J-S17009-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TIMOTHY R. WRIGHT                          :
                                               :
                       Appellant               :   No. 1711 MDA 2019

        Appeal from the Judgment of Sentence Entered August 26, 2019
                 In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0007920-2017


BEFORE: PANELLA, P.J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:                   FILED: APRIL 20, 2020

        Timothy R. Wright appeals from the judgment of sentence entered on

August 26, 2019, in the Court of Common Pleas of York County, following his

jury conviction of one count of possession with intent to deliver cocaine

(“PWID”).1 On appeal, Appellant avers the trial court erred in admitting the

drug evidence and lab report because the Commonwealth failed to show a

complete chain of custody. After review, we affirm.

        As we write primarily for the parties, we provide only those facts

necessary for the disposition of this appeal. On August 9, 2017, undercover

police officers observed Appellant sell cocaine to a confidential informant (CI)

in York City, Pennsylvania. Immediately following the sale, the CI turned the

____________________________________________


1   35 P.S. § 780-113(a)(30).
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drugs over to police who conducted a field test on the substance. The test

showed a positive presumptive indication of cocaine.      The police forwarded

the substance to the State Police Crime Laboratory, where lab technician

Nicole Blascovich confirmed the substance was cocaine.

      At trial, Appellant appeared pro se, accompanied by stand-by counsel.

Following deliberations, the jury convicted him of PWID. On August 26, 2019,

the trial court sentenced Appellant, who was now represented by counsel, to

eighteen to thirty-six months’ imprisonment.         On September 3, 2019,

Appellant filed post-sentence motions, which the trial court denied.          On

October 8, 2019, Appellant filed the instant, timely appeal. The trial court

directed Appellant to file a concise statement of errors complained of on

appeal, and Appellant complied. The trial court then filed its opinion.

      On appeal, Appellant challenges the trial court’s decision to admit the

drug evidence and laboratory report because the Commonwealth failed to

demonstrate a complete chain of custody. See Appellant’s Brief, at 10-12.

      The standard of review for challenges to the admissibility of evidence is

settled:

      The admission of evidence is solely within the discretion of the
      trial court, and a trial court’s evidentiary rulings will be reversed
      on appeal only upon an abuse of that discretion. An abuse of
      discretion will not be found based on a mere error of judgment,
      but rather occurs where the court has reached a conclusion that
      overrides or misapplies the law, or where the judgment exercised
      is manifestly unreasonable, or the result of partiality, prejudice,
      bias or ill-will.




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Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (citations and

quotation marks omitted).

      We have held, “[p]hysical evidence may be properly admitted despite

gaps in testimony regarding custody.”      Commonwealth v. Feliciano, 67

A.3d 19, 29 (Pa. Super. 2013) (en banc). Furthermore, any issue regarding

gaps in the chain of custody relate to the weight of the evidence, not its

admissibility.   See id.      Also, “[t]here is no requirement that the

Commonwealth establish the sanctity of its exhibits beyond all moral certainty.

It is sufficient that the evidence, direct and circumstantial, establish a

reasonable inference that the identity and condition of the exhibits remain

unimpaired until they were surrendered to the court.” Id. (citation omitted).

Because of this, we do not require the Commonwealth to call as witnesses all

of the people who came into contract with the item in question. See id.

      In Feliciano, the defendant sold drugs to a CI. Id. at 21. At trial, the

detective working undercover with the CI testified the CI gave the drugs to

him immediately following the sale; after conducting a preliminary field test,

the detective placed the drugs into an evidence envelope, which he sealed and

placed into the evidence section of his department. Id. at 22. A forensic

scientist also testified he received the sealed envelope, tested the substance,

then placed it back into the envelope, which he resealed and signed. Id. The

trial court admitted this into evidence over the defendant’s chain of custody

objection. Id.


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      An en banc panel of this Court determined defendant’s chain of custody

claim was “meritless” and the evidence adduced at trial was “more than

sufficient.” Id. at 29. We held where the detective who recovered the drugs

placed them in a sealed envelope and signed it, the evidence arrived at the

lab still sealed, the forensic scientist testified he resealed the envelope and

signed it, and the envelopes arrived still sealed at trial, “[t]here was simply

no indication that the drugs introduced at trial were not the drugs Appellant

sold.” Id. (citation omitted).

      Here, the trial court described the evidence educed at trial with respect

to chain of custody as follows:

      Ample evidence proved the chain of custody was sufficient and the
      drugs introduced at trial were the drugs sold by [Appellant]. Based
      on the trial record, before the buy happened, [Sergeant Adam]
      Bruckhart searched the [CI] to make sure “there was nothing on
      him”—no drugs, no money, and no contraband or weapons was
      found on the CI. N.T. Jury Trial, 07/16/19, at 64, 78, 80-81.
      [Sergeant] Bruckhart then arranged for the CI to go with
      Detective [Michelle] Hoover. Id. at 64-65, 76-77. Both [ ]
      Bruckhart and Hoover, in plain view, observed the transaction that
      [Appellant] sold crack cocaine to the CI. Id. at 64-65, 77-78.
      After the transaction occurred, the CI returned to the car and was
      driven back to the office by Detective Hoover. Id. at 83. The
      crack cocaine was turned over to Detective Hoover, and then to
      [Sergeant] Bruckhart. Id. at 65, 78, 83-84. [Sergeant] Bruckhart
      again searched the CI—“no drugs, no money, no contraband, and
      no weapons were found on the CI.” Id. at 65, 78, 83. [Sergeant]
      Bruckhart established that the transaction did occur and the drugs
      obtained were transferred from [Appellant].

      After [Sergeant] Bruckhart received the drugs, he placed the
      drugs in the envelope, put on the “red evidence tape,” wrote down
      the case number, date, the suspect’s name, and signed his name.
      Id. at 84. A witness was present when [Sergeant] Bruckhart
      sealed the evidence. Id. [Sergeant] Bruckhart recognized the

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      envelope at trial and confirmed that “everything [was] logged into
      the evidence and on the actual evidence bag.” Id. Detective
      Hoover confirmed [Sergeant] Bruckhart’s testimony at trial. See
      N.T. Jury Trial, 07/17/19, at 126-28.

      The lab technician (“lab tech”), Nicole Blascovich, who did the
      testing of the drugs was present and testified as an expert witness
      at trial. The lab tech recognized the photocopy of her lab report
      for this case, and confirmed it was “a true and accurate copy of
      the report that [she] issued in this case.” N.T. Jury Trial,
      07/16/19, at 106. She also identified the “lab report number” and
      the “incident number” on the report. Id. at 106[-]07. The lab
      tech acknowledged the same envelope identified by [Sergeant]
      Bruckhart and the plastic bag containing the drugs she described
      in her report. Id. at 108. She further stated that the evidence
      came to the lab in a sealed envelope and was assigned the unique
      “lab report number,” which is a barcode. Id. The lab would scan
      the barcode every time when they moved the evidence, so they
      could “generate a chain of custody when it [moved] around the
      lab as far as who [had] it, where it [was] and when.” Id. at 108-
      09. The lab tech indicated that, after the testing was complete,
      she “repacked it back in the plastic bag it came in and wrote [her]
      initials, the lab report item number, sealed it up, put it back in the
      envelope, [and] sealed it up.” Id. at 112 (emphasis added).

Trial Court Opinion, 11/15/19, at 5-6.

      We have thoroughly reviewed the record in this matter. The trial court

opinion accurately described Commonwealth’s evidence regarding chain of

custody. The evidence here is all but identical to that discussed in Feliciano.

Therefore, because there is no meaningful difference between the evidence

here and the evidence this Court found “more than sufficient” in Feliciano,

that decision controls the outcome here. Feliciano, 67 A.3d at 29. Moreover,

because it is an en banc decision, it is binding on this panel. See In the

Interest of A.A., 195 A.3d 896 (Pa. 2018) (citations omitted) (decision of en

banc panel is binding on three-judge panel). Lastly, in his brief argument on

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this issue, Appellant fails to discuss or even mention Feliciano, or point to

any case law that would call its holding into doubt. Appellant’s claim does not

merit relief. Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/20/2020




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