J-A08044-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LAKISHA D. JONES : : Appellant : No. 1188 EDA 2023
Appeal from the Judgment of Sentence Entered April 10, 2023 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0000229-2021
BEFORE: BOWES, J., OLSON, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 5, 2024
Lakisha D. Jones appeals from the judgment of sentence entered
following her convictions for knowing and intentional possession of a
controlled substance (“K&I”), possession with intent to deliver (“PWID”), and
possession of drug paraphernalia.1 Jones challenges the court’s denial of her
suppression and Rule 600 motions. She also challenges certain evidentiary
rulings. We affirm.
The trial court aptly summarized the facts leading to Jones’ convictions.
After observing the Defendant, Lakisha D. Jones, make two hand to hand controlled buys of cocaine to a confidential informant[“CI”], members of the Chester City Narcotics Unit obtained a search warrant for [Jones’] residence located at 210 Pennell Street, Chester, Delaware County, Pennsylvania. On November 13, 2020, the Chester City Narcotics Unit along with members of the Delaware Country Drug Task Force executed the search warrant. Upon ____________________________________________
1 35 P.S. §§ 780-113(a)(16), (a)(30), and (a)(32), respectively. J-A08044-24
entering the house, they found [Jones] and two other individuals in the residence. The police recovered drugs and drug paraphernalia from the kitchen. Recovered from [Jones’] bedroom were eight hundred eight dollars ($808.00) in US currency on her bed, thirty-three thousand forty dollars ($33,040.00) in US currency in two purses, green baggies and seven cell phones.
Rule 1925(a) Opinion, filed 6/29/23, at 1.
The Commonwealth filed a criminal complaint against Jones on
November 13, 2020. See Police Criminal Complaint, filed 11/13/20. The
charges were based on the drugs and paraphernalia found in the house, and
not on the controlled buys. The court held a pretrial conference on March 2,
2021. Following this hearing, the case was continued several times, two of
them for defense requests. See Criminal Notice/Application for Continuance,
dated 3/24/21 (continuing case to April 5); Criminal Notice/Application for
Continuance, dated 6/14/21 (continuing case to August 2).
On July 16, 2021, Jones filed a motion to suppress arguing that the
search and her arrest were without probable cause. See Motion to Suppress,
filed 7/16/21, at 3 (unpaginated). She also requested that the Commonwealth
be ordered to produce the CI involved with the case. See id. at 4
(unpaginated). The suppression hearing occurred on November 22, 2021, and
the court denied suppression by order entered January 21, 2022.2 The order
did not address the request for the CI’s identity. The court then granted
several continuances, two of which were defense requests. See Criminal
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2 The notes of testimony from the suppression hearing are not included in the
certified record.
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Notice/Application for Continuance, dated 2/14/22 (continuing case to March
21); Criminal Notice/Application for Continuance, dated 11/21/22 (continuing
case to December 12).
On February 16, 2023, Jones filed a Petition for Dismissal Pursuant to
Rule 600. See Pa.R.Crim.P. 600. The court held a hearing and denied the
motion on March 6. See Order, 3/6/23. The same day, Jones filed a Defense
Objection to Commonwealth’s 404(b) Notice, arguing that the “evidence of
two controlled purchases of cocaine, by a confidential informant, from Lakisha
Jones” would be highly prejudicial. Defense Objection to Commonwealth’s
404(b) Notice, filed 3/6/23. Jones also argued that the failure to disclose the
identity of the CI violated the Confrontation Clause. The court granted the
Commonwealth’s request to introduce the evidence of the controlled buys, but
did not address the Confrontation Clause issue at that time. See N.T., Trial,
3/7/23, at 114.3
Jones proceeded by way of a jury trial, and the Commonwealth
presented testimony from Officer Benozich, Sergeant Anthony Ruggeri, and
Officer Timothy Garron. See N.T., Trial, 3/7/23 at 122; N.T., Trial, 3/8/23, at
4, 31. Officer Benozich testified that he received information from a CI that a
person by the name of “Kish Mish was selling narcotics from a property of 210
Pennell Street,” and he later identified “Kish Mish” as Jones. N.T., Trial,
3/7/23, at 125, 126. After observing two controlled buys between Jones and
3 The notes of testimony from the hearing are not in the certified record.
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the CI, Officer Benozich obtained a search warrant for the property. Upon
execution of that warrant, police found Jones in the front bedroom of the
property. Id. at 155. In the front bedroom, Officer Benozich recovered $808
in cash, an additional $33,040 from two purses, and unused baggies bearing
green apple stamps that he described as drug paraphernalia. Id. at 162, 163,
164. He also recovered cocaine in a clear, knotted sandwich bag, digital scales,
and unused blue baggies from the kitchen. Id. at 157, 161.
Officer Garron, Officer Benozich’s partner, testified as an expert “in the
area of narcotics distribution.” N.T., Trial, 3/8/23, at 47. He testified that a CI
contacted Officer Benozich and told him that a “person could purchase
narcotics out of 210 Pennell Street.” Id. at 35. Counsel lodged a hearsay
objection, which the court sustained. See id. at 39. The court ruled that
Officer Garron could not tell the jury what the CI said but could testify
regarding “[w]hatever he was present for and witnessed[.]” Id. at 38.
Officer Garron testified that he observed two controlled buys between
the CI and Jones. Counsel objected that the testimony was inadmissible and
highly prejudicial. See id. at 43. Counsel also moved for a mistrial, stating,
“We don’t have the informant here so that I can examine the informant – I
can cross examine the informant to verify whether in fact what the officer says
happened actually occurred." Id. The court overruled both objections.
While giving its jury instructions, the trial court gave a cautionary
instruction regarding the testimony about the CI. The court stated:
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You have heard evidence of a criminal informant and two controlled buys for which the Defendant is not on trial. This evidence is before you for a limited purpose. That is for the purpose of showing the Defendant participated in the controlled buys that allowed the police to make further investigation, get a search warrant and serve the search warrant on the residence at 210 Pennell Street. This evidence must not be considered by you in any way other than for the purpose I just stated. You must not regard this evidence as showing that the Defendant is a person of bad character or criminal tendencies from which you might be included to infer guilt.
Id. at 131-132.
The jury found Jones guilty of the above-mentioned offenses, and the
court sentenced Jones to 10 to 23 months’ incarceration followed by two years
reporting probation for PWID, and concurrent terms of one year probation for
K&I and possession of drug paraphernalia. It ordered that Jones’ sentence for
probation run consecutive to the PWID conviction. Jones filed a post-sentence
motion challenging the court’s denial of her motion to suppress and her Rule
600 motion. She also challenged the admissibility of evidence of the controlled
buys and other testimony. See Petition for Post Sentence Relief, filed 4/11/23.
The court denied the motion and this timely appeal followed. On May 4, 2023,
the court entered an order for transcripts from the jury trial and the
sentencing. See Order for Transcripts, filed 5/4/23 (requesting transcripts for
March 6, 2023, March 7, 2023, March 8, 2023, and April 10, 2023).
Jones raises the following issues:
1. Whether the trial court erred in denying [Jones’] motion to suppress evidence?
2. Whether the trial court erred in denying [Jones’] Rule 600 Motion, which was an abuse of discretion?
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3. Whether the trial court erred in failing to order the production of the informant, at the request of [Jones], where the [c]ourt permitted the Commonwealth to put on evidence at trial concerning a[n] alleged control buy involving an informant and deprived [Jones] of her sixth amendment right to confront and cross examine the informant, thus denying [Jones] a fair trial?
4. Whether the [c]ourt abused its discretion in allowing the Commonwealth to introduce prejudicial hearsay evidence concerning the informant by Chester Police Officers during the trial and granting the Commonwealth’s Motion in Limine, concerning the same[?]
5. Whether the [c]ourt abused its discretion in allowing the Commonwealth to introduce prejudicial hearsay evidence concerning the informant by Chester Police Officer during the trial and granting the Commonwealth’s 404(b) Motion, concerning the same, where such evidence stripped [Jones] of the presumption of innocence[?]
6. Whether the [c]ourt abused its discretion and committed errors of law in allowing the Commonwealth’s expert police witness, to testify both as a fact witness and an expert witness and testify at the jury trial that “Ms. Jones possessed the drugs seized with the intent to deliver and not for personal use,[”] as this testimony and evidence by the Commonwealth invaded the province of the jury and violated Pennsylvania decision law, See Commonwealth v. Carter, 403 Pa.Super. 615, 589 A.2d 1133 (1991)[?]
Jones’ Br. at 10-11 (unnecessary capitalization omitted).
Jones’ first issue challenges the denial of her motion to suppress. She
claims that the court erred because the evidence obtained from her home was
fruit of the poisonous tree. She maintains that there was no probable cause
for the search warrant “where there was no evidence produced during the
investigation that there was cocaine stored inside the premises[.]” Id. at 23.
Jones notes that the CI “provided police with no information regarding where
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drugs would be found inside of the property” and did not tell police that he
had seen drugs in the residence. Id. at 22. Jones also claims that the warrant
“did not describe with specificity where to search for contraband in the
property[.]” Id. at 20. She notes that the search warrant was for the entire
property, which she characterizes as “a rooming house rented by three
people,” Jones and her two co-defendants. Id. at 22. She thus claims that
“the scope of the search warrant” was “overbroad.” Id. at 23.
The certified record does not show that Jones raised her specificity and
overbreadth challenges below. Neither one is in her written motion to
suppress, and although she may have raised them at the suppression hearing,
we do not know if she did so because the transcripts of the suppression
hearing are not in the certified record. Indeed, although the trial court itself
ordered the transcripts of the trial and sentencing, it did not order those from
the suppression hearing, and neither did Jones. It is the appellant’s duty to
request and pay for transcripts. Pa.R.A.P. 1911(a). It is also the appellant’s
responsibility to ensure that the record certified on appeal contains the
materials necessary for this Court to conduct appellate review, and the failure
to do may result in waiver. Commonwealth v. Preston, 904 A.2d 1, 7
(Pa.Super. 2006) (en banc).
In any event, Jones’ challenges to the warrant are meritless. Our
standard of review in addressing the denial of a suppression motion is settled:
Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court’s factual findings are
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supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may 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 record as a whole. Where the suppression court’s factual findings are supported by the record, we are bound by these findings and may reverse only if the court’s legal conclusions are erroneous. The suppression court’s legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.
Commonwealth v. Harlan, 208 A.3d 497, 499 (Pa.Super. 2019) (quoting
Commonwealth v. Freeman, 150 A.3d 32, 34–35 (Pa.Super. 2016) (citation
omitted)).
“Both the Fourth Amendment of the United States Constitution and
Article 1, Section 8 of the Pennsylvania Constitution guarantee an individual’s
freedom from unreasonable searches and seizures.” Commonwealth v.
Bostick, 958 A.2d 543, 550 (Pa.Super. 2008) (citation and internal quotation
marks omitted). “[A] search is constitutionally invalid unless it is . . .
supported by probable cause.” Commonwealth v. Lyons, 79 A.3d 1053,
1063–1064 (Pa. 2013). “[T]he totality of the circumstances set forth in the
affidavit [of probable cause] must be considered when examining whether
probable cause supports the issuance of the search warrant.” Harlan, 208
A.3d at 505 (quotation marks omitted). “[P]robable cause is based on a finding
of the probability, not a prima facie showing, of criminal activity, and
deference is to be accorded a magistrate’s finding of probable cause.”
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Commonwealth v. Arthur, 62 A.3d 424, 432 (Pa.Super. 2013) (citation and
brackets omitted). We limit our review to the four corners of the affidavit. Id.
“[A] warrant must name or describe with particularity the property to
be seized and the person or place to be searched.” Commonwealth v. Orie,
88 A.3d 983, 1002 (Pa.Super. 2014) (quoting Commonwealth v. Rivera,
816 A.2d 282, 290 (Pa.Super. 2003)). A warrant is not sufficiently particular
if it “‘authorizes a search in terms so ambiguous as to allow the executing
officers to pick and choose among an individual’s possessions to find which
items to seize.’” Commonwealth v. Green, 204 A.3d 469, 480 (Pa.Super.
2019) (quoting Orie, 88 A.3d at 1002). “[S]o long as police have reason to
believe the specific items to be seized may be found throughout a single family
residence, Article I, Section 8 does not preclude a search of the entire
residence regardless of whether a particular individual not named in the
warrant has an expectation of privacy in certain areas of that residence.”
Commonwealth v. Turpin, 216 A.3d 1055, 1069 (Pa. 2019). However, a
search warrant for “an apartment house, or other multiple-occupancy
structure will be held invalid for lack of specificity if it fails to describe the
particular room or subunit to be searched with sufficient definiteness to
preclude a search of other units.” See Commonwealth v. Carlisle, 501 A.2d
664, 667 (Pa.Super. 1985).
Here, the trial court concluded that there was probable cause to support
the issuance of the search warrant. It concluded that the information “was
sufficient for a neutral and detached magistrate to make a common sense
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determination that drugs” would be found in Jones’ home. Order Denying
Defendant’s Motion to Suppress, filed 1/21/22, at 8.
Here, the police set up two controlled buys based on information provided by the CI. The CI was proved reliable in nine prior cases. Officer Benozich observed activity consistent with drug sales and testified that the CI would arrange over the phone, in his presence, to meet the Defendant, Lakisha Jones[,] to purchase cocaine. The Defendant, Lakisha Jones[,] would meet the CI in the front of the searched residence. The CI would return with cocaine and on both occasions the CI was under constant observation. These facts connect the residence at 210 Pennell Street to illegal drug activity in a common sense, nontechnical way. Any magistrate, based on the information provided in the application for the warrant, could conclude that it was likely and probable that drugs would be found in the residence to be searched. As stated above, an informant’s tip may constitute probable cause where police independently corroborate the tip as happened here. See Commonwealth v. Clark, [28 A.3d 1284, 1288 (Pa. 2011)].
Id. at 8-9.
The court’s factual findings are supported by the record and it
committed no error in its legal conclusions. See Harlan, 208 A.3d at 499. The
CI purchased cocaine from Jones on two separate days, and on both
occasions, Jones exited from the Pennell Street residence immediately before
providing the CI with cocaine. See Affidavit of Probable Cause, filed 11/12/20,
at 4, 5. She did not stop or meet with anyone after she left the residence to
meet the CI. Thus, there was a probability that cocaine would be recovered
from the Pennell Street address. Arthur, 62 A.3d at 432.
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Regarding Jones’ claim that the warrant lacked specificity, this claim is
meritless. The affidavit of probable cause described the place to be searched
as follows:
210 Pennell Street, Chester, Delaware County, Pennsylvania 19013 being a two story brick structure. The front has an open porch, white screen door, dark colored front door with “210” on it vertically, black light fixture to the left of the front door, and is [sic] has a black mailbox to the left of the front door.
Affidavit of Probable Cause at 1, 7.
The warrant thus set forth that Jones’ entire two-story home would be
searched. Though Jones maintains that the warrant was overly broad because
she shared the home with two other individuals, Jones does not suggest that
the Pennell Street residence was an apartment house or multi-unit building,
nor is there any evidence of such. The evidence suggests that the Pennell
Street residence was a single-family home, and the warrant application
established probable cause that cocaine and other items related to the sale of
cocaine would be found throughout the entire residence. Therefore, we
conclude that the warrant was neither insufficiently specific nor overly broad.
See Turpin, 216 A.3d at 1068-69 (rejecting claim of overbroad warrant where
search warrant was for a single-family residence occupied by multiple
unrelated individuals and warrant was based on one individual’s activity in the
home); cf. Carlisle, 501 A.2d at 667.
Next, Jones alleges that the Commonwealth did not exercise due
diligence in bringing her case to trial by the mechanical run date of November
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13, 2021. She claims the Commonwealth “requested more than fourteen
months in continuances and was silent at the prospect of more than a year of
court ordered continuances.” Jones’ Br. at 26. This claim is waived.
It is the appellant’s responsibility “to ensure that the record certified on
appeal is complete in the sense that it contains all of the materials necessary
for the reviewing court to perform its duty.” Preston, 904 A.2d at 7; Pa.R.A.P.
1911(a) (“The appellant shall request any transcript required”). “This Court
cannot meaningfully review claims raised on appeal unless we are provided
with a full and complete certified record.” Preston, 904 A.2d at 7. “In the
absence of an adequate certified record, there is no support for an appellant’s
arguments and, thus, there is no basis on which relief could be granted.” Id.
“[A]ny claims that cannot be resolved in the absence of the necessary
transcript or transcripts must be deemed waived for the purpose of appellate
review.” Id.
The record before this Court does not include the notes of testimony
from the hearing on the motion to dismiss. Jones’ claim regarding her Rule
600 claim cannot be resolved in the absence of this transcript. As such, this
issue is waived. Id.; see Commonwealth v. Carl, 276 A.3d 743, 748
(Pa.Super. 2022) (“The proper scope of review is limited to the evidence on
the record of the Rule [600] evidentiary hearing, and the findings of the [trial]
court”) (citation omitted and alteration in original).
Jones’ remaining issues challenge evidentiary rulings. The admission of
evidence is within the discretion of the trial court and will only be reversed
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where there is an abuse of that discretion. See Commonwealth v. Radecki,
180 A.3d 441, 451 (Pa.Super. 2018). An abuse of discretion exists where the
court overrides or misapplies the law or exercises judgment in a way “that is
manifestly unreasonable, or the result of bias, prejudice, ill will or partiality,
as shown by the evidence of record.” Id. (citation omitted).
Jones claims the court erred in failing to order the Commonwealth to
disclose the CI’s identity. She maintains that the CI’s “testimony would have
been material to [Jones’] defense, . . . that Officer Garron was mistaken in
identifying [Jones] as the woman that engaged the [CI] in the controlled drug
purchases[.]” Jones’ Br. at 28. She maintains that this alleged failure of the
court violated her Sixth Amendment Constitutional right to confront and cross-
examine the informant.
“The Confrontation Clause in the Sixth Amendment to the United States
Constitution provides that all criminal defendants enjoy ‘the right to confront
and cross-examine adverse witnesses.’” Commonwealth v. Rosser, 135
A.3d 1077, 1087 (Pa.Super. 2016) (en banc) (citation omitted). “[T]he focus
of the Confrontation Clause is testimonial hearsay.” Commonwealth v.
Dargan, 897 A.2d 496, 500 (Pa.Super. 2006). Hearsay is an out-of-court
statement offered “in evidence to prove the truth of the matter asserted in
the statement.” Pa.R.E. 801(c). Furthermore, “[a]n out-of-court statement
offered to explain a course of conduct is not hearsay.” Dargan, 897 A.2d at
500 (citation omitted).
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Jones does not challenge Officer Garron’s testimony about any out-of-
court statements the CI made.4 Thus, her Sixth Amendment claim is
misplaced. Jones’ Br. at 27 (“Officer Garron attempted to testify about the two
alleged control purchases of the confidential informant from [Jones]”).
Furthermore, her claim that the court erred in refusing to order the
Commonwealth to disclose the CI’s identity is meritless.
“Our standard of review of claims that a trial court erred in its disposition
of a request for disclosure of an informant’s identity is confined to abuse of
discretion.” Commonwealth v. Bright, 234 A.3d 744, 747 (Pa.Super. 2020)
(citation and internal quotation marks omitted). The defendant bears the
burden of showing that the request to disclose the CI’s identity “is reasonable
and that the information sought to be obtained through disclosure is material
to the defense.” Commonwealth v. Withrow, 932 A.2d 138, 141 (Pa.Super.
2007). “A defendant fails to carry the initial burden to show that the CI’s
identity would be material to a defense of mistaken identity where the record
contains no evidentiary basis on which the defendant could assert the
defense.” Bright, 234 A.3d at 747.
Here, Jones failed to show that the CI’s identity would be material to
her defense. According to Jones, the CI would at most testify that Jones was
not the seller of the drugs to the CI. Because Jones’ convictions rest on the ____________________________________________
4 For this reason, the trial court’s apparent failure to rule on the Confrontation
Clause issue was harmless. See also Rule 1925(a) Op., at 6-7 (“[Jones] was not convicted based upon any statement or evidence obtained from any witness that [Jones] was not able to confront.”).
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drugs and other materials found in the house, and not on the controlled buys,
Jones has not shown that the CI’s testimony would have been material to her
defense. As such, the court committed no error in denying Jones’ objection.
See id.
Next, Jones claims that the court erred by admitting Officer Benozich’s
testimony about what the CI told him because it was inadmissible hearsay.
She claims “[s]uch hearsay clearly does not fall under any exceptions” and
the court abused its discretion by permitting such testimony. Jones’ Br. at 29.
Jones’ argument lacks merit. Officer Benozich’s testimony regarding his
conversation with the CI was not offered for the truth of the matter asserted.
Rather, the Commonwealth introduced the testimony “to inform the jury of
the reasons that the police went to [Jones’] house and searched it.” Rule
1925(a) Op. at 7. Moreover, any potential prejudice was cured by the court’s
cautionary instruction. See N.T., 3/8/23, at 131-132. We presume the jury
followed the instruction. Dargan, 897 A.2d at 501; Commonwealth v.
Naranjo, 53 A.3d 66, 71 (Pa.Super. 2012) (“Juries are presumed to follow a
court’s instructions”).
Jones also claims that Officer Benozich’s testimony about his
conversation with the CI violated Rule 404 of the Pennsylvania Rules of
Evidence. See Pa.R.E. 404(b). Jones maintains the court should have denied
the Commonwealth’s Rule 404(b) motion to admit the testimony. She claims
that the testimony stripped her of the presumption of innocence.
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Rule 404 prohibits “[e]vidence of any other crime, wrong, or act” where
it is admitted “to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.” Pa.R.E.
404(b)(1). However, such evidence may be admissible to prove “motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Id. at 404(b)(2).
Here, the trial court granted the Commonwealth’s motion because it met
the exceptions of Rule 404(b)(2).
The court granted the motion because the evidence was relevant, recent, reliable, and probative. Moreover, the controlled buys became necessary for the Commonwealth to prove motive, intent, identity, and absence of mistake or accident.
Rule 1925(a) Op. at 9. The court did not abuse its discretion. The two
controlled buys proved Jones’ motive and intent to sell a controlled substance
as well as her knowledge of the cocaine recovered from her home.
Furthermore, as stated above, any prejudice suffered by the testimony was
cured by the court’s cautionary jury instruction.
Finally, Jones claims the trial court abused its discretion by allowing
Officer Benozich to offer expert testimony. She argues expert testimony was
improper because Officer Benozich testified that he saw Jones make a hand-
to-hand sale to the CI in broad daylight. In support, she cites
Commonwealth v. Carter, 589 A.2d 1133 (Pa.Super. 1991). Carter is
inapposite. Carter was charged with hand-to-hand transactions that the police
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observed. Here, Jones was charged and convicted of PWID for cocaine found
in the home.
Judgment of sentence affirmed.
Date: 9/05/2024
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