J-S33009-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRIAN KEITH RUSH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 215 EDA 2022

Appeal from the Judgment of Sentence Entered October 20, 2021,

in the Court of Common Pleas of Bucks County,

Criminal Division at No(s): CP-09-CR-0000209-2020.

BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 24, 2022

Brian Keith Rush appeals from the judgment of sentence of 27 to 60 

months’ imprisonment entered following his conviction for possession of 

controlled substance contraband by inmate, possession of a controlled 

substance, and use or possession of drug paraphernalia.

1

 We affirm.

The trial court described the factual history:

In October of 2019, [Rush] was an inmate at Bucks County 

Correctional Facility and was being housed in the Men’s 

Community Corrections Center while participating in the work 

release program. [Rush] resided by himself in cell C-2 of the C 

module at the Community Corrections Center. On October 28, 

2019, at approximately 6:00 p.m., Corrections Officers Marco 

Semilia and Jacen Buono conducted a tour of the C module. While 

conducting the tour, Officer Semilia looked into the window of cell 

____________________________________________

1 18 Pa.C.S.A. § 5123(a.2); 35 P.S. § 780-113(a)(16); and 35 P.S. § 780-

113(a)(32). Rush was charged with possessing both K2 (synthetic marijuana) 

and Suboxone (Buprenorphine and Naloxone). The jury found Rush guilty of 

the first two crimes with respect to K2 and not guilty with respect to Suboxone.
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C-2 and saw [Rush], along with another inmate, Cody Bruce, in 

the cell together. Cody Bruce did not reside in cell C-2 with 

[Rush]. Officer Semilia observed [Rush] holding what appeared 

to be a green leafy substance contained in a plastic wrap type of 

material. Officer Semilia suspected that the substance was 

contraband, so he attempted to open the cell door. He found the 

door to be locked. Officer Semilia directed [Rush] to drop the 

suspected contraband and unlock the door, but [Rush] refused to 

obey his commands. Instead, [Rush] put the plastic wrap material 

containing a green leafy substance down the front of his pants.

Officer Semilia used his own key to unlock the cell door and 

proceeded to order [Rush] to lie on the floor and Cody Bruce to 

put his hands on the wall. Officer Semilia handcuffed [Rush] and 

then called for backup on his radio. Officer Buono overheard the 

call for help and ran across the C module to cell C-2 to assist 

Officer Semilia. Lieutenant [Nick] Minasian and Officers [Arthur] 

Malindi and [Patrick] Rooney also arrived at cell C-2 following 

Officer Semilia’s call for help.

Officer Buono removed [Rush] from cell C-2 and began to 

escort him to a holding cell while Officer Malindi took custody of 

Cody Bruce. Officer Semilia locked cell C-2 in order to prevent 

anyone from tampering with possible contraband or other 

evidence. As the officers were walking [Rush] to the holding cell, 

Officer Semilia noticed a green leafy substance on the floor.

When [Rush] reached the holding cell, Officer Buono 

performed a quick pat-down search. While performing the patdown search, Officer Buono and Lieutenant Minasian noticed more 

of a leafy green substance falling out of [Rush’s] pant legs and 

onto the floor. Officer Semilia and Lieutenant Minasian collected 

the green leafy substance that fell onto the floor into a brown 

paper bag. Officer Buono then discovered a plastic wrapped 

baggie containing a green leafy substance in [Rush’s] left pant 

pocket. The baggie found by Officer Buono as well as the brown 

paper bag used to collect the green leafy substance which had 

fallen on the floor was turned over to Lieutenant Minasian. 

Lieutenant Minasian placed the plastic wrapped package into the 

brown paper bag and later photographed the contraband, placed 

it in an evidence bag and stored it in a safe in a secure room [to] 

which only lieutenants have access.

[Rush] was then taken to the unclothed body search room 

where he removed his clothing. Officer Buono inspected [Rush’s] 
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pants and found a white latex glove containing a green leafy 

substance. Once again the green leafy substance was handed 

over to Lieutenant Minasian who placed it in the brown bag. 

Lieutenant Minasian later photographed the substance, placed it 

in an evidence bag and stored it in the evidence safe.

Officers Rooney and Semilia went back to search cell C-2. 

When they unlocked the door, Officers Rooney and Semilia found 

more of a green leafy substance on [Rush’s] bed. In addition, the 

officers found a pair of jeans in a plastic bag in front of [Rush’s] 

locker. Inside the jeans pocket was a blue glove which contained 

an unopened Suboxone strip. The Suboxone strip was also turned 

over to Lieutenant Minasian who placed it in the brown paper bag 

with the other evidence collected. Lieutenant Minasian later took 

photographs of the strip, placed it in an evidence bag and secured 

it in the evidence safe.

Trial Court Opinion, 3/14/22, at 1–3 (record citations omitted). Officers also 

secured Rush’s black sock, which had the same green substance that had 

fallen from Rush’s pant leg on it.

The next morning, October 29, 2019, Investigator Daniel Onisick 

retrieved the evidence, took additional photographs, and sealed it in clear 

plastic evidence bags. Investigator Onisick sent the two balls of suspected 

K2, the loose substance from the floor, and the Suboxone strip to NMS Labs 

for testing. Laboratory chemical analysis later confirmed that the substances 

were K2 and Suboxone.

On October 31, 2019, three days after the incident, Investigator Onisick 

attempted to interview Rush. He took Rush to the investigations unit office 

and advised Rush that he was likely to face criminal charges for possessing 

contraband. Investigator Onisick repeatedly attempted to advise Rush of his 

Miranda rights; however, Rush angrily interrupted. Rush said that he found 
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the items in the bathroom and was showing them to Cody Bruce and that the 

jeans on the floor were not his because he hangs his jeans up. As Investigator 

Onisick kept trying to tell Rush his Miranda rights, Rush complained that the 

items were not yet tested, and he asked what Cody Bruce had told 

Investigator Onisick. Investigator Onisick ended the attempted interview

because he knew that Rush did not want to be Mirandized. This interaction 

lasted “a couple of minutes” and was not recorded.

On December 9, 2019, Rush was charged in connection with the 

incident. On July 1, 2021, following the appointment of conflicts counsel, Rush 

filed a motion (1) to exclude evidence of the drugs based on a defective chain 

of custody, (2) to dismiss the case because the Commonwealth did not provide 

exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963), 

(3) to suppress evidence of Rush’s statements based on a violation of 

Miranda v. Arizona, 384 U.S. 436 (1966), and (4) to compel discovery. The 

trial court heard and denied Rush’s motions before trial on August 4, 2021.

The case proceeded to trial on August 4 through 6, 2021, and the jury 

found Rush guilty of the above offenses. On October 20, 2021, the trial court 

sentenced Rush to serve 27 to 60 months of imprisonment for the contraband 

offense, with no additional penalty on the other offenses. Rush moved to 

reconsider, the trial court denied the motion, and Rush appealed. Rush and 

the trial court complied with Pennsylvania Rule of Appellate Procedure 1925.

Rush now raises five issues for our review:
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A. Did the trial court err when it denied [Rush’s] suppression 

motion and permitted [Rush’s] statements to be admitted at 

trial when those statements were made during an in-custody 

interrogation and where [Rush] did not receive Miranda

warnings?

B. Did the trial court err when it denied [Rush’s] motion to dismiss 

the case as the prosecution failed to produce and preserve 

several pieces of evidence in violation of Brady v. Maryland?

C. Did the trial court err when it denied [Rush’s] motion to compel 

discovery, which should have been produced pursuant to Rule 

573?

D. Did the trial court err when it failed to declare a mistrial when 

the discoverable material was produced mid-trial?

E. Did the trial court err in denying [Rush’s] suppression motion 

relating to controlled substances when the evidence did not 

meet the requirements of Pennsylvania Rule of Evidence 901?

Rush’s Brief at 5.

A. Suppression of Statements

Rush first argues that the suppression court should have suppressed his 

statements to Investigator Onisick based on a violation of Miranda v. 

Arizona, 384 U.S. 436 (1966). Rush’s Brief at 28–33. There being no dispute 

that Rush was in custody, the issue is whether Investigator Onisick subjected 

him to an interrogation.

We review Rush’s claim according to these well-settled principles:

our standard of review for the denial of a suppression motion is 

de novo and is limited to determining whether the suppression 

court’s factual findings are supported by the record and whether 

the legal conclusions drawn from those facts are correct. Our 

scope of review is to consider only the evidence of the 

Commonwealth and so much of the evidence for the defense as 

remains uncontradicted when read in the context of the 

suppression record as a whole.
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Commonwealth v. Green, 265 A.3d 541, 550–51 (Pa. 2021) (citations and 

quotation marks omitted).

The suppression court found that although Investigator Onisick 

attempted to interrogate Rush, he “did not actually begin interrogation” 

because Rush “did not allow himself to be given Miranda rights.” N.T., 

Hearing, 8/4/21, at 43. Specifically, the court found based on Investigator 

Onisick’s testimony from the pretrial hearing that:

on October 31, 2019, [Investigator Onisick] interviewed [Rush] 

and informed him that he was possibly facing criminal charges for 

possession of synthetic marijuana and Suboxone. Investigator 

Onisick also told [Rush] that he wished to advise him of his 

Miranda rights. At the time, [Rush] was very animated and 

angry. [Rush], not allowing Investigator [Onisick] to Mirandize

him, spontaneously blurted out that he had found the items in the 

bathroom and that he was showing them to Cody Bruce when the 

officers came into his cell. Investigator [Onisick] continued to try 

to Mirandize [Rush], but [Rush] continued to talk over him. 

[Investigator Onisick] ended the interview because he did not 

believe [Rush] wished to be advised of his Miranda rights.

Trial Court Opinion, 3/14/22, at 10. The court found that Rush’s statements 

were spontaneous, not in response to any questioning. Id. at 10–11. 

Therefore, the court denied suppression.2

On review, we find no error. Miranda prevents the government from 

using “statements stemming from a custodial interrogation of a defendant 

unless it demonstrates that he was apprised of his right against selfincrimination and his right to counsel.” Commonwealth v. Gaul, 912 A.2d 

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2 Rush’s statements were admitted through Investigator Onisick’s testimony 

at trial. N.T., 8/5/21, at 165–169. 
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252, 255 (Pa. 2006) (citing Commonwealth v. DeJesus, 787 A.2d 394 (Pa. 

2001), abrogated on other grounds, Commonwealth v. Freeman, 827 A.2d 

385 (Pa. 2003)). This applies when “a person in custody is subjected to 

express questioning or its functional equivalent.” Id. (quoting Rhode Island 

v. Innis, 446 U.S. 291, 300–01 (1980)). “That is to say, the term 

‘interrogation’ under Miranda refers not only to express questioning, but also 

to any words or actions on the part of the police (other than those normally 

attendant to arrest and custody) that the police should know are reasonably 

likely to elicit an incriminating response from the suspect.” Innis, 446 U.S. 

at 301.

Whether police conduct is the functional equivalent of interrogation 

depends on the totality of the circumstances. Gaul, 912 A.2d at 255 (citing 

Commonwealth v. Williams, 640 A.2d 1251, 1259 (Pa. 1994)).

In conducting the inquiry, we must also keep in mind that 

not every statement made by an individual during a police 

encounter amounts to an interrogation. Volunteered or 

spontaneous utterances by an individual are admissible even 

without Miranda warnings. See, e.g., Commonwealth v. Baez, 

554 Pa. 66, 720 A.2d 711, 720 (1998). Similarly, Innis does not 

“place the police under a blanket prohibition from informing a 

suspect about the nature of the crime under investigation or about 

the evidence relating to the charges against him.” DeJesus, 787 

A.2d at 402.

Id. “Miranda does not preclude the admission of spontaneous utterances” 

by a suspect in custody. Commonwealth v. Johnson, 42 A.3d 1017, 1029 

(Pa. 2012) (citing Baez, supra).
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Gaul illustrates when police statements are the functional equivalent of 

an interrogation. There, an investigator read a suspect the criminal complaint

and affidavit of probable cause concerning his arrest for theft, relayed

incriminating statements from the victim, twice explained that the suspect

would have to be informed of his Miranda rights, and asked if he wanted to 

discuss the pending charges. Gaul, 912 A.2d at 254. Our Supreme Court 

held that the investigator should have known that presenting the victim’s 

incriminating statement in addition to the charges would be reasonably likely 

to elicit an incriminating response. Id. at 256 (following DeJesus, supra).

Here, unlike in Gaul, the only aspect of the interaction claimed to be 

the functional equivalent of questioning is Investigator Onisick’s initial 

statement that Rush was likely facing criminal charges for contraband. During 

the brief interaction, Investigator Onisick did not ask if Rush wanted to discuss 

the charges or present any evidence. Instead, when Rush asked what Cody 

Bruce said, Investigator Onisick ended the interaction. In attempting to 

interview Rush, Investigator Onisick was permitted to tell him about the 

nature of the crime under investigation. Id. at 255. We do not hold that this 

statement alone was reasonably likely to elicit an incriminating response; 

rather, it is the kind of statement “normally attendant to arrest” that is not 

equivalent to an interrogation under Innis. Absent the additional 

circumstances in Gaul, we conclude that the trial court did not err in 

determining that Rush was not yet subject to interrogation when he 

interjected. Therefore, we deny relief on Rush’s first issue.
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B. Preservation and Production of Evidence

Rush next challenges the trial court’s denial of his motion to dismiss 

based on the Commonwealth’s failure to provide material exculpatory 

evidence in discovery. He complains that the Commonwealth did not give him

Cody Bruce’s discipline records, records of why Cody Bruce did not report to 

work release on October 28, 2019, and video surveillance showing Cody Bruce 

entering cell C-2. Rush’s Brief at 36. He further challenges the failure to 

provide documents that contradicted officers’ testimony until the second day 

of trial, after they had testified. Id. at 38. Finally, he notes that investigators 

did not preserve the jeans recovered from the floor of cell C-2, which had 

Suboxone in the pocket.3

Initially, we note that this is a broader challenge than the trial court had 

the opportunity to consider before trial. Rush’s omnibus motion faulted the 

Commonwealth for not preserving the jeans or the video of Cody Bruce 

entering the cell. Motion, 7/1/21, at 5–6 (unnumbered). Only these two items 

were addressed at the pretrial hearing. N.T., Pretrial Hearing, 8/4/21, at 30–

38. Therefore, we limit our review to the trial court’s denial of Rush’s motion 

to dismiss based on the jeans and the video as alleged Brady violations.

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3 This roughly corresponds to the third issue in Rush’s concise statement of 

matters complained of on appeal: “The Trial Court erred in denying Appellant’s 

Motion to Dismiss for the Commonwealth’s . . . failure to produce evidence 

that was exculpatory to Appellant, in violation of Brady v. Maryland, 373 

U.S. 93 (1963), and it[s] progeny.”
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In Brady, the United States Supreme Court held that the Fourteenth 

Amendment’s Due Process Clause

requires defendants be provided access to certain kinds of 

evidence prior to trial, so they may “be afforded a meaningful 

opportunity to present a complete defense.” This guarantee of 

access to evidence requires the prosecution to turn over, if 

requested, any evidence which is exculpatory and material to guilt 

or punishment, see Brady, and to turn over exculpatory evidence 

which might raise a reasonable doubt about a defendant’s guilt, 

even if the defense fails to request it, see United States v. 

Agurs, 427 U.S. 97 (1976). If a defendant asserts a Brady or 

Agurs violation, he is not required to show bad faith.

There is another category of constitutionally guaranteed 

access to evidence, which involves evidence that is not materially 

exculpatory, but is potentially useful, that is destroyed by the 

state before the defense has an opportunity to examine it. When 

the state fails to preserve evidence that is “potentially useful,” 

there is no federal due process violation “unless a criminal 

defendant can show bad faith on the part of the police.” [Arizona 

v. Youngblood, 488 U.S. 51, 58 (1988).] Potentially useful 

evidence is that of which “no more can be said than that it could 

have been subjected to tests, the results of which might have 

exonerated the defendant.” [Id. at 57.] In evaluating a claim 

that the Commonwealth’s failure to preserve evidence violated a 

criminal defendant’s federal due process rights, a court must first 

determine whether the missing evidence is materially exculpatory 

or potentially useful.

Commonwealth v. Ward, 188 A.3d 1301, 1308–09 (Pa. Super. 2018) 

(quoting Commonwealth v. Williams, 154 A.3d 336, 339 (Pa. Super. 2017)) 

(citations modified).

Here, the trial court determined that the evidence the Commonwealth 

did not provide to Rush was “potentially useful” under Youngblood, rather 

than “materially exculpatory” under Brady. Trial Court Opinion, 3/14/22, at 

8–9; N.T., Pretrial Hearing, 8/4/21, at 43–44. Because Rush did not 
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demonstrate that this missing evidence was intentionally destroyed or that 

the officers acted in bad faith, the trial court denied Rush’s motion to dismiss.

We discern no error. First, as to the video, even if a video of Cody Bruce 

bringing jeans into cell C-2 was shown to the jury, this would not have 

contradicted the officers’ testimony that Rush was holding a substance later 

identified as K2 and put it in his pants. Second, as to the jeans from the cell 

floor, the jury acquitted Rush of possessing the Suboxone that was in the 

jeans. The jeans were not potentially for the charges for which the jury found 

Rush guilty. Therefore, no relief is due on this issue.

C. Motion to Compel Discovery

In his third issue, Rush argues that the trial court’s denial of his motion 

to compel discovery prevented him from presenting a defense. Rush’s Brief 

at 39–41. 

A trial court has discretion to resolve pretrial discovery issues; we will 

affirm unless the trial court has abused its discretion. Commonwealth v. 

Holt, 273 A.3d 514, 548 (Pa. 2022) (citing Commonwealth v. Rucci, 670 

A.2d 1129, 1140 (Pa. 1996)), petition for cert. filed, No. 22-5463 (U.S. Aug. 

24, 2022).

Pennsylvania Rule of Criminal Procedure 573 provides in relevant part 

that on the defendant’s request, the Commonwealth must disclose “all of the 

following requested items or information, provided they are material to the 

instant case. . . . Any evidence favorable to the accused that is material either 
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to guilt or to punishment, and is within the possession or control of the 

attorney for the Commonwealth.” Pa.R.Crim.P. 573(B)(1)(a).

In his omnibus pretrial motion, Rush moved to order the Commonwealth 

to produce:

a. Video Recordings of Cody Bruce entering into [cell C-2];

b. All audio or video recordings of statements made by Cody 

Bruce, Brian Rush, and any other person interviewed 

relating to this incident;

c. Inmate file for Cody Bruce, including but not limited to 

reports relating to suspected drug offenses;

d. Prior record of Cody Bruce; [and]

e. The entire NMS file relating to the analysis of the alleged 

controlled substances outlined in the November 20, 2019 

Drug Chemistry Final Report[.]

Motion, 7/1/21, at 7 (unnumbered). The first four items requested relate to 

Rush’s theory that Cody Bruce used drugs, did not go to work because of drug 

issues, and was the person who brought the jeans with drugs into cell C-2.

The trial court explained that it did not grant Rush’s motion4:

because the Commonwealth alleged that it turned over all of the 

relevant evidence in its possession and that many of the items 

referenced by [Rush] were determined not to exist. [T]he 

Commonwealth maintained that it was not in possession of any 

surveillance videos capturing Cody Bruce entering [Rush’s] cell. 

During trial, the Commonwealth stated that in regard to the other 

incident in which Cody Bruce was in the cell of another inmate who 

was charged with possession of a controlled substance, officers 

did not find any contraband on Cody Bruce. There was no 

evidence to suggest that the Commonwealth withheld any incident 

____________________________________________

4

It is not clear from the record when—or if—the trial court formally denied 

Rush’s pretrial discovery motion.
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reports pertaining to Cody Bruce which were relevant to this case. 

Moreover, evidence at trial revealed that a report did not exist 

indicating that Cody Bruce failed to attend work release on the 

date of the incident because he was suspected of drug 

involvement. While the Bucks County Correctional Facility 

maintains a log indicating when inmates leave and return from 

work, uncontradicted testimony at trial established that the log 

does not record the reasons why an inmate did not attend work 

on any particular day. Because evidence at trial revealed that the 

log on the day of the incident did not mention Cody Bruce nor the 

reasons why he did not go to work, the log was clearly of no 

relevance to the present case and thus the Commonwealth was 

not required to produce it.

Trial Court Opinion, 3/14/22, at 11–12.

We discern no abuse of discretion. By the time Rush’s counsel entered 

the case and requested discovery, the videos from before the incident had 

been automatically overwritten and were not within the Commonwealth’s 

possession. Investigator Onisick testified that due to privacy concerns, none 

of the interviews were recorded. Rush does not suggest how records related 

to Cody Bruce were material to the Commonwealth’s case against Rush, which 

included evidence that Rush was holding K2 in his hands and in his pants. And 

Rush has failed to argue why he needed the entire NMS Labs file, let alone 

why the trial court abused its discretion by denying an order to provide it. 

Therefore, Rush is not entitled to relief on this issue.

D. Mistrial

In his fourth issue, Rush challenges the trial court’s denial of a mistrial 

based on evidence discovered mid-trial that contradicted officers’ testimony

that they did not search Cody Bruce’s cell. 
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“It is well-settled that the review of a trial court’s denial of a 

motion for a mistrial is limited to determining whether the trial 

court abused its discretion.” . . . “A trial court may grant a mistrial 

only where the incident upon which the motion is based is of such 

a nature that its unavoidable effect is to deprive the defendant of 

a fair trial by preventing the jury from weighing and rendering a 

true verdict.” It is also settled that a mistrial is not necessary 

where cautionary instructions are adequate to overcome any 

potential prejudice. The law presumes that a jury will follow the 

trial court’s instructions.

Commonwealth v. Dula, 262 A.3d 609, 633 (Pa. Super. 2021) (quoting 

Commonwealth v. Gilliam, 249 A.3d 257, 274–75 (Pa. Super. 2021)); see

Pa.R.Crim.P. 605 (allowing a defendant to move for mistrial when an event 

prejudicial to the defendant occurs during trial). A mistrial is not required 

where previously unknown evidence revealed at trial that is not a discovery 

violation, such as where the Commonwealth did not have possession or 

knowledge of non-exculpatory evidence that is then discovered during trial. 

Commonwealth v. Sullivan, 820 A.2d 795, 804 (Pa. Super. 2003).

By way of background, during the first day of trial, Officer Semilia 

testified on cross-examination that he did not search Cody Bruce or his cell:

Q. Are you aware if anything at all was found on Cody Bruce?

A. I’m not aware.

Q. You didn’t search him?

A. Nope.

Q. Did you search his cell afterwards?

A. Nope.

Q. Do you know if anyone searched his cell?

A. I do not recall.
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N.T., Trial, 8/4/21, at 51.

Likewise, Officer Buono testified on direct examination that he did not 

search anyone other than Rush:

Q. Now, did you take part in any other searches that night?

A. No, ma’am.

Q. So the extent of your involvement was to search the defendant, 

is that correct?

A. Yes, ma’am.

N.T., Trial, 8/4/21, at 73. 

However, the next morning, the Commonwealth provided to the Defense 

a handwritten log reflecting that Officers Buono, Rooney, and Semilia packed 

items from the cells of Rush, Cody Bruce, and another inmate on October 28, 

2019, the night in question. After a brief recess, Rush moved for a mistrial

based on the late receipt of the log that contradicted the testimony of Officers 

Semilia and Buono.

The trial court denied the motion for mistrial, reasoning that the log was 

not exculpatory and that the late receipt of the log did not prejudice Rush. 

Instead, the court allowed Rush to re-call the officers, and the court provided

a “false in one, false in all” jury instruction that Rush requested.

During the testimony of Officer Rooney, Rush introduced the log into 

evidence. Officer Rooney agreed that the log showed that Officers Semilia 

and Buono searched Cody Bruce’s cell with him. In his case in chief, Rush recalled Officers Buono and Semilia to ask about their involvement in searching 
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Cody Bruce’s cell. Both officers indicated that they would have documented 

if they had found contraband in that search.

We cannot conclude that the trial court abused its discretion in denying 

Rush’s motion for a mistrial. While Rush complains that he was unable to fully 

investigate, he does not explain how the court’s ruling hindered his defense. 

Nor does he describe how his late receipt of the log was prejudicial. The log 

was potentially useful to impeach two Commonwealth witnesses, which the 

trial court allowed Rush to do. Under these circumstances, we find no abuse 

of discretion and therefore deny relief on this issue.

E. Chain of Custody

In his final issue, Rush argues that the trial court should have granted 

his motion to exclude the drugs from trial (and dismiss the charges) because 

the Commonwealth did not properly authenticate the drugs, as required by 

Pennsylvania Rule of Evidence 901.5 Rush’s Brief at 45–48. Rush maintains 

that the Commonwealth could not establish that the drugs introduced were 

____________________________________________

5 Rule 901 provides in relevant part:

(a) In General. Unless stipulated, to satisfy the requirement of 

authenticating or identifying an item of evidence, the proponent 

must produce evidence sufficient to support a finding that the item 

is what the proponent claims it is.

(b) Examples. The following are examples only—not a complete 

list—of evidence that satisfies the requirement:

(1) Testimony of a Witness with Knowledge. Testimony that 

an item is what it is claimed to be.

Pa.R.E. 901(a)–(b)(1). 
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the same as the substances taken from the cells where he was searched, 

based on irregular collection procedures and inconsistent testimony that did 

not match the chain of custody documents.

We review a trial court’s evidentiary rulings, including whether evidence 

has been authenticated, for an abuse of discretion. See Commonwealth v. 

Wright, 255 A.3d 542, 550–51 (Pa. Super. 2021).

This Court has explained how admissibility of physical evidence requires 

a chain of custody to establish a reasonable inference that the evidence is 

what it is claimed to be:

While the Commonwealth bears the burden of 

demonstrating some reasonable connection between the 

proferred exhibits and the true evidence, it need not establish the 

sanctity of its exhibits beyond a moral certainty. The 

Commonwealth need not produce every individual who came into 

contact with an item of evidence, nor must it eliminate every 

hypothetical possibility of tampering. A complete chain of custody 

is not required so long as the Commonwealth’s evidence, direct 

and circumstantial, establishes a reasonable inference that the 

identity and condition of the exhibits have remained the same 

from the time they were first received until the time of trial. Any 

gaps in testimony regarding the chain of custody go to the weight 

to be given the testimony, not to its admissibility.

Commonwealth v. Cugnini, 452 A.2d 1064, 1065 (Pa. Super. 1982) 

(citations omitted).

For example, where a police officer who handled drug evidence was later 

convicted for stealing other evidence, we nevertheless affirmed the trial 

court’s ruling that the drug evidence was admissible. Commonwealth v. 

Soto, 202 A.3d 80, 101–02 (Pa. Super. 2018). Once the Commonwealth 
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established a foundation that the drugs at trial were the same as those taken 

from the defendant, any issues with the chain of custody went to the weight, 

not the admissibility of that evidence. Id. at 102.

Here, the trial court permitted the parties to litigate the admissibility of 

the drug evidence prior to trial. At the pretrial hearing, Investigator Onisick 

testified about how the physical evidence was collected and documented. The 

court “found that his testimony sufficiently established a reliable chain of 

evidence” and therefore ruled that the evidence would be admissible. Trial 

Court Opinion, 3/14/22, at 6.

Investigator Onisick testified that on October 29, 2019, he was 

accompanied by Lieutenant John Mannarino to the evidence safe 

located in the secure room at the Bucks County Correctional 

Facility. [Only lieutenants have access to this room.] Investigator 

Onisick watched Lieutenant Mannarino unlock the evidence safe 

and remove evidence envelopes which were handed to 

Investigator Onisick. When Investigator Onisick opened the 

evidence envelopes, he was able to confirm that [their] contents 

matched the photographs that Lieutenant Minasian took of the 

contraband.

Investigator Onisick further testified that Officer Buono’s 

chain of custody form differed from the crime lab drug 

identification requisition form because Investigator Onisick cut 

open the white glove in order to examine its contents. 

Investigator Onisick testified that as an investigator, it is common 

practice to open packaging material in order to determine the 

contents of what is inside. When Investigator Onisick sent the 

plastic wrapped contents to the lab, he did not include the white 

glove for testing. Thus, this explains why Officer Buono’s chain of 

custody form differs from the crime lab drug identification 

requisition form. Further, Investigator Onisick took photographs 

of the evidence. One of the photographs depicts the recovered 

contraband in a plastic wrapped baggie next to a cut opened white 

glove. The lab report did not mention a white glove because only 

the contents of the white glove were sent for testing. Thus, 
J-S33009-22

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[Rush’s] argument that the contraband was not properly 

authenticated because the lab report does not perfectly mirror the 

photographs is without merit.

Investigator Onisick stated that after taking photographs of 

the two baggies containing a green leafy substance, he placed 

them into a single Ziploc bag and then placed the Ziploc bag into 

an evidence bag. Investigator Onisick testified that he placed both 

baggies into a single Ziploc bag because both items were taken 

from [Rush’s] person and appeared to be the same substance. 

When asked by [Rush’s] counsel whether he knew which baggie 

was confiscated from the pat-down search and which was 

discovered from the unclothed body search, [Investigator] Onisick 

said that he could not be sure. However, [Rush’s] argument that 

the evidence should be excluded because the two plastic wrapped 

baggies could not be differentiated is not persuasive. We 

determined that Investigator Onisick’s testimony sufficiently 

established [a] chain of custody such that excluding evidence 

either pre-trial or at trial was not merited. We concluded that the 

issue pertaining to whether [Rush] was in possession of any of the 

items that were tested was for the jury to determine. Accordingly, 

we denied [Rush’s] Motion to Exclude Evidence and his Motion to 

Dismiss.

Trial Court Opinion, 3/14/22, at 6–8 (record citations omitted, “Onisick” 

spelled as in the transcript).

We conclude that the trial court did not abuse its discretion. The officers’ 

testimony before and during trial provided a reasonable inference that the 

substances tested were the same as those recovered from Rush. As the trial 

court noted, the jury was free to determine whether they were in fact the 

same substances based on the defects indicated. Because the trial court did 

not abuse its discretion, we deny relief on this issue.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/24/2022