The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIMOTHY ARROYO :
:
Appellant : No. 1332 EDA 2024
Appeal from the Judgment of Sentence Entered April 18, 2024
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002006-2022
BEFORE: STABILE, J., DUBOW, J., and SULLIVAN, J.
MEMORANDUM BY DUBOW, J.: FILED JULY 3, 2025
Appellant, Timothy Arroyo, appeals from the judgment of sentence
entered on April 18, 2024, in the Court of Common Pleas of Philadelphia
County following his convictions after a bench trial for Possession with Intent
to Deliver and Knowing and Intentional Possession of a controlled substance. 1
Appellant challenges the admission of certain testimony. After careful review,
we affirm.
We glean the relevant factual and procedural history from the trial court
opinion. On December 15, 2021, at approximately 3:15 PM, the Philadelphia
Police Department’s Narcotics Strike Force (“NSF”) was conducting
surveillance on the 2900 block of Howard Street in the Kensington section of
Philadelphia. Officer Brian Outterbridge observed a man, Javier Pagan,
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1 35 P.S. § 780-113(a)(16) and (a)(30), respectively.
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approach Appellant, engage in a brief conversation, and hand Appellant
money. Appellant then walked into a blue tent on the sidewalk, returned to
Mr. Pagan, and handed him a small object.2 Backup officers stopped Mr.
Pagan once he left the area and recovered an orange stapled Ziplock packet
of powder cocaine.
“A few minutes later,” Officer Outterbridge observed another man,
Gabriel Rodriguez, approach Appellant and hand him money. Trial Ct. Op.,
9/3/24, at 2. Appellant again went to the tent, returned, and handed small
objects to Mr. Rodriguez. Backup officers stopped Mr. Rodriguez and
recovered an orange stapled Ziploc packet of powder cocaine. Officer
Outterbridge could not hear the conversations or see the denominations of the
money exchanged.
After this transaction, Appellant drove away in a black BMW.
Approximately 17 minutes later, he returned to the block, exited the vehicle,
and sat on the front steps of a residence. After receiving Appellant’s
description from Officer Outterbridge, backup officer Anthony Woltman
arrested Appellant, searched him, and recovered $650 in cash. Backup officer
Michael Robertson searched the tent and recovered 30 pink flip-top containers
of crack cocaine.
Appellant proceeded to a bench trial on April 4, 2024. Officers
Outterbridge, Woltman, and Robertson testified consistently with the above
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2 The tent consisted of four poles with a blue canopy on the top—it was open
on all four sides. N.T. Trial, 4/4/24, at 27.
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facts. The officers who recovered the drugs from the buyers did not testify,
and instead the parties stipulated to the property receipts, which indicated
that both buyers possessed powder cocaine in orange Ziploc packets. Exhibits
C-1 & C-4. The Commonwealth did not present any expert testimony.
During Officer Outterbridge’s testimony, Appellant lodged the following
objections:
Commonwealth: And how many narcotics arrests have you made
over the years?
Officer Outterbridge: Well over a thousand.
Appellant: Your Honor, I’m going to object to relevance. This is,
again, a trial about what happened on that date. This is not a
motion to suppress. I would argue that this is irrelevant testimony
for purpose of the trial.
****
Commonwealth: Officer, as of December 15th of 2021, did you
know any narcotics sales to be made in the area of the 2900 block
of North Howard Street in the city and county of Philadelphia?
Appellant: And, Your Honor, I do object to that question as well. [3]
****
Commonwealth: Officer, you just testified to two transactions you
witnessed involving U.S. currency in exchange for a small item.
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3 Appellant objected to the previous question, whether the area was a high-
crime area, because that question went “towards a motion and not towards,
as far as relevance goes, my client’s guilt or innocence. . . .they’re trying to
get in really evidence without any foundation other than the officer’s
testimony, that it. . .would be overly prejudicial [and] would outweigh the
relevance to the fact finder.” N.T. Trial at 17.
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What, if anything, did you believe that you were observing at that
time?
Officer Outterbridge: I believed I observed a narcotics transaction.
Commonwealth: And what did you base your belief on?
Officer Outterbridge: Based on experience, most narcotic
transactions are similar in nature. So it’s the repetition of it. You
have short conversations. You have some money exchanged,
normally for objects.
Appellant: Objection. Your Honor, I’m going to object to this line
of testimony. It’s not relevant who is the finder of fact or taking
the information to determine whether or not these are narcotics
transactions. At this point the Commonwealth is basically
asking the witness to qualify himself as an expert and give
an expert opinion as to what he observed. Once again, this
is not a motion to suppress; this is a trial. And for purposes of a
motion to suppress, I could understand this evidence being
relevant. However, for trial purposes, you as the finder of fact at
the trial are the one that needs to make that determination.
****
Commonwealth: Now, would that -- does that give you any
impression if a dealer is selling both, the same dealer is selling
both [crack cocaine and powder cocaine]--
Appellant: Objection, Your Honor.
Court: Sustained.
Commonwealth: Okay. Have you, in your experience, witnessed
a same dealer selling both crack cocaine and powder cocaine?
Appellant: Objection, Your Honor.
Court: Overruled. That one’s overruled.
N.T. Trial, 4/4/24, at 15-16; 19; 29-30; 32-33 (emphasis added). With the
exception of one, the court overruled each of these objections. Id. at 16, 19,
31-33.
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Appellant testified that he earned approximately $500 per week via
direct deposit for his “off and on” work as a home health aide for his uncle,
who lived on the 2900 block of Howard Street, and further stated that he
earned cash for occasional plumbing work. Id. at 61. He explained that, on
the date of his arrest, he left his uncle’s house to pick up his girlfriend in his
black BMW, returned to his uncle’s house, and went inside to get money for
his uncle’s medicine when he was arrested. He also testified that he did not
consider $650 to be a lot of money—$234 was for his uncle’s medicine and
the rest was for daily expenses. Finally, Appellant denied going inside the
blue tent or interacting with anyone on the street beyond casual greetings.
The court convicted Appellant of the above charges. On April 18, 2024,
the court sentenced Appellant to 3 years of probation.
Appellant timely appealed. Both he and the trial court complied with
Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Did the trial court err (as it conceded) in permitting the
Commonwealth to elicit inadmissible expert opinion testimony
from Officer Outterbridge, a lay witness?
2. Was the trial court’s conceded error harmless?
Appellant’s Br. at 3.
We review evidentiary rulings for an abuse of discretion.
Commonwealth v. Thompson, 106 A.3d 742, 754 (Pa. Super. 2014). An
abuse of discretion is “the overriding or misapplication of the law, or the
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exercise of judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill-will[,] or partiality, as shown by the evidence of record.”
Commonwealth v. Harris, 884 A.2d 920, 924 (Pa. Super. 2005) (citations
omitted).
It is well-settled that “[g]enerally, lay witnesses may express personal
opinions related to their observations on a range of subject areas based on
their personal experiences that are helpful to the factfinder.”
Commonwealth v. Berry, 172 A.3d 1, 3–4 (Pa. Super. 2017). Lay witness
opinion testimony is admissible if it is
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.
Pa.R.E. 701. By contrast, “[a] witness who is qualified as an expert by
knowledge, skill, experience, training, or education” may offer an opinion if,
relevantly, his “scientific, technical, or other specialized knowledge is beyond
that possessed by the average layperson[.]” Id. at 702(a). Furthermore,
“[a]n opinion is not objectionable just because it embraces an ultimate issue”
in a case. Id. at 704.
In Commonwealth v. Carter, we addressed the admissibility of expert
testimony where officers observed the appellant conducting narcotics
transactions and subsequently recovered the stash. 589 A.2d 1133 (Pa.
Super. 1991). During the appellant’s jury trial, the court permitted the police
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officers to testify as expert witnesses about, inter alia, “whether the pattern
of activity observed by the police officers was consistent with the usual pattern
of narcotics transactions.” Id. at 1134. This Court, however, concluded that
the court had abused its discretion in permitting the officers to testify as
experts. Id. at 1135. We opined that the jury did not need specialized
knowledge to determine whether it believed the officers’ testimony about their
observations, and thus, the officers’ expert testimony was prejudicial, and
cumulative. Id. at 1134-35. Moreover, we noted that permitting officers to
testify as experts would cause the jury to focus improperly on qualifications
rather than firsthand knowledge. Id. at 1135. However, the Court held that
this type of expert testimony is appropriate in cases where officers do not
observe transactions. Id.
With respect to the harmless error doctrine, “we must vacate the order
on review to correct the error unless we are convinced beyond a reasonable
doubt that the error is harmless.” Commonwealth v. Murray, 248 A.3d
557, 576 (Pa. Super. 2021) (citation and internal quotation marks omitted).
An error is harmless where
(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.
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Commonwealth v. Fitzpatrick, 255 A.3d 452, 483 (Pa. 2021) (citations
omitted). In other words, “an evidentiary error of the trial court will be
deemed harmless on appeal where the appellate court is convinced, beyond a
reasonable doubt, that the error could not have contributed to the verdict.”
Commonwealth v. DeJesus, 880 A.2d 608, 614 (Pa. 2005).
Relevantly, where a defendant opts for a bench trial, “a judge [as
factfinder], as opposed to a jury of laypersons, possesses the expertise
necessary to perceive and discount improper opinion evidence from a police
expert[.]” Commonwealth v. Brown, 596 A.2d 840, 844 (Pa. Super. 1991).
The court, as factfinder, “presumptively is capable of disregarding
inadmissible evidence and considering only relevant and competent evidence.”
Commonwealth v. Neal, 713 A.2d 657, 662 (Pa. Super. 1998).
*
Appellant agrees with the trial court’s concession that it was an abuse
of discretion to allow Officer Outterbridge to offer the above testimony.
Appellant’s Br. at 16-17. He further asserts that the Commonwealth failed to
meet its burden to establish that the error was harmless beyond a reasonable
doubt because the evidence at trial was not overwhelming and this testimony
was necessary to overcome weaknesses in the evidence. Id. at 17-18, 20-
21. Specifically, he notes that Officer Outterbridge’s descriptions of the
transactions were “extremely vague” and the drugs in the stash did not match
the drugs recovered from the buyers, and he argues that Officer
Outterbridge’s testimony filled these gaps. Id. at 20. He also cites other
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perceived weaknesses in the evidence, such as the lack of explanation why he
left his stash unattended in the tent, and the lack of testimony that the
packaging of the drugs recovered from the two buyers matched. 4 Id. at 20-
21. Relatedly, Appellant asserts that the court’s disbelief of his testimony is
insufficient to convict him—the Commonwealth must still meet its burden to
affirmatively establish his guilt. Id. at 22 (citing Commonwealth v. Torres,
766 A.2d 342, 345 (Pa. 2001)).
In support, Appellant explains that Brown, which held that the court,
as fact-finder, could discount improper opinion evidence, is distinguishable
because the court did not indicate that it disregarded the inadmissible
testimony completely. Id. at 18-19 (citing 596 A.2d at 840). He maintains
that the testimony at issue is similar to that in Carter, because, like in Carter,
police testified to observed transactions, and thus expert testimony—or lay
testimony emphasizing the officer’s experience and knowledge—was
unnecessary, cumulative, and prejudicial. Id. at 22-25. Finally, he notes that
the Commonwealth emphasized this testimony in its closing argument. Id. at
25-26.
The trial court conceded that it should not have permitted Officer
Outterbridge to testify about his experience when he was not qualified as an
expert witness. Trial Ct. Op. at 5. However, it determined that the error was
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4 The parties had entered a stipulation as to the police department’s property
receipts, which stated that the cocaine recovered from each buyer was in
stapled orange Ziploc packets. Commonwealth’s Ex. C-1 and C-4.
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harmless because the evidence of Appellant’s guilt was overwhelming—the
recovery of the same drugs in the same packaging from both buyers that had
interacted with Appellant corroborated Officer Outterbridge’s credible
testimony about his observations. Id. at 2, 7. Furthermore, the court noted
that it found Appellant’s testimony about his activities that day, his
employment, and the source of the money on his person not credible. Id. at
7-8. Finally, the court explained that, as the factfinder, it could discount
improper opinion testimony, and that it did not let that testimony influence
credibility or give it “undue weight.” Id. at 7 (citing Brown, 596 A.2d at 844).
Following our review, we agree with the trial court’s conclusion, and
appreciate the trial court’s candor, that it erroneously admitted Officer
Outterbridge’s testimony. Officer Outterbridge relied on specialized
knowledge gained from his experience as an NSF officer to opine that the
interactions he observed were drug deals. This constitutes an expert opinion,
not a lay opinion, and he was not qualified as an expert witness. 5
However, the trial court correctly concluded that admitting this
testimony was harmless error. The evidence indicated that Appellant
conducted exchanges with two buyers who were stopped shortly after, and
both had cocaine in the same type of packaging. Therefore, despite the
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5 The Commonwealth cites Carter to establish that officers should not give
expert testimony on the drug sales that they personally observed, but Carter
does not address whether officers can give that same type of opinion
testimony as a lay witness. Commonwealth’s Br. at 10-11 (citing 589 A.2d at
1133-35).
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alleged weaknesses cited by Appellant, the evidence presented at trial allowed
the court to reasonably infer that Appellant sold cocaine to the buyers, without
relying on Officer Outterbridge’s improper opinion testimony to reach that
conclusion. We have no reason to disbelieve the court’s assertion that it
“discount[ed] any improper opinion evidence.” Trial Ct. Op. at 7. Accordingly,
we conclude that the error was harmless, and Appellant is not entitled to relief.
Therefore, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Date: 7/3/2025
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