Commonwealth v. Kouma

53 A.3d 760, 2012 Pa. Super. 110, 2012 Pa. Super. LEXIS 1022
CourtSuperior Court of Pennsylvania
DecidedMay 29, 2012
StatusPublished
Cited by48 cases

This text of 53 A.3d 760 (Commonwealth v. Kouma) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Kouma, 53 A.3d 760, 2012 Pa. Super. 110, 2012 Pa. Super. LEXIS 1022 (Pa. Ct. App. 2012).

Opinion

OPINION BY

STEVENS, P.J.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Delaware County following Appellant Bakary Kouma’s conviction by a jury on the charges of possession of a controlled substance with intent to deliver, 35 P.S. § 780-113(a)(30), possession of a controlled substance, 35 P.S. § 780-113(a)(31), and possession of drug paraphernalia, 35 P.S. § 780-113(a)(32). Appellant’s sole contention is the trial court erred in ruling that, if Appellant called character witnesses to testify as to his reputation for being law-abiding, the prosecutor could cross-examine the witnesses as to their knowledge of Appellant’s immigration status as an illegal alien.1 We affirm.

The relevant facts and procedural history are as follows: On August 10, 2010, officers employed by the Upper Darby police department arrested Appellant and charged him with various offenses, including possession with the intent to distribute controlled substances. On March 10, 2011, the Commonwealth filed a “Notice of Intention to Introduce Evidence of Other Crimes, Wrongs or Acts under Pa.R.E. 404(b)(4).”2 At a trial that began on March 16, 2011, several witnesses testified for the prosecution. For example, Police Officer Timothy Bernhardt, who has been a narcotics investigating officer for seven years, testified he was working in an undercover capacity on August 10, 2010, and [762]*762conducting surveillance in a high drug area in Upper Darby Township. N.T. 3/16/11 at 20. Specifically, Officer Bernhardt sat in an undercover minivan in an area with good lighting on Golf Road. N.T. 3/16/11 at 19-22. As Officer Bernhardt conducted surveillance, at approximately 5:30 p.m., he observed a red Honda park approximately thirty feet in front of the undercover minivan. N.T. 3/16/11 at 22-26. With an unobstructed, clear view of the driver’s side door of the red Honda, Officer Bernhardt observed the red Honda contained one sole occupant, the driver, who was later identified as Appellant. N.T. 3/16/11 at 26-28. Officer Bernhardt testified as follows regarding his observations of Appellant:

[PROSECUTOR]: And when you were observing the vehicle, what, if anything, did you notice?
[OFFICER BERNHARDT]: Initially, the vehicle just sat there with the operator, [Appellant], seated in the driver’s side. And after a few minutes there was an individual that approached the vehicle followed by a few other individuals, and what I observed was a hand-to-hand transaction like I spoke of earlier of an individual handing something to [Appellant] and [Appellant] then handing out what I could see was a small paper object, a round object.
[PROSECUTOR]: Now, sir, I just want to be clear and make sure I understand. You indicated you witnessed an individual approach the vehicle?
[OFFICER BERNHARDT]: Yes.
[PROSECUTOR]: And you said with several other individuals behind him.
[OFFICER BERNHARDT]: They weren’t stacked one after the other. It was an individual approached. A short period of time elapsed and another person approached as followed by that.
[PROSECUTOR]: And let’s start with the first individual you saw approach. What area of the vehicle did this individual approach, the red Honda?
[OFFICER BERNHARDT]: The driver’s side of the vehicle. I’m sorry.
[PROSECUTOR]: The red Honda we’re talking about.
[OFFICER BERNHARDT]: The red Honda, correct. The red Honda. The individual approached the driver’s side of the red Honda.
[PROSECUTOR]: And during your observations of the red Honda on August 10, 2010, at any point in time was there any other individual ever in the car?
[OFFICER BERNHARDT]: There was not.
[PROSECUTOR]: So [Appellant] would have been the only person you saw in the red Honda on August 10, 2010?
[OFFICER BERNHARDT]: Yes, that’s correct.
[PROSECUTOR]: And you were in constant surveillance of the red Honda on August 10, 2010?
[OFFICER BERNHARDT]: That’s correct. I was.
[PROSECUTOR]: Now you witnessed an individual walk up to the driver’s door of this red Honda and you said you witnessed this individual engage in what you were referring to as a hand-to-hand transaction. Can you tell us exactly what it is that you saw, what movement or what body?
[OFFICER BERNHARDT]: Yes. The individual approached the driver’s side of the red Honda. A hand-to-hand transaction took place where the individual approached, handed [Appellant] something and then returned. [Appellant] handed that individual what I could tell was a small round paper object and that individual then walked off.
[763]*763[PROSECUTOR]: How much time would you say elapsed from when the first individual approached the driver’s side door, exchanged — a hand-to-hand transaction takes place, leaves and the second individual comes?
[OFFICER BERNHARDT]: A few minutes.
[PROSECUTOR]: And what, if anything, did you see the second individual do when they approached the driver’s side door of the Honda?
[OFFICER BERNHARDT]: Again, the same individual with the same hand-to-hand transaction approached the driver’s side of the red Honda, handed [Appellant] a — handed [Appellant] something and in return [Appellant] would in return hand the white object that I described there which would be the hand-to-hand transaction.
[PROSECUTOR]: Now you’re saying same individual. Are you referring to the same individual in the Honda or the same individual coming to the window of the ...
[OFFICER BERNHARDT]: I’m sorry. I apologize. It was a different individual that came to the red Honda. [Appellant] seated at defense table is the same individual behind the vehicle who handed another individual the white round object that I described.
* * s=
[PROSECUTOR]: How much time would you say elapsed going back to the first hand-to-hand transaction from when you witnessed the exchange to when that individual leaves the Honda, the red Honda?
[OFFICER BERNHARDT]: The whole period of time is five to ten minutes from the first, second, third individuals walking up to the car but the actual difference between the individuals is a minute or so.
[PROSECUTOR]: That they’re at the window?
[OFFICER BERNHARDT]: Seconds. I mean it’s a quick transaction. It’s not a long period of time.
[PROSECUTOR]: So you didn’t witness anyone standing there talking or anything like that?
[OFFICER BERNHARDT]: Correct. The transaction was several seconds long and it was basically the hand-to-hand transaction and the other individual would walk off in the area of the playground towards the track bed.
[PROSECUTOR]: And what about the second individual, the same thing?

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Cite This Page — Counsel Stack

Bluebook (online)
53 A.3d 760, 2012 Pa. Super. 110, 2012 Pa. Super. LEXIS 1022, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-kouma-pasuperct-2012.