J-S66008-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
BRANDON RAHEEM HAYES
Appellant No. 374 MDA 2016
Appeal from the Judgment of Sentence March 5, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0002408-2014
BEFORE: BOWES, PANELLA AND JENKINS, JJ.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 16, 2016
Brandon Hayes appeals from the March 6, 2015 judgment of sentence
of three and one-half to seven years imprisonment and thirty days
probation, which was imposed after he was found guilty of person not to
possess, firearms not to be carried without a license, and possession of a
small amount of marijuana. We affirm.
The following facts were adduced at trial. On March 16, 2014,
Appellant was a passenger in the front seat of a vehicle that was stopped at
a DUI checkpoint on the business loop of Interstate 83 north of York City.
Corporal Alan Trees of the Pennsylvania State Police directed his attention to
the driver of the vehicle, Claudia Calderon, who produced her license and
other paperwork. Trooper Jeremy Corrie approached the passenger side of
J-S66008-16
the vehicle. Both troopers testified that the odors of marijuana and alcohol
emanated from the vehicle. In response to Corporal Trees’ inquiry, Ms.
Calderon admitted that she had been drinking, but she passed a field
sobriety test and breathalyzer. Thereafter, Ms. Calderon consented to a
search of her car, and Appellant was directed to exit the vehicle. Police
found a loaded Smith & Wesson .357 Magnum revolver protruding from
beneath the passenger seat in which Appellant had been sitting, and a
partially burned marijuana cigarette. Appellant admitted ownership of the
marijuana cigarette but he and Ms. Calderon denied any knowledge of the
firearm. The firearm was loaded with six rounds of Remington-Peterson
brand .357 Magnum ammunition stamped with “R&P”.
Upon determining that there were outstanding warrants for Appellant,
the officers took him into custody and charged him with receiving stolen
property, person not to possess a firearm, firearms not to be carried without
a license and possession of a small amount of marijuana. While in jail,
Appellant made a phone call during which he made cryptic references to a
“joint under the seat” and stated that, “he had wiped it down.” N.T. Non-
Jury Trial, 2/5/15, at 58, 59. Since the firearm was devoid of prints,
Corporal Trees interpreted the latter remark to mean that Appellant had
wiped down the gun located under his seat to remove any fingerprints. The
parties stipulated that Appellant was a person who was prohibited from
possessing a firearm.
-2-
J-S66008-16
Prior to trial, the Commonwealth filed a motion in limine seeking a
ruling from the trial court on the admissibility of evidence that on December
31, 2013, Appellant possessed fourteen rounds of .357 Magnum ammunition
bearing the brand stamp R&P, which was the same brand of ammunition
contained in the firearm seized from the vehicle. The court ruled that Officer
Jason Jay of the York City Police Department could testify that when he
searched Appellant on that date, Appellant had that ammunition on his
person.
Following a bench trial on February 5, 2015, Appellant was convicted
of all charges except receiving stolen property, and he was sentenced as
aforesaid. On October 16, 2015, Appellant filed a PCRA petition alleging that
trial counsel was ineffective for failing to file a requested direct appeal. The
Commonwealth agreed to the reinstatement of Appellant’s direct appeal
rights since he had not been properly advised of those rights at sentencing,
and an order to that effect issued on February 4, 2016. Appellant filed the
instant direct appeal and timely complied with the trial court’s order to file a
Rule 1925(b) concise statement of errors complained of on appeal. The trial
court penned its Rule 1925(a) opinion, and this matter is now ready for our
review.
Appellant presents one issue for our consideration: “Whether the trial
court erred by granting the Commonwealth’s Motion in Limine to admit prior
-3-
J-S66008-16
bad acts of Appellant, namely his possession of .357 magnum ammunition
three months prior to the incident?” Appellant’s brief at 6.
For challenges to evidentiary rulings, our review is limited to a
determination whether a trial court abused its discretion. Commonwealth
v. Aikens, 990 A.2d 1181, 1184-85 (Pa.Super. 2010). “A trial court's
decision will not be reversed absent a clear abuse of discretion. An abuse of
discretion is not merely an error of judgment, but rather 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.” Id. at 1184-85(citations omitted).
The trial court ruled the ammunition evidence admissible under the
exceptions delineated in Pa.R.E. 404(b)(2) for evidence of prior crimes and
bad acts. Since the evidence was not offered to show that Appellant acted in
conformity therewith or that he had a propensity to commit such crimes, the
trial court concluded that Appellant’s possession of identical ammunition
three months before the stop tended to identify Appellant as the owner of
the loaded .357 Magnum found under his seat.
“Evidence is relevant when it has any tendency to make a fact more or
less probable than it would be without the evidence; and the fact is of
consequence in determining the action.” Pa.R.E. 401. “All relevant evidence
is admissible, except as otherwise provided by law. Evidence that is not
relevant is not admissible.” Pa.R.E. 402. Furthermore, relevant evidence is
-4-
J-S66008-16
only admissible where the probative value of the evidence outweighs its
prejudicial impact. Commonwealth v. Owens, 929 A.2d 1187, 1189,
(Pa.Super. 2007). “The court may exclude relevant evidence if its probative
value is outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.
At issue is the admissibility of evidence that, three months prior to the
stop herein, Appellant possessed ammunition of the same caliber and stamp
as that found in the loaded .357 Magnum found under his seat. Pa.R.E.
404(b) governs the admissibility of evidence of a party’s prior wrongs or
other acts, and it provides in pertinent part:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other
act is not admissible to prove a person's character in
order to show that on a particular occasion the person
acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident. In a criminal
case this evidence is admissible only if the probative
value of the evidence outweighs its potential for unfair
prejudice.
Pa.R.E. 404(b)(1) and (2).
-5-
J-S66008-16
Our High Court summarized the law governing the admissibility of
prior bad acts evidence in Commonwealth v. Sherwood, 982 A.2d 483,
497 (Pa. 2009):
Generally, evidence of prior bad acts or unrelated criminal activity
is inadmissible to show that a defendant acted in conformity with
those past acts or to show criminal propensity. Pa.R.E. 404(b)(1).
However, evidence of prior bad acts may be admissible when
offered to prove some other relevant fact, such as motive,
opportunity, intent, preparation, plan, knowledge, identity, and
absence of mistake or accident. Pa.R.E. 404(b)(2). In determining
whether evidence of other prior bad acts is admissible, the trial
court is obliged to balance the probative value of such evidence
against its prejudicial impact. Commonwealth v. Powell, 598
Pa. 224, 956 A.2d 406, 419 (2008).
Id. at 497. Decisions such as whether evidence is too remote to be
probative rest within the sound discretion of the trial judge.
Commonwealth v. Christine, 125 A.3d 394 (Pa. 2015).
Appellant contends that evidence that he possessed ammunition of the
same caliber and brand as that loaded in the firearm found underneath his
seat three months prior to the stop herein “lacked a temporal and logical
connection to the crime to be relevant.” Appellant’s brief at 11. He
maintains further that, “Even if the evidence is relevant, it was overly
prejudicial to prove constructive possession of the firearm.” Appellant’s brief
at 11. Finally, Appellant contends that the evidence was inadmissible prior
bad acts evidence under Pa.R.E. 404(b)(1) and (b)(3).
The Commonwealth counters that because the ammunition inside the
.357 Magnum revolver found underneath the Appellant’s seat “matched the
-6-
J-S66008-16
ammunition previously seized[,]” it was admissible to establish Appellant’s
possible connection with a .357 Magnum and to suggest that the proximity
of the firearm to Appellant was not an accident. Appellant relies upon two
cases in support of his position that the York City incident three months
before was too remote to be of any probative value. First, he attempts to
distinguish Commonwealth v. Miles, 681 A.2d 1295 (Pa. 1996), where we
affirmed the trial court’s admission of evidence that the defendant
brandished a .357 Magnum when he robbed a young boy just hours before a
murder. We found such evidence admissible to prove that the defendant
possessed such a weapon at the time of the murder. Second, in
Commonwealth v. Owens, supra, we upheld the trial court’s ruling that
shotgun shells seized from the defendant’s car three days after a shooting
that were similar to those used in the shooting were admissible as they
linked the defendant to the crime. Appellant argues that, due to the three-
month gap between the first incident and the DUI stop herein, the evidence
of his possession of the same type of ammunition lacked the requisite
probative value to be admissible.
Although the time between Appellant’s prior possession of ammunition
and the crime herein was longer than a few hours or days, we find it
temporally proximate enough to make it more probable that he, rather than
the driver, possessed the gun found under his seat. See Commonwealth
v. Weakley, 972 A.2d 1182, 1190 (Pa.Super. 2009) (eight month lapse of
-7-
J-S66008-16
time between crimes did not render the other crimes evidence too tenuous
for admission); see also Commonwealth v. Shoatz, 366 A.2d 1216 (Pa.
1976) (possession of the same type of military weapons used in the murder
was admissible to connect the defendant to the crime that occurred one and
one-half years after the incident and viewing the time interval between the
two events as bearing on the weight of the evidence, not its competency).
Appellant argues further that there was nothing unique about the
ammunition that would suggest a signature or pattern. He contrasts the
facts herein with those in Commonwealth v. Broaster, 863 A.2d 588
(Pa.Super. 2004),1 where the trial court ruled admissible the .45 caliber
handgun defendant discarded just prior to his arrest even though it was not
the .45 caliber murder weapon. The court found therein that the fact that
both handguns were of the same caliber and uniquely loaded by staggering
three rounds from different manufacturers was probative of a signature that
linked the defendant to the murder. Similarly, in Shoatz, supra, evidence
that the defendant possessed advanced military-type weapons and
ammunition when he was arrested was admitted to prove that the defendant
____________________________________________
1
In Broaster v. Houtzdale, 2011 U.S. Dist. LEXIS 86832 (E.D. Pa. 2011),
the district court conditionally granted habeas corpus relief on the ground
that counsel was ineffective for failing to object to the state court instruction
about the inferences the jury could draw from petitioner's possession of a
different handgun of the same caliber as the murder weapon three months
after the murder.
-8-
J-S66008-16
conspired with a militant group that killed police officers. The court viewed
his possession of weapons that were inaccessible to the public generally as
probative of the defendant’s affiliation with the group. We find evidence that
Appellant possessed ammunition of the same caliber and stamp to be
sufficiently distinctive to link Appellant to the firearm in the vehicle, and
thus, admissible under Pa.R.E. 404(b)(2).
Appellant does not dispute that evidence offered to prove identity, and
absence of mistake or accident, is admissible under Pa.R.E. 404(b)(2).
However, he maintains that even Rule 404(b)(2) evidence may be
inadmissible under Pa.R.E. 404(b)(3), where, as here, its probative value is
outweighed by its prejudicial effect.
We do not find the evidence to be unfairly prejudicial. It was not a
weapon nor was it the type of evidence that would ordinarily inflame the
passions of the factfinder and suggest a decision on an improper basis.
Furthermore, this was a bench trial. We find it unlikely that the trial court
would be improperly swayed by this evidence or accord it any greater weight
than it deserved. Hence, Officer Jay’s testimony regarding Appellant’s prior
possession of fourteen rounds of .357 Magnum ammunition bearing the
stamp R&P, which was identical to the ammunition in the .357 Magnum
found under Appellant’s seat herein, was more probative than prejudicial on
-9-
J-S66008-16
the issue of whether Appellant constructively possessed the .357 Magnum. 2
Thus, we find no abuse of discretion in its admission.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2016
____________________________________________
2
Appellant suggests that the cases relied upon by the Commonwealth and
the trial court are distinguishable as they involved crimes that were “more
than just a possessory crime and instead involved use of the weapon to
commit assault, robbery or a murder.” Appellant’s brief at 18. Appellant
offers no rationale why the nature of the crime warrants different treatment,
and we can think of none.
- 10 -
J-S66008-16
- 11 -