J-S71030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    NICHOLAS MUNOZ

                             Appellant                 No. 668 EDA 2017


       Appeal from the Judgment of Sentence Entered December 22, 2016
                 In the Court of Common Pleas of Monroe County
                Criminal Division at No: CP-45-CR-0002396-2015


BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                         FILED JANUARY 12, 2018

        Appellant, Nicholas Munoz, appeals from the December 22, 2016

judgment of sentence imposing an aggregate six to twelve years of

incarceration for multiple counts of unlawful possession of a firearm,

endangering the welfare of a child, and possession of drug paraphernalia.1 We

affirm.

        The trial court summarized the pertinent facts:

              On August 27, 2015, at approximately 9:29 p.m., Pocono
        Mountain Regional Police Department Officer Robert Sheranko
        responded to a call at Dunkin Donuts in Mount Pocono,
        Pennsylvania, following a report of an intoxicated male and female
        with an infant child. Upon responding, Officer Sheranko failed to
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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 6105, 6106, 4304, and 35 P.S. § 780-113(a)(32),
respectively.
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      locate these individuals. Officer Sheranko returned to the Dunkin
      Donuts location at approximately 11:08 p.m. after receiving a
      second call. At that time, Officer Sheranko observed a light
      colored Nissan with the engine running and a person later
      identified as [Appellant] sitting in the driver’s seat. There was a
      passenger seated in the front seat and a young child secured in a
      car seat in the rear seat of the vehicle. [Appellant] appeared
      visibly impaired and under the influence of alcohol or a controlled
      substance. Officer Sheranko made contact with [Appellant] and
      asked him to submit to field sobriety tests. [Appellant] failed all
      tests. He was arrested and taken to Monroe County DUI Center.

            A glass marijuana bowl was observed in plain view on the
      vehicle center console by Officer Sheranko.         When Officer
      Sheranko returned to the Dunkin Donuts parking lot, he observed
      weapon cases in plain view located in the back seat of the vehicle.
      The officers decided to request a search warrant for the vehicle
      because of the glass marijuana pipe and the weapon cases they
      were able to see inside.       The vehicle was impounded and
      transported to Pocono Mountain Regional Police Headquarters. A
      search warrant was obtained and Officer Sheranko, Corporal Nero
      and Detective Boheim searched the vehicle on August 28, 2015.
      After finding several firearms in the trunk of the vehicle, Officer
      Sheranko, Corporal Nero and Detective Boheim realized the
      search was going to take longer than they expected, so they
      secured the vehicle.      Officer Sheranko, Corporal Nero and
      Detective Boheim conducted a full search of the vehicle on October
      29, 2015. The search yielded a total of 10 firearms throughout
      the vehicle, including one which was loaded in a lock box under
      the driver’s seat.

Trial Court Opinion, 3/30/17, at 2-3 (record citations omitted).

      Prior to trial, Appellant filed a motion in limine to exclude prior bad acts

evidence—a Carbon County, Pennsylvania DUI arrest that occurred shortly

before the offenses presently at issue. The trial court denied the motion, and

Appellant proceeded to a jury trial on October 11 and 12, 2016. The jury

found Appellant guilty of the aforementioned charges but not guilty of driving




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under the influence. Appellant filed this timely appeal, in which he presents

three questions for our review:

           1. Did the trial court commit error by permitting the
       Commonwealth to introduce [Pa.R.E.] 404(b) evidence while
       failing to provide defense counsel with adequate notice?

          2. Did the trial court commit error when it found that the
       Commonwealth’s providing discovery of offenses in another
       jurisdiction was sufficient to place defense counsel on notice that
       the Commonwealth intended to introduce [Pa.R.E.] 404(b)
       evidence in its case in chief?

          3. Should [Appellant] be found eligible for the Recidivism Risk
       Reduction Incentive Act, as the Court found that his current
       charges    made     him    ineligible  for   the    program     and
       Commonwealth v. Cullen-Doyle [164 A.3d 1239 (Pa. 2017)]
       recently found that there has to be a history of violent offenses in
       order to make him ineligible for the program?

Appellant’s Brief at 6.2

       Because Appellant’s first two issues challenge the trial court’s decision

to admit prior bad acts evidence, we will consider them together. We review

a trial court’s decision to admit or deny evidence for abuse of discretion or

error of law. Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012),

appeal denied, 62 A.3d 379 (Pa. 2013). “Thus our standard of review is very

narrow. To constitute reversible error, an evidentiary ruling must not only be

erroneous, but also harmful or prejudicial to the complaining party.” Id.

       Rule 404(b) of the Pennsylvania Rules of Evidence permits admission of

prior bad acts evidence in certain circumstances. Rule 404(b)(3) requires the


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2   We note with disapproval that the Commonwealth failed to file a brief.

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Commonwealth to provide the defense reasonable notice of its intent to

introduce such evidence:

            In a criminal case the prosecutor must provide reasonable
      notice in advance of trial, or during trial if the court excuses
      pretrial notice on good cause shown, of the general nature of any
      such evidence the prosecutor intends to introduce at trial.

Pa.R.E. 404(b)(3). “The purpose of this rule is to prevent unfair surprise, and

to give the defendant reasonable time to prepare an objection to, or ready a

rebuttal for, such evidence.    However, there is no requirement that the

“notice” must be formally given or be in writing in order for the evidence to

be admissible.” Commonwealth v. Lynch, 57 A.3d 120, 125–26 (Pa. Super.

2012) (internal citations and quotation marks omitted), appeal denied, 63

A.3d 1245 (Pa. 2013). We have held that sufficient notice exists where the

prior bad acts evidence was discussed during a preliminary hearing or where

the defense received the evidence in discovery.          Commonwealth v.

Stallworth, 781 A.2d 110, 118 n.2 (Pa. 2001); Commonwealth v.

Mawhinney, 915 A.2d 107, 110 (Pa. Super. 2006), appeal denied, 932 A.2d

1287 (Pa. 2007).

      In Lynch, the Commonwealth introduced evidence of sexual conduct

between the defendant and the victim that pre-dated the charged conduct.

Lynch, 915 A.2d at 109. The Commonwealth did not provide formal notice

of its intent to introduce such evidence, but the prosecutor claimed that he

discussed it with defense counsel and provided it in discovery. Id. at 109-10.




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The trial court admitted the evidence and this Court found no abuse of

discretion. Id. at 110.

      Appellant does not dispute that the Carbon County arrest was discussed

during the preliminary hearing and that the Commonwealth provided

discovery related to the Carbon County arrest. Nonetheless, he argues that

he had no notice of the Commonwealth’s intent to introduce evidence of the

Carbon County prosecution.       Appellant argues Lynch is distinguishable

because the defense received discovery of a course of conduct that took place

over a five-year period, and because the victim testified about the prior bad

acts at the preliminary hearing. Appellant’s Brief at 11. Appellant concludes:

            There was discussion of the pending case in Carbon County
      with respect to plea negotiations, determining what the plea offer
      in the other county was and whether one case could be run
      consecutive to the other. The Commonwealth did indicate that
      she wished to use the arrest in Carbon as evidence of a continuing
      course of conduct.

Id. We find Appellant’s argument unavailing. Lynch is directly on point and

controlling because there, as here, the prior bad acts evidence was discussed

at the preliminary hearing and produced in discovery.

      Similarly, Appellant argues that Mawhinney is distinguishable because

the pre-trial discussion of the prior bad acts evidence was more extensive than

it was in the instant case. Instantly, however, Appellant’s arrest in Carbon

County took place only one week before his arrest in the instant matter. Thus,

little information was available, but what was available was produced. The

record reflects that “[o]n April 22 [2016], Defense was provided with

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additional discovery related to that Carbon County incident, including the

incident reports, police criminal complaint, lab tests, DRE report, as well as an

additional discovery letter.” N.T. Trial, 10/11/16, at 5-6. Appellant’s attempt

to distinguish Mawhinney is unpersuasive.

       Appellant also complains that the Commonwealth did not provide a

formal, written notice of intent, but our case law makes clear that no such

formal notice is required. Lynch, 57 A.3d at 125–26. For all of the foregoing

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

admitting the prior bad acts evidence. Appellant’s first two arguments lack

merit.

       In his third argument, Appellant asserts that the trial court erred in

ruling that he is ineligible for the Recidivism Risk Reduction Incentive (“RRRI”)

program.3     Appellant failed to include this issue in his Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.           See Appellant’s

Pa.R.A.P. 1925(b) statement, 3/17/17. Nonetheless, we have held that “[a]

challenge to a trial court’s failure to impose an RRRI sentence implicates the

legality of the sentence.” Commonwealth v. Finnecy, 135 A.3d 1028, 1033




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3   61 Pa.C.S.A. §§ 4501-4512.




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(Pa. Super. 2016), appeal denied, 159 A.3d 935 (Pa. 2016).4 Thus, the issue

is not subject to waiver.

       An offender is eligible for RRRI if, among other things, he “[d]oes not

demonstrate a history of present or past violent behavior.”         61 Pa.C.S.A.

§ 4503 (“Eligible Offender” (1)). Instantly, the trial court deemed Appellant

ineligible based on his current offenses—endangerment of a child and unlawful

firearm possession. Appellant argues there is no history of violent behavior

because the sole basis for his ineligibility is his current offenses. He relies on

our Supreme Court’s recent opinion in Commonwealth v. Cullen-Doyle,

164 A.3d 1239 (Pa. 2017). There, the Supreme Court held that the trial court

erred in deeming the defendant ineligible for RRRI based on a single conviction

for burglary—the offense at issue in that case.      In other words, a “single,

present conviction for a violent crime does not constitute a history of violent

behavior” so long as the offense does not appear in § 4503’s list of


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4   This rule originated with this Court’s opinion in Commonwealth v.
Robinson, 7 A.3d 868, 870-71 (Pa. Super. 2010), wherein this Court held
that the trial court’s failure to make a determination as to the defendant’s
RRRI eligibility implicates the legality of the sentence. In Robinson, the trial
court ignored the issue. Instantly, in contrast, the trial court considered the
issue and found Appellant to be ineligible. We observe that one panel of this
Court has questioned the breadth and workability of the holding in Robinson.
Commonwealth v. Tobin, 89 A.3d 663, 670 (Pa. Super. 2014). Nonetheless
we must adhere to Robinson, as construed in Finnecy, unless and until we
receive further guidance from an en banc panel of this Court or our Supreme
Court.




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disqualifying offenses. Id. at 1244.5 Among the list of disqualifying offenses

is unlawful possession of a firearm under Chapter 61 of the Crimes Code. 61

Pa.C.S.A. § 4503 (“Eligible Offender” (2)).      The Cullen-Doyle Court noted

that burglary is not on the list of disqualifying offenses. Cullen-Doyle, 164

A.3d at 1243. Instantly, in contrast, Appellant has been convicted of multiple

violations of Chapter 61 of the Crimes Code (18 Pa.C.S.A. §§ 6105 and 6106)

for his unlawful possession of ten firearms. Thus, Cullen-Doyle is inapposite

and the trial court did not err in finding Appellant ineligible for RRRI.

       In summary, we have concluded that each of Appellant’s issues lacks

merit. We therefore affirm the judgment of sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/18




____________________________________________


5 Issue preservation was not in dispute in Cullen-Doyle. The Supreme Court
resolved the issue before it as a matter of statutory interpretation and did not
address Robinson and its progeny.

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