CRIMINAL LAW

Relevancy of Incriminating Admissions of Other Bad Acts • Expert Testimony • Plea Deal • Sufficiency of Evidence

Commonwealth v. Kinard, PICS Case No. 14-0425 (Pa. Super. March 4, 2014) Ford Elliott, J. (41 pages).

Where defendant raised a mistake or accident defense to possession and conspiracy charges, evidence of incriminating admissions of participation in an illegal drug business were admissible for the limited purpose of proving defendant’s intent, motive, identity and common scheme, and the absence of mistake or accident. Where admissible conversations contained coded jargon, admission of expert testimony was permissible to help the jury understand the content of the conversations; and where defendants failed to offer evidence that the prosecution offered leniency to a witness in exchange for testimony, it was not misconduct for the prosecution to disclose that the witness had bargained for a favorable sentence in exchange for testimony. Where testimony stated that defendant was in possession of drugs with intent to distribute, the evidence was sufficient to support a conviction. Affirmed.

Appellant appealed from the judgment of sentence imposed following conviction for possession with intent to distribute and criminal conspiracy. Appellant was arrested when police executed a search warrant for the residence of another party, Jessica Morrison. Appellant was found in the bathroom of Morrison’s residence, and drugs and other implements of distribution were found elsewhere in the house. Morrison was arrested outside the residence with crack cocaine on her person, which she claimed appellant had given to her to sell. At trial, Morrison testified that, just prior to the execution of the search warrant, appellant had sold her cocaine, and had sent her to deal drugs to pay appellant back for the cocaine.

On appeal, appellant argued that the trial court erred in admitting recorded incriminating phone calls made by appellant while incarcerated awaiting trial, in permitting expert testimony on coded jargon used by appellant in said phone calls, in permitting Morrison to testify that she did not receive leniency in her sentencing in exchange for her testimony, and that the evidence was not sufficient to support conviction.

The court held that admission of the appellant’s phone calls was within the discretion of the trial court. The court noted that evidence of other bad acts is permissible when introduced to prove motive, intent, identity, common scheme, or absence of mistake or accident, and when the probative value of the evidence outweighs its prejudicial effect. The court found that appellant’s phone calls were probative in establishing that appellant was involved in drug dealing and supported Morrison’s testimony that appellant was the supplier of the drugs found in her residence. The court further found that the prejudicial effect was mitigated by proper limiting instructions to the jury.

The court rejected appellant’s argument that expert testimony was unnecessary for the coded jargon used in appellant’s phone calls. It found that the jargon was not used in a standard context, and that understanding of the circumstances of the phone calls were necessary for the jury to understand the context of the statements, and that the expert did not offer his own interpretations of the content of the phone calls.