from the Judgment of Sentence Entered October 22, 2018 In the
Court of Common Pleas of Lackawanna County Criminal Division
at No(s): CP-35-CR-0002687-2017
BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS, P.J.E.
Pierre Clemat, appeals from the judgment of sentence entered
by the Honorable Michael J. Barrasse in the Court of Common
Pleas of Lackawanna County following Appellant's
conviction by a jury on the charges of possession with the
intent to deliver a controlled substance ("PWID")
and possession of drug paraphernalia. After a careful review, we
relevant facts and procedural history have been set forth, in
part, by the trial court as follows:
[Appellant's] charges stemmed from a November 15, 2017[,
] incident wherein Lackawanna County and Dunmore Police
Detectives were investigating a prostitution ring.
Specifically, the Detectives found an escort on the internet
and arranged to meet with her for an appointment in Room
number 416 at the Four Points Sheraton Hotel in Scranton. The
escort, eventually identified as Derrian Regan (hereinafter
"Regan"), agreed to a rate of $160.00 per half hour
of services with the Detectives via text message. Upon
arriving at the Four Points Sheraton Hotel, Regan accepted
$160.00 in exchange for a sexual act, and officers
immediately placed Regan under arrest. While being
transported, officers observed Regan notify an unknown male
of her arrest. Subsequently, officers observed the male,
later identified as Appellant, walk towards the hotel and
throw a plastic bag into a nearby shrub. Thereafter, the
officers recovered multiple, individual twist bags containing
heroin inside the plastic bag discarded by Appellant.
Immediately, the officers Mirandized and placed Appellant
into custody. After a custodial search of Appellant, officers
recovered two (2) Apple IPhones and $1, 460 of U.S. currency.
Officers transported Appellant and Regan to the Dunmore
Police Station. During questioning, Regan admitted that she
dates Appellant and he provides her [with] heroin.
Accordingly, on July 10, 2018, a jury trial commenced wherein
the Commonwealth presented several witnesses. Forensic
Scientist Jennifer J. Libus, a lab technician with the
Pennsylvania State Police Wyoming Regional Laboratory,
testified that she tested the contents of the individual
baggies and determined that the baggies contained fifty-four
(54) grams of Fentanyl. Ms. Libus testified that she has been
qualified as an expert in the field of drug identification
and analysis in the Commonwealth of Pennsylvania, and has
rendered her opinion in criminal cases over 150 times.
Additionally, Dunmore Police Detective Corey Condrad, a
Supervisor of the Drug Unit, testified that he observed
Appellant dispose of a plastic baggie containing Fentanyl
into the bushes of the hotel parking lot. He also testified
to the recovery of $1, 460 in U.S. currency and two (2) cell
phones found on Appellant. Detective Condrad further
testified that the suspected narcotics were packaged into
evidence and transported to the Pennsylvania State Police
Wyoming Crime Lab.
Similarly, Detectives Vince Butkiewicz and Thomas Davis of
the Lackawanna County District Attorney's Office
corroborated Appellant's discarding of the plastic bag,
the search of Appellant, and recovery of the suspected
narcotics. Furthermore, Detective Harold Zech of the
Lackawanna County District Attorney's Office testified as
an expert regarding factors that show an intent to deliver as
well as tools utilized by dealers within the drug trade. In
this case, Detective Zech opined that the quantity of
Fentanyl recovered demonstrated Appellant possessed the
Fentanyl with the intent to deliver rather than possess for
personal use. He further testified that typical factors of
possession with intent to deliver include large amounts of
cash and multiple cellular phones. He noted that officers
recovered both items on Appellant's person.
Upon conclusion of all testimony, and all evidence presented,
the jury convicted [Appellant] of one (1) count of Possession
of a Controlled Substance with Intent to Deliver (50 to 100
grams of Fentanyl) and one (1) count of Possession of Drug
Paraphernalia. [The trial] court requested a pre-sentence
investigation report, and upon thorough review as well as
consideration of the sentencing guidelines, including all
mitigating and aggravating factors, [the trial] court
sentenced [Appellant] on October 22, 2018[, ] [to 84 months
to 168 months in prison, plus five years of probation, for
PWID, and six months to twelve months in prison for
possession of drug paraphernalia.]
[The trial] court imposed consecutive sentences which
aggregated to ninety (90) to one hundred and eighty (180)
months of incarceration followed by five (5) years of
probation supervised by the Pennsylvania Board of Probation
On November 1, 2018, Appellant filed a Motion for
Reconsideration of Sentence, alleging that this Court imposed
an excessive sentence and erroneously relied upon factors
contemplated by the guidelines. [The trial] court denied
Appellant's Motion on November 13, 2018, and [Appellant]
filed a timely Notice of Appeal…on November 29, 2018.
Trial Court Opinion, filed 5/6/19, at 2-5 (citations to
trial court directed Appellant to file a Pa.R.A.P. 1925(b)
statement, Appellant timely complied, and the trial court
filed a responsive Pa.R.A.P. 1925(a) opinion.
appeal, Appellant sets forth the following issues in his
"Statement of the Questions Involved" (verbatim):
1) Whether the trial court erred when it did not strike Juror
number 20 for cause, as she was likely biased due to a recent
drug-related overdose of a very good friend?
2) Whether the trial court erred when it allowed Lackawanna
County District Attorney Detective Harold Zech to testify as
an expert witness:
a. despite the fact the Commonwealth did not timely and
properly disclose their intent to call Detective Zech as an
Expert Witness; and
b. despite the fact the Commonwealth had full knowledge it
planned to call Detective Zech as an expert witness but
failed to disclose the fact (including subject matter) until
the Friday before Trial?
3) Whether the trial court erred when it allowed Detective
Zech to improperly testify as an expert since the matter to
which Detective Zech testified did not require a person
qualified in a specific science, art, or trade?
4) Whether the trial court erred when it allowed Detective
Zech to testify as an expert witness despite the fact that
Detective Zech was personally and directly involved in the
arrest of Appellant?
5) Whether the trial court erred when it allowed Detective
Zech to testify beyond the scope of his expert report, as no
report was produced?
6) Whether the trial court erred when it allowed Detective
Zech to answer questions specifically related to the case,
posed as thinly veiled "hypothetical" questions,
which covered subject matter reserved for the jury
(notwithstanding the fact that Detective Zech was testifying
as an expert witness)?
7) Whether the Judge abused his discretion in sentencing
Appellant to the aggravated range by impermissibly relying on
factors already considered in the sentencing guidelines,
specifically the weight and nature of the substance,
essentially multiplying those factors against Appellant
Appellant's Brief at 3-4.
first issue, Appellant contends the trial court erred when it
failed to strike Juror number 20 for cause. Specifically,
Appellant contends that, since Juror number 20 admitted that
her "very good friend" died from a drug-related
overdose just two weeks prior to Appellant's trial, the
trial court should have presumed the likelihood that she was
prejudiced, and consequently, the trial court should have
granted Appellant's request that she be stricken for
developing his claim, Appellant points to the following
excerpt from voir dire:
[DEFENSE COUNSEL]: So, I just have a few additional
questions. Again, this case involved possession with intent
to deliver a controlled substance. Now, has anyone here had a
loved one that died as a result of addiction or substance
And your number is, ma'am?
JUROR 20: 20.
[DEFENSE COUNSEL]: Can you explain the circumstances?
JUROR 20: A very good friend of ours just passed away two
[DEFENSE COUNSEL]: Very recent.
JUROR 20: Yes.
[DEFENSE COUNSEL]: Would that fact prevent you from being a
fair and impartial juror?
JUROR 20: No.
[DEFENSE COUNSEL]: Is there any other additional factors that
any one of you feel that would lead you to not be a fair and
impartial juror in this matter? No? Okay, let the [record]
reflect that the answer is in the negative. Thank you.
That's all I have.
N.T., 7/10/18, at 12-14, 16.
A trial court's decision regarding whether to disqualify
a juror for cause is within its sound discretion and will not
be reversed in the absence of a palpable abuse of discretion.
Commonwealth v. Stevens, 559 Pa. 171, 197, 739 A.2d
507, 521 (1999). In determining if a motion to strike a
prospective juror for cause was properly denied our Court is
guided by the following precepts:
The test for determining whether a prospective juror should
be disqualified is whether he [or she] is willing and able to
eliminate the influence of any scruples and render a verdict
according to the evidence, and this is to be determined on
the basis of answers to questions and demeanor....It must be
determined whether any biases or prejudices can be put aside
on proper instruction of the court....A challenge for cause
should be granted when the prospective juror has such a close
relationship, familial, financial, or situational, with the
parties, counsel, victims, or witnesses that the court will
presume a likelihood of prejudice or demonstrates a
likelihood of prejudice by his or her conduct or answers to
Commonwealth v. Briggs, 608 Pa. 430, 12 A.3d 291,
332-33 (2011) (some quotations omitted).
in explaining the reasons it denied Appellant's request
that Juror number 20 be stricken for cause, the trial court
indicated the following:
[J]uror number twenty (20) stated during jury selection that
her friend recently succumbed to a drug overdose. However,
she assured [the trial] court that she remained a fair and
impartial juror. Because of the juror's demeanor and
unequivocal response, as well as the juror's lack of
fixed opinion, obvious bias, or relationship to any of the
parties, victims, or witnesses, [the trial] court did not
disqualify the juror. Juror 20 did not visibly manifest
distress nor did she express substantial doubt. In fact, [the
trial] court recognized that the underlying case did not
involve an overdose or overdose victim so as to trigger a
close situational relationship to the juror. See
Commonwealth v. Johnson, 445 A.2d 509, 514 (Pa.Super.
1982) (finding that prospective juror's close
relationship to a victim of a separate crime did not compel a
finding of prejudice in every case). Furthermore, cognizant
of the protections provided by peremptory challenge,
Appellant had the opportunity to strike [J]uror number 20 if
so inclined, and Appellant chose to retain [J]uror [number]
20 on the panel. Commonwealth v. Jackson, 562 A.2d
338 (Pa.Super. 1989) [(en banc)] (holding the
primary function of a peremptory challenge is to allow the
parties to strike prospective jurors whom they have good
reason to believe might be biased, but who are not so clearly
and obviously partial that they could otherwise be excluded
from the panel). As such, [the trial] court acted within its
discretion and did not err in failing to dismiss for cause
since the prospective juror assured [the trial] court of her
ability to act impartially.
Trial Court Opinion, filed 5/6/19, at 5-6.
Juror number 20's responses, the trial court did not
commit an abuse of discretion in disallowing Appellant's
challenge for cause. See Briggs, supra. It
was the trial judge who was in the best position to assess
the credibility and fitness to serve of the prospective
juror. See Commonwealth v. Chambers, 546 Pa. 370,
685 A.2d 96, 107 (1996) (holding trial court may properly
refuse to excuse a juror for cause when the trial judge
believes that the juror would be fair and impartial).
the fact Juror number 20 had a "very close friend"
who had recently died from a drug-overdose is not dispositive
given the juror's indications that she could be fair and
impartial. See Commonwealth v. Cox, 603 Pa. 223, 983
A.2d 666, 683 (2009) ("[T]he fact that the prospective
juror's son was killed and his murderer was tried before
the same judge who was presiding over Appellant's
[murder] trial is not dispositive given the prospective
juror's indications that she ...