Com. v. Burgess, K., Jr.

J-S04022-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

KIM ALEXANDER BURGESS, JR.

Appellant No. 401 MDA 2020

Appeal from the Judgment of Sentence Entered January 2, 2020

In the Court of Common Pleas of Lancaster County

Criminal Division at No: CP-36-CR-0003837-2018

BEFORE: OLSON, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY STABILE, J.: FILED APRIL 7, 2021

Appellant, Kim Alexander Burgess, Jr., appeals from his judgment of

sentence of 23½-62 years’ imprisonment for drug delivery resulting in death,

conspiracy to deliver fentanyl, delivery of fentanyl, and criminal use of

communication facility.1 We affirm.

The following evidence was adduced during trial:

Alyssa Stoltzfus (“Stoltzfus”) testified that she was the sister of

Jeannie Heiser (“the victim”), they lived together, her sister

occasionally used drugs, and her sister bought the drugs from

someone named Elby who was on house arrest. On October 5,

2017, the victim told Stoltzfus that she just used heroin and it was

really strong. Later that day, Stoltzfus found the victim lying face

down on the floor. Trooper Jonathan Cox of the Pennsylvania

State Police (“PSP”) responded to the scene and found the victim

deceased in the living room. Dr. Wayne Ross, a forensic

pathologist, testified that the victim died of acute fentanyl toxicity.

According to a report from National Medical Services Lab, the

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118 Pa.C.S.A. § 2506(a), 18 Pa.C.S.A. § 903(a)(1), 35 P.S. § 780-113(a)(30),

and 18 Pa.C.S.A. § 7512(a), respectively.

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victim had 2.4 nanograms per milliliter of fentanyl in her blood,

which was lethal. Detective Cox found four empty wax paper

baggies or sleeves in the victim’s purse that appeared to contain

heroin residue.

PSP Trooper Brian McNally testified that the four wax paper

baggies were sent to the PSP laboratory for analysis and it was

determined they contained fentanyl. Cox retrieved the victim’s

phone and pass code. Trooper McNally testified that from an

external review police saw a number of text messages between

the victim and a female listed in contacts as Elby. PSP analysts

determined the phone number associated with Elby belonged to

Lauren Miller (“Miller”), who was on house arrest.

Trooper McNally obtained phone records for both Miller and the

victim which showed a substantial amount of text messages and

phone calls between the two of them on October 5, 2017. A

picture from the victim’s phone which was taken outside of Miller’s

residence also showed a white wax paper fold stashed underneath

the threads of a broom, consistent with the baggies found in the

victim’s residence.

Miller’s phone records showed that she was in contact with

telephone number 717-984-9568 on the morning of this incident,

while she had very little contact with any other parties. Police

obtained phone records for 717-984-9568, and the subscriber

came back as Mike Jones of 240 King Street in Lancaster. Police

were not able to locate that individual. Police also obtained detail

records showing subscriber information, call logs, text logs, and

information detailing which cellphone towers were used to see

where the phones were located. Through investigation, police

learned that Miller contacted Appellant to see if he would sell

heroin to the victim.

Police interviewed Miller three times. Miller acknowledged she

was not honest when she met with Trooper McNally on October 5,

2017, because Appellant was her friend and her drug dealer.

Miller was also not truthful the second time they met. However,

Miller stated she was truthful when they met in February of 2018

after she was arrested and stopped using drugs.

On February 20, 2018, Miller was interviewed by police and she

identified Appellant as the person responsible for delivering the

drugs which caused the victim’s death. At trial, Miller

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acknowledged she was known as Elby and stated she had been

addicted to opioids for close to ten years. Miller knew Appellant

for most of that time because she purchased drugs from him.

Miller stated that the victim called her on October 5, 2017 to buy

heroin, and Miller contacted Appellant by text and phone so he

could make the delivery. The victim was then to bring some

heroin to Miller because Miller was on house arrest for a 2016

charge of delivery of heroin. Miller did not have to pay for the

drugs she was going to receive because Appellant “owed me

some.” Miller admitted she coordinated the phone calls and

arranged the deal because the victim did not know Appellant.

Miller provided the victim and Appellant with a description of each

other and told the victim where to meet Appellant in downtown

Lancaster. Miller testified that the victim texted her from outside

Miller’s house after the drug delivery was completed indicating the

victim was leaving the drugs near a broom on the porch. Miller

then retrieved four small bags of drugs from outside.

Within the next few days, Appellant traveled to Miller’s house to

deliver more heroin directly to her, at which time Miller told

Appellant that the victim had died. Appellant went ahead with the

drug deal.

Miller informed Trooper McNally that Appellant had a girlfriend

named Jennifer Simmons (“Simmons”). Trooper McNally located

an address for Simmons and went to her residence. Simmons was

not there, but her mother, Mary Jo Russin (“Russin”), was. Russin

testified at trial that she knew Appellant since 2014 because he

dated her daughter. Appellant lived with Russin from May through

Labor Day of 2017. In August or September of 2017, Russin

suspected that Appellant had a burner phone. Burner phones are

cheap, easy to obtain, non-traceable, and do not require identity

because they are prepaid. Drug dealers commonly buy these

phones under a fake name to elude law enforcement because they

are easily destroyed and the dealer purchases another one with a

new number and no content stored on the phone.

When Russin searched the room Appellant shared with Simmons,

Russin found a receipt inside a Metro PCS box with the name of

Mike Jones. Russin called the number on the receipt (984-9568)

and Appellant answered the phone.

During her testimony, Russin acknowledged pending charges for

obtaining a controlled substance by fraud, forgery, deception,

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misrepresentation, or subterfuge, but stated no promises had

been made to her in exchange for her testimony.

Trooper McNally testified that subsequent investigation

determined an individual by the name of Stephanie Custer

(“Custer”) called the phone number belonging to “Mike Jones”

more than 150 times from the beginning of September to the

middle of November. Custer was located in SCI Cambridge

Springs and was later interviewed by police. Custer testified she

bought heroin from Appellant for a few years, including from the

middle of 2017 through late that year. Custer would text

Appellant to get heroin and Appellant would ask how much she

wanted. When told there were 139 contacts from September 26,

2017 through October 14, 2017 between her phone and the phone

number associated with Appellant, Custer was surprised the

number was not higher because the contacts were “constant.”

After Appellant was placed on house arrest following the victim’s

death, he continued to sell heroin to Custer out of his bedroom

window. In early 2018, Appellant told Custer to be really careful

because it was really strong, and Custer overdosed twice in less

than one week on heroin she got from Appellant.

Custer stated she was in state prison for theft, forgery and

paraphernalia charges, but no promises were made to her in

exchange for her testimony.

Detective Stephen Owens (“Owens”) testified as an expert in the

[field] of cellular records, cellular records analysis, digital

forensics, and tower location data. Detective Owens reviewed an

extract from the victim’s cellphone which contained contacts, text

messages and pictures. Detective Owens reviewed call detail

records for the phones of Miller and the victim which were

obtained from phone companies. Detective Owens also reviewed

call detail records from T-Mobile for phone number 717-984-9568,

which provided a subscriber name of Mike Jones and an effective

date of August 20, 2017. Metro PCS is the prepaid arm of T-

Mobile.

Detective Owens stated that tower location data established the

victim’s cellphone was located in Lancaster City on October 5,

2017, at 10:48 a.m., near the area where Miller stated she

arranged for the victim and Appellant to meet for the drug deal.

The cellphone belonging to Appellant/Mike Jones was also located

in Lancaster City at 10:45 a.m., in the area of the drug

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transaction. The two phones were generally in the same area

between 10:45 a.m. and 10:48 a.m., while Miller’s cellphone was

at her residence.

Detective Owens noted there was a call from Miller’s phone to the

phone of Mike Jones/Appellant at 10:45 a.m., which was

consistent with Miller’s testimony that she was trying to coordinate

the meeting between Appellant and the victim. At the time of the

call, Miller’s phone was utilizing the tower by her residence. On

October 6, 2017, the day after the overdose, the phone belonging

to Mike Jones/Appellant was located at the tower near Miller’s

residence.

Detective Owens found photographs on the victim’s phone, taken

from Miller’s residence on October 5, 2017, at 12:35 p.m., which

showed heroin glassines. Detective Owens then found a text

between Miller and the victim at 12:37 p.m. stating, “you’re the

best, I owe you bigtime.” Police and EMS were dispatched to the

victim’s residence for cardiac arrest at 3:24 p.m.

Detective Owens stated that while he was testifying about the

suspect phone and not the person, he compiled a list of the most

frequently called numbers to identify those individuals who could

associate the phone with a specific person. Records showed that

Russin made a series of calls to the suspect phone on September

3, 2017. Miller had 646 contacts with the suspect phone between

September 23 and October 12. Custer also had frequent contact

with the suspect phone, so Detective Owens recommended that

police speak to her. According to Detective Owens, the records

were consistent with and corroborated the witness testimony that

Appellant utilized phone number 717-984-9568.

Trial Court Opinion, 5/6/20, at 2-7 (citations and footnotes omitted; minor

editing).

On September 26, 2019, following a three-day trial, the jury found

Appellant guilty on all counts. The court ordered a pre-sentence investigation

report. On January 2, 2020, the court imposed the following sentence on

count 1 (delivery of fentanyl): 15-30 years’ imprisonment; count 2 (drug

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delivery resulting in death): 20-40 years’ imprisonment; count 3 (criminal use

of communication facility): 1½-7 years’ imprisonment; and count 4

(conspiracy/delivery of fentanyl): 2-15 years’ imprisonment. The sentence on

count 1 was concurrent with the sentence on count 2. The sentences on

counts 3 and 4 were consecutive to one another and consecutive to the

sentence imposed on count 2.

Appellant filed a timely post-sentence motion to modify sentence, which

the court denied, and a timely notice of appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal:

I. Did the trial court err in permitting Mary Jo Russin to testify

generally to [Appellant]’s purported use of burner phones and

alleged use of her vehicle, which was unrelated to his alleged sale

of heroin to Jeannie Heiser and Lauren Miller, where said

testimony was more prejudicial than probative and not relevant

under Pennsylvania Rule of Evidence 404(b)?

II. Did the trial court err in permitting Stephanie Custer to testify

that [Appellant] sold heroin to her out of Days Inn in 2017 and

from his aunt’s house in 2018, that in 2018 he told her the stuff

he was selling was really strong, that she drove him to Weis

Market where he stole energy drinks, and that [Appellant]’s

girlfriend told her [Appellant] was on house arrest because a girl

died; and was said testimony more prejudicial than probative and

not relevant under Pennsylvania Rule of Evidence 404(b)?

III. Did the trial court err in permitting [Detective] Owens to

testify, beyond the scope of his expertise, that [Appellant] was in

possession of and using phone number (717) 984-9568; and by

doing so, was Detective Owens invading the province of the jury

and weighing the credibility of other witnesses regarding matters

outside his area of expertise?

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IV. To the extent that the jury found [Appellant] guilty of

delivering fentanyl to [the victim], should this charge have

merged with drug delivery resulting in death at sentencing; to the

extent that the jury found [Appellant] guilty of delivering fentanyl

to Lauren Miller, was the evidence presented by the

Commonwealth insufficient to prove beyond a reasonable doubt

that [Appellant] knew that [the victim] was delivering some of the

fentanyl she received from him to Ms. Miller?

V. Was the aggregate sentence of 23.5 to 62 years’ incarceration

manifestly excessive and an abuse of the court’s discretion;

further, was the sentence imposed for drug delivery resulting in

death clearly unreasonable?

Appellant’s Brief at 9-10.

In his first two arguments, Appellant challenges the admissibility of

Russin’s and Custer’s testimony under Pa.R.E. 404(b). We review these

arguments together because they involve similar subjects, and we conclude

that the trial court acted within its discretion by admitting this testimony.

Our standard of review regarding evidentiary issues is well-settled:

The admissibility of evidence is at the discretion of the trial court

and only a showing of an abuse of that discretion, and resulting

prejudice, constitutes reversible error. An abuse of discretion is

not merely an error of judgment, but is rather the overriding or

misapplication of the law, or the exercise of judgment that is

manifestly unreasonable, or the result of bias, prejudice, ill-will or

partiality, as shown by the evidence of record. If in reaching a

conclusion the trial court overrides or misapplies the law,

discretion is then abused and it is the duty of the appellate court

to correct the error.

Commonwealth v. Glass, 50 A.3d 720, 724-25 (Pa. Super. 2012).

Pennsylvania Rule of Evidence 404(b) provides:

(1) Prohibited Uses. Evidence of a crime, wrong, or other act

is not admissible to prove a person’s character in order to

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show that on a particular occasion the person acted in

accordance with the character.

(2) Permitted Uses. This evidence may be admissible for

another purpose, such as proving motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident. In a criminal case this evidence

is admissible only if the probative value of the evidence

outweighs its potential for unfair prejudice.

(3) Notice in a Criminal Case. In a criminal case the

prosecutor must provide reasonable notice in advance of

trial, or during trial if the court excuses pretrial notice on

good cause shown, of the general nature of any such

evidence the prosecutor intends to introduce at trial.

Id. Both prior and subsequent bad acts are admissible under Rule 404(b)(2).

Commonwealth v. Kinard, 95 A.3d 279, 285 n.3 (Pa. Super. 2014) (en

banc).

In addition to the exceptions listed in Rule 404(b)(2), 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 surrounding the

crime.” Commonwealth v. Crispell, 193 A.3d 919, 936-37 (Pa. 2018)

(certain citations and quotation marks omitted). Evidence of other bad acts

is admissible under the res gestae exception where the particular crime or act

was part of a chain, sequence, or natural development of events forming the

history of a case. Id. The purpose of res gestae evidence is to provide a

natural backdrop of events so that the jury does not have to judge the

behavior of the defendant and other actors in a vacuum. See, e.g.,

Commonwealth v. Hairston, 84 A.3d 657, 670-71 (Pa. 2014) (evidence of

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defendant’s sexual assault of stepdaughter was admissible at his trial for

murdering his wife and son, since (1) stepdaughter reported defendant’s

assault to police, (2) defendant threatened to murder wife and son in

retaliation for stepdaughter’s report, and (3) murder of wife and son took

place two weeks before trial for the assault was scheduled to begin);

Commonwealth v. Richter, 676 A.2d 1232, 1235 (Pa. Super. 1996) (in rape

prosecution, evidence of defendant’s prior brutal rapes against ex-wife

admissible “not . . . to establish a propensity to commit rape [but] to show

the victim’s state of mind in failing to physically resist [defendant’s]

advances”).

When the trial court admits evidence of a defendant’s other bad acts,

“the defendant is entitled to a jury instruction that the evidence is admissible

only for a limited purpose.” Commonwealth v. Solano, [] 129 A.3d 1156,

1178 ([Pa.] 2015).

Here, Russin testified that she knew Appellant because he dated

Russin’s daughter for several years and lived at Russin’s house with her

daughter during the spring and summer of 2017. Russin did not fully trust

Appellant or her daughter, who was a heroin addict. At one point during the

summer of 2017, Russin’s car went missing, and she found a trip to

Philadelphia on the EZ-Pass transponder. Russin previously had seen her

daughter and Appellant in possession of burner phones. She also saw

Appellant with more than one phone, but he denied that he had an extra

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phone. In the late summer of 2017, Russin searched the room Appellant

shared with Russin’s daughter and found a receipt with the name of Mike

Jones. Russin called the number on the receipt, (717) 984-9568 (the “Mike

Jones phone number”), and Appellant answered the phone. This confirmed

Russin’s belief that Appellant had a burner phone, and she threw Appellant

out of her house. N.T., 9/24/19, at 285-303.

Appellant acknowledges that certain details in Russin’s testimony are

admissible, specifically the facts that Russin knew Appellant, found the receipt

with the name of Mike Jones, and contacted Appellant at the Mike Jones phone

number. Appellant’s Brief at 35-36. These facts demonstrate that Appellant

used the Mike Jones phone number—a critical fact because approximately one

month later, Miller contacted Appellant at this very number to arrange the

delivery of the fatal drugs to the victim.

Appellant maintains, however, that the remainder of Russin’s testimony

was irrelevant and prejudicial because it portrayed Appellant as a drug dealer

and a person of bad character. We disagree; the evidence was admissible

under res gestae principles. The Commonwealth did not offer this evidence

to demonstrate Appellant’s propensity to sell drugs. It submitted this

evidence to explain why Russin searched Appellant’s room and called the Mike

Jones phone number. Russin did not trust Appellant because she saw

Appellant in possession of burner phones, he lied to her that he did not have

an extra phone, and her car mysteriously disappeared at one point during

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Appellant’s residence in her house. Russin’s suspicions caused her to search

Appellant’s room, locate the receipt, and call the Mike Jones phone number

on the receipt. Absent this evidence, the jury would have viewed Russin’s

decision to search the room and call the Mike Jones phone number in a

vacuum, and it probably would have found her conduct inexplicable. To give

the jury a full and accurate picture of Russin’s decision making, the trial court

correctly admitted this evidence as part of the natural backdrop of this case.

Custer’s testimony was admissible as well. Custer testified that she

purchased heroin from Appellant for several years, including the months

before and after the victim’s death. Her practice was to text Appellant’s

number to arrange drug purchases and meet him at a Day’s Inn to complete

the purchases. Although she did not remember Appellant’s number, she

identified her own number in the call records for the Mike Jones phone

number. In early 2018, Appellant told Custer that the heroin he was selling

was really strong and to be careful, but she overdosed twice in less than a

week. On another occasion in 2018, she learned from Appellant’s girlfriend

that he was out on bail and on house arrest for a girl that had died. Because

Appellant could not come outside, he sold Custer heroin out of the bedroom

window in his aunt’s house. On cross-examination, defense counsel elicited

Custer’s testimony that she knew Appellant to be a drug user, and that she

once drove him to a market where he stole cases of energy drinks. N.T.,

9/24/19, at 314-19, 327-38.

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As he did with regard to Russin’s testimony, Appellant concedes that

some of Custer’s testimony was admissible while objecting to the rest. He

admits that “Custer’s testimony regarding the Mike Jones phone number

belonging to [Appellant] tended to show identity—that the phone was actually

owned and used by [Appellant].” Appellant’s Brief at 36. The rest of Custer’s

testimony, Appellant contends, was prejudicial and irrelevant. We disagree.

Appellant cannot complain about Custer’s testimony that she knew Appellant

used drugs and stole energy drinks because defense counsel elicited this

testimony, not the Commonwealth. Custer’s testimony about her practice of

texting the Mike Jones phone number and then purchasing drugs from

Appellant at a Day’s Inn was relevant to show that the Mike Jones phone

number belonged to Appellant—the very evidence that Appellant admits was

admissible. Id. Finally, Custer’s testimony that (1) Appellant sold Custer

heroin shortly after his arrest on charges arising from the victim’s death, and

(2) Appellant told Custer that the heroin that he sold her was very strong, was

admissible to show that Appellant intended to sell a controlled substance to

the victim, an element of the principal charge against Appellant, drug delivery

that causes death. 18 Pa.C.S.A. § 2506(a) (individual commits first-degree

felony if he intentionally delivers controlled substance and another person dies

as a result of using the substance); Pa.R.E. 404(b)(2) (other crimes evidence

admissible to demonstrate defendant’s intent).

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In his next argument, Appellant asserts that the trial court erred by

permitting the Commonwealth to present expert testimony by Detective

Owens that bolstered the credibility of several fact witnesses on the subject

of whether Appellant was using the Mike Jones phone number. As stated

above, we review the trial court’s decisions regarding admissibility of evidence

for abuse of discretion. We conclude that Detective Owens improperly

bolstered the credibility of several fact witnesses by testifying that his opinion

was “consistent with” or “corroborated” their factual testimony. Nevertheless,

any error in admitting his testimony was harmless due to the overwhelming

evidence of Appellant’s guilt.

Detective Owens testified as an expert witness in cellular phone records,

cellular records analysis, digital forensics, and tower location data. 2 N.T.,

9/24/19, at 373-74. Detective Owens created a PowerPoint that organized

cell phone records, primarily records from the phones registered to Mike

Jones, Miller, and the victim, as well as records of phone calls between Custer

and Mike Jones, and between Russin and Mike Jones. The presentation also

showed the general location of the Mike Jones, Lauren Miller, and victim

cellphones on the morning of October 5, 2017. Cell phone records

____________________________________________

2 Appellant does not suggest that these subjects were not proper subjects for

expert testimony, or that Detective Owens lacked sufficient qualifications to

testify as an expert on these subjects. Accordingly, we assume that these

subjects were proper matters for expert testimony and that Detective Owens

had sufficient expertise to testify about them.

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corroborated Miller’s testimony that the victim called her on the morning of

October 5th and that Miller called the Mike Jones phone number numerous

times on the same date. Cell phone tower data showed the victim’s phone

and Mike Jones’ phone in Lancaster City that morning in partially overlapping

areas.

The prosecutor asked Detective Owens, based on the witnesses’

testimony, whether he could draw the conclusion that the Mike Jones phone

number was associated with Appellant. Detective Owens replied that “[i]t is

consistent with [Appellant] utilizing that telephone, absolutely.” N.T.,

9/24/19, at 391-92. Defense counsel objected, arguing that the prosecutor

could not buttress his prior witnesses, and that the question whether the Mike

Jones phone was associated with Appellant was not within the purview of

Detective Owens’ investigation. Id. at 392. The court directed the prosecutor

to rephrase the question. The prosecutor asked, “To a reasonable degree of

expert certainty, based on what you’ve heard in court and what you’ve seen

in these records, do you draw a conclusion as to that phone number?”

Detective Owens replied, “It’s consistent with that telephone was utilized by

[Appellant].” Id. Defense counsel began to object again, and the court

overruled the objection. Id. at 392-93. Detective Owens referred to the Mike

Jones phone as “[Appellant], aka Mike Jones,” and “Mike Jones or [Appellant]”

when discussing that it was located in Lancaster City at 10:45 a.m. on October

5th, possibly near the victim’s phone. Id. at 396-97. Defense counsel

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objected that Detective Owens was not qualified to testify as to who possessed

the Mike Jones phone, and that he was buttressing the Commonwealth’s

witnesses by doing so. Id. at 398. The trial court instructed the prosecutor

to have Detective Owens make clear that he was concluding that the phone

belonged to Appellant based on Russin’s testimony. Id. at 399.

The prosecutor clarified that Detective Owens based his testimony that

Appellant was using the Mike Jones phone “in part” on witnesses’ testimony.

Id. at 400. The prosecutor asked, “So taking all of that, does that create a

foundation for you, to a reasonable degree of professional expert certainty

called for what you were doing with this presentation, that you associate the

number with [Appellant]?” Detective Owens replied, “Correct.” Id. Defense

counsel objected again, arguing that Detective Owens could not make a

credibility determination, which was “the unique province of the jury, about

Mary Jo Russin, Stephanie Custer.” Id. at 401. The trial court overruled the

objection, holding that an expert was permitted to draw specific conclusions

based on the testimony of other witnesses as well as records provided from

telephone companies. Id.

Detective Owens described the process of “putting the phone in

somebody’s hand, because what I’m testifying to is the phone, not the

person,” and explained how he drew conclusions about who each phone

number belonged to. Id. at 411-12. Defense counsel objected that Detective

Owens was going beyond his expertise, and the court informed the prosecutor,

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“I think that you need to clarify . . . that this witness in identifying that phone

number as belonging to [Appellant] is basing that on the information provided

by the witnesses.” Id. at 414. Detective Owens acknowledged that he never

saw Appellant dial any of these numbers, but he based his conclusion that it

was Appellant’s phone on “external factors.” Id. at 415-16. Detective Owens

explained that he based his conclusion that the Mike Jones phone belonged to

Appellant on Miller’s testimony and the fact that her phone call records were

consistent with her testimony. Id. at 417 (detective’s claim that telephone

records “corroborat[ed] her testimony”); see also id. at 421 (“I’m

corroborating a statement that was provided by a witness, saying that the

information that they provided is consistent with the phone records that I’ve

analyzed”).

“[E]xpert testimony is permitted only as an aid to the jury when the

subject matter is distinctly related to a science, skill, or occupation beyond

the knowledge or experience of the average layman.” Commonwealth v.

Jones, 240 A.3d 881, 891 (Pa. 2020). “An opinion is not objectionable just

because it embraces an ultimate issue.” Pa.R.E. 704.

“Opinion testimony must be based on either the expert’s own knowledge

of the facts or upon testimony by other witnesses.” Earlin v. Cravetz, 399

A.2d 783, 785 (Pa. Super. 1979). “Determining witness credibility,” however,

“is exclusively the function of jurors, and expert witnesses are specifically

prohibited from invading this province.” Commonwealth v. Maconeghy,

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171 A.3d 707, 712 (Pa. 2017) (expert witness may not express opinion that

minor complainant was victim of sexual assault based upon witness accounts

couched as a history, at least in the absence of physical evidence of abuse,

because “such testimony intrudes into the province of the jury relative to

determining credibility”). The Maconeghy court held that there is “no

material distinction between direct vouching (e.g., ‘I believe the complainant

is telling the truth’) and indirect vouching (e.g., ‘I conclude that the

complainant was sexually assaulted based upon the history she related’).” Id.

at 713.

Although the law permitted Detective Owens to base his opinion, in

whole or in part, on testimony by other fact witnesses, Earlin, 399 A.2d at

785, we conclude that he improperly vouched for these witnesses by

repeatedly stating that his opinion was “consistent” with or “corroborate[d]”

their testimony. These terms suggested to the jury that Detective Owens

found these witnesses credible, a form of “indirect vouching” by an expert that

our Supreme Court warned against in Maconeghy.

Under the harmless error doctrine, we must vacate Appellant’s

judgment of sentence unless we are “convinced beyond a reasonable doubt

that the error is harmless.” Commonwealth v. Story, 383 A.2d 155, 162

(Pa. 1978). We may consider error harmless only where:

(1) the error did not prejudice the defendant or the prejudice was

de minimis; or (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

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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.

Commonwealth v. Taylor, 209 A.3d 444, 450 (Pa. Super. 2019). “Harmless

error exists where the appellate court is convinced beyond a reasonable doubt

that the erroneously admitted evidence could not have contributed to the

verdict. If there is a reasonable probability that an error may have contributed

to the verdict, the error is not harmless.” Id.

In this case, 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. The

principal charge against Appellant was drug delivery resulting in death, a

felony under the Crimes Code requiring proof of intentional delivery of a

controlled substance and the death of another person as a result of using the

substance, 18 Pa.C.S.A. § 2506(a). To prove this charge, the Commonwealth

introduced evidence of the victim’s death on October 5, 2017 from acute

fentanyl toxicity; Stoltzfus’s testimony noting that the victim purchased drugs

the same day from an “Elby” who was on house arrest; the police investigation

uncovering text messages between the victim’s phone and a phone belonging

to Miller, who was on house arrest, and whom the police deduced was “Elby”;

Miller’s testimony regarding her coordination of the heroin delivery between

Appellant and the victim on October 5, 2017; phone records connecting

Miller’s phone to the Mike Jones phone number on October 5, 2017; Miller’s

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testimony that the victim picked up drugs from Appellant and delivered several

bags of heroin to Miller’s house; Russin’s testimony regarding her discovery

of the Metro PCS box containing a receipt with the name Mike Jones and that,

when she called the associated phone number, she recognized the voice of

the person who answered as Appellant; Custer’s testimony that she was in

contact with Appellant via the Mike Jones phone number; tower location data

that placed the Mike Jones phone and the victim’s phone in the same area of

Lancaster City on the morning of October 5, 2017; photographs on the victim’s

phone showing heroin glassines on the afternoon of October 5, 2017; and a

text message between Miller and the victim the same afternoon stating,

“You’re the best, I owe you big-time.” This evidence overwhelmingly

demonstrates that Appellant intentionally delivered fentanyl to the victim after

coordinating the sale through an accomplice,3 Miller, and that the victim died

as a result of using the fentanyl. Thus, the error in admitting the vouching

testimony could not have contributed to the verdict.

Appellant was also charged with delivery of fentanyl, an offense under

the Controlled Substance Act requiring proof of intentional delivery of a

controlled substance. 35 P.S. § 780-113(a)(30). The Commonwealth

contended at trial that Appellant violated this provision by delivering heroin to

____________________________________________

3An accomplice is one who “knowingly and voluntarily cooperates with or aids

another in the commission of a crime.” Commonwealth v. Manchas, 633

A.2d 618, 627 (Pa. Super. 1993).

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Miller. N.T., 9/25/19, at 502. The evidence supports this argument.

Appellant coordinated a sale of heroin to Miller through phone calls on the

Mike Jones phone, and Appellant gave heroin to the victim that she delivered

to Miller. In view of this overwhelming evidence, the erroneously admitted

vouching testimony could not have contributed to the verdict.

Appellant also was charged with conspiracy to deliver fentanyl, which

requires proof that Appellant, with intent of facilitating the commission of the

crime of delivery of fentanyl, agreed with another person that they or one or

more of them will engage in conduct that constituted this crime. 18 Pa.C.S.A.

§ 903(a)(1). The evidence overwhelmingly demonstrates that Appellant

entered an agreement4 with Miller to deliver controlled substances to both the

victim and Miller. The improper vouching testimony could not have

contributed to the verdict.

The final charge against Appellant was criminal use of a communication

facility, which requires proof that Appellant “use[d] a communication facility

to commit, cause or facilitate the commission or the attempt thereof of any

crime which constitutes a felony under [Title 18] or . . . [t]he Controlled

Substance, Drug, Device and Cosmetic Act.” 18 Pa.C.S.A. § 7512(a). Once

____________________________________________

4 Conspiracy and accomplice liability are different in that conspiracy requires

proof of an additional factor which accomplice liability does not: the existence

of an agreement. Commonwealth v. Murphy, 795 A.2d 1025, 1038 (Pa.

Super. 2002). This case demonstrates that one person (Miller) can serve both

as an accomplice to and conspirator with the defendant.

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again, the evidence furnishes overwhelming evidence of guilt on this charge.

and the error of the vouching testimony was so insignificant in comparison

that it could not have contributed to the verdict.

For these reasons, the error in admitting Detective Owens’ vouching

testimony was harmless and does not entitle Appellant to relief.

Next, Appellant raises two arguments concerning the charge of delivery

of fentanyl under the Controlled Substance Act. First, he contends that the

charge of delivery of fentanyl merged at sentencing with the charge of drug

delivery resulting in death. We conclude that these charges did not merge

because they involved different criminal acts. The charge of delivery of

fentanyl involved the delivery to Miller; the charge of delivery of a controlled

substance resulting in death involved the delivery to the victim.

A claim that crimes merge for sentencing purposes raises a challenge to

the legality of the sentence. Commonwealth v. Martinez, 153 A.3d 1025,

1029-30 (Pa. Super. 2016). We review this legal issue de novo, and our scope

of review is plenary. Id.

The merger statute, 42 Pa.C.S.A. § 9765, provides:

No crimes shall merge for sentencing purposes unless the crimes

arise from a single criminal act and all of the statutory elements

of one offense are included in the statutory elements of the other

offense. Where crimes merge for sentencing purposes, the court

may sentence the defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765 (emphasis added). Section 9765 prohibits merger

“unless two distinct facts are present: 1) the crimes arise from a single

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criminal act; and 2) all of the statutory elements of one of the offenses are

included in the statutory elements of the other.” Commonwealth v.

Golphin, 161 A.3d 1009, 1029 (Pa. Super. 2017). In determining whether

two or more convictions arose from a single criminal act for purposes of

sentencing, we review the charging documents filed by the Commonwealth to

examine the elements of the crimes charged by the Commonwealth. Id. Our

inquiry may also include review of the trial evidence. Id. at 1031 (offenses

did not merge at sentencing because “it is apparent from the criminal

information, complaint, and affidavit of probable cause, as well as later

reflected in the trial testimony, that the Commonwealth alleged criminal acts

that constituted aggravated assault as distinct or delineated from the conduct

that constituted third-degree murder”).

Preliminarily, the Commonwealth argues that Appellant waived his

merger argument by failing to raise it during trial. We disagree. Merger issues

are non-waivable because they concern the legality of Appellant’s sentence.

Commonwealth v. Martinez, 153 A.3d 1025, 1030 n.2 (Pa. Super. 2016).

In this case, the complaint alleged, both in the charge of delivery of a

controlled substance and the charge of delivery of a controlled substance

resulting in death, that Appellant delivered fentanyl solely to the victim. The

affidavit of probable cause appended to the complaint alleged that Appellant

delivered fentanyl directly to the victim. Affidavit, ¶¶ 5, 7, 11. In the criminal

information, the charge of delivering a controlled substance resulting in death

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remained the same as in the complaint: it alleged only that Appellant delivered

a controlled substance to the victim. Information, Count 2. On the other

hand, the information expanded the charge of delivery of a controlled

substance to include delivery to “both [the victim] and [] Miller.” Information,

Count 1. The Commonwealth further widened the boundary between the

charges in its closing argument by arguing that delivery of a controlled

substance only concerned “Miller [because] that’s not resulting in death,” N.T.

9/25/19, at 502, while delivery of a controlled substance resulting in death

concerned the victim.

Thus, while the complaint originally alleged one and the same act

(delivery to the victim) in both charges, the information expanded the delivery

of controlled substance charge to include two acts (delivery to Miller and

delivery to the victim) but did not amend the charge of delivery of a controlled

substance resulting in death. Stated in terms of the merger statute, the two

charges in the information did not involve a “single criminal act,” because one

charge encompassed the delivery to Miller while the other did not. Thus, the

two offenses did not merge for purposes of sentencing.

Next, Appellant argues that if the delivery of fentanyl charge pertained

to Miller, the evidence was insufficient to prove that Appellant delivered

fentanyl to Miller. According to Appellant, Miller’s testimony showed that she

and the victim planned for the victim to obtain drugs from Appellant and

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deliver them to Miller, but the testimony did not show that Appellant was

aware of this plan. Appellant’s Brief at 60. We disagree.

When reviewing the sufficiency of the evidence, we must determine

whether the evidence admitted at trial and all reasonable inferences drawn

therefrom, viewed in the light most favorable to the Commonwealth as verdict

winner, were sufficient to prove every element of the offense beyond a

reasonable doubt. Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa.

2013). “[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.” Commonwealth v. Colon-

Plaza, 136 A.3d 521, 525–26 (Pa. Super. 2016). It is within the province of

the fact-finder to determine the weight to accord to each witness’s testimony

and to believe all, part, or none of the evidence. Commonwealth v. Tejada,

107 A.3d 788, 792–93 (Pa. Super. 2015). The Commonwealth may sustain

its burden of proving every element of the crime by means of wholly

circumstantial evidence. Commonwealth v. Crosley, 180 A.3d 761, 767

(Pa. Super. 2018). As an appellate court, we may not re-weigh the evidence

and substitute our judgment for that of the fact-finder. Commonwealth v.

Rogal, 120 A.3d 994, 1001 (Pa. Super. 2015).

Here, the evidence demonstrates that Miller frequently purchased drugs

from Appellant; Miller had multiple telephone conversations with Appellant on

the Mike Jones phone on October 5, 2017; Miller coordinated the transfer of

drugs from Appellant to the victim during these phone conversations; Miller

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provided the victim and Appellant with a description of each other and told

the victim where to meet Appellant to obtain the drugs; and the victim

delivered drugs to Miller on the same day and then sent Miller a text thanking

her. Construed in the light most favorable to the Commonwealth, this

evidence clearly demonstrates that Appellant intended to furnish drugs to

Miller with the victim acting as a go-between.

Lastly, Appellant argues that his sentence of 23½-62 years’

imprisonment constituted an abuse of discretion because the trial court gave

insufficient reasons for imposing a sentence above the aggravated range of

the Sentencing Guidelines. We conclude that Appellant’s sentence represents

a proper exercise of the court’s discretion.

Appellant’s claims implicate the discretionary aspects of sentencing. We

note:

[A]n appellant challenging the discretionary aspects of his

sentence must invoke this Court’s jurisdiction. We determine

whether the appellant has invoked our jurisdiction by considering

the following four factors:

(1) whether appellant has filed a timely notice of

appeal, see Pa.R.A.P. 902 and 903; (2) whether the

issue was properly preserved at sentencing or in a

motion to reconsider and modify sentence, see

Pa.R.Crim.P. 720; (3) whether appellant’s brief has a

fatal defect, 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,

42 Pa.C.S.A. § 9781(b).

***

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What constitutes a substantial question must be evaluated on a

case-by-case basis. A substantial question exists “only when the

appellant advances a colorable argument that the sentencing

judge’s actions were either: (1) inconsistent with a specific

provision of the Sentencing Code; or (2) contrary to the

fundamental norms which underlie the sentencing process.” A

claim that a sentence is manifestly excessive might raise a

substantial question if the appellant’s Rule 2119(f) statement

sufficiently articulates the manner in which the sentence imposed

violates a specific provision of the Sentencing Code or the norms

underlying the sentencing process.

Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa. Super. 2016).

Here, Appellant filed a timely notice of appeal and raised these

discretionary sentencing claims before the trial court in post-sentence

motions. Additionally, his appellate brief properly includes the required

Pa.R.A.P. 2119(f) statement. We thus consider whether Appellant presents

substantial questions invoking our review. This Court has held that the

defendant raises a substantial question by contending that he “was sentenced

outside of the aggravated range of the sentencing guidelines without sufficient

justification from the court.” McLaine, 150 A.3d at 76. Additionally, a claim

that the court erred by imposing an aggravated range sentence without

consideration of mitigating circumstances raises a substantial question.

Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003). Since

Appellant’s claims fall within these parameters, we conclude that Appellant

raises a substantial question for review.

In reviewing the court’s exercise of sentencing discretion, we recognize

that

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[t]he sentencing court may, in an appropriate case, deviate from

the guidelines by fashioning a sentence which takes into account

the protection of the public, the rehabilitative needs of the

defendant, and the gravity of the particular offense as it relates to

the impact on the life of the victim and the community. In doing

so, the sentencing judge must state of record the factual basis

and specific reasons which compelled him or her to deviate from

the guideline ranges. When evaluating a claim of this type, it is

necessary to remember that the sentencing guidelines are

advisory only.

McLaine, 150 A.3d at 76-77.

If the sentencing court takes into account a pre-sentence investigation

report, “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.” Commonwealth v.

Boyer, 856 A.2d 149, 154 (Pa. Super. 2004). In this case, the court relied

on all information contained in the PSI report before imposing sentence,

including Appellant’s character, family history, and rehabilitative needs. Thus,

the presumption arises that the court was aware of all relevant information

regarding Appellant’s character and weighed those considerations before

imposing sentence.

The trial court explained:

The court noted Appellant was 37 years old, an age of sufficient

maturity to understand the significance of his acts. He had no

history of mental health treatment. Appellant obtained his GED

in 2007 while in jail and there was nothing to indicate a lack of

intellectual ability that would prevent him from understanding the

difference between right and wrong. Appellant also had a very

limited work history.

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Despite Appellant’s assertions to the contrary, the court properly

considered his long history of substance abuse and addiction,

while noting that prior treatment had not been successful.

The court reviewed Appellant’s very extensive prior criminal

record. This was now the 14th time Appellant appeared in court

for new criminal charges since 1997, when he was a juvenile. In

addition to prior felony drug convictions, Appellant also has very

serious convictions for crimes of violence such as robbery and

assault.

The court contemplated Appellant’s rehabilitative needs, finding

there was absolutely nothing to indicate he has made any attempt

to change his lifestyle or is amenable to treatment. In addition to

many new criminal convictions, Appellant has violated probation

or parole a total of 15 times between 1998 and 2016 on several

different dockets.

The court considered the nature and circumstances of these

crimes, along with the gravity of the crimes in relation to impact

on the victim and the community. This was now Appellant’s third

felony drug conviction, he has been willing to expose others to

addiction, suffering, or death, and in this case his actions directly

caused the death of another human being. Appellant was not

related to the victim, they were not sharing drugs, and Appellant

did not provide the drugs as a favor for a friend. Having overdosed

himself, being rendered unconscious more than once using heroin,

and warning Custer to be careful because the drugs were very

strong, Appellant had a clear understanding of the potential

lethality of the drugs he was selling. The victim’s death was not

an accident or a terrible mistake, but rather because Appellant

was a predator preying on the addiction of others for pure profit.

The court took into consideration the penalties authorized by the

Pennsylvania legislature for the crimes committed, the guidelines

of the Sentencing Code, and those established by the

Pennsylvania Commission on Sentencing.

The court considered the arguments of counsel, comments made

by Appellant, comments made by the victim’s aunt, and

sentencing memorandums provided by both counsel. Attached to

Appellant’s sentencing memorandum was a psychological

evaluation conducted on November 22, 2019, which noted that

Appellant’s full scale IQ was in the average range and Appellant

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has been unable to remain in recovery for any extended period of

time despite incarcerations and drug rehabilitation. Finally, the

court determined a sentence of confinement that would be

consistent with protection of the public.

After considering these factors, the court found that a sentence of

total confinement was necessary because there was an undue risk

Appellant would commit another crime if placed on probation or

partial confinement. Appellant is not amenable to rehabilitation,

he is in need of correctional treatment that can be provided most

effectively by his commitment to an institution, Appellant is a

danger to society, and society needs to be protected.

The court further determined a sentence above the aggravated

range of the sentencing guidelines was warranted for the charges

of delivery and drug delivery resulting in death because of the

following aggravating circumstances not reflected in the

sentencing guidelines worksheet: (1) prior record score of 11

greatly exceeded the maximum allowable of 5; (2) guidelines far

too lenient for the prior record and crimes committed; (3) fifteen

PVs between 1998 and 2016; (4) long history of not accepting

treatment or taking responsibility; (5) lack of employment history

other than selling drugs; (6) career criminal having been to court

for new crimes or PVs 29 times over the past 22 years; (7) a lesser

sentence would depreciate the seriousness of the crimes; (8) prior

sentences for felony drug convictions failed to deter continued

drug dealing; (9) no remorse; and (10) Appellant has made a

mockery of the court and rule of law . . . .

Appellant asserts . . . that the court erred in refusing to consider

his drug addiction as a significant factor contributing to his drug

dealing, and in characterizing his failure to complete most of the

drug treatment programs as a refusal to accept treatment. These

assertions are contrary to the record. The court specifically stated

that Appellant “has either not accepted the treatment or it hasn’t

worked, I don’t know which, but he continues to commit crimes.”

The court also noted Appellant’s addiction and attempts at

treatment might be a factor in his criminal activity, but ultimately

concluded Appellant’s drug dealing was also motivated by greed.

Any mitigation from Appellant’s drug use was heavily outweighed

by the other factors cited by the court. As such, this was not a

case of trying to punish someone who suffers from addiction, but

rather an individual who is profiting from it.

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Trial Court Opinion, 5/6/20, at 23-25, 28-29 (footnotes omitted).

The trial court fully and carefully studied the PSI and all pertinent

evidence of record. Its decision to sentence Appellant above the Guidelines

to consecutive terms was within its discretion.

Accordingly, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/07/2021

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