Com. v. Woodall, J.

J. S50003/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JASON WOODALL, : No. 355 WDA 2013
:
Appellant :

Appeal from the Judgment of Sentence, March 24, 2010,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0015796-2006

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JASON WOODALL, : No. 356 WDA 2013
:
Appellant :

Appeal from the Judgment of Sentence, June 30, 2011,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0015787-2006

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 27, 2015

Jason Woodall appeals nunc pro tunc from the judgments of sentence

entered on March 24, 2010, and June 30, 2011, in the Allegheny County

Court of Common Pleas; this court has sua sponte consolidated the

appeals. We affirm.
J. S50003/14

FACTUAL & PROCEDURAL HISTORY -- No. 355 WDA 2013

Appellant was charged by criminal information No. CP-02-CR-

0015787-2006 on December 29, 2006, with the following offenses that

occurred on May 31, 2006 through June 1, 2006: Counts 1 & 2 --

possession with intent to deliver (“PWID”) cocaine; Count 3 -- possession of

cocaine; and the summary offense of driving while operating license

suspended or revoked. Appellant was also charged at No. CP-02-CR-

0015796-2006 for the following offenses which occurred on June 7, 2006:

Count 1 -- PWID cocaine; Count 2 -- possession of cocaine; and the

summary offense of driving while operating license suspended or revoked.

Appellant proceeded to a jury trial in both cases on March 4, 2006.

The following facts were presented to the jury. Jerome Bauer was

arrested in May of 2009 for driving under the influence, possession with

intent to deliver, and possession of cocaine. For 20 years, Bauer owned a

bar/restaurant on the South Side of Pittsburgh called “Jerome’s.” Bauer

testified that he was told the charges against him would be reduced if he

would make a deal to identify the person from whom he had purchased the

drugs. (Notes of testimony, 3/4-5/09 at 32.) The charge of possession with

intent to deliver, which carried a mandatory sentence, would be dropped;

Bauer agreed to assist with the investigation. Bauer stated that for a year

and a half he had purchased cocaine from appellant, whom he only knew as

“Jay.” (Id. at 32-33.) Bauer periodically purchased drugs from appellant,

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and he would typically purchase one to three ounces at a time; “80 percent

of the time [Bauer got] three.” (Id. at 33, 51.) He explained that the

reason for the variation was that “it was $300 cheaper an ounce as well as

not having the risk of meeting him somewhere.” (Id. at 33.) Bauer testified

that the men usually met at his bar, outside by the car, or the McDonald’s

on Brownsville Road. Bauer stated that when they had previously met at the

McDonald’s, the transaction would occur in the men’s room. (Id. at 43.)

Officer Scott Harding testified that based on the information Bauer provided,

they investigated and determined that the person Bauer described as his

dealer was Jason Woodall. (Id. at 78-80.)

On May 31, 2006, at 1:30 p.m., Bauer placed a wiretapped telephone

call to appellant to purchase four ounces of cocaine. (Id. at 35, 83.) The

conversation consisted of coded language with Bauer asking, “Are you

good,” which was his way of asking if appellant had the desired amount of

cocaine. (Id. at 44.) Appellant indicated that he did have the amount, and

they agreed to meet at 4:00 p.m. at the bar Bauer owned. (Id. at 45.)

Police officers directed Bauer to place a follow-up call to receive an

“extra one,” which meant an extra ounce of cocaine. (Id. at 84-85.)

The police proceeded to Jerome’s bar to set up for the drug

transaction. The bar and Bauer were searched.1 (Id. at 86, 120.) In the

1
At trial, Bauer could not remember if he had been searched. (Id. at 39,
58.)

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basement, Officer Scott Harding fit Bauer with a body wire and gave him

$3,600 for the transaction.2 (Id.) Undercover detectives were positioned

inside and outside the bar for surveillance, and Bauer was watched at all

times. (Id. at 86.)

Appellant walked into the bar and made eye contact with Bauer. (Id.

at 87.) Appellant then met Bauer in the game room, and they walked to an

alcove between the kitchen and the bathroom where they exchanged $3,600

for cocaine.3 (Id. at 122.) Officer Harding testified that he had an

unobstructed view of the transaction of the currency and the drugs, which

was a “sandwich size baggie, softball size, of a white powder later identified

as cocaine.” (Id. at 87, 127.) At this point, Hardy testified appellant left

the bar and an undercover detective passed appellant at the door where he

exited. (Id. at 87.)

Detective Ray Bonacci was also involved with this investigation and

was present at the bar. (Id. at 147.) Detective Bonacci testified that he

was seated at the bar and observed appellant walk into the bar and

immediately meet with Bauer. (Id. at 148.) The men briefly met and

appellant turned around, walked back out of the bar, jogged to his vehicle,

2
Bauer told his employees Officer Harding was there to fix the ice machine
in the basement. (Id. at 85.)
3
Bauer testified he could not recall where the transaction occurred. At one
point, he stated the transaction occurred in the bathroom; but he later
testified that it might have occurred around the corner from the bathroom
by the Golden Tee video game. (Id. at 59, 71.)

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and left. (Id.) Detective Bonacci was 20 feet from where appellant and

Bauer met. (Id.) However, he was not able to view the transaction, as

there was a wall obstructing his view. (Id. at 149.) He did not move

himself, as he did not want to interrupt the transaction. Three other officers

who were present were also unable to view the transaction. Officers tasked

with following appellant and conducting a traffic stop to verify his identity

aborted this task as they did not want to jeopardize the investigation.

In the bar, officers recovered the cocaine from Bauer, removed the

body wire, and searched him.4 (Id. at 89.) The cocaine weighed

82.7 grams, which was one ounce short of the agreed upon amount. (Id. at

39, 90.) Consequently, Bauer was directed to place another wiretapped

phone call to appellant regarding the shortage. (Id. at 39-40, 91.)

Appellant agreed to meet Bauer later that evening at the Mt. Oliver

McDonald’s to provide the missing ounce of cocaine, as he believed he was

followed from the parking lot of the bar. (Id. at 40, 61-62, 91.) Officers

searched Bauer and his vehicle, fitted Bauer with a body wire, and

proceeded to McDonald’s to conduct surveillance. Appellant never arrived.

(Id. at 41.)

Later that evening, Bauer called appellant and arranged to meet him

on June 1, 2006, at the same McDonald’s to get the ounce of cocaine.

4
Harding testified that, at the time of trial, he did not have possession of the
body recorder used on May 31st and he did not know what happened to it.
(Id. at 129.)

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Detective Bonacci was present when Bauer made the call, but he could not

hear appellant’s half of the exchange. (Id. at 159.) Bauer notified the

officers about the transaction. On June 1, 2006, officers again searched

Bauer and his vehicle, fitted Bauer with a body wire, and proceeded to the

McDonald’s to conduct surveillance. (Id. at 93-94, 140-141.)

When the undercover officers arrived, appellant’s vehicle was already

in the parking lot. (Id. at 196.) Officer Joseph Osinski, who was on the

surveillance team, noted appellant’s car was unoccupied, and he parked the

undercover vehicle approximately two or three spaces from appellant’s car.

(Id.) Officer Hardy followed Bauer’s vehicle into the McDonald’s parking lot;

Bauer was instructed to stay in his vehicle. (Id. at 94.) Bauer parked his

vehicle in the space to the immediate left of appellant’s vehicle. (Id. at

197.) Appellant exited the McDonald’s and proceeded to the front passenger

seat of Bauer’s vehicle. (Id. at 94, 197.) While sitting in the car, appellant

handed Bauer an ounce of cocaine. The officers could not see the

transaction. After approximately two minutes, appellant exited the car and

left the area. Bauer drove in the opposite direction and, after a short time,

pulled over for the police to deactivate the body wire, search the vehicle,

and retrieve the cocaine. (Id.) Several minutes passed before Bauer pulled

over and Officer Harding got into his car. (Id. at 140.) Officer Harding

testified that he searched both Bauer and his car before going into the

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McDonald’s and that he searched the car again after the meeting. (Id.) The

contraband weighed 27.17 grams.

Thereafter, an arrest warrant was issued for appellant. On June 7,

2006, officers had Bauer make another recorded call to appellant and set up

another transaction for four ounces at the same McDonald’s. (Id. at 61.)

Appellant did not answer the phone but called Bauer back and the meeting

was planned. Officer Bonacci explained that he understood that appellant

and Bauer always met in the bathroom at this McDonald’s to conduct their

transactions, which is why the officers set up near this location. (Id. at 167-

168.) Bauer waited in a booth inside the McDonald’s. (Id. at 43.)

Appellant arrived and proceeded into the bathroom. (Id. at 100.) However,

the undercover officers followed him into the bathroom and placed appellant

under arrest. (Id. at 42, 100.) The officers found a “fairly large softball size

of cocaine” in appellant’s right front pocket and a piece of crack cocaine on

the floor. (Id. at 101.)

Both parties stipulated to the contents of the crime lab report, which

stated the drugs seized on May 31 and June 1, 2006, amounted to

82.7 grams of cocaine in one baggie and 27.17 grams in another. A bag

from the June 7 incident weighed 111.2 grams, and the crack weighed

72 grams. Narcotics Detective Todd Naylor testified as an expert. He

testified that it is common to see cocaine packaged for sale in sandwich

baggies, gallon freezer bags, and similar storage bags. The detective opined

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that the cocaine was possessed with intent to deliver.5 The Commonwealth

also entered into evidence a CD containing recordings of the telephone

intercepts between Bauer and appellant on May 31, June 1, and June 7,

2006; the recordings were authenticated and played for the jury. (Id. at

106-109, 135-141, 317-325.) The CD also contained an audio recording of

the body wire intercept on June 1, 2006, which was also authenticated and

played for the jury.

Appellant was convicted of all charges at No. CP-02-CR-0015796-2006

(June 7, 2006 events), and the trial court found him guilty of the summary

offense; however, the jury was unable to reach a verdict at

No. CP-02-CR-0015787-2006 concerning the events occurring on May 31,

2006 and June 1, 2006, and a mistrial was declared. On March 24, 2010,

the following sentence, in addition to fines, was imposed: Count 1 -- 7 to

14 years’ incarceration; Count 2 -- no further penalty; Count 3 -- 90 days’

incarceration.

Appellant filed a post-sentence motion on April 5, 2010, alleging the

evidence was insufficient and a motion requesting leave to amend. (Docket

#7.) The trial court granted appellant permission to amend the

5
After a mistrial was declared on March 5, 2009, as to the May 31, 2006
and June 1, 2006 transactions, appellant failed to appear for the retrial on
June 4, 2009. An arrest warrant was issued, and on July 18, 2009,
appellant was arrested during a vehicle stop, at which time he gave a false
name, Shaun Booker. Eventually, appellant admitted to the officers that he
provided a false name as he was a wanted person.

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post-sentence motions. On May 7, 2010, new counsel, Eric A. Jobe, Esq.,

filed a post-sentence motion alleging the sentence was excessive and the

jury’s verdict was against the weight of the evidence. (Docket #10.) The

motion was denied on September 8, 2010. Appellant filed a timely notice of

appeal; however, it was dismissed on December 21, 2010, for failure to

comply with Pa.R.A.P. 3517.

FACTUAL & PROCEDURAL HISTORY -- No. 356 WDA 2013

Meanwhile, Attorney Jobe filed a motion in limine on March 29, 2011,

at No. 356 WDA 2013, seeking to preclude the Commonwealth from

admitting evidence of appellant’s flight after the mistrial. The motion also

argued that the Commonwealth should be precluded from introducing

evidence that appellant was previously convicted of PWID and possession of

cocaine at No. CP-02-CR-0015796-2006 concerning the June 7, 2006

events. Following a hearing, the motion in limine was denied on March 31,

2011.

The Commonwealth essentially presented the same facts during

appellant’s jury trial held from March 31, 2011 through April 1, 2011. The

following additional facts were established at the jury trial held from

March 31, 2011 through April 1, 2011. Appellant testified and stated he had

met Bauer through a friend and had known him for approximately a year

and a half. (Notes of testimony, 3/31-4/1/11 at 245.) Appellant conceded

that on May 31, 2006, he met with Bauer; however, he explained that he

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went to the bar to purchase cocaine from Bauer and to collect money that

Bauer owed him. (Id. at 233.) Appellant testified that he and Bauer went

inside the bathroom where he purchased an ounce of cocaine from Bauer.

(Id. at 243.) Bauer gave appellant some of the money he owed him from

work appellant had done for him, in addition to some cocaine. (Id. at 233.)

On June 1, 2006, Bauer called appellant and stated he would have the

rest of the money he owed appellant. (Id. at 234.) They met at the

McDonald’s in Mt. Oliver. Appellant arrived first, and when Bauer got there,

appellant entered his car. Bauer gave him some money and asked if

everything was square. (Id.) Appellant complained that he was frustrated

as Bauer owed him money for a long period of time.

Appellant testified that he gave Sergeant Lamb a false name when he

was pulled over for a traffic stop as he had not been making child support

payments in violation of a court order. (Id. at 236, 242.) Appellant denied

being aware at that time that he was facing a retrial on the charges.

A jury trial commenced before the Honorable Edward J. Borkowski;

and on April 1, 2011, appellant was convicted of all three counts, and the

trial court found him guilty of the summary offense. On June 30, 2011,

appellant was sentenced to 7 to 14 years for Count 1 and a concurrent

sentence of 90 days’ imprisonment for the summary offense; no further

penalty was imposed at Counts 2 and 3. Appellant filed a timely notice of

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appeal on July 29, 2011. By order dated October 17, 2011, the appeal was

dismissed for failure to comply with Pa.R.A.P. 3517.

On June 14, 2012, appellant filed a pro se petition pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, regarding

both cases. Patrick Nightengale, Esq., was appointed as counsel; and on

February 13, 2013, Attorney Nightengale filed separate petitions at each

case seeking reinstatement of appellate rights nunc pro tunc. The trial

court, by separate orders, reinstated appellant’s appellate rights nunc pro

tunc. On March 24, 2013, Attorney Nightengale filed two separate notices

of appeal. This court, by its April 3, 2013 order, consolidated the appeals for

review. On May 30, 2013, Judge Borkowski appointed William E.

Brennan, Esq., to represent appellant in his appeals.

By separate order filed July 22, 2013, the trial court directed appellant

to file a concise statement of matters complained of on appeal. Appellant

filed an untimely statement in each case on November 12, 2013.6 The

following two issues have been presented for our review:

6
In criminal cases, a defendant’s attorney’s untimely filing of a
court-ordered Rule 1925(b) statement or the complete failure to file a
statement, which results in waiver of all issues, is per se ineffectiveness,
from which the defendant is entitled to prompt relief. Commonwealth v.
Burton, 973 A.2d 428, 432-433 (Pa.Super. 2009) (en banc); see
Pa.R.A.P. 1925(c)(3). However, this court held, “[w]hen counsel has filed an
untimely Rule 1925(b) statement and the trial court has addressed those
issues we need not remand and may address the merits of the issues
presented.” Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa.Super.
2012). Instantly, the trial court filed a Rule 1925(a) opinion.

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I. DID THE LOWER COURT ABUSE ITS
DISCRETION IN FINDING THAT THE VERDICTS
WERE NOT CONTRARY TO THE WEIGHT OF
THE EVIDENCE INSOFAR AS THE TESTIMONY
OF THE CONFIDENTIAL INFORMANT THAT WAS
PRESENTED TO ESTABLISH THAT [APPELLANT]
INTENDED TO DELIVER THE DRUGS FOUND IN
HIS POSSESSION WAS TENUOUS AND
UNRELIABLE; AND THE AMOUNT AND
PACKAGING OF THE DRUGS, WAS EQUALLY
CONSISTENT WITH HIS PURCHASING THE
DRUGS IN BULK AT LOWER COST FOR HIS
OWN USE?

[II.] DID THE LOWER COURT ERR IN DENYING
DEFENSE COUNSEL’S MOTION IN LIMINE TO
PRECLUDE ALL EVIDENCE REGARDING
[APPELLANT’S] PRIOR CONVICTION FOR
POSSESSION WITH INTENT TO DELIVER
INSOFAR AS THIS EVIDENCE WAS
IRRELEVANT, AND EVEN IF RELEVANT, ITS
PREJUDICIAL IMPACT FAR OUTWEIGHED ITS
PROBATIVE VALUE BY PORTRAYING
[APPELLANT] AS HAVING A PROPENSITY FOR
TRAFFICKING DRUGS, AND ADVERSELY
AFFECTING THE JURY’S CONSIDERATION AND
WEIGHING OF THE EVIDENCE, THEREBY
DEPRIVING [APPELLANT] OF A FAIR TRIAL?

Appellant’s brief at 7.7

We begin with the issue presented in appellant’s appeal docketed at

No. 355 WDA 2013. Appellant argues that his conviction for possession with

intent to deliver was against the weight of the evidence. Following review of

7
Additional issues contained in appellant’s Rule 1925(b) statement have not
been presented to our court in his brief; hence, we deem them to have been
abandoned.

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the certified record, we agree with the Commonwealth that appellant’s claim

is waived.

[A] weight of the evidence claim must be preserved
either in a post-sentence motion, by a written
motion before sentencing, or orally prior to
sentencing. Pa.R.Crim.P. 607; Commonwealth v.
Priest, 18 A.3d 1235, 1239 (Pa.Super.2011).
Failure to properly preserve the claim will result in
waiver, even if the trial court addresses the issue in
its opinion. Commonwealth v. Sherwood, 603 Pa.
92, 982 A.2d 483, 494 (2009).

Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.Super. 2012). After

reviewing the record, it is clear that appellant has not complied with

Rule 607.

While appellant’s May 7, 2010 post-sentence motion challenges the

weight of the evidence, the theory presented is entirely different than what

he now argues on appeal. The following claim was presented in appellant’s

post-sentence motion: “[Appellant] avers that his verdict was against the

weight of the evidence as [appellant’s] identification was not corroborated

by the evidence as the testimony lacked credibility.” (Docket #10.) His

brief in support of the motion averred the identification and credibility of the

police officers was incredulous, and thus the verdict was against the weight

of the evidence. (Docket #12.) However, in appellant’s Rule 1925(b)

statement, the following issue was presented:

The verdicts were contrary to the weight of the
evidence in that the evidence presented to establish
that [appellant] intended to deliver the drugs found
in his possession was tenuous and unreliable with

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regard to the circumstances leading up to his arrest
and discovery of the drugs. Furthermore, the
amount and packaging of the drugs[] was equally
consistent with his purchasing the drugs in bulk at
lower cost for his own use, especially given the lack
of any indicia that he was selling drugs that day,
such as large amounts of cash. The lack of any use
paraphernalia was inconsequential given the fact
that the key witness against him was an admitted
drug user, who also purchased in bulk, and did not
carry use paraphernalia around with him.

Docket #25.

As the issue presented in his Rule 1925(b) statement and argued in

his brief was not previously presented to the trial court, we find appellant’s

weight of the evidence claim to be waived. Priest, supra (weight of the

evidence claim waived for failure to present claim in the lower court, either

orally or in writing before sentencing or in a post-sentence motion, and

failure to present argument in court-ordered statement, pursuant to

Pa.R.Crim.P. 607; Pa.R.A.P. 1925(b)(4)(vii)).8

The second issue presented concerns appellant’s appeal at

No. 356 WDA 2013 in relation to his retrial. Again, prior to his retrial,

appellant filed a motion in limine seeking to preclude the Commonwealth

from admitting evidence at the retrial regarding the events of June 7, 2006,

that led to his conviction. The trial court denied the motion and permitted

the Commonwealth to introduce evidence about the events of June 7th but

8
We also note that the trial court’s general discussion of the weight of the
evidence in its Rule 1925(a) opinion does not preserve the issue for appeal.
Commonwealth v. Mack, 850 A.2d 690, 694 (Pa.Super. 2004).

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precluded the Commonwealth from introducing evidence that the events led

to appellant’s conviction. Herein, appellant alleges the evidentiary ruling

was in error as the events of June 7th were irrelevant. Alternatively,

appellant claims that if not irrelevant, the events’ prejudicial impact

outweighed their probative value. (Appellant’s brief at 49.)

Admission of evidence rests within the discretion of the trial court, and

we will not reverse absent an abuse of discretion. Commonwealth v.

Washington, 63 A.3d 797, 805 (Pa.Super. 2013). “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. Martinez, 917 A.2d 856, 859

(Pa.Super. 2007).

Evidence of “other crimes, wrongs, or other acts” is inadmissible solely

to show a defendant's bad character or his propensity for committing

criminal acts. Pa.R.E. 404(b)(1); Commonwealth v. Kinard, 95 A.3d 279,

284 (Pa.Super. 2014) (en banc), citing Commonwealth v. Brookins, 10

A.3d 1251, 1256 (Pa.Super. 2010), appeal denied, 22 A.3d 1033 (Pa.

2011). Such evidence is admissible, however, when relevant for another

purpose, including motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake. Id.; Pa.R.E. 404(b)(2). This court has also

recognized the res gestae exception, permitting the admission of evidence

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of other crimes or bad acts to tell “the complete story” of the crime on trial

by proving its immediate context of happening near in time and space.

Commonwealth v. Williams, 896 A.2d 523, 539 (Pa. 2006);

Commonwealth v. Paddy, 800 A.2d 294, 308 (Pa. 2002);

Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988). Such evidence

may be admitted, however, “only if the probative value of the evidence

outweighs its potential for unfair prejudice.” Kinard, supra;

Pa.R.E. 404(b)(2).

We conclude that the trial court did not abuse its discretion when it

held that the evidence of the June 7th events were relevant and admissible.

The trial court found that the events of that date were relevant to establish

“identity, intent, and the history and relationship of Bauer and appellant.”

(Trial court opinion, 1/17/14 at 10.) The other acts evidence was relevant

to establish a chain of events and a course of criminal conduct; the June 7th

events were inextricably linked to the events of May 31st and June 1st and

led to appellant’s arrest for those crimes. For instance, the events of

June 7th demonstrated the manner (i.e., telephone calls consisting of coded

messages) in which the narcotics transactions were arranged, a distinctive

meeting place (McDonald’s in Mt. Oliver), and the amount of cocaine

(four ounces). The events of June 7th also demonstrated the manner in

which the transactions would occur -- Bauer would wait for appellant in a

booth at McDonalds, appellant would arrive, and the men would proceed to

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the bathroom where the cocaine transaction would occur. Appellant’s arrival

to the McDonald’s on June 7th in possession with drugs packaged in a similar

fashion of those recovered on May 31st dispels the notion that the events

were an innocent coincidence and allowed for a reasonable inference that

appellant sold cocaine to Bauer on May 31st and June 1st rather than accept

appellant’s defense that he was buying the cocaine from Bauer for his

personal use.

In support of its position that the testimony regarding Bauer’s

interaction with appellant on June 7th was properly admitted, the

Commonwealth cites Commonwealth v. Echevarria, 575 A.2d 620

(Pa.Super. 1990). The facts of Echevarria are comparable to those of the

instant case. There, the defendant had been charged with the intent to

deliver a large quantity of cocaine seized from his home. Id. at 622. At

trial, the Commonwealth introduced testimony that an informant twice

previously had purchased cocaine from the defendant prior to the sale that

resulted in the defendant’s arrest. Id. at 623. On appeal, this court held

that such testimony was admissible as probative of defendant’s status as a

cocaine dealer and that its probative value outweighed its prejudicial effect.

Id.

The June 7th events are logically connected to the criminal charges

against appellant at his 2011 trial. The existence of the relationship

between appellant and Bauer was critical to the jury’s understanding of the

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case. The Commonwealth was entitled to show that their interactions were

not random; but rather, Bauer would receive drugs from appellant on a

regular basis following a coded conversation; testimony was also presented

that the men had previously met at this McDonald’s and conducted the

transaction in the men’s bathroom. After careful review, we find the trial

court’s ruling was not an abuse of its considerable discretion.

Although we have concluded that the evidence was admissible on a

legal basis, we must evaluate the evidence against the unfair prejudice

standard of Pa.R.E. 403.

In conducting the probative value/prejudice
balancing test, courts must consider factors such as
the strength of the “other crimes” evidence, the
similarities between the crimes, the time lapse
between crimes, the need for the other crimes
evidence, the efficacy of alternative proof of the
charged crime, and “the degree to which the
evidence probably will rouse the jury to
overmastering hostility.” McCormick, Evidence § 190
at 811 (4th ed.1992). See also Commonwealth v.
Frank, 395 Pa.Super. 412, 577 A.2d 609 (1990)
(enumerating balancing test factors, including ability
for limiting instruction to reduce prejudice).

Commonwealth v. Weakley, 972 A.2d 1182, 1191 (Pa.Super. 2009).

Appellant is correct that evidence of other crimes is not admissible to

establish that a defendant had a propensity to commit a crime. Clearly, the

introduction of testimony concerning the June 7th events, which were

prejudicial, established that appellant was a drug dealer. However, when

balancing the probative versus the prejudicial nature of this evidence, it was

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clearly supportive of the other evidence in this case and was critical in

establishing the absence of mistake or accident and a common scheme,

plan, or design.

The court did provide the jury with a limiting instruction regarding the

evidence and emphasized the limited purpose for which the evidence was

admissible, thereby minimizing its prejudicial effect. See Commonwealth

v. LaCava, 666 A.2d 221 (Pa. 1995) (any error in admission of the bad acts

in capital murder prosecution was cured by trial court’s cautionary

instruction limiting the jury’s consideration of bad acts).

Ladies and gentlemen, [appellant] is not on trial for
anything that occurred on June 7th of 2006. The
only -- the purpose of that evidence is for a very
limited purpose, and it’s to -- if you find it to be
credible, for the very limited purpose of possibly
demonstrating the identity of the person who
engaged in the alleged crimes on May 31st, 2006,
and/or for the purpose of establishing intent to
deliver or actual delivery on May 31st, 2006.

This evidence must not be considered by you
in any other way than for the purpose that I stated.
You must not regard this evidence as showing that
[appellant] is a person of bad character or criminal
tendencies from which you might be inclined to infer
guilt.

Similarly, the testimony of Mr. Bauer as to the
events of June 7th or the testimony that he gave
regarding alleged prior transactions between himself
and [appellant], it only goes to those limited
purposes and/or in that instance to show the
history/relationship of the parties and the developing
facts in this matter.

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Notes of testimony, 3/31-4/1/11 at 131-132. The trial court reiterated the

limited purpose to the jury in its closing charge:

You have heard evidence tending to show or
prove that [appellant] engaged in conduct or was
guilty of an offense or offenses for which he is not on
trial in this matter. This evidence is before you for a
very limited purpose or potential purposes, if, in fact,
you find it to be credible; that is to show the --
possibly show the identity of the person who
delivered the cocaine on May 31st and June 1st of
2006 or the intent of the person who delivered the
cocaine on May 31st and June 1st.

....

In that regard, you also heard testimony
regarding a prior relationship between Mr. Bauer and
[appellant], that is, the evidence of that, whether
you find it credible or not is entirely up to you,
regarding one-and-a-half years of the relationship
alleged by Mr. Bauer. That was before you for the
limited purpose of showing the history and
relationship of the parties as well as the
development of facts in this particular matter.

It’s important that you understand that you
must not regard any of this evidence as showing that
[appellant] is either a person of bad character or
criminal tendencies, from which you might be
inclined to infer guilt.

Id. at 294-296.

The jury was advised at trial that the challenged evidence could not be

considered to show the character of appellant or to show that he acted in

conformity with that character. After presenting the evidence of the

telephone calls, the jury was free to accept or reject the evidence and to

give it whatever weight it felt it deserved.

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J. S50003/14

Judgments of sentence affirmed.

Allen, J. joins the Memorandum.

Shogan, J. files a Concurring Statement.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/27/2015

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