Com. v. Knupp, D.

2023 Pa. Super. 28, 290 A.3d 759

• Court: Superior Court of Pennsylvania
• Decided: February 22, 2023
• Docket: 1439 WDA 2021
• Status: Published

Opinion

J-S29036-22

2023 PA Super 28

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DONALD KNUPP : : Appellant : No. 1439 WDA 2021

Appeal from the Judgment of Sentence Entered June 18, 2021 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0001959-2018

BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*

OPINION BY COLINS, J.: FILED: February 22, 2023

Appellant, Donald Knupp, appeals the judgments of sentence that the

Washington County Court of Common Pleas imposed after a jury found him

guilty of possession of a controlled substance with intent to deliver, knowing

or intentional possession of a controlled substance, and possession of drug

paraphernalia.1 He challenges the trial court’s denial of his suppression

motion, admission of prior bad acts evidence, and denial of an evidentiary

admission objection. Upon careful review, we sua sponte vacate Appellant’s

concurrent sentence for knowing or intentional possession of a controlled

substance and affirm the remaining judgments of sentence without need for

a remand.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. §§ 780-113(a)(30), 780-113(a)(16), and 780-113(a)(32), respectively. J-S29036-22

The trial court has offered the following summary of the facts for our

review:

The Washington County Drug Taskforce (“WCDT”) had been conducting an investigation into [Appellant] (a “target”) allegedly trafficking cocaine in the spring in of 2018. Michael Manfredi was a police officer at the time as well as a member of the WCDT. Through the WCDT, he conducted a series of controlled buys of cocaine from [Appellant] at his barbershop.1 Detective Manfredi used confidential informants ([“]CI[”]) for the controlled buys.2 The first controlled buy from [Appellant] took place on June 12, 2018. The CI arranged this purchase by first calling [Appellant] at telephone number [redacted telephone number]. Detective Manfredi testified that he was present for the phone call, he overheard the conversation between [Appellant] and CI, and that he was familiar with [Appellant’s] voice at the time. The Detective testified that he has known [Appellant] since 2012.

1 [Appellant] cuts hair, but also rents booth space to four persons to cut hair. [Appellant] charges between $25 and $35 per day to these four persons.

2 Detective Manfredi testified about the exact protocol using

a CI. The WCDT searched the CI to verify that they have no money, weapon, or contraband was [sic] on their person. The WCDT then provided the CI with official funds, and Detective Manfredi recorded the serial numbers of that currency. Additionally, an officer always watched the CI from the time of their body search until they entered the barbershop, as well as the moment the CI exited until the CI traveled to a pre-designated neutral location. The CI was searched at the neutral location. Detective Manfredi or his colleague found the CI to be free of any money and weapons; they were in possession of cocaine they said they received from [Appellant] in exchange for the marked money.

The CI proceeded to [Appellant’s] barbershop located at 520 West Chestnut Street, Washington, Pennsylvania to purchase $220 worth of cocaine (3.6 grams). Detective Manfredi orchestrated a second controlled buy on June 14, 2018. For this controlled buy, the CI purchased $1,400 worth of cocaine (29 grams). A third

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controlled purchase took place on August 7, 2018 for $220, yielding 3.5 grams of cocaine. The June 14 and August 7 controlled buys were not pre-arranged with a telephone call to [Appellant] like the June 12 buy.

On June 19, 2018, a confidential source informed Detective Michael Manfredi that [Appellant] was going to “re-up” his cocaine inventory that day. The confidential source had previously informed Detective Manfredi that [Appellant’s] source of cocaine was a barbershop [in] the Southside neighborhood of Pittsburgh. Consequently, Detective Manfredi contacted the FBI and spoke with Special Agent Piccini to discuss [Appellant] and the investigation and asked for assistance. With this information, [Agent] Piccini drove to East Carson Street to conduct surveillance. [Agent] Piccini observed [Appellant] arriving at a barbershop and photographed him walking into the shop carrying a dark colored backpack.

[Detective] Manfredi and Officer Martin of the City of Washington Police Department were waiting near [Appellant’s] barbershop, located at 520 West Chestnut Street, Washington, to return from Pittsburgh in a blue Dodge Ram pickup truck.3 When [Appellant] arrived at his barbershop in the blue pick-up truck, Officer Martin and Detective Manfredi exited their vehicles and approached [Appellant’s] truck. According to Detective Manfredi, he noticed a small amount of marijuana in the truck. He asked for [Appellant’s] consent to search the vehicle, which [Appellant] provided. Therein, a blue backpack was located with $10,000 therein, 6 Washington Financial Bank deposit receipts, and remnants of a marijuana cigarette.

3 Detective Manfredi testified he knew that this was [Appellant’s] vehicle.

Detective Manfredi called [Pennsylvania State Police] Trooper Christine Marth, the K-9 narcotic detection handler, for assistance. Trooper Marth testified that she had her canine, Brutus, sniff for cocaine located inside [Appellant’s] truck. [Trooper Marth testified that] Brutus did not alert for any cocaine inside [Appellant’s] truck, but that her canine did alert on the $10,000 found in [Appellant’s] backpack, and $500 in his wallet.4 Importantly, $1,150 (initially testified to being $920 by mistake) of the $10,000 in backpack was money used in the controlled purchase of cocaine via a confidential information (CI) from

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[Appellant] at his barbershop. Additionally, the WCDT seized a cellular telephone with the phone number [redacted telephone number]. Detective Manfredi testified that this phone number was the number the CI dialed on June 12, 2018 to arrange the cocaine purchase, and that he was present when the call was made for verification.5

4 According to Trooper Marth, the money was placed into an

envelope. Other similar looking envelopes were filed with items free of contraband and placed on the ground next to the envelope with the $10,500 inside. Trooper Marth then conducted her canine search.

5 Detective Manfredi testified that he overheard the conversation between [Appellant] and CI, and that he was familiar with [Appellant’s] voice at the time. The Detective testified that he has known [Appellant] since 2012.

[Appellant] testified that he intended to use this money for purchasing a motorcycle that he was to see in Pittsburgh, and that his mother, Vicki Knupp, gave him one-half of the $10,000 for the motorcycle.6 According to [Appellant], the owner of the motorcycle cancelled [Appellant’s] appointment at the last minute. [Appellant], therefore, decided to get a haircut on the South Side, then return to his barbershop because he had an appointment.7

6 Mrs. Knupp testified similarly.

7 The Commonwealth did not arrest, nor charge, [Appellant]

after their search on June 19, 2018 stop [sic].

Detective Manfredi drafted search warrants of [Appellant’s] two bank accounts at Washington Financial Bank (one checking, one savings) and search warrants of [Appellant’s] barbershop, his apartment directly above the barbershop, and Vicki Knupp’s house as a consequence of aforementioned facts.8 Judge Valarie Costanzo approved the warrant request on August 8, 2018, and they were executed on the same date. The search of the barbershop yielded 190 grams of cocaine located in a black bag sandwiched under white plastic bags on top of a washer/dryer unit in a storage room marked “Employees Only.” The bag also contained a Crown Royal bag, wherein the WCDT found a black digital scale and spoon, both of which were covered in a white

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powder. Furthermore, there were three separately wrapped plastic bags containing a white powder-like substance; two of the three bags were in one larger bag. The WCDT also found $3,900 on/in a safe in [Appellant’s] apartment, as well as $870 in a blue banking bag on a shelf in the barbershop storage room. Finally, the WCDT found marijuana blunts in the barbershop as well as a box of plastic sandwich bags, $1,100 in [Appellant’s] apartment closet, $187 from [Appellant’s] wallet, $18 in a cigar box from the apartment, $41 in the barbershop cash register, handgun ammunition, three cellular telephones and one tablet. The WCDT seized all of these items.

8 Vicki Knupp is on [Appellant’s] two bank accounts, and [Appellant] lists 246 East Prospect Avenue, Washington Pennsylvania as his residence with the Department of Motor [V]ehicles. Detective Manfredi learn[ed] of this address during the June 19, 2018 traffic stop. This address is where Vicki Knupp resides.

Trial Court Opinion, 1/5/22, 1-4 (record citations omitted).

We note, in addition to the offered summary, that Detective Manfredi

alleged in his trial testimony that Appellant made inculpatory statements after

a Miranda2 warning in he which stated that he had bought 4.5 ounces of

cocaine from a person named Cook at a bar in Pittsburgh and that “there may

be a little bit left over from a previous cocaine purchase that was within the

barbershop.” N.T. 3/23/21, 149, 196-97. Moreover, the police determined

that sixty dollars of the money that was recovered from Appellant’s wallet at

the time of the search warrant execution was buy money from the controlled

cocaine purchase that was completed on August 7th. Id. at 174-75.

2 Miranda v. Arizona, 384 U.S. 436 (1966).

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The Commonwealth filed a criminal complaint on August 9, 2018.

Appellant retained Gary E. Gerson, Esquire, as his counsel who continued to

represent him until prior to the filing of his post-sentence motions. Praecipe

of Appearance, 7/28/21; Praecipe for Appearance, 9/26/18.

Relevant to the first claim presented in this appeal, Appellant filed a pre-

trial motion to suppress the evidence recovered as a result of the car stop.

Appellant’s Omnibus Pre-trial Motion, 3/29/19, 4-7. Because he alleged that

he was illegally stopped and that his truck and backpack were thus illegally

searched, he asserted that the search warrants issued based on the evidence

obtained from the car stop were illegally issued. Id. at 4-10. He objected to

the legality of the stop because of, inter alia, the lack of specificity for the tip

concerning him traveling to Pittsburgh for a resupply of cocaine and the

supposed lack of evidence concerning the reliability of the police confidential

source for that tip. Id. at 4-5; Brief in Support of Suppression, 8/1/19, 1-6.

He also alleged that the search of his backpack in his truck exceeded his

consent to a search. Appellant’s Omnibus Pre-trial Motion, 3/29/19, 6-7; Brief

in Support of Suppression, 8/1/19, 6-7. After a hearing on August 1, 2019,

the trial court denied the motion in a deferred order. Order, 8/19/19, 1-7.

The court found that there were sufficient facts to support reasonable

suspicion for the detainment of Appellant, probable cause to permit the search

of his truck, and probable cause for the issuance of the search warrants. Id.

at 3-6.

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

admission of, inter alia, evidence of the controlled purchases of cocaine from

Appellant’s barbershop prior to the execution of the search warrants.

Commonwealth’s Motion in Limine, 3/11/21, ¶¶ 2-3. The Commonwealth

requested the court to admit that evidence pursuant to Pa.R.E. 404(b) to

prove, among other things, Appellant’s intent to deliver controlled substances.

Id. at ¶¶ 10-18. The court granted the request in part, permitting the

admission of evidence concerning the sales conducted with prerecorded buy

money involved with the issuance of the search warrants. Order, 3/18/21, 1

(“To the extent that the prior bad acts are related to a confidential informant’s

purchase of contraband from [Appellant] with Commonwealth earmarked

funds, and said funds were directly related to the issuance of a search warrant

and leading to his arrest regarding charges herein, the Commonwealth may

present testimony about those transactions at trial.”). The court noted that

that evidence was admissible as res gestae and evidence of Appellant’s intent

to deliver controlled substances. Id. at 2-5. This ruling is the focus of

Appellant’s second claim herein.

Appellant proceeded to be tried before a jury on March 23-25, 2021,

and was found guilty of the above-referenced charges. Verdict Slip, 3/25/21,

1; Verdict, 3/25/21, 1-2. During trial, Appellant raised an objection to the

admission of ammunition and a firearm magazine recovered by the police, the

denial of which is the focus of his third claim herein. N.T. 3/23/21, 187-89.

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At a deferred sentencing hearing, the trial court imposed concurrent

imprisonment terms of eighty to one hundred and sixty months for possession

of a controlled substance with intent to deliver, six to twelve months for

knowing or intentional possession of a controlled substance, and one to two

months for possession of drug paraphernalia. Sentencing Order, 6/18/21, 1-

2. The court thereafter denied post-sentence motions in which Appellant

asserted that the Commonwealth did not formally arraign him, and trial

counsel provided ineffective assistance by failing to inform him of the prior

sentencing ranges for his charges.3 Order, 10/25/21, 1-3; Post-Sentence

Motions, 10/12/21, 1-2. Appellant timely filed a counseled notice of appeal.4

Notice of Appeal, 11/24/21, 1.

Appellant presents the following questions for our review:

3 The post-sentence motions were timely filed following the grant of three extensions of time. Order, 6/24/21, 1; Order, 8/3/21, 1; Order, 8/31/21, 1. The deadline resulting from the last extension grant was identified by the trial court as Sunday, October 11, 2021, but, pursuant to the computation of time rule, that deadline must be properly calculated as Monday, October 12, 2021. See 1 Pa.C.S. § 1908 (“[w]hever the last day of any [period of time … is referred to in any statute] shall fall on a Saturday or a Sunday … such day shall be omitted from the computation.”).

4 In his notice of appeal, Appellant asserted that he is appealing both the sentencing order, dated June 18, 2021, and the order denying his post- sentence motions, dated October 25, 2021. Notice of Appeal, 11/24/21, 1. This appeal, however, properly lies only from the imposed judgments of sentence. We have amended the caption accordingly. See Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc) (“In a criminal action, appeal properly lies from the judgment of sentence made final by the denial of post-sentence motions.”).

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I. Did the trial court err in the denial of the motion to suppress on August 19, 2019?

II. Did the trial court err in the admission of prior bad acts of the Appellant on March 18, 2021?

III. Did the trial court err in overruling the Appellant’s objection to the admission of evidence involving a firearm during trial on March 23, 2021?

Appellant’s Brief at 5 (original text in all caps).

In his first issue, Appellant challenges the denial of his suppression

motion claiming that the trial court erred by concluding that there was

reasonable suspicion permitting the car stop on June 19, 2018, and probable

cause based on the evidence obtained during the search of his truck that

permitted any of the subsequent searches in this case. Appellant’s Brief at

21-25. “Once a motion to suppress has been filed, it is the Commonwealth’s

burden to prove, by a preponderance of the evidence, that the challenged

evidence was not obtained in violation of the defendant’s rights.”

Commonwealth v. Wallace, 42 A.3d 1040, 1047-48 (Pa. 2012), citing,

inter alia, Pa.R.Crim.P. 581(H).

In reviewing an appeal from the denial of a motion to suppress evidence,

we are guided by the following standard of review:

Our standard of review in addressing a challenge to trial court’s denial of a suppression motion is whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. When reviewing the ruling of a suppression court, we must consider only the evidence of the prosecution and so much of the evidence of the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the

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suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations

omitted). “It is within the suppression court’s sole province as factfinder to

pass on the credibility of witnesses and the weight to be given their

testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super.

2006) (citation omitted). Moreover, our scope of review from a suppression

ruling is limited to the evidentiary record that was created at the suppression

hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).

Appellant first asserts that there was insufficient evidence for reasonable

suspicion for the car stop because the confidential informant’s tip that he was

going to “re-up” on cocaine in Pittsburgh on June 19, 2018, lacked specificity.

He states, “There was no specific location given, nor was there any additional

information given that would be predictive of the Appellant’s behavior or would

narrow down the potential occurrences that could be the case given the wide

scope of variables involved.” Appellant’s Brief at 23. He then argues that the

trial court erred by ruling that the odor of marijuana coming from his truck

provided probable cause by itself. Id. at 24. Lastly, he asserts that the

evidence obtained as a result of his consent to a search of his truck should

have been suppressed as the fruits of an illegal seizure. Id. at 25.

To conduct an investigative detention, police must have reasonable

suspicion of criminal activity. Commonwealth v. Downey, 39 A.3d 401, 405

(Pa. Super. 2012). “In reviewing whether reasonable suspicion … exists, we

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must … examine the totality of the circumstances to determine whether there

exists a particularized and objective basis for suspecting an individual [] of

criminal activity.” Commonwealth v. Epps, 608 A.2d 1095, 1096 (Pa.

Super. 1992). Even innocent factors, viewed together, may arouse suspicion

that criminal activity is afoot. Commonwealth v. Cook, 735 A.2d 673, 676

(Pa. 1999); see also Commonwealth v. Riley, 715 A.2d 1131, 1135 (Pa.

Super. 1998) (“[A] combination of circumstances, none of which taken alone

would justify a stop, may be sufficient to achieve a reasonable suspicion.”).

Moreover, “in determining whether the officer acted reasonably in such

circumstances, due weight must be given, not to his inchoate and

unparticularized suspicion or hunch, but to specific reasonable inferences he

is entitled to draw from the facts in light of his experience.” Terry v. Ohio,

392 U.S. 1, 27 (1968) (internal quotation marks and citation omitted).

Here, the suppression court determined that there was ample support

for reasonable suspicion based on the totality of the circumstances:

According to [Detective] Manfredi’s testimony the confidential source had previously provided information to the Washington County Taskforce regarding criminal investigations and had determined that such information was accurate. [Detective] Manfredi also stated that the taskforce used the confidential source to purchase cocaine from [Appellant] in “controlled buy situations.” In fact, prior to June 19, 2018, [Detective] Manfredi and his colleagues had conducted seven controlled purchases of cocaine from [Appellant] with the assistance of confidential informants. Further, Special Agent Piccini informed [Detective] Manfredi that “Tending Styles” [(the barbershop in Pittsburgh that Appellant traveled to on June 19, 2018)] was [] known to them to be a source of cocaine distribution. Pursuant to a totality-of-the-

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circumstances standard, this Court concludes that the informant’s reliability and basis of knowledge passes constitutional muster. …

[T]his Court finds that the above facts were sufficient to sustain a finding of reasonable suspicion that [Appellant] had just purchased cocaine at “Trending Styles.” Therefore, the police could detain [Appellant].

Order, 8/19/19, 3-4 (record citation and footnote omitted).

Appellant’s argument – contrary to the suppression court’s analysis –

overlooks the mandate that “reasonable suspicion must be evaluated based

on the totality of the circumstances.” In re D.M., 727 A.2d 556, 559 (Pa.

1999) (emphasis in original). The fact that the “re up” tip did not include a

specific destination and that Appellant’s actions could have appeared to be

innocent or lawful in a vacuum did not countermand the adequate grounds for

reasonable suspicion. Prior to the car stop, the police had conducted at least

seven controlled purchases of cocaine from Appellant’s barbershop from March

to June 2018, with at least three of those transactions occurring during the

month that the car stop took place. N.T. 8/1/19, 12, 22, 46, 57; Application

in Support of Search Warrant for Application for Search Warrant 726-2018,

8/9/18, ¶¶ 4, 9-16. Moreover, while the “re up” tip regarding a purchase in

Pittsburgh did not include a specific destination, the police surveilled Appellant

going to a location in Pittsburgh that they knew was a source for cocaine

distribution just prior to the car stop occurring when Appellant returned to his

barbershop. N.T. 8/1/19, 12-21, 33-35, 52.

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When these facts are considered together, they demonstrated a

likelihood that Appellant was engaged in criminal activity and had been in the

process of resupplying cocaine that the police had reason to believe he was

selling from his barbershop. The confidential source about the “re up” tip was

not an anonymous source and the fact that Appellant went to Pittsburgh, to a

location that the police had been aware was a source for cocaine distribution,

when the informant said that Appellant would be going to Pittsburgh for a

resupply of cocaine, following the multiple controlled purchases at Appellant’s

barbershop, appeared to corroborate the tip and gave rise to reasonable

suspicion sufficient to warrant an investigative detention. See

Commonwealth v. Moore, 805 A.2d 616, 619-20 (Pa. Super. 2002) (“In

establishing reasonable suspicion, the fundamental inquiry is an objective one,

namely, whether the facts available to the officer at the moment of the

[intrusion] warrant a man of reasonable caution in the belief that the action

taken was appropriate.”) (internal quotation marks omitted), citing Terry,

392 U.S. at 21-22; see also Commonwealth v. Lohr, 715 A.2d 459, 462

(Pa. Super. 1998) (“a tip from an informer known to the police may carry

enough indicia of reliability for the police to conduct an investigative stop,

even though the same tip from an anonymous informant would likely not have

done so.”).

To the extent that Appellant challenges whether the odor of marijuana

provided insufficient grounds for probable cause, the presence of that odor is

a red herring for purposes of our review. Appellant was not stopped or

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searched on account of marijuana. The police embarked on conducting the

stop without any knowledge of the presence of marijuana because they

believed, based on the above-discussed facts, that Appellant had just engaged

in a resupply of cocaine. See N.T. 8/1/19, 48 (Detective Manfredi’s

suppression hearing testimony: “Q. And when -- the purpose for you

approaching that vehicle was to determine and to seize cocaine that you

believe was involved in a transaction at the Trending Styles barbershop;

correct? A. That was what we believed was transpiring, correct.”). After

Appellant was lawfully subjected to an investigative detention, he then

consented to a search of his truck. See id. at 25 (“And he said there was

nothing in his truck except for a couple of blunts. And he said he didn’t feel

that that was illegal. I think the quote was, ‘There’s nothing illegal in there.

Go ahead and search it.’”); see also id. at 49-50.

While the suppression court acknowledged in its denial order that a

marijuana odor by itself provided probable cause under caselaw that has now

been abrogated, that observation is immaterial where Appellant ultimately

granted consent to a search of his truck which he does not even challenge in

this appeal. Order, 8/19/19, 4, citing Commonwealth v. Stoner, 344 A.2d

633, 635 (Pa. Super. 1975) (holding the smell of marijuana provides probable

cause to search), abrogated by Commonwealth v. Barr, 240 A.3d 1263,

1283-88 (Pa. Super. 2020) (holding that the odor of marijuana emanating

from a vehicle during a police traffic stop, alone, is not sufficient to establish

probable cause), and Commonwealth v. Barr, 266 A.3d 25, 43 (Pa. 2021)

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(marijuana alone is insufficient to support a finding of probable cause but

could be considered with other articulable facts that would support a finding

of probable cause under the totality of the circumstances). “If a person has a

reasonable expectation of privacy in a place, then [the Fourth Amendment of

the United States Constitution and Article I, Section 8 of the Pennsylvania

Constitution] generally require police to obtain a warrant to search the place;

a search warrant must be supported by probable cause and issued by a

neutral, detached magistrate.” Barr, 266 A.3d at 39-40. One exception to

the warrant requirement exists when a person with authority over the place

to be searched voluntarily consents to the search. Commonwealth v.

Alexander, 243 A.3d 177, 193 (Pa. 2020) (stating, “[a] citizen is free to put

law enforcement to the test by requiring a warrant, and if the citizen wishes

to give up that right they can simply consent”).

While a showing of probable cause was necessary for the issuance of a

search warrant and the existence of probable cause and exigent circumstances

was necessary to justify a warrantless search of an automobile under

Alexander, supra, Appellant relieved the Commonwealth of any burden to

show probable cause for the issuance of a search warrant or probable cause

and exigent circumstances for a warrantless automobile search by consenting

to a search. On appeal, Appellant offers no evidence or arguments to

contravene the existence or voluntariness of that consent. He notes that

“[t]his consent was given while [he] was in the back of the police car,” but

even a suspect who has been detained and handcuffed may still voluntarily

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consent to a search. See Commonwealth v. Rosas, 875 A.2d 341, 350 (Pa.

Super. 2005) (“although Rosas was handcuffed in the presence of the

troopers, this fact is simply insufficient to create a presumption of lack of

voluntariness in his consent to the search”).

In the absence of any apparent challenge to his consent to a search, we

cannot find that the suppression court erred by not concluding that the

evidence seized from his truck was obtained as a result of an illegal search.

We are bound by the facts found by the suppression court, including that he

voluntarily consented to a search of his truck. Following the consent granted,

the police were permitted to search Appellant’s truck and his backpack

contained therein which held a large sum of money that, in addition to other

evidence, supported the affidavits of probable cause for the search warrants

later issued in this case. See Commonwealth v. Randolph, 151 A.3d 170,

185 (Pa. Super. 2016) (“[G]eneral consent to search a vehicle extends to

closed, but readily opened, containers discovered inside the car.”) (citation

omitted).

We find no basis to conclude that the trial court erred by denying

Appellant’s suppression motion. There were articulable grounds for

reasonable suspicion justifying the car stop in this case and, during that lawful

stop, Appellant granted the police consent to search his truck which yielded

evidence that was permissibly used by the Commonwealth to subsequently

obtain search warrants for additional evidence. To the extent that the

suppression court made any legal conclusions about the presence of an odor

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of marijuana coming from Appellant’s truck, we are not bound by those

conclusions, and they played no part in our review of the denial of the

suppression motion. See Commonwealth v. Cartagena, 63 A.3d 294, 301

(Pa. Super. 2013) (en banc) (“the law is well settled that if the record supports

the result reached by the suppression court, we may affirm on any ground.”).

In his second issue, Appellant challenges the trial court’s partial grant

of the Commonwealth’s motion in limine that allowed the admission of

evidence concerning the controlled drug sales which involved the use of

prerecorded buy money that was later recovered by the police. Appellant’s

Brief at 25-28. He claims that evidence admitted by this ruling “was more

prejudicial than probative and was used for improper purposes under

Pennsylvania Rules of Evidence 404(b).” Id. at 26.

As an initial matter, Appellant’s brief fails to indicate where in the record

he preserved his claim regarding the Commonwealth’s motion in limine

pursuant to either the “other crimes, wrongs, or acts” section of Pa.R.E.

404(b) or the exclusionary provision in Pa.R.E. 403. Nothing in the record

suggests that he filed a response to the Commonwealth’s motion. Moreover,

he has not moved into the certified record any notes of testimony reflecting

the arguments the parties offered at any hearing on the Commonwealth’s

motion. Accordingly, Appellant has failed to satisfy his duty to demonstrate

the preservation of this claim. Pa.R.A.P. 2117(c) (requiring, where an issue

is not reviewable on appeal unless raised or preserved below, a statement of

place of raising or preservation of issues); Pa.R.A.P. 2119(e) (“Where under

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the applicable law an issue is not reviewable on appeal unless raised or

preserved below, the argument must set forth, in immediate connection

therewith or in a footnote thereto, either a specific cross-reference to the page

or pages of the statement of the case which set forth the information relating

thereof as required by Pa.R.A.P. 2117(c), or substantially the same

information.”). Having failed to identify the preservation of his instant claim

in the record, this Court is constrained to find that Appellant waived his

arguments concerning the second issue presented herein. See Young v. S.B.

Conrad, Inc., 216 A.3d 267, 274 (Pa. Super. 2019) (“Our appellate courts

have long held that an [appellant] who does not follow Pa.R.A.P. 2117(c) and

Pa.R.A.P. 2119(e) waived the related issues due to the defects in his brief.”);

Commonwealth v. Baker, 963 A.2d 495, 502 n.6 (Pa. Super. 2008) (“[I]t is

not the responsibility of this Court to scour the record to prove that an

appellant has raised an issue before the trial court, thereby preserving it for

appellate review.”); see also Pa.R.E. 103(a)(1)(A)-(B) (explaining that a

party may claim error in a ruling to admit … evidence only if a party “makes

a timely objection, motion to strike or motion in limine; and … states the

specific ground, unless it was apparent from the context”); Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”).

Even if Appellant preserved his theories for this issue, we would not

conclude that the trial court erred by concluding that the evidence at trial

concerning the three controlled drug sales during the investigation of

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Appellant were admissible under Rule 404(b), and should not have been

excluded under Rule 403.5 Pursuant to Rule 404(b)(1), “[e]vidence of any

other crime, wrong, or 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.” Under a separate subpart of the rule, however, evidence

of that nature may be permitted for other uses such as proving, among other

things, intent and identity, so long as “the probative value of the evidence

outweighs its potential for unfair prejudice.” Pa.R.E. 404(b)(2). In addition,

the list of exceptions in Rule 404(b)(2) is not exclusive, and our Supreme

Court previously recognized another exception to Rule 404(b)’s general

prohibition of other “prior bad acts” evidence, referred to as the res gestae

exception. See Commonwealth v. Lark, 543 A.2d 491 (Pa. 1988). Pursuant

to Lark, evidence of other crimes and acts is admissible to enable the

Commonwealth to tell the “complete [ ] story of the crime” by “providing its

immediate context of happenings near in time and place.” Id. at 497, quoting,

inter alia, McCormick on Evidence § 190 (2d ed. 1972).

Here, the trial court admitted only evidence concerning the three

controlled drug purchases which involved prerecorded buy money that was ____________________________________________

5 As an aside we note that Appellant’s claim addresses the trial court’s admission of evidence of his “cell phone messages, prior controlled buys, and money found during the searches of [his] property.” Appellant’s Brief at 25- 26. To the extent that Appellant addresses “cell phone messages,” we are unclear as to what evidence he is referring to and he fails to cite any instance of cellular telephone messages being addressed at his trial. Our thorough review of the record for this appeal fails to uncover any moment that text or voice mail messages were discussed at trial.

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later recovered by the police during their investigation and were related to the

issuance of the search warrants in this case. Order, 3/18/21, 1. The court

allowed this evidence under the res gestae exception and for the additional

purposes of allowing this evidence to be used for the purposes of determining

Appellant’s identity as the possessor of the recovered cocaine supply and his

intent to deliver it. Id. at 3-5; see also N.T. 3/25/21, 87-88 (jury instruction

regarding the use of the controlled purchase evidence).6 We disagree with

Appellant’s assertions that this evidence was admitted for improper purposes

or that its probative value was outweighed by its potential for unfair prejudice.

6 The jury was instructed as follows concerning the controlled purchases evidence:

Further, each element must be proved by beyond a reasonable doubt. But before I give you that information, ladies and gentlemen, I must give to you a cautionary instruction. Okay? You have heard evidence intending to prove that the defendant was involved in controlled buys of cocaine, for which he is not on trial here. I am speaking of the testimony to the effect that alleged sales of cocaine took place on June 12, 2018, June 15, 2018, and August 7th of 2018, by Mr. Knupp.

This evidence is before you for a limited purpose. That is for the purpose of intending to show his possession of and intention to deliver cocaine that was seized on August the 9th of 2018. This evidence must not be considered by you in any other manner or for the purposes 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 inclined to infer guilt. Please remember this, ladies and gentlemen.

N.T. 3/25/21, 87-88.

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Like the trial court, we conclude that the three controlled drug sales that

were addressed at trial were relevant to present the history of the case to the

jury and its probative value outweighed the prejudice it may have caused

Appellant. See Commonwealth v. Serge, 837 A.2d 1255, 1261 (Pa. Super.

1999) (stating that all Commonwealth evidence in a criminal proceeding is

generally prejudicial to the defendant, but relevant evidence is to be excluded

only when it is unfairly prejudicial); see also id. (“[A] trial court is not

required to sanitize the trial to eliminate all unpleasant facts from the jury’s

consideration where those facts form part of the history and natural

development of the events and offenses with which [a] defendant is

charged.”) (citation omitted); see also Commonwealth v. Tyson, 119 A.3d

353, 359 (Pa. 2015) (unfair prejudice means “a tendency to suggest decision

on an improper basis or to divert the jury’s attention away from its duty of

weighing evidence impartially”).

The controlled purchases admitted at trial were relevant to establish the

history and natural development of the facts. They formed an integral part of

the criminal investigation because they provided the evidentiary basis for the

car stop of Appellant and the police referred to them in the affidavits of

probable cause for the search warrants for Appellant’s barbershop and his

banking recordings. Evidence of these purchases informed the jury about the

course of the investigation that resulted in Appellant’s arrest and thus were

properly admitted under the res gestae exception to the general prohibition

on admitting prior bad acts evidence. See Commonwealth v. Dillon, 925

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A.2d 131, 139 (Pa. 2007) (res gestae evidence admitted to explain events

surrounding criminal conduct so that the case presented to a jury did not

appear in a vacuum).

This evidence was also relevant and admissible under Rule 404(b)(2)

for the purpose of establishing that Appellant had possession of the cocaine

stash recovered from his barbershop and the intent to deliver it, and thus

counter his defense which suggested that other employees or patrons in the

barbershop had conducted the controlled drug sales and caused him to be in

possession of some of the recovered buy money. See Commonwealth v.

Echevarria, 575 A.2d 620, 623 (Pa. Super. 1990) (evidence that informant

purchased cocaine from Echevarria on two occasions shortly before

Echevarria’s arrest for third sale was relevant to charge of possession of

cocaine with intent to deliver). Moreover, the evidence was admissible under

Rule 404(b) where the controlled buys were closely linked temporally, in the

days prior to the car stop and within an overall period of time of less than

sixty days prior to the search warrant executions, and geographically, where

the evidence suggested that Appellant’s barbershop was being used as a site

for drug sales. See Commonwealth v. Kinard, 95 A.3d 279, 286 (Pa. Super.

2014) (en banc) (holding that the trial court properly exercised its discretion

in admitting evidence of Kinard’s subsequent bad acts, i.e., inculpatory prison

phone calls discussing ongoing drug transactions, where the probative value

of the calls, though “highly prejudicial,” “outweighed the potential for

prejudice in that it was circumstantial evidence of appellant’s intent, proof of

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his motive, and identity as the actor in the [prior] PWID charge.”); see also

Commonwealth v. Clayton, 483 A.2d 1345, 1349 (Pa. 1984) (admitting

subsequent bad act evidence of a shooting where the offenses were

substantially similar, and stating that “the time span of four months between

the two incidents [does not] render this evidence inadmissible in view of the

numerous similarities between the incidents.”).

Although the prior bad act evidence was certainly prejudicial, the

prejudice was ameliorated by a cautionary instruction that the trial court

issued to the jury, see N.T. 3/25/21, 87-88, explaining the limited purposes

for which it could consider the evidence. See Echevarria, 575 A.2d at 623-

24 (holding that any possible prejudicial effect of testimony concerning prior

controlled drug sales was cured by an instruction to a jury advising that that

evidence should only be used for determining Echevarria’s possession of a

controlled substance and his intent to deliver it); Commonwealth v. Cash,

137 A.3d 1262, 1280 (Pa. 2016) (stating that “[i]t is well settled that the jury

is presumed to follow the trial court’s instructions[.]”). The use of the limiting

instruction, along with the initial limitation that only evidence concerning the

recovered controlled buy money would be admitted, leads us to the conclusion

that Appellant was not unfairly prejudiced by the partial grant of the

Commonwealth’s motion in limine and the trial court did not abuse its

discretion by admitting the evidence of the three controlled drug sales.

In his last issue, Appellant alleges that the trial court erred by overruling

his objection to the admission of evidence concerning the recovery of

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ammunition and a firearms magazine.7 Appellant’s Brief at 29-31. He argues

that the ammunition and magazine evidence held no probative value where

he was not charged with firearms offenses, and an attempt by the

Commonwealth to link evidence related to firearms to drug trafficking caused

him “undue prejudice.” Id.

During his direct examination, Detective Manfredi testified, without any

objection, that the recovered evidence included, among other things,

ammunition, which was two boxes of 40-caliber Smith & Wesson brand and

two boxes of 270 Winchester brand, and a firearm magazine. N.T. 3/23/21,

180. The detective separately listed the various recovered items and

identified the recovered ammunition and magazine as “item number 12.” Id.

The prosecutor then proceeded to present the various recovered items to the

detective and marked and moved them into the evidentiary record as trial

exhibits. Id. 180-87. When the prosecutor addressed the ammunition

evidence, the detective again identified it without any objection. Id. at 187.

When the prosecutor asked the detective to open the exhibit and show the

ammunition to the jury, Appellant’s counsel raised the objection that is the

focus of this claim after the detective identified the ammunition for a third

time. Id. at 187-88. ____________________________________________

7 Appellant refers to “evidence involving firearms” as the focus of his claim but

no firearms were recovered in this case. Appellant’s Brief at 29. He cites the responses to his objection to the admission of the recovered ammunition and magazine in the discussion of his claim. Id. at 29 nn. 27-28. Accordingly, for the sake of clarity, we will refer to the evidence of the recovered ammunition and magazine as the proper focus of the claim.

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The relevant passage of the notes of testimony encompassing the ruling

on the objection included the following:

Q. I’m going to hand you Commonwealth’s Exhibit 64.

A. This is Commonwealth Exhibit 64, marked on this. This has all of the consistent case number, Donald Knupp, date, time, and location. This says, “Item 12 ammunition; 40 S&W, two boxes; 270 Win, two boxes; and a 40 cal magazine,” as it’s marked on this evidence tag and fairly consistent with Item 12 on Mr. Knupp’s inventory receipt of seized property.

Q. If you could briefly open that up and show the jury the ammunition.

A. I’m not being nice anymore. I will just start setting them here. So this is a -- here is a box of 40 Smith & Wesson ammunition. They are bullets within, full metal jacket bullets. This is a box of 270 Win, 270 Winchester bullets, a box, and within are spent brass shell casings and live and live bullet ammunition.

[Defense counsel]: Your Honor, I would object to this evidence. Mr. Knupp is not --

[Prosecutor]: Then we’ll approach.

[Defense counsel]: He’s not sure --

[Prosecutor]: Your Honor --

The Court: Yes. Please come up.

(Whereupon, a sidebar was held.)

[Defense counsel]: I would just object to this evidence in particular. He is not charged with any firearms violations. It’s not dispositive. It’s not even probative here. It’s just prejudicial. We got a lot of evidence in here already, and I don’t know why we have to take the time on this ammunition.

[Prosecutor]: Well, Your Honor, I mean, these are all evidence that was seized from the becomes [sic]. We admitted a lot of

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evidence that he is not necessarily charged with. We didn’t charge him with the marijuana. It was admitted today. It is everything that is seized and confirms the inventory.

The Court: I understand that. [Defense counsel], I don’t think is disputing that. But what is the relevance to the actual crime charged?

[Prosecutor]: Because the search was conducted certain items were seized by officers. This officer indicated, and later an officer is going to testify that later individuals who are dealing in drugs have firearms and ammunition and things of that nature. And that’s part of this case.

[Defense counsel]: I don’t see how it’s probative at all to anything here.

[Prosecutor]: That’s not the point.

The Court: Okay. To the extent that [the prosecutor] says that she will have some expert testimony with respect to that matter, then the Commonwealth is permitted. I will allow it.

[Defense counsel]: Note my objection please.

The Court: Your objection is noted.

N.T. 3/23/21, 187-89.

The Commonwealth’s expert witness later testified that firearms were

among the items he expected to find when executing search warrants in drug

investigations:

A. Well, obviously, narcotics. We look for large quantities of United States currency, communication devices, packaging material, cut agents, firearms. Because it’s a cash business, it’s a cutthroat business, drug dealers rub off on one another. And people know that a person has large amounts of cash, wants to rob them and take their cash. So a lot of times, narcotics dealers possess firearms. So we always look for firearms in these searches.…

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N.T. 3/24/21, 90. The expert subsequently addressed the recovered

ammunition in his discussion as to the things he examined while forming his

opinion as to Appellant’s intent to deliver the recovered cocaine. Id. at 93-

94 (“We also, which I didn’t -- we found ammunition. However, we didn’t find

any firearms, and that would be indicative of possible firearm presence for the

purpose of protecting the narcotics.”).

The trial court advises us that it found the ammunition evidence was

relevant to the drug charges at issue and was not so prejudicial that it needed

to be excluded from trial:

Based upon th[e expert] testimony, the trial court is unable to conclude that the prejudicial value of testimony regarding ammunition located in [Appellant’s] apartment outweighed its probative value. This Court finds the firearm evidence to be relevant because the ammunition taken in conjuncture with the drug charges that have been filed against [Appellant]. Law enforcement’s expertise and experience has taught them that ammunition, and firearms, are associated with illicit drug trafficking.

Trial Court Opinion, 1/4/22, 7.

First, we are presented with the question of whether the evidence

concerning the ammunition and magazine was relevant where Appellant was

facing charges only involving the possession of controlled substances and drug

paraphernalia, and was not being tried for any firearms offenses. Appellant’s

Brief at 29-30. Pa.R.E. 401 provides that “[e]vidence is relevant if: (a) it has

any tendency to make a fact more or less probable than it would be without

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the evidence; and (b) the fact is of consequence in determining the action.”

“Evidence that is not relevant is not admissible.” Pa.R.E. 402.

Here, all the facts and circumstances surrounding Appellant’s possession

of the recovered drugs were relevant to determine whether he had the intent

to deliver those drugs. In re R.N., 951 A.2d 363, 367 (Pa. Super. 2008). On

sufficiency review, our appellate courts have considered the presence of a

firearm as a relevant factor for consideration of a drug possessor’s intent to

deliver. See Commonwealth v. Ratsamy, 934 A.2d 1233, 1238 (Pa. 2007);

In re R.N., 951 A.2d at 367. We have additionally treated the presence of

ammunition as a relevant consideration for determination of that intent

element. See Commonwealth v. Watley, 81 A.3d 108, 115 (Pa. Super.

2013) (en banc) (observing that the determination of whether a person

possesses a drug with intent to deliver is based upon the totality of

circumstances, including whether police found firearms and ammunition in

close proximity to drugs).

Our treatment of firearms and ammunition during sufficiency review for

charges of possession of controlled substances with intent to deliver naturally

leads to the conclusion that the ammunition evidence in the instant case was

relevant for admissibility purposes. This conclusion is consistent with the

theory addressed in the Commonwealth’s proffered expert testimony: if one

stores firearms and ammunition in close proximity to drugs, it makes it more

probable that the drugs were possessed with the intent for sale because the

firearms and ammunition may be used for, among other things, protecting the

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illicit stash of contraband and the proceeds grossed from their sale, which in

most cases will be sums of cash. Because the presence of the ammunition

and the magazine and their proximity to the recovered drugs were proper

considerations for the trier of fact to determine Appellant’s intent to deliver,

we reject Appellant’s assertion that that evidence was irrelevant.

In the alternative, Appellant argues that the evidence of the ammunition

and the magazine caused him “undue prejudice” and should have been

excluded pursuant to Pa.R.E. 403 (“The court may exclude relevant evidence

if its probative value is outweighed by a danger of … unfair prejudice.”).

Appellant’s Brief at 29-31. “Unfair prejudice,” in the context of applying Rule

403, means “a tendency to suggest decision on an improper basis to divert

the jury’s attention away from its duty of weighing the evidence impartially.”

Commonwealth v. Kane, 188 A.3d 1217, 1228 (Pa. Super. 2018) (citation

omitted); see also Pa.R.E. 403, cmt. Evidence “will not be prohibited merely

because it is harmful to the defendant. [E]xclusion is limited to evidence so

prejudicial that it would inflame the jury to make a decision upon something

other than the legal propositions relevant to the case.” Commonwealth v.

Kouma, 53 A.3d 760, 770 (Pa. Super. 2012) (citation omitted; brackets in

original).

Appellant argues that the evidence concerning the ammunition and the

magazine “served no purpose other than to inflame the jury against” him, that

“[t]he mere suggestion that the presence of firearms indicates drugs

trafficking is inflammatory,” and that the Commonwealth’s expert testimony

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“misled the jury into placing significant weight on evidence involving [non-

existent] firearms.” Appellant’s Brief at 30-31. We are unable to agree with

Appellant’s assertions. His first two points are contradicted by our relevancy

analysis. The last point is contradicted by the record. The recovered

ammunition and magazine were not a focal point of the Commonwealth’s

case-in-chief. That evidence was only briefly addressed in Detective

Manfredi’s testimony identifying the items recovered from Appellant’s

barbershop and apartment, and the importance or relevance of that evidence

or firearms in general were only addressed in the above-cited portions of the

Commonwealth’s expert testimony. N.T. 3/23/21, 180, 187, 189-90; N.T.

3/24/21, 90, 93-94. The expert’s suggestions that the presence of firearms

was a relevant consideration for determining Appellant’s intent to traffic and

that the presence of ammunition was “indicative of possible firearm presence”

were not misleading and did not appear to serve the purpose of inflaming the

jury or persuading them to disregard any legal proposition. In these contexts,

we do not agree that the probative value of the ammunition evidence was

outweighed by the danger of unfair prejudice or that the trial court abused its

discretion by admitting the evidence concerning the ammunition and the

magazine.

We would be remiss if we concluded our review without addressing the

fact that Appellant’s sentence contains an obvious defect rendering it illegal.

Because there is no apparent issue with our jurisdiction for this appeal, we

may address the legality of Appellant’s sentence sua sponte. See

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Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013) (“As long

as the reviewing court has jurisdiction, a challenge to the legality of the

sentence is non-waivable and the court can even raise and address it sua

sponte.”); see also Commonwealth v. Alston, 212 A.3d 526, 528 (Pa.

Super. 2019) (“A challenge to the legality of sentence is a question of law;

our standard of review is de novo and our scope of review is plenary.”).

The bills of information make it clear that Appellant’s drug possession

charges only involved his possession of cocaine. Bills of Information, 9/17/18,

1. While the trial evidence referenced the separate recovery of quantities of

cocaine, marijuana, and pills, see N.T. 3/23/21, 179-80 (referring to items 1,

11, and 12), the Commonwealth only proceeded to a verdict on the drug

charges based on Appellant’s possession of the cocaine seized on August 9,

2019. N.T. 3/25/21, 88 (trial court’s jury instructions: “… Mr. Knupp is

charged with possession of a controlled substance, that being cocaine. He is

also charged with the intent to deliver a controlled substance, that being

cocaine as well.”). At sentencing, however, the trial court imposed concurrent

imprisonment terms for both drug possession charges. Sentencing Order,

6/18/21, 1.

Whether convictions merge for sentencing purposes is a question

implicating the legality of a sentence. Commonwealth v. Baldwin, 985 A.2d

830, 833 (Pa. 2009). Our sentencing merger statute at 42 Pa.C.S. § 9765

prohibits merger unless two distinct facts are present: (1) the crimes arise

from a single criminal act; and (2) all of the statutory elements of one of the

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offenses are included in the statutory elements of the other. Here, it is obvious

that, for sentencing purposes, Appellant’s possession of cocaine conviction

should have merged with his possession of cocaine with intent to deliver

conviction. See Commonwealth v. Murphy, 592 A.2d 750, 753 (Pa. Super.

1991) (“The trial court should have merged for sentencing purposes the

crimes of possession of controlled substances and possession with intent to

deliver since both charges stemmed from the same act of possession.”). As

such, we must vacate Appellant’s six-to-twelve-month imprisonment sentence

for simple possession of cocaine. Because the simple possession of cocaine

sentence was designated to run concurrent with Appellant’s longer sentence

for possession of cocaine with intent to deliver, our disposition does not disturb

the trial court’s overall sentencing scheme and there is no need to remand

this case for resentencing. See Commonwealth v. Martinez, 153 A.3d

1025, 1033 (Pa. Super. 2016) (“We need not remand for re-sentencing,

however, as we have not upset the sentencing scheme consisting entirely of

concurrent sentences.”).

Judgment of sentence for knowing or intentional possession of a

controlled substance vacated. Judgments of sentence for possession of

controlled substance with intent to deliver and possession of drug

paraphernalia affirmed. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/22/2023

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