J-A16007-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MELVIN VALLE,

Appellant No. 143 EDA 2014

Appeal from the Judgment of Sentence December 12, 2013

in the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-0015039-2012

BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JULY 24, 2015

Appellant, Melvin Valle, appeals from the judgment of sentence 

entered after his jury conviction of one count of violating the Uniform 

Firearms Act (VUFA), person not to possess a firearm, 18 Pa.C.S.A. § 6105. 

Appellant challenges the admissibility of certain evidence. We affirm. 

We derive the following recitation of facts from the trial court’s June 

30, 2014 opinion: 

[Appellant’s] case arose from observations made by two 

Philadelphia Police Officers, while on patrol. Two Philadelphia 

Police Department police officers, a firearms expert, and a 

detective testified for the Commonwealth.

On November 19, 2012 at approximately 8:30 P.M., 

Philadelphia Police Officers James Wheeler (“Officer Wheeler”) 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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and Matthew Hagy (“Officer Hagy”) were on patrol during an 

overtime detail. In a marked police car and in full uniform 

Officers Wheeler and Hagy were westbound on the 1200 block of 

W. Chew Avenue. Officer Wheeler was the driver and Officer 

Hagy was the recorder. Officer Hagy observed [Appellant] 

walking westbound holding a gun in his right hand. Officer Hagy 

said to Officer Wheeler: “. . . I think he has a gun.” Not 

wanting to startle [Appellant], Officer Wheeler drove past while 

he watched [Appellant] in the rearview mirror, transfer the 

weapon from his right hand to this left, and conceal it under a 

jacket he was carrying. Officer Hagy saw the transfer by looking 

over his shoulder. The Officers began to make a U-turn and lost 

sight of [Appellant] for a few seconds, as he walked into an 

alleyway. Officer Wheeler drove back towards [Appellant] where 

the Officers then exited the vehicle. [Appellant] was leaving the 

alley with a jacket in his hand. [Appellant] dropped his jacket 

and said: “I didn’t do anything wrong. I was just taking a piss in 

the alley.” Officer Hagy grabbed [Appellant’s] arm, walked him 

over to the patrol car and conducted a frisk. After [Appellant] 

was secured in the back of the patrol car, Officer Wheeler went 

into the alleyway and found the firearm in a trash can. 

Before opening, the Commonwealth asked for mutual 

sequestration. [Appellant’s] counsel agreed and asked that 

Officer Wheeler not have any communication about the case with 

Officer Hagy. Before testifying, Officer Hagy was given a case 

file to review, in which he read prior testimony from Officer 

Wheeler. [Appellant] moved for mistrial based upon a violation 

of the Court’s sequestration order and, upon denial of that 

motion, moved to bar Officer Hagy from testifying; that motion 

was also denied.

Following a stipulation to his expertise, Philadelphia Police 

Officer Lawrence Flagler (“Officer Flagler”) testified as a firearms 

expert. On direct examination, Officer Flagler testified that he 

examined the weapon and it was operable. On cross, 

[Appellant] asked Officer Flagler how a firearm would be handled 

if it were to be tested for fingerprints or DNA. On re-direct, after 

objecting to the previous question, the [prosecution] asked 

Officer Flagler what the chances were of recovering fingerprints 

from the firearm, which then prompted [Appellant’s] objection. 

Still on re-direct, Officer Flagler testified, based on his personal 

experience as a police officer and not as an expert, that his 

opinion of the viability of recovering fingerprints from the gun 
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recovered in this case was based on periodicals he had read that 

were written by examiners in the field. On re-cross, [Appellant] 

asked Officer Flagler to identify the periodicals he had read and 

then further questioned him about his reading and how it could 

relate to the firearm recovered in this case. 

Finally, there was a stipulation as to [Appellant’s] 

conviction of a crime that made him a person prohibited under 

law to carry a firearm. 

(Trial Court Opinion, 6/30/14, at 2-4) (record citations and footnotes 

omitted). 

Officer Hagy’s testimony diverged from his original police report, which 

stated that Officers Hagy and Wheeler exited the vehicle before Appellant 

had left the alley. (See N.T. Trial, 10/17/13, at 26). Officer Hagy read the 

earlier testimony in preparation for trial. (See id. at 4). He then noticed 

the discrepancy between his report and Officer Wheeler’s testimony and so 

informed the assistant district attorney he wished to change his testimony. 

(See id. at 4-5). The assistant district attorney then informed the court and 

Appellant’s counsel about the change. (See id. at 5-6). Counsel for 

Appellant then made a motion to preclude Officer Hagy from testifying, 

which the court denied. (See id. at 6-7, 12). The court allowed Officer 

Hagy to testify, but gave a cautionary instruction to the jury. (See id. at 

16, 55). “We want to go on record and make a note that the court takes 

judicial notice that prior to yesterday Officer Hagy acknowledged making a 

mistake in his paper work.” Id. at 55. Both the Commonwealth and the 

defense agreed to the statement. 
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 On October 17, 2013, a jury convicted Appellant of one count of 

VUFA, 18 Pa.C.S.A. § 6105, person not to possess a firearm, as previously 

noted. On December 12, 2013, the court sentenced Appellant to a term of 

not less than four to no more than eight years’ incarceration, plus two years’ 

probation, to run consecutively. Appellant timely appealed.1

Appellant raises two questions for our review: 

1. Did not the trial court abuse its discretion in denying 

[A]ppellant’s motion to preclude Officer Hagy from testifying at 

trial due to his violation of the court’s sequestration order, where 

just before testifying, the officer read the transcribed 

suppression hearing testimony of Officer Wheeler, saw that it 

conflicted with Officer Hagy’s own police report, and then told 

the prosecutor that his report was mistaken and that he planned 

to testify consistently with the testimony of Officer Wheeler, who 

testified at trial the previous day? 

2. Did not the trial court err and abuse its discretion in 

permitting the Commonwealth to elicit from a firearms examiner 

his opinion regarding fingerprint removal, as the witness 

conceded he had no expertise in that field, and lay opinion 

testimony on such a highly technical topic was not permitted 

under the Pennsylvania Rules of Evidence and common law? 

(Appellant’s Brief, at 3). 

In Appellant’s first question, he claims that the trial court erred in 

denying his motion to preclude by allowing Officer Hagy to testify after he 

____________________________________________

1

Pursuant to the trial court’s order, Appellant filed a timely concise 

statement of errors complained of on appeal on April 22, 2014. See

Pa.R.A.P. 1925(b). The court filed a Rule 1925(a) opinion on June 30, 2014. 

See Pa.R.A.P. 1925(a).
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reviewed Officer Wheeler’s prior testimony. (See id. at 3). Specifically, he 

argues that this review violated the sequestration order and that the trial 

court should have precluded Officer Hagy’s testimony. (See id. at 10-11). 

We disagree. 

Our standard of review for a challenge to the admissibility of evidence 

is well settled:

It is well settled that the admission or rejection of [ ]

evidence is within the sound discretion of the trial court. An 

abuse of discretion will not be found based on a mere error of 

judgment, but rather exists where the court has reached a 

conclusion [that] overrides or misapplies the law, or where the 

judgment exercised is manifestly unreasonable, or the result of 

partiality, prejudice, bias, or ill-will. 

Commonwealth v. Davido, 106 A.3d 611, 645 (Pa. 2014) (citations and 

quotation marks omitted).

We review the trial court’s decision whether to allow a witness, who 

purportedly violated a sequestration order, to testify under the following 

standard: 

Once a sequestration order is in effect and a possible 

violation is brought to the courts’ attention, the trial court must 

determine, as a question of fact, whether there has been a 

violation and, if so, the remedy required. In deciding whether to 

allow a witness who violates a sequestration order to testify, the 

trial court should consider the seriousness of the violation, its 

impact on the testimony of the witness, the probable impact on 

the outcome of the trial, whether the witness intentionally 

disobeyed the order, and whether the party calling the witness 

procured the disobedience.
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Commonwealth v. Schwartz, 615 A.2d 350, 357 (Pa. Super. 1992), 

appeal denied, 629 A.2d 1379 (Pa. 1993) (citing Commonwealth v. 

Stinnett, 514 A.2d 154 (Pa. Super. 1986).

Further, “[i]f a violation of a sequestration order is found, the remedy 

is a matter left to the discretion of the trial court, and it is within the sound 

discretion of the trial court whether to allow the witness to testify with 

proper cautionary instruction.” Commonwealth v. Marinelli, 690 A.2d 

203, 219 (Pa. 1997). The jury is “presumed to follow the court’s 

instructions.” Commonwealth v. Naranjo, 53 A.3d 66, 71 (Pa. Super. 

2012) (citation omitted).

Here, the trial court found that the violation was not serious because 

the Commonwealth had already presented overwhelming evidence to convict 

Appellant. (See Trial Ct. Op., at 7). The trial court found that the changed 

portion of the testimony had no impact on the relevant part of the 

Commonwealth’s case. (See id.). Rather, the change in testimony only 

related to the position of the officers either in or out of the police car when 

Appellant entered the alley. (See id.). Notably, the testimony that Officer 

Hagy saw Appellant with a gun remained unchanged. (See N.T. Trial, 

10/17/13, at 26). Officer Hagy did not discuss the trial with Officer Wheeler, 

but instead only reviewed Officer Wheeler’s testimony from the preliminary 

hearing or the hearing on the motion to suppress. (See Trial Ct. Op., at 6, 

n.7). Additionally, the prosecution explicitly told Officer Hagy not to discuss 
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the case with Officer Wheeler. (See N.T. Trial, 10/17/13, at 10). Moreover, 

the court gave the jury an agreed on statement taking judicial notice of 

Officer Hagy’s review. “[T]he jury took the violation of sequestration into 

account when weighing Officer Hagy’s testimony.” (Trial Ct. Op., at 7).2 

The court cautioned the jury to consider Officer Hagy’s review after 

giving judicial notice of that fact. (See id.) The trial court reasoned that its 

notice was, in effect, equivalent to a cautionary instruction, which made the 

jury aware of Officer Hagy’s review and the inconsistency between his report 

and Officer Wheeler’s testimony. (See N.T. Trial, 10/17/13, 52-55). 

Notably, both defense and Commonwealth agreed to a statement of judicial 

notice, which the trial court gave. (See id. at 53-54). Therefore, Appellant 

has waived the issue. Additionally, we observe that even after considering 

this information, the jury voted to convict. 

On independent review, we conclude that the trial court properly 

admitted Officer Hagy’s testimony with a statement to the jury, agreed on 

by both parties. The statement sufficiently informed the jury of the 

inconsistency between Officer Hagy’s written report and his trial testimony. 

We discern no abuse of discretion. Admission of Officer Hagy’s testimony 

____________________________________________

2 Although the trial court and defense counsel assumed a violation of the 

sequestration order occurred. We conclude on independent review that the 

record does not support that conclusion. 
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was within the sound discretion of the trial court. See Davido, supra at 

645. Appellant’s first claim is without merit. 

In Appellant’s second question, he claims that the trial court erred in 

admitting testimony by Officer Flagler regarding fingerprints. (See

Appellant’s Brief, at 3). Officer Flagler testified about the difficulty of 

recovering fingerprints from a handgun based on knowledge from 

periodicals. (See Trial Ct. Op. at 9-10). (See also N.T. Trial, 10/16/13, at 

126-29). Appellant claims that allowing Officer Flagler’s testimony was 

improper because he was not an expert on fingerprints and he was testifying 

as a lay witness to a technical issue. (See Appellant’s Brief, at 20). We 

disagree. 

As already noted, we review a challenge to the admissibility of 

evidence for abuse of discretion. See Davido, supra, at 645. 

Pennsylvania Rule of Evidence 701 states:

If the witness is not testifying as an expert, the witness’ 

testimony in the form of opinions or inferences is limited to 

those opinions or inferences which are rationally based on the 

perception of the witness, helpful to a clear understanding of the 

witness’ testimony or the determination of a fact in issue, and 

not based on scientific, technical, or other specialized knowledge 

within the scope of Rule 702.

Pa.R.E. 701; see also Commonwealth v. Huggins, 68 A.3d 962, 967 

(Pa. Super. 2013), appeal denied, 80 A.3d 775 (Pa. 2013), (“[T]he rules [of 

evidence] do not preclude a single witness from testifying, or offering 
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opinions, in the capacity as both a lay and an expert witness on matters that 

may embrace the ultimate issues to be decided by the fact-finder.”). 

Here, Officer Flagler testified about the methods used by the 

Philadelphia Police Department to handle weapons that may have 

fingerprints. (See N.T. Trial, 10/16/13, at 116-17). He further testified on 

the difficulty of finding fingerprints on corroded guns, like the one in the 

instant case. (See id. at 128). 

Officer Flagler testified that he did not consider himself an expert in 

fingerprints and DNA. (See id. at 126). He therefore testified on these 

subjects as a lay witness, subject to Pa.R.E. 701. (See id. at 126-27); see 

also Huggins, supra at 967. Officer Flagler repeatedly stated that he was 

not an expert in either field. (See N.T. Trial 10/16/13, at 130). Moreover, 

Officer Flagler’s specific testimony related to a firearm’s surface material and 

texture, two topics of which he had undisputed expertise and technical 

knowledge. (See id. at 128-29). 

Further, if defense counsel opens the door to a line of questioning on 

cross-examination, the trial court may permit the Commonwealth to 

continue the line of questioning on re-direct examination. (Commonwealth 

v. Smith, 17 A.3d 873, 914 (Pa. 2011). 

Additionally, the trial court has discretion on the scope of 

re-direct examination. The scope of redirect examination is 

largely within the discretion of the trial court. An abuse of 

discretion is not a mere error in judgment but, rather, involves 

bias, ill will, partiality, prejudice, manifest unreasonableness, or 

misapplication of law. Moreover, when a party raises an issue on 
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cross-examination, it will be no abuse of discretion for the court 

to permit re-direct on that issue in order to dispel any unfair 

inferences. 

Commonwealth v. Fransen, 42 A.3d 1100, 1117 (Pa. Super. 2012), 

appeal denied, 76 A.3d 538 (Pa. 2013) (internal citations and quotation 

marks omitted). Therefore, the court has discretion to present re-direct 

examination to address evidentiary issues to which defense counsel by 

cross-examination has already opened the door. (See Smith, supra, at 

914). 

In the instant case, counsel for Appellant, on cross-examination, asked 

Officer Flagler about DNA and fingerprinting on firearms. (See N.T. Trial, 

10/16/13, at 116-17). Specifically, Appellant’s counsel asked about the 

procedures in place to detect fingerprints and DNA from a gun submitted as 

evidence. (See id.). The prosecution objected to this line of questioning, 

but the trial judge allowed it, and Appellant’s counsel continued to crossexamine Officer Flagler. (See id. at 117). On re-direct, the prosecutor 

asked Officer Flagler what the chances were of recovering fingerprints from 

the firearm. He responded that in this case the chances were low. (See id.

at 124). After this answer, counsel for Appellant objected to the line of 

questioning. The trial court overruled, and allowed Officer Flagler to answer. 

(See id. at 124-25). The court concluded that Appellant’s counsel 

introduced the subject of fingerprints when he questioned Officer Flagler 

about DNA and fingerprints. (See id. at 125). On review, we conclude that 
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trial court correctly determined that defense counsel opened the door to the 

line of questioning on cross-examination. (See Smith, supra, at 914).

Upon review, we conclude that because Officer Flagler testified as a lay 

witness, and because Appellant’s counsel opened the door to questioning, 

the trial court did not err in allowing him to testify about fingerprints and 

DNA. Appellant’s second claim is without merit. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/24/2015