J-A22001-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTONIO JUAN RIVERA 

Appellant

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 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 convicted 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 movement 

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 the most 

logical routes to and from New Jersey. 

____________________________________________

1 See 18 Pa.C.S.A. § 903; 35 P.S. § 780-113(a)(30).
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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 Figueroa [(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.] ... Detective 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. Detective 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 through 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 her 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 

spending 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 

address 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 not 
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know the contents of the bag, but she had a suspicion it was 

drugs. 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. Figueroa 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 federal 

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 pretrial motion [(OPT Motion),] alleging [claims not pertinent to the 

instant appeal].... On February 11, 2019, a hearing was held on 

the [OPT] Motion[; the trial court granted relief on Appellant’s 
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suppression of evidence claim, and] denied all other claims. A 

trial date was then scheduled for May 22, 2019.

Prior 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 

counsel] 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 the Motion and granted it only 

insofar as to allow Ms. Figueroa to testify 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 testify 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 

investigations 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 

constructive 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)]. 
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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 capitalization omitted).

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 notice 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 [Appellant] 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 subpoenaed Torres or listed him as a witness. The 

trial court denied this request.
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4. Whether the court abused its discretion by permitting 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 Brief 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 this issue under a separate heading in his brief’s argument

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 headings 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, we will overlook the defect, but 

caution counsel 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)).
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“Questions concerning the admissibility of evidence 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) 

(citation 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, illwill or partiality, as 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, we 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). 
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The record reveals that the 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 

named,4 nor was there any discussion concerning Appellant’s cousin. In 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. id. at 44 (defense counsel asserting in his 

opening statement that 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.
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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 Figueroa, the prosecutor responded to defense counsel’s 

questioning concerning Bossy. See id. at 114-15. Figueroa 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 of the drug house in New Jersey, as well as all other instructions. 

Id. at 115.

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.
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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). 

On redirect 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 full name?

A. Genol Torres.

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

A. Yes.

Q. How is he related to [Appellant]?

A. Cousins.

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?
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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 id. at 213-15.

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

concerning 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 testimony elicited for the first time by 

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

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. Defense 

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, that 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.
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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 harmless

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) (the harmless error doctrine “reflects the reality that the

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

Here, Appellant’s co-conspirator, Figueroa, testified in detail 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., 
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5/22/19, at 52-121.7In light of the jury’s verdict on the conspiracy charge 

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

Commonwealth 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 Williams, 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 request on the final day of trial, he disputes 

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

id. 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 identical

drug transports for Appellant. See N.T., 5/22/19, at 3-5, 81-85. 
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abuse of that discretion.” Commonwealth v. Alston, 233 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 

the 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 individual is in Lancaster County Prison. 
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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: Commonwealth?

[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 testimony 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 of 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 Department 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 

support of its ruling:
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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 [Appellant’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 discretion 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 light
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most favorable to the winner of the Rule 600 motion. It is, of

course, an appellant’s burden to persuade us 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 accused’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 guilty of [a] crime and to deter those

contemplating it. However, the administrative mandate 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 been 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

charges against a defendant. First, Rule 600(A)[(2)(a)] provides
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the mechanical run date. Second, we determine whether any

excludable 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 adjusted run date.

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

added; citations, 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 concluded 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).
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trial on October 26, 2018. On September 19, 2018, [defense 

counsel] filed [the OPT] Motion. 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 complaint on May 3, 2018 to 

the commencement of the trial on May 22, 2019, 382 days 

elapsed, which 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 complaint.

[FN] Court congestion, including the busy holiday season 

from November to January, attributed 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 not 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 trial 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 permitting 
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Figueroa to testify to prior, similar incidents where she had transported 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.

Evidence of prior bad acts, while generally not admissible to prove bad 

character or criminal propensity, can be admissible 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 251 (“[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 on 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 she 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 common 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, 253 (Pa. Super. 2016) (explaining 

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

a “logical connection between them.”).
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Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007) (quoting Pa.R.E.

403, Comment). Additionally, “when 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, the trial court opined that it properly admitted 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 rented car provided by 

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

an address and instructions 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 with 

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 prejudice to 

[Appellant].

Trial Court Opinion, 3/12/20, at 12-13 (unnumbered) (some capitalization 

omitted). 

Our review discloses that the 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 than 
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the legal proposition relevant to the case.” Antidormi, 84 A.3d 736, 751 (Pa.

Super. 2014). 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 cautionary 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 Dillon, 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 testimony 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 manifest 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).
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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 heroin 

distribution in Lancaster County, 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 235 (defining the term as 

“not having [an object] in [the accused’s] physical 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 investigation 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.
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Commonwealth v. Ratsamy, 934 A.2d 1233, 1236 (Pa. 2007)). However, 

he claims 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. The 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 any 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-A22001-20

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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 OGS 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: “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.” 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 Brief 
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at 52-54. Appellant points out that this OGS was based upon the weight of 

the narcotics in question (120 grams); 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 Alleyne 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. Commonwealth 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-A22001-20

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Judge Stabile concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/04/2021