J-S13003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    STEPHEN BARRY-GIBBONS,

                             Appellant                No. 11 WDA 2018


      Appeal from the Judgment of Sentence Entered September 29, 2017
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-02-CR-0003148-2016


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 17, 2019

        Appellant, Stephen Barry-Gibbons, appeals from the judgment of

sentence of 27½-55 years’ imprisonment, imposed after he was convicted of

criminal conspiracy to commit possession with the intent to deliver and

numerous other offenses. We affirm in part and vacate in part.

        We adopt Appellant’s comprehensive statement of the case:1

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 The Commonwealth’s brief does not contain a counter-statement of the case,
so we assume it substantially agrees with Appellant’s rendition of the factual
and procedural history of this matter. See Pa.R.A.P. 2112 (“The brief of the
appellee … need contain only a summary of argument and the complete
argument for [the] appellee, and may also include counter-statements of any
of the matters required in the appellant’s brief as stated in Pa.R.A.P. 2111(a).
Unless the appellee does so, or the brief of the appellee otherwise challenges
the matters set forth in the appellant’s brief, it will be assumed the appellee
is satisfied with them, or with such parts of them as remain unchallenged.”).
J-S13003-19


     The Commonwealth charged Appellant, by criminal information,
     with one count, respectively, of criminal conspiracy to commit
     possession with the intent to deliver, 18 Pa.C.S.[] § 903[;]
     possession with the intent to deliver (93 grams of heroin), 35 P.S.
     § 780-113(a)(30)[;] possession with [the] intent to deliver (763
     grams of cocaine), 35 P.S. § 780-113(a)(30)[;] possession of drug
     paraphernalia, 35 P.S. § 780-113(a)(32)[;] possession of a
     controlled substance (93 grams of heroin), 35 P.S. § 780-
     113(a)(16)[;] possession of a controlled substance (763 grams of
     cocaine), 35 P.S. § 780-113(a)(16)[;] persons not to possess
     firearms, 18 Pa.C.S.[] § 6105(c)(2)[;] and receiving stolen
     property, 18 Pa.C.S.[] § 3925(a). These charges stemmed from
     allegations that the City of Erie Police recovered five baggies of
     suspected heroin weighting [sic] 93 grams, ten baggies of
     suspected cocaine weighing 763 grams, stolen handguns, a digital
     scale, a hydraulic press, plastic baggies and a manual press from
     Appellant’s residence at 1055 West 30th Street, Upstairs, Erie,
     Pennsylvania on May 19, 2016[,] after the execution of a search
     warrant.

     On February 3, 2017, Appellant filed an Omnibus Pre-Trial Motion,
     in which Appellant asked … the trial court to suppress the evidence
     seized, as [violating] the Federal and State Constitutions, due to
     a lack of probable cause to obtain a warrant. On April 13, 2017,
     Appellant filed a Supplemental Omnibus Pre-Trial Motion. The trial
     court held a suppression hearing, and denied Appellant’s motions.

     On July 26, 201[7], the Commonwealth filed a motion to introduce
     evidence of Appellant’s prior bad acts under Pa.R.E. 404(b).
     Specifically, the Commonwealth sought to introduce the police’s
     observation of an alleged drug transaction between Appellant and
     Ashley Dumas on the day that the police obtained the warrant.
     Ms. Dumas gave a video-recorded statement to police, which
     resulted in Appellant being charged for this separate transaction
     at Docket 3146 of 2016; however, Ms. Dumas died of a drug
     overdose prior to trial. The Commonwealth sought to admit
     testimony that the officers observed Appellant leave 1055 West
     30th Street and travel to a nearby area where the female entered
     the passenger seat. Also, that upon exiting the vehicle, the female




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       was found in possession of heroin, and the officers observed
       Appellant immediately returning to 1055 West 30th Street.[2]

       The case proceeded to trial against Appellant and his co-
       defendant, Franzora Smith, and the Commonwealth presented the
       testimony of Andre Collins. N.T. Trial, 8/14/17, at 31. Collins
       testified that his parents own rental properties, including 1055
       West 30th Street, Erie, Pennsylvania, and he helps manage those
       properties. Id. at 31-[3]2. Collins testified that Appellant signed
       a lease for this property in July of 2015. Id. at 32-[3]3. The
       original term of the lease was six months, but it became month to
       month. Id. at 34. Collins testified that Appellant was current on
       his rent through May of 2016, but later clarified that Appellant had
       paid through April of 2016. Id. at 34, 48. Collins did not know if
       anyone else resided there with Appellant. Id. at 34. Collins
       primarily collected the rent from Appellant, but a young lady
       sometimes paid him instead. Id. at 34-[3]5. Appellant never
       notified Collins that the woman lived there, which the lease
       required. Id. at 35.

       On cross-examination, Collins admitted that Appellant had
       provided him with thirty days written notice of his intent to
       terminate in March or April of 2016. Id. at 37-[3]8. Collins
       admitted that Appellant did have other people pay the rent on his
       behalf when Appellant was not in the area. Id. at 38. Collins also
       stated that he saw two or three other individuals going into or out
       of Appellant’s apartment two weeks prior to the police’s search of
       the apartment. Id. at 41-[4]2, 49. Appellant was not with them.
       Id. at 49. He further testified that he received complaints that
       other individuals that he had evicted from another property were
       entering    Appellant’s   second    story    apartment     without
       authorization. Id. at 45. These individuals were accessing that
       apartment with keys. Id. at 46.

       Next, Leiah Smith testified that, in May of 2016, she was in a
       relationship with Appellant[,] and was arrested with him and Mr.
       Smith on the same charges. Id. at 51. Ms. Smith testified that
       the Commonwealth allowed her to go into the [accelerated
       rehabilitative disposition (ARD)] program in exchange for her
       testimony. Id. at 52. Ms. Smith testified that she met Appellant
       two months prior in Detroit, Michigan[,] and had never been to
____________________________________________


2The trial court granted the Commonwealth’s request to introduce this prior
bad acts evidence. See Appellant’s Brief at 43; Commonwealth’s Brief at 9.

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     Erie prior to May of 2016. Id. She arrived in Erie with Appellant
     two or three days prior to her arrest. Id. at 53. Appellant told
     Ms. Smith that he operated a number of different businesses,
     including cleaning and transportation services and an online
     business, and had a dealer’s license for automobiles. Id. at 54.
     She came to Erie to help him drive a car that he had purchased
     back to Detroit and to meet his mother. Id. Appellant’s cousin,
     Yusef, came with them. Id. at 53.

     When they arrived in Erie, they went to the apartment on 1055
     West 30th Street, and Mr. Smith was there. Id. at 55. She stayed
     overnight there throughout her stay and never saw drugs in the
     house. Id. at 56. However, she did see a gun and a rifle. Id.
     On May 19, 2016, the day of the arrest, Appellant told her that
     they were going to pick up the car, but would first stop at his
     mother’s to do laundry. Id. at 57. Ms. Smith packed all of her
     belongings into the trunk of Appellant’s rental car, including her
     purse, and got into the front passenger seat. Id. They stopped
     at CVS because Appellant had to do a money transfer. Id. at 58.

     During her time in Erie, she did notice that Appellant had a large
     sum of cash, but did not know the amount. Id. at 59. She
     admitted that, upon their arrest, the police discovered $14,000.00
     in her purse in the trunk of the car, but testified that she did not
     put the money there. Id. She testified that Appellant had access
     to the trunk after she put the purse there. Id.

     On cross-examination, Ms. Smith explained that her trip to Erie
     with Appellant did not raise any red flags to her. Id. at 62. She
     believed Appellant needed a sum of money to purchase the car.
     Id. When she was arrested, some of her personal toiletries were
     at 1055 West 30th Street. Id. at 63. She testified that Yusuf also
     stayed with them at that apartment. Id. at 64. Appellant stayed
     with them one night in the apartment and stayed elsewhere
     another night. Id. at 65. She could not recall if Mr. Smith stayed
     there or if he was merely in and out. Id. She recalled two or
     three other people visiting the apartment while she stayed there.
     Id. at 66. She heard female voices in the apartment when she
     stayed there. Id. at 77. Ms. Smith never saw drugs or guns in
     the vehicle during her trip. Id. at 66. She first saw a gun leaning
     up against the wall in the apartment on the day she was arrested,
     but never saw Appellant or Mr. Smith in possession of that gun.
     Id. at 68, 72. During cross, she testified she only saw one gun.
     Id. at 74. Ms. Smith admitted that she sat in jail for three months


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     and was only released when she agreed to testify for the
     Commonwealth. Id. at 71.

     [Sergeant] Michael Chodubski from the Erie Police Department
     testified that he conducted surveillance on 1055 West 30th Street
     and developed two persons of interest from his observations, Juan
     and J.B. Id. at 83. [Sergeant] Chodubski identified J.B. in a
     photograph exiting the second story apartment carrying two cell
     phones. Id. at 86; Commonwealth’s Exhibit 7. [Sergeant]
     Chodubski stated that most people involved in drug trafficking
     have multiple cell phones. Id. at 86. When [Sergeant] Chodubski
     later arrested J.B., he identified him as Franzora Smith. Id. at 87.

     On the day of Appellant’s arrest, [Sergeant] Chodubski and other
     members of the Vice Unit followed Appellant most of the day. Id.
     at 88. At one point, Appellant went to the 3400 block of Cascade
     [Street] where he parked on the side of the street and a white
     female approached the car, got into the car, and exited a couple
     of minutes later. Id. at 90. When Appellant left, the detectives
     approached the woman, and the police recovered five grams of
     heroin from her. Id. at 91. The police obtained a search warrant
     for 1055 West 30th Street[,] and served the warrant
     approximately three hours later. Id.[] Thereafter, Appellant and
     Mr. Smith were arrested. Id. at 92.

     On cross, [Sergeant] Chodubski testified that he received a
     complaint about a male named Juan, who he knew to be
     Appellant, from an individual in March of 2016, which commenced
     the investigation. Id. at 93. In March, April and May of 2016, the
     police did not conduct any controlled purchases involving
     Appellant. Id. at 96-[9]7. [Sergeant] Chodubski only saw
     Appellant in Erie on two occasions during the investigation: April
     20, 2016 and May 19, 2016. Id. at 97-[9]8. On April 20, 2016,
     the police surveilled Appellant but did not receive any information
     of evidentiary value. Id.[] [Sergeant] Chodubski admitted that
     neither he[,] nor any of the detectives surveilling Appellant[,] saw
     him with any drugs or guns on May 19, 2016. Id. at 100. They
     also never saw him secrete any item from his vehicle to his
     residence or from his residence back to the vehicle. Id. The
     detective also testified that he conducted a videotaped interview
     of the white female at the police station prior to securing the
     search warrant.       Id. at 108-[0]9.       [Sergeant] Chodubski
     confirmed that a judge signed the warrant at 7:13 p.m. Id. at
     109. [Sergeant] Chodubski admitted that he had never seen
     anyone sell drugs out of the house at 1055 West 30th Street. Id.

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     at 113. When confronted with a police report stating that the
     white female was videotaped at 8:17 p.m., [Sergeant] Chodubski
     changed his testimony to say that they interviewed her before
     getting the warrant, but did not record her statement until he
     obtained the warrant. Id. at 117. [Sergeant] Chodubski admitted
     that he did not obtain any fingerprint o[r] DNA evidence for any
     of the items seized from the residence. Id. at 120. He also
     admitted that he did not know who lived in the apartment, but
     said Mr. Smith and Appellant had access to it. Id. at 131.

     After the cross-examination, the trial court agreed with the
     Commonwealth that defense counsel’s questioning had opened
     the door to the Commonwealth[’s] presenting more testimony
     about the white female. Id. at 121-[2]6. Specifically, the trial
     court permitted this re-direct because trial counsel questioned the
     timing of the warrant and the credibility of the officer as to when
     he received the information. Id. at 127. The trial court stated
     that it was only reasonable to give the officer the opportunity to
     explain why and how he did what he did. Id. After cross-
     examination was completed, the trial court recessed for the day.

     On re-direct, [Sergeant] Chodubski identified the search warrant
     and affidavit of probable cause, and the trial court introduced this
     into evidence.     [N.T. Trial, 8/15/2017,] at 24.       [Sergeant]
     Chodubski explained that, after making their observations of the
     white female, the police took her back to the station, interviewed
     her, and used that information in the affidavit of probable cause
     to obtain the warrant. Id. at 25. The police then faxed the
     warrant to the district judge’s office and then took her recorded
     statement. Id. [Sergeant] Chodubski said that the police
     recorded the statement for later use at trial. Id. Due to the
     woman’s death, her statement could not be played to the jury.
     Id. [Sergeant] Chodubski also testified that the police sent the
     five grams of heroin that she purchased in the car to the State
     Police Crime Lab, who confirmed that the baggie contained heroin.
     Id. at 26.

     [Sergeant] Chodubski also testified that Appellant made a post-
     arrest statement that he was aware of three handguns and one
     rifle in the residence. Id. at 27. Appellant said one of the guns
     was not functional and that the handguns came from a female
     whose boyfriend had been arrested and she did not want them
     anymore. Id. at 27. Appellant said she gave them to him to hide.
     Id. [Sergeant] Chodubski produced a State Police Report that all


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J-S13003-19


        of the recovered guns were               functional.   Id.   at   28;
        Commonwealth’s [Exhibit] 15.

        [Sergeant] Chodubski also testified that two controlled buys were
        performed with J.B. on May 3, 2016 and May 11, 2016[,] and that
        the police used pre-recorded buy money in those transactions.
        Id. at 29. When the police arrested Mr. Smith on May 19, 2016,
        they uncovered approximately $1[,]500.00, which contained $40
        of the pre-recorded buy money. Id.

        On re-cross, [Sergeant] Chodubski confirmed that he had no prior
        relationship with the white female and that he did not have any
        personal knowledge as to whether she had the heroin on her
        person prior to going to Appellant’s car. Id. at 31. [Sergeant]
        Chodubski admitted that this was not a controlled buy and that
        the woman avoided charges by agreeing to cooperate with the
        police. Id.

        Defense counsel then asked about Appellant’s statement to police
        and why Appellant only partially completed and did not ultimately
        sign the Miranda[3] waiver form.        Id. at 31.    [Sergeant]
        Chodubski stated that Appellant said he did not want to go on
        video for the statement but wanted to provide cooperation. Id.
        [Sergeant] Chodubski said the police did not memorialize their
        discussion with him by video or written statement. Id. at 32.

        Next, Detective Matthew Benacci testified that he was contacted
        to assist with taking Appellant into custody on May 19, 2016. Id.
        at 37. The detectives followed Appellant’s car into CVS, and
        Appellant went into the store. Id. at 38. [Detective] Benacci took
        Ms. Smith and Yusef Musafir into custody. Id. He took a cell
        phone from Ms. Smith’s person, and two cell phones from Musafir.
        Id. at 39. Appellant had left the key to the car in the vehicle, and
        it was attached to a key ring with multiple other keys. Id. at 40.
        The keys … opened the exterior door to 1055 West 30th Street.
        Id. at 40, 61. However, there was not a key to the actual
        apartment door. Id. at 61. Appellant had left four cell phones in
        the vehicle and two more were recovered on his person. Id. at
        40-[4]1. [Detective] Benacci also recovered Ms. Smith’s purse in
        the trunk, which contained a brown shopping bag with
        $14[,]005.00 inside. Id. at 42.


____________________________________________


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

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     After participating in these apprehensions, [Detective] Benacci
     went back to 1055 West 30th Street to conduct further
     surveillance. Id. at 43. [Detective] Benacci had been told that
     J.B. had been outside of the residence talking on a cell phone. Id.
     at 43-[4]4. He observed J.B.[’s] being picked up by a silver sedan,
     and the police stopped the vehicle and arrested him. Id. at 44.
     A search of Mr. Smith revealed sandwich baggies containing
     cocaine and heroin and $1[,]534.00, including some controlled
     buy funds. Id. They also recovered two cell phones and two sets
     of keys on his person to the apartment. Id. at 45-[4]6. The
     sandwich baggies contained numerous corners of small doses. Id.

     [Detective] Benacci also participated in the search of 1055 West
     30th Street. Id. at 47. The officers announced the warrant and
     then entered the apartment with Mr. Smith’s keys. Id. at 47.

     Next, Lieutenant Mike Nolan from the Erie Police Department
     testified as an expert in drug investigations, specifically,
     possession with the intent to deliver.       Id. at 69.    First,
     [Lieutenant] Nolan testified as a fact witness that he arrested
     Appellant inside the CVS store, while Appellant sat at a Western
     Union terminal. Id. at 74-[7]5. [Lieutenant] Nolan opined that
     Western Union is a common way for drug dealers to transfer
     money out of town because identification is not required. Id. at
     75. At the time of his arrest, Appellant had $619 in cash on his
     person. Id. at 77.

     The police submitted the baggies of suspected drugs found on Mr.
     Smith’s person to the State Police Crime Lab, and the lab
     confirmed that one contained 2.34 grams of heroin and the other
     contained 1.96 grams of powder cocaine. Id. at 79.

     [Lieutenant] Nolan was also present for the search of the
     apartment. Id. at 83. The officers discovered a Mosberg tactical
     .22 rifle leaning against the corner of the room in the front parlor
     of the apartment. Id. at 87. The[y] also discovered a clock in
     the parlor, which when the cover was removed, contained
     suspected narcotics. Id. at 88-[8]9. Specifically, there was a
     baggie of marijuana (8.75 grams), two baggies of heroin (9.24
     grams), and three baggies of crack cocaine (32.16 grams). Id.
     at 89-90. These quantities and their packaging [were] consistent
     with bulk purchase. Id. at 91. Officers also found two digital
     scales, a screw press, and a bottle of creatinine in the kitchen.
     Id. at 91-[9]3. In the kitchen drawer, the officers also found a
     baggie containing 7.92 of lidocaine (a topical sedative) and 9.79


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J-S13003-19


        grams of a non-controlled sleep aid. Id. at 93-[9]4. [Lieutenant]
        Nolan opined that these substances were consistent with cutting
        agents. Id. at 94-[9]5. The officers also found a razor blade with
        white powder on it, which is consistent with the packaging of small
        quantities of drugs. Id. at 95. They also found inositol powder,
        baking soda, acetone, vinyl gloves and a respirator, which was
        consistent with trying to increase the quantity of drugs for sale.
        Id. at 97.

        Officers also searched bags of garbage on the apartment’s back
        deck and found hundreds of sandwich baggies with both [corners]
        cut off. Id. at 98. They also found vacuum seal bags consistent
        with the transport of large quantities of drugs. Id. at 99. In a
        bedroom that did not appear to be utilized, the officers found a
        hydraulic press. Id.[] Further, the officers found a prescription
        bottle for Appellant in the bathroom’s medicine cabinet, and four
        pieces of mail addressed to Appellant at that address, including a
        Time Warner cable bill. Id. at 100. On the back of one envelope
        in the apartment, the officers found notations consistent with an
        owe sheet. Id. at 101; Exhibit 55. After unscrewing a piece of
        trim beneath the bathroom sink, [Lieutenant] Nolan uncovered
        three handguns wrapped in a T-shirt and a knotted baggie
        containing a large amount of loose ammunition. Id. at 104. There
        was also another plastic bag [containing] a large number of other
        suspected bags of cocaine and heroin. Id. at 104-[0]5.

        The officers determined that one of the firearms had been
        reported stolen “a few months prior” in a burglary. Id. at 105-
        [0]6. Some of the baggies under the sink contained non-
        controlled substances; however, 33.82 grams of heroin was
        recovered there as well. Id. at 106-[0]7. They also recovered
        113.48 grams of crack cocaine and 615 grams of powder cocaine.
        Id. at 107. [Lieutenant] Nolan characterized the quantity of drugs
        as indicative of dealing, not using, and opined that the street value
        of all the cocaine (760 grams) was $76,000.00. Id. at 108. The
        street value of all of the heroin recovered (43 grams) was
        $8[,]000.00. Id.[4]

____________________________________________


4   Appellant notes that,
        Lieutenant Nolan testified that the total weight of the heroin in the
        apartment was 43 grams, not 93 grams. Even the total heroin



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       [Lieutenant] Nolan testified that, when [Sergeant] Chodubski was
       speaking with Appellant after the arrest, [Lieutenant] Nolan
       walked into the interview room. Id. at 112. Appellant looked up
       at him and said, “Good job, Mike, good fucking job.” Id.
       Appellant then put his head down and shook his head. Id.
       Appellant also told the officers that he had sent a brick of cocaine
       and 100 grams of heroin to Erie and that it arrived two days before
       he got to Erie. Id. at 113. He said he hid three guns, although
       someone else had brought them to the apartment. Id.

       The assistant district attorney asked the [lieutenant] if Appellant
       made any proposals to them about wanting to work for the Erie
       Police Department. Id. at 114. According to [Lieutenant] Nolan,
       Appellant said that he would help them get some “bigger fish” but
       he could not go to the county prison. Id. at 114. [Lieutenant]
       Nolan explained to the jury that Appellant did not want to be
       charged at that time because he would go to the county prison on
       a parole violation and people would learn that he had been
       arrested. Id. at 114. Appellant’s counsel asked for a sidebar, due
       to [Lieutenant] Nolan’s reference to Appellant’s parole status. Id.
       at 115. Counsel asked for a mistrial due to the prejudicial
       reference to Appellant’s criminal history. Id. After much back
       and forth between the parties, the trial court decided to deny the
       request for a mistrial but … tell the jury to disregard any of the
       statement Appellant made to [Lieutenant] Nolan in the interview
       room that would have given any indication that the men knew


____________________________________________


       weight calculated from the September 15, 2017 [Pennsylvania
       State Police] Lab Report was 44.07 grams. Nevertheless, the
       sentencing sheets prepared in Appellant’s case provided
       guidelines for possession with the intent to deliver heroin between
       50-100 grams, specifically, 93. This resulted in an [Offense
       Gravity Score (OGS)] of 10, rather than 8[,] for possession with
       [the] intent to deliver (heroin) and an invalidly inflated OGS for
       conspiracy to deliver heroin as well. However, this claim to the
       calculation was not raised by trial counsel at [the] time of
       sentencing or in a post-sentence motion.
Appellant’s Brief at 48 n.2 (internal citations omitted). We agree that
Appellant has waived this claim, as whether the court used an incorrect
offense gravity score is a challenge to the discretionary aspects of a sentence.
See Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012).


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J-S13003-19


     each other. Id. at 125. The [c]ourt then gave an instruction. Id.
     at 127.

     On cross-examination, [Lieutenant] Nolan testified that he had no
     evidence Appellant actually used Western Union when he was
     seated at the terminal. Id. at 139. [Lieutenant] Nolan also
     testified that Appellant had keys on his key ring for both the
     exterior and interior doors of the second floor apartment. Id. at
     144. [Lieutenant] Nolan admitted that the pieces of mail found in
     the apartment for Appellant were from 2015[,] and two others
     were from March 24 and 28 of 2016. Id. at 150. Further, the
     date on the pill bottle was August 25, 2014. Id. at 151.
     [Lieutenant] Nolan reiterated that no controlled buys were
     conducted with Appellant during the investigation. Id. at 155.
     [Lieutenant] Nolan did testify, however, that they did some
     controlled buys with a person named Dee during the course of the
     investigation. Id. at 159. The parties stipulated that the three
     handguns were stolen, and then the Commonwealth rested. Id.
     at 171-[7]2.

     The defense called Taleshia Johnson. Ms. Johnson testified that
     she lived at 1150 East 20th Street, in Erie, Pennsylvania[,] in May
     of 2016[,] and was eight and one-half months pregnant with
     Appellant’s child at the time. Id. at 174. She had planned for
     Appellant to attend her baby shower on May 21, 2016. Id. at 175.
     Appellant came into town that week and stayed with her on two
     nights. Id. at 178. He had a key to her residence. Id. at 178.
     She recalled him staying with her on the night prior to his arrest.
     Id. at 179.

     After deliberation, the jury convicted both men of all counts. N.T.
     Trial, 8/16/17, at 46-51. The [c]ourt excused the jury and then
     found both men guilty of persons not to possess. Id. at 54-[5]5.

     On September 29, 2017, the trial court sentenced Appellant to an
     aggregate sentence of twenty-seven and one-half to fifty-five
     years’ imprisonment. Three days after sentencing, Appellant’s
     privately retained attorney filed a petition to withdraw. On
     October 31, 2017, the trial court granted counsel’s request to
     withdraw. Trial counsel never filed a direct appeal despite
     acknowledging in his petition to withdraw that Appellant desired
     an appeal.

     A flurry of docket activity occurred thereafter, culminating in
     Appellant[’s] filing a timely first [Post Conviction Relief Act
     (PCRA), 42 Pa.C.S. §§ 9541-9546,] petition, which was docketed

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       by the Clerk of Courts on November 20, 2017. Therein, Appellant
       sought the reinstatement of his direct appeal rights and the
       appointment of counsel. By [o]rder dated December 5, 2017, the
       PCRA court reinstated Appellant’s direct appeal rights, but denied
       Appellant’s request for appointment of counsel until Appellant filed
       the necessary documentation establishing his eligibility.

       Appellant filed a timely pro se [n]otice of [a]ppeal with the
       accompanying financial information establishing his indigenc[e].
       Id. at 44. The [c]ourt did not appoint counsel, but directed that
       Appellant could proceed [in forma pauperis] and must file a
       [c]oncise [s]tatement within 21 days. Appellant filed a pro se
       [c]oncise [s]tatement, and the trial court filed an opinion.

       On May 29, 2018, the Superior Court entered an [o]rder
       acknowledging that Appellant had requested counsel, the trial
       court had previously permitted counsel to withdraw, and the trial
       court had not appointed counsel believing it lacked jurisdiction.
       The Superior Court remanded the record for a Grazier[5] hearing
       and retained jurisdiction. By [o]rder dated July 3, 2018, the trial
       court appointed the Public Defender’s Office, and the undersigned
       entered her appearance in the Superior Court.

       The undersigned filed a Petition for Continued Remand to File
       Counseled Concise Statement and Preparation of Amended
       [Pa.R.A.P.] 1925(a) Opinion, which the Superior Court granted.
       Appellant filed this counseled [c]oncise [s]tatement on August 21,
       2018, and the trial court ordered the transmission of the record
       without filing a further opinion.

Appellant’s Brief at 11-26 (some internal citations omitted).

       Appellant presents the following issues for our review:
       1. Did the Commonwealth present insufficient evidence to sustain
       Appellant’s conviction for receiving stolen property where the
       evidence does not establish the element that Appellant knew the
       guns were stolen or believed they were probably stolen?

       2. Did the trial court commit an abuse of discretion when it denied
       Appellant’s request for a mistrial as the Commonwealth’s witness
       made reference to Appellant[’s] being on parole and where the


____________________________________________


5   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

                                          - 12 -
J-S13003-19


      language of the trial court’s instruction did not adequately address
      or cure the prejudice?

      3. Did the trial court commit an abuse of discretion when it
      determined that Appellant’s cross-examination of [Sergeant]
      Chodubski opened the door to the previously excluded out-of-
      court statements of Ashley Dumas?

      4. Did the trial court impose illegal sentences for simple
      possession at Counts Five and Six where these convictions merged
      with the sentences for possession with the intent to deliver at
      Counts Two and Three of the information?

Appellant’s Brief at 10 (unnecessary capitalization omitted).

      Before we delve into Appellant’s issues, we address the trial court’s

failure to file an amended Rule 1925(a) opinion.      “The Rules of Appellate

Procedure make the filing of a 1925(a) opinion mandatory…. The purpose of

this rule is to provide the appellate court with a statement of reasons for the

order so entered in order to permit effective and meaningful review of the

lower court decisions.” Commonwealth v. Hood, 872 A.2d 175, 178 (Pa.

Super. 2005) (citations omitted). Moreover, “[o]rdinarily, the remedy for non-

compliance with [Rule] 1925(a) is a remand to the trial court with directions

that an opinion be prepared and returned to the appellate court.” Id. (citation

omitted). Nevertheless, this Court has stated that “the lack of a Rule 1925(a)

opinion is not always fatal to our review, because we can look to the record

to ascertain the reasons for the order.” Id. (citation omitted). Further, this

Court has declined to remand for the preparation of a Rule 1925(a) opinion

where the issue on appeal raises a question of law because, “in deciding an

issue of law, an appellate court need not defer to the conclusions of the trial

court.” Cooke v. Equitable Life Assur. Soc. of U.S., 723 A.2d 723, 727

                                     - 13 -
J-S13003-19



(Pa. Super. 1999) (declining to remand for the preparation of a Rule 1925(a)

opinion addressing a contract interpretation issue because “[t]he reasoning of

the trial court is not crucial to our determination of contract interpretation”);

see also Commonwealth v. Haughwout, 837 A.2d 480, 487 n.11 (Pa.

Super. 2003) (“We note that the trial court never issued a specific ruling or

opinion addressing Haughwout’s constitutional claims. However, in deciding

issues of law, an appellate court need not defer to the conclusions of the trial

court. Accordingly, the lack of a trial court opinion in the instant case does

not hamper our review.”) (citation omitted).

      Here, Appellant raises claims challenging the sufficiency of the evidence,

the denial of his request for a mistrial, the admissibility of certain evidence,

and the legality of his sentence.     The trial court’s reasoning for denying

Appellant’s request for a mistrial and allowing certain evidence to be admitted

at trial are apparent from the trial transcript. Further, sufficiency and legality

of sentencing claims constitute questions of law, for which this Court does not

need to defer to the conclusions of the trial court. See Commonwealth v.

Fennell, 105 A.3d 13, 15 (Pa. Super. 2014) (“Issues relating to the legality

of a sentence are questions of law[.]”) (citation omitted); Commonwealth

v. Teems, 74 A.3d 142, 144 (Pa. Super. 2013) (“A challenge to the sufficiency

of the evidence is a question of law, subject to plenary review.”) (citation

omitted). Consequently, the trial court’s failure to prepare an amended Rule

1925(a) opinion does not inhibit our review, and we therefore proceed to the

merits of Appellant’s arguments.

                                     - 14 -
J-S13003-19



                                    Issue 1

      In Appellant’s first issue, he asserts that “[t]he Commonwealth

presented insufficient evidence to sustain [his] conviction for receiving stolen

property where the evidence does not establish as a matter of law that

Appellant knew the guns were stolen or believed they were probably stolen.”

Appellant’s Brief at 28 (emphasis omitted). He therefore asks us to vacate

his judgment of sentence for this offense. Id. at 34.

      We apply the following standard of review to sufficiency claims:
      A challenge to the sufficiency of the evidence is a question of law,
      subject to plenary review. When reviewing a sufficiency of the
      evidence claim, the appellate court must review all of the evidence
      and all reasonable inferences drawn therefrom in the light most
      favorable to the Commonwealth, as the verdict winner. Evidence
      will be deemed to support the verdict when it establishes each
      element of the crime charged and the commission thereof by the
      accused, beyond a reasonable doubt. The Commonwealth need
      not preclude every possibility of innocence or establish the
      defendant’s guilt to a mathematical certainty. Finally, the trier 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.

Teems, 74 A.3d at 144-45 (citation omitted).

      Receiving stolen property is statutorily defined as follows:
      (a) Offense defined.--A person is guilty of theft if he
      intentionally receives, retains, or disposes of movable property of
      another knowing that it has been stolen, or believing that it has
      probably been stolen, unless the property is received, retained, or
      disposed with intent to restore it to the owner.

      (b) Definition.--As used in this section the word “receiving”
      means acquiring possession, control or title, or lending on the
      security of the property.




                                     - 15 -
J-S13003-19



18 Pa.C.S. § 3925. “Based upon this definition, this Court has identified the

elements of the crime … to be: (1) intentionally acquiring possession of the

movable property of another; (2) with knowledge or belief that it was probably

stolen; and (3) the intent to deprive permanently.”       Commonwealth v.

Robinson, 128 A.3d 261, 265 (Pa. Super. 2015) (en banc) (citations

omitted).

      Here, Appellant solely contests whether the Commonwealth established

the second element, i.e., that he had “guilty knowledge of the crime.”

Appellant’s Brief at 28-29. He directs us to Robinson, wherein we explained:
      Importantly, the Legislature expressly defined the required mental
      state [for receiving stolen property] as “knowing” or “believing.”
      Because the Legislature excluded mental states such as
      recklessness, negligence, or naïveté about the stolen status of the
      property, those mental states are insufficient. This reasoning is
      consistent with the common recognition that penal statutes are to
      be strictly construed. Thus, courts may not hold that a less
      culpable mental state satisfies a criminal statute where the statute
      demands proof of the more culpable mental state.

Robinson, 128 A.3d at 265 (internal citations omitted).

      Moreover, we observe that,
      [a] fact-finder may infer guilty knowledge that property was stolen
      based upon the recency of the theft, the place or manner of
      possession, alterations to the property indicative of theft, the
      defendant’s conduct or statements at the time of arrest (including
      attempts to flee apprehension), a false explanation for the
      possession, the location of the theft in comparison to where the
      defendant gained possession, the value of the property compared
      to the price paid for it, or any other evidence connecting the
      defendant to the crime.

In Interest of P.S., 158 A.3d 643, 651 (Pa. Super. 2017) (citing Robinson,

128 A.3d at 268)). Significantly, possession of stolen property, by itself, is


                                     - 16 -
J-S13003-19



not sufficient to prove guilty knowledge.        Robinson, 128 A.3d at 269

(citations omitted).

      In the case sub judice, the Commonwealth argues that “the nature of

the stolen items and the circumstances in which the items were found must

be considered.” Commonwealth’s Brief at 3. It contends that “[f]irearms,

while not overly difficult to obtain, are a regulated item that one typically does

not obtain in a casual way. Beyond the inherent nature of firearms, here, the

firearms were found in a residence from which Appellant was conducting the

sale of illegal drugs.” Id. It points to the testimony of Lieutenant Nolan, who

described the high value of firearms in the drug trade and shared that “drug

dealers like to have guns taken in as [a] trade for drugs. We see it all the

time and most of the guns we [have] recovered from drug dealers are stolen.”

Commonwealth’s Brief at 4 (quoting Lieutenant Nolan’s testimony at N.T.

Trial, 8/15/2017, at 109-10).         The Commonwealth argues that this

“information lends context to the surrounding circumstances the jury

considered in this case[,]” and “the fact that two stolen firearms and two other

firearms were recovered also tends to show that [Lieutenant] Nolan’s

experience specifically applied in this case, as multiple stolen firearms lends

credence to the argument that the firearms are used as currency.” Id. at 5.

The Commonwealth also adds that “the jury … had the ability to consider the

explanation given by … Appellant of how the firearms came into his

possession.”    Id.    It recounts that “[Sergeant] Chodubski testified that

Appellant explained he obtained the firearms from a female acquaintance’s

                                     - 17 -
J-S13003-19



boyfriend who had been arrested.         Specifically, [Appellant] indicated to

[Sergeant] Chodubski that the female told him she didn’t want them anymore

and that she gave the firearms to [Appellant] to hide.” Id. (citation omitted).

The Commonwealth says “[i]t is possible the jury wholly rejected the

explanation Appellant gave to [Sergeant Chodubski] as not credible and thus

considered it as a factor tending to point to guilt. Alternatively, the fact that

… Appellant was given the firearms with the instruction to hide them could

also have been considered as indicative of guilt.” Id. at 5-6.

      Appellant, on the other hand, argues that “[t]he parties stipulated that

the firearms were stolen, but the only specific testimony about any of the

firearms came from [Lieutenant] Nolan that one of the firearms had been

reported stolen ‘a few months prior’ in a burglary.” Appellant’s Brief at 32

(citations omitted). Appellant reasons that, “[a]s one gun was stolen a few

months before its discovery and the Commonwealth presented no evidence as

to when the others were stolen, the Commonwealth cannot establish recency

as a matter of law.” Id. (citation omitted). Further, he discerns that “there

is no evidence of record that connects [Appellant] to the actual thefts of the

firearms. There is no evidence as to when [Appellant] gained possession of

the firearm[s]. There is no evidence that anyone altered the weapon[s] or

marred/mutilated the serial number[s].”       Id. at 33.   He also insists that,

“[w]hile the Commonwealth presented testimony that drug dealing is violent

and that firearms are utilized in the drug trade, this testimony does not offer

any insight into what Appellant knew about the weapons. It also does not

                                     - 18 -
J-S13003-19



prove that those charged with drug crimes only possess stolen weapons or

believe their weapons were probably stolen.” Id. (citation omitted). Finally,

Appellant maintains that his explanation for how the guns came into his

possession — that a female whose boyfriend had been arrested gave them to

him — “does not suggest guilty knowledge of the firearms’ stolen status.

Rather, it suggests that the woman was not comfortable with having the guns

in her home, wanted to be rid of them, and did not want her boyfriend to get

them back.    At the very worst, it suggests only that Appellant knew her

boyfriend should not have firearms in his possession.” Id. at 34.

      We agree with Appellant that the evidence was insufficient to prove that

he believed that the firearms had probably been stolen. That Lieutenant Nolan

testified that most of the guns recovered from drug dealers are stolen does

not demonstrate that Appellant believed his firearms were probably stolen.

As Appellant posits, “the Commonwealth cannot satisfy its burden of proving

a particular individual’s mens rea with generalizations about the drug trade.”

Id.   Furthermore, Sergeant Chodubski’s testimony that “[Appellant] stated

that the handguns came from a female, that her boyfriend was recently

arrested on drug charges and she didn’t want them anymore, so she gave

them to him to hide” does not establish, beyond a reasonable doubt, that

Appellant believed they were probably stolen. N.T. Trial, 8/15/2017, at 27.




                                    - 19 -
J-S13003-19



Accordingly, we reverse Appellant’s conviction for receiving stolen property

and vacate his judgment of sentence for that offense.6

                                         Issue 2

       In Appellant’s second issue, he contends that “[t]he trial court

committed an abuse of discretion when it denied Appellant’s request for a

mistrial as the Commonwealth’s witness made reference to Appellant[’s] being

on parole and where the language of the trial court’s instruction did not

adequately address or cure the prejudice.”         Appellant’s Brief at 34-35

(emphasis omitted).        For such claims, we apply the following standard of

review:
       The trial court is in the best position to assess the effect of an
       allegedly prejudicial statement on the jury, and as such, the grant
       or denial of a mistrial will not be overturned absent an abuse of
       discretion. A mistrial may be granted only where the incident
       upon which the motion is based is of such a nature that its
       unavoidable effect is to deprive the defendant of a fair trial by
       preventing the jury from weighing and rendering a true verdict.
       Likewise, a mistrial is not necessary where cautionary instructions
       are adequate to overcome any possible prejudice.

Commonwealth v. Parker, 957 A.2d 311, 319 (Pa. Super. 2008) (citation

omitted). Further, we acknowledge:

____________________________________________


6 Appellant received a sentence of 33-66 months’ incarceration for this
offense, which was to run concurrently with his sentence of 60-120 months’
incarceration for persons not to possess a firearm. See Appellant’s Brief at 7-
8 (setting forth the trial court’s sentencing order). Because we can vacate
this sentence without upsetting the overall sentencing scheme, we need not
remand. See Commonwealth v. Thur, 906 A.2d 552, 569-70 (Pa. Super.
2006) (determining that the trial court’s overall sentencing scheme was not
disturbed and no remand was necessary where the appellant’s aggregate
sentence was not affected by vacating his DUI sentence).

                                          - 20 -
J-S13003-19


     A mistrial is warranted when a juror could reasonably infer from
     the facts presented that the accused had engaged in prior criminal
     activity. When the statement at issue relates to a reference to
     past criminal behavior, [t]he nature of the reference and whether
     the remark was intentionally elicited by the Commonwealth are
     considerations relevant to the determination of whether a mistrial
     is required. A singular, passing reference to prior criminal activity
     is usually not sufficient to show that the trial court abused its
     discretion in denying the defendant’s motion for a mistrial. When
     the trial court provides cautionary instructions to the jury in the
     event the defense raises a motion for mistrial, [t]he law presumes
     that the jury will follow the instructions of the court.

Id. (internal citations and quotation marks omitted).

     Here, Appellant complains of the following testimony given by

Lieutenant Nolan:
     [The Commonwealth:] Okay. Now, real quick here, Sergeant
     Chodubski testified that [Appellant] was transported to the Erie
     Police Department where Sergeant Chodubski began an interview
     with [Appellant], right?

     [Lieutenant Nolan:] Yes.

     [The Commonwealth:] And you came into that interview halfway
     through, right?

     [Lieutenant Nolan:] Yes.

     [The Commonwealth:] Just … tell me what happened when you
     walked into that room, Lieutenant Nolan?

     [Lieutenant Nolan:] I walked – [Appellant] was seated in the far
     corner of the room from the door, so when you walk in, he’s the
     first one I see. So I walked into the room and I saw him and he
     was sitting. He looked up at me and … he said, “Good job, Mike,
     good fucking job,” and he kind of put his head down and shook
     his head.

     [The Commonwealth:] Now, he was freely talking to you, correct?

     [Lieutenant Nolan:] Yes.

     [The Commonwealth:] From that point on?

     [Lieutenant Nolan:] Yes.

                                    - 21 -
J-S13003-19


     [The Commonwealth:] Was there a reference made to the drugs
     that were recovered from this house?

     [Lieutenant Nolan:] Yes.

     [The Commonwealth:] Okay. If you could tell us about that part
     of your conversation with [Appellant]?

     [Lieutenant Nolan:] Well, Sergeant Chodubski and Triana were
     talking to him. I was doing something else. Triana called me,
     said, “Hey, he’s starting to talk to us, do you want to come down
     and help?” So I did, that’s when my initial encounter with him
     occurred there. They had not told him yet what we had found.
     And one of the detectives, I heard him ask him … how much did
     you bring here when you came? Apparently, they were that far
     along in the conversation. How much did you bring here? And
     his answer was, how much did you find? And I looked at him,
     [and] said, we found it, we got it all, we found it. And so I didn’t
     tell him how much, but I told him we found it. And then he kind
     of … let out a big sigh, then he … explained what he said.

     Can I refer to my report to get that?

     [The Commonwealth:] Absolutely.

     [Lieutenant Nolan:] Okay. Well, I quoted him here. He said, “Oh,
     you got it all?” That was a question he asked me. And then he
     said that he had sent a brick of cocaine and a hundred grams of
     heroin to Erie and that it arrived two days before he got here. He
     didn’t elaborate on how it got here or who brought it here. And
     he also explained that he hid the three guns. I didn’t note that he
     said where, but he said he hid the three guns and that someone
     else, though, had brought them to the apartment[,] not him.

     [The Commonwealth:] Okay. Now, lastly, it’s also common that[,]
     from time to time[,] you do use people that you think may be
     beneficial for you to further investigations, correct?

     [Lieutenant Nolan:] Yes, we do.

     [The Commonwealth:] Did [Appellant] make any proposals to you
     about wanting to work for the Erie Police Department?

     [Lieutenant Nolan:] Yes, he did.

     [The Commonwealth:] What did he say in that respect?



                                    - 22 -
J-S13003-19


      [Lieutenant Nolan:] Well, he told us that he’d be willing to help us
      get some bigger fish, and that. But he said he couldn’t go to the
      county prison. So what that means is he can’t charge me now,
      because if I go to the county prison, I’m on parole, and I’ll be
      locked up in there or … everyone is going to know that I was –
      that’s what it was. Everyone is going to know that I was locked
      up.

      [Appellant’s counsel:] Your Honor, excuse me. May we have a
      sidebar?

N.T. Trial, 8/15/2017, at 111-14.

      At that point, Appellant’s counsel requested a mistrial, explaining that

Lieutenant Nolan’s comment “implies clearly that [Appellant] has a criminal

history which is not otherwise admissible and is prejudicial.”        Id. at 115.

However, Appellant’s co-defendant — Mr. Smith — did not join in the request

for a mistrial, because Mr. Smith believed that some of Appellant’s

conversation with the detectives helped his defense. Id. at 119, 121. The

trial court and the parties then debated if the trial court should grant a mistrial

or give a curative instruction, during which time Appellant did not clearly

object to the trial court’s giving a curative instruction. See id. at 119 (“I just

don’t think there’s any way of curing that with an instruction.”); id. at 122

(“It’s just glaringly obvious. I just don’t know. It’s brutal.”); id. at 124 (“From

my perspective, Your Honor, I just don’t know how … I recover from that.”).

Upon discussing the matter with the parties, the trial court conveyed that it

was “going to deny the motion for [a] mistrial because it was a comment in

passing, and … [the court would] tell the jury to disregard any of the

conversation that Lieutenant Nolan had with [Appellant] when he came into

the interrogation room, up and through the point that he would have given

                                      - 23 -
J-S13003-19



any indication there that they somehow knew each other….” Id. at 125. Mr.

Smith’s counsel immediately sought clarification as to whether he is “allowed

to get into any of the statements that [Appellant] made regarding his taking

ownership of those items down in the residence[.]” Id. at 126. The trial court

directed that Mr. Smith was allowed to do that, but he could not get into any

prior relationship between Lieutenant Nolan and Appellant. Id. Further, the

trial court indicated that Mr. Smith’s counsel would not have to re-elicit this

testimony from Lieutenant Nolan, but instead could rely on the initial

testimony Lieutenant Nolan gave. Id. at 126-27. Appellant’s counsel did not

seek clarification or object to the phrasing of the trial court’s proposed curative

instruction. See id. The trial court then reiterated its ruling, stating its finding

that “this was just a comment in passing and not an intentional act by the

Commonwealth to frustrate the case or prejudice [Appellant].” Id. at 127.

The trial court subsequently gave the jury the following instruction:
      [The court:] I’m going to give you an instruction with regard to
      Lieutenant Nolan’s testimony that he had when he entered the
      interrogation room with [Appellant] up until the point indicating
      that they had some kind of prior relationship is to be disregarded
      by you, fully and completely. And it’s not evidence in this case
      under any circumstances, nor can it be used by you during your
      deliberations in this case. Does everybody understand that?

                           (Jurors nod affirmatively.)

      [The court:] Because those statements, that will be totally
      disregarded by you, all right? Continue with your examination of
      Lieutenant Nolan.

Id. at 127-28.




                                      - 24 -
J-S13003-19



      Appellant now argues that, although the Commonwealth did not appear

to have intentionally elicited the at-issue remark from Lieutenant Nolan,

Lieutenant Nolan “offered a gratuitous and unnecessary explanation including

the parole status. Given [Lieutenant] Nolan’s twenty-five years of experience

in the Erie Police Department, … this remark evidenced a strong desire to

prejudice Appellant in the eyes of the jury.” Appellant’s Brief at 39 (citations

omitted). Moreover, Appellant says the trial court’s curative instruction did

not cure the prejudice because the trial court “did not clearly instruct the jury

to not consider Appellant’s parole status.” Id. at 40. According to Appellant,

“[t]he jury could have interpreted [the instruction] to mean that they should

not consider the ‘Good job, Mike’ statement and nothing more.” Id. Appellant

also advances that, “[e]ven if the instruction could have been interpreted to

include the conversation up through [Lieutenant] Nolan’s discussion of

Appellant’s parole status, the instruction to fully and completely disregard the

evidence ran contrary to the trial court’s decision to allow the Commonwealth

and Mr. Smith’s attorney to make continued reference to the contents of this

conversation during closings, while allowing Appellant’s counsel to argue the

evidence was stricken.” Id. (citation omitted).

      We discern no abuse of discretion.          As the Commonwealth aptly

reasoned:
      [T]he reference to Appellant’s prior criminal record and parolee
      status was unintentional and innocuous. The specific nature of …
      Appellant’s criminal history was not discussed, and the reference
      was made in passing during questioning about a conversation
      between Appellant and [Lieutenant] Nolan. Additionally, it was

                                     - 25 -
J-S13003-19


      not additional commentary [Lieutenant] Nolan gave. Rather, he
      was merely repeating what Appellant said to him.

      Appellant also argues that the curative instruction given was
      insufficient to cure the prejudice. … While general, the instruction
      was not vague. Specifically, the [c]ourt instructed the jury not to
      consider the conversation between Appellant and … [Lieutenant]
      Nolan until and throughout the portion indicating they had a prior
      relationship. Rather than specifically call additional attention to
      the passing reference of Appellant’s parolee status, the [c]ourt
      framed the instruction generally in an abundance of caution. This
      was not a decision made flippantly or in an off[-]handed manner.
      Instead[,] the nature of the instruction and what to instruct on
      was discussed with all parties prior to the jury[’s] entering the
      courtroom.      Moreover, trial counsel chose not to have the
      instruction clarified or expanded upon signifying the acceptance of
      the nature of the instruction as sufficient.

Commonwealth’s Brief at 7-8 (internal citation omitted).

      We find these points persuasive. Initially, we determine that the trial

court did not abuse its discretion in finding that Lieutenant Nolan’s remark did

not warrant a mistrial, as it was made in passing and Lieutenant Nolan was

repeating what Appellant had told him. In addition, to the extent Appellant

complains of the specific curative instruction presented by the trial court, we

deem that argument waived as Appellant’s counsel did not clearly object to

the trial court’s providing a curative instruction in the first place, let alone

challenge the particular instruction given or seek clarification regarding it.

See Commonwealth v. Page, 965 A.2d 1212, 1222 (Pa. Super. 2009) (“No

objection was made concerning the adequacy of the cautionary instruction.

Where an objection is made, then a curative instruction issued, [the]

appellant’s only challenge is to the adequacy of the curative instruction.

Because Appellant did not object to the instruction, any claim in relation to its


                                     - 26 -
J-S13003-19



adequacy is waived.”) (citation omitted). Accordingly, the trial court did not

abuse its discretion in denying Appellant’s request for a mistrial.

                                   Issue 3

      In Appellant’s third issue, he argues that “[t]he trial court committed an

abuse of discretion when it determined that Appellant’s cross-examination of

[Sergeant] Chodubski opened the door to the previously excluded out-of-court

statements of Ashley Dumas.” Appellant’s Brief at 42 (emphasis omitted).

Appellant explains that “the Commonwealth [had] filed a pre-trial request to

introduce the officers’ personal observations of the interaction between

Appellant and Ms. Dumas on May 19, 2016…. [T]he Commonwealth did not

seek to introduce any out-of-court statements made by Ms. Dumas about what

happened in the car with Appellant or from whom she received the suspected

heroin.” Id. at 43. Appellant says that the Commonwealth followed these

parameters during its direct examination of Sergeant Chodubski. Id (citation

omitted).     Yet, on cross-examination, Appellant “inquired about the

preparation of the search warrant, whether it occurred before or after their

station interview with Dumas, whether it occurred before or after their video-

recorded statement with Dumas, and whether they received the signed

warrant before or after the video-recorded statement with Dumas.” Id. at

43-44 (citation omitted).     According to Appellant, based on his cross-

examination, the Commonwealth consequently “took the position that

Appellant had so questioned the officer’s credibility as to whether Dumas



                                     - 27 -
J-S13003-19



received drugs from Appellant that Appellant had opened the door to re-direct

beyond the scope of the prior agreement.” Id. at 44. As a result, Appellant

explains the following occurred:
     [T]he Commonwealth’s attorney clarified that [Sergeant]
     Chodubski should be permitted to testify as to why he interviewed
     [Dumas], why he preserved her statement, that Dumas had died,
     and that “the white female said that she got the heroin from the
     person in the vehicle, not going to say who that person is, she’s
     [sic] not going to say she identified [Appellant].” [N.T. Trial,
     8/15/2017], at 4-5. The trial court agreed and stated:

        [E]ven though that’s right on the edge — that’s in the
        hearsay realm, it explains why the police officer did what he
        did in taking her to the police station, doing the affidavit,
        and Lieutenant Nolan[’s] taking routine [sic] that was
        eventually going to execute the search warrant. And I did
        that because during the course of cross-examination by
        defense counsel, I believe that you asked questions that
        really challenged the credibility of [Sergeant Chodubski] and
        the value of whatever information that he received from the
        white female, who is no longer available due to her untimely
        death. And what is left in my impression immediately is that
        [Sergeant Chodubski] had absolutely no basis for what he
        did in going back to the station and obtaining a search
        warrant and the affidavit attached to the search warrant. It
        … really opened the door. In fact, it surprised me that you’re
        doing what you’re doing because I think it opened the door
        for you to rehabilitate the police officer to explain to the jury
        why he took the procedures that he did. … And he did, you
        know, obtain heroin. She told him at the time that she
        bought it from [Appellant]. And you’re not getting into that
        area but — identifying him.

     Id. at 5-6.

     On re-direct, the Commonwealth introduced the search warrant
     and affidavit into evidence, discussed [Sergeant] Chodubski’s
     transport of Dumas to the station, discussed his procedure for
     interviewing her when they arrived, had the officer explain that
     they record a statement for use at future trial, and that Dumas
     had died from a heroin overdose after the arrest. Id. at 24-25.
     The Commonwealth also showed [Sergeant] Chodubski an exhibit,

                                     - 28 -
J-S13003-19


      which he identified as “the five grams of heroin that she purchased
      that day from the car.” Id. at 26. [Sergeant] Chodubski further
      testified that … the baggie contained 5.07 grams of heroin. Id.

Appellant’s Brief at 44-46.

      Appellant now argues that the trial court abused its discretion in allowing

this testimony. He concedes that permitting Sergeant Chodubski to testify

about “his transport of Dumas to the station and his procedure for interviewing

and recording individuals was [a] fair response to the challenge to his

credibility[,]” and that “reference on re-direct to Dumas’[s] death would

eliminate any question in the minds of the jury as to why the Commonwealth

did not call Dumas to corroborate his recollection.”     Id. at 47.    However,

Appellant contends that “Dumas’[s] statement to police about where she

received the drugs does nothing to refute Appellant’s challenge to [Sergeant]

Chodubski’s recollection of the timing of the warrant.” Id. Instead, he says

that “[t]he admission of this hearsay statement merely allowed the

Commonwealth to directly tie Appellant to the delivery, without affording

Appellant the ability to confront the source of this information.” Id. Appellant

adds that his “counsel did not attack Dumas’[s] credibility. Frankly, Dumas’[s]

credibility was never at issue, because the entirety of the direct and cross[-

]examination of [Sergeant] Chodubski related to his actions and his

observations.” Id. at 46.

      We apply the following standard of review:
      The admissibility of evidence is solely within the discretion of the
      trial court and will be reversed only if the trial court has abused
      its discretion. An abuse of discretion is not merely an error of
      judgment, but is rather the overriding or misapplication of the law,

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J-S13003-19


     or the exercise of judgment that is manifestly unreasonable, or
     the result of bias, prejudice, ill-will or partiality, as shown by the
     evidence of record.

Commonwealth v. Nypaver, 69 A.3d 708, 716 (Pa. Super. 2013) (citations

omitted).

     Both parties agree that the statements of Ashley Dumas were

inadmissible hearsay. See Appellant’s Brief at 42-43; Commonwealth’s Brief

at 9. Notwithstanding, “[a] litigant opens the door to inadmissible evidence

by presenting proof that creates a false impression refuted by the otherwise

prohibited evidence.”     Nypaver, 69 A.3d at 716 (citations omitted).          In

addition to attacking the timing of the warrant during his cross-examination,

Appellant suggested that Sergeant Chodubski lacked probable cause to

execute the warrant. See N.T. Trial, 8/14/2017, at 105 (asking if Dumas’s

vehicle was observed by the police prior to Sergeant Chodubski’s seeing

Dumas enter Appellant’s vehicle); id. at 106 (noting that it was not a

controlled purchase and that the police believed the heroin found on Dumas

came from Appellant); id. at 107-08 (inquiring about who wrote the search

warrant,    where   it   was   done,   and      how   Dumas’s   statements    were

memorialized); id. at 109-11 (asking how Sergeant Chodubski got the warrant

signed by a judge and who was in physical possession of the warrant when

investigators entered the apartment at 1055 West 30 th Street); id. at 116

(questioning, again, if Sergeant Chodubski had interviewed Dumas before

applying for and obtaining the search warrant).           As the Commonwealth

discerns, “[t]hrough cross examination, Appellant gave the impression that


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something problematic was occurring with respect to the search warrant, Ms.

Dumas’s cooperation and/or statement[,] and how [Sergeant] Chodubski

obtained and/or used that information. Such an impression opens the door

with respect to otherwise inadmissible hearsay in order to correct that

implication.” Commonwealth’s Brief at 11; see also id. at 11-12 (“During

cross-examination, Appellant called into question the basis for the search

warrant, which was in part Dumas’s statement that she received heroin from

the other occupant of the vehicle she got out of. Presenting that information

for the jury is the only thing that can eliminate the impression that the search

warrant    was   insufficient   or   [Sergeant]   Chodubski   conducted   himself

improperly.”). We agree with the Commonwealth, and conclude that the trial

court did not abuse its discretion by allowing testimony that Dumas had

indicated that she purchased the five grams of heroin from the person in the

vehicle.

                                      Issue 4

      Finally, Appellant states that “[t]he trial court imposed … illegal

sentences for possession of a controlled substance where Appellant was

convicted for possession with the intent to deliver the same substances.”

Appellant’s Brief at 47 (emphasis omitted).            He explains that, “the

Commonwealth charged Appellant at Count Two with possession with intent

to deliver (93 grams of heroin) and at Count Three with possession with intent

to deliver (763 grams of cocaine). At Counts Five and Six, the Commonwealth

charged Appellant with simple possession of the same substances and

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J-S13003-19



quantities of substances.” Id. at 48 (citations and footnote omitted). Citing

to Commonwealth v. Murphy, 592 A.2d 750 (Pa. Super. 1991), Appellant

maintains that “[t]he trial court should have merged for sentencing purposes

the crimes of possession of controlled substances and possession with intent

to deliver since both charges stemmed from the same act of possession.” Id.

at 753 (citations omitted); see also Appellant’s Brief at 48. He advances that

“[t]he trial court appeared to recognize that these sentences should have

merged, but instead elected to impose concurrent sentences[,]” and asks that

we vacate the concurrent sentences imposed for simple possession at Counts

Five and Six.       Id. at 48-49.       The Commonwealth agrees.         See

Commonwealth’s Brief at 12 (“In review of the relevant case law and the

record, the Commonwealth would agree that Appellant was illegally sentenced

at these counts as Count 5 should have merged with Count 2 and Count 6

should have merged with Count 3.”). Consequently, we vacate the concurrent

sentences imposed for simple possession at Counts 5 and 6. Again, because

we can vacate these sentences without upsetting the overall sentencing

scheme, we need not remand. See Thur, supra.

      Judgment of sentence for 18 Pa.C.S. § 3925(a) (receiving stolen

property), 35 P.S. § 780-113(a)(16) (possession of a controlled substance -

93 grams of heroin), and 35 P.S. § 780-113(a)(16) (possession of a controlled

substance - 763 grams of cocaine) vacated. Judgment of sentence affirmed

in all other respects. Jurisdiction relinquished.

      Judge Ott joins this memorandum.

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J-S13003-19



     Judge Strassburger files a concurring and dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/17/2019




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