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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERNIE B FOSTER :
:
Appellant : No. 627 MDA 2022
Appeal from the Judgment of Sentence Entered March 1, 2022
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0002223-2020
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and SULLIVAN, J.
DISSENTING MEMORANDUM BY BENDER, P.J.E.: FILED: FEBRUARY 8, 2024
I agree with Appellant that the trial court erred by permitting the
Commonwealth to introduce, in its case-in-chief, text messages from
Appellant’s phone that had no relation to the instant crimes and served to
portray Appellant as a drug dealer. The Majority, perhaps recognizing that
the text messages had no connection to this incident, separately opines that
the messages were admissible to undermine Appellant’s “defense” that he
possessed the drugs for personal use. However, this “defense” was not at
issue at the time the trial court admitted the evidence. I would award
Appellant a new trial and therefore respectfully dissent.
Appellant was arrested after a confidential informant purchased drugs
from Rochelle Johnson. Appellant was carrying a fanny pack, which had
several kinds of drugs inside. Appellant also told an arresting officer that the
drugs were for his personal use. As Detective Harold Zech explained at trial,
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none of Appellant’s drug charges pertained to items recovered from his co-
defendant:
So the drugs that were ordered by the [CI] that we were
anticipating to come, they did arrive. They were inside Miss
Johnson’s purse. So there was an ounce of crystal
methamphetamine and there was several grams of Fentanyl inside
her purse. These items are different. These items weren’t even
discussed to be brought here through the [CI].
N.T., 12/7/21, at 87-88; see also id. at 90 (stating that Appellant was
“arrested for possession with the intent to distribute the drugs that were inside
his fanny pack. Nothing that was found on Miss John[son] was attributed to
him.”).
The Commonwealth executed a search warrant on Appellant’s cell phone
and introduced, over Appellant’s objection, several text messages. Detective
Zech testified that he discovered “a lot” of text messages indicative of drug
dealing, and the Commonwealth chose to present “a handful” as illustrative.
Id. at 90. Screenshots of the text messages were displayed to the jury, with
Detective Zech explaining that drug dealers typically speak in code. For
example, the Commonwealth elicited the following:
Q. Detective, can you just walk us through—This one is a little bit
more voluminous so I would just ask you to walk through the text
messages with them. Explain to the jury why you singled these
messages out for this case and for your investigation.
....
A. If you look in the blue, that’s not going to be [Appellant]’s
phone. This is going to be the incoming message. This is typical.
[‘]This is Mina’s friend. Can I get eight?[’]? Just from your day-
to-day occurrences you would normally identify who you are. This
is basically another buyer who is friends with Mina [who is]
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reaching out to [Appellant] to purchase eight—a total of eight
dosage units or possibly eight grams of a certain substance.
Q. And—
A. And then you see on the green the reply is [‘A]re you on
Springfield[,’] which is basically him replying, you know, what is
your location. Springfield is an avenue in Philadelphia.
Id. at 96-97.
The other messages were of similar character. See id. at 98 (“[This is]
another buyer. ‘Are you around? I need two. Are you close by? If not don’t
worry about it.’ So someone is trying to buy two dosage units of a certain
substance and asking for his proximity, if he’s going to be nearby.”); id. at 99
(“It says ‘bro is [it] possible I can get three till Wednesday and I will give you
fifty dollars.’ Basically that’s someone asking for an IOU. Somebody is short
on their money. They need three of whatever substance is being sold….”).
The Commonwealth also introduced messages where Appellant used a third
party. As Detective Zech explained, “[This message] means he’s sending a
third party or there’s a third[-]party associate of his that’s selling the drugs
on the street corner.” Id. The Commonwealth concluded this portion of the
testimony by asking, “And, again, why did you deem [these messages]
relevant to your investigation, Detective?” Id. at 100. He replied, “Because
if I was analyzing anybody’s cell phone, this would be readily apparent to me
that this was drug talk, this is [a] drug thread.” Id.
All relevant evidence is admissible, see Pa.R.E. 402, and the text
messages were certainly relevant: evidence that Appellant was a drug dealer
made it more probable that he possessed the drugs with an intent to deliver.
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Pa.R.E. 401. “Regardless of relevancy, however, evidence of a defendant’s
prior bad acts ‘is not admissible … to show that on a particular occasion the
[defendant] acted in accordance with the character.’ However, such evidence
may be admissible when offered for another purpose, such as to prove the
defendant’s intent.” Commonwealth v. Faison, 297 A.3d 810, 825 (Pa.
Super. 2023) (quoting Pa.R.E. 404(b)(1)). In addition to intent, Rule
404(b)(2) permits admission of such evidence “for another purpose, such as
proving motive, opportunity, … preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Pa.R.E. 404(b)(2). “This list is non-
exclusive.” Commonwealth v. Brown, 52 A.3d 320, 325–26 (Pa. Super.
2012).
The threshold question in a Rule 404(b) analysis is whether the evidence
is relevant to something other than propensity. “[A]s Rule 404(b)(2) reflects,
evidence of ‘other crimes, wrongs, or acts’ may be admitted when relevant for
a purpose other than criminal character/propensity, including: proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake.” Commonwealth v. Dillon, 925 A.2d 131, 137 (Pa.
2007).
The Majority concludes that the text messages “have a logical
connection with the crimes at issue.” Maj. Mem. at 7.1 The Majority also
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1 The trial court did not deem the text messages relevant for any particular
purpose, instead citing several distinct theories, stating: “Upon review, this
(Footnote Continued Next Page)
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notes that “[Appellant] claimed he possessed the drugs for personal use, not
that he did not possess them.” Id. at 10. It is not entirely clear to what
degree the Majority finds that the “logical connection” exists due to its
assessment that Appellant raised a defense that the drugs were for his
personal use. I submit that the theories are doctrinally distinct, and that
neither applies.
Beginning with the “logical connection” theory, our precedents permit
the introduction of prior-act evidence relevant to intent in some
circumstances, and intent does play a role in a PWID case:
It is well settled that all the facts and circumstances surrounding
possession are relevant in making a determination of whether
contraband was possessed with intent to deliver.
In Pennsylvania, the intent to deliver may be inferred from
possession of a large quantity of controlled substance. It follows
that possession of a small amount of a controlled substance
supports the conclusion that there is an absence of intent to
deliver.
Notably, “if, when considering only the quantity of a controlled
substance, it is not clear whether the substance is being used for
personal consumption or distribution, it then becomes necessary
to analyze other factors.”
Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa. Super. 2008) (quoting
Commonwealth v. Brown, 904 A.2d 925, 931-32 (Pa. Super. 2006)).
____________________________________________
[c]ourt found that the information was admissible to show Appellant’s motive,
opportunity, intent, and plan for his possession of the narcotics on the date of
the incident in the above-captioned matter. This [c]ourt also determined that
the probative value of said evidence did not outweigh its potential for unfair
prejudice. As such, this [c]ourt properly allowed the introduction of the
communications extracted from the black iPhone.” Trial Court Opinion,
11/15/22, at 14-15.
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As highlighted by the Commonwealth’s insistence that Appellant offered
a defense of personal use, the key question is whether Appellant merely
possessed the drugs for his personal use or whether he intended to deliver
them. It is obvious that text messages showing that Appellant is a drug dealer
would naturally sway the jury towards the latter conclusion. “It is natural and
well-nigh inevitable that a juror considers a person to be a drug dealer when
told that the same person has dealt drugs multiple times in the past[.]”
Commonwealth v. Hicks, 156 A.3d 1114, 1157 (Pa. 2017) (Wecht, J.,
dissenting). This raises the question of whether evidence of a history of
dealing drugs would ever be admissible under Rule 404(b) to prove a PWID
charge to show intent. On this point, the Majority discusses Commonwealth
v. Camperson, 612 A.2d 482 (Pa. Super. 1992), Commonwealth v. Kinard,
95 A.3d 279 (Pa. Super. 2014) (en banc), and Commonwealth v. Aguado,
760 A.2d 1181 (Pa. Super. 2000) (en banc). My assessment of these cases
differs from that of my colleagues.
In Camperson, the defendant was charged with, inter alia, PWID for
drugs that were seized from his home pursuant to a search warrant, which
was issued based on conduct occurring that very same day. A man named
Brian Wynn was arrested for selling drugs and informed the arresting officer
that he had purchased the drugs from Camperson. Wynn then agreed to act
as an informant and, under police surveillance, delivered $3,500 upfront to
Camperson in exchange for drugs later that evening. The police watched
Camperson leave his home around the designated time and attempted a traffic
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stop. Camperson fled and, after a lengthy chase, was apprehended. He had
238.8 grams of methamphetamine on his person. He was arrested and
charged with several crimes, including PWID for those drugs. Based on this
arrest, a search warrant was obtained for Camperson’s home, leading to the
discovery of more methamphetamine and a second set of charges.
The trial court denied the Commonwealth’s motion to consolidate the
charges and Camperson was found guilty of crimes arising out of his police
chase. Camperson then successfully moved to exclude evidence concerning
those crimes in his trial for the drugs in his home. The Commonwealth
appealed and we reversed, explaining:
In the instant case, the defendant was charged with crimes
involving a specific intent. He was charged with possessing
controlled substances with the intent of delivering them to other
persons. Therefore, it was clearly relevant to show that a few
hours before police found controlled substances in Camperson’s
residence, he had agreed to sell drugs to a third person.
Id. at 484–85. We further concluded that the evidence was not unduly
prejudicial because of the Commonwealth’s need to prove that the
“methamphetamine found in the defendant’s home was intended for
distribution to others. Although this intent may be proved in several ways,
one of the strongest and most compelling pieces of evidence is that the
defendant, in fact, had been distributing methamphetamine on the same day
on which methamphetamine and cocaine were found in his home.” Id. at 485.
In Commonwealth v. Aguado, 760 A.2d 1181 (Pa. Super. 2000) (en
banc), we distinguished Camperson and granted a new trial. Police officers
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had observed Aguado handing items from a small paper bag to another male.
Suspecting a drug deal, officers drove towards Aguado. He tossed the bag on
the ground, which contained ten vials of crack cocaine. The Commonwealth
charged him with PWID. Aguado filed a motion in limine to preclude a prior
conviction for “possession of cocaine with the intent to deliver[,] … [which]
took place nine months earlier, in the same neighborhood.” Id. at 1185. The
trial court held that the evidence could not be introduced in the
Commonwealth’s case-in-chief, but deferred ruling on whether the
Commonwealth could introduce the evidence on rebuttal depending on
Aguado’s testimony. The parties discussed the matter again shortly before
Aguado took the stand. The trial court then “stated its predisposition to admit
Aguado’s prior conviction as evidence of intent” regardless of what he stated
during his testimony. Id. at 1186.
Aguado declined to testify and, on appeal, claimed that this ruling
interfered with his constitutional right to testify. We agreed, holding that the
court erred in preemptively determining that the evidence was admissible:
Here, the trial court indicated that Aguado’s prior criminal conduct
could be admissible to establish the element of intent. In order
for evidence of prior crimes to be admissible to show intent, “the
evidence must give sufficient ground to believe that the crime
currently being considered grew out of or was in any way
caused by the prior set of facts and circumstances.” …
Camperson, … 612 A.2d [at] 484 … (emphasis added). In this
case, the Commonwealth presented no evidence that Aguado’s
conviction “grew out of or was in any way caused by” his prior
drug activity. Moreover, we cannot conclude that Aguado could
form and maintain his “intent” over the nine-month period
between the two incidents.
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We also note that the trial court never weighed the
Commonwealth’s need for the evidence against its potential
prejudicial effect. See Commonwealth v. Steele, … 596 A.2d
225, 227 ([Pa. Super.] 1991) (holding that even where evidence
of prior criminal conduct is within one of the enumerated
exceptions to the prohibition against prior crimes evidence, the
trial court must balance the Commonwealth’s need for the
evidence against its potential prejudice). Although Aguado had
not yet testified when the trial court stated its predisposition, his
defense was clear.
Aguado claimed that he was arrested simply because he was
proximate to the drugs. Thus, the parties disputed the element
of possession, not intent, and the Commonwealth’s need for the
prior crimes evidence in order to establish “intent” was
nonexistent. Contrary to the trial court’s statement, evidence of
Aguado’s prior drug transaction, which occurred nine months
earlier, was not necessary to rebut his defense.
Aguado, 760 A.2d at 1186–87 (emphasis in original).
In Commonwealth v. Kinard, 95 A.3d 279 (Pa. Super. 2014) (en
banc), we held that Camperson supported the trial court’s ruling permitting
the Commonwealth to introduce evidence from recorded jail conversations in
which Kinard generally discussed dealing drugs. Kinard was charged as a co-
conspirator with his cousin, Jessica Morrison, who was the co-defendant in the
case. Officers had observed Morrison making several drug deals and obtained
a warrant to search her home. When the warrant was executed, Kinard was
the only person present. Morrison testified at trial that Kinard gave her the
cocaine found in her home to sell on the street. The trial court concluded that
the jail phone calls were “relevant to establish a chain of events and a course
of criminal conduct that would demonstrate [his] presence in Morrison’s home
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where the police located drugs was not an innocent coincidence or accident as
the defense alleged.” Id. at 285. We agreed, opining:
The telephone calls demonstrate [Kinard]’s knowledge and
awareness of drug trafficking and support Morrison’s testimony
that [Kinard] is the supplier and that he was not innocently in
Morrison’s home, but rather was there conducting business. The
calls also reveal a common plan, scheme, and design. As the trial
court stated, the calls demonstrated that [Kinard] was engaged in
ongoing drug transactions even after he was arrested. The drug
transactions were similar, if not identical, to the drug transactions
for which he was charged. The calls also reveal [Kinard]’s
knowledge of and use of coded language. Again, Morrison testified
that she used coded language when she asked [Kinard] for drugs.
Morrison asked [Kinard] for “ten twenties.” [Kinard], in turn, met
her request and supplied the drugs. The coded language used
during the taped phone calls was similar and demonstrated not
only that [Kinard] understood the code used by others but
[Kinard] also used the language himself.
Id.
I find that the instant case is more like Aguado than Camperson and
Kinard. Indeed, in the latter two cases, we determined that the other-act
evidence was admissible because it “grew out of” the offenses that were
charged. In Camperson, we explicitly cited the closeness in time of the prior
offense, stressing that “it was clearly relevant to show that a few hours before
police found controlled substances in Camperson’s residence, he had agreed
to sell drugs to a third person.” Camperson, 612 A.2d at 484. The fact that
an informant had arranged for Camperson to deliver drugs indicates that the
relevant point is that the other-act evidence established a plausible link to the
same stash of drugs. This is further supported by the fact that the drugs
found on Camperson after the crash and the drugs found in his home were
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both methamphetamine. Thus, the second set of charges pertaining to the
drugs in the home grew out of the earlier sale in the sense that the two were
part of a common scheme, as the authorities knew that Camperson was on
his way to deliver drugs for which he had previously received thousands of
dollars. Camperson, thus in truth, does not rely on the “intent” exception to
Rule 404(b) as an independent basis for admitting the evidence but, instead,
permitted the introduction of a common scheme as a means of establishing
intent. See Hicks, supra at 1146 (Donohue, J., dissenting) (stating that
“invocation of the common scheme exception should be limited to
circumstances from which a true plan or motive can be inferred”).
That the other-act evidence in the PWID context must be part of a
common scheme to the charges at issue is corroborated by how Aguado
distinguished Camperson. In Aguado, we noted that “the Commonwealth
presented no evidence that Aguado’s conviction ‘grew out of or was in any
way caused by’ his prior drug activity.” Aguado, 760 A.2d at 1186-87.
Moreover, we stated that we could not “conclude that Aguado could form and
maintain his ‘intent’ over the nine-month period between the two incidents.”
Id. at 1187. In other words, in Camperson, there was a sound basis to link
the drugs found on Camperson to the drugs found in his home as part of the
same scheme. The same could not be said in Aguado. Hence the Aguado
Court’s skepticism that acts occurring nine months before the instant offense
could establish an ongoing “intent” to sell the drugs at issue. In contrast, in
Camperson, the same “intent” existed for both incidents because the
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evidence established that the two events were all part of an overarching
scheme to sell that particular quantity of drugs.
Kinard lends some support to the Commonwealth’s position because
the recorded phone calls did not appear to relate to a common stash of drugs,
so to speak. Indeed, this was the principal focus of the four dissenting judges.
Kinard, 95 A.3d at 296 (Donohue, J., dissenting) (“[T]he recordings …cover
a variety of topics…. There are references to broad drug distribution activity,
including mentions of the sale of drugs generally and of various amounts of
money….”). The case is nonetheless distinguishable. The Kinard Court
concluded that “the calls demonstrated that [Kinard] was engaged in ongoing
drug transactions even after he was arrested. The drug transactions were
similar, if not identical, to the drug transactions for which he was charged.”
Id. at 285. The Kinard Dissent argued that this was not an accurate
characterization of the facts, but as a matter of law, the Kinard Court
accepted that the other-act evidence would need to be “similar, if not
identical” in character. Id.
Here, the text messages displayed and narrated to the jury simply do
not have any kind of connection whatsoever to the present charges. Nor do
the messages establish any kind of similar, ongoing scheme specific to the
drugs Appellant possessed. As quoted, Detective Zech’s narration of the text
messages showed that the messages referred to generic “units” or “dosages”
of unspecified drugs, and the Commonwealth also introduced messages
showing that Appellant directed third parties to deliver drugs. Thus, the text
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messages did not relate to the drugs recovered from Appellant’s fanny pack,
nor did the messages have anything to do with the circumstances that led the
police to arrest Appellant. The text messages also all apparently related to
drug deals taking place in Philadelphia. These facts all strongly indicate that
the only reason the Commonwealth sought to introduce the evidence was to
portray Appellant as a drug dealer in general. This conclusion is underscored
by the fact that the Commonwealth signaled to the jury that Appellant’s cell
phone contained much more evidence than that which it presented, as the
Commonwealth told the jury it chose to introduce “[j]ust a handful” of the
messages that Detective Zech reviewed. N.T., 12/7/21, at 95.
Additionally, in Kinard, the Commonwealth charged Kinard as a
conspirator, and the Kinard Court cited the need to establish conspiratorial
liability. Specifically, the Kinard Court opined that “[t]he … case also involves
a conspiracy charge. Thus, it was also necessary to establish [Kinard’s] intent
to promote or facilitate PWID.” Kinard, 95 A.3d at 286. This again contrasts
with the instant facts, where the Commonwealth freely admitted that the
event precipitating Appellant’s arrest—the arranged deal between the CI and
Johnson—had nothing to do with Appellant.
In sum, there is no association between the drugs at issue and the prior-
act evidence, making this case much closer to Aguado. The Aguado Court
was skeptical of the proposition that evidence from nine months ago bore any
relation to an ongoing “intent” to deliver drugs. The same point applies here.
Moreover, in Aguado, the other-act evidence was related to the crimes
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because the prior conviction concerned drugs being sold in the same area.
Here, the evidence merely established that Appellant was a generic drug
dealer. Thus, I believe that the trial court abused its discretion in concluding
that this evidence was relevant for anything other than showing Appellant’s
propensity to deal drugs.
Having determined that the evidence was not admissible to prove
Appellant’s intent with respect to the specific drugs he possessed, I now
address the alternative theory that the Commonwealth was permitted to
anticipatorily undermine Appellant’s “defense” that he possessed the drugs for
personal use. In Hicks, supra, then-Chief Justice Saylor’s concurring opinion
approvingly cited decisions from other jurisdictions discussing the “intent”
exception. I find the following discussion from one of those cases to be
persuasive:
The intent exception in [Indiana Rule of Evidence] 404(b) will be
available when a defendant goes beyond merely denying the
charged culpability and affirmatively presents a claim of particular
contrary intent. When a defendant alleges in trial a particular
contrary intent, whether in opening statement, by cross-
examination of the State’s witnesses, or by presentation of his
own case-in-chief, the State may respond by offering evidence of
prior crimes, wrongs, or acts to the extent genuinely relevant to
prove the defendant’s intent at the time of the charged offense.
The trial court must then determine whether to admit or exclude
such evidence depending upon whether “its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of
cumulative evidence.” [Indiana Rule of Evidence] 403.
....
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Because, as discussed above, the “intent” exception in [Indiana
Rule of Evidence] 404(b) applies when the defendant presents a
claim of particularly contrary intent, the determinative factor in
the present case is whether the prior conduct evidence was
admitted before the defendant presented any such claim. The
State’s case-in-chief included evidence that the defendant, in
response to police questions as to whether he touched the victim’s
penis, responded that he was not a “devious character.” This
statement does not constitute an assertion of particular contrary
intent so as to permit the State to utilize the intent exception of
[Indiana Rule of Evidence] 404(b) to present prior conduct
testimony.
Wickizer v. State, 626 N.E.2d 795, 799-800 (Ind. 1993) (some internal
citations omitted).
I agree with this reasoning. The validity of admitting other-act evidence
to counter a defense cannot be based on the Commonwealth’s desire to
anticipatorily rebut said defense. The defense must be placed into issue by
the defendant. Here, the only indication that Appellant intended to assert that
he possessed the drugs for personal use was his statement to the arresting
officers. As Appellant observes, “the pure act of going to trial is the rest of
pleading [n]ot [g]uilty,” and the Commonwealth cannot introduce “irrelevant
allegations as … rebuttal to the defendant’s natural claim of innocence.”
Appellant’s Brief at 13. Moreover, possession of the drugs for personal use is
not an affirmative defense to the charge; had Appellant convinced the jury
that the drugs were for his personal use, it simply would have negated the
element of possession with intent to deliver. Allowing the Commonwealth to
establish that a defendant must have intended to commit a crime due to
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having previously committed said crimes is the core propensity purpose that
Rule 404(b) prohibits.
Finally, I express no opinion on whether the text messages would be
relevant in rebuttal had Appellant testified in his own defense and claimed
personal use. I acknowledge that Appellant ultimately did so. However, it is
impossible to determine whether Appellant would have made the same choice
had the trial court correctly excluded the text messages from evidence.
For the foregoing reasons, I conclude that the trial court abused its
discretion. I would therefore grant a new trial.2
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2 The Commonwealth did not address whether the error was harmless beyond
a reasonable doubt. As our Supreme Court held in Commonwealth v.
Hamlett, 234 A.3d 486 (Pa. 2020), we may invoke the doctrine sua sponte.
Additionally, “when an appellate court deems it appropriate to exercise its
discretion to undertake a harmless error analysis of its own accord in close
cases, it has the ability to enhance fairness to the defendant and facilitate its
own review by directing that there be supplemental briefing.” Id. at 494.
Assuming that this authority extends to allowing the Commonwealth to
remedy its defect when we are prepared to rule in favor of an appellant, I
would decline to do so, as I am convinced that the error was not harmless
beyond a reasonable doubt. Harmless error is found in three situations:
(1) the error did not prejudice the defendant or the prejudice was
de minimis;
(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.
(Footnote Continued Next Page)
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Commonwealth v. Wright, 961 A.2d 119, 143 (Pa. 2008) (quoting
Commonwealth v. Young, 748 A.2d 166, 193 (Pa. 1999)). Telling the jury
that Appellant was a habitual drug dealer plainly prejudiced Appellant, and it
was not de minimis. The evidence was not cumulative of anything else.
Finally, I cannot say as a matter of law that the evidence of guilt was
overwhelming.
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