangerous.

                               *     *    *

       Q: [I]t seems like you were using [IED] and bomb
       interchangeably. Are they the same thing or are they
       different?

       A: They’re the same thing.

       Q: . . . So you see the one device downstairs, and then
       what did you do next?

       A: . . . I secured that item and took it to my vehicle. I
       have what’s known as an A-box. It’s basically a chamber
       for transporting explosive devices.

                               *     *    *



                                    -5-
J-S63034-16


         We, again, followed the blood trail out and opened up the
         back door and proceeded to the second floor. . . . In the
         second floor middle bedroom in a drawer, we observed two
         more devices.

                                  *    *    *

            It was a tube and one was about six inches long and
         both were between four and six inches each. They were
         sealed with glue on either side, and they had a hobby fuse
         wick coming out [sic] it. They were secured on [sic] my
         vehicle.

N.T., 2/10/15, at 13-17, 20-27.

      After the initial search, they obtained a search warrant to conduct a

more thorough search. Id. at 28.

         Q: Once you obtained the search warrant, at that point,
         did you back in the house?

         A: We did. Several of us that [sic] took part in the search;
         myself, Sergeant Simpson, Detective Golczewski, one
         other detective, and three or four ATF agents.

         Q: And, now, to do this more, thorough search, what did
         you do?

         A: We broke up into rooms. So one or two individuals took
         each room of the house and conducted a search in there.
         All our members of the ATF Explosive Task Force with
         various different degrees of explosive knowledge and
         training.

Id. at 28-29.   They collected a total of 15 different items. Id. at 29. They

took “device debris,” which “look like pieces of burnt plastic.”   Id. at 32.

The Commonwealth showed the Detective a photograph of a wooden dowel.

Id. at 33.

         Q: And what did you believe the dowel was used for.


                                      -6-
J-S63034-16



         A: We believed it’s used in the manufacturing process. . . .
         [I]t’s common in the manufacturing process to use a non-
         sparking material such as a wooden dowel.

                                   *    *    *

         Q: What is this?

         A: That is a packing slip for nitric acid.

         Q: What does nitric acid have to do with an explosive
         device, if anything?

         A: It’s used in the manufacturing of explosives,
         specifically, to make TATP, tri acetone tri peroxide. It’s
         one of the ingredients in making two different types of
         homemade explosives.

                                   *    *    *

         Q: Now, what do we have here?

         A. That’s a battery pack. The way the batteries are taped
         together with improvised wires on the top, it doesn’t
         look─to me, that’s manufactured. It looks like someone
         made it themselves. . . .

         Q: So what is that coming out [sic] the top of those
         batteries?

         A: They’re wires.

         Q: And what did you believe that little device to be?

         A: I believe it had the potential to be a power source for a
         [sic] explosive device.

Id. at 33-35, 37.

      The Commonwealth asked the Detective about the long, short tube.

Id. at 40.   He testified:



                                       -7-
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         A: [W]hen we recovered the devices on the second floor in
         the drawer, they initially looked like cardboard tubes, and
         we found this is a more thorough search. It appears to be
         poster board or paper board rolled up and treated with
         epoxy resin and then sliced. . . .

              It’s hollow inside, which right about [sic] there is a hole
         drilled in there so that’s consistent with where you would
         insert your hobby fuse wick into that tube on there [sic]
         filled with black powder and seal both ends. Then you
         have an IED.

Id. at 40.   They recovered sulfur powder.      Id. at 41.    He explained that

“[j]ust about any homemade explosive is made from household items, items

you can legally purchase.      But when you put them together, you got a

dangerous substance.” Id. at 42.

      The Detective identified a large plastic container, which contained a

silver powder.    Id. at 56.   It reacted to heat when it was tested, which

meant it was “an energetic material,” i.e., explosive.       Id.   The container

weighed 16.9 ounces. Id. at 57. He explained what happens when an IED

explodes:

         Q: Now, could you tell if that was a powder inside the
         explosive device that went off?

         A: No.

         Q: Why not?

         A: The powder─when the device functions, the powder is
         all assumed [sic].

         Q: What do you mean?

         A: It all goes [sic] burns up as part of the chemical
         reaction. So what happens is a rapid chemical reaction,


                                      -8-
J-S63034-16


        16,700 feet per second. So it’s instantaneous, within a
        blink of an eye.    What happens is it’s a tremendous
        amount of heat, and then a shock wave puts out.

           When the explosive goes off, the danger is from the
        shock waive not the burn from the explosive. When it
        goes off, it’s 660 [sic] degrees in every direction.

                                *    *    *

        The average speed is about 38 miles an hour, wind speed,
        and it’s pushing, and it’s a violent reaction, and it’s
        instantaneous.

Id. at 57-58.

     The Detective testified that Appellant did not have a federal explosive

license or permit and did not possess a State of Pennsylvania license to

possess explosives. Id. at 61. The Commonwealth showed the Detective “a

large length of hobby fuse.” Id. at 63.   He testified that it is used as the

initiator for a homemade explosive. Id. at 64.

        [The Commonwealth]: [C]an you compare the amount of
        explosives you think are in this device versus what’s in the
        general small firecracker?

        A: Fireworks are generalized into two categories, consumer
        and display or commercial display. The consumer type
        contains less than 130 milligrams of explosive powder.
        Consumer are stuff you can buy legally for [sic] 4th of
        July, the small fireworks. They’re very small. They’re
        about an inch in length and maybe a 16th of an inch in
        diameter . . . . Anything above that is commercial or
        display.

           With those fireworks, you go to the art museum to
        watch those on [sic] 4th of July.     They’re handled,
        produced and manufactured by people who are licensed to
        do so.    They hold a much greater amounts [sic] of
        explosive powder.


                                    -9-
J-S63034-16



Id. at 78.

         Shrapnel is not one of the four components of a bomb or an IED. Id.

at 90.     “It’s added. It’s lights, bells and whistles. You don’t need it to make

a bomb . . . because the container itself fragments and becomes projectiles.”

Id. “In order to be characterized as a bomb or explosives [sic] device you

do not have to have remote activation.”           Id. at 92.    Based upon the

materials recovered from Appellant’s house, the Detective estimated that he

could have made “another half a dozen to a dozen” IEDs. Id. at 106.

         Following a jury trial, Appellant was found guilty of WMD and PIC. On

April 10, 2015, Appellant was sentenced to one-and-a-half to three years’

imprisonment followed by five years’ probation.          Appellant filed a post-

sentence motion.       On May 8, 2015, the court denied the motion.          This

appeal followed.5         Appellant filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.


5
  As a prefatory matter, we consider whether the notice of appeal was
timely. We note that the May 8th order is not in the certified record.
However, the docket memorializes the order, stating as follows:

           Order Denying Post-Sentence Motion
           Nun pro tunc filing of the motion accepted 4/20/15
           Defense post sentence motion is denied.

Docket at 15. Appellant’s post-sentence motion was filed on April 28, 2015.
Id. Because the trial court expressly granted Appellant the right to file the
post-sentence motion nunc pro tunc, we will not find it untimely. See
Commonwealth v. Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (en
banc) (holding trial court has discretion whether to permit defendant to file



                                       - 10 -
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     Appellant raises the following issues for our review:

        I. Whether there was insufficient evidence to convict . . .
        Appellant of possessing [WMD] and PIC[6] where there was

post-sentence motion nunc pro tunc. If court chooses to permit filing nunc
pro tunc, it must do so expressly to toll or extend appeal period).
6
  We consider whether Appellant waived his challenge to the sufficiency of
the evidence for PIC. Appellant did not raise this issue in his court-ordered
Rule 1925(b) statement. In Commonwealth v. Tyack, 128 A.3d 254 (Pa.
Super. 2015), this Court held:

        We are constrained to conclude that [the a]ppellant’s
        sufficiency claim is waived, as [the a]ppellant’s Rule
        1925(b) statement did not sufficiently identify the error
        that Appellant intended to challenge on appeal.

           As this Court has consistently held:

           If Appellant wants to preserve a claim that the
           evidence was insufficient, then the 1925(b)
           statement needs to specify the element or elements
           upon which the evidence was insufficient. This Court
           can then analyze the element or elements on appeal.
           [Where a] 1925(b) statement [ ] does not specify
           the allegedly unproven elements[,] . . . the
           sufficiency issue is waived [on appeal].

                                 *     *      *

           The Commonwealth’s failure [to object to the defect
           in the Rule 1925(b) statement] and the presence of
           a trial court opinion are of no moment to our analysis
           because we apply Pa.R.A.P. 1925(b) in a predictable,
           uniform fashion, not in a selective manner
           dependent on an appellee’s argument or a trial
           court's choice to address an unpreserved claim.

Id. at 260–61 (citations omitted); see also Pa.R.A.P. 1925(b)(4)(vii)
(holding “Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived”). In the
case sub judice, Appellant’s Rule 1925(b) statement is devoid of any



                                     - 11 -
J-S63034-16


           insufficient evidence to prove beyond a reasonable doubt
           that [Appellant] possessed an explosive device for an
           unlawful purpose, where there was insufficient evidence
           that . . . Appellant intended to harm others and where the
           only property damaged was the property belonging to . . .
           Appellant.

           II. Whether . . . Appellant’s conviction for possessing
           [WMD] and PIC was against the weight and credibility of
           the evidence where a defense expert disputed that the
           items possessed by . . . Appellant were [WMD] because
           they did not contain shrapnel, because they were not
           proven to be operable and because the chain of custody
           for the evidence had not been preserved.

           III. Whether the [c]ourt erred when it admitted evidence
           of . . . Appellant’s prior crime where the [c]ourt instructed
           the jury that the evidence was introduced for the purpose
           of showing intent when the intent involved in the prior
           crime was not analogous to the alleged intent attributed to
           . . . Appellant in this case.

Appellant’s Brief at 6.7



reference to the sufficiency of the evidence for PIC.        Therefore, we find it
waived. See id.; Tyack, 128 A.3d at 260-61.
7
    Appellant also raised the following issue:

           Whether the [c]ourt correctly ruled that . . . Appellant
           could file a Post Sentence Motion nunc pro tunc and that . .
           . Appellant’s weight of the evidence claim was preserved
           where counsel failed to file a timely Post-Sentence Motion
           but where counsel repeatedly argued during the trial that
           to convict Appellant was against the weight of the evidence
           and where counsel repeatedly moved for judgment of
           acquittal on that basis or, in the alternative, whether the
           [c]ourt erred when it did not sua sponte correct palpable
           ineffective assistance of counsel evident on the face of the
           record where after . . . Appellant was sentenced counsel
           failed to advise . . . Appellant that he had the right to file a
           Post-Sentence Motion challenging the weight and



                                       - 12 -
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      First, Appellant claims the evidence was insufficient to convict him of

possession of weapons of mass destruction.                 Appellant contends that the

Commonwealth failed to establish that he possessed a bomb used for an

unlawful purpose.       Id. at 20-21.        He concedes that “the Commonwealth

proved   beyond     a   reasonable     doubt        that   [he]   possessed      and   even

manufactured an explosive device having no authority to do so.” Id. at 21.

However, “[t]he Commonwealth did not prove beyond a reasonable doubt

that . . . Appellant was using the explosive device for an unlawful purpose.”

Id.

      Our review is governed by the following principles:                         “A claim

challenging   the   sufficiency   of       the   evidence    is   a   question    of   law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

         [T]he critical inquiry on review of the sufficiency of the
         evidence to support a criminal conviction . . . does not
         require a court to ask itself whether it believes that the
         evidence at the trial established guilt beyond a reasonable
         doubt. Instead, it must determine simply whether the
         evidence believed by the fact-finder was sufficient to
         support the verdict. . . .

                                       *     *      *

             When reviewing the sufficiency of the evidence, an
         appellate court must determine whether the evidence, and
         all reasonable inferences deducible from that, viewed in
         the light most favorable to the Commonwealth as verdict

         credibility of the evidence within 10 days of the imposition
         of sentence.

Appellant’s Brief at 6-7. We need not address this issue. See note 5 supra.



                                           - 13 -
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           winner, are sufficient to establish all of the elements of the
           offense beyond a reasonable doubt. . . .

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-37 (Pa. 2007)

(citations and quotation marks omitted).

     The Pennsylvania Crimes Code provides:

           (a) Unlawful possession or manufacture.─A person
           commits an offense if the person, without lawful authority
           to do so, intentionally, knowingly or recklessly possesses
           or manufactures a weapon of mass destruction.

18 Pa.C.S. § 2716(a) (emphasis added).8 A WMD is statutorily defined as

“[a] biological agent, bomb, chemical agent or nuclear agent.”              Id. §

2716(i).    A bomb is defined as “[a]n explosive device used for unlawful

purposes.” Id.



8
 We note that Appellant was not charged with violation of Section 2716(b)
which provides:

           (b) Use.─A person commits an offense if the person,
           without lawful authority to do so, intentionally, knowingly
           or recklessly sells, purchases, transports or causes another
           to transport, delivers or causes to be delivered or uses a
           weapon of mass destruction . . . .

18 Pa.C.S. § 2716(b) (emphasis added).        Appellant’s argument would
require violation of Section 2716(b) in order to convict a defendant for
violation of Section 2716(a). Such an interpretation is in derogation of the
rules of statutory construction. “Words and phrases shall be construed
according to rules of grammar and according to their common and approved
usage[.]” 1 Pa.C.S. § 1903(a). “[T]he General Assembly does not intend a
result that is absurd, impossible of execution or unreasonable” in
interpreting a statute. 1 Pa.C.S. § 1922(1).




                                       - 14 -
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        Instantly, Appellant was not charged with violation of Section 2716(b).

Appellant was charged with unlawful possession or manufacture of WMD

under Section 2716(a). As Appellant concedes, the evidence was sufficient

to convict him of violation of Section 2716(a). See 18 Pa.C.S. § 2716(a);

Ratsamy, 934 A.2d at 1235-37; Widmer, 744 A.2d at 751.

        Next, Appellant contends his conviction for possessing WMD was

against the weight of the evidence.9 Appellant’s Brief at 25.

           This case boiled down to a battle of the experts: Detective
           Brooks vs. Dr. Steinberg. It is clear that both experts
           agreed that the greater weight of the evidence
           showed that . . . Appellant possessed and

9
    Appellant raised the following issue in his Rule 1925(b) statement:

           The defendant’s conviction for possessing weapons of mass
           destruction was against the weight and credibility of the
           evidence where a defense expert disputed that the items
           possessed by the defendant were [WMD] because they did
           not contain shrapnel, because they were not proven to be
           operable and because the chain of evidence had not been
           preserved.

Appellant’s 1925(b) Statement, 9/10/15, at 1. Appellant did not raise the
issue of the weight of the evidence for PIC. In Commonwealth v. Griffin,
65 A.3d 932 (Pa. Super. 2013), the defendant

           did not preserve a weight of the evidence claim through
           inclusion in his court-ordered Rule 1925(b) Statement, and
           thus [the trial court’s] Rule 1925(a) Opinion does not
           address it. As such, we find this allegation waived for
           purposes of appeal.

Id. at 938. Similarly, in the case at bar, Appellant did not raise the weight
of the evidence claim in relation to his conviction for PIC. The trial court did
not address it in its Rule 1925(a) opinion. Therefore, we find it waived. See
id.; Pa.R.A.P. 1925(b)(4)(vii).



                                      - 15 -
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        manufactured exploding devices. We know that from
        the fact that a device exploded in . . . Appellant’s hand and
        that inside of . . . Appellant’s home were other devices in
        various states of completion along with components to
        make additional devices. But the issue in the case is not
        merely the possession of the devices or the exploding
        capacity of them. In the case of the [WMD] charge the
        issue was whether the device was “used for unlawful
        purposes.”

Id. (emphasis added).

     Our Supreme Court has held that

        [a] motion for a new trial alleging that the verdict was
        against the weight of the evidence is addressed to the
        discretion of the trial court. An appellate court, therefore,
        reviews the exercise of discretion, not the underlying
        question whether the verdict is against the weight of the
        evidence. The factfinder is free to believe all, part, or
        none of the evidence and to determine the credibility of
        the witnesses. The trial court will award a new trial only
        when the jury’s verdict is so contrary to the evidence as to
        shock one’s sense of justice. In determining whether this
        standard has been met, appellate review is limited to
        whether the trial judge’s discretion was properly exercised,
        and relief will only be granted where the facts and
        inferences of record disclose a palpable abuse of
        discretion. Thus, the trial court’s denial of a motion for a
        new trial based on a weight of the evidence claim is the
        least assailable of its rulings.

Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citations

omitted).

     Instantly, the trial court found no merit to Appellant’s claim that the

verdict was against the weight of the evidence.         Trial Ct. Op. at 5.

Appellant’s expert, John R. Steinberg, M.D., testified he reviewed the

evidence regarding the “three items that were recovered from [Appellant’s]



                                   - 16 -
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home . . . .” N.T., 2/11/15, at 65. He considered them to be fireworks. Id.

at 65-66.

        [Defense Counsel]: . . . [W]ith respect to your opinion,
        whether or not the items recovered in [Appellant’s] home
        are [WMD], what is your opinion?

        A: I don’t think they were weapons designed to hurt
        people.     They’re certainly capable of mass
        destruction. The proof is there, he held the device in his
        hand when it went off.

Id. at 98-99 (emphasis added).

     On cross-examination, Dr. Steinberg testified to the following:

        [The Commonwealth]: I know on direct you said bombs
        are something that could cause damage to property and
        injury to people; is that correct? Am I characterizing the
        testimony correctly?

        A: Yes.

        Q: And I’m not saying this explosive bomb recovered in
        [Appellant’s] home had caused injury to anybody, because
        it was sitting in there not yet detonated. It could cause
        damage to property, though, correct?

        A: Yes.

        Q: It could cause injury to another individual, correct?

        A: Yes.

Id. at 110.

     Appellant concedes he possessed WMD. He does not dispute that both

Detective Brooks and Dr. Steinberg agreed that he possessed and

manufactured explosive devices.    Instantly, the jury’s verdict was “not so

contrary to the evidence as to shock one’s sense of justice.”           See


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Ramtahal, 33 A.3d at 609. We discern no abuse of discretion by the trial

court. See id.

        Lastly, Appellant contends the court abused its discretion when it

permitted “the Commonwealth to introduce evidence that [he] blew up a

toilet in a bar in Phoenixville in the first place because the evidence was

more prejudicial than probative.” Appellant’s Brief at 30. He argues that

           [c]learly . . . Appellant intended to possess the devices;
           clearly he intended to construct the devices. That never
           was the issue surrounding this charge. . . . The issue at
           hand in this case was whether . . . Appellant constructed a
           “Bomb,” “[a]n explosive device used for unlawful
           purposes.” The introduction of the evidence that . . .
           Appellant once blew up a toilet in Phoenixville does nothing
           to advance that inquiry in this case. . . . There was no
           showing of common intent between that case and this. In
           that case . . . Appellant arguably retaliated after an
           argument. That was not the circumstance here. There
           was absolutely no evidence that . . . Appellant possessed
           any animus toward anybody or anything. There was no
           allegation or argument that he did. Since the intent, the
           only reason [the trial court] allowed the evidence to be
           presented, in the Phoenixville case bore no relation to the
           facts in this case, the introduction of that evidence was far
           more prejudicial than probative of what . . . Appellant’s
           intent was in this case, even if it was the ultimate relevant
           issue as to the crime of possessing or manufacturing
           weapons of mass destruction, which it was not.

Id. at 31-32.10



10
     We note that Appellant contends

           the [c]ourt abused its discretion by sua sponte
           disregarding its own ruling that the evidence could only be
           considered by the jury with regard to the elements of the



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      Our review is governed by the following principles:

         [T]he admission into evidence of prior bad acts is within
         the sound discretion of the trial court, and we will reverse
         only upon a showing of an abuse of that discretion.
         Generally, evidence of prior bad acts or unrelated criminal
         behavior is inadmissible.      Evidence of prior bad acts,
         however, is admissible where it tends to establish malice,
         motive, or intent for the offense charged.

Commonwealth v. Stallworth, 781 A.2d 110, 118 (Pa. 2001) (citations

omitted).

         An abuse of discretion is not merely an error of judgment,
         but is rather the overriding or misapplication of the law, or
         the exercise of judgment that is manifestly unreasonable,
         or the result of bias, prejudice, ill-will or partiality, as
         shown by the evidence of record.

Commonwealth v. Harris, 884 A.2d 920, 924 (Pa. Super. 2005)

(quotation marks and citations omitted).

      Pennsylvania Rule of Evidence 404(b) provides as follows:



         crime of Arson and that they should “disregard it for the
         other two charges”; N.T., 2/9/15, 4-5.

Appellant’s Brief at 30-31. A review of the record belies this assertion. On
February 9th, the trial judge introduced himself to the prospective jurors.
N.T., 2/9/15, 4-5. The trial court granted Appellant’s motion for acquittal as
to arson. N.T., 2/11/15, 49. After the trial court denied Appellant’s motion
for directed verdict as to WMD and PIC, the court stated: “As far as
charges, I’m giving the thing about prior bad acts, that they can’t consider
that character.” Id. at 117. Furthermore, Appellant did not object to the
charge. N.T., 2/12/15, 17. Therefore any challenge to the charge is waived.
See Pa.R.A.P. 302(b) (holding only specific exception to charge preserves
issue for appeal).




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J-S63034-16


          Rule 404. Character Evidence; Crimes or Other Acts

                                   *     *      *

          (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.Evid. 404(b)(1)-(2).

       “It is axiomatic that evidence of prior crimes is not admissible for the

sole purpose of demonstrating a criminal defendant’s propensity to commit

crimes.” Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1283

(Pa. Super. 2004) (en banc). Evidence of prior bad acts will be admissible if

its   probative   value   outweighs     its     potential   for   undue   prejudice.

Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa. 2014).

          Unfair prejudice means a tendency to suggest decision on
          an improper basis or to divert the jury’s attention away
          from its duty of weighing the evidence impartially.
          Additionally, when weighing the potential for prejudice, a
          trial court may consider how a cautionary jury instruction
          might ameliorate the prejudicial effect of the proffered
          evidence.

Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007) (quotation marks

and citations omitted).     “The presumption in our law is that the jury has



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followed instructions [of the trial court].”    Commonwealth v. Robinson,

864 A.2d 460, 513 (Pa. 2004) (citation omitted).

      Although Appellant concedes on appeal that he possessed and

manufactured the explosive devices in his brief, at trial, the Commonwealth

had to prove that he “intentionally, knowingly or recklessly possesses or

manufactures a weapon of mass destruction.” 18 Pa.C.S. § 2716(a). The

Commonwealth sought to introduce the evidence of the prior bad acts to

show that he intended to manufacture WMD in the case sub judice.

      At trial, Officer Brad A. Dobry testified that he was assigned to the

bike patrol in the bar district to monitor the crowd for any disturbance due to

a pre Saint Patty’s Day bar crawl. N.T., 2/11/15, at 7. He testified:

               I was across the street [from Molly McGuire’s Pub], and
            the manager came over to me stating that someone blew
            up his bathroom. I went over to the bar. I could see
            inside the bar, that the fire alarm lights were flashing in
            the bar. The staff was moving the patrons out of the bar.
            Myself and another officer were escorted to the men’s
            bathroom on the first floor.

               At that point, I observed the toilette and the stall in
            pieces and shattered on the floor. There were pieces of
            the porcelain that went into the drywall ceiling. There was
            a vent fan in the stall which was hanging out of the ceiling,
            and the lights that were in the ceiling were hanging down.

Id. at 8.

      At trial, following an off-the-record side-bar discussion, the trial court

gave the following cautionary jury instruction:

               You also heard evidence in this case purporting to show
            that [Appellant] committed another offense for which he is


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J-S63034-16


           not on trial regarding the testimony regarding the incident
           in Chester County.[11] You may consider the evidence for a
           limited purpose, that is to the extent that it helps you to
           determine his intent in this case. This evidence must not
           be considered by you in any way other than for the
           purpose I just stated. Do not regard the evidence as
           showing [Appellant] is a person of bad character or
           criminal tendencies for which you might be inclined to infer
           guilt.

N.T., 2/12/15, at 17.12

        The trial court found that the prior bad act evidence was admissible

because it was probative of Appellant’s intent.         Trial Ct. Op. at 5-6.   The

court opined that it “also ensured that the jury would consider the evidence

only as it related to Appellant’s intent by providing a comprehensive and

clear instruction on this issue.” Id. at 6.

We agree the evidence was admissible because it tended to establish intent

for the offense charged. See Stallworth, 781 A.2d at 118.           The probative

value of the evidence outweighed its potential for undue prejudice.             See

Hairston, 84 A.3d at 666; Dillon, 925 A.2d at 141.               The court gave a

cautionary jury instruction that we presume the jury followed. See Dillon,

925 A.2d at 141; Robinson, 864 A.2d at 513.                Regardless, given the

overwhelming evidence of guilt, admission of such prior bad act was

harmless.     See Commonwealth. v. Hutchinson, 25 A.3d 277, 300 (Pa.

2011) (citation omitted) (holding even if court erred admitting prior bad act,

11
     Phoenixville is in Chester County, Pennsylvania.
12
     We note that Appellant did not object to the instruction.



                                       - 22 -
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error harmless given overwhelming evidence of guilt.) We discern no abuse

of discretion by the trial court. See Harris, 884 A.2d at 924. For all of the

foregoing reasons, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/27/2016




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