J-S66008-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

BRANDON RAHEEM HAYES

Appellant No. 374 MDA 2016

Appeal from the Judgment of Sentence March 5, 2015

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0002408-2014

BEFORE: BOWES, PANELLA AND JENKINS, JJ.

MEMORANDUM BY BOWES, J.: FILED DECEMBER 16, 2016

Brandon Hayes appeals from the March 6, 2015 judgment of sentence 

of three and one-half to seven years imprisonment and thirty days 

probation, which was imposed after he was found guilty of person not to 

possess, firearms not to be carried without a license, and possession of a 

small amount of marijuana. We affirm.

The following facts were adduced at trial. On March 16, 2014, 

Appellant was a passenger in the front seat of a vehicle that was stopped at 

a DUI checkpoint on the business loop of Interstate 83 north of York City. 

Corporal Alan Trees of the Pennsylvania State Police directed his attention to 

the driver of the vehicle, Claudia Calderon, who produced her license and 

other paperwork. Trooper Jeremy Corrie approached the passenger side of 
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the vehicle. Both troopers testified that the odors of marijuana and alcohol 

emanated from the vehicle. In response to Corporal Trees’ inquiry, Ms. 

Calderon admitted that she had been drinking, but she passed a field 

sobriety test and breathalyzer. Thereafter, Ms. Calderon consented to a 

search of her car, and Appellant was directed to exit the vehicle. Police 

found a loaded Smith & Wesson .357 Magnum revolver protruding from 

beneath the passenger seat in which Appellant had been sitting, and a 

partially burned marijuana cigarette. Appellant admitted ownership of the 

marijuana cigarette but he and Ms. Calderon denied any knowledge of the 

firearm. The firearm was loaded with six rounds of Remington-Peterson 

brand .357 Magnum ammunition stamped with “R&P”. 

Upon determining that there were outstanding warrants for Appellant, 

the officers took him into custody and charged him with receiving stolen 

property, person not to possess a firearm, firearms not to be carried without 

a license and possession of a small amount of marijuana. While in jail, 

Appellant made a phone call during which he made cryptic references to a 

“joint under the seat” and stated that, “he had wiped it down.” N.T. NonJury Trial, 2/5/15, at 58, 59. Since the firearm was devoid of prints, 

Corporal Trees interpreted the latter remark to mean that Appellant had 

wiped down the gun located under his seat to remove any fingerprints. The 

parties stipulated that Appellant was a person who was prohibited from 

possessing a firearm. 
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Prior to trial, the Commonwealth filed a motion in limine seeking a 

ruling from the trial court on the admissibility of evidence that on December 

31, 2013, Appellant possessed fourteen rounds of .357 Magnum ammunition 

bearing the brand stamp R&P, which was the same brand of ammunition 

contained in the firearm seized from the vehicle. The court ruled that Officer 

Jason Jay of the York City Police Department could testify that when he 

searched Appellant on that date, Appellant had that ammunition on his 

person. 

Following a bench trial on February 5, 2015, Appellant was convicted 

of all charges except receiving stolen property, and he was sentenced as 

aforesaid. On October 16, 2015, Appellant filed a PCRA petition alleging that 

trial counsel was ineffective for failing to file a requested direct appeal. The 

Commonwealth agreed to the reinstatement of Appellant’s direct appeal 

rights since he had not been properly advised of those rights at sentencing, 

and an order to that effect issued on February 4, 2016. Appellant filed the 

instant direct appeal and timely complied with the trial court’s order to file a 

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

court penned its Rule 1925(a) opinion, and this matter is now ready for our 

review. 

Appellant presents one issue for our consideration: “Whether the trial 

court erred by granting the Commonwealth’s Motion in Limine to admit prior 
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bad acts of Appellant, namely his possession of .357 magnum ammunition 

three months prior to the incident?” Appellant’s brief at 6.

For challenges to evidentiary rulings, our review is limited to a 

determination whether a trial court abused its discretion. Commonwealth 

v. Aikens, 990 A.2d 1181, 1184-85 (Pa.Super. 2010). “A trial court's 

decision will not be reversed absent a clear abuse of discretion. An abuse of 

discretion is not merely an error of judgment, but rather where the 

judgment is manifestly unreasonable or where the law is not applied or 

where the record shows that the action is a result of partiality, prejudice, 

bias or ill will.” Id. at 1184-85(citations omitted). 

The trial court ruled the ammunition evidence admissible under the 

exceptions delineated in Pa.R.E. 404(b)(2) for evidence of prior crimes and 

bad acts. Since the evidence was not offered to show that Appellant acted in 

conformity therewith or that he had a propensity to commit such crimes, the 

trial court concluded that Appellant’s possession of identical ammunition 

three months before the stop tended to identify Appellant as the owner of 

the loaded .357 Magnum found under his seat. 

“Evidence is relevant when it has any tendency to make a fact more or 

less probable than it would be without the evidence; and the fact is of 

consequence in determining the action.” Pa.R.E. 401. “All relevant evidence 

is admissible, except as otherwise provided by law. Evidence that is not 

relevant is not admissible.” Pa.R.E. 402. Furthermore, relevant evidence is 
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only admissible where the probative value of the evidence outweighs its 

prejudicial impact. Commonwealth v. Owens, 929 A.2d 1187, 1189, 

(Pa.Super. 2007). “The court may exclude relevant evidence if its probative 

value is outweighed by a danger of one or more of the following: unfair 

prejudice, confusing the issues, misleading the jury, undue delay, wasting 

time, or needlessly presenting cumulative evidence.” Pa.R.E. 403. 

At issue is the admissibility of evidence that, three months prior to the 

stop herein, Appellant possessed ammunition of the same caliber and stamp 

as that found in the loaded .357 Magnum found under his seat. Pa.R.E. 

404(b) governs the admissibility of evidence of a party’s prior wrongs or 

other acts, and it provides in pertinent part: 

(b) Crimes, Wrongs or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other 

act is not admissible to prove a person's character in 

order to show that on a particular occasion the person 

acted in accordance with the character.

(2) Permitted Uses. This evidence may be admissible for 

another purpose, such as proving motive, opportunity, 

intent, preparation, plan, knowledge, identity, 

absence of mistake, or lack of accident. In a criminal 

case this evidence is admissible only if the probative 

value of the evidence outweighs its potential for unfair 

prejudice.

Pa.R.E. 404(b)(1) and (2).
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Our High Court summarized the law governing the admissibility of 

prior bad acts evidence in Commonwealth v. Sherwood, 982 A.2d 483, 

497 (Pa. 2009): 

Generally, evidence of prior bad acts or unrelated criminal activity 

is inadmissible to show that a defendant acted in conformity with 

those past acts or to show criminal propensity. Pa.R.E. 404(b)(1). 

However, evidence of prior bad acts may be admissible when 

offered to prove some other relevant fact, such as motive, 

opportunity, intent, preparation, plan, knowledge, identity, and 

absence of mistake or accident. Pa.R.E. 404(b)(2). In determining 

whether evidence of other prior bad acts is admissible, the trial 

court is obliged to balance the probative value of such evidence 

against its prejudicial impact. Commonwealth v. Powell, 598 

Pa. 224, 956 A.2d 406, 419 (2008).

Id. at 497. Decisions such as whether evidence is too remote to be 

probative rest within the sound discretion of the trial judge. 

Commonwealth v. Christine, 125 A.3d 394 (Pa. 2015). 

Appellant contends that evidence that he possessed ammunition of the 

same caliber and brand as that loaded in the firearm found underneath his 

seat three months prior to the stop herein “lacked a temporal and logical 

connection to the crime to be relevant.” Appellant’s brief at 11. He 

maintains further that, “Even if the evidence is relevant, it was overly 

prejudicial to prove constructive possession of the firearm.” Appellant’s brief 

at 11. Finally, Appellant contends that the evidence was inadmissible prior 

bad acts evidence under Pa.R.E. 404(b)(1) and (b)(3). 

The Commonwealth counters that because the ammunition inside the 

.357 Magnum revolver found underneath the Appellant’s seat “matched the 
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ammunition previously seized[,]” it was admissible to establish Appellant’s 

possible connection with a .357 Magnum and to suggest that the proximity 

of the firearm to Appellant was not an accident. Appellant relies upon two 

cases in support of his position that the York City incident three months 

before was too remote to be of any probative value. First, he attempts to 

distinguish Commonwealth v. Miles, 681 A.2d 1295 (Pa. 1996), where we 

affirmed the trial court’s admission of evidence that the defendant 

brandished a .357 Magnum when he robbed a young boy just hours before a 

murder. We found such evidence admissible to prove that the defendant 

possessed such a weapon at the time of the murder. Second, in 

Commonwealth v. Owens, supra, we upheld the trial court’s ruling that 

shotgun shells seized from the defendant’s car three days after a shooting 

that were similar to those used in the shooting were admissible as they 

linked the defendant to the crime. Appellant argues that, due to the threemonth gap between the first incident and the DUI stop herein, the evidence 

of his possession of the same type of ammunition lacked the requisite 

probative value to be admissible. 

Although the time between Appellant’s prior possession of ammunition 

and the crime herein was longer than a few hours or days, we find it 

temporally proximate enough to make it more probable that he, rather than 

the driver, possessed the gun found under his seat. See Commonwealth 

v. Weakley, 972 A.2d 1182, 1190 (Pa.Super. 2009) (eight month lapse of 
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time between crimes did not render the other crimes evidence too tenuous 

for admission); see also Commonwealth v. Shoatz, 366 A.2d 1216 (Pa. 

1976) (possession of the same type of military weapons used in the murder 

was admissible to connect the defendant to the crime that occurred one and 

one-half years after the incident and viewing the time interval between the 

two events as bearing on the weight of the evidence, not its competency). 

Appellant argues further that there was nothing unique about the 

ammunition that would suggest a signature or pattern. He contrasts the 

facts herein with those in Commonwealth v. Broaster, 863 A.2d 588 

(Pa.Super. 2004),1 where the trial court ruled admissible the .45 caliber 

handgun defendant discarded just prior to his arrest even though it was not 

the .45 caliber murder weapon. The court found therein that the fact that 

both handguns were of the same caliber and uniquely loaded by staggering 

three rounds from different manufacturers was probative of a signature that 

linked the defendant to the murder. Similarly, in Shoatz, supra, evidence 

that the defendant possessed advanced military-type weapons and 

ammunition when he was arrested was admitted to prove that the defendant 

____________________________________________

1

 In Broaster v. Houtzdale, 2011 U.S. Dist. LEXIS 86832 (E.D. Pa. 2011), 

the district court conditionally granted habeas corpus relief on the ground 

that counsel was ineffective for failing to object to the state court instruction 

about the inferences the jury could draw from petitioner's possession of a 

different handgun of the same caliber as the murder weapon three months 

after the murder. 
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conspired with a militant group that killed police officers. The court viewed 

his possession of weapons that were inaccessible to the public generally as 

probative of the defendant’s affiliation with the group. We find evidence that 

Appellant possessed ammunition of the same caliber and stamp to be 

sufficiently distinctive to link Appellant to the firearm in the vehicle, and 

thus, admissible under Pa.R.E. 404(b)(2). 

Appellant does not dispute that evidence offered to prove identity, and 

absence of mistake or accident, is admissible under Pa.R.E. 404(b)(2). 

However, he maintains that even Rule 404(b)(2) evidence may be 

inadmissible under Pa.R.E. 404(b)(3), where, as here, its probative value is 

outweighed by its prejudicial effect. 

We do not find the evidence to be unfairly prejudicial. It was not a 

weapon nor was it the type of evidence that would ordinarily inflame the 

passions of the factfinder and suggest a decision on an improper basis. 

Furthermore, this was a bench trial. We find it unlikely that the trial court 

would be improperly swayed by this evidence or accord it any greater weight 

than it deserved. Hence, Officer Jay’s testimony regarding Appellant’s prior 

possession of fourteen rounds of .357 Magnum ammunition bearing the 

stamp R&P, which was identical to the ammunition in the .357 Magnum 

found under Appellant’s seat herein, was more probative than prejudicial on 
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the issue of whether Appellant constructively possessed the .357 Magnum.2 

Thus, we find no abuse of discretion in its admission. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/16/2016

____________________________________________

2 Appellant suggests that the cases relied upon by the Commonwealth and 

the trial court are distinguishable as they involved crimes that were “more 

than just a possessory crime and instead involved use of the weapon to 

commit assault, robbery or a murder.” Appellant’s brief at 18. Appellant 

offers no rationale why the nature of the crime warrants different treatment, 

and we can think of none. 
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