Com. v. Sledge, A.

• Court: Superior Court of Pennsylvania
• Decided: May 23, 2023
• Docket: 673 WDA 2022
• Status: Unpublished

Opinion

J-A06015-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANDRA RYAN SLEDGE, SR. : : Appellant : No. 673 WDA 2022

Appeal from the Judgment of Sentence Entered February 25, 2022 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0002693-2019

BEFORE: OLSON, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY OLSON, J.: FILED: MAY 23, 2023

Appellant, Andra Ryan Sledge, Sr., appeals from the February 25, 2022

judgment of sentence entered in the Court of Common Pleas of Fayette County

that imposed an aggregate sentence of 4 to 8 years’ incarceration to be

followed by 12 months’ probation. On January 6, 2022, a jury convicted

Appellant of manufacture, delivery, or possession with the intent to

manufacture or deliver a controlled substance (Count 1), possession of a

controlled substance (Count 2), and possession with the intent to use drug

paraphernalia (Count 3).1 We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. 780-113(a)(30), (16), and (32), respectively. J-A06015-23

The trial court summarized the factual history as follows:

On June 28, 2019, the Fayette County [Drug] Task Force [(“the task force”)] assisted by police officers from the City of Connellsville Police Department served a search warrant for the property located at [] North Pittsburgh Street in Connellsville, Pennsylvania, known as "The Studio".[2] Members of the task force arrived at the location and were [granted] entry by [Appellant]. When the [task force] officers entered the residence[,] Appellant's brother[] was present. In the back room of the residence, the task force [officers] located a [shoebox] with several baggies of varying sizes[, which contained] crack cocaine and [United States] currency. The sum of [$2,300.00] was in the [shoebox]. The [shoebox] also contained various papers with [] Appellant's name on them and a [prescription] bottle of medicine also with his name on it. []Appellant was found to have [$502.00] on his person. During the search, measuring cups, pots[,] and pans were found on the counters in the kitchen area with white residue in them. The task force located [six cellular telephones] in the residence.

Trial Court Opinion, 7/29/22, at 2 (record citations and extraneous

capitalization omitted; paragraph formatting modified).3

On January 6, 2022, a jury convicted Appellant of the aforementioned

offenses. On February 25, 2022, the trial court sentenced Appellant to 4 to 8

years’ incarceration, to be followed by 12 months’ probation, on the

manufacture, delivery, or possession with the intent to manufacture or deliver

a controlled substance conviction. Sentencing Order (Count 1), 2/25/22. On ____________________________________________

2 We omitted the specific numerical address of the subject property relevant to this appeal.

3For ease of reference, we have assigned page numbers to the trial court’s unpaginated opinion.

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Appellant’s two remaining convictions, the trial court imposed no further

penalty. Sentencing Order (Counts 2 and 3), 2/25/22.4

On February 25, 2022, Appellant filed a post-sentence motion,

requesting a new trial. Appellant asserted that he was entitled to a new trial

because, inter alia, (1) the Commonwealth failed to provide “the search

warrant for the cellular [tele]phones, or the information extracted from the

cellular [tele]phones” to Appellant during pre-trial discovery in violation of

Pennsylvania Rule of Criminal Procedure 573 and Brady v. Maryland, 373

U.S. 83 (1963); and (2) the trial court abused its discretion in denying

Appellant’s requests for a mistrial on the grounds the Commonwealth violated

Appellant’s Fifth Amendment right to remain silent when Detective James

Tyler Garlick (“Detective Garlick”), on cross-examination, testified that

Appellant did not deny he was selling drugs when asked by the investigating

police officers, and the Commonwealth mentioned Appellant’s silence during

its closing argument. See Post-Sentence Motion, 2/25/22. On May 17, 2022,

4We note that two separate sentencing orders were entered on the trial court docket.

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the trial court denied Appellant’s post-sentence motion.5 This appeal

followed.6

Appellant raises the following issues for our review:

[1.] Did the trial court err in denying Appellant's motion to suppress all evidence found at [the North] Pittsburgh Street [property in] Fayette County, Pennsylvania, based upon the [warrant’s lack of specificity as to which particular] unit [would] be searched?

[2.] Did the trial court abuse its discretion in failing to grant Appellant's motion for a mistrial based upon the Commonwealth's failure to serve the search warrant for the cellular [tele]phones and by not providing [] Appellant with the results of the search or the supplemental reports of the affiant?

[3.] Did the Commonwealth violate Appellant's guaranteed right of access to evidence under the due process clause of the [United] States Constitution by failing to provide the search warrant for the cellular [tele]phones, the results of the search of the [cellular tele]phones, or the supplemental reports of the affiant?

[4.] Did the trial court abuse its discretion in failing to grant Appellant's motion for a mistrial based upon [Detective] Garlick's comments [regarding] Appellant's post[-]arrest silence and the [Commonwealth’s] reiteration of Appellant's post-arrest silence in its closing argument?

[5.] Did the trial court abuse its discretion in failing to grant Appellant's motion for a mistrial based upon the testimony of Detective Thomas Patton that he was assisting ____________________________________________

5 On March 31, 2022, Appellant filed a brief in support of his post-sentence motion. On April 8, 2022, the Commonwealth filed a memorandum of law in opposition to Appellant’s post-sentence motion. On April 13, 2022, the trial court entertained argument on the matter.

6 Both Appellant and the trial court complied with Pennsylvania Rule of Appellate Procedure 1925. See Pa.R.A.P. 1925.

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[Detective] Garlick in a drug investigation into illegal narcotics being sold out of the premise[s] when Appellant was not charged with said crime nor was there any evidence presented that said crime occurred?

Appellant’s Brief at 8 (extraneous capitalization omitted).

Appellant’s first issue challenges the trial court’s order denying his

omnibus pre-trial motion, which sought to suppress physical evidence

uncovered during a search of the North Pittsburgh Street property. Appellant’s

Brief at 12-15.

“Once a motion to suppress evidence 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, 1047-1048 (Pa. 2012);

see also Pa.R.Crim.P. 581(H) (stating, “[t]he Commonwealth shall have the

burden of going forward with the evidence and of establishing that the

challenged evidence was not obtained in violation of the defendant's rights”).

Our standard of review for an order denying a motion to suppress is

well-established.

[We are] limited to determining whether the suppression court's factual findings are 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 [suppression] court's legal conclusions are erroneous. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the

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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 [suppression court] are subject to our plenary review.

Commonwealth v. Mbewe, 203 A.3d 983, 986 (Pa. Super. 2019) (quotation

marks omitted), quoting Commonwealth v. Kemp, 195 A.3d 269, 275

(Pa. Super. 2018).

A review of the record demonstrates that on February 14, 2020,

Appellant filed an omnibus pre-trial motion. In his omnibus motion, Appellant

asserted that the physical evidence uncovered during the search of the North

Pittsburgh Street property should be suppressed because the search warrant

lacked sufficient specificity as to the areas of the premises where probable

cause supported the search. Omnibus Motion, 2/14/20, at ¶¶13-16.

Appellant averred that the North Pittsburgh Street building “is a mixed

residential and commercial property comprised of a former convenience store

in the rear, facing Decatur Avenue, a front portion [of the building,] and two

apartments in the upstairs” with the “front and rear [portions of the building

serving as] common areas for the apartments and either entrance [being]

used to access the apartments.” Id. at ¶¶8-9. Appellant argued that “[t]he

search warrant in question seeks [authority] to search the entire building

despite the fact that the affidavit of probable cause states that [police] officers

only viewed the [c]onfidential [i]nformant enter and exit through [a certain

apartment door in the North Pittsburgh Street building.]” Id. at ¶16.

Appellant asserted that the police officers “did not have probable cause to

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search the entire building based upon the facts set forth in the [a]ffidavit of

[p]robable [c]ause and, as a result, the search warrant[, and all items seized

as a result of the search,] must be suppressed.” Id. at ¶¶17-18.

It is well-established that for a search warrant to be constitutionally valid, the issuing authority must decide that probable cause exists at the time of its issuance, and make this determination on facts described within the four corners of the supporting affidavit, and closely related in time to the date of issuance of the warrant.

Commonwealth v. Korn, 139 A.3d 249, 253 (Pa. Super. 2016), appeal

denied, 159 A.3d 933 (Pa. 2016); see also Pa.R.Crim.P. 203(D) (stating, “at

any hearing on a motion for the return or suppression of evidence, or for

suppression of the fruits of evidence, obtained pursuant to a search warrant,

no evidence shall be admissible to establish probable cause other than the

affidavits provided for in [Pennsylvania Rule of Criminal Procedure 203(B)]”).

Pennsylvania Rule of Criminal Procedure 203(B) states that, “No search

warrant shall issue but upon probable cause supported by one or more

affidavits sworn to before the issuing authority in person or using advanced

communication technology. The issuing authority, in determining whether

probable cause has been established, may not consider any evidence outside

the affidavits.” Pa.R.Crim.P. 203(B). “[P]robable cause exists when, based

upon a totality of the circumstances set forth in the affidavit of probable cause,

there is a fair probability that evidence of a crime will be found in a particular

place.” Korn, 139 A.3d at 254, citing Commonwealth v. Lyons, 79 A.3d

1053 (Pa. 2013).

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Aside from the requirement that the search warrant be supported by

probable cause, the search warrant, to be constitutionally sound, must also

describe the place to be searched and the items to be seized with specificity.

Korn, 139 A.3d at 253; see also Commonwealth v. Turpin, 216 A.3d 1055,

1067 (Pa. 2019). “The place to be searched must be described precisely

enough to enable the executing officer to ascertain and identify, with

reasonable effort, the place intended, and where probable cause exists to

support the search of the area so designated, a warrant will not fail for lack of

particularity.” Turpin, 216 A.3d at 1067 (brackets omitted). “[W]here a

search warrant adequately describes the place to be searched and the items

to be seized[,] the scope of the search extends to the entire area in which the

object of the search may be found.” Id. at 1069 (original quotation marks

and original brackets omitted). Moreover, our “Supreme Court has held a

‘practical, common-sense’ approach should be taken in determining whether

the place to be searched is specified with sufficient particularity.” Korn, 139

A.3d at 253, citing Commonwealth v. Carlisle, 534 A.2d 469 (Pa. 1987);

see also Commonwealth v. Leed, 186 A.3d 405, 415 (Pa. 2018) (stating

that, “both the magistrate in his or her pre-search determination, and the trial

court in its post-search review must read probable cause affidavits in a

common[-]sense fashion to ascertain whether probable cause exists” (citation

and footnote omitted)).

In the instant matter, the trial court, on May 19, 2020, denied

Appellant’s omnibus motion, succinctly stating that “the information contained

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in the search warrant affidavit is sufficient to establish probable cause[.]” Trial

Court Order, 5/19/20. In a supplemental opinion, filed July 11, 2022, the trial

court explained,

In the [omnibus motion,] Appellant claimed that the search warrant lacked specificity because the residence is part of a multi-unit complex, and the warrant listed both house numbers in the address. Appellant argued that the warrant should have only included [the single] address [where] the police saw the confidential informant enter and exit when conducting the investigation. Appellant claims that[,] therefore[,] the warrant should not be allowed for the entirety of the complex due to the confidential informant only entering and exiting through one door of the complex. However, in the affidavit of probable cause for the warrant it stated that the criminal activity was taking place at the location of “N. Pittsburgh St. front and rear.”

. . . According to the affidavit, the confidential informant in the investigation [identified] the location of the drug activity as “[the] N. Pittsburgh St.” [property.] The [confidential] informant stated that the residence was the location of drug trafficking and that [the confidential informant] purchased the drugs from Appellant. The confidential informant did not state that the criminal activity was taking place in only one of the units. Furthermore, the affidavit refers to the residence of [] Appellant as being [“the N. Pittsburgh St. property,] front and rear.” Therefore, there is no ambiguity as to the location of the residence.

Trial Court Opinion, 7/11/22, at 3-4.

A review of the search warrant demonstrates that the items to be

searched for, and potentially seized, were described as,

Controlled substances, drugs, paraphernalia, records of drug transactions and indicia, and [United States] currency in proximity of any illicit drugs. Specifically, “CRACK” COCAINE, scales, baggies, safes, and other items used in violation of the Controlled Substances, Drugs, Device, and Cosmetic Act. Items used to protect and facilitate a drug distribution business such as weapons, pagers, receipts, owe sheets, and cellular [tele]phones,

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computers, hard drives, any and all electronic storage mediums[,] and contents therein.

Search Warrant, 6/28/19, at 1, 6. The search warrant described the premises

to be searched as,

[] N[.] Pittsburgh St[.] (front and rear) Connellsville, Fayette County, Pennsylvania, the front of which is a two-story building with red stone (first story) and tan siding (second story) facing west on the eastern side of N[.] Pittsburgh St[.], and the rear of which (attached with access to the front) is a single-story blue brick building with glass double doors known as “The Studio,” facing east on the western side of Decatur Ave[.] across from [a senior citizens center. Appellant], known as “Drey,” age 34, and those not yet known to your affiant to reside, frequent, or otherwise stay in the residence located at [] N[.] Pittsburgh St[.], front and rear, known as The Studio.

Id. at 1, 7. The affidavit of probable cause set forth, in pertinent part, the

following averments in support of establishing probable cause:

6. In June [] 2019[,] while working for the Fayette County [Bureau of Investigations, affiant,] along with [another police detective,] investigated a controlled drug transaction conducted at [] N[.] Pittsburgh St[.], front and rear, Connellsville, Fayette County, Pennsylvania. At this time[,] a [confidential informant] arranged to purchase “CRACK” COCAINE from inside that residence, occupied [by Appellant.] The [confidential informant] and his/her belongings were searched and found to be free of all monies and contraband. The [confidential informant] was then given official funds to make the purchase. The [confidential informant] was kept under constant surveillance from our meeting location until he/she arrived at [] N[.] Pittsburgh St[.], front and rear. The [confidential informant] entered through the eastern glass double doors of the building, facing Decatur Ave[.], and remained inside for a short period of time before exiting those same doors. [Police detectives] kept the [confidential informant] in our view as he/she returned to our meeting location where the [confidential informant] handed over a small plastic baggie corner of suspected CRACK COCAINE. The [confidential informant] and his/her belongings were again searched and found to be free of all

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monies and contraband. The [confidential informant] advised [police detectives] that he/she entered the residence and met with [Appellant], and the [confidential informant] handed [Appellant] the money who then retrieved the CRACK COCAINE from a small black box behind the television while in the living room of the residence, which is also attached to the double doors used as an entrance.

7. Within the past 48 hours of application of this search warrant, during an investigation involving [another police detective and affiant], a [confidential informant] was used in making a controlled buy from the residence of [Appellant] at [] N[.] Pittsburgh St[.], front and rear. The [confidential informant] was searched and found to be free of monies and controlled substances. The [confidential informant] was provided with official funds and kept under constant surveillance by [police] officers as he/she arrived at [] N[.] Pittsburgh St[.], front and rear. The [confidential informant] again entered through the eastern glass double doors of the building, facing Decatur Ave[.], and remained inside for a short period of time before exiting those same doors. [Police detectives] kept the [confidential informant] in our view as he/she returned to our meeting location where the [confidential informant] handed over multiple small plastic baggie corners of suspected “CRACK” COCAINE. The [confidential informant] and his/her belongings were again searched and found to be free of all monies and contraband. The [confidential informant] advised [police detectives] that he/she entered the residence and met with [Appellant], and the [confidential informant] handed [Appellant] the money who then retrieved the CRACK COCAINE from a small black box behind the television while in the living room of the residence.

Id. at 3-4.

The thrust of Appellant’s argument in his omnibus motion was that,

because the premises was a multi-unit building comprised of two commercial

units and two residential units, the averments contained in the affidavit of

probable cause failed to set forth sufficient facts to establish probable cause

to search each unit (commercial and residential) because the confidential

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informant only entered and exited through the double glass doors in the rear

of the building. We disagree.

We concur with the trial court, and the record supports, that the affidavit

of probable cause identified the property to be searched as “[] N. Pittsburgh

St., front and rear” and described the property as consisting of a complex

comprised of a two-story building in the “front” affronting North Pittsburgh

Street and a one-story building in the “rear” affronting Decatur Avenue. See

Search Warrant Application, 6/28/19, at Affidavit of Probable Cause ¶4.

(describing the premises to be searched as “[] N[.] Pittsburgh St[.], front and

rear”). The affidavit of probable cause described the rear portion of the

complex as being attached to, and with access to, the front portion of the

complex. Id. The affidavit of probable cause further stated that Appellant

was the occupant of the “residence” located at “[] N[.] Pittsburgh St[.], front

and rear.”

In the affidavit of probable cause, the affiant stated that he observed

the confidential informant enter and exit the building through the “double

glass doors,” which, according to the affidavit of probable cause, were located

in the one-story structure in the rear of the property. The confidential

informant informed the affiant that, after handing Appellant the official funds,

the confidential informant witnessed Appellant retrieve a small plastic baggie

containing what was believed to be a controlled substance from “behind the

television while in the living room of the residence.” Although the confidential

informant does not identify the specific location of the “living room of the

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residence,” i.e. whether it was located in one of the commercial units or in

one of the residential units, it is clear from the description of the premises

that an individual entering the one-story portion of the structure located in

the rear of the property had access to the other units, both commercial and

residential, in the structure and that Appellant was the “resident” or had

apparent access to the entire property. Therefore, based upon the

circumstances of the case sub judice, there were sufficient facts set forth in

the affidavit of probable cause to establish that controlled substances, and

other indicia of drug trafficking, were located in all portions of the building

occupied by Appellant.7 As such, we discern no error in the trial court order

7 When the application is read as a whole in a common-sense fashion, as is required by the issuing authority, the term “residence” in the case sub judice encompasses the entire complex. At the suppression hearing, Appellant presented a “commercial/industrial review document” setting forth information relating to the North Pittsburgh Street property utilized by Fayette County to assess the value of the property for, inter alia, tax purposes. See Defendant’s Exhibit 1. This evidence, however, cannot be relied on by the issuing authority, nor can it be relied on by the trial court in disposing of Appellant’s omnibus motion for the purpose of assessing whether the issuing authority erred in determining that probable cause existed for the issuance of the search warrant. See Trial Court Opinion, 7/11/22, at 3-4. Probable cause must exist within the four corners of the affidavit.

Moreover, the fact that the building was subdivided into two residential units and two commercial units was not in dispute and did not prevent the issuing authority, at the time he or she reviewed the affidavit of probable cause and the application for a search warrant, from viewing the complex as a single unit over which Appellant exercised control for purposes of storing, processing, or packaging controlled substances.

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denying Appellant’s omnibus motion to suppress the physical evidence seized

from the “[] N. Pittsburgh St., front and rear” property.

Appellant’s second and third issues challenge the trial court’s denial of

Appellant’s request for a new trial based upon discovery violations pursuant

to Pennsylvania Rule of Criminal Procedure 573, as well as due process

violations pursuant to Brady, supra, and stemming from the non-disclosure

of evidence potentially useful to the defense.8 Appellant’s Brief at 16-22.

8 We note that, within the context of his second issue, Appellant conflates a request for a mistrial with a motion for a new trial. See Appellant’s Brief at 16-19 (asking this Court to review the trial court’s denial of a “motion for a mistrial” based upon a discovery violation).

Recently, our Supreme Court explained the distinction between a request for a mistrial and a motion for a new trial, in pertinent part, as follows:

[A] party's request for a mistrial [] is not a request for a new trial. A mistrial is a step removed from a new trial, precluding the inference that a request for a mistrial is a request for a new trial. Often, a mistrial results in an order for a new trial, but that is not categorically true.

...

[I]n deciding whether a mistrial is warranted, the [trial] court is not inquiring whether the asserted basis for relief warrants a new trial. Instead, the [trial] court inquires whether the alleged prejudicial event deprived the defendant of a fair trial. Conversely, when ruling upon a motion for a new trial, the [trial] court's inquiry asks specifically whether the asserted basis for relief entitles the movant to a new trial.

Commonwealth v. Wardlaw, 249 A.3d 937, 949 (Pa. 2021) (citation omitted).

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Typically, we review a trial court’s order denying a motion for a new trial

under an abuse of discretion standard. Commonwealth v. Bell, 167 A.3d

744, 746 (Pa. Super. 2017), aff’d, 211 A.3d 761 (Pa. 2019), cert. denied, 140

S.Ct. 934 (2020). In so doing,

we must review the [trial] court's alleged mistake and determine whether the [trial] court erred and, if so, whether the error resulted in prejudice necessitating a new trial. If the alleged mistake concerned an error of law, we will scrutinize for legal error. Once we determine whether an error occurred, we must then determine whether the trial court abused its discretion in ruling on the request for a new trial.

Bell, 167 A.3d at 746 (citation and original brackets omitted); see also

Commonwealth v. Smith, 955 A.2d 391, 394 (Pa. Super. 2008) (en banc)

(stating that, “decisions involving [alleged violations of the rules of] discovery

in criminal cases lie within the discretion of the trial court”). When the error

involves an alleged Brady violation, however, such a challenge presents a

question of law, for which our standard of review is de novo and our scope of

review is plenary. Commonwealth v. Bagnell, 235 A.3d 1075, 1084 (Pa.

2020).

Here, Appellant asserts that the Commonwealth violated Rule 573 and

his due process rights pursuant to Brady, supra, and its progeny, when it

failed to disclose the existence of a search warrant for the six cellular

telephones seized on June 28, 2019, as well as the results and supplemental

reports concerning “the search” of those cellular telephones. Appellant’s Brief

at 16-22. Appellant argues that the Commonwealth “highlighted throughout

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its case-in-chief that the cellular [tele]phones themselves were indicative of

drug trafficking” and, as such, the “fact that no evidence of drug trafficking

existed on the [cellular telephones] is exculpatory.” Id. at 21. Appellant

contends that “this information was [withheld] by the Commonwealth” and

that he was “prejudiced by the Commonwealth withholding the search warrant

for the cellular [tele]phones, the data extracted from the cellular [tele]phones,

and the supplemental reports.” Id. Appellant asserts that a new trial is the

only appropriate remedy for the non-disclosure of this evidence because the

existence of a search warrant was not disclosed “until near the conclusion of

the trial” and the Commonwealth did not provide the results of the search of

the cellular telephones to Appellant until nine months after the conclusion of

the trial. Id. at 19.

In Brady, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution. The [United States] Supreme Court subsequently held that the duty to disclose such evidence is applicable even if there has been no request by the accused, and that the duty encompasses impeachment evidence as well as directly exculpatory evidence. On the question of materiality, the [United States Supreme] Court [] noted that such evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. The materiality inquiry is not just a matter of determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury's conclusions. Rather, the question is whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Thus, there are three necessary components that demonstrate a violation of the Brady

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strictures: the evidence was favorable to the accused, either because it is exculpatory or because it impeaches; the evidence was suppressed by the prosecution, either willfully or inadvertently; and prejudice ensued.

Commonwealth v. Burke, 781 A.2d 1136, 1141 (Pa. 2001) (citations and

quotation marks omitted); see also Commonwealth v. Brown, 200 A.3d

986, 994 (Pa. Super. 2018). “Exculpatory evidence favorable to the accused

is not confined to evidence that reflects upon the culpability of the defendant.

Exculpatory evidence also includes evidence of an impeachment nature that

is material to the case against the accused.” Commonwealth v. Kinard, 95

A.3d 279, 289 (Pa. Super. 2014). “Pursuant to Brady and its progeny, the

prosecutor has a duty to learn of all evidence that is favorable to the accused

which is known by others acting on the government's behalf in the case,

including the police. Thus, the Commonwealth's obligation extends to

exculpatory evidence in the files of police agencies of the same government

bringing the prosecution.” Commonwealth v. Santos, 176 A.3d 877, 883

(Pa. Super. 2017) (citations and original quotation marks omitted), appeal

denied, 189 A.3d 986 (Pa. 2018).

Pennsylvania Rule of Criminal Procedure 573, in pertinent part, states,

Rule 573. Pretrial Discovery and Inspection

(B) Disclosure by the Commonwealth.

(1) Mandatory. In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant's attorney all of the following requested items or information, provided they are material to the instant case. The

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Commonwealth shall, when applicable, permit the defendant's attorney to inspect and copy or photograph such items.

(a) Any evidence favorable to the accused that is material either to guilt or to punishment, and is within the possession or control of the attorney for the Commonwealth;

(b) any written confession or inculpatory statement, or the substance of any oral confession or inculpatory statement, and the identity of the person to whom the confession or inculpatory statement was made that is in the possession or control of the attorney for the Commonwealth;

(c) the defendant's prior criminal record;

(d) the circumstances and results of any identification of the defendant by voice, photograph, or in-person identification;

(e) any results or reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant that are within the possession or control of the attorney for the Commonwealth;

(f) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence; and

(g) the transcripts and recordings of any electronic surveillance, and the authority by which the said transcripts and recordings were obtained.

(D) Continuing Duty to Disclose. If, prior to or during trial, either party discovers additional evidence or material previously requested or ordered to be disclosed by it, which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party shall promptly notify the opposing party or the court of the additional evidence, material, or witness.

(E) Remedy. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.

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Pa.R.Crim.P. 573(B)(1), (D), and (E). Thus, Rule 573 “requires the disclosure

of evidence by the Commonwealth where it is: (1) requested by the defendant,

(2) material to the case, and (3) within the possession or control of the

prosecutor.” Brown, 200 A.3d at 994 (citation and original quotation marks

omitted).

“Pursuant to both Brady and Rule 573, the Commonwealth [is] only

required to disclose material evidence.” Commonwealth v. Maldonodo,

173 A.3d 769, 781 (Pa. Super. 2017), appeal denied, 182 A.3d 991 (Pa.

2018). “[U]nless the omission deprived the defendant of a fair trial, there [is]

no constitutional violation requiring that the verdict be set aside[,] and absent

a constitutional violation, there [is] no breach of the prosecutor's

constitutional duty to disclose.” Maldonodo, 173 A.3d at 781. “A violation

of discovery does not automatically entitle [a defendant] to a new trial.

Rather, [the defendant] must demonstrate how a more timely disclosure

would have affected his[, or her,] trial strategy or how he[, or she,] was

otherwise prejudiced by the alleged late disclosure.” Brown, 200 A.3d at

986.

Here, in denying Appellant’s request for a new trial, the trial court

stated,

The [cellular telephones] were sent to the Allegheny County Crime Lab to extract the contents of the [cellular telephones. A police detective] testified that drug dealers generally have numerous [cellular telephones] to conduct their drug sales. Six [cellular telephones] were recovered at the property. The [police] officers obtained a search warrant for the search of the [cellular telephones] but failed to provide [a copy of the search warrant]

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to the Commonwealth or to counsel for the defense. [A police] officer testified that no evidence was retrieved from the [cellular telephones]. He later testified that the content of the [cellular telephones] had no evidentiary value and that their evidentiary value was the large number of [cellular telephones discovered] at the property.

The police failed to provide a copy of the [search] warrant and the reports related to the [cellular telephones] to either the Commonwealth or the defense[,] and[, at trial,] the [police detective] did not have the reports as part of his file. As to a Brady violation, the evidence that the crime lab was not able to extract any information from the [cellular telephones] was not exculpatory to the accused, nor was it suppressed by the Commonwealth, as the police had failed to turn it over to the Commonwealth for release. The fact that no information was extracted from the [cellular telephones] was not prejudicial to [Appellant]. The lack of information about the contents of the [cellular telephones] is neither exculpatory [nor] inculpatory evidence. It is not a violation of the mandatory discovery rule.

Trial Court Opinion, 7/29/22, at 4-5 (record citations omitted). Moreover, the

trial court explained that “the Commonwealth[‘s inability] to obtain

information from the [cellular telephones] was disclosed at trial and[,]

therefore, there was no due process violation.” Id. at 6. The trial court stated

that any prejudice Appellant may have suffered as a result of the

Commonwealth’s failure to disclose the search warrant and the reports

pertaining to the content of the cellular telephones was ameliorated by the

trial court’s jury instruction “that [the] only evidence that the jury should

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consider about the [cellular telephones] was the number of [cellular

telephones] in the residence.”9 Id. at 5.

A review of the record demonstrates that, at trial, Detective Garlick10

testified that, upon execution of a search warrant, six cellular telephones were

seized from the North Pittsburgh Street property. N.T., 1/6/22, at 138. When

asked about the significance of the six cellular telephones, Detective Garlick

explained that,

drug dealers will often communicate with people looking to purchase drugs through the use of cellular [tele]phones particularly text messages and things of that nature. Drug dealer[s] will often have numerous cellular [tele]phones because it makes it more difficult to extract [information from] them and find any evidence of communication of drug activities.

Id. Detective Garlick stated that the cellular telephones remained in police

custody except when in the custody of the Allegheny County Crime Lab where

the cellular telephones underwent an extraction process. Id. at 139, 149.

Detective Garlick explained that an extraction process “is an attempt to break

into the [cellular telephones] through [use of] the pass code and download

the contents [of the cellular telephone.]” Id. at 139. Detective Garlick further

explained that the extraction process could take an extensive period of time ____________________________________________

9 We note that the trial court’s jury instructions were not transcribed as part of the notes of testimony from Appellant’s trial. N.T., 1/6/22, at 196.

10Detective Garlick, who, at the time of trial, was employed by the City of Connellsville Police Department, as well as the Fayette County Bureau of Investigations, was admitted as an expert in the field of drug investigation. N.T., 1/5/22, at 103.

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and that, in fact, the extraction process, as of Appellant’s trial, had been

completed on only five of the six cellular telephones. Id. at 139-141. When

asked if “any relevant material” had been extracted from the five cellular

telephones, Detective Garlick replied in the negative. Id. at 139, 141.

On cross-examination, Detective Garlick stated that the cellular

telephones were subjected to the extraction process pursuant to a search

warrant, which authorized the search of the cellular telephones. Id. at 147.

Detective Garlick did not have a copy of the search warrant with him at trial

to review as part of his testimony because the police “didn’t retrieve any

evidence from the [cellular telephones.]” Id. at 148. Detective Garlick agreed

that the standard procedure was to file the search warrant with the local

magisterial district judge and to serve a copy of the search warrant on defense

counsel. Id. Detective Garlick explained his police report did not indicate that

the cellular telephones had been sent to a crime lab to undergo the extraction

process because “our administrative assistant prepares our reports for us and

the [cellular telephones] had no evidentiary value” except “the number of

[cellular telephones], the sheer number of them, had evidentiary value.” Id.

at 152. Throughout his cross-examination, Detective Garlick maintained that

the failure to mention the search warrant and the subsequent search of the

cellular telephones vis-à-vis the extraction process in the police report was

because no information was able to be extracted from the cellular telephones

and there was nothing to report. Id. at 153-154.

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Upon review of the record, we discern no error of law or abuse of

discretion in the trial court’s denial of Appellant’s request for a new trial based

upon the Commonwealth’s failure to disclose the search warrant and the

forensic reports pertaining to the search of the cellular telephones. The search

warrants are not evidence, and the search inventory (produced to Appellant)

revealed that six cellular telephones were seized from the North Pittsburgh

Street property. The discovery, and subsequent seizure, of six cellular

telephones, as documented in the search inventory, was circumstantial

evidence that the six cellular telephones were used as part of a drug operation

simply because they were recovered from a scene in which other drug

paraphernalia, as discussed infra, was discovered and drug dealers often used

numerous cellular telephones to conduct their illegal sales (a point reiterated

numerous times by Detective Garlick during his testimony). Also, reports

showing that no information had been extracted from the cellular telephones

were neither exculpatory nor inculpatory evidence. Since Appellant

maintained at length that no data recovered from the cellular telephones

linked him to drug trafficking activity, we concur with the trial court that

Appellant failed to demonstrate how he was prejudiced by the non-disclosure

of forensic reports relating to the cellular telephones. Put differently,

Appellant failed to demonstrate how learning of this information during

pre-trial discovery would have altered his trial strategy. As the record

demonstrates, defense counsel extensively questioned Detective Garlick on

cross-examination about the fact that no information indicating that the

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cellular telephones had been used as part of a drug operation was retrieved

from the cellular telephones. Lastly, the trial court indicated that it instructed

the jury that the “only evidence [] the jury should consider about the [cellular

telephones] was the number of [cellular telephones retrieved from] the

residence.” Trial Court Opinion, 7/29/22, at 5; see also Commonwealth v.

Vucich, 194 A.3d 1103, 1113 (Pa. Super. 2018) (stating, “[i]t is well[-]settled

that the jury is presumed to follow the trial court's instructions” (citation

omitted)), appeal denied, 199 A.3d 885 (Pa. 2018). Therefore, we find

Appellant’s issues raising claims of discovery and Brady violations to be

without merit.

Appellant’s fourth and fifth issues challenge the trial court’s denial of

Appellant’s request for a mistrial based upon reference to Appellant’s

post-arrest silence at trial, and reference to evidence demonstrating Appellant

committed an un-charged crime to infer his guilt in the present crimes

charged. Appellant’s Brief at 23-27.

The denial of a motion for a mistrial is assessed on appellate review according to an abuse of discretion standard. It is primarily within the trial court's discretion to determine whether defendant was prejudiced by the challenged conduct. On appeal, therefore, this Court determines whether the trial court abused that discretion. An abuse of discretion is not merely an error of judgment; rather, discretion is abused when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record.

Commonwealth v. Padilla, 923 A.2d 1189, 1192 (Pa. Super. 2007)

(citations and quotation marks omitted), appeal denied, 934 A.2d 1277 (Pa.

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2007). “[A] mistrial is an extreme remedy only warranted when the prejudice

to the movant cannot be ameliorated to ensure a fair trial. A mistrial is not

necessary where cautionary instructions are adequate to overcome any

possible prejudice.” Commonwealth v. Risoldi, 238 A.3d 434, 458

(Pa. Super. 2020), appeal denied, 244 A.3d 1230 (Pa. 2021).

In his fourth issue, Appellant asserts that the trial court erred in denying

his request for a mistrial based upon Detective Garlick’s reference to

Appellant’s post-arrest silence and the Commonwealth’s reiteration of

Appellant’s post-arrest silence as part of its closing argument. Appellant’s

Brief at 23-25.

Generally, “[t]he admissibility of evidence is a matter for the discretion

of the trial court[,] and a ruling thereon will be reversed on appeal only upon

a showing that the trial court committed an abuse of discretion.”

Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012), cert. denied,

569 U.S. 922 (2013). To the extent the question presents as “an issue

involving a constitutional right, it is a question of law[ and,] thus, our standard

of review is de novo, and our scope of review is plenary.” Commonwealth

v. Baldwin, 58 A.3d 754, 762 (Pa. 2012).

“Both the United States Constitution and the Pennsylvania Constitution

protect every person against being compelled to be a witness against himself

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or herself.”11 Commonwealth v. Molina, 33 A.3d 51, 57 (Pa. Super. 2011)

(en banc), affirmed, 104 A.3d 430 (Pa. 2014) (plurality opinion). “[T]he right

against self-incrimination prohibits use of a defendant's [] silence as

substantive evidence of guilt, unless it falls within an exception such as

impeachment of a testifying defendant or fair response to an argument of the

defense.”12 Molina, 104 A.3d at 451; see also Molina, 33 A.3d at 62

(stating, “the Commonwealth cannot use a non-testifying defendant's []

silence to support its contention that the defendant is guilty of the crime

charged as such use infringes on a defendant's right to be free from

self-incrimination”); Commonwealth v. DiPietro, 648 A.2d 777, 782 (Pa.

1994) (stating, “[t]he testimonial reference to [a defendant’s] post-arrest

silence, the absence of an adequate cautionary instruction, and the further

exploitation of [the defendant’s] post-arrest silence during closing argument

constitute reversible error and mandate a new trial”); but cf.

Commonwealth v. DiNicola, 866 A.2d 329, 337 (Pa. 2005) (noting that, “an

explicit reference to silence is not reversible error where it occurs in a context ____________________________________________

11 The Fifth Amendment of the United States Constitution, in pertinent part, states that, “[n]o person . . . shall be compelled in any criminal case to be a witness against himself[.]” U.S. CONST. amend. V. Similarly, Article I, Section 9 of the Pennsylvania Constitution, in pertinent part, states that, “[i]n all criminal prosecutions, the accused . . . cannot be compelled to give evidence against himself[.]” Pa. CONST. art. I, § 9.

12In the context of an individual’s right against self-incrimination, it is without consequence whether a defendant’s “silence” occurred “pre or post-arrest, or pre or post-Miranda warnings[.]” Molina, 104 A.3d at 450; see also Miranda v. Arizona, 384 U.S. 436 (1966).

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not likely to suggest to the jury that silence is the equivalent of a tacit

admission of guilt”); Commonwealth v. Adams, 104 A.3d 511, 517 (Pa.

2014) (stating that, “the right against self-incrimination is not burdened when

the reference to silence is circumspect and does not create an inference of an

admission of guilt” (original quotation marks omitted)).

If a defendant’s silence is improperly referenced, this Court must then

examine whether the improper reference contributed to the verdict or was

harmless error, thus negating the necessity of a mistrial. Commonwealth

v. Rivera, 255 A.3d 497, 506 (Pa. Super. 2021), appeal granted, 273 A.3d

510 (Pa. 2022). “[A]n error can be harmless only if an appellate court is

convinced beyond a reasonable doubt that the error is harmless.” Molina,

104 A.3d at 454, citing Commonwealth v. Story, 383 A.2d 155, 162 (Pa.

1978). An error is harmless when

(1) the error did not prejudice the defendant or the prejudice was de minimis; (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.

Molina, 104 A.3d at 454, quoting Commonwealth v. Wright, 961 A.2d 119,

143 (Pa. 2008). Our evaluation of the harmlessness of an improperly admitted

reference to a defendant’s silence is predicated on the fundamental notion

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that a “defendant is entitled to a fair trial but not a perfect one.”13

Commonwealth v. Noel, 104 A.3d 1156, 1169 (Pa. 2014) (stating that,

“although a perfectly conducted trial is indeed the ideal objective of our judicial

process, [a] defendant is not necessarily entitled to relief simply because of

some imperfections in the trial, so long as he[, or she,] has been accorded a

fair trial” (original brackets and original quotation marks omitted)). Thus, “[i]f

a trial error does not deprive [a] defendant of the fundamentals of a fair trial,

his[, or her,] conviction will not be reversed.” Id.

Here, the record demonstrates that the following exchange occurred

between Appellant’s counsel and Detective Garlick during cross-examination:

[Defense Counsel:] Where in the [police] report does it say that you sent the [cellular telephones] to the Allegheny [County] Crime Lab or the extraction lab?

[Detective Garlick:] It’s not indicated in [] this copy of the [police] report. Again, our administrative assistant prepares our reports for us and the [cellular telephones] had no evidentiary value so, at least, what was within them had no evidentiary value, but the number of them, the sheer number of them, had evidentiary value.

13Typically, the Commonwealth bears the burden of establishing that the error was harmless beyond a reasonable doubt. Molina, 104 A.3d at 454. Nonetheless, in the interest of ensuring a fair trial, this Court may undertake a harmless error analysis sua sponte. Commonwealth v. Hamlett, 234 A.3d 486, 492 (Pa. 2020) (stating that, “the availability of discretionary sua sponte review in appropriate cases serves as an exception to the ordinary rule that the government bears the burden of persuasion relative to harmless error”).

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[Defense Counsel:] It wouldn’t have evidentiary value to [Appellant] if he had access, because there is no evidence of drug dealing in his [cellular telephone], so he is not selling drugs; correct?

[Detective Garlick:] [Appellant] had the opportunity to express that to us when I questioned him at the Studio.

N.T., 1/6/22, at 152. Thereupon, defense counsel objected and requested a

mistrial on the ground, inter alia, that Detective Garlick “was not responsive

to [the] question and brought up [Appellant’s] right to remain silent and that

[Appellant] said nothing.” Id. at 152. The trial court, without explanation

and without first hearing from the Commonwealth, denied Appellant’s request

for a mistrial. Id. In its Rule 1925(a) opinion, however, the trial court

explained that it denied Appellant’s request for a mistrial because “[t]he

comment[,] while elicited by the defense, [] is not clear that it references []

Appellant’s post-arrest silence.” Trial Court Opinion, 7/29/22, at 6-7 (stating

that, “[t]he reference was contextual, brief[,] and did not highlight []

Appellant’s silence as evidence of guilt”). We disagree.

Detective Garlick, who testified as an expert in the field of drug

investigations, indicated throughout his testimony that although the police

were unable to extract information from the cellular telephones, indicating

that the cellular telephones had been used in drug transactions, the

“evidentiary value” of the cellular telephones was inherent in the fact that six

cellular telephones had been recovered from the premises during the

execution of the search warrant. In other words, the cellular telephones

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provided no direct evidence linking Appellant to drug trafficking but, rather,

provided circumstantial evidence based upon the number of cellular

telephones recovered from the premises. Defense counsel’s question

emphasized that because no direct evidence was recovered from the cellular

telephones linking Appellant to drug trafficking activity, Appellant was not

selling drugs. Detective Garlick responded by indicating that Appellant did not

deny he was selling drugs when Detective Garlick questioned Appellant at the

premises. Thus, Detective Garlick’s statement referenced Appellant’s right to

remain silent when confronted with questions pertaining to his involvement in

drug trafficking activities. In other words, Detective Garlick’s testimony

implied, in the presence of the jury, that Appellant’s silence in the face of

questioning constituted an admission that he sold drugs. Consequently, we

find Detective Garlick’s statement - “[Appellant] had the opportunity to

express that to us when I questioned him at the Studio” – referenced

Appellant’s right to remain silent.

Nonetheless, we find that Detective Garlick’s statement constituted

harmless error because any prejudicial effect of the statement was rendered

insignificant by the overwhelming evidence of guilt that was properly admitted

and uncontradicted. For example, several of the police officers indicated that

Appellant had keys to the property and provided the police officers access to

the property. N.T., 1/5/22, at 21, 50, 106. Detective Garlick indicated that

paperwork was located during the execution of the search warrant, showing

Appellant as the owner of the building. N.T., 1/6/22, at 134. During the

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execution of the search warrant, $2,300.00 in United States currency was

discovered in a shoebox along with a large bag of cocaine and multiple smaller

bags of cocaine. N.T., 1/5/22, at 29-34; see also N.T., 1/6/22, at 134. The

shoebox also contained several documents bearing Appellant’s name,

including a traffic citation issued to Appellant, tax documents showing

Appellant’s ownership of the property, and a prescription bottle bearing

Appellant’s name. N.T., 1/6/22, at 134. Moreover, drug paraphernalia,

including scales, burners, and spoons containing white residue, were located

in the kitchen area of the building. N.T., 1/5/22, at 59-63. Detective Thomas

Patton (“Detective Patton”), who was admitted as an expert in the field of drug

investigation, testified that the evidence seized from the property, including

the drug paraphernalia discovered in the kitchen area, the large amounts of

currency on-hand, the amount of cocaine, both in large quantities and smaller,

broken-down “baggies,” indicated, in his opinion given to a reasonable degree

of certainty, that the property was used by drug dealers for the purpose of

packaging controlled substances, namely cocaine and crack cocaine, for the

purpose of distribution. Id. at 54-68.

Accordingly, we conclude that the admission of Detective Garlick’s

testimony pertaining to Appellant’s silence, which was offered as substantive

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evidence of guilt, constituted a harmless error in light of the otherwise

overwhelming evidence of Appellant’s guilt.14

In his fifth issue, Appellant contends the trial court erred in denying his

request for a mistrial based on the Commonwealth’s presentation of testimony

14 Appellant asserts that Detective Garlick’s reference to Appellant’s post-arrest silence was exploited by the Commonwealth in its closing argument. Appellant’s Brief at 23. A review of the record demonstrates the following statement by the Commonwealth during its closing argument:

Those are the three charges, ladies and gentlemen. [Defense counsel] wants to go on about the [cellular telephones]. I could have easily not brought the [cellular telephones] here today and show[n] you them at all. We brought them to show you, because they were part of the search. We don’t get to write the script for the facts of the case. If I [did], I am sure that I would have [written a] script that we [] found great evidence on the [cellular telephones], we didn’t. That is why you didn’t hear anything. I still showed you the [cellular telephones] because it was part of the execution of the search warrant. I am not hiding anything from you.

Exhibit [Number] 7 shows that [cellular telephones], those six [cellular telephones] were inventoried immediately after the search and that inventory was immediately filed and provided to [defense counsel] and at no point was any request made to look at the [cellular telephones] by [defense counsel].

N.T., 1/6/22, at 195. Defense counsel objected to the Commonwealth’s statement on the ground Appellant had no burden in this case. Id. The trial court sustained the objection and offered a cautionary instruction, stating, “[Appellant] has no burden.”

Aside from the trial court’s cautionary instruction correcting the Commonwealth’s improper statement pertaining to Appellant having a burden of proof as to his innocence in the instant criminal matter, we find no specific reference, as Appellant contends, by the Commonwealth exploiting Detective Garlick’s testimony regarding Appellant’s post-arrest silence.

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that Appellant was guilty of the aforementioned criminal charges since he

committed an uncharged crime. Appellant’s Brief at 26-27. Specifically,

Appellant asserts that Detective Patton improperly testified that he was

assisting Detective Garlick “in a drug investigation into illegal narcotics [sales

at] the [North Pittsburgh Street property].” Id. at 26. Appellant argues that

Detective Patton’s testimony “was irrelevant because the Commonwealth did

not charge [Appellant] with the controlled purchases [by a confidential

informant of a controlled substance] utilized to obtain the search the warrant.”

Id. at 27.

To reiterate, the admissibility of evidence is within the sound discretion

of the trial court and will only be reversed for an abuse of that discretion.

Johnson, 42 A.3d at 1027.

Evidence of one crime is generally inadmissible against a defendant being tried for another crime. While generally not admissible to prove bad character or criminal propensity, evidence of crimes, wrongs, or other acts is admissible when proffered for some other relevant purpose so long as the probative value outweighs the prejudicial effect. Permissible purposes to admit other bad acts evidence include motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident, subject to the [trial] court's weighing of the probative value and the potential for unfair prejudice against the defendant.

Commonwealth v. Crispell, 193 A.3d 919, 936 (Pa. 2018) (citations,

quotation marks and original brackets omitted), relying on Pa.R.E. 404(b)(2).

“In addition, evidence of crimes, wrongs, or other bad acts may be admissible

as res gestae when relevant to furnish the complete story or context of events

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surrounding the crime.” Crispell, 193 A.3d at 936 (original quotation marks

omitted); see also Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988)

(stating that, the res gestae exception, also known as the “complete story

rationale,” permits evidence of other criminal acts to be admitted “to complete

the story of the crime on trial by proving its immediate context of happenings

near in time and place”).

In denying Appellant’s request for a mistrial, the trial court explained,

[Detective Patton] made no mention of [] Appellant being under investigation or being [specifically] involved in [the] investigation. [Detective Patton’s] testimony was offered to denote the extent and focus of the task force’s investigation that day. The testimony related to a location at which more than one person was residing. In his testimony, there was no implication that [] Appellant was the target of the investigation or even under investigation. There was no statement that would have prejudiced [] Appellant or interfered with his ability to obtain a fair trial.

Trial Court Opinion, 7/29/22, at 7.

A review of the record demonstrates the following exchange between

the Commonwealth and Detective Patton during direct examination:

[Commonwealth:] All right. Detective Patton were you working on a particular task on June 28, 2019?

[Detective Patton:] Yes, ma’am.

[Commonwealth:] Can you tell the jury some background about that task and what you were doing?

[Detective Patton:] I was assisting the lead investigator, Detective Garlick, in a drug investigation into illegal narcotics being sold out of what

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we called [“]The Studio[” (located along North Pittsburgh Street).]

N.T., 1/5/22, at 45 (emphasis added). Thereafter, defense counsel objected

and requested a mistrial on the ground, inter alia, that Appellant was “not

charged with selling [illegal narcotics] from the building[.]” Id. at 46.

Examining Detective Patton’s statement within the context of his

testimony as a whole, we concur with the trial court that Detective Patton did

not reference Appellant or Appellant’s involvement in selling illegal narcotics

from the premises. While the testimony references an investigation of a

crime, i.e. the selling of illegal narcotics, this other crime was not associated

with Appellant to show his bad character and his propensity for committing

criminal acts nor was the potential other crime directly associated with

Appellant. Rather, as the trial court notes, this statement merely references

the activity and location of the drug task force on that date and explains

Detective Patton’s involvement in the investigation in order to put his

subsequent testimony into context as he discussed the events on June 28,

2019. In other words, this statement merely “complete[s] the story of the

crime on trial by proving its immediate context of happenings near in time and

place” and explains how the individual who is about to offer testimony on the

events became involved in the investigation. As such, we discern no abuse of

discretion by the trial court in permitting the testimony and denying

Appellant’s request for a mistrial.

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For the reasons set forth herein, we affirm Appellant’s judgment of

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/23/2023

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