J-S28032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JESUS DELVALLE,

                            Appellant                No. 3465 EDA 2014


           Appeal from the Judgment of Sentence November 3, 2014
                in the Court of Common Pleas of Bucks County
              Criminal Division at No.: CP-09-CR-0002812-2014


BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED MAY 11, 2016

        Appellant, Jesus Delvalle, appeals from the judgment of sentence

entered on November 3, 2014, following his jury conviction of possession

with intent to deliver (PWID)1 heroin and related offenses.     On appeal,

Appellant challenges the denial of his motion for a change of venue and the

admission of evidence regarding a firearm recovered from his vehicle. For

the reasons discussed below, we affirm.




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113 (a)(30).
J-S28032-16


      We take the underlying facts and procedural history in this matter

from the trial court’s November 6, 2015 opinion and our independent review

of the certified record.

            On or around December 22, 2013, the Newtown Township
      Police Department investigated a brand of heroin labeled “Watch
      the Throne.” Detective Dale Keddie previously investigated this
      brand and was aware of two cell phone numbers tied to the
      “Watch the Throne” brand, which he passed along to Detective
      Jason Harris to further investigate. (These cell phone numbers
      became known to police during the investigation of a fatal
      overdose in Bucks County. However, no evidence was presented
      to the jury about the fatality.) Detective Harris received records
      from the cellular provider, which revealed that the subscriber for
      the number 267-588-2933 was the Appellant, and the subscriber
      for the number 267-600-6763 was Domingo Cruz.

            On or around January 7, 2014, Detective Keddie contacted
      Officer Richard Gramlich of the Philadelphia Police Department to
      conduct an undercover investigation of the Appellant.          On
      January 15, 2014, Officer Gramlich placed a call to the
      Appellant’s cell phone, identified himself as “Ricky Fish,” and
      spoke to Wilcidez Nunez about purchasing heroin.           Officer
      Gramlich told Mr. Nunez that he was coming from Bristol, Bucks
      County. When he met Mr. Nunez that day, he purchased four
      bundles of “Real Steel” brand heroin, which Mr. Nunez removed
      from a pink zipper pouch. Later that day Officer Gramlich called
      Mr. Nunez to request the “Watch the Throne” brand, but Mr.
      Nunez informed him that that brand was no longer in existence,
      and that the new brand was “Real Steel.”

             On January 29, 2014, Officer Gramlich parked at the Home
      Depot on 1336 Bristol Pike in Bensalem, Bucks County, and
      made calls to both 267-588-2933 and 267-600-6763. Officer
      Gramlich spoke to Mr. Nunez as well as another individual, who
      identified himself as Kenko, to arrange for the purchase of
      heroin. Later that day, Officer Gramlich purchased ten bundles
      of heroin from Mr. Nunez at 3700 Aramingo Avenue in
      Philadelphia. After this purchase, Officer Gramlich asked Mr.
      Nunez for a discount on his next purchase, and Mr. Nunez
      advised him that he would have to ask an individual named
      Johnny.

                                    -2-
J-S28032-16


           On January 30, 2014, Officer Gramlich called the 267-588-
     2933 number from the Home Depot parking lot in Bensalem and
     Johnny answered the phone. Johnny directed Officer Gramlich to
     wait an hour and call Kenko. When Officer Gramlich called the
     same number an hour later, Johnny answered and advised him
     to call the other phone number. Before Officer Gramlich could
     call Kenko, Mr. Nunez called Officer Gramlich and they arranged
     a purchase of heroin at the Aramingo Avenue location. Officer
     Gramlich purchased approximately ten bundles of heroin at the
     discount approved by Johnny.

           On February 24, 2014, Officer Gramlich called the 267-
     588-2933 number and an individual named Juan answered.
     Officer Gramlich requested the same discount he was given
     previously, but Juan said he had to check with Johnny for
     approval. Subsequently, Juan sold Officer Gramlich ten bundles
     of heroin on Stella Street in Philadelphia. On March 13, 2014,
     Officer Gramlich arranged another purchase with Kenko, who
     sought approval for the same discount through Johnny. Later
     that day Juan again sold Officer Gramlich heroin.

           From January 27, 2014 to March 21, 2014, Detective
     Joseph George of the Philadelphia Police Department conducted
     telephone pole camera video surveillance on 3076 Braddock
     Street in Philadelphia, which was confirmed to be the Appellant’s
     residence. Detective George observed the Appellant going back
     and forth between the property and two vehicles, a Chevrolet
     pickup and an Oldsmobile, parked in front of the house. On
     numerous occasions, the Appellant would approach the
     Chevrolet pickup truck, look both ways, remove an item from
     [the] driver’s door of the vehicle, and put it under his jacket
     before returning to the house.       The Appellant would also
     frequently approach the Oldsmobile, remove an item from the
     trunk, and return to the Braddock Street residence.         Both
     vehicles, a Chevrolet pickup truck and Oldsmobile sedan, were
     registered to the Appellant. Detective George never saw anyone
     else drive either vehicle.

           Detective Michael Mosniak of the Bucks County District
     Attorney’s Office executed a search warrant for the Oldsmobile.
     He discovered a large amount of cash in the trunk and a plastic
     bag full of documents in the glove compartment.




                                   -3-
J-S28032-16


              On March 13, 2014, Detective Steven Clark of the
        Bensalem Police Department conducted a drug investigation at
        the Neshaminy Motor Inn in Bensalem Township, Bucks County.
        During the investigation, he obtained a package of heroin with
        the label “Real Steel.” Detective Clark also found a cell phone
        near the heroin, and discovered that a call was made from that
        cell phone to the 267-588-2933 number on March 11, 2014 at
        approximately 9:00 p.m. (This cell phone number was found
        during the investigation of a fatality. The Court precluded any
        evidence that this was a fatal overdose.)

              On March 21, 2014, Officer Caroline Williams of the
        Philadelphia Police Department stopped a vehicle occupied by
        Benjamin Cruz-Hernandez, later determined to be Kenko, and
        arrested him. In the vehicle, Officer Williams recovered a cell
        phone for which the number was 267-600-6763. On that date,
        Sergeant Daniel Dutch of the Philadelphia Police Department
        arrested Wilcidez Nunez and seized a cell phone for which the
        number was 267-588-2933.

               On March 21, 2014, Officer Joseph Press of the
        Philadelphia Police Department executed a search warrant for
        the Chevrolet pickup truck parked outside of 3076 Braddock
        Street. Officer Press found ten racks of heroin, a pink pouch
        containing cash and thirteen packets of heroin, and a black
        plastic bag containing a handgun and ammunition. The items
        were located on the driver’s side. Detective Keddie, who also
        participated in the search of 3076 Braddock Street and the
        vehicles, seized six thousand three hundred dollars from the
        Oldsmobile.

              The Appellant, Wilcides Nunez, Jose Andeno (who referred
        to himself as Juan to Officer Gramlich) and Benjamin Cruz-
        Hernandez were arrested on March 21, 2014. The Appellant was
        asked some limited questions when he was arrested. Later that
        day, the Appellant was interviewed by Drug Enforcement
        Administration Agent Frank Costobile at the Philadelphia Field
        Division DEA. DEA Analyst Maria Cramer, who is fluent in
        Spanish, assisted with translation.     Ms. Cramer read the
                               2
        Appellant his Miranda[ ] rights from a Spanish Miranda rights
____________________________________________


2
    Miranda v. Arizona, 384 U.S. 436 (1966).



                                           -4-
J-S28032-16


        form and he waived his rights.        During the interview, the
        Appellant confirmed that he lived at 3076 Braddock Street in
        Philadelphia and that the heroin in the Chevrolet truck belonged
        to him. He also stated that Kenko, Jose, and Wil sold heroin for
        him on the street.

              Mr. Nunez testified at trial that Johnny was the Appellant.
        He also testified that the Appellant was in charge of the heroin
        dealing organization. When Mr. Nunez worked for the Appellant,
        he reported to the Appellant’s house each day to retrieve a cell
        phone and heroin, which he carried in a pink pouch. If a
        customer asked for a discount, Mr. Nunez had to seek approval
        from Johnny.

(Trial Court Opinion, 11/06/15, at 1-5) (record citations omitted).

        On June 5, 2014, the Commonwealth filed a criminal information in

Bucks County charging Appellant with PWID, three counts of criminal

conspiracy,3 criminal use of a communication facility,4 and three counts of

corrupt organizations.5 (See         Criminal    Information,   6/05/14,   at   1-2).

Subsequently, Appellant sought a change of venue to Philadelphia County.6

A hearing on Appellant’s motion took place on August 8, 2014. On August 9,

2014, the trial court denied the motion.           (See N.T. Suppression Hearing,

8/09/14, at 4).
____________________________________________


3
    18 Pa.C.S.A. § 903.
4
    18 Pa.C.S.A. § 7512(a).
5
    18 Pa.C.S.A. § 911(b)(1)-(3).
6
  For reasons not readily ascertainable, the trial court did not docket
Appellant’s omnibus pre-trial motion seeking a change of venue until August
22, 2014, approximately two weeks after the trial court held a hearing on
the motion.



                                           -5-
J-S28032-16


      A jury trial took place on September 10, through 12, 2014. During the

trial, Appellant made an oral motion in limine to preclude testimony about

the discovery of a gun in Appellant’s vehicle. (See N.T. Trial, 9/10/14, at

164-65). On September 11, 2014, the trial court denied the motion. (See

N.T. Trial, 9/11/14, at 76).     On September 12, 2014, the jury found

Appellant guilty of all charges with the exception of a single count of corrupt

organizations. On November 3, 2014, the trial court sentenced Appellant to

an aggregate term of incarceration of not less than twelve nor more than

twenty-four years.    On November 18, 2014, the trial court issued an

amended sentencing order, reducing the sentence to not less than ten nor

more than twenty years.

      On November 26, 2014, Appellant filed the instant, timely appeal. On

December 3, 2014, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). On

December 19, 2014, Appellant filed a timely Rule 1925(b) statement.         On

November 6, 2015, the trial court issued an opinion. See Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following questions for our review:

      1.          Did not the trial court err in denying the motion to
                  set venue in Philadelphia rather than Bucks County,
                  as the entirety of the case involved drug selling and
                  an alleged drug racketeering organization in
                  Philadelphia, with not even one criminal act by any
                  defendant occurring elsewhere?

      2.          Did not the trial court err in permitting introduction
                  of a firearm and ammunition as there was no
                  weapons charge, the firearm and ammunition were

                                     -6-
J-S28032-16


                     irrelevant to the charges, and the impact of said
                     evidence was unfairly prejudicial?

(Appellant’s Brief, at 5) (unnecessary capitalization omitted).

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

his motion for a change of venue.                (See Appellant’s Brief, at 15-19).

Specifically, Appellant claims that no “act, criminal or otherwise,” happened

in Bucks County. (Id. at 15). He claims he was prejudiced because he is

Hispanic and less than five percent of Bucks County is Hispanic while more

than thirteen percent of the population of Philadelphia County is Hispanic.

(See id. at 18). We disagree.7

       Initially, we note that, “[t]he standard of review for a denial of a

motion for change of venue is whether there has been an abuse of discretion

on the part of the trial judge.”      Commonwealth v. Devries, 112 A.3d 663,

666 (Pa. Super. 2015) (citation omitted).            It is settled that all Courts of

Common Pleas have statewide subject matter jurisdiction in criminal cases.



____________________________________________


7
  The Commonwealth argues that Appellant waived his challenge to the trial
court’s refusal to change venue because he did not raise this claim prior to
the conclusion of the preliminary hearing as required by Pa.R.Crim.P. 109
and 134. Pennsylvania Rule of Criminal Procedure 109 never mentions
venue; rather it refers to a “defect in the form or content of a complaint,
citation, summons, or warrant, or a defect in the procedures of these rules.”
Pa.R.Crim.P. 109. Thus, it is inapplicable. After a thorough review of the
record, we believe that it is inappropriate to resolve this matter by waiver
pursuant to Pa.R.Crim.P. 134 because the merits of the waiver issue were
fully litigated below, without objection by the Commonwealth.



                                           -7-
J-S28032-16


See 42 Pa.C.S.A. § 931(a); see also Commonwealth v. Bethea, 828 A.2d

1066, 1074 (Pa. 2003), cert. denied, 540 U.S. 1118 (2004).

     Venue challenges concerning the locality of a crime, . . . stem
     from the Sixth Amendment to the United States Constitution and
     Article I, § 9 of the Pennsylvania Constitution, both of which
     require that a criminal defendant stand trial in the county in
     which the crime was committed, protecting the accused from
     unfair prosecutorial forum shopping. Thus, proof of venue, or
     the locus of the crime, is inherently required in all criminal cases.

Commonwealth v. Gross, 101 A.3d 28, 33 (Pa. 2014). Moreover,

     [b]ecause the Commonwealth selects the county of trial, we now
     hold it shall bear the burden of proving venue is proper—that is,
     evidence an offense occurred in the judicial district with which
     the defendant may be criminally associated, either directly,
     jointly, or vicariously. Although our sister states are not in
     agreement as to the requisite degree of proof, we find the
     Commonwealth should prove venue by a preponderance of the
     evidence once the defendant properly raises the issue. Venue
     merely concerns the judicial district in which the prosecution is
     to be conducted; it is not an essential element of the crime, nor
     does it relate to guilt or innocence. Because venue is not part of
     a crime, it need not be proven beyond a reasonable doubt as
     essential elements must be.            Accordingly, applying the
     preponderance-of-the-evidence standard to venue challenges
     allows trial courts to speedily resolve this threshold issue without
     infringing on the accused’s constitutional rights. Like essential
     elements of a crime, venue need not be proven by direct
     evidence but may be inferred by circumstantial evidence.
     Appellate review of venue challenges, similar to that applicable
     to other pre-trial motions, should turn on whether the trial
     court’s factual findings are supported by the record and its
     conclusions of law are free of legal error.

Id. at 33-34 (footnotes and citations omitted).     Further, even if venue is

improper in the county of trial, dismissal of the case is not the proper

remedy. See id. at 34. Because the matter of venue is purely a procedural

one, Appellant is not entitled to relief on his claim unless he establishes

                                     -8-
J-S28032-16


actual prejudice.    See Pa.R.Crim.P. 109; see also Commonwealth v.

Miskovitch, 64 A.3d 672, 689 (Pa. Super 2013), appeal denied, 78 A.3d

1090 (Pa. 2013) (citation omitted). In cases where criminal activity occurs

in two judicial districts, our Court examines whether there is a “nexus” with

the county where the case was tried. Miskovitch, supra at 688.

      Here, there was clearly a nexus between Bucks County and the crimes.

As the trial court stated:

             During the pretrial hearing on August 8, 2014, the parties
      stipulated that the connections to Bucks County were the
      telephone calls to and from Officer Gramlich, who identified
      himself as being from Bucks County and declared his intent to
      resell the heroin in Bucks County, telephone calls from the phone
      recovered at the Neshaminy Motor Inn in Bucks County, and
      three overdoses, two fatal, that occurred in Bucks County from
      the “Watch the Throne” brand.       Each of the overdose victims
      had one or both of the organization’s cell phone numbers saved
      in their cell phones. Further, after the Appellant was arrested,
      the investigating officers continued to monitor the two cell
      phones, and approximately five out of eleven customers looking
      to purchase large amounts of heroin were from Bucks County.
      The Appellant argued that the transactions, stash houses, and
      vehicles were located in Philadelphia and that a Bucks County
      trial would be prejudicial to the Appellant because of the
      difference between the demographics of Bucks County and
      Philadelphia County.

            Here, the nexus between the criminal activity and Bucks
      County was sufficient because the Appellant’s employees
      received calls from Officer Gramlich and sold heroin to him with
      the awareness that he was coming from Bucks County and would
      be reselling the heroin in Bucks County. Importantly, on one
      occasion, Mr. Nunez called Officer Gramlich in Bucks County to
      arrange a heroin sale. The investigation also revealed several
      overdose victims and other heroin purchasers in Bucks County
      who used the Appellant’s heroin brand and had done business
      with the two telephone numbers belonging to Appellant’s
      organization.

                                    -9-
J-S28032-16



(Trial Ct. Op., at 8) (record citations omitted). We agree with the trial court

that this is more than sufficient to establish a nexus between Bucks County

and the criminal activities. See Miskovitch, supra at 688 (finding sufficient

nexus between Allegheny County and criminal activity, even though robbery

at issue took place in Westmoreland County, where car used in robbery was

stolen from Allegheny County and later abandoned there); see also Gross,

supra at 34-35.

      Moreover, even if Appellant had demonstrated that there was an

insufficient nexus between Bucks County and the criminal activities, his

claim would fail because he has not shown prejudice.             In order to

demonstrate prejudice, Appellant must show that he suffered

      undue expense in appearing before the court . . ., that he was
      unable to obtain the presence of witnesses or evidence related to
      his defense because of the location, that the Commonwealth
      engaged in forum shopping in order to achieve an advantage
      over the defense, or that he was deprived of a fair and impartial
      trial.

Bethea, supra at 1077.

      Here, Appellant has not done so; instead, he offers a speculative and

bald argument that, because Philadelphia County has a greater percentage

of Hispanics, they would have been less likely to be influenced by the




                                    - 10 -
J-S28032-16


“inflammatory and improper” statements in the Commonwealth’s closing.8

(Appellant’s Brief, at 19; see id. at 18-19). Firstly, Appellant has pointed to

nothing that would demonstrate that merely because Philadelphia County

has a larger Hispanic population than Bucks County, this would have

resulted in more Hispanics on the jury.9           Secondly, and more importantly,

Appellant’s argument, in essence, is a claim that a more Hispanic and urban

jury would have ignored the overwhelming evidence discussed in the trial

court’s opinion, not to mention the trial court’s instructions, and acquitted

Appellant. We reject this contention. Further, it is clear that while Appellant

has a right to a jury selected by non-discriminatory criteria, see Batson,

supra at 85-86, he is not entitled to a jury with the racial make-up of his

choice.   See Commonwealth v. Carson, 913 A.2d 220, 235 (Pa. 2006),

cert. denied, 552 U.S. 954 (2007) (“a defendant’s right to an impartial jury



____________________________________________


8
  We note that Appellant does not argue on appeal that the Commonwealth
committed prosecutorial misconduct in its closing arguments. Further, we
note the sole legal authority Appellant cites in support of his claim,
Commonwealth v. Poplawski, 852 A.2d 323, 328 (Pa. Super 2004), is
utterly inapposite, since it concerns the grant of PCRA relief based upon a
claim that trial counsel was ineffective for failing to object to the
prosecutor’s opening and closing statements. See Poplawski, supra at
325-26.
9
  Appellant does not describe the racial make-up of the Bucks County jury,
and has not raised a claim that the prosecutor exercised peremptory strikes
in a racially discriminatory manner in violation of Batson v. Kentucky, 476
U.S. 79 (1986).



                                          - 11 -
J-S28032-16


of his peers does not entitle him to a jury of his choice.”) (citation omitted).

The United States Supreme Court has aptly stated:

             The American tradition of trial by jury, considered in
      connection with either criminal or civil proceedings, necessarily
      contemplates an impartial jury drawn from a cross-section of the
      community. This does not mean, of course, that every jury must
      contain representatives of all the economic, social, religious,
      racial, political and geographical groups of the community;
      frequently such complete representation would be impossible.

Thiel v. Southern Pacific Co., 328 U.S. 217, 220 (1946) (citations

omitted). Thus, Appellant has not shown that he was prejudiced by having

the case venued in Bucks County. See Bethea, supra at 1077.            His first

claim lacks merit.

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

denying his motion in limine to preclude evidence of the gun and

ammunition found in his motor vehicle. (See Appellant’s Brief, at 20-23).

Specifically, Appellant claims it was “prejudicial error” to admit evidence of a

firearm and a large amount of ammunition where “there was no weapons

charge leveled against [A]ppellant or any codefendant.” (Appellant’s Brief,

at 20).    Also, Appellant contends that the evidence of the firearm was

offered solely to show that he was a violent person. (See Appellant’s Brief,

at 20-23). Again, we disagree.

      Our standard of review concerning the grant or denial of a motion in

limine is well settled.

           A motion in limine is a procedure for obtaining a ruling on
      the admissibility of evidence prior to or during trial, but before

                                     - 12 -
J-S28032-16


     the evidence has been offered. A trial court’s decision to grant
     or deny a motion in limine is generally subject to an evidentiary
     abuse of discretion standard of review.

            The admissibility of evidence is at the discretion of the trial
     court and only a showing of an abuse of that discretion, and
     resulting prejudice, constitutes reversible error.

           The term discretion imports the exercise of judgment,
     wisdom and skill so as to reach a dispassionate conclusion,
     within the framework of the law, and is not exercised for the
     purpose of giving effect to the will of the judge. Discretion must
     be exercised on the foundation of reason, as opposed to
     prejudice, personal motivations, caprice or arbitrary actions.
     Discretion is abused when the course pursued represents not
     merely an error of judgment, but where the judgment is
     manifestly unreasonable or where the law is not applied or
     where the record shows that the action is a result of partiality,
     prejudice, bias or ill will.

            Where the discretion exercised by the trial court is
     challenged on appeal, the party bringing the challenge bears a
     heavy burden. . . . [I]t is not sufficient to persuade the appellate
     court that it might have reached a different conclusion if, in the
     first place, charged with the duty imposed on the court below; it
     is necessary to go further and show an abuse of the
     discretionary power. . . . We emphasize that an abuse of
     discretion may not be found merely because the appellate court
     might have reached a different conclusion, but requires a
     showing of manifest unreasonableness, or partiality, prejudice,
     bias, or ill-will, or such lack of support as to be clearly
     erroneous.

          To constitute reversible error, an evidentiary ruling must
     not only be erroneous, but also harmful or prejudicial to the
     complaining party.

Commonwealth v. Williams, 91 A.3d 240, 248-49 (Pa. Super. 2014) (en

banc) (quotation marks, some indentations, and citations omitted).

     Further, evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of the

                                    - 13 -
J-S28032-16


action more probable or less probable that it would be without the

evidence.”    Pa.R.E. 401.    “Evidence is relevant if it logically tends to

establish a material fact in the case, tends to make a fact at issue more or

less probable or supports a reasonable inference or presumption regarding a

material fact.”   Commonwealth v. Loughnane, 128 A.3d 806, 818 (Pa.

Super. 2015) (citation omitted). This Court has stated:

            Relevant evidence may nevertheless       be excluded if its
      probative value is outweighed by the danger    of unfair prejudice,
      confusion of the issues, or misleading          the jury, or by
      considerations of undue delay, waste of        time, or needless
      presentation of cumulative evidence.

            Because all relevant Commonwealth evidence is meant to
      prejudice a defendant, exclusion is limited to evidence so
      prejudicial that it would inflame the jury to make a decision
      based upon something other than the legal propositions relevant
      to the case. As this Court has noted, a trial court is not required
      to sanitize the trial to eliminate all unpleasant facts from the
      jury’s consideration where those facts form part of the history
      and natural development of the events and offenses with which
      [a] defendant is charged.

Commonwealth v. Broaster, 863 A.2d 588, 592 (Pa. Super. 2004), appeal

denied, 876 A.2d 392 (Pa. 2005) (quotation marks, footnote and citations

omitted).

      As noted above, Appellant argues that evidence was improperly

admitted under Pennsylvania Rule of Evidence 404, which provides in

pertinent part:

      (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

                                    - 14 -
J-S28032-16


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

       Here, at trial, Appellant claimed he was an honest businessperson who

bought and sold used cars, not a drug dealer. (See N.T. Trial, 9/12/14, at

94-110). The presence of a firearm in close proximity to drugs in Appellant’s

car, (see N.T. Trial, 9/11/14, at 78-84) was relevant to prove not only that

Appellant was a drug dealer but also the person in charge of the

organization.     See Commonwealth v. Watley, 81 A.3d 108, 115 (Pa.

Super. 2013), appeal denied, 95 A.2d 277 (Pa. 2014) (noting possession of

gun is one of several factors in determining whether drugs are for personal

use or for sale); see also, United States v. Adams, 759 F.2d 1099, 1108-

09 (3d Cir. 1985), cert. denied, 474 U.S. 906 (1985)10 (recognizing weapon

seized from alleged drug dealer’s home as probative of “motive, opportunity,

intent, [and] plan” because such weapons are “as much ‘tools of the trade’

as drug paraphernalia”). As the trial court stated:
____________________________________________


10
  “While we recognize that federal court decisions are not binding on this
court, we are able to adopt their analysis as it appeals to our reason.”
Kleban v. Nat. Union Fire Ins. Co. of Pittsburgh, 771 A.2d 39, 43 (Pa.
Super. 2001) (citation omitted).



                                          - 15 -
J-S28032-16


           The guns and rounds were admitted into evidence because
     they were found in close proximity to drugs in a vehicle that the
     Appellant repeatedly accessed. Indeed, he was seen removing
     items from the truck and it was titled in his name. . . . The
     probative value of this evidence outweighed its prejudice
     because this weapon would logically be used to protect Appellant
     and the drugs found in the truck.

(Trial Ct. Op., at 13).   Thus, we find no error in the admission of this

evidence.

     Moreover, even if we were to find error, Appellant has not shown that

he was prejudiced. Our Supreme Court has stated:

     An error will be deemed harmless where the appellate court
     concludes beyond a reasonable doubt that the error could not
     have contributed to the verdict.      If there is a reasonable
     possibility that the error may have contributed to the verdict, it
     is not harmless. In reaching that conclusion, the reviewing court
     will find an error harmless where the uncontradicted evidence of
     guilt is overwhelming, so that by comparison the error is
     insignificant. . . .

Commonwealth v. Mitchell, 839 A.2d 202, 214-15 (Pa. 2003) (citation

omitted).

     Here, the evidence regarding the gun came through the testimony of

Philadelphia Police Officer Joseph Press, who searched Appellant’s truck.

(See N.T. Trial, 9/11/14, at 81-111).

     [Commonwealth]. What are some of the items that you found
     [in the truck] that you and I have discussed prior to your coming
     here today?

     [Officer Press]. I recovered a black plastic bag containing ten
     racks of heroine (sic), alleged heroine (sic). Also a pink purse
     containing 13 packets of alleged heroine (sic) and $288 USC. As
     well I recovered another black plastic bag containing a handgun,
     a Ruger P89, serial number 314 dash 0—80262. Also two empty

                                   - 16 -
J-S28032-16


      magazines, one magazine containing 15 found—15 rounds of
      nine millimeter live rounds. Another magazine containing 12 9
      millimeter rounds.     And a third magazine containing 29 9
      millimeter rounds.

      [Trial Court]: Members of the jury, I will instruct you that
      [Appellant] is not charged with any violation of the law with
      respect to a weapon.

                                  *     *      *

      [Commonwealth]. Can you describe, Officer Press, how close in
      proximity were these items all to each other?

      [Officer Press]. They were all right next to each other . . .

(Id. at 83-84). The Commonwealth then displayed the guns and bullets to

the jury. (See id. at 86-88). This was the only mention of the gun by the

Commonwealth.       As discussed above, the evidence against Appellant

concerning the sale of narcotics was overwhelming. This evidence included

surveillance evidence that demonstrated Appellant’s control of the heroin

stashed in his truck, the monies concealed in another of Appellant’s vehicles,

his connection to the cell phones used in the operation, the testimony of one

of his employees, and Appellant’s own admissions to the police. Given this,

the prejudice arising from a brief mention of a gun seized during the search

of Appellant’s vehicle was de minimis. See Commonwealth v. Passmore,

857 A.2d 697, 711 (Pa. Super. 2004), appeal denied, 868 A.2d 1199 (Pa.

2005) (error is harmless when “the prejudice was de minimis[.]”).

      Moreover, the trial court provided three cautionary instructions to

which defense counsel agreed, (see N.T. Trial, 9/11/14, at 84, 275-76; N.T.


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J-S28032-16


Charge, 9/12/14, at 26), and which the jury is presumed to have followed,

see Commonwealth v. Spotz, 716 A.2d 580, 587 (Pa. 1998), cert. denied,

526 U.S. 1070 (1999).     Therefore, we conclude that Appellant has not

demonstrated that he was prejudiced by the introduction of the evidence.

     Accordingly, for the reasons discussed above, we affirm the judgment

of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/2016




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