J. S69021/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

:

v. :

:

CARL PATRICK :

:

APPELLANT : No. 523 MDA 2016

Appeal from the Judgment of Sentence October 28, 2015

In the Court of Common Pleas of Lebanon County 

Criminal Division at No(s): CP-38-CR-0000114-2015

 

BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY DUBOW, J.: FILED DECEMBER 07, 2016

Appellant, Carl Patrick, appeals from the October 28, 2015 Judgment 

of Sentence entered in the Lebanon County Court of Common Pleas following 

his conviction of one count of Possession with Intent to Deliver a Controlled 

Substance and one count of Criminal Use of a Communication Facility.1 After

careful review, we affirm on the basis of the trial court’s Opinion. 

The trial court summarized the factual and procedural history of this 

case as follows:

[At Appellant’s jury trial,] Sergeant Brett Hopkins of the Lebanon 

County Drug Task Force testified that the [instant] charges arose 

from an investigation using a confidential informant, Deborah 

Arnold. Hopkins explained that individuals often offered to 

 

* Retired Senior Judge Assigned to the Superior Court.

1 35 P.S. § 780-113(a); and 18 Pa.C.S. § 7512(a), respectively. 
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cooperate with the Drug Task Force when they have criminal 

charges pending against them. He acknowledged that Arnold did 

have three pending theft charges at the time of the 

investigation, but noted that no promises or assurances had 

been made to her regarding the disposition of those charges. 

Throughout the course of the investigation, Arnold had given 

information to the Drug Task Force which Hopkins had been able 

to verify.

Hopkins explained that Arnold had contacted the Drug Task 

Force and informed them that she could purchase drugs from an 

individual known to her as "Loso" and that Hopkins had arranged 

to meet with Arnold on the evening of June 14, 2014. He 

explained that they planned to conduct a "controlled buy" during 

which Arnold would arrange to buy drugs from "Loso." Arnold 

would contact "Loso" via phone call in Hopkins' presence and 

Hopkins would accompany her to the location where she was to 

meet this individual and observe as much as possible of the 

transaction. Hopkins showed Arnold a Pennsylvania driver's 

license photograph of [Appellant] and Arnold identified him as 

the person she knew as "Loso."

After Arnold arrived to meet with Hopkins, she provided the 

officers with a phone number she had for [Appellant]. She then 

placed a call to that number. Hopkins observed that it was the 

same number she had given to him. At first there was no

answer, but Arnold received a return call shortly after placing the 

initial call. Hopkins heard Arnold tell the caller that she wanted 

"100." He explained that "100" is an increment of crack cocaine 

that costs $100.00. When Arnold got off the phone, she told 

Hopkins that she had been directed to go to 1328 Lehman Street 

to meet [Appellant] to obtain the drugs. Arnold was then strip 

searched by Sarah Stager, the director of Central Booking. 

Stager testified that she conducted a thorough search of Arnold's 

clothing and person and found no contraband. Hopkins then 

provided Arnold with $100.00 to purchase the cocaine. He had 

previously recorded the serial numbers of the currency.

Hopkins and Arnold then drove to the Lehman Street address 

and parked on Fourteenth Street. Almost immediately, 

[Appellant] pulled up in a Fiat on the opposite side of the street. 

After [Appellant] had exited his vehicle, Arnold got out of the 

vehicle and went to meet him. Hopkins observed the two go 

inside the rear apartment door at 1328 Lehman Street. Within a 
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minute, Arnold returned to the car, and handed Hopkins a plastic 

baggy containing a substance which was later determined to be 

crack cocaine. When they returned to the station, Arnold was 

strip searched again. Hopkins explained that the baggie was not 

subjected to DNA or fingerprint testing due to the existence of 

other evidence regarding the drug transaction, the cost of such 

testing, and the wrinkled condition of the baggie.

Hopkins explained that the Drug Task Force was involved in 

multiple ongoing investigations which involved Arnold. 

[Appellant] was not arrested for this incident until several 

months later so that the integrity of the other investigations 

would not be compromised. When he was arrested, [Appellant] 

was in possession of a cellphone which was determined to be the 

one used during the June 24, 2014 transaction with Arnold.

Arnold also testified at the trial. Over [Appellant's] objection, 

she explained that she had used the phone number she had 

given to Hopkins in order to reach [Appellant] prior to June 24, 

2014 and that she had also been to the Lehman Street address 

before that date.[2 When [Appellant] returned her call on June 

24, 2014, she recognized his voice. She told him that she 

wanted "100" and he told her to come to his residence. She 

explained that [Appellant] lived in an apartment building and 

that she had entered directly into his apartment through a rear 

door. She recalled that there was someone cooking in the 

kitchen of the apartment, but that she did not come into contact 

with anyone other than [Appellant] either inside or outside of the 

apartment.

Both Hopkins and Arnold acknowledged that Arnold had a 2009 

conviction for retail theft. Arnold testified that she had served 

three months incarceration for that conviction. Both witnesses 

also acknowledged that Arnold had three pending cases involving 

theft charges at the time of this incident. Both witnesses 

explained that Arnold had received no assurances or promises 

regarding those charges. Arnold indicated that those cases had 

been resolved prior to this trial and that she had been sentenced 

 

2 Arnold’s testimony about her prior contacts with Appellant was given in 

response to questions about how she recognized Appellant’s voice over the 

phone and knew that the number she dialed in the presence of Sergeant 

Hopkins belonged to Appellant. N.T., 9/2/15, at 51-52.
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to probation. She further acknowledged that she could have 

been sentenced to a period of incarceration for those charges.

In addition to the four theft cases discussed at trial, Arnold also 

had four older convictions for theft offenses: one in 1996, two in 

1998, and one in 2001. Prior to trial, [Appellant] filed a Motion 

in Limine in which he asked the Court to allow him to introduce 

evidence of all of the theft cases in Arnold's criminal history for 

impeachment purposes pursuant to Pa.R.E. 609. [The trial 

court] denied [Appellant’s] request to introduce the 1996, 1998, 

and 2001 convictions. As indicated above, Arnold was 

questioned regarding the four more recent convictions at trial.

[On September 2, 2015, the jury convicted Appellant of one 

count of Possession With Intent to Deliver a Controlled 

Substance and one count of Criminal Use of a Communication 

Facility for Appellant’s use of his cellphone to arrange the sale of 

crack cocaine.]

[Appellant] appeared for sentencing on October 28, 2015. At 

Sentencing, [Appellant] presented various information regarding 

his education and family background. The Court was informed of 

[Appellant’s] work history and the fact that he had ceased 

working upon his arrest and the birth of his child eight months 

earlier. Since the child's birth, [Appellant] had been a stay-athome father while the child's mother worked. [Appellant] also 

informed that Court that he was engaged to the child's mother. 

[Appellant] asked the Court to impose a local sentence so that 

he could be eligible for the work-release program which would 

enable him to provide for his family.

At Sentencing, the Commonwealth commented on [Appellant’s] 

prior record, which included drug offenses. The District Attorney 

also noted the disrespect shown by [Appellant] toward the Court 

as exhibited by his pattern of showing up late for various Court 

appearances, including jury selection in [the instant] case. In 

addition, [Appellant] had approximately eight probation and 

parole violations.

Prior to Sentencing, [the trial court] reviewed the Presentence 

Investigation. [The trial court] imposed a sentence of a 

minimum of one year and a maximum of three years in a state 

correctional institution. [Appellant’s] RRR1 eligibility was set at 

nine months and he received credit for time served from October 

15, 2014 to October 24, 2014.
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Trial Court Opinion, filed 3/4/16, at 2-7. 

On November 5, 2015, Appellant filed a Post-Sentence Motion, which 

the trial court denied on March 4, 2016. Appellant timely appealed. 

On appeal, Appellant raises the following four issues, verbatim:

1. Did the Trial Court err by denying the Appellant's Motion in 

Limine requesting leave to impeach a Commonwealth witness 

with convictions for crimes of dishonesty outside the previous 

ten (10) years, in accordance with Pa.R.E. 609.

2. Did the Trial Court err by denying the Appellant's claim 

regarding overruling the timely objection of the Appellant's 

counsel, by not granting a mistrial, or in the alternative, by 

not giving a curative instruction to the Jury, and by permitting 

the Commonwealth to offer testimony to the Jury regarding 

the witness's previous contacts with the Appellant and that 

she had received contact information of the Appellant through 

a friend.

3. Did the Trial Court err by denying the Appellant's claim that 

based on the testimony and evidence offered by the 

Commonwealth, the Jury did not have sufficient evidence to 

convict the Appellant.

4. Did the Trial Court erred [sic] by denying the Appellant's 

claim that the Sentencing Judge did not take into 

consideration the requisite factors when imposing the 

Appellant's sentence.

Appellant’s Brief at 6. 

Impeachment of Arnold

In his first issue, Appellant avers that the trial court erred by only 

allowing Appellant to use Arnold’s recent criminal history as impeachment 

evidence at trial and not the convictions that were more than ten years old. 

Appellant’s Brief at 13-16. 
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It is well settled that “[t]he admission of evidence is within the sound 

discretion of the trial court, and will be reversed on appeal only upon a 

showing that the trial court clearly abused its discretion.” Commonwealth 

v. Miles, 846 A.2d 132, 136 (Pa. Super. 2004) (en banc) (citation omitted). 

Abuse of discretion requires a finding of misapplication of the law, a failure 

to apply the law, or judgment by the trial court that exhibits bias, ill-will, 

prejudice, partiality, or was manifestly unreasonable, as reflected by the 

record. Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009).

The Honorable John C. Tylwalk has authored a comprehensive, 

thorough, and well-reasoned Opinion, citing to the record and relevant case 

law in addressing Appellant’s claim. After a thorough review of the record, 

the briefs of the parties, and the applicable law, we affirm on the basis of the 

trial court’s Opinion, which notes that (i) Pa.R.E. 609 dictates that 

convictions which are more than ten years old are only admissible where 

their probative value substantially outweighs their prejudicial effect; (ii) the 

four oldest convictions were “well outside of the ten-year range” and not 

“reflective of Arnold’s veracity a the time of the trial” in the instant case; and 

(iii) the probative value of the four oldest charges was minimal where the 

trial court permitted Appellant to impeach Arnold using the four recent 

convictions and he did so at length on cross-examination. Trial Court 

Opinion, at 7-10.
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Arnold’s Prior Contact with Appellant

In his second issue, Appellant raises a number of claims regarding 

Arnold’s testimony at trial that she previously called Appellant and visited his 

home. As discussed supra, this testimony was in response to questions 

about how Arnold was able to identify Appellant as the individual with whom 

she spoke over the phone to arrange the drug buy. At no point during her 

testimony did she elaborate on the nature of her prior contact with Appellant 

or testify that she had purchased drugs or engaged in criminal activity with 

Appellant on previous occasions. Nonetheless, Appellant argues that any 

mention of prior contact, without an adequate “non-nefarious” explanation 

from the Commonwealth, impermissibly permitted the jury to “infer and 

surmise previous [criminal] dealings” that prejudiced Appellant. Appellant’s 

Brief at 18. 

We begin by noting that Appellant improperly presented as a single 

argument three separate issues regarding Arnold’s testimony about her prior 

contact with Appellant: (i) did the trial court err in overruling his timely 

objection to this portion of Arnold’s testimony; (ii) did the trial court err in 

not declaring a mistrial following this portion of Arnold’s testimony; and (iii) 

did the trial court err in not giving a curative instruction to the jury. See

Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as 

there are questions to be argued[.]”). We nonetheless address each 

argument in turn. 
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As to Appellant’s first claim, that the trial court erred in overruling his 

objection and admitting the portion of Arnold’s testimony about her prior 

contact with Appellant, we reiterate that “[t]he admission of evidence is 

within the sound discretion of the trial court, and will be reversed on appeal 

only upon a showing that the trial court clearly abused its discretion.”

Miles, 846 A.2d at 136. After a thorough review of the record, the briefs of 

the parties, the applicable law, and the comprehensive and well-reasoned 

Opinion of the trial court, we conclude that there is no merit to Appellant’s

claim. Accordingly, we affirm on the basis of the trial court’s Opinion, which 

found that (i) the testimony about Arnold’s prior contact with Appellant was 

relevant to establish the background of the case and to explain how Arnold 

was able to identify Appellant; (ii) nothing in the testimony suggested that 

Arnold previously used the phone number to purchase drugs from Appellant; 

(iii) Appellant was not unfairly prejudiced by the testimony. Trial Court 

Opinion, at 10-12.

Regarding Appellant’s mistrial claim, we begin by noting that Appellant 

avers that trial counsel requested a mistrial during Arnold’s testimony about 

her prior contact with Appellant, and that the trial court denied the request. 

Appellant’s Brief at 8. Our examination of the record, however, shows only 

an off-the-record discussion, the details of which were not provided to this 

Court. N.T., 9/2/15, at 51-52. Therefore, absent a timely, on-the-record 

motion for a mistrial, our review is limited to determining whether the trial 
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court should have declared a mistrial sua sponte. See Pa.R.Crim.P. 605(B); 

Commonwealth v. Stewart, 317 A.2d 616, 618-19 (Pa. 1974). 

It is within the trial court’s discretion to declare a mistrial sua sponte

for reasons of manifest necessity, and we will review such a ruling to 

determine “whether the trial court properly exercised its discretion[.]” 

Stewart, 317 A.2d at 618-19. 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the comprehensive and well-reasoned Opinion of the trial 

court, we conclude that there is no merit to Appellant’s claim. Accordingly, 

we affirm on the basis of the trial court’s Opinion, which found that (i) the 

record reflects no request for a mistrial; and (ii) there was no manifest 

necessity which would have warranted the trial court declaring a mistrial sua 

sponte. Trial Court Opinion, at 10-12.

Finally, we must dismiss Appellant’s argument about the trial court’s 

failure to give a curative instruction because Appellant’s Brief contains 

neither case law nor argument on the issue. Therefore, we find it waived. 

See Harkins v. Calumet Realty Co., 614 A.2d 699, 703 (Pa. Super. 1992) 

(finding that an appellant waives issues raised in a Brief’s Statement of 

Questions Involved but not developed in the Brief’s argument section).

Sufficiency of the Evidence

In his third issue, Appellant avers that the evidence was insufficient to 

uphold his convictions. Evidentiary sufficiency is a question of law; thus, our 
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standard of review is de novo and our scope of review is plenary. 

Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013). 

Although Appellant raises a challenge to the sufficiency of the 

evidence, he makes no claim that the Commonwealth has failed to prove 

any specific element or offense. Rather, Appellant argues that the testimony 

of Arnold cannot provide proof beyond a reasonable doubt that he was the 

person who sold her the drugs because her testimony was not corroborated 

by other witnesses or forensic evidence.3 Appellant’s Brief at 18-20. The 

law regarding the need for corroboration of witness testimony is to the 

contrary. 

Our Supreme Court has held that the uncorroborated testimony of a 

single witness is sufficient to establish the elements of a crime, if believed by 

the trier of fact. See, e.g., Commonwealth v. Faulcon, 301 A.2d 375, 

376 (Pa. 1973) (concluding that the testimony of an alleged accomplice was 

sufficient evidence to sustain murder and conspiracy convictions). See also

Commonwealth v. Antidormi, 84 A.3d 736, 757 (Pa. Super. 2014) 

(concluding that the testimony of a single witness was sufficient to sustain 

persons not to possess firearms conviction).

 

3 Appellant purports to challenge only the sufficiency of the evidence against 

him. To the extent that Appellant’s averments about Arnold’s credibility 

instead challenge the weight of the evidence in this case, Appellant waived 

such a claim by failing to raise it in his Pa.R.A.P. 1925(b) 

Statement. See Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 

2005).
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After a thorough review of the record, the briefs of the parties, the 

applicable law, and the comprehensive and well-reasoned Opinion of the trial 

court, we conclude that there is no merit to Appellant’s claim. Accordingly, 

we affirm on the basis of the trial court’s Opinion, which found that the 

evidence was sufficient to establish that it was Appellant whom Arnold called 

and from whom Arnold later purchased crack cocaine. Trial Court Opinion at 

12-15.

Discretionary Aspects of Sentencing

In his fourth issue, Appellant avers, in a scant three-paragraph 

argument containing no citations to supporting authority, that the trial 

court’s sentence constituted a manifest abuse of discretion where the trial 

court improperly considered two categories of biographical data that “were 

not criminal convictions.” These included one or more arrests in West 

Virginia where the disposition was then “unknown,” and the fact that 

Appellant had additional charges pending in Pennsylvania at the time of 

sentencing. Appellant’s Brief at 20-21. 

As presented, this claim challenges the discretionary aspects of 

sentencing. See, e.g., Commonwealth v. Anderson, 830 A.2d 1013, 

1016 (Pa. Super. 2003) (noting that a challenge to the court’s consideration 

of improper factors at sentencing refers to the discretionary aspects of 

sentencing). A challenge to the discretionary aspects of sentencing is not 

automatically reviewable as a matter of right. Commonwealth v. Phillips, 
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946 A.2d 103, 112 (Pa. Super. 2008). Prior to reviewing such a claim on its 

merits:

[W]e conduct a four part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal; (2) whether the 

issue was properly preserved at sentencing or in a motion to 

reconsider and modify sentence; (3) whether appellant’s brief 

has a fatal defect; and (4) whether there is a substantial 

question that the sentence appealed from is not appropriate 

under the Sentencing Code. 

When appealing the discretionary aspects of a sentence, an 

appellant must invoke the appellate court’s jurisdiction by 

including in his brief a separate concise statement demonstrating 

that there is a substantial question as to the appropriateness of 

the sentence under the Sentencing Code . . . . 

The determination of what constitutes a substantial question 

must be evaluated on a case-by-case basis. A substantial 

question exists only when the appellant advances a colorable 

argument that the sentencing judge’s actions were either: (1) 

inconsistent with a specific provision of the Sentencing Code; or 

(2) contrary to the fundamental norms which underlie the 

sentencing process. 

Id. (citations and quotations omitted). See also Pa.R.A.P. 2119(f).

Appellant complied with the first three requirements by (i) filing a 

timely Notice of Appeal; (ii) preserving his sentencing issues by filing a 

Petition to Reconsider Sentence; and (iii) including a separate Rule 2119(f) 

Statement in his Brief to this Court.

As to the final requirement, an appellant raises a substantial question 

when he avers an excessive sentence due to the court’s reliance on 

impermissible factors. Commonwealth v. McNabb, 819 A.2d 54, 56-57 

(Pa. Super. 2003). Accordingly, Appellant’s averment that the court relied 
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on improper factors presents a substantial question, and we will review that 

claim on the merits.

We turn to the merits of Appellant’s claim, bearing in mind the 

following standard of review:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 

of discretion is not shown merely by an error in judgment. 

Rather, the appellant must establish, by reference to the record, 

that the sentencing court ignored or misapplied the law, 

exercised its judgment for reasons of partiality, prejudice, bias 

or ill will, or arrived at a manifestly unreasonable decision. 

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006) 

(citation omitted). Where, as here, the sentence imposed is within the 

sentencing guidelines, we will not vacate the sentence imposed unless we 

find that “the case involves circumstances where the application of the 

guidelines would be clearly unreasonable[.]” 42 Pa.C.S. § 9781(c)(2). 

Finally, this Court has previously stated that even if a trial court 

considers an inappropriate factor at sentencing, this Court will nonetheless 

uphold the sentence if “the court offered significant other support” for 

imposing a given sentence. Commonwealth v. P.L.S., 894 A.2d 120, 133 

(Pa. Super. 2006).

In the instant case, as the trial court explained in its March 4, 2016 

Opinion:

Prior to Sentencing, [the trial court] fully reviewed the 

information set forth in [Appellant’s] Presentence Investigation. 

At sentencing, [the trial court] noted various factors which 
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dictated against [Appellant] receiving a local sentence. [The trial 

court] noted that [Appellant] had four prior convictions, two

cases with "disposition unknown" in West Virginia, and pending 

resisting arrest/escape charges here[,] which resulted from a 

traffic stop. Some of the prior convictions were for drug 

offenses, including a drug felony. In addition, [Appellant] had at 

least seven, or possibly eight, probation/parole violations. [The 

trial court] noted that the sentences imposed in the past had not 

dissuaded [Appellant] from criminal conduct and that it was time 

that he take responsibility for his actions.

[Appellant] complains that it was improper for [the trial court] to 

take his pending charges and West Virginia record into account 

at Sentencing. These items were not included in the calculation 

of his prior record score and were relevant to [the trial court’s] 

consideration of [Appellant’s] character, his rehabilitative needs, 

and the continuation of his criminal behavior. [The trial court 

believes that it] based the sentence on appropriate 

considerations and that the sentence [it] imposed was justified 

under these circumstances.

Trial Court Opinion, at 17 (emphasis added).

Even assuming, arguendo, that the trial court erred in considering 

Appellant’s pending charges and his West Virginia Record, he would still not 

be entitled to have his sentence vacated. P.L.S., 894 A.2d at 133. The trial 

court offered significant other support for the sentence imposed, and stated 

that it did not consider the challenged information in calculating Appellant’s 

Prior Record Score. Finally, the trial court imposed a sentence within the 

standard guideline range with RRR-I eligibility after only nine months. In 

light of the several legitimate, individualized factors the court considered 

that did not involve Appellant’s West Virginia charges or the pending charges 

in Pennsylvania, we cannot conclude that Appellant’s relatively light 

sentence was “clearly unreasonable.” 
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Accordingly, we affirm the trial court’s October 28, 2015 Judgment of 

Sentence.

The parties are instructed to attach a copy of the trial court’s March 4, 

2016 Opinion to all future filings. 

Judgment of Sentence affirmed. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/7/2016
1 

135 P.S. 780-113(a). 

2 18 Pa.C.S.A. §7512(a). 

Motion which is presently before us for resolution. 

of a cellphone on the evening of June 24, 2014. He has filed a Post-Sentence 

of Criminal Use of a Communication Facility2 for selling crack cocaine with the use 

count of Possession With Intent to Deliver a Controlled Substance1 and one count 

After a jury trial on September 2, 2015, Defendant was convicted of one 

OPINION, TYLWALK, P.J., MARCH 4, 2016. 

KEVIN DUGAN, ESQUIRE FOR CARL PATRICK 

FEATHER & FEATHER, P.C. 

APPEARANCES: 

CARL PATRICK 

NICHOLE EISENHART, ESQUIRE FOR THE COMMONWEALTH 

DEPUTY DISTRICT ATTORNEY 

v. 

CRIMINAL DIVISION 

COMMONWEALTH OF PENNSYKLVANIA NO. CP-38-CR-114-2015 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY 

PENNSYLVANIA 

ENTER2:D J. FiLED 

CLERK Or COURTS 

LEBMrnrt PA 

Circulated 11/17/2016 02:54 PM
knew as "Loso." 

At the trial, Sergeant Brett Hopkins of the Lebanon County Drug Task Force 

testified that the charges arose from an investigation using a confidential 

informant, Deborah Arnold. Hopkins explained that individuals often offered to 

cooperate with the Drug Task Force when they have criminal charges pending 

against them. He acknowledged that Arnold did have three pending theft charges 

at the time of the investigation, but noted that no promises or assurances had 

been made to her regarding the disposition of those charges. Throughout the 

course of the investigation, Arnold had given information to the Drug Task Force 

which Hopkins had been able to verify. 

Hopkins explained that Arnold had contacted the Drug Task Force and 

informed them that she could purchase drugs from an individual known to her as 

"Loso" and that Hopkins had arranged to meet with Arnold on the evening of June 

14, 2014. He explained that they planned to conduct a "controlled buy" during 

which Arnold would arrange to buy drugs from "Loso." Arnold would contact 

"Loso" via phone call in Hopkins' presence and Hopkins would accompany her to 

the location where she was to meet this individual and observe as much as 

possible of the transaction. Hopkins showed Arnold a Pennsylvania driver's 

license photograph of Defendant and Arnold identified him as the person she 

2 
later determined to be crack cocaine. When they returned to the station, Arnold 

3 

the car, and handed Hopkins a plastic baggy containing a substance which was 

rear apartment door at 1328 Lehman Street. Within a minute, Arnold returned to 

· Hopkins and Arnold then drove to the Lehman Street address and parked 

on Fourteenth Street. Almost lmrnedlatelv, Defendant pulled up in a Fiat on the 

opposite side of the street. After Defendant had exited his vehicle, Arnold got 

out of the vehicle and went to meet him. Hopkins observed the two go inside the 

cocaine. He had previously recorded the serial numbers of the currency. 

initial call. Hopkin heard Arnold tell the caller that she wanted "100." He 

explained that "10011 is an increment of crack cocaine that costs $100.00. When 

Arnold got off the phone, she told Hopkins that she had been directed to go to 

1328 Lehman Street to meet Defendant to obtain the drugs. Arnold was then 

strip searched by Sarah Stager, the director of Central Booking. Stager testified 

that she conducted a thorough search of Arnold's clothing and person and found 

no contraband. Hopkins then provided Arnold with $100.00 to purchase the. 

· phone number she had for Defendant. She then placed a call to that number. 

Hopkins observed that it was the same number she had given to him. At first 

there was no answer, but Arnold received a return call shortly after placing the 

After Arnold arrived to meet with Hopkins, she provided the officers with a 
4 

was strip searched again. Hopkins explained that the baggie was not subjected to 

DNA or fingerprint testing due to the existence of other evidence regarding the 

drug transaction, the cost of such testing, and the wrinkled condition of the 

baggie. 

Hopkins explained that the Drug Task Force was involved in multiple 

ongoing investigations which involved Arnold. Defendant was not arrested for 

this incident until several months later so that the integrity of the other 

investigations would not be compromlsed, When he was arrested, Defendant . 

was in possession of a cellphone which was determined to be the one used during 

the June 24, 2014 transaction with Arnold. 

Arnold also testified at the trial. Over Defendant's objection, she explained 

.that she had used the phone number she had given to Hopkins in order to reach 

Defendant prior to June 24, 2014 and that she had also been to the Lehman 

Street address before that date. When Defendant returned her call on June 24, 

2014, she recognized his voice. She told him that she wanted "10011 and he told 

her to come to his residence, She explained that Defendant lived in an apartment 

building and that she had entered directly into his apartment through a rear door. 

She recalled that there was someone cooking in the kitchen of the apartment, but 
5 

convictions at trial. 

indicated above, Arnold was questioned regarding the four more recent 

Defendant's request to introduce the 1996, 1998, and 2001 convictions. As 

history for impeachment purposes pursuant to Pa.R.E. 609. We denied 

allow him to introduce evidence of all of the theft cases in Arnold's criminal 

Prior to trial, Defendant filed a Motion in Limine in which he asked the Court to 

older convictions for theft offenses: one in 1996, two in 1998, and one in 2001. 

In addition to the four theft cases discussed at trial, Arnold also had four 

she could have been sentenced to a period of incarceration for those charges. 

and that she had been sentenced to probation. She further acknowledged that 

charges. Arnold indicated that those cases had been resolved prior to this trial 

explained that Arnold had received no assurances or promises regarding those 

pending cases involving theft charges at the time of this incident. Both witnesses 

for that conviction. Both witnesses also acknowledged that Arnold had three 

for retail theft. Arnold testified that she had served three months incarceration 

inside or outside of the apartment. 

that she did not come into contact with anyone other than Defendant either 

Both Hopkins and Arnold acknowledged that Arnold had a 2009 conviction 
state correctional institution: Defendant's RRRI eligibility was set at nine months 

imposed a sentence of a minimum of one year and a maximum of three years in a 

6 

Prior to Sentencing, we had reviewed the Presentence Investigation. We 

violations 

case. In addition, Defendant had approximately eight probation and parole 

showing up late for various Court appearances, including jury selection in this 

disrespect shown by Defendant toward the Court as exhibited by his pattern of 

record, which included drug offenses. The District Attorney also noted the 

enable him to provide for his family. 

sentence so that he could be eligible for the work-release program which would 

engaged to the child's mother. Defendant asked the Court to impose a local 

At Sentencing, the Commonwealth commented on Defendant's prior 

the child's mother worked. Defendant also informed that Court that he was 

earlier. Since the child's birth, Defendant had been a stay-at-home father while 

that he had ceased working upon his arrest and the birth of his child eight months 

background. The Court was informed of Defendant's work history and the fact 

Defendant presented various information regarding his education and family 

Defendant appeared for sentencing on October 28, 2015. At Sentencing, 
(1) its probative value substantially outweighs its prejudicial effect; and 

7 

· (b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if 

more than 10 years have passed since the witness's conviction or release 

from confinement for it, whichever is later. Evidence of the conviction is 

admissible only if: 

Rule 609. Impeachment by Evidence of a Criminal Conviction 

(a} In General. For the purpose of attacking the credibility of any witness, 

evidence that the witness has been convicted of a crime, whether by 

verdict or by plea of guilty or nolo contendere, must be admitted if it 

involved dishonesty or false statement. 

impeachment purposes, Pa.R.E. 609 provides, in part: 

With regard to the use of a witness' criminal record at trial for 

Arnold's Prior Record 

resolution. 

our imposition of a state sentence. This Motion is presently before us for 

the sufficiency of the evidence to support the jury's verdict- and assigns error to 

basis of her four theft charges from 1996, 1998, an~ 2001 and in permitting 

Arnold's testimony of her previous contacts with Defendant. He also challenges 

bases .. He argues that we erred in denying his request to impeach Arnold on the 

2014. 

and he received credit for time served from October 15, 2014 to October 24, 

Defendant has filed a Post-Sentence Motion requesting relief on several 
the ten-year period prior to trial and four convictions which were outside that 

8 

A.2d 364, 367 (Pa. 1978). 

In making the determination as to the admissibility of a prior conviction for 

impeachment purposes, the trial court should consider: (1) the. degree to 

which the commission of the prior offense reflects upon the veracity of the 

defendant-witness; (2) the likelihood, in view of the nature and extent of 

the prior record, that it would have a greater tendency to smear the 

character of the defendant and suggest a propensity to commit the crime 

for which he stands charged, rather than provide a legitimate reason for 

discrediting him as an untruthful person; 3) the age and circumstances of 

the defendant; 4) the strength of the prosecution's case and the 

prosecution's need to resort to this evidence as compared with the 

availability to the defense of other witnesses through which its version of 

the events surrounding the incident can be presented; and S) the existence 

of alternative means of attacking the defendant's credibility. 

Commonwealth v. Randall, supra at 1328, citing Commonwealth v. Roots, 393 

Howard, 823 A.2d 911 (Pa. Super. 4003). 

defendant and a witness in the application of this· Rule. Commonwealth v. 

1326 (Pa. 1987). There is generally no distinction to be made between a 

is within the discretion of the trial judge. Commonwealth v. Randall, 528 A.2d 

The decision of whether to admit convictions outside of the ten-year period 

Pa.R.E. 609(a), (b). 

(2) the proponent gives an adverse party reasonable written notice of the 

intent to use it so that the party has a fair opportunity to contest its use. 

Here, Arnold had four actions involving theft offenses which were within 
convictions provided Defendant with ample means to attack Arnold's credibility. 

Defense counsel questioned Arnold at length about those four convictions and 

9 

the Drug Task Force and she had provided various information which had been 

corroborated by Hopkins throughout the time period relevant to this matter. 

We also fail to see any great need for this evidence at trial as the four latter. 

confidential informant whose actions were thoroughly scrutinized by members of 

would bear on her credibility at present. By the time of trial, she was acting as a 

legitimate reason for her testimony to be discredited at this point in time. 

Moreover, we find nothing regarding Arnold's age and/or circumstances which 

believe events which occurred such a long time ago were reflective of Arnold's 

veracity at the time of the trial in this case as they would not have provided a 

four latter convictions. The first offense was committed in 1996. We do not 

ten-year range. There was a gap of eight years between the four earliest and the 

most previous convictions. The four earliest convictions were well outside of the 

time to be probative in this case. 

to introduce the four prior convictions as we found that those were too remote in 

latter four convictions were admitted. However, we denied Defendant's request 

time period. All of these offenses involved dishonesty. Pursuant to Rule 609, her 

We do not believe that we erred in limiting Defendant to Arnold's four 
contacts with Defendant and the jury was left to infer that those contacts 

10 

the Commonwealth failed to offer any innocent explanation for Arnold's previous 

in our failure to declare a mistrial as the result of its admission. 

contacts. He assigns error to our overruling his objections to this testimony and 

spoke to him over the phone on June 24, 2014 as a result of those previous 

June 24, 2014. She also noted that she recognized Defendant's voice when she 

Defendant previously, and that she had been to Defendant's residence prior to 

Defendant's cell number from a friend, that she had used that number to contact 

Defendant complains that this testimony was highly prejudicial to him as 

prior contacts with Defendant at trial. Arnold testified that she had obtained 

. . 

Testimony Regarding Arnold's Previous Contacts with Defendant 

Defendant also complains that we permitted Arnold to testify about her 

this issue. 

would have enhanced his defense and find that this was an appropriate ruling on 

part of Arnold. We do not believe that the admission of the earlier convictions 

testimony fully provided Defendant with a basis upon which to argue bias on the 

that she had received a sentence of probation rather than incarceration. This 

that three of those cases were still pending at the time of the investigation and 

the Commonwealth also brought this information up. Arnold also acknowledged 
be made at the time of the prejudicial event. Id. If the defendant does not make 

11 

Boring, 684 A.2d 561, 568 (Pa. Super. 1996). A timely motion for a mistrial must 

object, request curative instructions, or move for a mistrial. Commonwealth v. 

When an event prejudicial to a defendant occurs at trial, he may either 

Commonwealth v. Page, 965 A.2d 1212, 1220 (Pa. Super. 2009). 

based upon something other than the legal propositions relevant to the case." 

limited to evidence so prejudicial that it would inflame the jury to make a decision 

defendant. Commonwealth v. Dillon, 925 A.2d 131 (Pa. 2007). "Exclusion is 

Evidence is not to be excluded merely on the basis that it is harmful to a 

from its duty of weighing the evidence impartially. Comment- Pa.R.E. 403. 

to suggest decision on an improper basis or to divert the jury's attention away 

the danger of unfair prejudice. Pa.R.E. 403. "Unfair prejudice" means a tendency 

Relevant evidence is admissible unless its probative value is outweighed by 

engaged in prior criminal conduct. Id. 

jury could reasonably infer from the facts presented that the defendant had 

ruling on an objection on this basis, a court is required to determine whether the 

at issue. Commonwealth v. West, 656 A.2d 519, 521 (Pa. Super. 1995). When 

conduct cannot be introduced as substantive evidence of his guilt to the charges 

involved previous drug transactions. We agree with Defendant that prior criminal 
Commonwealth at trial was insufficient to support his convictions. In resolving a 

12 

Sufficiency of Evidence 

our doing so sua sponte. 

mistrial at trial and we find no manifest necessity which would have warranted 

and find that it was properly admitted at trial. Defendant did not move for a 

not believe that this testimony was in any way unfairly prejudicial to Defendant 

was no reference to any prior criminal conduct on the part of Defendant. We do 

the phone number in the past in order to obtain drugs from Defendant and there 

known to Arnold as "Loso." There was nothing to indicate that Arnold had used 

this particular drug transaction and to confirm Defendant's identity as the person 

This testimony was relevant to establish the background of the events of 

that they would have based their verdict on something other than the facts of 

Arnold's contact with Defendant on June 14, 2014. 

the jury's attention from the issues which they were called upon to resolve. 

Arnold's testimony introduced nothing which would have inflamed the jury such 

After reviewing this testimony, we find nothing which would have diverted 

necessity. Pa.R.Crim.P. 605(8). 

a timely motion, the trial judge may declare a mistrial only for reasons of manifest 

Defendant next charges that the evidence presented by the 
challenge to the sufficiency of the evidence, we must view the evidence at trial 

and all reasonable inferences drawn from that evidence in the light most 

favorable to the Commonwealth as the verdict winner and determine whether 

that evidence was sufficient to establish all the elements of the offenses charges 

beyond a reasonable doubt. Commonwealth v. Fears, 836 A.2d 52 (Pa. 2003). 

The Commonwealth may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial evidence. 

Commonwealth v. Lippert, 887 A.2d 1277 (Pa. Super. 2005). The court may not· 

weigh the evidence and substitute its judgment for that of the fact-finder. Id. 

Section 780-113(a)(30} of the Controlled Substance, Drug, Device and 

Cosmetic Act prohibits "the manufacture, delivery, or possession with intent to 

manufacture or deliver, a controlled substance." 35 P .s. 780-113(a)(30) .. 

Defendant notes that the evidence offered by the Commonwealth with regard to 

the drug transaction at issue relied solely on Arnold's testimony. Defendant 

lodges various complaints with regard to that testimony. He points to the 

absence of any other witness to the drug transaction, Arnold's criminal history, 

the pending charges at the time of the incident, and the inadequacy of the strip 

search. He also argues that no DNA or fingerprint tests were conducted on the 

13 
§ 7512. Criminal use of communication facility 

(a) Offense defined.-A person commits a felony of the third degree if 

that person uses a communication facility to commit, cause or 

facilitate the commission or the attempt thereof of any crime which 

pursuant to 18 Pa.C.S.A. §7512(a): 

Defendant was also convicted of Criminal Use of a Communication Facility 

Defendant and the jury likewise found these explanations to be credible. 

Commonwealth also presented evidence to explain the issues raised by 

Arnold's testimony and obviously believed her testimony to be truthful. The 

Defendant guilty of PWID. The jury was free to determine the credibility of 

that there was sufficient evidence upon which the jury could have found 

Viewing this evidence in the light most favorable to the Commonwealth, we find 

found to be free of contraband immediately prior to leaving to meet Defendant. 

conducted a thorough search of Arnold's person and clothing, and Arnold was 

view for less than a minute during the transaction. Stager testified that she 

All of the information provided by Arnold was verified; Arnold was out of Hopkins' 

and Arnold testified that she obtained the crack cocaine directly from Defendant. 

Arnold made arrangements to purchase crack cocaine in Hopkins' presence 

possession of the recorded currency at the time of his arrest. 

baggie Arnold gave to Hopkins and the fact that Defendant was not found to be in 

14 
defendant. 42 Pa.C.S.A. §9721(b). The sentencing court must also consider the 

the life of the victim and on the community, and the rehabilitative needs of the 

protection of the public, the gravity of the offense as it relates to the impact on 

sentence imposed should call for confinement that is consistent with the 

In determination an appropriate sentence, the court must consider that the 

sentencing court. Commonwealth v. Whitman,'880 A.2d 1250 (Pa. Super. 2005). 

The sentence imposed on a defendant is within the discretion of the 

Sentence 

to relief on this basis. 

sufficiently supports the jury's verdict on this count and Defendant is not entitled 

cellphone with this number at the time of his arrest. We believe this evidence 

arrange this drug transaction and he was found to be in possession of the 

Arnold. Hopkins and Arnold testified Defendant's cellphone enabled him to 

PWID, a violation of the Controlled Substance Act, when he sold crack cocaine to 

18 Pa.C.S.A. §7512(a). The testimony established that Defendant committed 

constitutes a felony under this title or under the act of April 14, 1972 

(P .L. 233, No. 64), known as The Controlled Substance, Drug, Device 

and Cosmetic Act. Every instance where the communication facility is 

utilized constitutes a separate offense under this section. 

15 
Prior to Sentencing, we fully reviewed the information set forth in 

Defendant's Presentence lnv€stigation. At Sentencing, we noted various factors 

which dictated against Defendant receiving a local sentence. We noted that 

Defendant had four prior convictions, two cases with "disposition unknown" in 

West Virginia, and pending resisting arrest/escape charges here which resulted 

16 

sentencing guidelines. 42 Pa.C.S.A. §972l{b); 204 Pa. Code §303.1 et seq. The 

sentencing guidelines are considered advisory, and the sentencing court is still 

charged with considering them and determining whether to apply them or 

whether circumstances of the individual case require departure from them. 

Commonwealth v. Robertson, 874 A.2d 1200 (Pa. Super. 2005). 

When a court has the benefit of a presentence investigation report, it is 

presumed that the court had the relevant character information for the 

defendant. Commonwealth v. Fu/fin, 892 A.2d 843 {Pa. Super. 2006). In 

determining whether a sentence is manifestly excessive, the appellate court must 

give great weight to the sentencing judge's discretion, as he or she is in the best 

position to measure the factors such as the nature of the crime, the defendant's 

character, and the defendant's display of remorse, defiance, or indifference. 

Commonwealth v. Andrews, 720 A.2d 764 (Pa. Super. 1998). 
17 

For these reasons, we will deny Defendant's Motion and will enter an 

· appropriate Order. 

Defendant complains that it was improper for us to take his pending 

charges and West Virginia record into account at Sentencing. These items were 

not included in the calculation of his prior record score and were relevant to our 

consideration of Defendant's character, his rehabilitative needs, and the 

continuation of his criminal behavior. We believe that we based the sentence on 

appropriate considerations and that the sentence we imposed was justified under 

these circumstances. 

from a traffic stop. Some of the prior convictions were for drug offenses, 

including a drug felony. In addition, Defendant had at least seven, or possibly 

eight, probation/parole violations. We noted that the sentences imposed in the 

past had not dissuaded Defendant from criminal conduct and that it was time that 

he take responsibility for his actions.