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[U] Commonwealth v. Newman

Superior Court of Pennsylvania

June 12, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JAMES NEWMAN, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence of June 13, 2012, in the Court of Common Pleas of Montgomery County, Criminal Division at No. CP-46-CR-0000068-2011

BEFORE: STEVENS, P.J., LAZARUS and COLVILLE, [*] JJ.

MEMORANDUM

COLVILLE, J.

This case is a direct appeal from the judgment of sentence imposed on Appellant after a jury convicted him of numerous counts of drug-related offenses, including possession with intent to deliver a controlled substance ("PWID"), possession of a controlled substance, possession of drug paraphernalia, and conspiracy. Appellant contends the trial court erred by allowing the Commonwealth to introduce evidence of prior bad acts and certain expert testimony. He also argues the court erred in sentencing him to a mandatory minimum term of incarceration under 42 Pa.C.S.A. § 9712.1 (setting forth mandatory terms for drug offenses committed with firearms). We affirm the judgment of sentence.

The record reveals the following facts. On December 7, 2010, Appellant sold crack cocaine to a police informant in the parking lot of Station Avenue apartment complex. Appellant then entered Apartment 2 of that complex. Police had seen him exit the apartment at some earlier point on that day. Police secured a warrant to search the apartment.

On December 10, 2010, as officers approached the residence to execute the warrant, Appellant exited the apartment. Upon seeing police, Appellant ran back toward the apartment and tried to re-enter it, banging on the door and yelling, but police apprehended him. They found that he possessed $773.00 in cash, a razor blade and ten bags of crack cocaine. At trial, expert testimony from the Commonwealth would indicate the items found on Appellant indicated he had the intent to deliver cocaine.

Upon entering the residence, police found multiple people, including Manuel and Rafiq Newman, the two persons with whom Appellant was eventually convicted of conspiring. In a bedroom, under a mattress, police located a gun and bullets. Also in that bedroom, officers found empty baggies, mail to Rafiq Newman, and three digital scales. Approximately six to eight feet away from the bedroom, in bathroom across a hall, there was a bag containing 61.26 grams of cocaine. The Commonwealth's expert would later testify that the cocaine, bags and scales revealed an intent to deliver drugs.

Trial testimony from Appellant's mother revealed that, although Appellant did not live at the subject residence, he was there daily. His mother indicated she knew him to enter the bedroom in question for periods of twenty minutes or half an hour. While at the residence, Appellant would take phone calls lasting two to three minutes, leave the home for periods of fifteen to twenty minutes and then return.

After a jury convicted Appellant of the instant offenses, the court sentenced him. Appellant's aggregate sentence was not less than five and not more than ten years' incarceration. That penalty included a mandatory minimum term of five years' imprisonment under 42 Pa.C.S.A. § 9712.1. Appellant later filed this appeal.

Appellant's first issue is that the court erred in admitting evidence that he sold crack cocaine to the police informant on December 7, 2010. While the criminal charges against Appellant in the present case alleged that he committed drug offenses in and near the residence on December 10, 2010, the December 7th incident was apparently admitted by the court to show Appellant's intent on the 10th. In support of his issue, Appellant's theory is that the trial court failed to engage in the balancing test required by Pa.R.A.P. 404(b)(3) for the admission of prior-acts evidence. He also advances the related theory that applying the balancing test would lead to the conclusion that the probative value of the evidence did not outweigh its potential for prejudice. See id. He concludes the admission of the evidence was error.

Appellant does not demonstrate that he preserved his issue and/or his supporting theory(ies) in the lower court. As such, he has waived his claims. Commonwealth v. Rush, 959 A.2d 945, 949-50 (Pa. Super. 2008); Pa.R.A.P. 2117(c), 2119(e).

In his next issue, Appellant contends the trial court erred by allowing the Commonwealth to present the expert testimony tending to show Appellant possessed the cocaine with the intent to deliver. Appellant argues that, prior to trial, he requested discovery under Pa.R.Crim.P. 573(B)(1)(e) by asking the Commonwealth for any expert opinions it possessed. He acknowledges that the Commonwealth responded by letter dated November 21, 2011, in which the Commonwealth indicated, inter alia, that Detective Echevarria of the narcotics division of the Montgomery County Detective Bureau would provide expert testimony at trial regarding PWID and drug trafficking. However, Appellant maintains the letter was not sufficient to satisfy the Commonwealth's duty under Rule 573(B)(1)(e) to disclose Echevarria's expert opinion. Essentially, Appellant is claiming the letter did not provide him with adequate notice about what Echevarria's testimony would be. As such, Appellant maintains that the trial court should not have admitted Echevarria's testimony and that we should grant Appellant a new trial.

Decisions regarding the admission of evidence are within the discretion of the trial court, and we will not disturb such decisions absent an abuse of discretion. Commonwealth v. Hardy, 918 A.2d 766, 776 (Pa. Super. 2007). An abuse of discretion is not a mere error in judgment but, rather, involves bias, ill will, partiality, prejudice, manifest ...


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