J-S67036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WALLACE HOLLEY,

                            Appellant                 No. 616 MDA 2015


          Appeal from the Judgment of Sentence December 18, 2012
             in the Court of Common Pleas of Cumberland County
               Criminal Division at No.: CP-21-CR-0001261-2012


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

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 29, 2015

        Appellant, Wallace Holley, appeals from the judgment of sentence

imposed on December 18, 2012 following his conviction by a jury of unlawful

possession of cocaine and possession with intent to deliver cocaine.1    On

appeal, he challenges the trial court’s admission of expert testimony that

Appellant was involved in drug trafficking rather than possession for

personal use based in part on text messages from Appellant’s cell phone.

We affirm.

        The relevant factual and procedural history is as follows.       On

September 4, 2011, Trooper Clint Long pulled over a Mitsubishi Eclipse that

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(16) and § 780-113(a)(30) respectively.
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was driving down Interstate 81 in the southbound left lane traveling five

miles an hour below the posted speed limit.

     Upon request, Ms. Cherry Carter, the driver, handed Trooper Long the

registration and insurance information that she obtained from the glove box.

When Trooper Long checked these documents, they came back to a Ford

F150 pick-up truck.     When Trooper Long ran the information for the

Mitsubishi Eclipse, it came back registered to a Mr. David Selig from

Hagerstown, Maryland, who was not in the vehicle at the time.

     Neither Ms. Carter nor Appellant, the passenger, could produce a

driver’s license; however, both provided Trooper Long with their names and

information.   After he did not come up with any information when he ran

their names through his in car computer system, Trooper Long called for

backup.

     Soon thereafter, Corporal Douglas Howell arrived on scene and spoke

with Appellant and Ms. Carter separately to ascertain whether their

descriptions of their activities were consistent.   Corporal Howell noticed

several differences between their stories regarding both the timeframe of

their travels and their destinations. He also noticed that while talking with

Ms. Carter, she appeared very nervous.

     Because neither of their identifying information would come up on the

computer, Corporal Howell temporarily detained both Ms. Carter and

Appellant and asked them to come to the police barracks so that they could

check for outstanding warrants.    Corporal Howell patted down Appellant

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prior to his being transported to barracks and found about two or three

hundred dollars in his pocket; however, he did not confiscate the money.

        After confirming that both Appellant and Ms. Carter were who they had

claimed to be, and that there were no outstanding warrants for their arrest,

the troopers told them that they could leave.

        After Appellant and Ms. Carter left the barracks, the troopers

conducted a search, pursuant to a search warrant, of the Mitsubishi Eclipse.

During the search, the troopers found a Rubbermaid plastic container filled

with trail mix in the back seat behind the driver’s seat. Inside the container,

Trooper Long found 11.4 grams of cocaine. The cocaine was packaged as

sixty-seven individual packages containing rocks of crack cocaine within a

larger bag. The troopers did not find any type of drug paraphernalia or any

means of ingesting the cocaine in the vehicle.

        During the search, the troopers also found two cell phones in the

vehicle. Trooper Long obtained a search warrant and identified the phones

as belonging to Appellant and Ms. Carter. A search of Appellant’s cell phone

revealed    text   messages,      which    Corporal   Howell   later   testified   were

consistent with drug trafficking.2




____________________________________________


2
    The content of these text messages does not appear in the certified record.



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      Appellant was charged with possession of a controlled substance and

possession with intent to distribute a controlled substance (PWID).       On

October 16, 2012, Appellant proceeded to a jury trial.

             Cherry Carter was present and testified at the trial. She
      testified that she drove [Appellant] to Baltimore, Maryland from
      Hagerstown, Maryland on September 3, 2011, where [Appellant]
      picked up the cocaine. She then drove [Appellant] back to
      Hagerstown where [Appellant] made a drug sale. [Ms. Carter]
      next drove [Appellant] to Chambersburg, Pennsylvania where
      [Appellant] made additional sales of cocaine. [Ms. Carter] stated
      she agreed to drive [Appellant] around in exchange for cocaine.
      [Appellant] was supposed to have a large sale of cocaine in
      Chambersburg, but it did not occur, so they left Chambersburg
      around 7:00 a.m. on the morning of September 4, 2011, after
      which they were pulled over by Trooper Long. After they were
      pulled over, [Ms. Carter] testified that [Appellant] took the
      cocaine out of his pocket and placed it in the bowl of trail mix.

(Trial Court Opinion, 06/04/15, at 5-6 ) (footnote omitted).

      Corporal Howell was also present at trial and testified as an expert in

drug investigation and drug trafficking. (See N.T. Trial, 10/16/12, at 93).

During his direct examination, the following exchange took place:

      Q:    So you are familiar with seeing the type of communications
      for drug trafficking as far as text messages. Correct?

      A:    Absolutely.

      Q:    Do you always know who typed up the message?

      A:    No. In fact, most of the time you don’t. Unless you are
      doing a hard wire.

      Q:    So how are you able to figure out that this is a drug text
      rather than a non-drug text? Do you have to look at the
      context?

      [Defense Counsel]: Objection, Your Honor. If I may approach?


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      THE COURT: Wait. He is testifying as an expert and he is
      talking about how do you know the difference. He is not talking
      about the contents of any message. So you can answer that
      question.

(Id. at 107-08).

      The court recessed and outside of the presence of the jury heard

arguments from counsel regarding admission of the text messages.           (See

id. at 109-15). During that discussion, the following exchange took place:

      THE COURT: Now I am just asking you hypothetically, he has
      been recognized as an expert in drug investigation and drug
      trafficking, can he not be asked hypothetically did you review all
      of the text messaging on the phone that was identified as
      [Appellant’s]? What is your opinion as to the content of that?

      [The Commonwealth]: I would be happy to do it that way.

      THE COURT: Is this drug trafficking in your opinion. And you
      cross-examine him. There is no specifics in there that talk about
      drug trafficking or anything else. He is an expert witness.

      [Defense Counsel]: I understand that, Your Honor. But I still
      object to any reference to any of the text messages contained.

(Id. at 111). Ultimately the trial court ruled “you will not get into any of the

specifics of the texts of what he said, but that he examined the traffic on this

phone and he can render an opinion. I will give you the broadest latitude

about cross-examination.” (Id. at 115).

      Corporal Howell’s direct examination continued in the presence of the

jury with the following exchange:

      Q:     Corporal, did you have an opportunity to review the traffic
      of texts on Commonwealth Exhibit Number 14 on [Appellant’s]
      cell phone?

      A:    I have.

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        Q:    In your expert opinion, did you find texts that were
        consistent with drug trafficking?

        A:    Some of them, yes.

        Q:    And many more that weren’t?

        A:    Yes.

(Id. at 115-16).

        On October 17, 2012, the trial court charged the jury prior to

deliberation.    (See N.T. Trial, 10/17/12, at 157-77).      The court did not

include, nor did Appellant request, any specific jury instruction regarding

inadmissible evidence as the basis of expert opinions.        (See id.).   After

deliberation, the jury found Appellant guilty of both counts.      (See id. at

178).

        On December 18, 2012, Appellant was sentenced to a period of

incarceration of not less than five nor more than ten years.         (See N.T.

Sentencing, 12/18/12, at 9).

        On April 8, 2015, Appellant timely filed his notice of appeal.3 Pursuant

to the trial court order, Appellant timely filed a concise statement of errors

complained of on appeal. See Pa.R.A.P. 1925(b). The trial court entered an

opinion on June 4, 2015. See Pa.R.A.P. 1925(a).

____________________________________________


3
  On September 18, 2013, the trial court granted Appellant’s petition to
reinstate appellate rights. (See Order, 9/18/13). Appellant timely filed his
notice of appeal on October 18, 2013. On December 11, 2013, this Court
dismissed Appellant’s appeal for failure to comply with Pa.R.A.P. 3517. See
Pa.R.A.P. 3517.     After a hearing on March 6, 2015, the PCRA court
reinstated Appellant’s right to file a direct appeal. (See Order, 3/13/15).



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        Appellant raises one question for our review:

        [1.] Did the trial court err by allowing the Commonwealth’s
        expert to give an opinion that some of the text messages on
        [Appellant’s] cell phone were consistent with drug trafficking,
        thereby allowing in evidence of electronic communications that
        were not authenticated and/or was inadmissible hearsay[?]

(Appellant’s Brief, at 3 (most capitalization omitted)).

        Appellant   claims   that    the   trial   court   erred   in   permitting    the

Commonwealth’s expert, Corporal Howell, to give an expert opinion that

Appellant was involved in drug trafficking rather than merely possession for

personal use, which opinion was based, in part, on text messages from

Appellant’s cell phone that were consistent with drug trafficking.                   (See

Appellant’s Brief, at 8-13).        Appellant argues that this testimony allowed

evidence of electronic communications, the text messages which Corporal

Howell referred to as a basis of his opinion, which were not authenticated

and which constituted inadmissible hearsay. (See id.).

        The Commonwealth contends that the question of whether the

evidence was properly authenticated or was inadmissible hearsay evidence is

not triggered in this matter, where the content of the text messages was

never admitted.       (See Commonwealth’s Brief, at 8-10).                 Rather, the

Commonwealth claims that the text messages were one of many indicia that

formed the basis of Corporal Howell’s expert opinion that Appellant was

engaged in drug trafficking rather than possession for personal use. (See

id.).    Furthermore, the Commonwealth argues that even if this Court



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determines that admission of testimony regarding the text messages was an

error, such error was harmless. (See id. at 11). We agree.

      Preliminarily, we note that this current question does not trigger an

authentication analysis under the standard set forth in Commonwealth v.

Mosley, 114 A.3d 1072 (Pa. Super. 2015), and Commonwealth v. Koch,

39 A.3d 996 (Pa. Super. 2011), affirmed by an equally divided court, 106

A.3d 705 (Pa. 2014) because here, the content of the text messages was not

admitted into evidence.      See Koch, supra at 1005 (holding that the trial

court abused its discretion in admitting text messages because there was no

evidence that tended to substantiate that the appellant wrote the drug

related texts); Mosley, supra at 1081-84 (concluding that the trial court

erred in admitting the transcript of text messages into evidence where there

was no evidence proving the appellant had authored the text messages).

      Our standard of review concerning a trial court’s admission of evidence

is well settled. “Admission of evidence is within the sound discretion of the

trial court and will be reversed only upon a showing that the trial court

clearly   abused    its   discretion.”      Mosley,   supra   at   1081   (citing

Commonwealth v. Lilliock, 740 A.2d 237 (Pa. Super. 1999)). “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.”   Commonwealth v. Kinard, 95 A.3d

279, 284 (Pa. Super. 2014) (citations and quotation marks omitted).

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      An expert witness is permitted to offer an opinion that is based on

otherwise inadmissible evidence if those types of facts are reasonably relied

on by experts in that field. See Pa.R.E. 703. The commentary to Rule 703

further states that when an expert bases his or her opinion on evidence

which would otherwise be inadmissible, “the trial judge upon request, or on

the judge’s own initiative may, instruct the jury to consider the facts and

data only to explain the basis for the expert’s opinion, and not as

substantive evidence.” Id., Comment.

            Once expert testimony has been admitted, the rules of
      evidence then place the full burden of exploration of facts and
      assumptions underlying the testimony of an expert witness
      squarely on the shoulders of opposing counsel’s cross-
      examination. It is thus the burden of opposing counsel to
      explore and expose any weaknesses in the underpinnings of the
      expert’s opinion.

In re D.Y., 34 A.3d 177, 183 (Pa. Super. 2011), appeal denied, 47 A.3d 848

(Pa. 2012) (citation omitted).

      Here, the trial court did not abuse its discretion in permitting Corporal

Howell to render an opinion that Appellant was involved in drug trafficking

rather than merely possession where Corporal Howell based that opinion on

the presumptively inadmissible content of Appellant’s cell phone.         See

Commonwealth v. Glover, 582 A.2d 1111, 1113-14 (Pa. Super. 1990)

(reasoning that record of drug sales was relevant factor indicating possible

drug transaction).




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      Moreover, even if admission of Corporal Howell’s opinion was error,

any error would have been harmless under the circumstances of this case.

      Harmless error exists if the record demonstrates either: (1) the
      error did not prejudice the defendant or the prejudice was de
      minimis; or (2) the erroneously admitted evidence was merely
      cumulative of other untainted evidence which was substantially
      similar to the erroneously admitted evidence; or (3) the
      properly admitted and uncontradicted evidence of guilt was so
      overwhelming and the prejudicial effect of the error was so
      insignificant by comparison that the error could not have
      contributed to the verdict.

Commonwealth v. Hairston, 84 A.3d 657, 671-72 (Pa. 2014), cert. denied

sub nom. Hairston v. Pennsylvania, 135 S. Ct. 164 (2014).

             [N]ot all error at trial . . . entitles a [defendant] to a new
      trial, and [t]he harmless error doctrine . . . reflects the reality
      that the accused is entitled to a fair trial, not a perfect trial[.]
      Moreover, it is well established that an error which, when viewed
      by itself, is not minimal, may nonetheless be determined
      harmless if properly admitted evidence is substantially similar to
      the erroneously admitted evidence.

Mosley, supra at 1080 (citations and quotation marks omitted).

      In Mosley, this Court held that the trial court erred in admitting

evidence of text messages on Mosley’s cell phone where the messages were

not clearly authenticated because there was no evidence that Mosley was

the author of the messages and because the messages constituted hearsay.

See id. at 1081-86. However, this Court concluded that even without the

improperly admitted text messages, there was relevant, cumulative evidence

indicative of drug activity that had been properly admitted at trial.




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      [T]here was independent evidence showing that Mosley threw
      bags of drugs from a car he was driving, while being pursued by
      the police. Mosley’s possession of two cell phones and U.S.
      currency on his person was consistent with drug activity, while
      the weight and packaging of the drugs was indicative of
      possession with the intent to deliver.

Id. at 1080 (citations omitted).   The Court concluded that “if we discount

the improperly admitted text messages . . . we conclude that there is

substantially similar evidence showing that Mosley possessed the drugs with

the intent to deliver.” Id. at 1086.

      Here, similarly, the properly admitted and uncontradicted evidence

that Appellant possessed cocaine, and did so with the intent to deliver, was

so overwhelming and the prejudicial effect of Corporal Howell’s testimony

regarding the text messages was so insignificant by comparison that the

error could not have contributed to the verdict.   See Hairston, supra at

671-72; see also Mosely, supra at 1086.

      At trial, Trooper Long testified that he pulled over the Mitsubishi

Eclipse after it was traveling under the speed limit in the left lane of

Interstate 81. (See N.T. Trial, 10/16/12, at 49). He further testified that

upon request, neither Appellant nor Ms. Carter could produce a driver’s

license and the registration and insurance which Ms. Carter provided him did

not match the Mitsubishi Eclipse, but rather, were for a Ford F150 pick-up

truck. (See id. at 51-53). Trooper Long also testified that after a search of

the Mitsubishi Eclipse, pursuant to a search warrant, that the troopers found

11.4 grams of cocaine packaged in sixty-seven individual packages.      (See


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id. at 66-71, 137-43). The troopers did not find any drug paraphernalia or

means of ingesting the cocaine in the vehicle. (See id. at 117-18).

      Furthermore, the Commonwealth introduced testimony of Ms. Carter.

      . . . She testified that she drove [Appellant] to Baltimore where
      [Appellant] picked up cocaine. She then drove [Appellant] back
      to Hagerstown and Chambersburg where [Appellant] made drug
      sales. [Ms. Carter] and [Appellant] left Chambersburg around
      7:00 a.m. in the morning, where they were pulled over by
      Trooper Long. After they were pulled over, [Ms. Carter] testified
      that [Appellant] took the cocaine out of his pocket and placed it
      in the bowl of trail mix, indicating the cocaine was [Appellant’s].
      The bowl was found in close proximity to [Appellant]. Corporal
      Howell also testified that no crack pipes or other modes of
      ingestion were found in the vehicle, indicating the cocaine was
      for delivery and not for personal use. Also, Corporal Howell
      stated that the way the cocaine was packaged meant it was for
      sale and not personal use.

(Trial Ct. Op., at 12).

       Therefore, we conclude that even if the trial court erred in permitting

Corporal Howell to opine that Appellant was involved in drug trafficking

rather than purely possession, which opinion was based on several indicia of

drug trafficking including the text messages on Appellant’s phone, such error

was harmless.     See Mosley, supra at 1080-86.       Accordingly, Appellant’s

issue does not merit relief.

      Judgment of sentence affirmed.

      Judge Bowes joins the Memorandum.

      Judge Panella concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2015




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