J-A19021-18

                                   2018 PA Super 356

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NELSON SOTO                                :
                                               :
                       Appellant               :   No. 1757 MDA 2017

      Appeal from the Judgment of Sentence Entered September 27, 2017
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0003614-2013


BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

OPINION BY NICHOLS, J.:                             FILED DECEMBER 28, 2018

        Appellant Nelson Soto appeals from the judgment of sentence imposed

after a jury found him guilty of aggravated assault, simple assault, disarming

a police officer, resisting arrest, and possession of a controlled substance.1

Appellant challenges the denial of his suppression motion, the sufficiency and

weight of the evidence, the trial court’s refusal to give a requested jury

instruction, and the trial court’s evidentiary rulings.2 We affirm.

        The facts and procedures leading to Appellant’s conviction are well

known to the parties, and the relevant portions of the record will be discussed

below in further detail. We briefly note that Appellant was found guilty of the

____________________________________________


1 18 Pa.C.S. §§ 2702(a)(3), 2701(a)(1), 5104.1(a), and 5104, and 35 P.S.
§780-113(a)(16), respectively. The trial court separately found Appellant
guilty of accident involving damage to an unattended vehicle. 75 Pa.C.S. §
3745(a). Appellant was found not guilty of possession with intent to deliver a
controlled substance and harassment.

2   We have reordered Appellant’s claims for this review.
J-A19021-18



above-stated offenses on September 21, 2017, and sentenced to an aggregate

4½ to 10 years’ imprisonment followed by 2 years’ probation on September

27, 2017. On October 6, 2017, Appellant timely filed post-sentence motions.

The trial court denied Appellant’s post-sentence motions on October 24, 2017.

     Appellant timely filed a notice of appeal on November 14, 2017, and

complied with the trial court’s order to file and serve a Pa.R.A.P. 1925(b)

statement. The trial court filed a Rule 1925(a) opinion.

     Appellant presents the following questions for review:

     [1.] Whether the suppression court erred in failing to suppress all
     evidence and dismiss all charges because the police officer who
     pursued Appellant after he allegedly struck a parked, unoccupied
     vehicle, which is a summary offense under the Vehicle Code, did
     not have authority to seize and arrest appellant under Article I, §
     8 of the Pennsylvania Constitution and/or the Vehicle Code?

     [2.] Whether the evidence presented by the Commonwealth at
     trial was insufficient to convict [A]ppellant of the charges of
     aggravated assault, simple assault, disarming a police officer, and
     resisting arrest because the Commonwealth failed to disprove
     [A]ppellant was justified in his actions because he was attempting
     to run away from committing a summary offense under the
     Vehicle Code and the officer(s) who pursued him with lights and
     siren down a one-way street the wrong way and who tasered him
     in the back as he was trying to simply get away from the police
     and then repeatedly deployed the [T]aser on [A]ppellant as many
     as 10 times during which time [A]ppellant was trying to leave the
     area. In addition, the evidence was insufficient to convict
     [A]ppellant of the crimes of aggravated assault and simple assault
     because there was not adequate evidence that Appellant
     attempted to cause or caused bodily injury to a police officer. In
     addition, the evidence at trial was insufficient to convict appellant
     of the crime of disarming a police officer because at best the
     evidence showed that Appellant grabbed Officer Epilito’s wrist or
     hand while the officer was tasering him multiple times. In addition,
     the evidence at trial was insufficient to convict the appellant of



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      resisting arrest because the arrest was unlawful as set forth in
      Issue [1]?

      [3.] Whether the verdicts of the jury were against the weight of
      the evidence on the charges of aggravated assault, simple assault,
      disarming a police officer, and resisting arrest because of all the
      reasons relied upon in the post-sentence motion filed in this case?

      [4.] Whether the trial court erred by failing to give Appellant’s
      point for charge on resisting arrest to the jury after the
      Commonwealth agreed to the charge before the closing
      arguments and the court stated on the record at the time points
      for charge were discussed that it would give said charge and when
      defense counsel renewed the request for that specific charge at
      the close of the charge to the jury, but the court still refused to
      give the charge even though defense counsel argued the specific
      language and principles in that charge in closing to the jury to the
      prejudice of [A]ppellant?

      [5.] Whether the trial court erred in permitting the
      Commonwealth’s witnesses to mention to the jury that [A]ppellant
      was “on parole” because the prejudice to [A]ppellant by revealing
      such information was unduly prejudicial to [A]ppellant and was
      also evidence of other inadmissible bad acts such that the court
      should have precluded the jury from hearing that evidence?

      [6.] Whether the trial court failed to exclude all the evidence of
      drugs seized from [A]ppellant because the Commonwealth failed
      to establish an adequate chain of custody of that evidence for all
      the reasons argued at the pretrial phase of the case pertaining to
      the illegal conduct of Officer Jody Royer as the person in charge
      of safeguarding this evidence and tasked with taking the evidence
      to the [Pennsylvania State Police] lab for testing?

Appellant’s Brief at 3-5 (full capitalization omitted).


                                  Suppression


      The procedural background to Appellant’s challenge to the suppression

ruling is as follows. On January 27, 2016, Appellant filed a motion to suppress




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claiming that he was unlawfully seized. The trial court held a hearing on April

26, 2017, at which several police officers testified.

       The suppression hearing testimony3 reveals that at approximately 2:30

a.m. on July 20, 2013, Officer Nicholas Epolito of the Reading Police

Department was “assigned to respond to a vehicle accident” on the 500 block

of Chestnut Street.      N.T. Suppression, 4/26/17, at 7-8.      When the officer

arrived at the accident scene, he saw a parked car and a second vehicle, which

appeared to have struck the parked vehicle. Id. at 8. There were two females

near the parked vehicle, who immediately began “yelling that the driver of the

striking vehicle was fleeing down Pearl Street” and pointing. Id. at 9, 10.

       Officer Epolito looked around and saw Appellant running south on Pearl

Street. Id. at 9. The officer testified that Appellant “was the only person [he]

could see within the block.” Id. The officer thought Appellant “was the driver

of the vehicle and was now committing a hit-and-run.” Id. at 10.

       Officer Epolito testified that he turned his vehicle around, “went the

wrong way down Pearl Street[,] following” Appellant with his emergency lights

and siren activated.         Id. at 9, 23.       Appellant ran into a vacant lot,

approximately one-half block from the accident scene.          Id.   at 9.   Officer

Epolito continued to follow Appellant into the lot, and Appellant “attempted to

scale a [six-foot high] fence.” Id. at 11. The officer yelled for Appellant to

____________________________________________


3 The scope of review for suppression orders is limited to the evidence
presented at the suppression hearing. In re L.J., 79 A.3d 1073, 1085 (Pa.
2013).

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J-A19021-18



stop, and Appellant “did stop and turn[] around” to face the officer. Id. The

officer ordered Appellant “to turn away from” the officer.      Id.   Appellant

complied, and the officer “holstered [his] firearm to begin taking Appellant

into custody.”   Id.   The officer testified that Appellant then “turned back

around and shoved me away from him.” Id.

      Officer Epolito testified that he used his Taser, but the Taser did not

incapacitate Appellant. A struggle ensued, and the officer pushed Appellant

to the ground.    Id. at 11-12.   The officer testified that he and Appellant

continued to struggle on the ground and Appellant attempted to punch him in

the face.    Id. at 13.   Appellant was not subdued until a backup officer,

Sergeant Brian Thomas Rogers, arrived. Both Officer Epolito and Sergeant

Rogers struck Appellant to subdue him.       Id. at 30, 41.      Appellant was

handcuffed and then taken from the scene to a hospital by another officer.

Id. at 50.

      After the altercation, Officer Epolito returned to the accident scene and

completed an accident report. Id. at 16-17. The officer spoke to the two

females who initially reported that Appellant was fleeing the scene.        Id.

According to the officer, “[t]hey stated that their vehicle was parked[,

Appellant] hit the vehicle[, and a]fter he hit the vehicle and realized we were

on the way, he said I got to go I’m on parole and took off running.” Id. Officer

Epolito stated that one of the females was the owner of the vehicle. Id. On

cross-examination, Officer Epolito testified that the two women reported that




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J-A19021-18



Appellant was on parole and told them he could not stay before the officer

began pursuing Appellant. N.T. Suppression at 22.

      Also during the cross-examination of Officer Epolito, Appellant’s counsel

emphasized that the officer arrived on the scene approximately ten minutes

after the accident was reported, and that the officer’s post-incident reports

did not indicate that he saw the two vehicles in contact with each other. See

id. at 23, 33. Appellant elicited the officer’s concessions that (1) the officer

did not see the accident happen, (2) the officer did not know whether

Appellant was the driver of the striking vehicle, and (3) Appellant could have

given the owner of the other car his paperwork in the ten minutes between

the report of the accident and the officer’s arrival at the accident scene. Id.

at 21-22, 33. Additionally, Appellant highlighted that Officer Epolito did not

know the two females who reported that Appellant was the driver of the

striking vehicle and ran away, and that the officer did not interview the

females before pursuing Appellant. Id. at 21.

      Officer Christian Morar testified that he arrived at the scene in a police

transport wagon.    Id. at 46.   When Officer Morar arrived, Appellant was

already in handcuffs. Id. at 47. Before placing Appellant in the wagon, Officer

Morar searched Appellant and recovered plastic bags containing suspected

cocaine from Appellant’s shorts.     Id. at 47-48.    Further analysis of the

contraband revealed that Appellant was in possession of thirty-two bags of

cocaine. Id. at 15-16.




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J-A19021-18



      At the conclusion of the hearing, the trial court ordered the parties to

submit memorandums in place of oral arguments.            In his memorandum,

Appellant asserted that Officer Epolito lacked the authority to arrest Appellant.

Specifically, Appellant noted that “a police officer in uniform may arrest

somebody for a violation of the Vehicle Code without a warrant when the

Vehicle Code violation occurs in the presence of the police officer.” Appellant’s

Mem. of Law, 6/3/16, at 3 (citing 75 Pa.C.S. § 6304(b), and Pa.R.Crim.P. 400,

440). Appellant argued that “because Officer Epolito had not witnessed the

alleged Vehicle Code violation, he had no authority to arrest [Appellant]

without a warrant and at best should have issued him a citation if he in fact

had committed an alleged Vehicle Code violation.”         Id. at 4.    Appellant

continued, “Because Officer Epolito pursued [Appellant] in an attempt to make

a warrantless arrest for a summary vehicle code violation . . ., the officer

exceeded his arrest authority under the laws of the Commonwealth of

Pennsylvania.” Id.

      The Commonwealth responded that Officer Epolito had reasonable

suspicion to detain Appellant based on the report received from the two

women and his flight from the scene. Commonwealth’s Legal Mem. in Opp’n,

6/23/16, at 6.   The Commonwealth further argued that probable cause to

arrest Appellant for aggravated assault, attempting to disarm a police officer,

and resisting arrest arose when Appellant “shoved Officer Epolito and began

pulling away from him,” “a struggle ensued,” and Appellant grabbed the

officer’s Taser. Id. at 7-8.

                                      -7-
J-A19021-18



      The trial court issued an order and opinion denying Appellant’s motion

to suppress. The court found that Officer Epolito received information from

the two women at the scene that the driver was fleeing and observed that (1)

the parked vehicle and the striking vehicle were still in contact, (2) Appellant

was running down Pearl Street, and (3) there were no other individuals on the

street. Mem. & Order, 7/7/16, at 1, 5. The trial court concluded that the

totality of the circumstances gave Officer Epolito reasonable suspicion to

pursue and detain Appellant for further investigation. Id. at 5-6. The trial

court further concluded that Appellant’s resistance to Officer Epolito’s attempt

to detain Appellant established probable cause to arrest Appellant for other

crimes. Id. at 6. The trial court, therefore, concluded that Appellant’s arrest

and the ensuing search of Appellant, which resulted in recovery of suspected

cocaine, were proper.

      On appeal, Appellant claims that the trial court erred in denying his

motion seeking to suppress the cocaine found on his person. Appellant asserts

that he was subject to an unlawful seizure when Officer Epolito began following

him in a police vehicle with the lights and siren activated. Appellant’s Brief at

8. Appellant further suggests that he was subjected to a custodial detention

when the officer cornered Appellant in the parking lot, drew his weapon,

ordered Appellant to come down off of the fence, tasered him in the back, and

shoved him to the ground. Appellant’s Brief at 16.

      Appellant further argues that the two women who identified Appellant

as the perpetrator of the accident were anonymous tipsters who were not

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J-A19021-18



sufficiently reliable to justify a pursuit, detention, or arrest of Appellant. Id.

at 16-17. Appellant continues that his flight from Officer Epolito alone did not

give rise to an independent basis for the seizure.      Id.   Appellant refers to

several legal principles including (1) the commencement of summary

proceedings by arrest, id. at 12 (citing Pa.R.Crim.P. 400, 440), (2)

Pennsylvania law     regarding coerced abandonment,           id. at 13 (citing

Commonwealth v. Matos, 672 A.2d 769 (Pa. 1996)), and (3) the

unreliability of anonymous tips, id. at 14 (citing Commonwealth v. Mackey,

177 A.3d 221 (Pa. Super. 2017)).

      Appellant also notes that Officer Epolito’s testimony was inconsistent

with his post-arrest reports, including the narrative summary report and an

affidavit of probable cause. Appellant reiterates that the officer’s reports did

not mention that the officer observed the two vehicles being in contact or that

the officer believed Appellant was the driver of the vehicle.         Id. at 15.

Appellant also notes the officer’s initial reports indicated that Appellant

attempted to shove him, rather than actually pushing him, before attempting

to flee from the fence. Id. at 27.

      It is well settled that

         [o]ur standard of review in addressing a challenge to a trial
         court’s denial of a suppression motion is limited to
         determining whether the factual findings are supported by
         the record and whether the legal conclusions drawn from
         those facts are correct.

         We may consider only the evidence of the prosecution and
         so much of the evidence for the defense as
         remains uncontradicted when read in the context of the

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J-A19021-18


         record as a whole. Where the record supports the findings
         of the suppression court, we are bound by those facts and
         may reverse only if the court erred in reaching its legal
         conclusions based upon the facts.

      Moreover, it is within the [trial] court’s province to pass on the
      credibility of witnesses and determine the weight to be given to
      their testimony.

Commonwealth v. McCoy, 154 A.3d 813, 815-16 (Pa. Super. 2017)

(citations and brackets in original omitted).

      The principles governing our review of Appellant’s claim are as follows:

      Fourth Amendment of the Federal Constitution and Article I,
      Section 8 of the Pennsylvania Constitution protect individuals from
      unreasonable searches and seizures. “To secure the right of
      citizens to be free from such [unreasonable] intrusions, courts in
      Pennsylvania require law enforcement officers to demonstrate
      ascending levels of suspicion to justify their interactions with
      citizens as those interactions become more intrusive.” We have
      long recognized that there are three levels of intrusion involved in
      interactions between members of the public and the police. The
      first is a mere encounter, which requires no level of suspicion at
      all. The second level is an investigative detention, which must be
      supported by reasonable suspicion. Finally, the third level is an
      arrest or custodial detention, which must be supported by
      probable cause.

                                     ***

         The determination of whether an officer had reasonable
         suspicion that criminality was afoot so as to justify an
         investigatory detention is an objective one, which must be
         considered in light of the totality of the circumstances. It is
         the duty of the suppression court to independently evaluate
         whether, under the particular facts of a case, an objectively
         reasonable police officer would have reasonably suspected
         criminal activity was afoot.

Commonwealth v. Walls, 53 A.3d 889, 892-93 (Pa. Super. 2012) (citations

omitted).


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J-A19021-18



      A pursuit of a fleeing suspect constitutes a seizure under Article I,

Section 8 of the Pennsylvania Constitution. Matos, 672 A.2d at 770 (holding

that individuals who abandoned items while being pursued by an officer

without reasonable suspicion were entitled to suppression); Commonwealth

v. Ranson, 103 A.3d 73, 77 (Pa. Super. 2014). Therefore, for a pursuit to be

constitutional, the Commonwealth must demonstrate reasonable suspicion or

probable cause that a defendant was engaged in criminal activity. See In re

D.M., 781 A.2d 1161, 1164 (Pa. 2001); Ranson, 103 A.3d at 77.

      When considering an “anonymous tip,” a court must consider “whether

under the ‘totality of the circumstances’ the informant’s tip established the

necessary reasonable suspicion . . . .”        Ranson, 103 A.3d at 78 (citation

omitted). As this Court noted in Mackey:

      The veracity and reliability of anonymous tips are particularly
      difficult for the police to evaluate. Unlike trusted (or at least
      tested) informants or members of the public not concealing their
      identity, anonymous tipsters know they cannot be held to account
      for false allegations. In addition, they often fail to reveal the basis
      for their alleged knowledge and are generally unavailable to
      answer follow-up questions from police.

Mackey, 177 A.3d at 230 (citations omitted).

      This Court has distinguished cases involving tips received by anonymous

phone calls and those received in person. Commonwealth v. Williams, 980

A.2d 667, 672 (Pa. Super. 2009). Unlike an anonymous phone call, a face-

to-face report exposes the tipster to possible criminal liability and permits an

officer “to observe the witness’[s] demeanor and assess [the witness’s]



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J-A19021-18



credibility in light of [the officer’s] past experience with investigating crimes.”

Id. Accordingly, a tip made in person “must be given more weight than a

mere anonymous phone call.” Id. (citations omitted).

      Even if an initial seizure is not justified by reasonable suspicion, an

individual may commit separate acts that permit a police officer to arrest the

individual. See Commonwealth v. Britt, 691 A.2d 494, 498 (Pa. Super.

1997).   In Britt, this Court concluded that even if police officers lacked

probable cause to seize a defendant, the defendant “was not justified in

resisting the officers’ approach” and engaging in conduct “designed to inflict

bodily injury upon the officers during the performance of their duty.” Id. at

497-98. The Britt Court determined that “the officers had probable cause to

pursue and arrest [the defendant] for aggravated assault and reckless

endangerment” independent of an initial improper seizure. Id. at 498.

      Instantly, Appellant raised inconsistencies between Officer Epolito’s

initial post-incident reports and his suppression hearing testimony. However,

it was for the trial court to resolve those inconsistencies. See McCoy, 154

A.3d at 815-16. There was support in the suppression hearing for the court’s

findings that the officer received information from two women at the scene,

specifically that Appellant was the driver of the striking vehicle and was fleeing

the scene.   The record also supported the court’s findings that the officer

observed that (1) the parked vehicle and the striking vehicle were still in

contact, (2) Appellant was running down Pearl Street, and (3) there were no

other individuals on the street. See id.

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J-A19021-18



       The trial court, moreover, appropriately considered the totality of the

circumstances confronting Officer Epolito when he arrived at the scene. See

Walls, 53 A.3d at 892-93. Contrary to Appellant’s legal argument, the trial

court was not obligated to regard the in-person report that the driver of a

vehicle was fleeing as an anonymous tip. See Williams, 980 A.2d at 672.

Additionally, other factors corroborated the report that Appellant was the

driver of the striking vehicle, including Appellant’s flight, which began before

the officer arrived at the scene, and that Appellant was the only other person

at the scene.     Accordingly, we discern no basis to disturb the trial court’s

factual or legal conclusions that Officer Epolito stated specific facts justifying

his pursuit and detention of Appellant for fleeing the scene of an accident.4

       We also agree with the trial court that there was probable cause to arrest

Appellant based on Officer Epolito’s testimony that Appellant pushed the

officer during a lawful detention, attempted to flee, and then engaged in an

altercation with the officer. Therefore, even if the detention or arrest were

improper, the officer’s testimony that Appellant attempted to punch the officer
____________________________________________


4 To the extent Appellant asserts that it was unlawful to arrest him for an
accident involving damage to an unattended vehicle, we note that Officer
Epolito saw two cars that appeared to be in contact with each other, received
information that the driver of the striking vehicle was leaving the scene, and
observed Appellant approximately one-half block away from the accident
scene. Under these circumstances, we conclude that there was a reasonable
basis for the officer to believe that a violation of the Vehicle Code was
occurring in his presence, even if approximately ten minutes elapsed from the
time of the accident to the time the officer arrived at the scene. Moreover,
the Pennsylvania Rules of Criminal Procedure permit an arrest for summary
violation under extraordinary circumstances, such as when the suspect may
be fleeing. See Pa.R.Crim.P. 400 & explanatory cmt. to Ch. 4.

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J-A19021-18



gave rise to separate probable cause to arrest Appellant for aggravated

assault. See Britt, 691 A.2d at 498. Therefore, Appellant’s suppression claim

merits no relief.


                         Sufficiency of the Evidence


       Appellant next claims that the evidence at trial was insufficient to

convict him of (1) aggravated assault and simple assault, (2) disarming a

police officer, and (3) resisting arrest.

      By way of background, we note that Officer Epolito’s trial testimony was

substantially similar to his suppression hearing testimony. Specifically, Officer

Epolito testified at trial that after catching up to Appellant in the parking lot

and reholstering his firearm, the officer attempted to grab Appellant. N.T.

Trial, 9/19 to 9/21/17, at 37. According to the officer, as he moved closer to

Appellant, Appellant “took both hands and pushed forward, pushing me by my

upper body, trying to get away from me.” Id. at 38.

      Officer Epolito further testified that as Appellant’s back was to him, he

fired his Taser, but when prongs of the Taser struck Appellant, they were too

close together for the Taser to incapacitate Appellant. Id. at 39-40. According

to the officer, the shock from the Taser would have only caused pain, but not

a loss of function. Id. at 40.

      After attempting to use his Taser on Appellant, Officer Epolito stated

that he “shoved” Appellant, and Appellant stumbled forward and turned. Id.




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At that time, Appellant “grabbed ahold of the actual [T]aser that [the officer]

was in the process of deploying and held onto it with his hand.” Id.

      Officer Epolito described the ensuing struggle with Appellant as follows:

      At that point I grabbed ahold of [Appellant] and shoved him fully
      to the ground. Once we were on the ground he continued to try
      and wrestle that [T]aser away from me attempting to use the end
      of it as leverage to get it away. I was able to pin him to the ground
      with my knee and one arm while still trying to control the [T]aser
      with the hand that he was attempting to rip it out of. [Appellant]
      was attempting to throw punches at me. I was able to deflect
      them. He didn’t make any strong contact with my face. He was
      punching more towards my body. We continued to wrestle around
      for some period of time.

                                     ***

      . . . One -- the first back-up officer to arrive was, at the time he
      was my sergeant, Sgt. Rogers. He arrived on the scene, found the
      two of us fighting in the parking lot. He ran up, jumped in with us.
      Once he was able to get there and help me try and get control of
      [Appellant] I was able to break my hand away that [Appellant]
      was holding onto with the [T]aser. I was able to throw the [T]aser
      to the side. At that time I struck [Appellant] several times with a
      closed fist. Once he was struck several times and the second
      officer was also on top of him, we were able to get control of his
      hands and get him into handcuffs.

Id. at 40-41.

      During cross-examination of Officer Epolito, Appellant elicited testimony

that the officer “drive stunned” Appellant with the Taser during the struggle

on the ground. Id. at 58. The officer described a “drive stun” as “a secondary

activation of the [T]aser” after the prongs have deployed and as “reengaging

the [T]aser while placing the body of the [T]aser directly against the person

who’s being tased.” Id. Appellant also presented a log for the Taser that



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indicated it was engaged approximately ten times during the struggle. See

Ex. D-1.

      Before    considering Appellant’s     specific   arguments   regarding the

offenses, we restate the principles governing our review.

      “Whether sufficient evidence exists to support the verdict is a
      question of law; our standard of review is de novo and our scope
      of review is plenary.” We review the evidence in the light most
      favorable to the verdict winner to determine whether there
      is sufficient evidence to allow the jury to find every element of a
      crime beyond a reasonable doubt.

           In applying the above test, we may not weigh the evidence
           and substitute our judgment for the fact-finder. In addition,
           we note that the facts and circumstances established by the
           Commonwealth need not preclude every possibility of
           innocence. Any doubts regarding a defendant’s guilt may be
           resolved by the fact-finder unless the evidence is so weak
           and inconclusive that as a matter of law no probability of
           fact may be drawn from the combined circumstances. The
           Commonwealth may sustain its burden of proving every
           element of the crime beyond a reasonable doubt by means
           of wholly circumstantial evidence. Moreover, in applying the
           above test, the entire record must be evaluated and all
           evidence actually received must be considered. Finally, the
           finder of fact while passing upon the credibility of witnesses
           and the weight of the evidence produced, is free to believe
           all, part or none of the evidence.

Commonwealth v. Tejada, 107 A.3d 788, 792–93 (Pa. Super. 2015)

(citations omitted).

                         Aggravated and Simple Assault

      Appellant argues that the evidence was insufficient to convict him of

aggravated and simple assault.       Appellant argues that the testimony as a

whole failed to establish that he acted aggressively or violently. Appellant’s


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Brief at 30. Appellant insists that his actions were defensive and attempts “to

avoid the effects” of the multiple times Officer Epolito deployed or attempted

to deploy his Taser. Id. Appellant notes that Officer Epolito’s initial reports

of the incident indicated that Appellant only attempted to punch the officer

once. Id. at 27. In sum, Appellant claims that the Commonwealth failed to

establish that Appellant caused or intended to inflict bodily injury on the

officer.5

       Section 2702(a)(3) of the Crimes Code defines aggravated assault as

follows: “A person is guilty of aggravated assault if he . . . attempts to cause

or intentionally or knowingly causes bodily injury to any of the officers, agents,

employees or other persons enumerated in subsection (c), in the performance

of duty.” 18 Pa.C.S. § 2702(a)(3). The definition of protected “officers” under

Section 2702(a)(3) includes police officers. 18 Pa.C.S. § 2702(c)(1). Section

2701(a)(1) defines simple assault as: “a person is guilty of assault if he: (1)

____________________________________________


5 Appellant briefly refers to self-defense when discussing the sufficiency of the
evidence regarding aggravated and simple assault. Appellant’s Brief at 26.
We note, however, that self-defense is generally not available “to resist an
arrest which the actor knows is being made by a peace officer, although the
arrest is unlawful.” See 18 Pa.C.S. § 505(b)(1)(i). “[T]he only circumstance
under which the law will contemplate physical resistance to a police officer is
when the officer unnecessarily uses unlawfully excessive or deadly force which
triggers the right of self-defense.” Commonwealth v. Biagini, 655 A.2d
492, 499 (Pa. 1995). Although Appellant challenges the basis for an arrest,
he does not develop a claim that Officer Epolito used unlawful force to
accomplish an arrest. Therefore, Appellant’s passing reference to self-defense
when challenging the sufficiency of the evidence merits no relief.




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attempts to cause or intentionally, knowingly or recklessly causes bodily injury

to another[.]”6 18 Pa.C.S. § 2701(a)(1).

       Because both Sections 2702(a)(3) and 2701(a)(1) refer to attempts to

cause bodily injury, the Commonwealth need not show that a complainant

suffered an actual injury. Commonwealth v. Brown, 23 A.3d 544, 560 (Pa.

Super. 2011) (en banc). Instead, convictions under Sections 2702(a)(3) and

2701(a)(1) may be established be showing that a defendant had the specific

intent to cause bodily injury and took a substantial step toward causing bodily

injury. See id. “Bodily injury” means an “[i]mpairment of physical condition

or substantial pain.” 18 Pa.C.S. § 2301.

       Reviewing the record in a light most favorable to the Commonwealth as

the verdict winner, Officer Epolito testified that Appellant grabbed the officer’s

Taser, attempted to wrestle the weapon away from him, and attempted to

punch him several times. N.T. Trial at 40-41. Although the officer testified

that he managed to deflect Appellant’s punches and did not suffer bodily

injury, there was ample basis for the jury to conclude that Appellant attempted

to cause substantial pain. See Brown, 23 A.3d at 560.

                              Disarming a Police Officer




____________________________________________


6 This Court has noted that “[l]ogically speaking, a simple assault committed
against a police officer in the performance of his duties would satisfy the
elements of § 2702(a)(3).” Commonwealth v. Rahman, 75 A.3d 497, 501
(Pa. Super. 2013)

                                          - 18 -
J-A19021-18



      Appellant next argues that the conviction for disarming a police officer

must be vacated. According to Appellant:

      During the entire encounter, he never attempted to reach for the
      officer’s gun, and the alleged attempt to grab Officer Epolito’s
      [T]aser or [T]aser hand/arm occurred when the [the officer]
      pushed [him] to the ground and he was falling backwards and
      reached for the [o]fficer to try to stop from falling to the ground.
      The actions [he] took are best described as defensive or to avoid
      injury and cannot be labeled affirmative acts to remove the
      [T]aser.

Appellant’s Brief at 31. As with his challenge to the sufficiency of the assault

convictions, Appellant suggests that the Commonwealth failed to prove his

intent to remove the Taser from Officer Epolito.

      Section 5104.1(a) states:

      A person commits the offense of disarming a law enforcement
      officer if he:

         (1) without lawful authorization, removes or attempts to
         remove a firearm, rifle, shotgun or weapon from the person of
         a law enforcement officer or corrections officer, or deprives a
         law enforcement officer or corrections officer of the use of a
         firearm, rifle, shotgun or weapon, when the officer is acting
         within the scope of the officer’s duties; and

         (2) has reasonable cause to know or knows that the individual
         is a law enforcement officer or corrections officer.

18 Pa.C.S. § 5104.1(a).

      Instantly, the Commonwealth presented evidence that Appellant, while

attempting to punch the officer, “continued to try and wrestle that [T]aser

away from” Officer Epolito. N.T. Trial at 40. The jury was entitled to credit

that evidence and conclude that Appellant intended to remove the officer’s


                                     - 19 -
J-A19021-18



weapon. See Tejada, 107 A.3d at 792–93. Thus, Appellant’s claim warrants

no relief.

                                 Resisting Arrest

      Appellant’s final sufficiency of the evidence argument focuses on

resisting arrest. Appellant relies on the arguments he set forth in support of

his suppression claim to assert that Officer Epolito lacked probable cause to

arrest him. He cites Commonwealth v. Hock, 728 A.2d 943 (Pa. 1999), for

the proposition that a valid charge of resisting arrest requires that the

underlying arrest be lawful. Id. at 30. Alternatively, Appellant suggests that

his conduct did not rise to a sufficient level to sustain a conviction for resisting

arrest. Rather, Appellant maintains that he “engaged in a minor scuffle with

police.” Id. (citing Commonwealth v. Eberhardt, 450 A.2d 651 (Pa. Super.

1982); Commonwealth v. Rainey, 426 A.2d 1148 (Pa. Super. 1981)).

      Section 5104 defines the crime of resisting arrest as follows:

      A person commits a misdemeanor of the second degree if, with
      the intent of preventing a public servant from effecting a lawful
      arrest or discharging any other duty, the person creates a
      substantial risk of bodily injury to the public servant or anyone
      else, or employs means justifying or requiring substantial force to
      overcome the resistance.

18 Pa.C.S. § 5104.

      Section 5104 criminalizes two types of conduct intended to prevent a

lawful arrest: the creation of a substantial risk of bodily injury to the officer or

anyone else or means justifying or requiring a substantial force to overcome.

See 18 Pa.C.S. § 5104; Commonwealth v. Thompson, 922 A.2d 926, 928

                                      - 20 -
J-A19021-18



(Pa. Super. 2007) (noting that Section 5104 criminalizes resistance that

requires substantial force to surmount and rejecting the defendant’s claim that

the defendant’s “passive resistance” did not amount to resisting arrest);

Eberhardt, 450 A.2d at 652 (noting that Section 5104 contains “disjunctive”

provisions).

       In Rainey, this Court reversed a resisting arrest conviction when the

defendant squirmed and twisted in an attempt to “shake off” a police officer’s

arm.    Rainey, 426 A.2d at 1150.              In Eberhardt, this Court specifically

concluded that a defendant’s struggle did not create a substantial risk of bodily

injury even though an officer suffered a bruise on his arm during an extended

struggle.7 Eberhardt, 450 A.2d at 653.



____________________________________________


7  More specifically, the Eberhardt Court summarized the relevant facts
regarding the police’s attempts to arrest the defendant at his home after
finding the defendant lying under a bed on the second floor of his residence:

       After the officers removed [the defendant] from underneath the
       bed, he began to scuffle with them, claiming he was not Anthony
       Eberhardt. The scuffle proceeded into the living room and then
       downstairs into the dining room. During the scuffle, much
       furniture was overturned and one of the officers sustained a bruise
       on his forearm. [The defendant], finally breaking free, darted to
       the third floor of the home, exited through a window onto a porch,
       and successfully fled the area. Three days later, [the defendant]
       was located on the Northside of Pittsburgh and was placed under
       arrest, without incident, by police officers.

Eberhardt, 450 A.2d at 652. Despite the substantial efforts exerted to
overcome the defendant’s resistance, the Eberhardt Court confined its
analysis to whether the defendant’s conduct created a substantial risk of bodily
injury. Id.

                                          - 21 -
J-A19021-18



      By contrast, in Thompson, this Court affirmed a resisting arrest

conviction based on the fact that the defendant’s conduct—interlocking her

limbs with her husband’s limbs—required substantial force to overcome the

resistance. Thompson, 922 A.2d at 928. In Commonwealth v. Miller, 475

A.2d 145, 147 (Pa. Super. 1984), this Court affirmed a resisting arrest

conviction when the defendant attempted to free himself from two police

officers to assist his brother and later, as officers attempted to handcuff him,

the defendant “resisted their efforts by ‘straining’ against them with his arms

and the upper part of his body.” Miller, 475 A.2d at 147. The officers were

required to pick the defendant up and push him into police car. Id.

      It is well settled, however, that “a valid charge of resisting arrest

requires an underlying lawful arrest, which, in turn, requires that the arresting

officer possess probable cause.” Hock, 728 A.2d at 946 (citation omitted).

In Hock, the Pennsylvania Supreme Court reversed the defendant’s conviction

for resisting arrest because the defendant’s use of a single curse word did not

give rise to probable cause for disorderly conduct. Id. at 946 (noting that the

defendant’s use of a “single epithet, uttered in a normal tone of voice while

walking away from a police officer, did not alarm or frighten him, and there

were no bystanders”).

      Instantly,   we   have   previously   concluded   that   the   trial   court’s

suppression rulings regarding Officer Epolito’s pursuit, detention, and arrest

of Appellant were proper. The same reasoning applies here, and we discern




                                     - 22 -
J-A19021-18



no merit to Appellant’s contention that his resisting arrest conviction arose

from an illegal arrest.

       As to Appellant’s alternative argument, Appellant’s attempts to equate

his conduct to those in Rainey warrant no relief. Unlike the defendant, in

Rainey, who twisted and squirmed to “shake off” a police officer’s arm,

Appellant attempted to take a police officer’s Taser and punch him.

Appellant’s conduct presented both a substantial risk of injury to the officer

and required substantial force to overcome. See Miller, 475 A.2d at 147.

Thus, Appellant’s challenge to the conviction for resisting arrest fails.

       In sum, we conclude that Appellant’s challenges to the sufficiency of the

evidence are meritless.


                                         Weight


       Appellant next contends that the verdicts were against the weight of the

evidence.      In support, Appellant reproduces his post-sentence motion

preserving the claims and setting forth his arguments.8 Appellant’s Brief at

40-41. He then concludes that he is entitled to a new trial. Id. at 42.

       It is well settled that

____________________________________________


8 We note Appellant reproduces his post-sentence motion challenging the
weight of the evidence. See Appellant’s Brief at 40-41. Although the trial
court denied Appellant’s post-sentence motion challenging the weight of the
evidence, it did not author an opinion detailing its reasons. Moreover, the trial
court’s Rule 1925(a) opinion did not respond to the weight of the evidence
claim raised in Appellant’s Rule 1925(b) statement. In light of these factors,
we decline to find waiver of Appellant’s weight of the evidence claim.

                                          - 23 -
J-A19021-18


     A motion for a new trial based on a claim that the verdict is against
     the weight of the evidence is addressed to the discretion of the
     trial court. A new trial should not be granted because of a mere
     conflict in the testimony or because the judge on the same facts
     would have arrived at a different conclusion. Rather, “the role of
     the trial judge is to determine that ‘notwithstanding all the facts,
     certain facts are so clearly of greater weight that to ignore them
     or to give them equal weight with all the facts is to deny justice.’”
     It has often been stated that “a new trial should be awarded when
     the jury’s verdict is so contrary to the evidence as to shock one’s
     sense of justice and the award of a new trial is imperative so that
     right may be given another opportunity to prevail.”

     An appellate court’s standard of review when presented with a
     weight of the evidence claim is distinct from the standard of review
     applied by the trial court:

        Appellate review of a weight claim is a review of the exercise
        of discretion, not of the underlying question of whether the
        verdict is against the weight of the evidence. Because the
        trial judge has had the opportunity to hear and see the
        evidence presented, an appellate court will give the gravest
        consideration to the findings and reasons advanced by the
        trial judge when reviewing a trial court’s determination that
        the verdict is against the weight of the evidence. One of the
        least assailable reasons for granting or denying a new trial
        is the lower court’s conviction that the verdict was or was
        not against the weight of the evidence and that a new trial
        should be granted in the interest of justice.

     This does not mean that the exercise of discretion by the trial court
     in granting or denying a motion for a new trial based on a
     challenge to the weight of the evidence is unfettered. In describing
     the limits of a trial court’s discretion, we have explained:

        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 where the course pursued
        represents not merely an error of judgment, but where the
        judgment is manifestly unreasonable or where the law is not



                                    - 24 -
J-A19021-18


          applied or where the record shows that the action is a result
          of partiality, prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations and

emphasis omitted).

       Instantly, it is apparent that Appellant’s weight of the evidence claim

rests on the same arguments that he raised in support of his challenges to the

sufficiency of the evidence. Specifically, he alleges his arrest was unlawful,

he was justified in his attempt to flee from Officer Epolito, and his resistance

to Officer Epolito was not assaultive. Appellant’s Brief at 41. Appellant merely

suggests an interpretation of the trial evidence in a light most favorable to

him.

       However, nothing in the record suggests that Appellant’s interpretation

of the evidence was of such greater weight that it would deny justice.

Therefore, we discern no basis to disturb the trial court’s ruling denying

Appellant’s weight of the evidence claim. See Clay, 64 A.3d at 1054-55.


                               Jury Instruction


       Appellant next claims that the trial court erred in refusing to charge the

jury on the authority of police officers to make a lawful arrest for an accident

involving damage to an unattended vehicle. By way of background, Appellant

submitted requested jury instructions that included two points regarding

resisting arrest.   Requested Points for Charge, 9/21/17, ¶¶ 2(C)-(D).        Of

relevance to this appeal, Paragraph 2(C) read:



                                     - 25 -
J-A19021-18


      Police officers have authority to make a lawful arrest for “hit and
      run” otherwise known as leaving the scene of an accident after
      hitting an unattended vehicle when the accident occurs in the
      presence of an officer. Commonwealth v. Karl, 476 A.2d 908,
      909 (Pa. Super. 1984).

Id. at ¶ 2C. At the charging conference, the Commonwealth did not object to

Appellant’s request under Paragraph 2(C). N.T. Trial at 215.

      During closing arguments, Appellant asserted that Officer Epolito could

have issued Appellant a citation and should not have attempted to arrest

Appellant.   See id. at 307-08.     The Commonwealth responded that the

officer’s conduct was proper in light of Appellant’s flight from the scene. Id.

at 325.

      The trial court’s charge to the jury, however, did not include an

instruction requested in Paragraph 2(C). When the trial court asked for any

additions or corrections to its charge, Appellant specifically objected to the

failure to instruct on Paragraph 2(C) of his requested instructions. Id. at 360.

The trial court indicated that it reconsidered giving the requested instruction

under Paragraph 2(C), and acknowledged Appellant’s objection. Id.

      Appellant presently argues that he was entitled to the instruction he

requested under Paragraph 2(C). Appellant notes that he initially requested

the charge, and that the trial court appeared to accept his request. Appellant’s

Brief at 38. He further notes that he and the Commonwealth both argued

about whether an arrest for an accident involving damage to an unattended

vehicle was proper under the circumstances of the case. Id. Before charging




                                     - 26 -
J-A19021-18



the jury, however, the trial court denied Appellant’s request for the charge

and refused to issue it.9 Id.

       Our review is governed by the following principles:

       In reviewing a jury charge, we determine “whether the trial court
       committed a clear abuse of discretion or an error of law which
       controlled the outcome of the case.” We must view the charge as
       a whole; the trial court is free to use its own form of expression
       in creating the charge. “Our key inquiry is whether the instruction
       on a particular issue adequately, accurately and clearly presents
       the law to the jury, and is sufficient to guide the jury in its
       deliberations.” Moreover,

          it is well-settled that “the trial court has wide discretion in
          fashioning jury instructions. The trial court is not required
          to give every charge that is requested by the parties, and
          its refusal to give a requested charge does not require
          reversal unless the appellant was prejudiced by that
          refusal.”

Commonwealth v. Wise, 171 A.3d 784, 787-88 (Pa. Super. 2017) (citations

and brackets omitted), appeal denied, 186 A.3d 939 (Pa. 2018). A defendant

“may not claim entitlement to an instruction that has no basis in the evidence

presented during trial.” Commonwealth v. Hairston, 84 A.3d 657, 668 (Pa.

2014) (citation omitted).

       In Karl, this Court vacated a conviction for resisting arrest.       In that

case, the defendant struck another vehicle and drove away from the scene of

the accident before the police responded. Karl, 476 A.2d at 910. When the
____________________________________________


9 We note that the trial court and the Commonwealth have both argued that
a justification instruction was not necessary when responding to Appellant’s
claim. It is apparent, however, from Appellant’s trial objection and his Rule
1925(b) statement that Appellant intended to challenge the failure to issue
the requested Paragraph 2(C) instruction.

                                          - 27 -
J-A19021-18



police arrived at the scene, they began questioning the owner of the struck

vehicle, and the defendant returned to the scene on foot. Id. The owner of

the struck vehicle and another witness identified the defendant as the driver

of the striking vehicle. Id. The police chased the defendant and detained him

as he was about to enter his vehicle. Id. The police obtained his identification

and then placed him under arrest. Id. The police brought the defendant back

to the scene and attempted to place him in the backseat of a police cruiser,

but a struggle ensued. Id.

      In vacating the defendant’s resisting arrest conviction, this Court

reasoned:

      In this case there is no evidence to show that the arrest underlying
      the resisting arrest charge was lawful. In fact both parties and the
      trial court agree that the York police officers did not have the
      authority to make a lawful arrest for “hit and run”—that is, leaving
      the scene of an accident after hitting an attended vehicle—
      because the incident did not occur in the presence of the officers.
      Under such circumstances, the appellant could not, as a matter of
      law, be convicted under the provisions of § 5104 pertaining to
      lawful arrest.

Id. at 911 (emphasis added).

      Following our review, we discern no merit to Appellant’s contention that

he was entitled to the requested instruction based on Karl.        Contrary to

Appellant’s suggestion, Karl does not stand for the proposition that an officer

must personally observe the actual accident between the two cars.            Here,

unlike Karl, the evidence in this case showed that Officer Epolito received a

report that Appellant was the driver of the striking vehicle and observed


                                     - 28 -
J-A19021-18



Appellant fleeing the scene of an accident. Accordingly, Appellant failed to

establish that the evidence presented at trial required his requested

instruction.

         Moreover, although the trial court suggested that it would give the

requested instruction, Appellant failed to establish actual prejudice based on

the trial court’s failure. Therefore, Appellant has not demonstrated reversible

error.


                                  Evidentiary Issues


         Appellant’s final two issues challenge the trial court’s rulings denying his

motions in limine to (1) preclude the Commonwealth’s witnesses from

referencing the statement that Appellant was on parole and (2) exclude

evidence about the cocaine recovered after Appellant’s arrest based on an

improper chain of custody.

         The standards governing our review are as follows.

         Generally, a trial court’s decision to grant or deny a motion in
         limine is subject to an evidentiary abuse of discretion standard of
         review. In this context,

            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.

                                        - 29 -
J-A19021-18



Commonwealth v. Reese, 31 A.3d 708, 715-16 (Pa. Super. 2011) (en banc)

(citations omitted). The trial court’s evidentiary ruling may be affirmed on a

different basis that is apparent from the record.          Commonwealth v.

Johnson, 160 A.3d 127, 144 n.15 (Pa. 2017), cert. denied, 138 S. Ct. 508

(2017).

                                     Parole

       Appellant asserts that the trial court erred in denying his motion in

limine to preclude statements that he was on parole. A review of the record

reveals that there were two statements that referred to Appellant’s parole

status. First, as noted above, Officer Epolito received information from the

women at the accident scene that Appellant told them he was on parole before

fleeing.   N.T. Trial at 35.   Second, after Appellant was transported to the

hospital, Appellant told Officer Victor Morrison that following the accident, he

ran from the scene because he was on parole and had cocaine on him. Id. at

106.

       Appellant’s counsel, in support of his motion in limine, argued that the

statements referring to his parole status at the time of the accident constituted

hearsay and were prejudicial because it implicated his prior bad acts. Id. at

5-6. The Commonwealth responded that Officer Epolito could testify that the

female’s statement under the excited utterance or present sense impression

exceptions to the general rule against hearsay. Id. at 6. Additionally, the

Commonwealth asserted that Officer Morrison could testify as to Appellant’s

statement at the hospital as a party admission. Id. at 7. The Commonwealth

                                     - 30 -
J-A19021-18



asserted that the statements were relevant to establish motive for Appellant’s

flight from the accident scene. Id.

      The trial court, in its Rule 1925(a) opinion, focused on the statements

relayed to Officer Epolito. See Trial Ct. Op. at 12. The court suggested that

the reference to Appellant’s parole status was relevant because it was not

offered to show that Appellant was on parole, but to establish Officer Epolito’s

basis for pursuing Appellant. Id. The court also suggested that the testimony

merely established the officers’ and the witnesses’ states of mind at the time

of the incident. Id.

      On appeal, Appellant argues that the trial court abused its discretion in

permitting these references to his parole status, because his parole status was

not relevant to the charges.      Appellant’s Brief at 35.     Appellant further

contends that the trial court erred by failing to consider the prejudice resulting

from the reference to prior bad acts under Pa.R.E. 404(b). Id. at 35-36.

      This Court has stated:

      Due to its prejudicial impact, evidence indicating that the
      defendant had previously been convicted of other crimes generally
      is not admissible, especially when offered to prove the character
      of the defendant or action in conformity with that character.
      However, evidence of other crimes may be admissible when the
      need for such evidence outweighs its prejudicial effects, such as
      when offered to prove motive, intent, absence of mistake,
      common plan or scheme, or the identity of the person accused.

Commonwealth v. Moore, 715 A.2d 448, 451 (Pa. Super. 1998) (citations

omitted); see also Pa.R.E. 404(b)(2); Commonwealth v. Matthews, 783

A.2d 338, 340-42 (Pa. Super. 2001) (concluding trial counsel was ineffective

                                      - 31 -
J-A19021-18



for failing to object to testimony that a defendant spoke to his parole officer

because the prejudice outweighed the relevance of the Commonwealth’s

rebuttal evidence).

       Instantly, the references to Appellant’s parole status were relevant to

explain his flight from the accident scene and show motive for his attempts to

avoid the police.     See Commonwealth v. Mollett, 5 A.3d 291, 307 (Pa.

Super. 2010) (indicating evidence that a defendant was on parole may tend

to establish the defendant’s motive to avoid being captured).            Moreover,

having reviewed the record, we agree that the two references to Appellant’s

status as a parolee were not so unfairly prejudicial as to outweigh the

relevance of the evidence.10 Accordingly, we discern no basis to disturb the

trial court’s denial of Appellant’s motion to preclude the references to his

parole status.

                                   Chain of Custody

       Appellant lastly contends that the trial court erred in permitting the

Commonwealth to admit evidence regarding the testing of the cocaine

recovered from him after his arrest.           Appellant’s claim focuses on Jody B.

Royer, a former police officer in the Evidence Section of the Reading Police

Department.




____________________________________________


10Indeed, even if there were error, we would find it harmless based on the
overwhelming evidence of Appellant’s guilt. See Hairston, 84 A.3d at 671-
72.

                                          - 32 -
J-A19021-18



       By way of background to this claim, Appellant preserved his chain-of-

custody objection in a pretrial motion. The trial court held a pretrial hearing

at which Appellant called Lieutenant Kyle Rentschler, Royer’s supervisor.

Lieutenant Rentschler testified that Royer was responsible for retrieving

evidence from a temporary storage locker, logging it into the computer,

securing evidence, and transporting evidence to and from the Pennsylvania

State Police (PSP) laboratory for testing. N.T. Pretrial Hr’g, 4/12/17, at 9, 15.

       Appellant elicited evidence that Royer was convicted for stealing money

from evidence.11      An investigation into Royer began in 2014 when it was

discovered he failed to log and secure marijuana and had taken money seized

in connection with that case. Audits conducted in 2014 revealed that money

from several different cases was taken from the evidence room. Although the

audit did not show drugs were missing, the audit was conducted after the

evidence from Appellant’s case would have been processed through the

Evidence Section. It was undisputed that Royer was charged in 2014, pled

guilty to theft by unlawful taking in 2016, and was responsible for retrieving,

logging, and transporting the suspected cocaine taken from Appellant.

       The trial court reserved ruling on Appellant’s motion until trial. At trial,

the Commonwealth presented the following evidence regarding the chain of

custody. Officer Morar, who transported Appellant from the accident scene to

____________________________________________


11 Appellant notes that there was evidence presented at the pre-trial hearing
that Royer’s work station was unorganized and that he reacted poorly to
criticism.

                                          - 33 -
J-A19021-18



the hospital, testified he searched Appellant before placing him inside the

police wagon and recovered the plastic bags containing the suspected cocaine.

N.T. Trial at 88-89.     Officer Morar gave the suspected cocaine to Officer

Morrison at the hospital.        Officer Morrison photographed the suspected

cocaine, placed it in a bag, and sealed the bag. Id. at 106-112.

       After the evidence was transported to the Pennsylvania State Police

laboratory by Royer, the laboratory technician noted that there were no

indications that the seal on the drug evidence had been broken. Id. at 162-

163.     Testing   revealed   that   the   contraband    was   cocaine,   weighed

approximately four grams, and was contained in thirty-two plastic packets.

       The trial court, in its Rule 1925(a) opinion, explained its decision to deny

Appellant’s motion as follows:

       The chain of custody was not broken. The evidence presented in
       court showed that Officer Royer did not tamper with the evidence
       of this case and that all seals on the drug evidence were intact or
       properly opened in the course of official police or court business.
       There were no unauthorized breaks in the evidence packaging, all
       labels were in place, and all identification markings showed a
       consistent chain of custody from evidence seizure to testing to
       presentation in court.

Trial Ct. Op., 1/10/18, at 14.

       On appeal, Appellant asserts that the trial court erred in admitting the

evidence of the cocaine over his objection to the chain of custody. Appellant

argues that the Commonwealth failed “to establish that the items transported

to the PSP lab for testing in this case were in fact the ones possessed by




                                      - 34 -
J-A19021-18



Appellant on the date in question or that those substances were properly

stored by Royer.” Appellant’s Brief at 47.

      The principles governing our review are well settled.

      “To satisfy the requirement of authenticating or identifying an
      item of evidence, the proponent must produce evidence sufficient
      to support a finding that the item is what the proponent claims it
      is.” Pa.R.E. 901(a). Critically, “[p]hysical evidence may be
      properly admitted despite gaps in testimony regarding custody.”
      Furthermore, any issue regarding gaps in the chain of custody
      relate to the weight of the evidence, not its admissibility.

Commonwealth v. Witmayer, 144 A.3d 939, 950 (Pa. Super. 2016)

(citations omitted), appeal denied, 169 A.3d 27 (Pa. 2017).

      Instantly, the Commonwealth produced photographs of the contraband

taken shortly after Appellant’s arrest and elicited testimony establishing that

the bag containing the contraband was sealed by Officer Morrison and was

received by the PSP lab with the seal intact.       That evidence provided a

foundation to establish that the cocaine presented at trial was identical to the

contraband taken from Appellant at the time of his arrest and tested at the

PSP laboratory.   Although Appellant raised the possibility that Royer could

have tampered with the contraband, those allegations went to the weight—

not the admissibility—of the evidence as to whether Appellant was in

possession of cocaine at the time of his arrest.     See id.   Accordingly, we

discern no basis to conclude that the trial court abused its discretion when

overruling Appellant’s chain of custody objection.    See Reese, 31 A.3d at

715-16.



                                     - 35 -
J-A19021-18



      In sum, having reviewed Appellant’s claims, we find no basis to disturb

his conviction or to award a new trial.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/28/2018




                                     - 36 -
