J

- A22001

- 20

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTONIO JUAN RIVERA

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2018 MDA 2019

Appeal from the Judgment of Sentence Entered August 2, 2019 In the Court of Common Pleas of Lancaster County Criminal Division at

No(s): CP

- 36

- CR

- 0003002

- 2018

BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED : JANUARY 4, 2021

Antonio Juan Rivera (Appellant) appeals from the judgment of sentence

imposed after a jury convic ted him of criminal conspiracy

– to commit

possession with intent to deliver a controlled substance (PWID ). 1 We affirm.

The trial court summarized the facts and procedural history as follows:

In April 2018, Detective Michael Vance [(Detective Vance)] of the Lancaster County Drug Task Force received information from a confidential informant (“CI”) about a large

- scale movem ent of heroin from New York and New Jersey to Lancaster County. The CI explained that on April 29, 2018, a woman, Xiomara Figueroa [(Figueroa)], would be driving to New Jersey to pick up a large quantity of heroin. The CI informed Detective Vance of the make, model, color, and [license] plate number of the vehicle [Figueroa] would be driving. Although Detective Vance was told the date of the trip, he did not know the route or time of the trip[;] surveillance cars were placed at multiple locations along t he most logical routes to and from New Jersey.

_________________ __________ ______ ____ _______

1 See 18 Pa.C.S.A. § 903; 35 P.S. § 780

- 113(a)(30).J

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- On April 30, 2018 at around 2:00 [a.m.], Detective Vance spotted the wanted vehicle with two occupants stopped at a gas station in Berks County. By pure coincidence, Ms. Figueroa and her sister, Kiomara Fig ueroa [(Kiomara)], had stopped to grab something to eat at the exact same intersection that Detective

Vance himself had chosen for his surveillance. Detective Vance [eventually conducted a stop and investigatory detention of the

vehicle ’s occupants .] ... D etective Vance’s partner, Detective Anthony Lombardo, used K

- 9 Officer Bear to sniff the vehicle[,] which revealed a positive hit. Detective Vance proceeded to search the vehicle and found a white bag in the back seat of the car[,] which contained 5,000 bags of heroin [mixed with fentanyl]. Ms. Figueroa and [Kiomara] were then taken back to the police station for questioning.

During the interview, Ms. Figueroa stated she was traveling back from New Jersey after “picking up something” for [Appellant]

. [ Figueroa stated that Appellant] ... sent [] Figueroa to New Jersey in a rental car. The car was rented by [Appellant’s] girlfriend, Haydee Gomez. [ Appellant’s ] cousin, Genol Torres [( Torres ),] also known as “Bossy,” brought the car to Ms. Figueroa . Detect ive Vance knew [] Torres as a drug dealer because the Lancaster Drug Task Force had previously participated in the prosecution of [] Torres for drug dealing prior

to the incident at hand.

Ms. Figueroa received the address of the New Jersey

destination th rough a text message from [Appellant,] and she was instructed to return the car to the Turkey Hill in Landisville. Ms. Figueroa said she was not free to diverge from her given travel path and had received strict instructions from [Appellant] to
maintain h er speed, not smoke in the car, or do anything else that would cause suspicion on her trip. [Appellant] kept tabs on her through multiple text messages and phone calls throughout the trip.

As part of this arrangement, Ms. Figueroa was also given spendin g money for the trip in the amount of $200 to $300. She was told there was a black bag in the glove box [of the rental car,] and that it was to be exchanged for a white bag in New Jersey. As was the usual arrangement, once [Figueroa] arrived at the

addre ss in New Jersey, a man unfamiliar to Ms. Figueroa came out to the vehicle, grabbed the black bag in the glove box and placed a white bag in the backseat of the vehicle. Ms. Figueroa did notJ

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know the contents of the bag, but she had a suspicion it was

dru gs. As the field test and subsequent lab report showed, the white bag contained approximately 120 grams of heroin and fentanyl.

As the traffic stop was taking place, Ms. Figueroa texted [Appellant] to let him know she had been pulled over in the rental car. After “back to back to back to back” text messages from [Appellant] , he eventually called her while she was being interviewed by Detective Vance at the police station. Detective

Vance had Ms. Fi gueroa answer the phone call from [Appellant]

. [Appellant] asked Ms. Figueroa, “Did they grab everything?” to which Ms. Figueroa responded, “Everything.” At which point [Appellant] hung up abruptly.

At the time of these events, [Appellant] was on feder al parole for conspiracy to defraud the United States government by selling, importing or manufacturing defaced firearms. On May 2, 2018, [Appellant] was visited by Federal Parole Agent Damien Mscisz [(Agent Mscisz)] at [Appellant’s] home in Landisville. During this visit, Agent Mscisz observed a number of [cellular] phones with [Appellant,] and [Appellant] confirmed they were all his. At Agent Mscisz’s request, [Appellant] unlocked one phone [that] was on his person and handed it to Agent Mscisz. Agent Mscisz looked through the phone and noted seeing “owe sheets” in the phone’s “Notes” application. [FN] Another Agent aiding in the visit brought to Agent Mscisz’s attention a large amount of cash, which prompted Agent Mscisz to contact the Drug Task Force and

Detective Vance.

[FN] IOU or owe sheets are a ledger between drug dealers

to track debts.

As a result of the information gathered about [Appellant]

, [he] was arrested and ... charged with [] one count of [PWID ]; and [] one count of conspiracy to [commit PWID]. Attorney Michael Marinaro [(defense counsel)] entered his appearance on June 8, 2018, the date of [Appellant’s] arraignment.

...

On September 19, 2018, [Appellant] filed an omnibus pre

trial motion [(OPT Motion),] alleging [claims not per tinent to the instant appeal ]

.... On February 11, 2019, a hearing was held on the [OPT] Motion[; the trial court granted relief on Appellant’sJ

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suppression of evidence claim, and] denied all other claims. A trial date was then scheduled for May 22, 2019.

P rior to the trial, both parties submitted additional motions. On May 10, 2019, [Appellant] filed a pro se Rule 600 Motion [] (hereinafter “Rule 600 Motion”). The motion alleged [that Appellant] was being denied his right to a speedy trial. [Defense

coun sel] never submitted a formal Rule 600 motion on behalf of [Appellant,] and no action was taken on [the Rule 600] Motion prior to trial.

On May 17, 2019, the Commonwealth filed a notice of intent under Rule of Evidence 404(b) [(Rule 404(b) Motion)] , which outlined their proposed evidence [regarding Appellant’s] prior bad acts as it related to the history of the case. Immediately preceding

voir dire , [the trial court] ruled on th e M otion and granted it only insofar as to allow Ms. Figueroa to testif y that she had [previously]

made similar transactions like the one at issue.

The trial commenced as scheduled on May 22, 2019. During its case in chief, the Commonwealth presented two expert witnesses. Detective Vance was qualified without objection as an expert in the packaging and distribution of heroin in Lancaster County to t estify about this specific investigation. Detective Adam Weber [(Detective Weber)] was qualified, also without objection, as an expert in drug packaging and distribution in Lancaster County to testify about the methods used when performing drug investigat ions in general. Part of Detective Vance’s testimony was to educate the jury about his familiarity with [Appellant] and others involved in the drug trade related to [] Torres. Detective Weber’s testimony was [offered] to educate the jury on what

construc tive possession could look like in these drug transactions. The parties also made several stipulations, one of which was that the State Police lab report determined that the narcotics found in Ms. Figueroa’s car was approximately 120 grams of heroin with fentanyl [( the weight stipulation )].J

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- After a three

- day trial, [ 2 ] the jury began its deliberations. On the verdict slip, the [PWID] count contained a range of weights

that [Appellant] could be found guilty of possessing. The conspiracy charge did not list out those weight options. Ultimately, [Appellant] was found not guilty of the [PWID] charge but guilty of conspiracy.

Trial Court Opinion, 3/12/20, at 1

- 6 (unnumbered) ( emphasis and one

footnote added; some citations, footnotes and capi talization om itted ).

On August 2, 2019, the trial court sentenced Appellant to serve 6 to 30

years in prison. Appellant filed a timely post

- sentence motion, which was

eventually denied by operation of law. See Pa.R.Crim.P. 720(B)(3). Appellant

then timely filed a n otice of appeal, followed by a court

- ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.

Appellant presents six issues for our review:

1. Whether the court abused its discretion by allowing Detective Vance to testify that [Appellant ] was a drug associate of []

Torres?

2. Whether the court abused its discretion by precluding [Appellant] from offering testimony from [] Torres[,] which was both exculpatory and contrary to evidence presented by the Commonwealth[,] thereby depriving [Appell ant] of due process and the right to present a complete defense?

3. Whether the court should have addressed the merits of [Appellant’s] speedy trial motion because trial commenced

after the mechanical run date?

_________________ __________ ______ ____ _______

2 On the third day of trial, defense counsel, for the first time, requested the

court to allow Appellant to call Torres in Appellant’s case

- in

- chief, even though defense counsel had not subpoe naed Torres or listed him as a witness. The trial court denied this request.J

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4. Whether the court abused its discretion by per mitting the Commonwealth to offer prior bad acts evidence?

5. Whether the court erroneously permitted the Commonwealth’s narcotics expert to opine that [Appellant] constructively possessed the heroin at issue?

6. Whether the court abused its discretion by assigning an [offense gravity score] of 11 to the conspiracy charge because [Appellant] was acquitted of PWID and the verdict sheet did not allow for the jury to find any quantity of controlled substance in connection with the conspiracy?

Appellant’s Brie f at 10 (issues renumbered, some capitalization omitted). 3

Appellant first argues that the Commonwealth elicited improper

testimony from Detective Vance that Appellant and Torres were known drug

associates. See id. at 10, 29

- 30, 49

- 51; see also N.T., 5/23/19, at 213

- 15

.

According to Appellant, Torres was improperly “ injected into the case by the

Commonwealth,” over the defense’s timely objection and motion for a mistrial.

Appellant’s Brief at 29.

_________________ __________ ______ ____ _______

3 Regarding Appellant ’s first issue, he does not provide a corresponding

discussion of th is issue under a separate heading in his brief’s a rgument

section

. See Pa.R.A.P. 2119(a) (requiring the appellant to divide the argument section into separate sections for each issue set forth in the statement of questions presented, with distinctive headin gs for each such section). Rather, he sporadically addresses the matter in connection with portions of his second and fifth issues. See Appellant’s Brief at 29

- 30, 49

- 51. Though we could deem this issue waived, w e will overlook the defect, but

caution c ounsel in the future. See Commonwealth v. Levy , 83 A.3d 457, 461 n.2 (Pa. Super. 2013) (declining to find waiver where omissions did not impede review, and citing Pa.R.A.P. 105 (a) ( providing that appellate rules shall be liberally construed to secure the just, speedy and inexpensive determination of every matter)).J

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“Questions concerning the admissibility of evid ence are within the sound

discretion of the trial court and we will not reverse a trial court’s decision

concerning admissibility of evidence absent an abuse of the trial court’s

discretion.” Commonwealth v. LeClair

, 236 A.3d 71, 78 (Pa. Super. 2020)

(cit ation omitted). “An abuse of discretion is not merely an error of judgment,

but is rather the overriding or misapplication of the law, or the exercise of

judgment that is manifestly unreasonable, or the result of bias, prejudice, ill

will or partiality, a s shown by the evidence of record.” Commonwealth v.

Antidormi , 84 A.3d 736, 750 (Pa. Super. 2014) (citations omitted).

Moreover, to “constitute reversible error, an evidentiary ruling must not only

be erroneous , but also harmful or prejudicial to the complaining party .”

Commonwealth v. Lively , 231 A.3d 1003, 1008 (Pa. Super. 2020) (citation

omitted). Finally, w e also review the denial of a mistrial request for an abuse

of discretion. Commonwealth v. Radecki , 180 A.3d 441, 457 (Pa. Super.

2018) ; see also id. (a mistrial “ is an extreme remedy that must be granted

only when an incident is of such a nature that its unavoidable effect is to

deprive defendant of a fair trial.”).

In support of his claim that the prosecution injected Torres into the case,

Appellant contends that

, on direct examination, “Figueroa testified that Torres

provided the [rental] vehicle in question.” Appellant’s Brief at 29 ( footnote

omitted ).J

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-

T he re cor d reveals that t he prosecutor asked Figueroa on direct who

provided her with the rental car; Figueroa replied: “[Appellant’s] cousin

brought it to me.” N.T., 5/22/19, at 58 ; see also id. at 82 ( same )

. Figueroa

did not name this cousin . Further , nowhere prior to this testimony was Torres

name d, 4 nor was there any discussion concerning Appellant’s cousin

. I n the

prosecutor’s opening statement, he never mentioned Torres; nor did he

implicate any other party as being involved in the crime

. See

, e.g. , N.T.,

5/ 22 /19, at 40 ( prosecutor stating that “[Appellant] provided [Figueroa] with

a rental car. . . . He provided her an address in New Jersey that she was to

go to in that rental car.”); cf. i d. at 44 (defense counsel asserting in his

opening statement tha t the rental car “was not rented by my client”).

On cross

- examination of Figueroa, Appellant’s counsel inquired about

Appellant’s cousin in question , using the nickname by which Figueroa knew

Torres

, i.e.

, “Bossy”:

Q. [Defense counsel ]: My client has a lot of cousins, doesn’t he?

A. [ Figueroa ]: I am not sure.

* * *

Q. Do you know a person named Bossy?

A. No, not personally.

Q. But you heard of him?

A. Yes.

_________________ __________ ______ ____ _______

4 Figueroa was the first witness to testify at trial.J

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-

Q. Who is he?

A. [Appellant’s] cousin.

Id. at 100

- 01 ; see also id. at 88

- 89 (Figueroa stating on cross

- examination

that she knew Appellant’s cousin as Bossy , and Bossy provided her with the

rental car )

.

On re

- direct of F igueroa

, the prosecutor responded to defense counsel’s

questioning concerning Bossy. See i d. at 114

- 15. Fig ueroa testified that she

did not receive any communications from Bossy after he gave her the rental

car. Id. at 114. Figueroa further stated that Appellant, not Bossy , gave her

the address o f the drug house in New Jersey , as well as all other instruction s

.

Id. at 1 15

.

On the next day of trial

, defense counsel : (a) first brought up Torres

by name during cross

- examination of Detective Vance ; 5 and (b) elicited

testimony

, for the first time

, that Torres was a drug dealer :

Q. [Defense counsel ]: And there was an individual that was communicating with [Figueroa] during this time span with text messages and his name is Bossy. Do you know who that is?

A. [ Detective Vance ]: Yes, I do.

Q. You do, Genol Torres

. . . .

* * *

Q. Bossy is a drug dealer ?

_________________ __________ ______ ____ _______

5 Notably, the prosecutor never mentioned Bossy/Torres on direct examination

of Detective Vance.J

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-

A. Yes, he is.

Q. Who is he?

A. [Appellant’s] cousin.

N.T., 5/ 23/19, at 197 (emphasis added) ; see also id. at 199, 202 (defense

counsel inquiring whether Torres , not Appellant, could have been the person

who arranged the drug deal in question ).

O n re direct of Detective Vance , the prosecutor responded to defense

counsel’s above line of questioning

, by inquiring about Bossy and his

relationship with Appellant :

Q. And lastly, do you know Bossy?

A. Yes.

Q. What is Bossy’s fu ll name?

A. Genol Torres.

Q. Is Mr. Torres related to [Appellant]?

A. Yes.

Q. How is he related to [Appellant]?

A. C ousin s

.

Q. Defense counsel also asked you if Bossy is a drug dealer.

A. Yes.

Q. Do you know who his associates are in the drug dealing world?

A. Yes.

Q. Who are they?J

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A. Antonio Rivera.

Id. at 213

. Defense counsel then immediately objected and moved for a

mistrial based on this exchange

. See i d. at 213

- 15.

Taken in isolation , the prosecutor’s question to Detective Vance

conc erning the identity of Bossy ’s “ associates [] in the drug dealing world” is

inappropriate . However, reading the record as a whole

, the prosecutor’ s

question was in fair response to the testimo ny elicited for the first time by

Appellant’s counsel , not the prosecutor. Appellant is correct that t he

prosecutor initially elicited testimony from Figueroa that Appellant’s unnamed

cousin gave her the rental car. See N.T., 5/ 22/19, at 58. 6 This cousin

,

however, was never identified during or before Figueroa’s testimony

, nor was

said cousin ’s relationship with Appellant explained to the jury

. De fense

counsel

, not the prosecutor

, identified this unnamed cousin as being Torres,

and, more importantly, elicited testimony from Detective Vance that

Torres was a drug dealer

. See N.T., 5/ 23/19, at 197. In light of defense

counsel’s line of questioning

, and attempt to divert culpability from Appellant

to Torres, the prosecutor was permitted to “ make fair comment on the

_________________ __________ ______ ____ _______

6 It can reasonably be inferred , however, t hat the prosecutor was not anticipating Figueroa’s testimony in this regard; i.e. , where the prosecutor had stated to the jury during his opening statement that Appellant

, not his

cousin , gave Figueroa the rental car. See N.T., 5/ 22 /19, at 40. Figueroa’s testimony on direct contradicted the prosecutor’s statement, and introduced an uncharged co

- conspirator into the case, which was disadvantageous to the prosecution.J

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admitted evidence and [] provide fair rebuttal to defense arguments.”

Commonwealth v. Spotz , 18 A.3d 244, 288 (Pa. 2011); see also id.

(stating “[e] ven an otherwise improper comment may be appropriate if it is in

fair response to defense counsel’s remarks

. Any challenge to a prosecutor’s

comment must be evaluated in the context in which the comment was

made .” ( emphasis added; citations omitted)).

Nevertheless , even assuming, arguendo , that the trial court erred in

admitting the above testimony concerning Torres , such error was harmles s

where the uncontradicted evidence of Appellant’s guilt was overwhelming. It

is well established that an “ error may be deemed harmless, inter alia , where

the properly admitted and uncontradicted evidence of guilt was so

overwhelming and the prejudicial effect of the error was so insignificant by

comparison that the error could not have contributed to the verdict.”

Commonwealth v. Williams , 2020 PA Super 246, at * 17 (Pa. Super. 2020 )

(citation omitted ); see also Commonwealth v. Hairston

, 84 A.3d 657,

671 ( Pa. 2014) (t he harmless error doctrine “reflects the reality that the

accused is entitled to a fai r trial, not a perfect trial.” (citation omitted)).

Here, Appellant’s co

- conspirator, Figueroa, testified in d etail that it was

Appellant who coordinated all aspects of the drug transaction ( aside from

initially giving Torres the rental car) , and closely monitored Figueroa

throughout her trip to retrieve drugs for Appellant

. See generally N.T.,J

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-

5/ 22/19, at 52

- 121. 7 In light of the jury’s verdict on the conspiracy charge

against Appellant, the jury ostensibly credited this testimony. See, e.g.,

C ommonwealth v. Crosley

, 180 A.3d 761, 768 (Pa. Super. 2018) (stating

that “even the uncorroborated testimony of a single witness may alone be

sufficient to convict a defendant.” (citation omitted) )

. Accordingly, even if the

testimony concerning Torres prejudiced Appellant, any such prejudice was de

minimis and did not influence the jury’s verdict. See W illiams

, supra ;

Lively

, supra

. Therefore, Appellant’s first issue does not entitle him to relief

.

In his second issue, Appellant contends the trial court abused its

discretion in precluding defense counsel from presenting Torres’s testimony in

Appellant’s case

- in

- chief. See Appellant’s Brief at 21

- 34. Though Appellant

concedes the defense made this r equest on the final day of trial, he disputes

the trial court’s determination that this constituted a discovery violation

. See

i d. at 29

- 30 (arguing the late request was unavoidable under the

circumstances and there was no prejudice to the Commonwealth )

. Appellant

asserts the court’s improper denial of his right to present rebuttal/exculpatory

evidence deprived him of a fair trial and his right to present a defense. Id. at

22.

“[D] ecisions involving discovery in criminal cases lie within the

discretion of the trial court. We will not reverse a trial court’s order absent an

_________________ __________ ______ ____ _______

7 Moreover

, Figueroa stated that she had previously done ten nearly identi cal drug transports for Appellant

. See N.T., 5/ 22/19, at 3

- 5, 81

- 85.J

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-

abuse of that discretion.” Commonwealth v. Alston , 2 33 A.3d 795, 804

(Pa. Super. 2020) (citations and quotation marks omitted). We have

explained that

[i ]f a discovery violation occurs, the court may grant a trial continuance or prohibit the introduction of the evidence or may enter any order it deems just under the circumstances.

Pa.R.Crim.P. 573(E ). The trial court has broad discretion in choosing the appropriate remedy for a discovery violation. Our

scope of review is whether the court abused its discretion in not excluding evidence pursuant to Rule 573(E). A [party] seeking

relief from a discovery violation must demonstrate prejudice.

Commonwealth v. Brown , 200 A.3d 986, 993 (Pa. Super. 2018) (some

citations omitted).

In Gill v. McGraw Elec. Co. , 399 A.2d 1095 (Pa. Super. 1979) ( en

banc ), our Court set forth the factors a court must consider in determining

whether or not a witness should be precluded for failure to comply with

discovery rules:

(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified[;] (2) the ability of that party to cure the prejudice[;] (3) the extent to which waiver of

th e rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of cases in the court[; and] (4) bad faith or willfulness in failing to comply with the court’s

order.

Id. at 1102.

Here, on the morning of the final day of trial, the following exchange

transpired concerning defense counsel’s late proffer of Torres :

[Defense counsel]: Your Honor, [Appellant] came into the

courtroom [today] and indicated that he wanted an individual to testify on his behalf. That indi vidual is in Lancaster County Prison.J

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His name is Genol Torres. The offer of proof would be that [Torres] gave the vehicle to [Figueroa, i.e. , for her to pick up the

narcotics in New Jersey,] and my client had nothing to do with it.

THE COURT: Commonwe alth?

[The prosecutor]: Your Honor, this is a last

- minute desire to have someone subpoenaed. I understand the defense has an absolute right to put on their defense in their case

- in

- chief. I will state that Mr. Torres does have an attorney. ...

* * *

[Defense counsel]: Your Honor, Mr. Torres was an individual that came to my attention today by my client[, who] desires [Torres] to testify. I didn’t have that information, certainly not back in August 2018 when [the defense was] asked for reciprocal discovery. Mostly that’s for expert witnesses and things to that

effect. As far as [Appellant’s] defense, we don’t have to disclose who is going to be testifying on our behalf. But that is a very late request based upon the circumstances of the testimo ny that has

been before Your Honor.

* * *

THE COURT: All right. Very good. So we are going to proceed with the case. If it becomes possible to get Mr. Torres here with counsel, we will do that but if not, given the late and improper

disclosure o f this witness, we will proceed without him.

N.T., 5/24/19, at 225

- 27. The trial court subsequently denied defense

counsel’s request. See id. at 270 (ruling, “ it is too late of a disclosure after

efforts were made by all counsel and the Sheriff’s Depart ment to make Mr.

Torres available. Given the very late notice, it is highly prejudicial and it is ...

undue given the potential conflicts from trial counsel for Mr. Torres.”).

In its Pa.R.A.P. 1925(a) opinion, the trial court reasoned as follows in

suppor t of its ruling:J

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- In addition to the untimeliness of the [defense’s] proffered witness [request], Mr. Torres was represented by Attorney Ray Stout, who also represented [] Figueroa’s sister, Kiomara [], with the then[

- ]pending charges [against Kiomara] arising from the same incident. This presented a glaring conflict of interest for [Attorney] Stout to accurately counsel and represent both parties. Furthermore, Mr. Torres was incarcerated . Every effort to coordinate legal counsel and transportation from the prison was made for Mr. Torres to take the stand, but the late disclosure prevented it as a practical matter.

Despite all of that, the relevance of Mr. Torres’s testimony to [Appellan t’s] case

- in

- chief was, at best, speculative. [Appellant] cannot rely on the speculative nature of what Mr. Torres would or would not have said in hopes of a better outcome.

It was [Appellant] that failed to disclose this information. It was [Appellant] that attempted to weaponize the Rules of Criminal Procedure to put the Commonwealth at a disadvantage. The only proper remedy was to preclude testimony from Mr. Torres, and the preclusion did not prejudice [Appellant] in any way.

Trial Court Opinion, 3 /12/20, at 9

- 10 (unnumbered) (citations omitted) ; See

also Gill , 399 A.2d at 1102 . We agree with the trial court’s sound rationale

and determination, which is supported by the record and the law. Accordingly,

we discern no abuse of the trial court’s disc retion and Appellant’s second issue

fails.

In his third issue, Appellant contends that the trial court erred in denying

his pro se Rule 600 Motion , where his trial purportedly commenced 17 days

after the one

- year time bar of Pa.R.Crim.P. 600(A)(2)(a) , and the trial court

improperly attributed periods of delay to the defense. See Appellant’s Brief

at 37

- 45. We disagree.

This Court reviews a ruling under Rule 600 pursuant to an abuse

- of

- discretion standard.

... Additionally, when considering a Rule 600 claim, this Court must view the record facts in the lightJ

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-

most favorable to the winner of the Rule 600 motion. It is, of

course, an appellant’s burden to persuade u s the trial court erred

and relief is due.

Additionally, when considering the trial court’s ruling, this

Court is not permitted to ignore the dual purpose behind Rule 600

. Rule 600 serves two equally important functions: (1) the protection of the accus ed’s speedy trial rights, and (2) the protection of society. In determining whether an accused’s right

to a speedy trial has been violated, consideration must be given

to society’s right to effective prosecution of criminal cases, both

to restrain those g uilty of [a] crime and to deter those contemplating it. However, the administrative ma ndate of Rule

600 was not designed to insulate the criminally accused from good

faith prosecution delayed through no fault of the

Commonwealth. So long as there has bee n no misconduct

on the part of the Commonwealth in an effort to evade the

fundamental speedy trial rights of an accused
, Rule 600 must be

construed in a manner consistent with society’s right to punish and deter crime

. In considering these matters, courts

must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of

the community to vigorous law enforcement as well.

Commonwealth v. Martz

, 232 A.3d 801, 809

- 10 (Pa. Super. 2020)

( emphasis added; citations and ellipses omitted).

Rule 600 provides in relevant part as follows:

(C) Computation of Time

(1) For purposes of paragraph (A) [(general one

- year
time bar)], periods of delay at any stage of the proceedings caused by the Commonwealth when the

Commonwealth has failed to exercise due diligence

shall be included in the computation of the time within

which trial must commence. Any other periods of delay

shall be excluded from the computation.

Pa.R.Crim.P. 600(C).

To summarize, the courts of this Commonwealth employ

three steps in determining whether Rule 600 requires dismissal of charg es against a defendant. First, Rule 600(A) [(2)(a)] pro videsJ

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the mechanical run date. Second, we determine whether any

exc ludable time exists pursuant to Rule 600(C). [ 8 ] We add the

amount of excludable time, if any, to the mechanical run date to

arrive at an adjuste d run date.

Commonwealth v. Bethea

, 185 A.3d 364, 371 (Pa. Super. 2018) ( footnote

added; citation s , emphasis, and ellipses omitted).

[I]n assessing any period of delay under Rule 600, it is critical to

ascertain the cause of such delay. Stated in the most general terms, when the Commonwealth causes delay, the Rule 600 clock continues to tick; when the defendant causes delay, the clock
stops.

Commonwealth v. Barbour , 189 A.3d 944, 958 (Pa. 2018) (emphasis in

original). Finally

, periods of judicial delay are excludable from Rule 600.

Commonwealth v. Mills , 162 A.3d 323, 325 (Pa. 2017)

.

The trial court in the instant case conclud ed Appellant’s Rule 600 claim

is “utterly meritless”:

The criminal complaint was filed May 3, 2018[,] at the same

time as [Appellant’s] incarceration. On August 8, 2018, there was one continuance granted[,] with time [attributable to] the Commonwealth. On August 30, 2018, the case was listed for

_________________ __________ ______ ____ _______

8 We have explained that

“ [e] xcludable time” is classified as periods of delay caused by the

defendant. Pa.R.Crim.P. 600(C)(2). “Excusable delay” occurs where the delay is caused by circumstances beyond the
Commonwealth’s control and despite its due diligence. Due diligence is a fact

- specific concept that must be determined on a

case

- by

- case basis. Due diligence does not require perfect vigilance and punctilious care, but rather a showing by the

Commonwealth that a reasonable effort has been put forth.

Commonwealth v. Moore

, 214 A.3d 244, 248

- 49 (Pa. Super. 2019) (citations and quotation marks omitted).J

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-

trial on October 26, 2018

. On September 19, 2018, [defense counsel] filed [the OPT] M otion. On February 11, 2019, a hearing

was held to decide the merits of that Motion. Trial commenced on May 22, 2019.

From the filing of the criminal c omplaint on May 3, 2018 to

the commencement of the trial on May 22, 2019, 382 days elapsed, whi ch is 17 days after the mechanical computation of

time under Rule 600. However, 145 days are attributable to

the [ OPT ] Motion filed on September 1 [9] , 2018, all time of

which is excluded from the computation under Rule 600. [FN] With those 145 days excluded from the computation of time, even without any other [d]efense continuances, his trial commenced

within 237 days from the filing of the criminal c omplaint.

[FN] Court congestion, including the busy holiday season

from November to January, attribu ted to the delay in scheduling the hearing until February 11, 2019 . [ See
Mills

, supra (periods of judicial delay are excludable ). ]

Moreover, it is worth nothing that [Appellant ’s ] Rule 600

Motion was filed pro se even though he was represented at the

time he filed it. Any document filed by a defendant represented by an attorney will simply be forwarded to the attorney for review. Pa.R.Crim.P. 576(A)(4). This was done and significantly[,] [defense counsel] did no t refile a formal motion on behalf of [Appellant], most likely because the [Rule 600 claim] was entirely without legal or factual merit.

Trial Court Opinion, 3/12/20, at 8

- 9 (unnumbered ) (emphasis added; footnote

in original). The record supports the tri al court’s rationale and determination,

and we likewise conclude Appellant’s Rule 600 Motion was patently frivolous

and properly denied by the trial court. The Commonwealth did not seek to

evade Appellant’s speedy trial rights in any fashion

. See Martz

, supra

.

Appellant’s third issue fails.

In his fourth issue, Appellant argues that the trial court abused its

discretion in granting the Commonwealth’s Rule 404(b) Motion and permittingJ

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-

Figueroa to testify to prior, similar incidents where she had transpor ted large

quantities of suspected narcotics at Appellant’s behest. 9 See Appellant’s Brief

at 34

- 37. Appellant contends this evidence severely prejudiced him and

portrayed him as a repeat offender to the jury

. Id. at 36

.

E vidence of prior bad acts

, while generally not admissible to prove bad

character or criminal propensity

, can be admi ssible to show

, inter alia

, a

common plan or scheme where the probative value of such evidence

outweighs its potential for unfair prejudice. 10 Pa.R.E. 404(b)(2) ; see also

Ivy

, 146 A.3d at 25 1 ( “[a]n exception to Rule 404(b) exists that permits the

admission of evidence where it became part of the history of the case and

formed part of the natural development of facts.” )

. “‘Unfair prejudice’ means

a tendency to suggest a decision on an improper basis or to divert the jury’s

attention away from its duty of weighing the evidence impartially.”

_________________ __________ ______ ____ _______

9 At the beginning of trial, the trial court considered further argument o n the Rule 404(b) Motion. See N.T., 5/22/19, at 3

- 5. The Commonwealth explained that it had provided defense counsel with a copy of a recorded police interview during discovery; in the recording, Figueroa described the several prior occasions on which sh e had transported suspected drugs for Appellant.

Id. at 3. Defense counsel stated that he had reviewed this recording

, and the Commonwealth’s averments in the Rule 404(b) Motion were consistent with the recording. Id.

10 To determine whether the comm on plan or scheme exception applies, a trial

court must examine the details and surrounding circumstances of each

criminal incident to assure that the evidence reveals criminal conduct which is distinctive as to become the signature of the same perpetrator.
Commonwealth v. Ivy

, 146 A.3d 241, 25 3 (Pa. Super. 2016) (explaining

that the circumstances of the crimes need not be identical, but there must be

a “logical connection between them.”).J

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-

Commonwealth v. Dillon

, 925 A.2d 131, 141 (Pa. 2007) (quoting Pa.R.E.

403, Comment). Additionally, “ w hen weighing the potential for prejudice, a

trial court may consider how a cautionary jury instruction might ameliorate

the prejudicial effect of the proffered evidence.” Dillon

, 925 A.2d at 141

.

In the instant case, t he trial court opine d that it properly admitte d the

prior bad acts evidence at issue :

Ms. Figueroa testified that she had performed trips for [Appellant]

like the one sub judice around ten times. (N.T. [, 5/ 22/19 ,] at 81 ).

In these transactions

, she always used a re n ted car provided by

Mr. Torres. ( Id. at 82). [Appellant] would then provide her with

an address and in structions throughout the trip. ( Id. ) The transactions were always the same: get the rental car with one bag, receive an address, make an exchange at the address for a different bag, receive a return address, [and finally,] return the

rental car with the different bag to that address. ( Id. ) This

evidence demonstrates the common scheme and plan of [Appellant] , Mr. Torres, and Ms. Figueroa. It also shows why Ms. Figueroa was the subject of Detective Vance’ s investigation. The jury should be and was presented with this evidence, along wi th
the rest of the Commonwealth’ s witness testimony and [Appellant ’s ] own testimony. The weight and credibility of this evidence was placed in the hands of the jury. Ms. Figueroa’ s testimony of the prior transactions showed the natural progression of facts leading up to the current transaction, and its probative value as to the ultimate issue far outweighed any preju dice to [Appellant]

.

Trial Court Opinion, 3/12/20, at 12

- 13 (unnumbered ) (some capitalization

omitted).

Our review discloses that t he trial court’s above analysis is supported by

the record and the law

. The evidence of prior bad acts evidence in this case

was highly probative to the charged crimes, and the Commonwealth “did not

seek to inflame the jury’s sensibilities with references to matters other thanJ

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-

the legal prop osition relevant to the case.” Antidormi

, 84 A.3d 736, 751 (Pa.

Super. 201 4)

. Additionally, because defense counsel , well prior to trial, had

reviewed Figueroa’s police interview describing her prior drug transports for

Appellant, we are unpersuaded by Appellant’s claim of unfair surprise. Finally

,

the trial court issued a cau tionary instruction concerning the limited purpose

for which the jury could consider Appellant’s prior bad acts. See N.T.,

5/24/19, at 325

- 26. This ameliorated any prejudice this evidence may have

caused Appellant. See D illon

, 925 A.2d at 141 ; see also Commonwealth

v. Speight , 854 A.2d 450, 458 (Pa. 2004) (a jury is presumed to follow a trial

court’s instructions). Appellant’s fourth issue is meritless.

In his fifth issue, Appellant contends that the trial court erred in

admitting inappropriate expert t estimony from Detectives Weber and Vance

,

which deprived Appellant of a fair trial

. See Appellant’s Brief at 45

- 51. We

disagree.

The admissibility of expert evidence is within the sound discretion of the

trial court, and we will not reverse absent a mani fest abuse of discretion.

Commonwealth v. Leap , 202 A.3d 386, 390 (Pa. Super. 2019). Expert

testimony is admissible when it “involves explanations and inferences not

within the range of ordinary training[,] knowledge, intelligence and

experience.” Commonwealth v. Walker

, 92 A.3d 766, 788 (Pa. 2014)

(citation omitted).J

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- 23

-

Preliminarily, to the extent Appellant challenges the admission of

Detective Vance’s testimony that Torres and Appellant were drug associates,

see Appellant’s Brief at 49

- 51, we need not address this claim, as we already

rejected it in connection with Appellant’s first issue

, supra

.

Regarding Detective Weber ’s expert testimony

, Appellant contends that

the trial court improperly overruled defense counsel’s objection and permitted

the Detective to opine that Appellant constructively possessed the narcotics

seized from Figueroa’s vehicle with the intent to deliver

. Id. at 46

.

Detective Weber was qualified as an expert in the field of he roin

distribution in Lancaster C ounty, without objection by defense counsel

. See

N.T., 5/23/19, at 234. 11 On direct examination, Detective Weber provided the

jury a definition for constructive possession

. Id. at 23 5 (defining the term as

“not having [an object] in [the accused’s] physi cal control or not having it in

their possession.”). Based on his training and unchallenged drug experience,

Detective Weber opined that Appellant constructively possessed the narcotics

in question

. Id. at 244.

Appellant “concedes that expert testimony is admissible concerning

whether the facts surrounding the possession of controlled substance are

consistent with an intent to deliver[.]” Appellant’s Brief at 46 (citing

_________________ __________ ______ ____ _______

11 Although Detective Weber was not involved in the inv estigation into the instant crimes, he was present in the courtroom for Appellant’s entire trial and had reviewed all discovery materials. Id. at 234

- 35.J

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- 24

-

Commonwealth v. Ratsamy , 934 A.2d 1233, 1236 ( Pa. 2007) ). However,

he claim s that expert testimony regarding constructive possession is

inadmissible. Id. In this regard , Appellant primarily relies upon a decision of

the New Jersey Supreme Court

, State v. Reeds , 962 A.2d 1087 (N.J. 2009)

.

See Appellant’s Brief at 48

- 49.

It is black

- letter law that decisions of sister states are not binding

precedent on this Court. See Commonwealth v. Arthur , 62 A.3d 424, 429,

n.9 ( Pa. Super. 2013). Additionally, whether Appellant possessed the

narcotics was a relevant fact at issue to the charges against him ( i.e. , PWID)

,

and witnesses may testify to ultimate issues before the jury

. See Pa.R.E. 704,

supra

.

Nevertheless, even if

, arguendo

, the trial court erred in admitting

Detective Weber ’s testimony , such error was harmless. See Williams

,

supra

. T he jury acquitted Appellant of PWID; it convicted him of criminal

conspiracy, which does not include a possessory element like PWID

. Thus,

Appellant did not suffer any prejudice from Detective Weber’s testimony

concerning constructive possession

, and a ny error was entirely harmless

.

Appellant’s fifth issue is meritless

.

In his sixth and final issue, Appellant contends that the sentencing court

erred in assigning an offense gravity score (OGS) of 11 to Appellant’s

conspiracy conviction. See Appellant’ s Brief at 52

- 54.J

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- 25

-

Appellant challenges the discretionary aspects of his sentence, from

which there is no absolute right to appeal. See Commonwealth v. Hill

, 66

A.3d 359 , 363 (Pa. Super. 2013). Rather, where, as here, the appellant has

preserved the sentencing challenge for our review, by raising it in a timely

post

- sentence motion, he or she must (1) include in their brief a concise

statement of the reasons relied upon for allowance of appeal with respect to

the discretionary aspects of a sentence, pursuant to Pa.R.A.P. 2119(f); and

(2) show that there is a substantial question that the sentence imposed is not

appropriate under the Sentencing Code. Hill

, 66 A.3d at 363

- 64.

Here, Appellant’s brief contains a Rule 2119(f) Statement. Additionally,

his claim presents a substantial question for our review. See

Commonwealth v. Sunealitis , 153 A.3d 414, 421 (Pa. Super. 2016) ( a claim

that sentencing court used an incorrect OG S presents a substantial question );

Commonwealth v. Archer , 722 A.2d 203, 210

- 11 (Pa. Super. 1998) ( en

banc ) (same).

Accordingly, we will review the merits of Appellant’s claim, mindful of

our standard of review: “ S entencing is a matter vested in the so und discretion

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

a manifest abuse of discretion.” Commonwealth v. Barnes , 167 A.3d 110,

122 n.9 (Pa. Super. 2017) ( en banc ) (citation omitted).

Appellant contends the sentencing court improperly utilized an OGS of

11 in imposing sentence on the conspiracy conviction. See Appellant’s BriefJ

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- 26

-

at 52

- 54. Appellant points out that this OGS was based upon the weight of

the narcotics in question (120 gra ms); however, the jury never made a finding

as to the actual weight ( i.e. , since the portion of the verdict slip regarding the

conspiracy charge did not require the jury to make a finding on the weight of

the narcotics involved)

. Id. at 53

- 54 (citing Alle yne v. United States , 570

U.S. 99, 108 (2013) (holding facts that increase mandatory minimum

sentences must be submitted to the jury and found beyond a reasonable

doubt)).

This issue lacks merit . Appellant fails to acknowledge that defense

counsel stipulated that the narcotics in question weighed 120 grams. It is

settled that a stipulation is binding on the parties and the court. See

Commonwealth v. Mitchell , 902 A.2d 430, 460 (Pa. 2006); see also

Commonwealth v. Belak , 825 A.2d 1252, 1256 n.10 (Pa. 2003) (stating a

stipulation “is a declaration that the fact agreed upon is proven, and it must

be enforced according to its terms.”). Finally, contrary to Appellant’s claim,

Alleyne is unavailing and inapplicable

. Cf. Com monwealth v. Rivera , 154

A.3d 370, 378

- 79 (Pa. Super. 2017) ( en banc ) (where , unlike here, the court

sentenced defendant under a mandatory minimum sentencing provision based

on the weight of narcotics seized

, holding that a stipulation as to weight cannot

serve to circumvent Alleyne ).

Judgment of sentence affirmed.

Judge Shogan joins the memorandum.J

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-

Judge Stabile concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 0 1/04/2021