J-S25019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHANE LYNN BUHRMAN                         :
                                               :
                       Appellant               :   No. 1997 MDA 2017

           Appeal from the Judgment of Sentence December 22, 2017
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0008254-2016



BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                                 FILED JUNE 11, 2019

        Shane Lynn Buhrman (Appellant) appeals from the judgment of

sentence imposed after a jury found him guilty of possession with intent to

deliver (PWID) marijuana.1         Appellant argues that the trial court erred in

allowing certain police officer testimony at trial. Upon review, we affirm.

        Appellant was charged with one count of PWID following a controlled

drug buy with a confidential informant (CI). The case proceeded to a jury trial

on November 13, 2017, at which the Commonwealth presented undisputed

evidence that on August 2, 2016, Northern York County Regional Police Officer

Patrick Gartrell prepared the CI for the controlled drug buy by searching the

CI and providing him with $150. The officer transported the CI to a single-

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1   35 P.S. § 780-113(a)(30).
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family residence. The CI exited the car and “walked to the north side of the

residence[ ] and around the corner,” at which point Officer Gartrell lost sight

of him. See N.T. Trial, 11/13/17, at 144-146 (testimony of Officer Gartrell).

       Meanwhile, York County Area Regional Police Officer Michelle Miller was

in radio contact with Officer Gartrell and was conducting surveillance of the

rear porch of the same residence. Officer Miller was approximately 40 feet

from the porch and observed the CI walk to the rear of the residence and onto

the porch. Officer Miller saw Appellant exit the rear door of the house and

conduct a “transaction” with the CI, during which the CI received a plastic

baggie.   N.T. Trial, 11/13/17, at 161 (testimony of Officer Miller).      Officer

Miller took photographs of this encounter, 22 of which were shown to the jury.

These photographs depicted, variously, Appellant exiting the house; Appellant

and the CI talking, shaking hands, and sitting down on the porch; and the CI

“holding the plastic baggie that he purchased from” Appellant. Id. at 165-

166.

       Over Appellant’s objection, Officer Miller testified that she recognized

Appellant “from prior encounters.”        N.T. Trial, 11/13/17, at 102, 161.

Appellant argued that this testimony was not relevant because he had not

raised any issue of identification. Id. at 102. The trial court responded that

“[i]dentity is always an issue” and that the Commonwealth was entitled to “lay

a foundation” for Officer Miller’s identification of Appellant “without [Appellant]

first impeaching.”    Id. at 103.     However, the court agreed to limit the


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testimony by requiring the Commonwealth and the witness to use the

“neutral” term “encounter” to describe the prior interaction, and prohibiting

reference to any prior arrest or criminal history. Id. at 104. At trial, Officer

Miller did not further explain the “prior encounters,” but stated that during the

controlled buy, she saw a “distinctive physical characteristic that . . . got [her]

attention,” which she articulated as Appellant’s “distinguishable . . .

cauliflower” ears. Id. at 161-162, 167.

      Following the controlled buy, the CI returned to Officer Gartrell and gave

him the bag he had purchased from Appellant. N.T. Trial, 11/13/17, at 147.

Officer Gartrell testified that the length of time between the CI exiting the car

and returning with the bag was less than 5 minutes. Id. The parties stipulated

that the State Police tested the contents of the bag and determined that it

contained 6.4 grams of marijuana. Id. at 173.

      Officer Miller did not immediately arrest Appellant because Officer Miller

wanted “[t]o protect the identity of the informant.” N.T. Trial, 11/13/17, at

173 (testimony of Officer Miller). Approximately 2½ months later, however,

on October 17, 2016, Officer Miller met with Appellant at the York County Drug

Task Force Office. Officer Miller had attempted to contact Appellant at his

residence; upon learning that Appellant was not home, Officer Miller left her

telephone number with Appellant’s roommate, and Appellant subsequently

called Officer Miller and agreed to meet with her at the York County Drug Task

Force office. Id. at 119. Over Appellant’s objection, Officer Miller testified


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that during the meeting, Appellant stated “that he had been selling marijuana

to his friends to support his marijuana habit.” Id. at 108, 174.

        At trial, and just prior to opening statements, Appellant argued that his

statement to Officer Miller was inadmissible because it was made during plea

negotiations.     N.T. Trial, 11/13/17, at 108.    See also Pa.R.E. 410(a)(4)

(generally, statement made during plea discussions with prosecuting attorney

is not admissible). The trial court conducted a “mini-hearing.” Id. at 111.

Appellant pointed out that he previously cooperated with Officer Miller, which

resulted in the grade reduction of a then-pending criminal charge from a felony

to a misdemeanor. Id. at 115. Appellant asserted that it was reasonable for

him to have believed, when Officer Miller asked to meet with him and

confronted him with the August 2, 2016 controlled drug buy, that “he could

possibly . . . benefit himself” again. Id. at 117-120.

        Officer Miller described the sequence of events during her meeting with

Appellant.     Officer Miller first advised Appellant of his Miranda2 rights;

Appellant stated his belief “that marijuana should [not] be illegal” and that he

should not “be in trouble for it”; Appellant “said he sold to his friends to

support his own habits”; and finally, Officer Miller suggested that Appellant

cooperate with the Drug Task Force in exchange for favorable treatment. N.T.

Trial, 11/13/17, at 114-115. Officer Miller further testified that she does not



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

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decide whether to file or reduce charges, but instead “always consult[s] the

District Attorney’s Office.” Id. at 114.

      In deciding to allow Officer Miller’s testimony, the trial court found the

officer’s testimony credible, emphasized that Appellant was advised of his

Miranda rights before any mention of cooperating with the police, and stated

“that police officers do not negotiate plea agreements.” N.T. Trial, 11/13/17,

at 122-123. The court found that the police were not engaging in any plea

negotiation regardless of any prior cooperation by Appellant, and that if

Appellant believed otherwise, his belief was “manifestly unreasonable.” Id.

at 123.   The court thus allowed Officer Miller to testify about Appellant’s

statement at the York County Drug Task Force Office. Id. at 123-124.

      The Commonwealth’s case consisted of testimony from their two

witnesses, Officers Gartrell and Miller. Appellant did not call any witnesses or

present any evidence. After deliberating, the jury convicted Appellant of one

count of PWID. On December 22, 2017, the trial court sentenced Appellant

to 13 to 26 months of imprisonment. Appellant did not file a post-sentence

motion, but took this timely appeal. He subsequently complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) statement of errors complained of on

appeal. The trial court issued an opinion on December 5, 2018.

      On appeal, Appellant presents two issues for our review:

      I. WHETHER THE HONORABLE TRIAL COURT ERRED IN
      PERMITTING OVER OBJECTION THE COMMONWEALTH TO




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       PRESENT TESTIMONY FROM OFFICER HOOVER/MILLER [sic3]
       THAT SHE RECOGNIZED THE APPELLANT FROM PRIOR
       CONTACT/ENCOUNTER WHEN THE DEFENSE HAD NOT CROSS
       EXAMINED OR OTHERWISE ATTACKED THE CREDIBILITY OF HER
       IDENTIFICATION OF THE APPELLANT.

       II. WHETHER THE HONORABLE TRIAL COURT ERRED IN
       PERMITTING TESTIMONY OF DISCUSSIONS BETWEEN OFFICER
       HOOVER/MILLER AND THE APPELLANT REGARDING THE
       APPELLANT SELLING MARIJUANA TO OTHERS WHEN THE
       DISCUSSION WAS INITIATED REGARDING THE APPELLANT
       ASSISTING THE COMMONWEALTH IN OTHER INVESTIGATIONS,
       WITH SAID STATEMENTS BEING IN THE COURSE OF PLEA
       NEGOTIATIONS.

Appellant’s Brief at 4.

       Appellant first argues that the trial court erred, pursuant to Pa.R.E.

404(b), in admitting Officer Miller’s testimony that she had a “prior encounter”

with Appellant. See Pa.R.E. 404(b) (generally, evidence of other crimes or

acts is not admissible to prove person’s character or action in conformity

therewith).

       Preliminarily, we note that admissibility of evidence “is within the sound

discretion of the trial court and we will not disturb an evidentiary ruling absent

an abuse of that discretion.” Commonwealth v. Hicks, 156 A.3d 1114, 1125

(Pa. 2017). Pennsylvania Rule of Evidence 404(b) states:

            (1) Prohibited Uses. Evidence of a crime, wrong, or other act
       is not admissible to prove a person’s character in order to show
       that on a particular occasion the person acted in accordance with
       the character.


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3 Although Appellant references an “Officer Hoover,” no such person testified
at trial.

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           (2) Permitted Uses. This evidence may be admissible for
      another purpose, such as proving motive, opportunity, intent,
      preparation, plan, knowledge, identity, absence of mistake, or
      lack of accident. In a criminal case this evidence is admissible
      only if the probative value of the evidence outweighs its potential
      for unfair prejudice.

Pa.R.E. 404(b)(1)-(2) (emphasis added). Our Supreme Court has explained:

      Rule 404(b)(2) sets forth nine exceptions to Rule 404(b)(1)’s
      prohibition against the use of propensity evidence. The official
      Comment to Rule 404 explains that this list of exceptions is non-
      exhaustive. Pa.R.E. 404, Comment. As such, courts are not
      restricted to the nine exceptions expressly listed in Rule 404(b)(2)
      when exercising their discretion to permit the admission of
      evidence of prior crimes, wrongs and acts, so long as the evidence
      is used for purposes other than to prove character or a propensity
      to act in accordance with traits of character.

Commonwealth v. Johnson, 160 A.3d 127, 144 (Pa. 2017).

      [T]he “identity” exception under Rule 404(b)(2) requires proof
      that the bad acts and the crime on trial share “an almost uncanny
      similarity in all the details,” and be “so nearly identical in method
      as to earmark them as the handiwork of the accused . . . like a
      signature.”

Id. at 143 (citations omitted).

      Appellant challenges the admission of the following testimony from

Officer Miller:

           [COMMONWEALTH]: Okay.               Now in terms of your
           identification of [Appellant], did you recognize him from prior
           encounters?

           [OFFICER MILLER]: Yes, I did.

           Q. Are you aware of any distinctive physical characteristics
           that he had that got your attention?

           A. Yes.


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          Q. What is that?

          A. [Appellant] has distinguishable ears. You will be able to
          see in the pictures.

          Q. Okay. And did you notice those characteristics during the
          interaction from August 2nd of 2016?

          A. Yes.

N.T. Trial, 11/13/17, at 161-162 (emphasis added).

      Appellant claims that the term “encounters” unfairly and “clearly implied

prior police contact . . . which would lead a jury to believe that [he] had been

arrested before or otherwise engaged in criminal behavior.” Appellant’s Brief

at 8, 10. Appellant emphasizes that at the time Officer Miller testified about

a prior encounter, he had not questioned the credibility of any identification,

and thus identification was not at issue. We disagree with this argument.

      We first note that the trial court did not base admission of the

evidence — Officer Miller’s testimony that recognized Appellant “from prior

encounters” — on the “identity” exception in Rule 404(b)(2). Indeed, the trial

court emphasized that the Commonwealth could not make any allusion that

any prior encounter between Appellant and the officer was criminal in nature.

The court required the Commonwealth to use the “neutral” term “encounter,”

reasoning that the term “encounter” is “language that is used with average

citizens on the street all the time” and could have multiple connotations. N.T.

Trial, 11/13/17, at 102, 104. We add that the Commonwealth did not ask any

questions about the prior encounters, Officer Miller did not offer any further


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explanation of the encounters, and there was no other mention of the prior

encounters. The trial court opined: “To imply that simply because [Appellant]

had prior encounters with the Officer that he must have engaged in prior

criminal conduct would require a leap in logic that was not present in this

case.” Trial Court Opinion, 12/5/18, at 5.

      With respect to Appellant’s contention that he “had not questioned the

credibility of any identification,” he does not address nor dispute the trial

court’s observation that a defendant’s identity is “always an issue” in a

criminal case. See N.T. Trial, 11/13/17, at 103. Appellant does not point to

any authority, and we have not discovered any, requiring that a defendant

first raise an identification issue before the Commonwealth may present

evidence establishing the defendant’s identity. See also id. at 103 (trial court

reasoning that Commonwealth may lay foundation for Appellant’s identity

even if Appellant did not first raise issue of identity).

      Finally, we are not persuaded by Appellant’s assertion that Officer

Miller’s testimony was unfairly prejudicial. The trial court not only directed

the Commonwealth to reference the prior interaction as an “encounter,” but

also prohibited any reference to a prior arrest, case, or criminal history. The

phrase “prior encounters” was mentioned only once, and Officer Miller did not

elaborate. See N.T. Trial, 11/13/17, at 161. Instead, the questioning and

testimony focused on Officer Miller’s recognition of Appellant’s distinctive ears.

For these reasons, we conclude that the trial court did not abuse its discretion


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in allowing Officer Miller to testify about “prior encounters” to establish

Appellant’s identity. See Pa.R.E. 404(b)(1)-(2); Hicks, 156 A.3d at 1125.

      In his second issue, Appellant challenges the trial court’s admission of

Officer Miller’s testimony that during the meeting with Appellant at the York

County Drug Task Force Office, Appellant “stated that he had been selling

marijuana to his friends to support his marijuana habit.” N.T. Trial, 11/13/17,

at 174.

      Pennsylvania Rule of Evidence 410(b)(4) provides:

           (a) Prohibited Uses. In a civil or criminal case, evidence of
      the following is not admissible against the defendant who made
      the plea or participated in the plea discussions:

                                  *     *      *

               (4) a statement made during plea discussions with an
          attorney for the prosecuting authority if the discussions did
          not result in a guilty plea or they resulted in a later withdrawn
          guilty plea.

Pa.R.E. 410(b)(4) (emphasis added).

      Our Supreme Court stated:

      Not every statement making reference to a deal or omission of jail
      time is necessarily a plea discussion for purposes of this rule.
      First, the accused must exhibit an actual subjective expectation to
      negotiate a plea at the time of the discussion; and second, the
      accused’s expectation must be reasonable given the totality of the
      circumstances. [We have] we observed that “the very word
      negotiation posits the participation of two parties and not
      unilateral conduct[.]”

Commonwealth v. Burno, 154 A.3d 764, 784 (Pa. 2017) (citations omitted).

      In denying relief on this issue, the trial court emphasized that at the


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time Appellant gave the statement — that he sold marijuana to friends to

support his own marijuana use — Officer Miller had made no reference

“whatsoever” to any plea negotiation. See N.T. Trial, 11/13/17, at 123. The

trial court also found significant the fact that Appellant made the statement

after he was advised of his Miranda rights, in which he was made “aware of

the adversarial posture of the encounter.” Id. at 122-123. Finally, as stated

above, the trial court credited Officer Miller’s testimony that police officers do

not negotiate plea arrangements. Id. at 123.

      Based on the foregoing, we discern no abuse of discretion by the trial

court in determining that Appellant had no reasonable expectation that he and

Officer Miller were engaged in plea negotiations.      See Hicks, 156 A.3d at

1125; Burno, 154 A.3d at 784.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/11/2019




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