Com. v. Clemat, P.

J-S43037-19

2019 PA Super 273

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

PIERRE CLEMAT :

:

Appellant : No. 1966 MDA 2018

Appeal from the Judgment of Sentence Entered October 22, 2018

In the Court of Common Pleas of Lackawanna County Criminal Division at

No(s): CP-35-CR-0002687-2017

BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED SEPTEMBER 04, 2019

Appellant, Pierre Clemat, appeals from the judgment of sentence

entered by the Honorable Michael J. Barrasse in the Court of Common Pleas

of Lackawanna County following Appellant’s conviction by a jury on the

charges of possession with the intent to deliver a controlled substance

(“PWID”) and possession of drug paraphernalia.1 After a careful review, we

affirm.

The relevant facts and procedural history have been set forth, in part,

by the trial court as follows:

[Appellant’s] charges stemmed from a November 15,

2017[,] incident wherein Lackawanna County and Dunmore Police

Detectives were investigating a prostitution ring. Specifically, the

Detectives found an escort on the internet and arranged to meet

____________________________________________

* Former Justice specially assigned to the Superior Court.

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

J-S43037-19

with her for an appointment in Room number 416 at the Four

Points Sheraton Hotel in Scranton. The escort, eventually

identified as Derrian Regan (hereinafter “Regan”), agreed to a rate

of $160.00 per half hour of services with the Detectives via text

message. Upon arriving at the Four Points Sheraton Hotel, Regan

accepted $160.00 in exchange for a sexual act, and officers

immediately placed Regan under arrest. While being transported,

officers observed Regan notify an unknown male of her arrest.

Subsequently, officers observed the male, later identified as

Appellant, walk towards the hotel and throw a plastic bag into a

nearby shrub. Thereafter, the officers recovered multiple,

individual twist bags containing heroin inside the plastic bag

discarded by Appellant. Immediately, the officers Mirandized and

placed Appellant into custody. After a custodial search of

Appellant, officers recovered two (2) Apple IPhones and $1,460 of

U.S. currency. Officers transported Appellant and Regan to the

Dunmore Police Station. During questioning, Regan admitted that

she dates Appellant and he provides her [with] heroin.

Accordingly, on July 10, 2018, a jury trial commenced

wherein the Commonwealth presented several witnesses.

Forensic Scientist Jennifer J. Libus, a lab technician with the

Pennsylvania State Police Wyoming Regional Laboratory, testified

that she tested the contents of the individual baggies and

determined that the baggies contained fifty-four (54) grams of

Fentanyl. Ms. Libus testified that she has been qualified as an

expert in the field of drug identification and analysis in the

Commonwealth of Pennsylvania, and has rendered her opinion in

criminal cases over 150 times.

Additionally, Dunmore Police Detective Corey Condrad, a

Supervisor of the Drug Unit, testified that he observed Appellant

dispose of a plastic baggie containing Fentanyl into the bushes of

the hotel parking lot. He also testified to the recovery of $1,460

in U.S. currency and two (2) cell phones found on Appellant.

Detective Condrad further testified that the suspected narcotics

were packaged into evidence and transported to the Pennsylvania

State Police Wyoming Crime Lab.

Similarly, Detectives Vince Butkiewicz and Thomas Davis of

the Lackawanna County District Attorney’s Office corroborated

Appellant’s discarding of the plastic bag, the search of Appellant,

and recovery of the suspected narcotics. Furthermore, Detective

Harold Zech of the Lackawanna County District Attorney’s Office

testified as an expert regarding factors that show an intent to

deliver as well as tools utilized by dealers within the drug trade.

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In this case, Detective Zech opined that the quantity of Fentanyl

recovered demonstrated Appellant possessed the Fentanyl with

the intent to deliver rather than possess for personal use. He

further testified that typical factors of possession with intent to

deliver include large amounts of cash and multiple cellular phones.

He noted that officers recovered both items on Appellant’s person.

Upon conclusion of all testimony, and all evidence

presented, the jury convicted [Appellant] of one (1) count of

Possession of a Controlled Substance with Intent to Deliver (50 to

100 grams of Fentanyl) and one (1) count of Possession of Drug

Paraphernalia. [The trial] court requested a pre-sentence

investigation report, and upon thorough review as well as

consideration of the sentencing guidelines, including all mitigating

and aggravating factors, [the trial] court sentenced [Appellant] on

October 22, 2018[,] [to 84 months to 168 months in prison, plus

five years of probation, for PWID, and six months to twelve

months in prison for possession of drug paraphernalia.]

[The trial] court imposed consecutive sentences which

aggregated to ninety (90) to one hundred and eighty (180)

months of incarceration followed by five (5) years of probation

supervised by the Pennsylvania Board of Probation and Parole.

On November 1, 2018, Appellant filed a Motion for

Reconsideration of Sentence, alleging that this Court imposed an

excessive sentence and erroneously relied upon factors

contemplated by the guidelines. [The trial] court denied

Appellant’s Motion on November 13, 2018, and [Appellant] filed a

timely Notice of Appeal…on November 29, 2018.

Trial Court Opinion, filed 5/6/19, at 2-5 (citations to record omitted).

The trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement,

Appellant timely complied, and the trial court filed a responsive Pa.R.A.P.

1925(a) opinion.

On appeal, Appellant sets forth the following issues in his “Statement of

the Questions Involved” (verbatim):

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1) Whether the trial court erred when it did not strike Juror

number 20 for cause, as she was likely biased due to a recent

drug-related overdose of a very good friend?

2) Whether the trial court erred when it allowed Lackawanna

County District Attorney Detective Harold Zech to testify as an

expert witness:

a. despite the fact the Commonwealth did not timely

and properly disclose their intent to call Detective

Zech as an Expert Witness; and

b. despite the fact the Commonwealth had full

knowledge it planned to call Detective Zech as an

expert witness but failed to disclose the fact

(including subject matter) until the Friday before

Trial?

3) Whether the trial court erred when it allowed Detective Zech to

improperly testify as an expert since the matter to which

Detective Zech testified did not require a person qualified in a

specific science, art, or trade?

4) Whether the trial court erred when it allowed Detective Zech to

testify as an expert witness despite the fact that Detective Zech

was personally and directly involved in the arrest of Appellant?

5) Whether the trial court erred when it allowed Detective Zech to

testify beyond the scope of his expert report, as no report was

produced?

6) Whether the trial court erred when it allowed Detective Zech to

answer questions specifically related to the case, posed as

thinly veiled “hypothetical” questions, which covered subject

matter reserved for the jury (notwithstanding the fact that

Detective Zech was testifying as an expert witness)?

7) Whether the Judge abused his discretion in sentencing

Appellant to the aggravated range by impermissibly relying on

factors already considered in the sentencing guidelines,

specifically the weight and nature of the substance, essentially

multiplying those factors against Appellant twice[?]

Appellant’s Brief at 3-4.2

____________________________________________

2 We note Appellant presented all of these issues in his Rule 1925(a)

statement.

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In his first issue, Appellant contends the trial court erred when it failed

to strike Juror number 20 for cause. Specifically, Appellant contends that,

since Juror number 20 admitted that her “very good friend” died from a drug-

related overdose just two weeks prior to Appellant’s trial, the trial court should

have presumed the likelihood that she was prejudiced, and consequently, the

trial court should have granted Appellant’s request that she be stricken for

cause.

In developing his claim, Appellant points to the following excerpt from

voir dire:

[DEFENSE COUNSEL]: So, I just have a few additional questions.

Again, this case involved possession with intent to deliver a

controlled substance. Now, has anyone here had a loved one that

died as a result of addiction or substance abuse?

***

And your number is, ma’am?

JUROR 20: 20.

[DEFENSE COUNSEL]: Can you explain the circumstances?

JUROR 20: A very good friend of ours just passed away two weeks

ago.

[DEFENSE COUNSEL]: Very recent.

JUROR 20: Yes.

[DEFENSE COUNSEL]: Would that fact prevent you from being a

fair and impartial juror?

JUROR 20: No.

***

[DEFENSE COUNSEL]: Is there any other additional factors that

any one of you feel that would lead you to not be a fair and

impartial juror in this matter? No? Okay, let the [record] reflect

that the answer is in the negative. Thank you. That’s all I have.

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J-S43037-19

N.T., 7/10/18, at 12-14, 16.

A trial court’s decision regarding whether to disqualify a

juror for cause is within its sound discretion and will not be

reversed in the absence of a palpable abuse of discretion.

Commonwealth v. Stevens, 559 Pa. 171, 197, 739 A.2d 507,

521 (1999). In determining if a motion to strike a prospective

juror for cause was properly denied our Court is guided by the

following precepts:

The test for determining whether a prospective

juror should be disqualified is whether he [or she] is

willing and able to eliminate the influence of any

scruples and render a verdict according to the

evidence, and this is to be determined on the basis of

answers to questions and demeanor....It must be

determined whether any biases or prejudices can be

put aside on proper instruction of the court....A

challenge for cause should be granted when the

prospective juror has such a close relationship,

familial, financial, or situational, with the parties,

counsel, victims, or witnesses that the court will

presume a likelihood of prejudice or demonstrates a

likelihood of prejudice by his or her conduct or

answers to questions.

Commonwealth v. Briggs, 608 Pa. 430, 12 A.3d 291, 332-33 (2011) (some

quotations omitted).

Here, in explaining the reasons it denied Appellant’s request that Juror

number 20 be stricken for cause, the trial court indicated the following:

[J]uror number twenty (20) stated during jury selection that

her friend recently succumbed to a drug overdose. However, she

assured [the trial] court that she remained a fair and impartial

juror. Because of the juror’s demeanor and unequivocal response,

as well as the juror’s lack of fixed opinion, obvious bias, or

relationship to any of the parties, victims, or witnesses, [the trial]

court did not disqualify the juror. Juror 20 did not visibly manifest

distress nor did she express substantial doubt. In fact, [the trial]

court recognized that the underlying case did not involve an

overdose or overdose victim so as to trigger a close situational

relationship to the juror. See Commonwealth v. Johnson, 445

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A.2d 509, 514 (Pa.Super. 1982) (finding that prospective juror’s

close relationship to a victim of a separate crime did not compel a

finding of prejudice in every case). Furthermore, cognizant of the

protections provided by peremptory challenge, Appellant had the

opportunity to strike [J]uror number 20 if so inclined, and

Appellant chose to retain [J]uror [number] 20 on the panel.

Commonwealth v. Jackson, 562 A.2d 338 (Pa.Super. 1989)

[(en banc)] (holding the primary function of a peremptory

challenge is to allow the parties to strike prospective jurors whom

they have good reason to believe might be biased, but who are

not so clearly and obviously partial that they could otherwise be

excluded from the panel). As such, [the trial] court acted within

its discretion and did not err in failing to dismiss for cause since

the prospective juror assured [the trial] court of her ability to act

impartially.

Trial Court Opinion, filed 5/6/19, at 5-6.

Given Juror number 20’s responses, the trial court did not commit an

abuse of discretion in disallowing Appellant’s challenge for cause. See Briggs,

supra. It was the trial judge who was in the best position to assess the

credibility and fitness to serve of the prospective juror. See Commonwealth

v. Chambers, 546 Pa. 370, 685 A.2d 96, 107 (1996) (holding trial court may

properly refuse to excuse a juror for cause when the trial judge believes that

the juror would be fair and impartial).

Furthermore, the fact Juror number 20 had a “very close friend” who

had recently died from a drug-overdose is not dispositive given the juror’s

indications that she could be fair and impartial. See Commonwealth v. Cox,

603 Pa. 223, 983 A.2d 666, 683 (2009) (“[T]he fact that the prospective

juror’s son was killed and his murderer was tried before the same judge who

was presiding over Appellant’s [murder] trial is not dispositive given the

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prospective juror’s indications that she could be fair and impartial.”) (citations

omitted)). Accordingly, Appellant is not entitled to relief on his first claim.

In his second issue, Appellant contends the trial court erred when it

permitted Detective Harold Zech to testify as an expert witness. Specifically,

Appellant contends that, despite the fact the Commonwealth had full

knowledge of its intent to call Detective Zech as an expert witness, the

Commonwealth failed to disclose this fact until the Friday before trial.

Appellant contends that, due to the Commonwealth’s untimely disclosure of

its intent to call Detective Zech as an expert witness, the Commonwealth

violated Pa.R.Crim. 573, thus resulting in unfair surprise to Appellant.

Initially, we note:

The 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. An abuse of discretion may not be found merely

because an appellate court might have reached a different

conclusion, but requires a result of manifest unreasonableness, or

partiality, prejudice, bias, or ill-will, or such lack of support so as

to be clearly erroneous.

Commonwealth v. Yocolano, 169 A.3d 47, 53 (Pa.Super. 2017) (quotation

omitted).

Pa.R.Crim.P. 573, pertaining to pretrial discovery and inspection,

relevantly provides the following:

(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

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the defendant’s attorney all of the following requested items or

information, provided they are material to the instant case. The

Commonwealth shall, when applicable, permit the defendant’s

attorney to inspect and copy or photograph such items.

***

(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[.]

***

(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.

Pa.R.Crim.P. 573(B)(1)(e), (D) (bold and italics in original).

Here, with regard to this issue, the trial court aptly indicated the

following:

[P]ursuant to [the trial] court’s directive, the

Commonwealth submitted a Joint Trial Statement on Friday, July

6, 2018[,] [at the final pretrial conference]. Within the Joint Trial

Statement, the Commonwealth listed “Harold Zech-Possession

with the Intent to Deliver and Tools of the Trade,” under

subsection 5 titled: “Expert witness to be called at trial.”

Correspondingly, during trial on Wednesday, July 11, 2018, the

Commonwealth sought admission of Harold Zech as an expert in

possession with the intent to deliver and the tools of the trade.

Trial Court Opinion, filed 5/6/19, at 8.

The trial court concluded the Commonwealth’s disclosure of Detective

Zech in the joint trial statement, which was provided to Appellant at the final

pretrial conference, met the Commonwealth’s duty to disclose as provided by

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Pa.R.Crim.P. 573. See id. The trial court noted Appellant had a fair

opportunity to prepare his defense, including factoring into his strategy the

fact Detective Zech was going to testify as an expert. See id. at 10. Further,

the trial court noted Appellant did not request a continuance on this basis.

See id. Consequently, we conclude the trial court did not abuse it discretion

in finding no merit to Appellant’s second issue.

In his third issue, Appellant contends the trial court erred in permitting

Detective Zech to testify as an expert since the subject matter to which he

testified did not require a person with scientific, technical, or other specialized

knowledge beyond that possessed by the average layperson. He also avers

Detective Zech’s expert testimony was unnecessary to help the jury to

understand the evidence or determine a fact in issue.

Pa.R.E. 702, pertaining to testimony by an expert witness, relevantly

provides the following:

A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an

opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized

knowledge is beyond that possessed by the average layperson;

(b) the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the evidence or

to determine a fact in issue[.]

Pa.R.E. 702(a) and (b).

The Comment to Rule 702 relevantly provides:

Pa.R.E. 702 does not change the Pennsylvania rule for qualifying

a witness to testify as an expert. In Miller v. Brass Rail Tavern,

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Inc., 541 Pa. 474, 480-81, 664 A.2d 525, 528 (1995), the

Supreme Court stated:

The test to be applied when qualifying a witness to

testify as an expert witness is whether the witness has

any reasonable pretension to specialized knowledge

on the subject under investigation. If he does, he may

testify and the weight to be given to such testimony

is for the trier of fact to determine.

Pa.R.E. 702, Comment.

Here, Detective Zech, who testified he had been employed as a detective

in the narcotics unit of the Lackawanna County District Attorney’s Office for

ten years, indicated his day-to-day responsibilities included: conducting drug

investigations, identifying the illegal manufacture and sale of narcotics,

identifying the persons engaged therein, and arresting offenders. N.T.,

7/11/18, at 32. He testified that he routinely interviews confidential

informants, narcotic users, and narcotic traffickers with the aim of learning

how narcotics are being packaged, the manner and price for which they are

being sold, the street terminology for the narcotics, and the identity of persons

involved in the narcotics operations. Id. at 34.

Detective Zech testified he has performed undercover work, including

infiltrating groups of drug dealers, and he has been the lead investigator in

approximately 1,000 drug cases. Id. at 33, 35. Moreover, he testified that

he has testified in-court over 50 times with regard to narcotics cases, and he

has testified as an expert approximately one dozen times. Id. at 36. He

noted that he has training in drug recognition and identification, as well as

field test certification. Id. at 35.

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Based thereon, Detective Zech was offered as an expert by the

Commonwealth in the field of possession with the intent to deliver a controlled

substance and tools of the trade. As the trial court indicated:

An expert’s testimony is admissible when it is based on facts

of record and will not cause confusion or prejudice. The purpose

of expert testimony is to assist in the comprehension of complex

issues not within the ordinary knowledge, intelligence and

experience of the jury. Commonwealth v. Zook, 615 A.2d 1, 11

(Pa. 1992). Moreover, expert testimony is important in narcotic

cases where the other evidence may not conclusively establish

that the narcotics were intended for distribution.

Commonwealth v. Kirkland, 831 A.2d 607, 612 (Pa.Super.

2003). Such testimony is admissible to aid in determining

whether the facts surrounding the possession of controlled

substances are consistent with the intent to deliver. See

Commonwealth v. Jackson, 645 A.2d 1366, 1368 (Pa.Super.

1994) (holding that expert opinion testimony is admissible

concerning whether the facts surrounding the possession of

controlled substances are consistent with an intent to deliver

rather than with an intent to possess it for personal use)[.]

As such, [the trial] court allowed Detective Zech to provide

testimony as an expert witness regarding possession with the

intent to deliver and tools of the trade….Detective Zech offered his

expert opinion regarding Appellant’s possession and whether that

possession was consistent with an intent to deliver or an intent to

possess for personal use. [The trial] court accepted Detective

Zech as an expert witness, and limited his testimony to his expert

opinion. Specifically, the record reflects the Commonwealth

sought to elicit Detective Zech’s expertise with respect to

[F]entanyl mixtures, [F]entanyl user paraphernalia, [F]entanyl

packaging, and [F]entanyl measurements, all relative to

determining possession with intent to deliver. Such matters are

beyond the common knowledge, information or skill possessed by

ordinary jurors, who would not be cognizant of the significance of

the quantity and form of the [F]entanyl mixture, cutting agents,

the individual packaged baggies, lack of user paraphernalia, the

two cell phones, and the quantity of United States currency seized

from Appellant. Detective Zech did not express an opinion that

Appellant actually dealt the narcotics in this case. The testimony

of Detective Zech did not abdicate the jury’s responsibility as the

factfinder. [The trial] court observed that the jury still held an

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obligation to decide if the totality of the circumstances indeed

constituted an intent to deliver narcotics. When opinion evidence

is properly admitted, it is then up to the jury to determine its

credibility. The jury is free to reject it, accept it, or give it some

weight between the two.

Trial Court Opinion, filed 5/6/19, at 13-15 (some citations omitted).

We conclude the trial court did not abuse its discretion in permitting

Detective Zech to testify as an expert pursuant to Pa.R.E. 702. Thus, we find

no merit to this claim. See Commonwealth v. Powell, 171 A.3d 294

(Pa.Super. 2017) (holding police officer may testify as an expert based upon

knowledge gained from practical and occupational training); Commonwealth

v. Huggins, 68 A.3d 962, 966 (Pa.Super. 2013) (“A trial court has broad

discretion to determine whether evidence is admissible and a trial court’s

ruling on an evidentiary issue will be reversed only if the court abused its

discretion.”).

In his fourth issue, Appellant contends the trial court erred in permitting

Detective Zech to testify as an expert witness since the detective was

personally and directly involved in Appellant’s arrest in the case sub judice.

Initially, we note that, in addressing Appellant’s issue, the trial court

explained the following:

[The trial] court allowed Detective Zech to provide

testimony as an expert witness regarding possession with intent

to deliver and the tools of the trade. While Appellant argues that

Detective Zech participated in his arrest, Detective Zech did not

testify as a fact witness/investigating officer. Detective Zech did

not reference the underlying investigation or [his] role in the

subsequent arrest. Detective Zech did not testify to his

eyewitness observations or personal knowledge of Appellant.

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Rather, Detective Zech offered his expert opinion regarding

Appellant’s possession and whether that possession was

consistent with an intent to deliver or an intent to possess for

personal use.

Trial Court Opinion, filed 5/6/19, at 14-15.

In any event, assuming, arguendo, Detective Zech offered both expert

and lay testimony in this case, this Court has relevantly indicated:

[W]e conclude that the [R]ules [of Evidence] do not preclude a

single witness from testifying, or offering opinions, in the capacity

as both a lay and an expert witness on matters that may embrace

the ultimate issues to be decided by the fact-finder. [Pa.R.E.] 702

permits an expert to testify to scientific, technical or other

specialized knowledge beyond that possessed by a layperson.

[Pa.R.E.] 701 permits a layperson to testify in the form of an

opinion, however, such testimony must be rationally based on that

witness’ perceptions. Thus, an expert must have additional

specialized knowledge in rendering an opinion; whereas, a lay

witness must form an opinion based on his or her rationally based

perceptions. The Rules, however, do not specifically delineate

that a witness must be only one or the other. Instead, the witness’

association to the evidence controls the scope of admissible

evidence that he or she may offer. Furthermore, [Pa.R.E.] 704

clearly permits both expert and lay opinion testimony on issues

that ultimately must be decided by the trier of fact, in this case,

the jury.

Huggins, 68 A.3d at 967. Accordingly, we find no merit to Appellant’s fourth

issue.

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

Detective Zech to testify beyond the scope of his expert report since no report

was produced by the Commonwealth. Appellant reasons that the

Commonwealth was required to provide him with a pretrial expert report from

Detective Zech. He further reasons that he “was unfairly prejudiced in his trial

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preparation due to lack of information regarding what the Commonwealth

would elicit from their expert.” Appellant’s Brief at 29.

Pa.R.Crim.P. 573, pertaining to pretrial discovery and inspection,

relevantly provides:

(B) Disclosure by the Commonwealth.

***

(2) Discretionary With the Court.

***

(b) If an expert whom the attorney for the Commonwealth

intends to call in any proceeding has not prepared a report of

examination or tests, the court, upon motion, may order that the

expert prepare, and that the attorney for the Commonwealth

disclose, a report stating the subject matter on which the expert

is expected to testify; the substance of the facts to which the

expert is expected to testify; and a summary of the expert’s

opinions and the grounds for each opinion.

Pa.R.Crim.P. 573(B)(2)(b) (bold and italics in original).

As indicated, Pa.R.Crim.P. 573(B)(2)(b) sets forth that the trial court

has discretion in ordering a Commonwealth expert to prepare a report.

Moreover, the Comment to Pa.R.Crim.P. 573 relevantly indicates:

Pursuant to paragraph[] (B)(2)(b)…, the trial judge has discretion,

upon motion, to order an expert who is expected to testify at trial

to prepare a report. However, these provisions are not intended

to require a prepared report in every case. The judge should

determine, on a case-by-case basis, whether a report should be

prepared. For example, a prepared report ordinarily would not be

necessary when the expert is known to the parties and testifies

about the same subject on a regular basis. On the other hand, a

report might be necessary if the expert is not known to the parties

or is going to testify about a new or controversial technique.

Pa.R.Crim.P. 573, Comment.

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Here, in addressing Appellant’s fifth issue, the trial court relevantly

indicated the following:

Upon receipt of the Joint Trial Statement, [in which the

Commonwealth listed Detective Zech as an expert in possession

with the intent to deliver and tools of the trade,] trial counsel did

not request [the trial] court to order an expert report, nor did trial

counsel demonstrate the necessity for an expert report. Trial

counsel did not assert unfamiliarity with [Detective] Zech or a new

or controversial technique triggering an expert report. Trial

counsel did not request time to consult his own expert. Trial

counsel did not assert additional information available or that

additional time would have enabled a different or additional line

of inquiry on cross-examination of the witness. Importantly, trial

counsel failed to specify how [Detective] Zech’s testimony caused

potential prejudice or in what manner a continuance would have

aided his defense. See Commonwealth v. Galloway, 771 A.2d

65 (Pa.Super. 2001) (mere surprise caused by the

Commonwealth’s failure to disclose evidence in a timely fashion is

not sufficient to warrant a new trial). Despite trial counsel’s

arguments, the Commonwealth explicitly disclosed via [the] Joint

Trial Statement that [Detective] Zech’s testimony involved

possession with intent to deliver and tools of the trade. Therefore,

trial counsel did become aware of [Detective] Zech’s potential

[expert] testimony prior to trial and had sufficient time to prepare

and factor [it] into his defense strategy. [The trial] court found

the Commonwealth’s disclosure adequately summarized the basic

content of [Detective] Zech’s potential expert testimony and did

not require the preparation of an expert report. Moreover, [the

trial] court provided trial counsel ample opportunity to cross-

examine [Detective] Zech’s qualifications and credentials. Trial

counsel extensively questioned [Detective] Zech’s experience with

[F]entanyl, specialized training in [F]entanyl, weight, measure,

and mixture of [F]entanyl, as well as indicators of narcotics

trafficking versus personal use….Here, [Detective] Zech’s

potential testimony did not necessitate a report, nor did

[Detective] Zech prepare a report, [and], therefore, his testimony

[did] not exceed the scope of a report. In fact, the

Commonwealth’s Joint Trial Statement contained language

sufficient to notify Appellant of [Detective] Zech’s intent to testify

regarding possession with intent to deliver and the tools of the

trade.

***

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Notwithstanding the absence of an expert report, a review

of Detective Zech’s testimony reveals that Detective Zech did not

exceed the language contained in the Commonwealth’s Joint Trial

Statement. Indeed, Detective Zech testified to possession with

intent to deliver and tools of the trade.

Trial Court Opinion, filed 5/6/19, at 9-13 (some citations omitted).

We find no abuse of discretion. See Pa.R.Crim.P. 573. Moreover, we

note that Appellant has failed to demonstrate that he suffered prejudice from

the admission of Detective Zech’s testimony such that he would be entitled to

relief for an alleged discovery violation. See Commonwealth v. Henry, 550

Pa. 346, 706 A.2d 313 (1997) (holding that even where an expert’s testimony

went beyond the scope of the expert’s report, the defendant is not entitled to

relief absent proving he suffered prejudice from the admission of the

testimony).

In his sixth issue, Appellant contends the trial court erred in permitting

Detective Zech to answer questions posed as hypotheticals. Specifically,

Appellant contends the Commonwealth’s use of hypotheticals improperly

permitted Detective Zech to offer testimony on an ultimate issue that was

reserved for the jury.

Pa.R.E. 704 provides that “[a]n opinion is not objectionable just because

it embraces an ultimate issue.” Moreover, it is well-settled that the

Commonwealth may ask an expert a hypothetical question so long as “there

is evidence of record supporting the hypothetical.” Commonwealth v.

Galvin, 603 Pa. 625, 985 A.2d 783, 801 (2009). “[A]n expert may give an

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opinion in response to a hypothetical, provided the set of facts assumed in the

hypothetical is eventually supported by competent evidence and reasonable

inferences derived therefrom.” Commonwealth v. Petrovich, 538 Pa. 369,

648 A.2d 771, 772 (1994).

Here, in addressing Appellant’s sixth issue, the trial court indicated the

following:

During direct examination, [the assistant district attorney

(“ADA”)] examined Detective Zech through the use of

hypothetical questions. The following exchange occurred:

[ADA]: Hypothetically, if someone had in their

possession 54 grams of Fentanyl packaged within 22

separate baggies in one larger plastic bag, just based

on that alone, would you be able to determine if that’s

possession with the intent to deliver or possession for

personal use?

[DETECTIVE] ZECH: I would deem that as

possession with the intent to deliver, that’s a large

quantity of Fentanyl. As I stated earlier, two

milligrams could lead to a fatal overdose. That’s a

tremendous amount.

[ADA]: Hypothetically, if I add to that and said

the 54 grams is packaged in 22 separate individual

baggies in one larger bag combined with $1,460 of

U.S. currency and two cell phones on his person,

would you be able to determine if that’s a possession

with intent to deliver or possession for personal use?

[DETECTIVE] ZECH: With a large amount of

U.S. currency, the two cell phones and on top of that,

the 54 grams packaged that way, yes, I would

determine that as possession with intent to deliver.

[ADA]: An[d] again, lastly, hypothetically, if

someone had the 54 grams, a large amount of U.S.

currency, the two cell phones, no user paraphernalia

on their person, would you be able to determine if the

Fentanyl that was possessed was for possession with

the intent to deliver or possession for personal use?

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[DETECTIVE] ZECH: It’s even stronger without

user paraphernalia in the picture that I would deem it

being possession with the intent to deliver.

[ADA]: And all these determinations that you’ve

made today and all the answers that you’ve given

[are] within a reasonable degree of professional

certainty within your field?

[DETECTIVE] ZECH: Absolutely.

N.T. [7/11/18 at] 48-49.

A review of the hypothetical [questioning] above is plainly

supported by reasonable inferences derivable from the evidence

presented during the trial. Prior to Detective Zech’s testimony,

the Commonwealth offered sufficient and competent evidence to

establish that Appellant possessed narcotics with the intent to

deliver, and not simply for personal use….Detective Zech’s expert

opinion that Appellant possessed narcotics with the intent to

deliver, based upon the hypothetical possession of 54 grams of

[F]entanyl in 22 separate individual baggies inside one large bag

combined with $1,460 in U.S. currency and two cell phones with

no user paraphernalia, was not unreasonable in the specific

circumstances of this case. The Commonwealth’s hypothetical

added no additional facts, but simply allowed Detective Zech to

render an expert opinion on whether Appellant possessed the

narcotics with the intent to deliver, or for personal use.

Importantly, [the trial] court specifically instructed the jury in

[assessing] the weight to accord expert testimony along with

other factors.

Trial Court Opinion, filed 5/6/19, at 17-19.

We agree with the trial court’s sound analysis. In the case sub judice,

the record establishes that the prosecutor’s line of hypothetical questions to

Detective Zech was based on competent evidence presented at trial.

Moreover, the fact Detective Zech’s expert opinion embraced an ultimate issue

(whether a person who possessed the narcotics in the same amount and

manner as Appellant did so with the intent to deliver or for personal use) does

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not render the opinion inadmissible. See Pa.R.E. 704. Thus, we conclude the

trial court did not abuse its discretion in this regard.

In his seventh issue, Appellant contends the trial court erred in

sentencing Appellant in the aggravated range. Specifically, Appellant

contends the trial court relied upon factors (the weight and type of substance),

which are already considered in the sentencing guidelines, thus resulting in

the trial court impermissibly “double counting” these factors. This presents a

challenge to the discretionary aspects of Appellant’s sentence. See

Commonwealth v. Johnson, 758 A.2d 1214 (Pa.Super. 2000).

We have long held that the right to appeal a discretionary aspect of

sentence is not absolute. Commonwealth v. Zirkle, 107 A.3d 127

(Pa.Super. 2014). Instead, such challenges are considered petitions for

allowance of appeal. See id. Generally, an appellant who wishes to challenge

the discretionary aspects of his sentence must satisfy a four-part test to

invoke this Court’s jurisdiction:

(1) whether appellant has filed a timely notice of appeal; (2)

whether the issue was properly preserved at sentencing or in a

motion to reconsider and modify sentence; (3) whether

appellant’s brief has a fatal defect [pursuant to Pa.R.A.P. 2119(f)];

and (4) whether there is a substantial question that the sentence

appealed from is not appropriate under the Sentencing Code.

Id. at 132 (citation omitted). Finally, whether a particular issue constitutes a

substantial question about the appropriateness of sentence is a question to be

evaluated on a case-by-case basis. See id.

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Here, Appellant filed a timely notice of appeal, preserved his issue in a

timely post-sentence motion, and included a separate Pa.R.A.P. 2119(f)

statement in his brief. Moreover, Appellant’s issue presents a substantial

question permitting our review. Commonwealth v. Robinson, 931 A.2d 15

(Pa.Super. 2007) (en banc). Accordingly, we turn to a review of the merits of

Appellant’s sentencing claim.

Sentencing is a matter vested in the sound discretion of the

sentencing judge, and a sentence will not be disturbed on appeal

absent a manifest abuse of discretion. In this context, an abuse

of discretion is not shown merely by an error in judgment. Rather,

the appellant must establish, by reference to the record, that the

sentencing court ignored or misapplied the law, exercised its

judgment for reasons of partiality, prejudice, bias or ill will, or

arrived at a manifestly unreasonable decision.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (quotation

omitted).

When imposing sentence, the trial court is required to consider the

particular circumstances of the offense and the character of the defendant.

See Commonwealth v. Burns, 765 A.2d 1144 (Pa.Super. 2000). The trial

court should refer to the defendant’s prior criminal record, age, personal

characteristics, and potential for rehabilitation. See id. However, where the

sentencing judge had the benefit of a pre-sentence investigation report

(“PSI”), it will be presumed that he or she was aware of the relevant

information regarding the defendant’s character and weighed those

considerations along with mitigating statutory factors. Id.

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[Moreover,] [w]hen imposing a sentence, the sentencing

court must consider the factors set out in 42 Pa.C.S.A. § 9721(b),

that is, the protection of the public, gravity of offense in relation

to impact on the victim and community, and rehabilitative needs

of the defendant....Furthermore, [a] trial court judge has wide

discretion in sentencing and can, on the appropriate record and

for the appropriate reasons, consider any legal factor in imposing

a sentence[.] The sentencing court, however, must also consider

the sentencing guidelines.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super. 2006)

(quotation marks, quotations, and citation omitted).

Generally, “[i]t is impermissible for a court to consider factors already

included within the sentencing guidelines as the sole reason for increasing or

decreasing a sentence to the aggravated or mitigated range.” Shugars, 895

A.2d at 1275 (emphasis in original). However, “[t]rial courts are permitted to

use factors already included in the guidelines if they are used to supplement

other extraneous sentencing information.” Id.

When deciding whether a court improperly has based an aggravated

sentence on a factor that is already considered by the sentencing guidelines,

we have stated:

[t]he guidelines were implemented to create greater consistency

and rationality in sentencing. The guidelines accomplish the

above purposes by providing a norm for comparison, i.e., the

standard range of punishment, for the panoply of crimes found in

the crimes code and by providing a scale of progressively greater

punishment as the gravity of the offense increases....The

provision of a “norm” also strongly implies that deviation from the

norm should be correlated with facts about the crime that also

deviate from the norm for the offense, or facts relating to the

offender’s character or criminal history that deviates from the

norm and must be regarded as not within the guidelines

contemplation. Given this predicate, simply indicating that an

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offense is a serious, heinous or grave offense misplaces the proper

focus. The focus should not be upon the seriousness, heinousness

or egregiousness of the offense generally speaking, but, rather,

upon how the present case deviates from what might be regarded

as a “typical” or “normal” case of the offense under consideration.

Commonwealth v. Fullin, 892 A.2d 843, 848 (Pa.Super. 2006) (citation

omitted). Moreover, “[a]n aggravated range sentence [is] justified to the

extent that the individual circumstances of [the defendant’s] case are atypical

of the crime for which [the defendant] was convicted, such that a more severe

punishment is appropriate.” Id.

In the case sub judice, during sentencing, the ADA informed the trial

court that Appellant had no ties to the community, but he had outstanding

criminal charges and active warrants. N.T. 10/22/18, at 2. The ADA noted

Appellant had “one misconduct at the Lackawanna County Prison,” and

Appellant was uncooperative with the probation officer, who completed the

PSI. Id. at 3. The ADA requested an aggravated range sentence. Id.

In response, defense counsel questioned the accuracy of Appellant’s

prior record score as contained in the PSI. Id. Further, defense counsel

explained that Appellant was uncooperative with the probation officer because

he continues to maintain his innocence. Id. at 4. Defense counsel noted

“[t]here were no drug deliveries observed or made in this case. There were

no controlled buys.” Id. Defense counsel requested a standard range

sentence. Id. at 5.

Appellant was given his right to allocution, and he stated:

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Well, your Honor, you know I’m not from here. I’ve been trying

to get bail this whole time. In the beginning[,] [the ADA] had said

he didn’t want to give me bail because I wasn’t from the area or

something like that. My mom was in the hospital. I have a lot of

family members that died while I was in jail. I mean this is above

beyond, like, I don’t know.

Id.

The trial court then stated the following:

[Appellant,] in reviewing the facts as outlined by the [ADA],

and the fact that you were on supervision at the time, as well as

the weight and severity of the substance you had, the [trial] court

does find that there is more than aggravating factors in the case.

In regard to [PWID], the [trial] court will be sentencing you

to 84 to 168 months plus five years’ probation. In regard to the

drug paraphernalia, six to 12 months, for an aggregate of 90 to

180 months [in jail] plus five years’ special probation[.]

Id. at 5-6.

Moreover, in addressing Appellant’s sentencing issue, the trial court

relevantly stated the following in its Opinion:

In the present case, the standard range of the Sentencing

Guidelines relative to Count I, Possession with Intent to

Deliver,…provided for a minimum sentence of seventy-two (72)

months incarceration, while the aggravated range provided up to

eighty-four (84) months incarceration. Appellant was sentenced

to a term of eighty-four (84) [to] one hundred and sixty-eight

(168) months incarceration, with five (5) years state probation, a

sentence within the aggravated range. The standard range of the

Sentencing Guidelines relative to Count II, Possession of Drug

Paraphernalia,..provided for a minimum sentence of restorative

sanctions to six (6) months. Appellant was sentenced to a term

of six (6) to twelve (12) months consecutive to Count 1.

Prior to sentencing, [the trial] court carefully reviewed the

PSI, the applicable standard Sentencing Guidelines, Appellant’s

character and circumstances in his life, including his lack of

connection to the area, lack of success while under supervision,

lack of cooperation with the Lackawanna County Probation

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Department, and multi-state history of delinquency and

criminality. At the time of sentencing, [the ADA] requested an

aggravated range sentence. [The ADA] stated:

After a review of the PSI, your Honor, there are no

ties to the area which the Commonwealth was able to

find. [Appellant] does have outstanding firearms

charges and active warrant[s]. His entire criminal

record is out of the state of Massachusetts or

Connecticut, further showing that there [are] no ties

to this area. [Appellant] did have one misconduct at

the Lackawanna County Prison, and after a review of

the [PSI,] your Honor, [Appellant] was uncooperative

with the probation officer who was attempting to do

the [PSI]. Your Honor[,] based on the litany of these

factors, the Commonwealth would ask for an

aggravated sentence in this case of 84 months.

N.T. [10/22/18 at] 2-3.

In response, [Appellant] agreed that he held no ties to the

community, and [he] demonstrated an indifference to the

seriousness of his actions. [Appellant] made egocentric

statements, showed a lack of remorse, and shifted responsibility.

In an unapologetic manner, [Appellant] stated: “I’ve been trying

to get bail this whole time. In the beginning, [the ADA] had said

he didn’t want to give me bail because I wasn’t from the area or

something like that. My mom was in the hospital. I have a lot of

family members that died while I was in jail. I mean this [is]

above beyond, like, I don’t know. Id. at 5.

Accordingly, [the trial] court relied on several factors that

led to Appellant’s aggravated range sentence on Count I.

Observing [Appellant’s] failure to accept responsibility, and failure

to express remorse, considered in relation to the factors outlined

by [the ADA] and the [inherent] dangerousness of [F]entanyl, [the

trial] court adopted the Commonwealth’s factors and stated:

“[Appellant,] in reviewing the facts as outlined by the [ADA], and

the fact that you were on supervision at the time, as well as the

weight and severity of the substance you had, [the trial] court

does find that there is more than aggravating factors in the case.”

Id. Also, familiar with the testimonial and documentary evidence

presented during trial, including the credible testimony of lab

technician, Jennifer J. Libus, who tested the contents of the

individual baggies, multiple police officer[s’] observations of

Appellant disposing a plastic bag into the bushes of the hotel

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parking lot, and recovery of two cell phones and $1,460 in U.S.

currency, [the trial] court recognized the necessity of

[incarceration].

***

A review of the sentencing transcript reveals that [the trial]

court considered the weight and severity of the substance not as

the sole factor, but as one factor among several that led to the

aggravated range sentence on Count I. Nothing in the record

suggests that [the trial] court solely considered the weight and

severity of the substance, other than in the context of his

complete lack of acknowledgment of responsibility and remorse

for the crimes he committed. In fact, as articulated by [the ADA],

the record reveals that [the trial] court did consider the character,

history, and condition of Appellant as required by 42 Pa.C.S. §

9725. It is clear that [the trial] court based its sentence not on

the weight of the [F]entanyl possessed, a factor considered in

setting the sentencing guidelines, but on the [inherent]

dangerousness of the [F]entanyl, the way the [F]entanyl was

packaged in individual plastic baggies, combined with police

observations, recovered U.S. currency and two cell phones to

indicate the potential threat and fatal impact to the community by

Appellant. Therefore, as required by 42 Pa.C.S. § 9721(b), [the

trial] court upheld a duty to protect the community and exhibited

serious concern for the impact of Appellant’s offenses on the

public.

***

[The trial] court found that a standard range sentence would

depreciate the seriousness of the offense committed and create a

greater risk of violating supervision. [The trial] court viewed

Appellant as a danger to the community, a resident of

Massachusetts solely entering the community to commit criminal

offenses with no indication of productivity or lawfully contributing

to the community.

Therefore, fully aware of [Appellant’s] criminal offense, the

information contained in the PSI, the applicable sentencing

guidelines, the testimony of all the witnesses presented at trial,

argument by both counsel, Appellant’s statements at sentencing

as well as the punitive, deterrent, rehabilitative, and protective

purposes of sentencing, [the trial] court weighed all factors

accordingly, and for compelling reasons[,] imposed an aggravated

range sentence on Count I within the statutory maximum.

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Trial Court Opinion, filed 5/6/19, at 21-25 (footnotes, citations, and bold

omitted).

Based on the aforementioned, we find no merit to Appellant’s

discretionary aspects of sentencing claim. Specifically, we disagree with

Appellant that the trial court impermissibly considered factors already included

in the sentencing guidelines as the sole reason for increasing his sentence to

the aggravated range. See Shugars, supra.

For all of the foregoing reasons, we affirm.

Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/4/2019

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