Com. v. Clark, S.

• Court: Superior Court of Pennsylvania
• Decided: May 14, 2019
• Docket: 1558 EDA 2017
• Status: Unpublished

Opinion

J-A01035-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHAMAR CLARK : : Appellant : No. 1558 EDA 2017

Appeal from the Judgment of Sentence Entered January 12, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001767-2016

BEFORE: OTT, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 14, 2019

Shamar Clark appeals the judgment of sentence entered following his

convictions for possession with intent to deliver a controlled substance,

knowing and intentional possession of a controlled substance, and

conspiracy.1 He challenges the sufficiency of the evidence, claiming that the

chain of custody of the narcotics was incomplete and unreliable. We affirm.

At Clark’s bench trial, the Commonwealth presented the following

evidence. Officer Jason Seigafuse testified that he observed the following while

conducting narcotics surveillance:

[Officer Seigafuse]: Defendant Clark here had the cigarette box in his hand, he would hand that cigarette off to Mr. Collier [(his co- defendant)] as Mr. Collier would dip them into the liquid [(alleged PCP)], and then hand them off to each of those buyers.

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1 35 P.S. §§ 780-113 (a)(30), (a)(16), and 18 Pa.C.S.A. § 903(a), respectively. J-A01035-19

N.T., Trial, 5/9/16, at 13.

Two of the buyers were stopped. Id. at 14. Officer Seigafuse testified

that police recovered “two wet Newport cigarettes with a strong odor of

alleged PCP,” from the first buyer. Id. The Commonwealth did not place on

the record the number of the property receipt (“PR”) that was related to these

two cigarettes. However, it moved into evidence the seizure analysis for the

cigarettes, which referred to PR 3007637 (“PR 37”). Id. at 35; see also

Seizure Analysis for PR 3007637.

Officer Seigafuse also testified that from the second buyer, police seized

“one wet Newport cigarette with a strong odor of PCP,” and they placed it on

PR 3007638 (“PR 38”). N.T., Trial, at 14, 29.

The parties then stipulated on the record that the forensic analyst who

received the cigarettes and property receipts would testify that on PR 37, she

received one cigarette, rather than two, whereas on PR 38, she received two

cigarettes instead of one. Id. at 36; see also D-3 (Correction to Property

Receipt Memos).

The Commonwealth, with no objection from defense counsel, then

moved into evidence both seizure analyses for the above referenced property

receipts. N.T., Trial, at 35. Each read that only one item was collected and

only one item was tested. See Seizure Analyses for PR 37, 38. The trial court

found Clark guilty of all charges and sentenced him at a later date. Clark filed

a post-sentence motion challenging the weight of the evidence, which was

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denied by operation of law. See Post-Sentence Motion, filed 1/13/17, at ¶ 8.

This timely appeal followed.

Clark asks us to review one question:

Was not the evidence insufficient to sustain Shamar Clark’s convictions for possession with intent to deliver a controlled substance, simple possession of a controlled substance, and conspiracy, where the chain of custody connecting the items recovered in this case to the narcotics tested at the laboratory was so incomplete and unreliable that the Commonwealth failed to establish that Shamar Clark possessed, distributed or conspired to possess or distribute a controlled substance?

Clark’s Br. at 3.

Clark maintains that the evidence was insufficient because the chain of

custody in this case was unreliable. He argues that “[t]he evidence connecting

the items tested by the laboratory to items observed being passed on the

street is so riddled with holes that it is impossible to know what exactly was

seized, let alone sent to the laboratory.” Id. at 10. These arguments go to the

weight, rather than the sufficiency, of the evidence. See Commonwealth v.

Feliciano, 67 A.3d 19, 29 (Pa.Super. 2013) (en banc) (“Gaps in the chain of

custody . . . go to the weight of the evidence”). Clark’s allegation is not a basis

on which to find the evidence insufficient.

In contrast, there is no weight challenge properly before us. While

Clark’s Pa.R.A.P. 1925(b) statement challenged the weight of the evidence,

and he raised a weight claim in his post-sentence motion, he abandoned the

issue on appeal and instead argues the sufficiency of the evidence. See

Pa.R.A.P. 1925(b) Statement, filed 1/17/18, at ¶ 2; see also Gurley v.

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Janssen Pharmaceuticals, Inc., 113 A.3d 283, 288 n.11 (Pa.Super. 2015)

(concluding that appellant abandoned issues raised in 1925(b) on appeal by

not including same challenges in statement of questions presented). In any

event, even if Clark’s weight claim were properly before us, the trial court

rejected the claim and we perceive no abuse of discretion in its having done

so. See Trial Court Opinion, filed 5/25/18, at 6-7.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/14/19

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