J. S69021/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                                            :
              v.                            :
                                            :
CARL PATRICK                                :
                                            :
                    APPELLANT               :     No. 523 MDA 2016

            Appeal from the Judgment of Sentence October 28, 2015
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0000114-2015

BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY DUBOW, J.:                         FILED DECEMBER 07, 2016

        Appellant, Carl Patrick, appeals from the October 28, 2015 Judgment

of Sentence entered in the Lebanon County Court of Common Pleas following

his conviction of one count of Possession with Intent to Deliver a Controlled

Substance and one count of Criminal Use of a Communication Facility.1 After

careful review, we affirm on the basis of the trial court’s Opinion.

        The trial court summarized the factual and procedural history of this

case as follows:

        [At Appellant’s jury trial,] Sergeant Brett Hopkins of the Lebanon
        County Drug Task Force testified that the [instant] charges arose
        from an investigation using a confidential informant, Deborah
        Arnold.   Hopkins explained that individuals often offered to


*
    Retired Senior Judge Assigned to the Superior Court.
1
    35 P.S. § 780-113(a); and 18 Pa.C.S. § 7512(a), respectively.
J. S69021/16


     cooperate with the Drug Task Force when they have criminal
     charges pending against them. He acknowledged that Arnold did
     have three pending theft charges at the time of the
     investigation, but noted that no promises or assurances had
     been made to her regarding the disposition of those charges.
     Throughout the course of the investigation, Arnold had given
     information to the Drug Task Force which Hopkins had been able
     to verify.

     Hopkins explained that Arnold had contacted the Drug Task
     Force and informed them that she could purchase drugs from an
     individual known to her as "Loso" and that Hopkins had arranged
     to meet with Arnold on the evening of June 14, 2014. He
     explained that they planned to conduct a "controlled buy" during
     which Arnold would arrange to buy drugs from "Loso." Arnold
     would contact "Loso" via phone call in Hopkins' presence and
     Hopkins would accompany her to the location where she was to
     meet this individual and observe as much as possible of the
     transaction. Hopkins showed Arnold a Pennsylvania driver's
     license photograph of [Appellant] and Arnold identified him as
     the person she knew as "Loso."

     After Arnold arrived to meet with Hopkins, she provided the
     officers with a phone number she had for [Appellant]. She then
     placed a call to that number. Hopkins observed that it was the
     same number she had given to him. At first there was no
     answer, but Arnold received a return call shortly after placing the
     initial call. Hopkins heard Arnold tell the caller that she wanted
     "100." He explained that "100" is an increment of crack cocaine
     that costs $100.00. When Arnold got off the phone, she told
     Hopkins that she had been directed to go to 1328 Lehman Street
     to meet [Appellant] to obtain the drugs. Arnold was then strip
     searched by Sarah Stager, the director of Central Booking.
     Stager testified that she conducted a thorough search of Arnold's
     clothing and person and found no contraband. Hopkins then
     provided Arnold with $100.00 to purchase the cocaine. He had
     previously recorded the serial numbers of the currency.

     Hopkins and Arnold then drove to the Lehman Street address
     and parked on Fourteenth Street.           Almost immediately,
     [Appellant] pulled up in a Fiat on the opposite side of the street.
     After [Appellant] had exited his vehicle, Arnold got out of the
     vehicle and went to meet him. Hopkins observed the two go
     inside the rear apartment door at 1328 Lehman Street. Within a



                                    -2-
J. S69021/16


     minute, Arnold returned to the car, and handed Hopkins a plastic
     baggy containing a substance which was later determined to be
     crack cocaine. When they returned to the station, Arnold was
     strip searched again. Hopkins explained that the baggie was not
     subjected to DNA or fingerprint testing due to the existence of
     other evidence regarding the drug transaction, the cost of such
     testing, and the wrinkled condition of the baggie.

     Hopkins explained that the Drug Task Force was involved in
     multiple ongoing investigations which involved Arnold.
     [Appellant] was not arrested for this incident until several
     months later so that the integrity of the other investigations
     would not be compromised. When he was arrested, [Appellant]
     was in possession of a cellphone which was determined to be the
     one used during the June 24, 2014 transaction with Arnold.

     Arnold also testified at the trial. Over [Appellant's] objection,
     she explained that she had used the phone number she had
     given to Hopkins in order to reach [Appellant] prior to June 24,
     2014 and that she had also been to the Lehman Street address
     before that date.[2 When [Appellant] returned her call on June
     24, 2014, she recognized his voice. She told him that she
     wanted "100" and he told her to come to his residence. She
     explained that [Appellant] lived in an apartment building and
     that she had entered directly into his apartment through a rear
     door. She recalled that there was someone cooking in the
     kitchen of the apartment, but that she did not come into contact
     with anyone other than [Appellant] either inside or outside of the
     apartment.

     Both Hopkins and Arnold acknowledged that Arnold had a 2009
     conviction for retail theft. Arnold testified that she had served
     three months incarceration for that conviction. Both witnesses
     also acknowledged that Arnold had three pending cases involving
     theft charges at the time of this incident.        Both witnesses
     explained that Arnold had received no assurances or promises
     regarding those charges. Arnold indicated that those cases had
     been resolved prior to this trial and that she had been sentenced


2
  Arnold’s testimony about her prior contacts with Appellant was given in
response to questions about how she recognized Appellant’s voice over the
phone and knew that the number she dialed in the presence of Sergeant
Hopkins belonged to Appellant. N.T., 9/2/15, at 51-52.



                                   -3-
J. S69021/16


     to probation. She further acknowledged that she could have
     been sentenced to a period of incarceration for those charges.

     In addition to the four theft cases discussed at trial, Arnold also
     had four older convictions for theft offenses: one in 1996, two in
     1998, and one in 2001. Prior to trial, [Appellant] filed a Motion
     in Limine in which he asked the Court to allow him to introduce
     evidence of all of the theft cases in Arnold's criminal history for
     impeachment purposes pursuant to Pa.R.E. 609. [The trial
     court] denied [Appellant’s] request to introduce the 1996, 1998,
     and 2001 convictions.         As indicated above, Arnold was
     questioned regarding the four more recent convictions at trial.

     [On September 2, 2015, the jury convicted Appellant of one
     count of Possession With Intent to Deliver a Controlled
     Substance and one count of Criminal Use of a Communication
     Facility for Appellant’s use of his cellphone to arrange the sale of
     crack cocaine.]

     [Appellant] appeared for sentencing on October 28, 2015. At
     Sentencing, [Appellant] presented various information regarding
     his education and family background. The Court was informed of
     [Appellant’s] work history and the fact that he had ceased
     working upon his arrest and the birth of his child eight months
     earlier. Since the child's birth, [Appellant] had been a stay-at-
     home father while the child's mother worked. [Appellant] also
     informed that Court that he was engaged to the child's mother.
     [Appellant] asked the Court to impose a local sentence so that
     he could be eligible for the work-release program which would
     enable him to provide for his family.

     At Sentencing, the Commonwealth commented on [Appellant’s]
     prior record, which included drug offenses. The District Attorney
     also noted the disrespect shown by [Appellant] toward the Court
     as exhibited by his pattern of showing up late for various Court
     appearances, including jury selection in [the instant] case. In
     addition, [Appellant] had approximately eight probation and
     parole violations.

     Prior to Sentencing, [the trial court] reviewed the Presentence
     Investigation.     [The trial court] imposed a sentence of a
     minimum of one year and a maximum of three years in a state
     correctional institution. [Appellant’s] RRR1 eligibility was set at
     nine months and he received credit for time served from October
     15, 2014 to October 24, 2014.


                                    -4-
J. S69021/16


Trial Court Opinion, filed 3/4/16, at 2-7.

      On November 5, 2015, Appellant filed a Post-Sentence Motion, which

the trial court denied on March 4, 2016. Appellant timely appealed.

      On appeal, Appellant raises the following four issues, verbatim:

      1. Did the Trial Court err by denying the Appellant's Motion in
         Limine requesting leave to impeach a Commonwealth witness
         with convictions for crimes of dishonesty outside the previous
         ten (10) years, in accordance with Pa.R.E. 609.

      2. Did the Trial Court err by denying the Appellant's claim
         regarding overruling the timely objection of the Appellant's
         counsel, by not granting a mistrial, or in the alternative, by
         not giving a curative instruction to the Jury, and by permitting
         the Commonwealth to offer testimony to the Jury regarding
         the witness's previous contacts with the Appellant and that
         she had received contact information of the Appellant through
         a friend.

      3. Did the Trial Court err by denying the Appellant's claim that
         based on the testimony and evidence offered by the
         Commonwealth, the Jury did not have sufficient evidence to
         convict the Appellant.

      4. Did the Trial Court erred [sic] by denying the Appellant's
         claim that the Sentencing Judge did not take into
         consideration the requisite factors when imposing the
         Appellant's sentence.

Appellant’s Brief at 6.

                          Impeachment of Arnold

      In his first issue, Appellant avers that the trial court erred by only

allowing Appellant to use Arnold’s recent criminal history as impeachment

evidence at trial and not the convictions that were more than ten years old.

Appellant’s Brief at 13-16.




                                      -5-
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      It is well settled that “[t]he admission of evidence is within the sound

discretion of the trial court, and will be reversed on appeal only upon a

showing that the trial court clearly abused its discretion.” Commonwealth

v. Miles, 846 A.2d 132, 136 (Pa. Super. 2004) (en banc) (citation omitted).

Abuse of discretion requires a finding of misapplication of the law, a failure

to apply the law, or judgment by the trial court that exhibits bias, ill-will,

prejudice, partiality, or was manifestly unreasonable, as reflected by the

record. Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009).

      The Honorable John C. Tylwalk has authored a comprehensive,

thorough, and well-reasoned Opinion, citing to the record and relevant case

law in addressing Appellant’s claim. After a thorough review of the record,

the briefs of the parties, and the applicable law, we affirm on the basis of the

trial court’s Opinion, which notes that (i) Pa.R.E. 609 dictates that

convictions which are more than ten years old are only admissible where

their probative value substantially outweighs their prejudicial effect; (ii) the

four oldest convictions were “well outside of the ten-year range” and not

“reflective of Arnold’s veracity a the time of the trial” in the instant case; and

(iii) the probative value of the four oldest charges was minimal where the

trial court permitted Appellant to impeach Arnold using the four recent

convictions and he did so at length on cross-examination.             Trial Court

Opinion, at 7-10.




                                      -6-
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                    Arnold’s Prior Contact with Appellant

      In his second issue, Appellant raises a number of claims regarding

Arnold’s testimony at trial that she previously called Appellant and visited his

home.    As discussed supra, this testimony was in response to questions

about how Arnold was able to identify Appellant as the individual with whom

she spoke over the phone to arrange the drug buy. At no point during her

testimony did she elaborate on the nature of her prior contact with Appellant

or testify that she had purchased drugs or engaged in criminal activity with

Appellant on previous occasions.     Nonetheless, Appellant argues that any

mention of prior contact, without an adequate “non-nefarious” explanation

from the Commonwealth, impermissibly permitted the jury to “infer and

surmise previous [criminal] dealings” that prejudiced Appellant. Appellant’s

Brief at 18.

      We begin by noting that Appellant improperly presented as a single

argument three separate issues regarding Arnold’s testimony about her prior

contact with Appellant: (i) did the trial court err in overruling his timely

objection to this portion of Arnold’s testimony; (ii) did the trial court err in

not declaring a mistrial following this portion of Arnold’s testimony; and (iii)

did the trial court err in not giving a curative instruction to the jury.   See

Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as

there are questions to be argued[.]”).        We nonetheless address each

argument in turn.



                                     -7-
J. S69021/16


      As to Appellant’s first claim, that the trial court erred in overruling his

objection and admitting the portion of Arnold’s testimony about her prior

contact with Appellant, we reiterate that “[t]he admission of evidence is

within the sound discretion of the trial court, and will be reversed on appeal

only upon a showing that the trial court clearly abused its discretion.”

Miles, 846 A.2d at 136. After a thorough review of the record, the briefs of

the parties, the applicable law, and the comprehensive and well-reasoned

Opinion of the trial court, we conclude that there is no merit to Appellant’s

claim. Accordingly, we affirm on the basis of the trial court’s Opinion, which

found that (i) the testimony about Arnold’s prior contact with Appellant was

relevant to establish the background of the case and to explain how Arnold

was able to identify Appellant; (ii) nothing in the testimony suggested that

Arnold previously used the phone number to purchase drugs from Appellant;

(iii) Appellant was not unfairly prejudiced by the testimony.        Trial Court

Opinion, at 10-12.

      Regarding Appellant’s mistrial claim, we begin by noting that Appellant

avers that trial counsel requested a mistrial during Arnold’s testimony about

her prior contact with Appellant, and that the trial court denied the request.

Appellant’s Brief at 8. Our examination of the record, however, shows only

an off-the-record discussion, the details of which were not provided to this

Court.   N.T., 9/2/15, at 51-52.   Therefore, absent a timely, on-the-record

motion for a mistrial, our review is limited to determining whether the trial



                                      -8-
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court should have declared a mistrial sua sponte. See Pa.R.Crim.P. 605(B);

Commonwealth v. Stewart, 317 A.2d 616, 618-19 (Pa. 1974).

      It is within the trial court’s discretion to declare a mistrial sua sponte

for reasons of manifest necessity, and we will review such a ruling to

determine “whether the trial court properly exercised its discretion[.]”

Stewart, 317 A.2d at 618-19.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the comprehensive and well-reasoned Opinion of the trial

court, we conclude that there is no merit to Appellant’s claim. Accordingly,

we affirm on the basis of the trial court’s Opinion, which found that (i) the

record reflects no request for a mistrial; and (ii) there was no manifest

necessity which would have warranted the trial court declaring a mistrial sua

sponte. Trial Court Opinion, at 10-12.

      Finally, we must dismiss Appellant’s argument about the trial court’s

failure to give a curative instruction because Appellant’s Brief contains

neither case law nor argument on the issue. Therefore, we find it waived.

See Harkins v. Calumet Realty Co., 614 A.2d 699, 703 (Pa. Super. 1992)

(finding that an appellant waives issues raised in a Brief’s Statement of

Questions Involved but not developed in the Brief’s argument section).

                        Sufficiency of the Evidence

      In his third issue, Appellant avers that the evidence was insufficient to

uphold his convictions. Evidentiary sufficiency is a question of law; thus, our



                                     -9-
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standard of review is de novo and our scope of review is plenary.

Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013).

      Although Appellant raises a challenge to the sufficiency of the

evidence, he makes no claim that the Commonwealth has failed to prove

any specific element or offense. Rather, Appellant argues that the testimony

of Arnold cannot provide proof beyond a reasonable doubt that he was the

person who sold her the drugs because her testimony was not corroborated

by other witnesses or forensic evidence.3      Appellant’s Brief at 18-20. The

law regarding the need for corroboration of witness testimony is to the

contrary.

      Our Supreme Court has held that the uncorroborated testimony of a

single witness is sufficient to establish the elements of a crime, if believed by

the trier of fact.   See, e.g., Commonwealth v. Faulcon, 301 A.2d 375,

376 (Pa. 1973) (concluding that the testimony of an alleged accomplice was

sufficient evidence to sustain murder and conspiracy convictions). See also

Commonwealth v. Antidormi, 84 A.3d 736, 757 (Pa. Super. 2014)

(concluding that the testimony of a single witness was sufficient to sustain

persons not to possess firearms conviction).


3
  Appellant purports to challenge only the sufficiency of the evidence against
him. To the extent that Appellant’s averments about Arnold’s credibility
instead challenge the weight of the evidence in this case, Appellant waived
such a claim by failing to raise it in his Pa.R.A.P. 1925(b)
Statement. See Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa.
2005).



                                     - 10 -
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     After a thorough review of the record, the briefs of the parties, the

applicable law, and the comprehensive and well-reasoned Opinion of the trial

court, we conclude that there is no merit to Appellant’s claim. Accordingly,

we affirm on the basis of the trial court’s Opinion, which found that the

evidence was sufficient to establish that it was Appellant whom Arnold called

and from whom Arnold later purchased crack cocaine. Trial Court Opinion at

12-15.

                   Discretionary Aspects of Sentencing

     In his fourth issue, Appellant avers, in a scant three-paragraph

argument containing no citations to supporting authority, that the trial

court’s sentence constituted a manifest abuse of discretion where the trial

court improperly considered two categories of biographical data that “were

not criminal convictions.”    These included one or more arrests in West

Virginia where the disposition was then “unknown,” and the fact that

Appellant had additional charges pending in Pennsylvania at the time of

sentencing. Appellant’s Brief at 20-21.

     As presented, this claim challenges the discretionary aspects of

sentencing.    See, e.g., Commonwealth v. Anderson, 830 A.2d 1013,

1016 (Pa. Super. 2003) (noting that a challenge to the court’s consideration

of improper factors at sentencing refers to the discretionary aspects of

sentencing).   A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Phillips,



                                   - 11 -
J. S69021/16


946 A.2d 103, 112 (Pa. Super. 2008). Prior to reviewing such a claim on its

merits:

       [W]e conduct a four part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal; (2) whether the
      issue was properly preserved at sentencing or in a motion to
      reconsider and modify sentence; (3) whether appellant’s brief
      has a fatal defect; and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate
      under the Sentencing Code.

      When appealing the discretionary aspects of a sentence, an
      appellant must invoke the appellate court’s jurisdiction by
      including in his brief a separate concise statement demonstrating
      that there is a substantial question as to the appropriateness of
      the sentence under the Sentencing Code . . . .

      The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis. A substantial
      question exists only when the appellant advances a colorable
      argument that the sentencing judge’s actions were either: (1)
      inconsistent with a specific provision of the Sentencing Code; or
      (2) contrary to the fundamental norms which underlie the
      sentencing process.

Id. (citations and quotations omitted). See also Pa.R.A.P. 2119(f).

      Appellant complied with the first three requirements by (i) filing a

timely Notice of Appeal; (ii) preserving his sentencing issues by filing a

Petition to Reconsider Sentence; and (iii) including a separate Rule 2119(f)

Statement in his Brief to this Court.

      As to the final requirement, an appellant raises a substantial question

when he avers an excessive sentence due to the court’s reliance on

impermissible factors.   Commonwealth v. McNabb, 819 A.2d 54, 56-57

(Pa. Super. 2003). Accordingly, Appellant’s averment that the court relied




                                        - 12 -
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on improper factors presents a substantial question, and we will review that

claim on the merits.

      We turn to the merits of Appellant’s claim, bearing in mind the

following standard of review:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)

(citation omitted).    Where, as here, the sentence imposed is within the

sentencing guidelines, we will not vacate the sentence imposed unless we

find that “the case involves circumstances where the application of the

guidelines would be clearly unreasonable[.]” 42 Pa.C.S. § 9781(c)(2).

      Finally, this Court has previously stated that even if a trial court

considers an inappropriate factor at sentencing, this Court will nonetheless

uphold the sentence if “the court offered significant other support” for

imposing a given sentence. Commonwealth v. P.L.S., 894 A.2d 120, 133

(Pa. Super. 2006).

      In the instant case, as the trial court explained in its March 4, 2016

Opinion:

      Prior to Sentencing, [the trial court] fully reviewed the
      information set forth in [Appellant’s] Presentence Investigation.
      At sentencing, [the trial court] noted various factors which


                                   - 13 -
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      dictated against [Appellant] receiving a local sentence. [The trial
      court] noted that [Appellant] had four prior convictions, two
      cases with "disposition unknown" in West Virginia, and pending
      resisting arrest/escape charges here[,] which resulted from a
      traffic stop.    Some of the prior convictions were for drug
      offenses, including a drug felony. In addition, [Appellant] had at
      least seven, or possibly eight, probation/parole violations. [The
      trial court] noted that the sentences imposed in the past had not
      dissuaded [Appellant] from criminal conduct and that it was time
      that he take responsibility for his actions.

      [Appellant] complains that it was improper for [the trial court] to
      take his pending charges and West Virginia record into account
      at Sentencing. These items were not included in the calculation
      of his prior record score and were relevant to [the trial court’s]
      consideration of [Appellant’s] character, his rehabilitative needs,
      and the continuation of his criminal behavior. [The trial court
      believes that it] based the sentence on appropriate
      considerations and that the sentence [it] imposed was justified
      under these circumstances.

Trial Court Opinion, at 17 (emphasis added).

      Even assuming, arguendo, that the trial court erred in considering

Appellant’s pending charges and his West Virginia Record, he would still not

be entitled to have his sentence vacated. P.L.S., 894 A.2d at 133. The trial

court offered significant other support for the sentence imposed, and stated

that it did not consider the challenged information in calculating Appellant’s

Prior Record Score.   Finally, the trial court imposed a sentence within the

standard guideline range with RRR-I eligibility after only nine months.     In

light of the several legitimate, individualized factors the court considered

that did not involve Appellant’s West Virginia charges or the pending charges

in Pennsylvania, we cannot conclude that Appellant’s relatively light

sentence was “clearly unreasonable.”


                                    - 14 -
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      Accordingly, we affirm the trial court’s October 28, 2015 Judgment of

Sentence.

      The parties are instructed to attach a copy of the trial court’s March 4,

2016 Opinion to all future filings.

      Judgment of Sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/7/2016




                                      - 15 -
                                                                         Circulated 11/17/2016 02:54 PM
                                                                     ENTER2:D J. FiLED
                                                                     CLERK Or COURTS
                                                                        LEBMrnrt PA



                     IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY
                                      PENNSYLVANIA

                                   CRIMINAL DIVISION

COMMONWEALTH OF PENNSYKLVANIA                           NO. CP-38-CR-114-2015

            v.
CARL PATRICK

APPEARANCES:

NICHOLE EISENHART, ESQUIRE                       FOR THE COMMONWEALTH
DEPUTY DISTRICT ATTORNEY

KEVIN DUGAN, ESQUIRE                             FOR CARL PATRICK
FEATHER & FEATHER, P.C.

OPINION, TYLWALK, P.J., MARCH 4, 2016.

            After a jury trial on September 2, 2015, Defendant was convicted of one

count of Possession With Intent to Deliver a Controlled Substance1 and one count

of Criminal Use of a Communication Facility2 for selling crack cocaine with the use

of a cellphone on the evening of June 24, 2014. He has filed a Post-Sentence

Motion which is presently before us for resolution.


135 P.S. 780-113(a).
2   18 Pa.C.S.A. §7512(a).

                                             1
      At the trial, Sergeant Brett Hopkins of the Lebanon County Drug Task Force

testified that the charges arose from an investigation using a confidential

informant, Deborah Arnold. Hopkins explained that individuals often offered to

cooperate with the Drug Task Force when they have criminal charges pending

against them. He acknowledged that Arnold did have three pending theft charges

at the time of the investigation, but noted that no promises or assurances had

been made to her regarding the disposition of those charges. Throughout the

course of the investigation, Arnold had given information to the Drug Task Force

which Hopkins had been able to verify.

      Hopkins explained that Arnold had contacted the Drug Task Force and

informed them that she could purchase drugs from an individual known to her as

"Loso" and that Hopkins had arranged to meet with Arnold on the evening of June

14, 2014. He explained that they planned to conduct a "controlled buy" during

which Arnold would arrange to buy drugs from "Loso." Arnold would contact

"Loso" via phone call in Hopkins' presence and Hopkins would accompany her to

the location where she was to meet this individual and observe as much as

possible of the transaction.   Hopkins showed Arnold a Pennsylvania driver's

license photograph of Defendant and Arnold identified him as the person she

knew as "Loso."
                                          2
       After Arnold arrived to meet with Hopkins, she provided the officers with a

· phone number she had for Defendant. She then placed a call to that number.

 Hopkins observed that it was the same number she had given to him. At first

there was no answer, but Arnold received a return call shortly after placing the

 initial call. Hopkin heard Arnold tell the caller that she wanted "100." He

 explained that "10011 is an increment of crack cocaine that costs $100.00. When

 Arnold got off the phone, she told Hopkins that she had been directed to go to

 1328 Lehman Street to meet Defendant to obtain the drugs. Arnold was then

 strip searched by Sarah Stager, the director of Central Booking. Stager testified

 that she conducted a thorough search of Arnold's clothing and person and found

 no contraband.    Hopkins then provided Arnold with $100.00 to purchase the.

 cocaine. He had previously recorded the serial numbers of the currency.

     · Hopkins and Arnold then drove to the Lehman Street address and parked

 on Fourteenth Street.    Almost lmrnedlatelv, Defendant pulled up in a Fiat on the

 opposite side of the street.   After Defendant had exited his vehicle, Arnold got

 out of the vehicle and went to meet him. Hopkins observed the two go inside the


 rear apartment door at 1328 Lehman Street. Within a minute, Arnold returned to

 the car, and handed Hopkins a plastic baggy containing a substance which was

 later determined to be crack cocaine. When they returned to the station, Arnold
                                            3
 was strip searched again. Hopkins explained that the baggie was not subjected to

 DNA or fingerprint testing due to the existence of other evidence regarding the

 drug transaction, the cost of such testing, and the wrinkled condition of the

 baggie.


         Hopkins explained that the Drug Task Force was involved in multiple

 ongoing investigations which involved Arnold.     Defendant was not arrested for

this incident until several months later so that the integrity of the other

investigations would not be compromlsed,        When he was arrested, Defendant .

was in possession of a cellphone which was determined to be the one used during

the June 24, 2014 transaction with Arnold.

         Arnold also testified at the trial. Over Defendant's objection, she explained

.that   she had used the phone number she had given to Hopkins in order to reach

Defendant prior to June 24, 2014 and that she had also been to the Lehman

Street address before that date. When Defendant returned her call on June 24,

2014, she recognized his voice. She told him that she wanted "10011 and he told

her to come to his residence, She explained that Defendant lived in an apartment

building and that she had entered directly into his apartment through a rear door.

She recalled that there was someone cooking in the kitchen of the apartment, but



                                           4
that she did not come into contact with anyone other than Defendant either

inside or outside of the apartment.

       Both Hopkins and Arnold acknowledged that Arnold had a 2009 conviction

for retail theft. Arnold testified that she had served three months incarceration

for that conviction. Both witnesses also acknowledged that Arnold had three

pending cases involving theft charges at the time of this incident. Both witnesses

explained that Arnold had received no assurances or promises regarding those

charges. Arnold indicated that those cases had been resolved prior to this trial

and that she had been sentenced to probation.      She further acknowledged that

she could have been sentenced to a period of incarceration for those charges.

       In addition to the four theft cases discussed at trial, Arnold also had four

older convictions for theft offenses: one in 1996, two in 1998, and one in 2001.

Prior to trial, Defendant filed a Motion in Limine in which he asked the Court to

allow him to introduce evidence of all of the theft cases in Arnold's criminal

history for impeachment purposes pursuant to Pa.R.E. 609. We denied

Defendant's request to introduce the 1996, 1998, and 2001 convictions. As

indicated above, Arnold was questioned regarding the four more recent

convictions at trial.



                                          5
           Defendant appeared for sentencing on October 28, 2015. At Sentencing,

Defendant presented various information regarding his education and family

background. The Court was informed of Defendant's work history and the fact

that he had ceased working upon his arrest and the birth of his child eight months

earlier.     Since the child's birth, Defendant had been a stay-at-home father while

the child's mother worked. Defendant also informed that Court that he was

engaged to the child's mother. Defendant asked the Court to impose a local

sentence so that he could be eligible for the work-release program which would

enable him to provide for his family.

       At Sentencing, the Commonwealth commented on Defendant's prior

record, which included drug offenses. The District Attorney also noted the

disrespect shown by Defendant toward the Court as exhibited by his pattern of

showing up late for various Court appearances, including jury selection in this

case. In addition, Defendant had approximately eight probation and parole

violations


           Prior to Sentencing, we had reviewed the Presentence Investigation. We

imposed a sentence of a minimum of one year and a maximum of three years in a

state correctional institution:   Defendant's RRRI eligibility was set at nine months



                                            6
and he received credit for time served from October 15, 2014 to October 24,

2014.

        Defendant has filed a Post-Sentence Motion requesting relief on several

bases.. He argues that we erred in denying his request to impeach Arnold on the

basis of her four theft charges from 1996, 1998, an~ 2001 and in permitting

Arnold's testimony of her previous contacts with Defendant. He also challenges

the sufficiency of the evidence to support the jury's verdict- and assigns error to

our imposition of a state sentence. This Motion is presently before us for

resolution.

        Arnold's Prior Record

        With regard to the use of a witness' criminal record at trial for

impeachment purposes, Pa.R.E. 609 provides, in part:

        Rule 609. Impeachment by Evidence of a Criminal Conviction

        (a} In General. For the purpose of attacking the credibility of any witness,
        evidence that the witness has been convicted of a crime, whether by
        verdict or by plea of guilty or   nolo contendere,   must be admitted if it
        involved dishonesty or false statement.


        · (b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if
        more than 10 years have passed since the witness's conviction or release
        from confinement for it, whichever is later. Evidence of the conviction is
        admissible only if:


        (1) its probative value substantially outweighs its prejudicial effect; and
                                              7
       (2) the proponent gives an adverse party reasonable written notice of the
       intent to use it so that the party has a fair opportunity to contest its use.

Pa.R.E. 609(a), (b).


      The decision of whether to admit convictions outside of the ten-year period

is within the discretion of the trial judge. Commonwealth v. Randall, 528 A.2d

1326 (Pa. 1987). There is generally no distinction to be made between a

defendant and a witness in the application of this· Rule. Commonwealth v.

Howard, 823 A.2d 911 (Pa. Super. 4003).

       In making the determination as to the admissibility of a prior conviction for
       impeachment purposes, the trial court should consider: (1) the. degree to
       which the commission of the prior offense reflects upon the veracity of the
       defendant-witness; (2) the likelihood, in view of the nature and extent of
       the prior record, that it would have a greater tendency to smear the
       character of the defendant and suggest a propensity to commit the crime
       for which he stands charged, rather than provide a legitimate reason for
       discrediting him as an untruthful person; 3) the age and circumstances of
       the defendant; 4) the strength of the prosecution's case and the
       prosecution's need to resort to this evidence as compared with the
       availability to the defense of other witnesses through which its version of
       the events surrounding the incident can be presented; and S) the existence
       of alternative means of attacking the defendant's credibility.
Commonwealth v. Randall, supra at 1328, citing Commonwealth v. Roots, 393

A.2d 364, 367 (Pa. 1978).


       Here, Arnold had four actions involving theft offenses which were within

the ten-year period prior to trial and four convictions which were outside that
                                            8
time period. All of these offenses involved dishonesty.   Pursuant to Rule 609, her

latter four convictions were admitted. However, we denied Defendant's request

to introduce the four prior convictions as we found that those were too remote in

time to be probative in this case.

      We do not believe that we erred in limiting Defendant to Arnold's four

most previous convictions.    The four earliest convictions were well outside of the

ten-year range. There was a gap of eight years between the four earliest and the

four latter convictions. The first offense was committed in 1996. We do not

believe events which occurred such a long time ago were reflective of Arnold's

veracity at the time of the trial in this case as they would not have provided a

legitimate reason for her testimony to be discredited at this point in time.

Moreover, we find nothing regarding Arnold's age and/or circumstances which

would bear on her credibility at present. By the time of trial, she was acting as a

confidential informant whose actions were thoroughly scrutinized by members of

the Drug Task Force and she had provided various information which had been

corroborated by Hopkins throughout the time period relevant to this matter.

      We also fail to see any great need for this evidence at trial as the four latter.


convictions provided Defendant with ample means to attack Arnold's credibility.

Defense counsel questioned Arnold at length about those four convictions and
                                          9
the Commonwealth also brought this information up. Arnold also acknowledged

that three of those cases were still pending at the time of the investigation and

that she had received a sentence of probation rather than incarceration. This

testimony fully provided Defendant with a basis upon which to argue bias on the

part of Arnold. We do not believe that the admission of the earlier convictions

would have enhanced his defense and find that this was an appropriate ruling on

this issue.


      Testimony Regarding Arnold's Previous Contacts with Defendant

       Defendant also complains that we permitted Arnold to testify about her

prior contacts with. Defendant
                         .     at trial. Arnold testified that she had obtained

Defendant's cell number from a friend, that she had used that number to contact

Defendant previously, and that she had been to Defendant's residence prior to

June 24, 2014. She also noted that she recognized Defendant's voice when she

spoke to him over the phone on June 24, 2014 as a result of those previous

contacts.     He assigns error to our overruling his objections to this testimony and

in our failure to declare a mistrial as the result of its admission.


      Defendant complains that this testimony was highly prejudicial to him as

the Commonwealth failed to offer any innocent explanation for Arnold's previous

contacts with Defendant and the jury was left to infer that those contacts
                                           10
involved previous drug transactions. We agree with Defendant that prior criminal

conduct cannot be introduced as substantive evidence of his guilt to the charges

at issue. Commonwealth v. West, 656 A.2d 519, 521 (Pa. Super. 1995). When

ruling on an objection on this basis, a court is required to determine whether the

jury could reasonably infer from the facts presented that the defendant had

engaged in prior criminal conduct. Id.

       Relevant evidence is admissible unless its probative value is outweighed by

the danger of unfair prejudice. Pa.R.E. 403. "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.   Comment- Pa.R.E. 403.

Evidence is not to be excluded merely on the basis that it is harmful to a

defendant. Commonwealth v. Dillon, 925 A.2d 131 (Pa. 2007). "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."

Commonwealth v. Page, 965 A.2d 1212, 1220 (Pa. Super. 2009).

      When an event prejudicial to a defendant occurs at trial, he may either

object, request curative instructions, or move for a mistrial. Commonwealth v.

Boring, 684 A.2d 561, 568 (Pa. Super. 1996). A timely motion for a mistrial must

be made at the time of the prejudicial event. Id. If the defendant does not make
                                         11
a timely motion, the trial judge may declare a mistrial only for reasons of manifest

necessity. Pa.R.Crim.P. 605(8).

      After reviewing this testimony, we find nothing which would have diverted

the jury's attention from the issues which they were called upon to resolve.

Arnold's testimony introduced nothing which would have inflamed the jury such

that they would have based their verdict on something other than the facts of

Arnold's contact with Defendant on June 14, 2014.

      This testimony was relevant to establish the background of the events of

this particular drug transaction and to confirm Defendant's identity as the person

known to Arnold as "Loso." There was nothing to indicate that Arnold had used

the phone number in the past in order to obtain drugs from Defendant and there

was no reference to any prior criminal conduct on the part of Defendant. We do

not believe that this testimony was in any way unfairly prejudicial to Defendant

and find that it was properly admitted at trial.   Defendant did not move for a

mistrial at trial and we find no manifest necessity which would have warranted

our doing so sua   sponte.

      Sufficiency of Evidence

      Defendant next charges that the evidence presented by the

Commonwealth at trial was insufficient to support his convictions. In resolving a
                                          12
challenge to the sufficiency of the evidence, we must view the evidence at trial

and all reasonable inferences drawn from that evidence in the light most

favorable to the Commonwealth as the verdict winner and determine whether

that evidence was sufficient to establish all the elements of the offenses charges

beyond a reasonable doubt. Commonwealth v. Fears, 836 A.2d 52 (Pa. 2003).

The Commonwealth may sustain its burden of proving every element of the crime

beyond a reasonable doubt by means of wholly circumstantial evidence.

Commonwealth v. Lippert, 887 A.2d 1277 (Pa. Super. 2005). The court may not·

weigh the evidence and substitute its judgment for that of the fact-finder.     Id.

      Section 780-113(a)(30} of the Controlled Substance, Drug, Device and

Cosmetic Act prohibits "the manufacture, delivery, or possession with intent to

manufacture or deliver, a controlled substance." 35 P   .s. 780-113(a)(30) ..
Defendant notes that the evidence offered by the Commonwealth with regard to

the drug transaction at issue relied solely on Arnold's testimony. Defendant

lodges various complaints with regard to that testimony.    He points to the

absence of any other witness to the drug transaction, Arnold's criminal history,


the pending charges at the time of the incident, and the inadequacy of the strip

search. He also argues that no DNA or fingerprint tests were conducted on the



                                         13
baggie Arnold gave to Hopkins and the fact that Defendant was not found to be in

possessionof the recorded currency at the time of his arrest.

      Arnold made arrangements to purchase crack cocaine in Hopkins' presence

and Arnold testified that she obtained the crack cocaine directly from Defendant.

All of the information provided by Arnold was verified; Arnold was out of Hopkins'

view for less than a minute during the transaction. Stager testified that she

conducted a thorough search of Arnold's person and clothing, and Arnold was

found to be free of contraband immediately prior to leaving to meet Defendant.

Viewing this evidence in the light most favorable to the Commonwealth, we find

that there was sufficient evidence upon which the jury could have found

Defendant guilty of PWID.     The jury was free to determine the credibility of

Arnold's testimony and obviously believed her testimony to be truthful.       The

Commonwealth also presented evidence to explain the issues raised by

Defendant and the jury likewise found these explanations to be credible.

      Defendant was also convicted of Criminal Use of a Communication Facility

pursuant to 18 Pa.C.S.A. §7512(a):

             § 7512. Criminal use of communication facility

             (a) Offense defined.-A person commits a felony of the third degree if
             that person uses a communication facility to commit, causeor
             facilitate the commission or the attempt thereof of any crime which

                                        14
             constitutes a felony under this title or under the act of April 14, 1972
             (P .L. 233, No. 64), known as The Controlled Substance, Drug, Device
             and Cosmetic Act. Every instance where the communication facility is
              utilized constitutes a separate offense under this section.


18 Pa.C.S.A. §7512(a). The testimony established that Defendant committed

PWID, a violation of the Controlled Substance Act, when he sold crack cocaine to

Arnold. Hopkins and Arnold testified Defendant's cellphone enabled him to

arrange this drug transaction and he was found to be in possession of the

cellphone with this number at the time of his arrest. We believe this evidence

sufficiently supports the jury's verdict on this count and Defendant is not entitled

to relief on this basis.


       Sentence


       The sentence imposed on a defendant is within the discretion of the

sentencing court. Commonwealth v. Whitman,'880 A.2d 1250 (Pa. Super. 2005).

In determination an appropriate sentence, the court must consider that the

sentence imposed should call for confinement that is consistent with the

protection of the public, the gravity of the offense as it relates to the impact on

the life of the victim and on the community, and the rehabilitative needs of the

defendant. 42 Pa.C.S.A. §9721(b). The sentencing court must also consider the

                                           15
sentencing guidelines. 42 Pa.C.S.A. §972l{b); 204 Pa. Code §303.1 et seq. The

sentencing guidelines are considered advisory, and the sentencing court is still

charged with considering them and determining whether to apply them or

whether circumstances of the individual case require departure from them.

Commonwealth v. Robertson, 874 A.2d 1200 (Pa. Super. 2005).


      When a court has the benefit of a presentence investigation report, it is

presumed that the court had the relevant character information for the

defendant. Commonwealth v. Fu/fin, 892 A.2d 843 {Pa. Super. 2006). In

determining whether a sentence is manifestly excessive, the appellate court must

give great weight to the sentencing judge's discretion, as he or she is in the best

position to measure the factors such as the nature of the crime, the defendant's

character, and the defendant's display of remorse, defiance, or indifference.

Commonwealth v. Andrews, 720 A.2d 764 (Pa. Super. 1998).


      Prior to Sentencing, we fully reviewed the information set forth in

Defendant's Presentence lnv€stigation. At Sentencing, we noted various factors

which dictated against Defendant receiving a local sentence. We noted that

Defendant had four prior convictions, two cases with "disposition unknown" in

West Virginia, and pending resisting arrest/escape charges here which resulted

                                          16
from a traffic stop. Some of the prior convictions were for drug offenses,

including a drug felony. In addition, Defendant had at least seven, or possibly

eight, probation/parole   violations.   We noted that the sentences imposed in the

past had not dissuaded Defendant from criminal conduct and that it was time that

he take responsibility for his actions.


       Defendant complains that it was improper for us to take his pending

charges and West Virginia record into account at Sentencing. These items were

not included in the calculation of his prior record score and were relevant to our

consideration of Defendant's character, his rehabilitative needs, and the

continuation of his criminal behavior. We believe that we based the sentence on

appropriate considerations and that the sentence we imposed was justified under

these circumstances.


       For these reasons, we will deny Defendant's Motion and will enter an

· appropriate Order.




                                            17
