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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WALLACE HOLLEY,
Appellant No. 616 MDA 2015
Appeal from the Judgment of Sentence December 18, 2012
in the Court of Common Pleas of Cumberland County
Criminal Division at No.: CP-21-CR-0001261-2012
BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 29, 2015
Appellant, Wallace Holley, appeals from the judgment of sentence
imposed on December 18, 2012 following his conviction by a jury of unlawful
possession of cocaine and possession with intent to deliver cocaine.1 On
appeal, he challenges the trial court’s admission of expert testimony that
Appellant was involved in drug trafficking rather than possession for
personal use based in part on text messages from Appellant’s cell phone.
We affirm.
The relevant factual and procedural history is as follows. On
September 4, 2011, Trooper Clint Long pulled over a Mitsubishi Eclipse that
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*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(16) and § 780-113(a)(30) respectively.
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was driving down Interstate 81 in the southbound left lane traveling five
miles an hour below the posted speed limit.
Upon request, Ms. Cherry Carter, the driver, handed Trooper Long the
registration and insurance information that she obtained from the glove box.
When Trooper Long checked these documents, they came back to a Ford
F150 pick-up truck. When Trooper Long ran the information for the
Mitsubishi Eclipse, it came back registered to a Mr. David Selig from
Hagerstown, Maryland, who was not in the vehicle at the time.
Neither Ms. Carter nor Appellant, the passenger, could produce a
driver’s license; however, both provided Trooper Long with their names and
information. After he did not come up with any information when he ran
their names through his in car computer system, Trooper Long called for
backup.
Soon thereafter, Corporal Douglas Howell arrived on scene and spoke
with Appellant and Ms. Carter separately to ascertain whether their
descriptions of their activities were consistent. Corporal Howell noticed
several differences between their stories regarding both the timeframe of
their travels and their destinations. He also noticed that while talking with
Ms. Carter, she appeared very nervous.
Because neither of their identifying information would come up on the
computer, Corporal Howell temporarily detained both Ms. Carter and
Appellant and asked them to come to the police barracks so that they could
check for outstanding warrants. Corporal Howell patted down Appellant
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prior to his being transported to barracks and found about two or three
hundred dollars in his pocket; however, he did not confiscate the money.
After confirming that both Appellant and Ms. Carter were who they had
claimed to be, and that there were no outstanding warrants for their arrest,
the troopers told them that they could leave.
After Appellant and Ms. Carter left the barracks, the troopers
conducted a search, pursuant to a search warrant, of the Mitsubishi Eclipse.
During the search, the troopers found a Rubbermaid plastic container filled
with trail mix in the back seat behind the driver’s seat. Inside the container,
Trooper Long found 11.4 grams of cocaine. The cocaine was packaged as
sixty-seven individual packages containing rocks of crack cocaine within a
larger bag. The troopers did not find any type of drug paraphernalia or any
means of ingesting the cocaine in the vehicle.
During the search, the troopers also found two cell phones in the
vehicle. Trooper Long obtained a search warrant and identified the phones
as belonging to Appellant and Ms. Carter. A search of Appellant’s cell phone
revealed text messages, which Corporal Howell later testified were
consistent with drug trafficking.2
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2
The content of these text messages does not appear in the certified record.
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Appellant was charged with possession of a controlled substance and
possession with intent to distribute a controlled substance (PWID). On
October 16, 2012, Appellant proceeded to a jury trial.
Cherry Carter was present and testified at the trial. She
testified that she drove [Appellant] to Baltimore, Maryland from
Hagerstown, Maryland on September 3, 2011, where [Appellant]
picked up the cocaine. She then drove [Appellant] back to
Hagerstown where [Appellant] made a drug sale. [Ms. Carter]
next drove [Appellant] to Chambersburg, Pennsylvania where
[Appellant] made additional sales of cocaine. [Ms. Carter] stated
she agreed to drive [Appellant] around in exchange for cocaine.
[Appellant] was supposed to have a large sale of cocaine in
Chambersburg, but it did not occur, so they left Chambersburg
around 7:00 a.m. on the morning of September 4, 2011, after
which they were pulled over by Trooper Long. After they were
pulled over, [Ms. Carter] testified that [Appellant] took the
cocaine out of his pocket and placed it in the bowl of trail mix.
(Trial Court Opinion, 06/04/15, at 5-6 ) (footnote omitted).
Corporal Howell was also present at trial and testified as an expert in
drug investigation and drug trafficking. (See N.T. Trial, 10/16/12, at 93).
During his direct examination, the following exchange took place:
Q: So you are familiar with seeing the type of communications
for drug trafficking as far as text messages. Correct?
A: Absolutely.
Q: Do you always know who typed up the message?
A: No. In fact, most of the time you don’t. Unless you are
doing a hard wire.
Q: So how are you able to figure out that this is a drug text
rather than a non-drug text? Do you have to look at the
context?
[Defense Counsel]: Objection, Your Honor. If I may approach?
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THE COURT: Wait. He is testifying as an expert and he is
talking about how do you know the difference. He is not talking
about the contents of any message. So you can answer that
question.
(Id. at 107-08).
The court recessed and outside of the presence of the jury heard
arguments from counsel regarding admission of the text messages. (See
id. at 109-15). During that discussion, the following exchange took place:
THE COURT: Now I am just asking you hypothetically, he has
been recognized as an expert in drug investigation and drug
trafficking, can he not be asked hypothetically did you review all
of the text messaging on the phone that was identified as
[Appellant’s]? What is your opinion as to the content of that?
[The Commonwealth]: I would be happy to do it that way.
THE COURT: Is this drug trafficking in your opinion. And you
cross-examine him. There is no specifics in there that talk about
drug trafficking or anything else. He is an expert witness.
[Defense Counsel]: I understand that, Your Honor. But I still
object to any reference to any of the text messages contained.
(Id. at 111). Ultimately the trial court ruled “you will not get into any of the
specifics of the texts of what he said, but that he examined the traffic on this
phone and he can render an opinion. I will give you the broadest latitude
about cross-examination.” (Id. at 115).
Corporal Howell’s direct examination continued in the presence of the
jury with the following exchange:
Q: Corporal, did you have an opportunity to review the traffic
of texts on Commonwealth Exhibit Number 14 on [Appellant’s]
cell phone?
A: I have.
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Q: In your expert opinion, did you find texts that were
consistent with drug trafficking?
A: Some of them, yes.
Q: And many more that weren’t?
A: Yes.
(Id. at 115-16).
On October 17, 2012, the trial court charged the jury prior to
deliberation. (See N.T. Trial, 10/17/12, at 157-77). The court did not
include, nor did Appellant request, any specific jury instruction regarding
inadmissible evidence as the basis of expert opinions. (See id.). After
deliberation, the jury found Appellant guilty of both counts. (See id. at
178).
On December 18, 2012, Appellant was sentenced to a period of
incarceration of not less than five nor more than ten years. (See N.T.
Sentencing, 12/18/12, at 9).
On April 8, 2015, Appellant timely filed his notice of appeal.3 Pursuant
to the trial court order, Appellant timely filed a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). The trial court entered an
opinion on June 4, 2015. See Pa.R.A.P. 1925(a).
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3
On September 18, 2013, the trial court granted Appellant’s petition to
reinstate appellate rights. (See Order, 9/18/13). Appellant timely filed his
notice of appeal on October 18, 2013. On December 11, 2013, this Court
dismissed Appellant’s appeal for failure to comply with Pa.R.A.P. 3517. See
Pa.R.A.P. 3517. After a hearing on March 6, 2015, the PCRA court
reinstated Appellant’s right to file a direct appeal. (See Order, 3/13/15).
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Appellant raises one question for our review:
[1.] Did the trial court err by allowing the Commonwealth’s
expert to give an opinion that some of the text messages on
[Appellant’s] cell phone were consistent with drug trafficking,
thereby allowing in evidence of electronic communications that
were not authenticated and/or was inadmissible hearsay[?]
(Appellant’s Brief, at 3 (most capitalization omitted)).
Appellant claims that the trial court erred in permitting the
Commonwealth’s expert, Corporal Howell, to give an expert opinion that
Appellant was involved in drug trafficking rather than merely possession for
personal use, which opinion was based, in part, on text messages from
Appellant’s cell phone that were consistent with drug trafficking. (See
Appellant’s Brief, at 8-13). Appellant argues that this testimony allowed
evidence of electronic communications, the text messages which Corporal
Howell referred to as a basis of his opinion, which were not authenticated
and which constituted inadmissible hearsay. (See id.).
The Commonwealth contends that the question of whether the
evidence was properly authenticated or was inadmissible hearsay evidence is
not triggered in this matter, where the content of the text messages was
never admitted. (See Commonwealth’s Brief, at 8-10). Rather, the
Commonwealth claims that the text messages were one of many indicia that
formed the basis of Corporal Howell’s expert opinion that Appellant was
engaged in drug trafficking rather than possession for personal use. (See
id.). Furthermore, the Commonwealth argues that even if this Court
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determines that admission of testimony regarding the text messages was an
error, such error was harmless. (See id. at 11). We agree.
Preliminarily, we note that this current question does not trigger an
authentication analysis under the standard set forth in Commonwealth v.
Mosley, 114 A.3d 1072 (Pa. Super. 2015), and Commonwealth v. Koch,
39 A.3d 996 (Pa. Super. 2011), affirmed by an equally divided court, 106
A.3d 705 (Pa. 2014) because here, the content of the text messages was not
admitted into evidence. See Koch, supra at 1005 (holding that the trial
court abused its discretion in admitting text messages because there was no
evidence that tended to substantiate that the appellant wrote the drug
related texts); Mosley, supra at 1081-84 (concluding that the trial court
erred in admitting the transcript of text messages into evidence where there
was no evidence proving the appellant had authored the text messages).
Our standard of review concerning a trial court’s admission of evidence
is well settled. “Admission of evidence is within the sound discretion of the
trial court and will be reversed only upon a showing that the trial court
clearly abused its discretion.” Mosley, supra at 1081 (citing
Commonwealth v. Lilliock, 740 A.2d 237 (Pa. Super. 1999)). “Discretion
is abused when the course pursued represents not merely an error of
judgment, but where the judgment is manifestly unreasonable or where the
law is not applied or where the record shows that the action is a result of
partiality, prejudice, bias or ill will.” Commonwealth v. Kinard, 95 A.3d
279, 284 (Pa. Super. 2014) (citations and quotation marks omitted).
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An expert witness is permitted to offer an opinion that is based on
otherwise inadmissible evidence if those types of facts are reasonably relied
on by experts in that field. See Pa.R.E. 703. The commentary to Rule 703
further states that when an expert bases his or her opinion on evidence
which would otherwise be inadmissible, “the trial judge upon request, or on
the judge’s own initiative may, instruct the jury to consider the facts and
data only to explain the basis for the expert’s opinion, and not as
substantive evidence.” Id., Comment.
Once expert testimony has been admitted, the rules of
evidence then place the full burden of exploration of facts and
assumptions underlying the testimony of an expert witness
squarely on the shoulders of opposing counsel’s cross-
examination. It is thus the burden of opposing counsel to
explore and expose any weaknesses in the underpinnings of the
expert’s opinion.
In re D.Y., 34 A.3d 177, 183 (Pa. Super. 2011), appeal denied, 47 A.3d 848
(Pa. 2012) (citation omitted).
Here, the trial court did not abuse its discretion in permitting Corporal
Howell to render an opinion that Appellant was involved in drug trafficking
rather than merely possession where Corporal Howell based that opinion on
the presumptively inadmissible content of Appellant’s cell phone. See
Commonwealth v. Glover, 582 A.2d 1111, 1113-14 (Pa. Super. 1990)
(reasoning that record of drug sales was relevant factor indicating possible
drug transaction).
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Moreover, even if admission of Corporal Howell’s opinion was error,
any error would have been harmless under the circumstances of this case.
Harmless error exists if the record demonstrates either: (1) the
error did not prejudice the defendant or the prejudice was de
minimis; or (2) the erroneously admitted evidence was merely
cumulative of other untainted evidence which was substantially
similar to the erroneously admitted evidence; or (3) the
properly admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict.
Commonwealth v. Hairston, 84 A.3d 657, 671-72 (Pa. 2014), cert. denied
sub nom. Hairston v. Pennsylvania, 135 S. Ct. 164 (2014).
[N]ot all error at trial . . . entitles a [defendant] to a new
trial, and [t]he harmless error doctrine . . . reflects the reality
that the accused is entitled to a fair trial, not a perfect trial[.]
Moreover, it is well established that an error which, when viewed
by itself, is not minimal, may nonetheless be determined
harmless if properly admitted evidence is substantially similar to
the erroneously admitted evidence.
Mosley, supra at 1080 (citations and quotation marks omitted).
In Mosley, this Court held that the trial court erred in admitting
evidence of text messages on Mosley’s cell phone where the messages were
not clearly authenticated because there was no evidence that Mosley was
the author of the messages and because the messages constituted hearsay.
See id. at 1081-86. However, this Court concluded that even without the
improperly admitted text messages, there was relevant, cumulative evidence
indicative of drug activity that had been properly admitted at trial.
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[T]here was independent evidence showing that Mosley threw
bags of drugs from a car he was driving, while being pursued by
the police. Mosley’s possession of two cell phones and U.S.
currency on his person was consistent with drug activity, while
the weight and packaging of the drugs was indicative of
possession with the intent to deliver.
Id. at 1080 (citations omitted). The Court concluded that “if we discount
the improperly admitted text messages . . . we conclude that there is
substantially similar evidence showing that Mosley possessed the drugs with
the intent to deliver.” Id. at 1086.
Here, similarly, the properly admitted and uncontradicted evidence
that Appellant possessed cocaine, and did so with the intent to deliver, was
so overwhelming and the prejudicial effect of Corporal Howell’s testimony
regarding the text messages was so insignificant by comparison that the
error could not have contributed to the verdict. See Hairston, supra at
671-72; see also Mosely, supra at 1086.
At trial, Trooper Long testified that he pulled over the Mitsubishi
Eclipse after it was traveling under the speed limit in the left lane of
Interstate 81. (See N.T. Trial, 10/16/12, at 49). He further testified that
upon request, neither Appellant nor Ms. Carter could produce a driver’s
license and the registration and insurance which Ms. Carter provided him did
not match the Mitsubishi Eclipse, but rather, were for a Ford F150 pick-up
truck. (See id. at 51-53). Trooper Long also testified that after a search of
the Mitsubishi Eclipse, pursuant to a search warrant, that the troopers found
11.4 grams of cocaine packaged in sixty-seven individual packages. (See
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id. at 66-71, 137-43). The troopers did not find any drug paraphernalia or
means of ingesting the cocaine in the vehicle. (See id. at 117-18).
Furthermore, the Commonwealth introduced testimony of Ms. Carter.
. . . She testified that she drove [Appellant] to Baltimore where
[Appellant] picked up cocaine. She then drove [Appellant] back
to Hagerstown and Chambersburg where [Appellant] made drug
sales. [Ms. Carter] and [Appellant] left Chambersburg around
7:00 a.m. in the morning, where they were pulled over by
Trooper Long. After they were pulled over, [Ms. Carter] testified
that [Appellant] took the cocaine out of his pocket and placed it
in the bowl of trail mix, indicating the cocaine was [Appellant’s].
The bowl was found in close proximity to [Appellant]. Corporal
Howell also testified that no crack pipes or other modes of
ingestion were found in the vehicle, indicating the cocaine was
for delivery and not for personal use. Also, Corporal Howell
stated that the way the cocaine was packaged meant it was for
sale and not personal use.
(Trial Ct. Op., at 12).
Therefore, we conclude that even if the trial court erred in permitting
Corporal Howell to opine that Appellant was involved in drug trafficking
rather than purely possession, which opinion was based on several indicia of
drug trafficking including the text messages on Appellant’s phone, such error
was harmless. See Mosley, supra at 1080-86. Accordingly, Appellant’s
issue does not merit relief.
Judgment of sentence affirmed.
Judge Bowes joins the Memorandum.
Judge Panella concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2015
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