J-S21003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KENNETH J. SPONSLER
Appellant No. 208 WDA 2016
Appeal from the Judgment of Sentence January 12, 2016
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0000935-2015
CP-07-CR-0000941-2015
BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED APRIL 26, 2017
Kenneth J. Sponsler appeals from the judgment of sentence, entered
in the Court of Common Pleas of Blair County, following his conviction for
multiple offenses stemming from a narcotics transaction.1 After review, we
affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Sponsler was charged and convicted of possession of a controlled
substance, 35 P.S. §780-113(a)(15) (heroin), delivery of a controlled
substance, 35 P.S. §780-113(a)(30), and criminal conspiracy, 18 Pa.C.S.
§903.
J-S21003-17
On September 8, 2014, the West IV Drug Task Force2 (“Task Force”)
coordinated a controlled buy of heroin between a previously developed
confidential informant (“CI”) and an associate of Sponsler, Dennis Campbell.
The CI informed Task Force Sergeant Christopher Moser he had arranged a
purchase with Campbell to buy five packets of heroin for one hundred
dollars, and that the heroin “would come from a white male named Ken
[Sponsler].” N.T. Trial, 10/19/15, at 140. The CI stated Sponsler drove a
blue Saturn vehicle. Before the CI initiated the buy, Sergeant Moser strip-
searched him for contraband and found none. Sergeant Moser then
provided the CI with one hundred dollars buy money, and another Task
Force officer drove the CI to meet Campbell at his apartment.
After the CI arrived, he entered Campbell‟s apartment, where he
observed Campbell make a phone call to a person Campbell identified as
Sponsler. Shortly thereafter, Sergeant Moser observed Sponsler arrive at
the apartment in a blue Saturn, license plate number HFG5160, registered to
“Kenny Sponsler.” Sponsler entered the apartment and proceeded to the
bathroom in Campbell‟s bedroom. Campbell gestured, with head nods, for
the CI to give him the buy money, and took receipt of the one hundred
dollars from the CI. Campbell then followed Sponsler into the bathroom.
____________________________________________
2
The West IV Task Force consists of law enforcement officers of the Altoona
County Police Department, the Altoona County Sheriff‟s Department, the
Pennsylvania State Parole Office, and the Blair County Parole Office.
-2-
J-S21003-17
The CI did not follow Sponsler and Campbell into the bathroom, stating
doing so would have been irregular and may have compromised the heroin
transaction. Moments after Campbell entered the bathroom, he and
Sponsler exited, and Campbell handed the CI five bags of heroin. Afterward,
the CI left Campbell‟s apartment and turned the heroin over to the Task
Force. During the course of the controlled buy, the CI constantly
communicated with Sergeant Moser via cellular text messaging.
On April 01, 2015, Altoona Police Patrolman Fred Wasser and Agent
Hauser of the State Parole Office, during the course of a countywide raid,
executed an arrest warrant for Sponsler stemming from the September 8,
2014 heroin transaction. Following a lengthy chase, Patrolman Wasser and
Agent Hauser apprehended Sponsler.
On October 15, 2015, Sponsler proceeded to jury trial. During direct
examination of Patrolman Wasser, the Commonwealth elicited the following
testimony:
PATROLMAN WASSER: My assignment was the arrest, capture of a
target.
…
COMMONWEALTH: And did you go by yourself to execute this
assignment or were you given a partner?
A.: I was assigned a team member force the day. That team
member was Agent Hauser with the State Parole Office.
Q.: And does State Parole and other entities such as the
Sheriff‟s Department and county parole participate in executing
these sweeps or drug raids?
A.: Yes, sir.
-3-
J-S21003-17
N.T. Trial, 10/19/15, at 101-02. Wasser‟s mention of “the State Parole
Office” prompted Sponsler‟s counsel to make a motion for mistrial on the
grounds the Commonwealth introduced fatal prejudice. Id. Prior to trial,
the Commonwealth and Sponsler agreed not “to mention parole and any
kind of reference to it.” Id. The trial court denied Sponsler‟s motion, but
offered to provide the jury a cautionary instruction. Id. Sponsler declined
the offer and acknowledged on the record that the testimony regarding the
State Parole Agent “was not prompted by the Commonwealth,” but rather,
“was a spontaneous answer from the officer.” Id.
Later, during direct examination of Patrolman Daniel Vasil, Sponsler
again requested sidebar to discuss the introduction of potentially prejudicial
testimony. The Commonwealth assured the court it would not ask any
questions about the State Parole Office or State Parole Agents, and, in fact,
had prepared no such questions. N.T., 10/19/15, at 120. Neither the
Commonwealth nor Sponsler called State Parole Agent Hauser to testify.
On January 12, 2016, the court sentenced Sponsler to three to six
years‟ imprisonment. On February 1, 2016, Sponsler filed a timely appeal,
and on February 5, 2016, the court granted Sponsler leave to proceed on
appeal in forma pauperis pursuant to Pa.R.A.P. 522(d). The trial court did
not serve a Pa.R.A.P. 1925(b) order to Sponsler until August 23, 2016. On
September 12, 2016, he timely filed a Pa.R.A.P. 1925(b) concise statement
of matters complained of on appeal. Sponsler presents the following issues
for our review:
-4-
J-S21003-17
1. Whether the trial court erred where it denied Sponsler‟s
mistrial motion after Commonwealth‟s witness testified
that a State Parole Officer assisted executing an arrest
warrant for Sponsler, where the jury could have
reasonably inferred that the accused had engaged in other
unrelated criminal activity?
2. Whether the evidence presented by the Commonwealth
was sufficient to sustain the verdict when no one was able
to observe the alleged delivery of drugs, which left the jury
to decide the case on speculation and conjecture?
Sponsler first claims Patrolman Wasser‟s testimony created an
inference in the minds of the jurors of prior criminal activity on the part of
Sponsler, which created unfair prejudice and therefore denied him a fair
trial.
Where a defendant challenges testimony on the basis that it refers to
prior criminal activity, the operative question is whether or not a juror “could
reasonably infer from the facts presented that the accused had engaged in
prior criminal activity.” Commonwealth v. West, 656 A.2d 519, 521 (Pa.
Super. 1995) (citation omitted). However, there is no per se rule that any
mention of a defendant's prior criminal activity warrants a mistrial. See
Commonwealth v. Valerio, 712 A.2d 301, 303 (Pa. Super. 1998) (“there
is no „per se‟ rule requiring a new trial for every reference” to appellant‟s
prior criminal activity). Rather, reference to prior criminal activity only
warrants reversal if the record illustrates that prejudice resulted from the
reference. See Commonwealth v. Nichols, 400 A.2d 1281, 1281 (Pa.
1979) (“passing references” to criminal activity do not warrant reversal).
-5-
J-S21003-17
Sergeant Wasser‟s testimony that a State Parole Agent participated in
the execution of Sponsler‟s arrest warrant does not reference prior criminal
activity on the part of Sponsler. Rather, it created potentially prejudicial
ambiguity as to the role of the state parole office in this case. The
Commonwealth sought to clarify the role of the state parole office by
submitting testimony to the jury that various law enforcement agencies
participate in countywide sweeps and drug raids. There are no other
references to parole in the record. Additionally, the record indicates the
intent of the prosecutor in asking this question was merely to “introduce the
fact [Sergeant Wasser] was not by himself.” N.T. Trial, 10/19/15, at 103.
Sponsler concedes the Commonwealth did not intentionally elicit
testimony regarding the state parole agent, and the Commonwealth took
special care to prevent further incidental references to the State Parole
Office. Id. at 103, 120. See Commonwealth v. Richardson, 437 A.2d
1162 (Pa. 1981) (nature of reference to prior criminal conduct of defendant
as well as whether Commonwealth intentionally elicited remark are
considerations relevant to determination of whether mistrial is required when
witness refers to prior criminal conduct of defendant).
Moreover, the trial court offered to provide the jury with a cautionary
instruction. N.T. Trial, 10/19/2015, at 103. Commonwealth v. Ford, 607
A.2d 764, 766-67 (Pa. Super. 1997) (“[I]n certain situations, curative
instructions may suffice to remove the taint of unintentional and innocuous
reference to prior criminal activity.”); see Commonwealth v. Rhodes, 378
-6-
J-S21003-17
A.2d 901 (Pa. Super. 1977) (where it is evident that introduction of an
improper reference was not intentional and nature of comment was
innocuous, immediate and effective curative instructions may remedy error).
However, Sponsler‟s counsel declined the trial court‟s offer to provide an
instruction. This tactical decision does not necessarily defy convention nor
does it necessitate a mistrial. See Commonwealth v. Gilliard, 446 A.2d
951, 953 (Pa. Super. 1982) (mistrial not granted where trial judge offered to
give cautionary instruction to cure witness‟ prejudicial remark, but appellant
declined for tactical reasons). Indeed, in some instances, cautionary
instructions are more prejudicial than curative. See Commonwealth v.
DeCampli, 364 A.2d 454, 459 (Pa. Super. 1976). (“Any doubt in the minds
of the jury about appellant's prior criminal conduct was eradicated by the
sheer number of times that the court was forced to give cautionary
instructions, which only served to underscore the meaning of the prejudicial
testimony.”).
After review, we conclude the references to Agent Hausler and the
State Parole Office did not deprive Sponsler of a fair trial. Therefore, the
remarks are not grounds for mistrial.
In his final claim, Sponsler asserts that the evidence was insufficient to
support the verdict.3 In reviewing a challenge to the sufficiency of the
____________________________________________
3
We note that the trial court‟s Rule 1925(b) opinion fails to address
Sponsler‟s challenge to the sufficiency of the evidence. The trial court states
(Footnote Continued Next Page)
-7-
J-S21003-17
evidence, we must determine whether, viewing the evidence in the light
most favorable to the Commonwealth as verdict winner, together with all
reasonable inferences therefrom, the trier of fact could have found that each
and every element of the crimes charged was established beyond a
reasonable doubt. Commonwealth v. Randall, 758 A.2d 669, (Pa. Super.
2000).
It is important to note the distinctions between a claim challenging the
sufficiency of the evidence and a claim that challenges the weight of the
evidence. See Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.
2000). Acknowledging this distinction, we proceed with our analysis.
In order to convict an accused of possession with intent to deliver
under 35 P.S. § 780-113(a)(3)), “the Commonwealth must prove that he
both possessed the controlled substance and had an intent to deliver that
substance.” Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super.
2011) (citations omitted).
The CI testified that he contacted Campbell with the intent to purchase
five packets of heroin for one hundred dollars, and that Campbell told him
_______________________
(Footnote Continued)
with respect to issue 2, “For the defense matter #2 the verdict was against
the weight of the evidence, the court will rely on the record.” Nevertheless,
we are able to review Sponsler‟s claim. See Eiser v. Brown &
Williamson Tobacco Corp., 938 A.2d 417 (Pa. 2007) (failure of trial court
to address issues raised by appellant in 1925(b) statement impedes
appellate review).
-8-
J-S21003-17
Sponsler would provide the heroin. The CI, Campbell and Sponsler met at
Campbell‟s apartment, where the heroin transaction occurred. The CI did
not give payment or take receipt of the heroin until after Sponsler arrived
and met in private with Campbell. Although Campbell and Sponsler were out
of the CI‟s view immediately before the CI gave payment and took receipt of
the heroin, the CI testified this was normal.
This evidence, viewed in light most favorable to the Commonwealth,
establishes that Sponsler had possession of at least five packets of heroin
and planned and participated in the distribution of heroin. See
Commonwealth v. West, 937 A.2d 516 (Pa. Super. 2007) (evidence was
sufficient to support conviction for delivering cocaine; confidential informant
telephoned police and arranged to buy cocaine, officers searched confidential
informant‟s person and vehicle before the drug buy to verify that he did not
possess drugs or money, officers gave confidential informant currency to
purchase cocaine, officers observed confidential informant meet with
defendant, afterward the confidential informant gave the police cocaine he
had just purchased; confidential informant would later testify, at trial, that
he bought the cocaine from appellant).
Judgment of sentence affirmed.
-9-
J-S21003-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/2017
- 10 -