Com. v. Sloan, T.

• Court: Superior Court of Pennsylvania
• Decided: September 15, 2016
• Docket: 1845 WDA 2015
• Status: Unpublished

Opinion

J-S57021-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

TERRANCE LAMONT SLOAN,

Appellant No. 1845 WDA 2015

Appeal from the Judgment of Sentence June 18, 2015 In the Court of Common Pleas of Butler County Criminal Division at No(s): CP-10-CR-0000423-2014

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 15, 2016

Appellant, Terrance Lamont Sloan, appeals from the judgment of

sentence entered following his conviction of possession of a controlled

substance. We affirm.

We summarize the underlying facts of this case as follows. On the

evening of January 5, 2014, Appellant was in a Honda Pilot that was involved

in a two-vehicle accident in Butler, Pennsylvania. Colleen Biondo (“Ms.

Biondo”), the mother of one of the other passengers, Dakota Biondo (“Mr.

Biondo”), was alerted of the accident and walked to the accident scene from

her home that was a short distance away. During the police investigation at

the scene, Butler City Police Lieutenant David Adam observed Appellant ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S57021-16

standing near Ms. Biondo and attempting to pass something to her. Ms.

Biondo reacted by dropping the item on the ground, throwing her hands up

in the air, and saying, “[I]t’s not mine.” The lieutenant discovered a bag

containing 103.43 grams of marijuana between Appellant and Ms. Biondo.

The police also discovered heroin and a marijuana grinder in the center

console of the SUV. Appellant was arrested and charged with two counts of

possession of a controlled substance and one count of possession of drug

paraphernalia. On February 11, 2015, a jury convicted Appellant of the

single count of possession of marijuana. On June 18, 2015, the trial court

sentenced Appellant to a term of incarceration of six to twelve months, with

credit for time served of 333 days. Appellant filed timely post-sentence

motions, which the trial court denied in part and granted in part.1 This

appeal followed. Both Appellant and the trial court have complied with

Pa.R.A.P. 1925.

Appellant presents the following issue for our review:

Whether the weight and sufficiency of the evidence presented by the Commonwealth is enough to sustain the guilty verdict and sentence rendered for the offense of Intentionally Possessing a Controlled Substance by a person not registered in violation of 35 Pa. Stat. Ann. § 780-113(a)(16).

Appellant’s Brief at xi.

____________________________________________

1 The trial court granted Appellant’s motion to modify sentence.

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Appellant purports to argue that the verdict was against the weight of

the evidence and that there was insufficient evidence to support the verdict.

Appellant’s Brief at xi. However, these two claims are distinct. See

Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000) (discussing the

distinction between a claim challenging the sufficiency of the evidence and a

claim that the verdict is against the weight of the evidence). Nevertheless,

we conclude that Appellant has abandoned any issue concerning the weight

of the evidence because he has failed to present any discussion in the

argument section of his appellate brief alleging that the verdict was against

the weight of the evidence. Appellant’s Brief at 1-8. Accordingly, we will not

address that issue. Rather, we will focus our review to Appellant’s challenge

on the sufficiency of the evidence.

Regarding sufficiency-of-the-evidence issues, an appellant must

specify the elements upon which the evidence was insufficient in order to

preserve the issue for appeal. See Commonwealth v. Williams, 959 A.2d

1252, 1257–1258 (Pa. Super. 2008) (finding waiver where the appellant

failed to specify the elements of a particular crime allegedly not proven by

the Commonwealth). See also Commonwealth v. Gibbs, 981 A.2d 274,

281 (Pa. Super. 2009) (finding claim waived under Williams for failure to

specify either in Pa.R.A.P. 1925(b) statement or in argument portion of

appellate brief which elements of crimes were not proven beyond a

reasonable doubt).

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Appellant’s Pa.R.A.P. 1925(b) statement presents the following

pertinent issue, which fails to specify the elements of the crimes allegedly

not proven by the Commonwealth:

1. Whether the weight and sufficiency of the evidence presented by the Commonwealth is enough to sustain the guilty verdict rendered for the offense of Intentionally Possessing a Controlled Substance by a Person Not Registered?

Pa.R.A.P. 1925(b) Statement (Record Entry 100), 12/14/15, at 1.

In addressing Appellant’s intermingled claims, the trial court found the

issues to be deemed waived for failing to be sufficiently specific. As such,

Appellant’s non-specific claim challenging the sufficiency of the evidence is

waived. As the trial court explained:

Pa.R.A.P. Rule 1925(b)(4)(ii) provides, in part, that the appellant’s [Pa.R.A.P. 1925(b)] Statement “shall concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge.” Both of the issues raised by [Appellant] on appeal should be deemed waived as both fail to be sufficiently specific to allow the trial court to draft the opinion required under 1925(a).

Turning to the first issue raised on appeal, [Appellant] was convicted at jury trial on February 11, 2015 of one count of Possession of a controlled substance, 35 Pa.C.S.A. § 780- 113(a)(16). He questions whether the weight and sufficiency of the evidence presented by the prosecution was enough to sustain the guilty verdict. For the reasons stated below, this Court finds that the claim is without merit.

In Commonwealth v. Manley, 985 A.2d 256, 262 (Pa. Super. 2009), the appellate court ruled that [the] appellant’s challenge of the sufficiency of the evidence to sustain the verdict was waived. The court explained: “In Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008), this Court stated, ‘if Appellant wants to preserve a claim that the evidence

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was insufficient, then the 1925(b) statement needs to specify the element or elements upon which the evidence was insufficient. This Court can then analyze the element or elements on appeal.’”

In Manley, the “1925(b) statement language does not specify how the evidence failed to establish which element or elements of the offenses for which Appellant was convicted.” The same holds true in the instant appeal. [Appellant] has failed to specify which elements of the offense the Commonwealth has failed to prove.

Trial Court Opinion, 2/9/16, at 1-2. We are constrained to agree with the

trial court that Appellant’s non-specific claim challenging the sufficiency of

the evidence, which fails to specify the particular elements of the crime

allegedly not proven by the Commonwealth, is waived. Williams.

However, even if we were to address the merits of this undeveloped claim

challenging the sufficiency of the evidence, we would conclude that it lacks

merit.

Appellant argues that there was insufficient evidence to support his

conviction of possession of marijuana. Appellant’s Brief at 1-8. Essentially,

Appellant contends that there is no evidence that he was ever in actual

possession of the bag of marijuana. In addressing this issue, we will

consider whether there was sufficient evidence to prove Appellant’s

constructive possession of the contraband.

We analyze arguments challenging the sufficiency of the evidence

under the following parameters:

Our standard when reviewing the sufficiency of the evidence is whether the evidence at trial, and all reasonable

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inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish all elements of the offense beyond a reasonable doubt. We may not weigh the evidence or substitute our judgment for that of the fact-finder. Additionally, the evidence at trial need not preclude every possibility of innocence, and the fact-finder is free to resolve any doubts regarding a defendant’s guilt unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. When evaluating the credibility and weight of the evidence, the fact-finder is free to believe all, part or none of the evidence. For purposes of our review under these principles, we must review the entire record and consider all of the evidence introduced.

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)

(quoting Commonwealth v. Emler, 903 A.2d 1273, 1276-1277 (Pa. Super.

2006)).

Regarding the crime of simple possession of narcotics, 35 P.S. § 780-

113(a)(16) prohibits “[k]nowingly or intentionally possessing a controlled or

counterfeit substance by a person not registered under this act, or a

practitioner not registered or licensed by the appropriate State board, unless

the substance was obtained directly from, or pursuant to, a valid prescription

order or order of a practitioner, or except as otherwise authorized by this

act.” Where the contraband a person is charged with possessing is not

found on the person of the defendant, the Commonwealth is required to

prove constructive possession. Commonwealth v. Kirkland, 831 A.2d 607,

611 (Pa. Super. 2003). Constructive possession is an inference arising from

a set of facts that possession of the contraband was more likely than not.

Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004).

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We are mindful that constructive possession can be proven by

circumstantial evidence, and the “requisite knowledge and intent may be

inferred from examination of the totality of the circumstances.”

Commonwealth v. Clark, 746 A.2d 1128, 1136 (Pa. Super. 2000) (quoting

Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996)).

Moreover, we have held that circumstantial evidence is reviewed by the

same standard as direct evidence “so long as the combination of the

evidence links the accused to the crime beyond a reasonable doubt.”

Commonwealth v. Johnson, 818 A.2d 514, 516 (Pa. Super. 2003)

(citations omitted).

Our review of the certified record reflects that Ms. Biondo testified that

on the night in question, she went to the scene of the vehicle accident on

foot, from her home about one block away. N.T., 2/11/15, at 119. While at

the scene when the police were conducting their investigation, Ms. Biondo

was standing near Appellant and he attempted to put a bag of marijuana in

her hand, and Appellant said “[T]ake this.” Id. at 121. Ms. Biondo stated

that she realized the item was a large bag of marijuana. Id.

In addition, Lieutenant Adam testified that, while at the scene of the

accident, he observed Appellant standing near Ms. Biondo. N.T., 2/11/15, at

48. Lieutenant Adam stated that he observed Ms. Biondo throw her hands

up into the air and say, [I]t isn’t mine.” Id. At the time, the lieutenant saw

the bag fall to the ground, and he walked over to it and stepped on it. Id.

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Viewing this evidence in the light most favorable to the Commonwealth, it is

obvious that Appellant had the apparent ability and intent to exercise control

over the bag, thereby establishing constructive possession of the

contraband.2 Accordingly, even if Appellant’s issue that the evidence was

insufficient to support his conviction was not waived, we would conclude that

it lacks merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/15/2016

2 With regard to Mr. Biondo’s testimony at trial that the bag of marijuana was his, N.T., 2/11/15, at 187-188, we note that Lieutenant Adam testified that “[Mr. Biondo] was nowhere near the scene where the action transpired, when the bag was dropped, the hands went up, and [Ms. Biondo] screamed it wasn’t her[’]s.” Id. at 50.

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