Com. v. Hall, D.

J-S34035-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DAVIS WADE HALL :

:

Appellant : No. 469 WDA 2023

Appeal from the Judgment of Sentence Entered March 23, 2023

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

No(s): CP-26-CR-0001959-2021

BEFORE: LAZARUS, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED: October 10, 2023

Davis Wade Hall (Appellant) appeals from the judgment of sentence

imposed following his jury convictions of two counts of possession of a

controlled substance and one count each of possession with intent to deliver

a controlled substance (PWID), possession of drug paraphernalia, and

possession of a small amount of marijuana for personal use.1 We affirm.

The trial court detailed the evidence presented at trial:

On October 29, 2020, Officer Kyle Richter [(Officer Richter)] went

to 10 West Berkeley Street [(the property or the home)] in

Uniontown, Pennsylvania to serve an arrest warrant on the

Appellant. N.T. Criminal Jury Trial Proceedings, 3/8/23 at 47. The

resident of the home, Kimberly Brown [(Brown)], consented to a

search of the residence. Id. at 51. During the search, a locked

safe was located in the master bedroom next to the bed. Id. at

51-52. Officers asked [] Brown for the combination, which she

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1 35 P.S. §§ 780-113(a)(16), 780-113(a)(30), 780-113(a)(32), and 780-

113(a)(31).

J-S34035-23

did not provide. Id. at 55. Officers then asked Appellant for the

combination, which he did provide. Id. Officers then opened the

safe and found three knotted baggies, two containing suspected

marijuana and the other containing an unknown white powder.

Id. at 56. The baggies were later confirmed by laboratory results

to contain 6.7 grams of marijuana, 0.4 grams of MDMB/synthetic

cannabinoid, and 4.28 grams of fentanyl. Id. at 25-30. Officers

also recovered a box of glassine baggies and a digital scale. Id.

at 63-69.

Appellant testified at trial that he and [] Brown were in a

relationship, and he spent the night [at the property] a few times

a month, sleeping in the master bedroom with [Brown]. Id. at

77-78, 81. [Appellant] denied any knowledge of the safe or its

contents. Id. at 79, 81. He denied knowing the combination to

the safe or providing it to the police and stated that [] Brown gave

[police] the combination. Id. at 81. Appellant stipulated to his

prior conviction for receiving stolen property in 2012, and [the

trial] court permitted its introduction at trial. Id. at 11, 79-80,

84.

Trial Court Opinion, 5/25/23, at 2 (some capitalization modified).

In October 2021, the Commonwealth charged Appellant with various

drug crimes. Appellant timely filed an omnibus pre-trial motion to suppress

evidence on September 8, 2022. Appellant claimed, “Officer Richter had no

probable cause for the search, therefore any evidence obtained pursuant to

said search should be suppressed.” Motion to Suppress, 9/8/22, ¶ 7. The

trial court held a hearing on Appellant’s motion on October 25, 2022; Officer

Richter was the only witness. The trial court denied the suppression motion

and stated in its order:

Due to the fact that [] Brown, a resident of the [property], gave

permission to search the house and that [Appellant] gave the

[police o]fficers the code for the safe which is deemed [sic] by the

[trial c]ourt to be implied consent to open the safe.

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Order, 10/25/22.

At the jury trial on March 8, 2023, Officer Richter and Uniontown Police

Detective Jamie Holland (Detective Holland) testified for the Commonwealth.

The prosecution asked the trial court to qualify Detective Holland as an expert

in the field of drug investigation on direct examination. N.T., 3/8/23, at 23.

Appellant did not object. The trial court granted the Commonwealth’s request.

Id.

The prosecution also sought to qualify Officer Richter as an expert in the

field of drug investigation. Id. at 43. Appellant objected, arguing Officer

Richter was at the property “to execute a search warrant, not pursuing any

kind of drug investigation.”2 Id. at 44. Officer Richter confirmed on cross-

examination that he had never before “testified as an expert in regard to drug

investigations[.]” Id. The defense complained to the trial court the

prosecution

already had one expert … testify who had been qualified multiple

amount of times[, i.e., Detective Holland. W]hy would the[]

[prosecution] need this [additional expert] when [the prosecution]

already had [an expert] qualified[?]

Id. at 46-47. The trial court denied Appellant’s objection. The court

reasoned:

The issue of whether or not the Commonwealth needs another

expert is of no relevance whatsoever and in the court’s view[,]

every expert in every field is going to have a first time at

____________________________________________

2 In actuality, police went to the property to serve Appellant with an arrest

warrant. Id. at 47.

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testifying. The court finds based on Officer Richter’s hundreds of

investigations of possession of controlled substances, [and] based

on his experience as a police officer for five years and a member

of the drug task force …[,] based on his training and experience

the court will declare him an expert in the field of drug

investigation.

Id. at 47 (some capitalization modified).

Appellant was the only witness for the defense. Consistent with his

testimony at the suppression hearing, Appellant denied having any knowledge

of the contraband in the safe and further denied giving police the combination

or consent to search it. Id. at 78-80, 81-82.

The jury found Appellant guilty of the above offenses. On March 23,

2023, the trial court sentenced Appellant to an aggregate 6 – 12 years in

prison. Appellant timely filed a motion for a new trial, claiming the jury’s

verdict was against the weight of the evidence. The trial court denied

Appellant’s motion on April 10, 2023. This timely appeal followed. Appellant

and the trial court have complied with Pa.R.A.P. 1925.3

Appellant presents five issues for review:

1. Whether the trial court erred in failing to suppress the

warrantless search of the home when the Appellant

surrendered to the police without incident, which accomplished

the purpose the police had for being at the home, before the

police initiated the search, and when home[]owner, [] Brown,

was in police custody prior to giving any consent to search the

home?

2. Whether the trial court erred in failing to suppress the

warrantless search of the safe where the drugs were found,

____________________________________________

3 The Commonwealth did not file a brief on appeal.

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when the police never received express consent to search the

safe and the police received the combination to the safe after

the Appellant and [] Brown were in police custody?

3. Whether the jury’s guilty verdict is against the weight of the

evidence, when the Commonwealth failed to exclude the

possibility beyond a reasonable doubt that the drugs in

question belonged to [] Brown?

4. Whether the trial court erred in allowing Officer [] Richter to

testify as an expert in regard to drug investigations, when he

had never before testified as an expert and when the

Commonwealth had just called as an expert witness a much

more experienced police officer, Detective [] Holland, as an

expert in regard to drug investigations?

5. Whether the [trial] court erred in failing to sustain the objection

to Officer [] Richter’s attempt to explain during his testimony

to the jury the legal definitions of possession with intent to

distribute and constructive possession?

Appellant’s Brief at 3 (capitalization modified).

We address Appellant’s related first and second issues together.

Appellant claims the trial court erred in denying his pre-trial motion to

suppress, where the police unlawfully seized contraband from the safe. See

id. at 13-18. According to Appellant, the trial court

erred in failing to suppress the warrantless search of the home[,]

when the Appellant surrendered to police without incident, which

accomplished the purpose the police had for being at the home,

before the police initiated the search, and when home[]owner …

Brown[] was in police custody prior to giving any consent to

search the home.

Id. at 12. Appellant contends the “totality of the circumstances show that []

Brown was not aware that she had the right to refuse the request of the police

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to search her home, and [her consent] therefore was not voluntary.” Id. at

15.

In his second issue, Appellant complains police questioned him about

the combination to the safe without first advising him of his Miranda4 rights.

Id. at 16-18. According to Appellant, he

was clearly in police custody at the time when the police

questioned him about the combination to the safe. In addition,

the police should have known that questioning the Appellant about

the combination to the safe was reasonably likely to elicit an

incriminating response….

Id. at 18.

Our standard of review is well-settled:

When we review the ruling of a suppression court, we must

determine whether the factual findings are supported by the

record. When it is a defendant who appealed, we must consider

only the evidence of the prosecution and so much of the evidence

for the defense as, fairly read in the context of the record as a

whole, remains uncontradicted. Assuming that there is support in

the record, we are bound by the facts as are found and we may

reverse the suppression court only if the legal conclusions drawn

from those facts are in error.

Commonwealth v. Brame, 239 A.3d 1119, 1126 (Pa. Super. 2020) (citation

and brackets omitted). Our scope of review is limited to the record developed

at the suppression hearing, considering the evidence presented by the

Commonwealth as the prevailing party and any uncontradicted evidence

____________________________________________

4 See Miranda v. Arizona, 384 U.S. 436 (1966).

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presented by Appellant. Commonwealth v. Fulton, 179 A.3d 475, 487 (Pa.

2018).

[I]t is hornbook law that the Fourth Amendment to the

United States Constitution[,] as well as Article I, § 8 of the

Pennsylvania Constitution[,] protect citizens from unreasonable

searches and seizures. Warrantless searches and seizures (such

as occurred in this case) are unreasonable per se, unless

conducted pursuant to specifically established and well-delineated

exceptions to the warrant requirement.

Commonwealth v. Simmons, 17 A.3d 399, 402-03 (Pa. Super. 2011)

(citations, brackets and quotation marks omitted).

One exception to the warrant requirement is consent, either actual or

implied. Commonwealth v. Carmenates, 266 A.3d 1117, 1124 (Pa. Super.

2021) (en banc). This Court has instructed:

“To establish a valid consensual search, the Commonwealth must

first prove that the consent was given during a legal police

interaction.” Commonwealth v. Bell, 871 A.2d 267, 273 (Pa.

Super. 2005). Next, the Commonwealth must prove the consent

was given voluntarily. Id. “To be considered valid, the consent

must be the product of an essentially free and unrestrained choice

— not the result of duress or coercion, express or implied, or a

will overbo[]rne — under the totality of the circumstances.

Commonwealth v. Quiles, 166 A.3d 387, 391 (Pa. Super. 2017)

(citations and internal quotation marks omitted).

The Pennsylvania Supreme Court has also noted that

because “both the tests for voluntariness [of consent] and for

seizure centrally entail an examination of the objective

circumstances surrounding the police/citizen encounter to

determine whether there was a show of authority that would

impact upon a reasonable citizen-subject’s perspective, there is a

substantial, necessary overlap in the analyses.”

[Commonwealth v.] Strickler, 757 A.2d [884,] 901-02 [(Pa.

2000)].

Carmenates, 266 A.3d at 1124 (some citations modified).

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Our Supreme Court has explained that the standard for measuring the

scope of a person’s consent is

based on an objective evaluation of what a reasonable person

would have understood by the exchange between the officer and

the person who gave the consent. Such evaluation includes an

objective examination of the maturity, sophistication and mental

or emotional state of the defendant. Gauging the scope of a

defendant’s consent is an inherent and necessary part of the

process of determining, on the totality of the circumstances

presented, whether the consent is objectively valid, or instead the

product of coercion, deceit, or misrepresentation.

Commonwealth v. Smith, 77 A.3d 562, 573 (Pa. 2013) (citations, ellipses

and quotation marks omitted).

Instantly, the evidence presented at the hearing on Appellant’s

suppression motion consisted entirely of testimony from Officer Richter.

Officer Richter testified he was dispatched to the property on October 29,

2020, to serve Appellant with an arrest warrant. N.T., 10/25/22, at 6, 8.

Officer Richter was accompanied by two other law enforcement officers when

he knocked on the front door. Id. at 8. Brown answered and informed police

Appellant was inside the property. Id. at 9. Police entered the property and

placed Appellant in handcuffs, pursuant to the arrest warrant. Id. Police

escorted Appellant and Brown out of the property and asked Brown if she

consented to a search of the property. Id. at 10. Brown consented to the

search. Id.; see also id. at 15 (Officer Richter testifying Appellant “was

present whenever [police] asked for the consent to search the [property]. He

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never offered any, yes, no, anything like that, while Ms. Brown stated yes.”).

The search revealed a locked safe in a second-floor bedroom. Id. at 11.

Officer Richter offered the following testimony with respect to the safe:

[A law enforcement officer accompanying Officer Richter] asked

Ms. Brown who the safe belonged to, if it was hers. [Brown]

stated, no, it’s not mine. At that point, [police] asked [Appellant

about the safe]. [Appellant] said it was his and [police] asked

for the code [to the safe,] to which [Appellant] did give us the

code for the safe.

Id. at 12 (emphasis added). Officer Richter elaborated, when police “asked

[Appellant] for the code to the safe[, Appellant] didn’t ask why, he didn’t

give any resistance. He gave us the code.” Id. (emphasis added). Officer

Richter testified Appellant did not appear intoxicated. Id. Officer Richter

confirmed no threats or promises were made to Appellant, id. at 13, and at

no point did Appellant revoke his consent to the search of the safe. Id. at 15.

On cross-examination, Officer Richter confirmed Appellant was in

handcuffs and seated on the porch to the property when he gave police the

code, and that he was not free to leave at that point. Id. at 16. Officer Richter

also stated police had not read Appellant his Miranda warnings at that time.

Id. The trial court excused Officer Richter and considered argument on

Appellant’s suppression motion:

[Appellant’s counsel]: Once [police] found the safe, then they

came down and ask the guy that’s [sic] in custody, that’s not free

to leave, that has not been Mirandized, the combination [to] the

safe. I think that’s the biggest problem. [Police] could have

gotten a warrant for that safe but they didn’t.

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THE COURT: Well, [Appellant] clearly didn’t have to be

Mirandized. [Appellant] was just asked a question for the

password to the safe and the [c]ourt deems that giving the

password to the [p]olice … is implied consent for them to open the

safe.

Id. at 19. The trial court denied Appellant’s suppression motion, noting that

“Brown, a resident of the [property], gave permission to search the house and

… [Appellant] gave the [o]fficers the code for the safe which is deemed by the

[trial c]ourt to be implied consent to open the safe.” Id. at 20; see also

Order, 10/25/22 (stating same).

Initially, we conclude the Commonwealth proved Appellant consented to

the search of the safe during a lawful police interaction, where police were at

the property to place Appellant in custody pursuant to a lawful arrest warrant.

See Bell, supra (“To establish a valid consensual search, the Commonwealth

must first prove that the consent was given during a legal police interaction.”);

see also N.T., 10/25/22, at 6, 8. Police discovered the safe upon receiving

consent from Brown to search the property; Appellant did not object. N.T.,

10/25/22, at 10, 15. Under the totality of the circumstances, Appellant

voluntarily gave police implied consent to search the safe when he gave them

the combination. See Quiles, supra; see also N.T., 10/25/22, at 19 (trial

court concluding same). Police did not threaten or coerce Appellant, see N.T.,

10/25/22, at 13, 15, and did not promise him anything. Id. Appellant’s

consent is objectively valid. Accordingly, the trial court did not err in denying

Appellant’s suppression motion. Appellant’s first and second issues lack merit.

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In his third issue, Appellant claims the trial court abused its discretion

by denying his post-trial motion for a new trial challenging the weight of the

evidence, where the Commonwealth failed to prove Appellant possessed

contraband. See Appellant’s Brief at 19-23. According to Appellant, he

clearly did not have actual possession of the narcotics, because

they were found in a safe and not on his person. Likewise,

Appellant was not in constructive possession of the drugs, because

the Commonwealth failed to exclude [] Brown as the owner of the

safe and the narcotics found within. In fact, [] Brown is far more

likely to be the owner of the safe and the drugs, because the safe

was found in her home and in her bedroom. The Commonwealth’s

only link between the Appellant and the safe was Officer Richter’s

testimony [that] Appellant gave him the combination to the safe.

However, Appellant could easily have learned the combination from

the safe’s owner, [] Brown….

Id. at 22.

Our standard of review when presented with a weight of the evidence

claim is distinct from the standard of review applied by the trial

court. “Appellate review of a weight claim is a review of the exercise of

discretion, not of the underlying question of whether the verdict is against the

weight of the evidence.” Commonwealth v. Smith, 146 A.3d 257, 264-65

(Pa. Super. 2016).

In order for an appellant to prevail on a challenge to the weight of

evidence, he or she must establish that the evidence supporting a conviction

is “so tenuous, vague, and uncertain that the verdict shocks the conscience of

the court.” Id. at 265 (citation omitted). “The weight of the evidence is

exclusively for the finder of fact[,] who is free to believe all, none, or some of

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the evidence and to determine the credibility of the witnesses.”

Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super. 2015) (citation

omitted).

Where, as here, a defendant did not have actual possession of the

contraband, the Commonwealth was required to establish that he or she

constructively possessed it. See Commonwealth v. Parrish, 191 A.3d 31,

36 (Pa. Super. 2018) (noting that in contraband possession cases, the

Commonwealth may meet its burden by showing actual, constructive, or joint

constructive possession).

Constructive possession is a legal fiction, a pragmatic construct to

deal with the realities of criminal law enforcement. Constructive

possession is an inference arising from a set of facts that

possession of the contraband was more likely than not. We have

defined constructive possession as conscious dominion. … We

subsequently defined conscious dominion as the power to control

the contraband and the intent to exercise that control. … To aid

application, we have held that constructive possession may be

established by the totality of the circumstances.

Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (citation

and quotation marks omitted); see also Commonwealth v. Johnson, 26

A.3d 1078, 1094 (Pa. 2011) (stating that “circumstantial evidence may be

used to establish constructive possession of the [contraband].”). It is possible

for two people to have joint constructive possession of an item of

contraband. Commonwealth v. Sanes, 955 A.2d 369, 373 (Pa. Super.

2008). However, a defendant’s mere presence at the scene does not establish

constructive possession of contraband. Commonwealth v. Vargas, 108

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A.3d 858, 869 (Pa. Super. 2014) (en banc); see also Parrish, 191 A.3d at

37 (stating that the location and proximity of an actor to the contraband alone

is not conclusive of guilt).

Instantly, the trial court opined it did not abuse its discretion in rejecting

Appellant’s weight claim:

At trial, Officer [] Richter testified that the safe was found out in

the open in the [master] bedroom, and that Appellant gave

officers the combination to unlock the safe in which the drugs were

found. N.T. Criminal Jury Trial Proceedings, 3/8/23 at 54-55, 73.

Appellant’s testimony at trial directly contradicted this, as he

testified that [] Brown gave officers the combination, and that

although he did sleep in the master bedroom, he had never seen

the safe, did not know anything about it, and had no idea what

was in it. Id. at 79, 81-82. Here, the jury was free to assess

the credibility of the witnesses, and so it was free to believe

Officer Richter instead of Appellant. Furthermore, the

Commonwealth was required only to establish beyond a

reasonable doubt that Appellant possessed contraband, which did

not necessarily require excluding the possibility that

someone else may also have possessed it. In fact, the jury

was instructed that, under the law, more than one individual may

possess an item:

Two or more persons may have joint possession of a

controlled substance provided each has the intent to

exercise joint control over that substance and that each

has the power to control it. Each of the joint possessors

is regarded as having possession of the substance for

purposes of the criminal law.

Id. at 94[; see also Sanes, supra (same)]. Based on testimony,

the jury reasonably could have concluded that Appellant indeed

was aware of the safe and its contents and had the power to

control them.

Trial Court Opinion, 5/25/23, at 4-5 (emphasis added).

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Our review discloses record support for the trial court’s foregoing

reasoning, see id., and we discern no abuse of its discretion in rejecting

Appellant’s weight claim. It was within the jury’s purview to find that

Appellant possessed the contraband, and to discredit Appellant’s testimony to

the contrary. We decline Appellant’s invitation to act as fact-finder, reweigh

the evidence, and disturb credibility findings based on a cold record. See

Commonwealth v. Sanchez, 262 A.3d 1283, 1288-89 (Pa. Super.

2021) (“[I]t is not the function of the appellate court to substitute its judgment

based on a cold record for that of the trial court. The weight to be accorded

conflicting evidence is exclusively for the fact finder, whose findings

will not be disturbed on appeal if they are supported by the record.”

(emphasis added; citations omitted)); see also Commonwealth v. Clay, 64

A.3d 1049, 1055 (Pa. 2013) (“One of the least assailable reasons for granting

or denying a new trial is the lower court’s conviction that the verdict was or

was not against the weight of evidence….” (citation omitted)). Appellant’s

third issue does not merit relief.

Appellant next claims the trial court erred in qualifying Officer Richter

as an expert in the field of drug investigation, over Appellant’s objection. See

Appellant’s Brief at 24-26. Appellant emphasizes it is undisputed that Officer

Richter had never testified as an expert before Appellant’s trial. Id. at 24.

Appellant suggests that qualification of Officer Richter as an expert was

unnecessary and duplicative, where the prosecution had already presented

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expert testimony with respect to the field of drug investigation from Detective

Holland. Id. According to Appellant, “Detective Holland is by far the more

experienced of the two officers, and he was able to answer all of the questions

concerning the narcotics trade.” Id. at 25. Appellant asks this Court to grant

him a new trial. Id. at 26.

The “admission of expert testimony is a matter for the trial court, and

will not be disturbed absent an abuse of discretion.” Commonwealth v.

Walker, 92 A.3d 766, 772 (Pa. 2014) (citation omitted). An abuse of

discretion

is not merely an error in judgment, but if in reaching a conclusion

the law is overridden or misapplied, or when the judgment

exercised is manifestly unreasonable or the result of partiality,

prejudice, bias or ill-will, as shown by the evidence or the record,

discretion is abused.

Id. (citation and quotation marks omitted).

Our Supreme Court has stated expert testimony “is admissible in all

cases, civil and criminal alike, when it involves explanations and inferences

not within the range of ordinary training knowledge, intelligence and

experience.” Commonwealth v. Poplawski, 130 A.3d 697, 718 (Pa. 2015)

(citation and quotation marks omitted). With respect to the scope of

expertise, our Supreme Court has

recognized that the standard for qualifying as an expert is a liberal

one and the witness need only have any reasonable pretension to

specialized knowledge on the subject matter under investigation

and the weight to be given to the expert’s testimony is for the

factfinder.

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Commonwealth v. Jones, 240 A.3d 881, 890 (Pa. 2020) (citation and

quotation marks omitted); see also Commonwealth v. Taylor, 209 A.3d

444, 450 (Pa. Super. 2019) (stating an expert “witness need not possess all

of the knowledge in a given field” (citation and quotation marks omitted)). It

is within the purview of the factfinder to consider the purported lack of

experience in weighing an expert’s opinion. Taylor, 209 A.3d at 450.

Instantly, the trial court opined it properly overruled Appellant’s

objection to the qualification of Officer Richter as an expert in the field of drug

investigation:

The number of times a witness has previously offered expert

testimony may be considered among his other qualifications, but

as this court observed at trial, every witness recognized as an

expert will have a first time to testify in that capacity. N.T.

Criminal Jury Trial Proceedings, 3/8/23 at 47. The standard is

whether a witness is sufficiently qualified under the Rules

of Evidence, not whether he previously has been

recognized as an expert or whether another expert witness

also offers testimony.

Officer Richter testified [at Appellant’s trial] that he had

been a police officer for over five (5) years. Id. at 38. He stated

he had been employed by the Fayette County District Attorney’s

Office for the Drug Task Force since 2021, to which he dedicated

between 16 and 24 hours per month. Id. at 40. He had over one

hundred hours in narcotics training from the Northeast

Counterdrug Task Force and was certified in testing drugs in the

field …. Id. at 41-42. He had personally been the lead

investigator on ten drug cases per year. Id. at 42. As this court

stated at trial:

The court finds based on Officer Richter’s hundreds of

investigations of possession of controlled substances,

based on his experience as a police officer for five years

and a member of the drug task force wherein he

investigates an estimated ten cases a year of possession

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with intent to deliver[,] based on his training and

experience the court will declare him an expert in the

field of drug investigation.

Id. at 47. There was ample evidence that Officer Richter’s training

and experience was sufficient to qualify him as an expert, and this

court’s recognition was granted appropriately, irrespective of the

testimony of any other expert witness.

Trial Court Opinion, 5/25/23, at 5-6 (emphasis added; some capitalization

modified). Again, the record and the law supports the trial court’s reasoning,

see id., and we discern no abuse of its discretion in overruling Appellant’s

objection to the qualification of Officer Richter as an expert. Appellant’s fourth

issue lacks merit.

In Appellant’s final issue, he argues the trial court erred in overruling

the defense’s objection to Officer Richter’s trial testimony with respect to the

“legal definitions of possession with intent to distribute and constructive

possession.” Appellant’s Brief at 27. Appellant claims these definitions are

“beyond the scope” of Officer Richter’s experience, and complains, “as the

arresting officer, his explanation of these legal terms most favored the

Commonwealth.” Id. at 28.

An appellate court “may reverse the trial court’s ruling regarding the

admissibility of lay-witness testimony only upon an abuse of discretion.”5

Commonwealth v. Wenzel, 248 A.3d 540, 549 (Pa. Super. 2021).

____________________________________________

5 Here, Officer Richter was not testifying in his capacity as an expert in the

field of drug investigation when he testified about the general legal concept of

possession.

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This Court has clarified the difference between lay and expert testimony:

[T]he nature of the experiences that could form the opinion’s basis

... determines whether the testimony is lay or expert opinion.

So, expert testimony is that which goes beyond the realm of

common experience and requires experience, skills, or knowledge

that the ordinary person would not have. …[T]his distinction can

be a difficult one. To be sure, this is particularly the case when

the witness is a police officer.

Commonwealth v. Manivannan, 186 A.3d 472, 485 (Pa. Super. 2018)

(citations, emphasis, quotation marks and brackets omitted).

With respect to lay testimony, the Pennsylvania Rules of Evidence

provide:

If a witness is not testifying as an expert, testimony in the form

of an opinion is limited to one that 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.

Instantly, the following exchange occurred at trial during the

prosecution’s direct examination of Officer Richter:

Q. So you didn’t actually see [Appellant] sell drugs?

A. That is correct.

Q. [] But you still filed these charges [against Appellant] for

possession with intent to deliver [f]entanyl?

A. Yes, ma’am.

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Q. Why?

A. So possession with intent it is not only just possession with

intent to distribute but it is also with intent to package and …

disseminate. This amount [of drugs seized] indicates that

[Appellant] had the absolute intent to distribute the [f]entanyl

[found] inside the safe. The amount alone. The packaging alone

… it’s over 400 baggies of [f]entanyl that [Appellant] would be

able to disseminate to users.

N.T., 3/8/23, at 70.

Shortly thereafter, the prosecution questioned Officer Richter with

respect to possession of contraband:

Q. Now, in your experience and training have you come across

instances where more than one person could be in possession of

an illegal substance?

A. Yes, ma’am.

Q. [] Can you talk to the jury a little bit about that?

A. In this case you have [a] household, everyone in the household

is responsible for what is in the household as adults. You can also

run across that [situation] in [] vehicles. If you are in a vehicle

with somebody[,] say a passenger and … no one is taking claim

that these are my drugs[,] and everyone is going to say that [the

contraband] was just found in the vehicle[,] everybody in the

vehicle is considered to have possession through constructive

possession laws in P[]A.

Id. at 72. Appellant’s counsel objected “on the grounds that [it is the trial

court’s] job to give the jury the law, not the police officer.” Id. The trial court

overruled the objection. Id. at 73.

After the conclusion of testimony, the trial court issued instructions to

the jury on the law with respect to, inter alia, possession generally, joint

constructive possession, possession of a controlled substance, and PWID. Id.

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at 93-98. Additionally, the trial court instructed the jury about the difference

between expert and lay testimony, id. at 98-99, and stated, “regular

witnesses are not allowed to express opinions about matters that require

special knowledge or skill.” Id. at 99.

In its opinion, the trial court rejected Appellant’s instant claim:

Officer Richter was asked [by the prosecution] to describe his

experience, and, as a law enforcement officer, some familiarity

with basic Pennsylvania legal principles is required in order

to effectively perform his duties. This would include

familiarity with what constitutes “possession.”

Furthermore, even if this testimony were deemed [sic] as offering

a legal conclusion that the witness was not competent to make, it

did not prejudice Appellant in any way, since prior to the jury’s

deliberation, this [c]ourt gave clear instruction on the law as it

relates to joint possession and constructive possession. [N.T.,

3/8/23,] at 94.

Trial Court Opinion, 5/25/23, at 7 (emphasis added).

Our review discloses record and legal support for the trial court’s

foregoing reasoning. See id. Contrary to Appellant’s claim, the trial court did

not err in overruling the defense’s objection to Officer Richter’s testimony.6

____________________________________________

6 Even if, arguendo, the trial court erred, such error was harmless. “[A]n

erroneous ruling by a trial court on an evidentiary issue does not require us

to grant relief where the error is harmless.” Commonwealth v. Northrip,

945 A.2d 198, 203 (Pa. Super. 2008) (citation omitted); see also

Commonwealth v. Bieber, 283 A.3d 866, 877 (Pa. Super. 2022) (“Even

when evidence is wrongfully admitted, … such error is subject to harmless

error analysis.”). “An error may be deemed harmless, inter alia, where 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.” Commonwealth v.

Moore, 937 A.2d 1062, 1073 (Pa. 2007); see also Commonwealth v.

(Footnote Continued Next Page)

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See Bieber, 283 A.3d at 878 (upholding trial court’s overruling defense

objection to testimony by police officer on direct examination by the

prosecution, wherein the officer recited language from a Pennsylvania statute,

and stating “[r]ecitation of the pertinent text of the statute does not constitute

‘specialized knowledge’ within the meaning of Rule 701(c),” and does not

constitute improper legal opinion); cf. Commonwealth v. Harper, 230 A.3d

1231, 1242 (Pa. Super. 2020) (holding trial court erred in admitting purported

lay testimony from police officer regarding whether gunshot wound was self-

inflicted, and stating the “testimony was beyond the scope of lay testimony

permitted by Rule of Evidence 701(c). An opinion that a gunshot wound was

self-inflicted would require specialized expert medical and forensic training.

See Pa.R.E. 702(c).”). Appellant’s fifth issue lacks merit.

As none of Appellant’s issues have merit and we discern no error or

abuse of the trial court’s discretion, we affirm the judgment of sentence.

Judgment of sentence affirmed.

____________________________________________

Jackson, 283 A.3d 814, 817 (Pa. Super. 2022) (“for a ruling on evidence to

constitute reversible error, it must have been harmful or prejudicial to

the complaining party.” (emphasis added; citation omitted)). Our review

discloses that the evidence overwhelmingly established Appellant’s guilt, and

he was not prejudiced by Officer Richter’s testimony in question. See Trial

Court Opinion, 5/25/23, at 7 (finding Officer Richter’s testimony in question

“did not prejudice Appellant in any way”); Jackson, supra. Further, as

discussed above, the trial court thoroughly instructed the jury as to the legal

principles related to possession. See N.T., 3/8/23, at 93-98. “It is presumed

the jury follows [a trial] court’s instructions.” Commonwealth v. Speight,

854 A.2d 450, 458 (Pa. 2004).

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/10/2023

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