J-S32023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRANCE JORDAN,
Appellant No. 1789 WDA 2014
Appeal from the Judgment of Sentence of October 27, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): 0000525-2014
BEFORE: SHOGAN, OLSON AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED JULY 10, 2015
Appellant, Terrance Jordan, appeals from the judgment of sentence
entered on October 27, 2014. We affirm.
The relevant factual background and procedural history of this case
are as follows. At approximately 3:00 p.m. on January 23, 2014, police,
acting on information supplied by a confidential informant, stopped a dark
Saturn SUV. Appellant was seated in the front passenger seat of the vehicle.
Police performed a protective frisk of Appellant and recovered a firearm from
his waistband. When Appellant was transported to the police department for
booking, police recovered a baggie of pills.
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On March 27, 2014, Appellant was charged via criminal information
with possession of a firearm by a prohibited person,1 carrying a firearm
without a license,2 and possession of a controlled substance by an
unregistered person.3 On March 31, 2014, Appellant was formally arraigned.
On April 1, 2014, Appellant filed a discovery request, to which the
Commonwealth forwarded a timely response. On July 8, 2014, Appellant
filed an omnibus pretrial motion. That same day, the trial court dismissed
the pretrial motion as untimely. On September 4, 2014, the case proceeded
to a non-jury trial and Appellant was found guilty of carrying a firearm
without a license and possession of a controlled substance by an
unregistered person.4 On October 27, 2014, Appellant was sentenced to an
aggregate term of 30 to 60 months’ imprisonment. This timely appeal
followed.5
Appellant presents two issues for our review:
1
18 Pa.C.S.A. § 6105(a)(1).
2
18 Pa.C.S.A. § 6106(a)(1).
3
35 P.S. § 780-113(a)(16).
4
The possession of a firearm by a prohibited person charge was withdrawn.
5
On October 28, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On November 10, 2014, Appellant filed his concise
statement. On November 19, 2014, the trial court issued its Rule 1925(a)
opinion. Both issues raised on appeal were included in Appellant’s concise
statement.
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1. Whether the trial court erred in dismissing Appellant’s
omnibus pretrial motion as untimely where defense counsel
was not aware of the grounds for the motion due to an
inability to contact the Appellant[?]
2. Whether the trial court, as finder of fact, abused its discretion
in finding the Appellant guilty of possession of a controlled
substance, specifically, ecstasy, when the evidence and
testimony presented was insufficient to establish such a
finding[?]
Appellant’s Brief at 3 (complete capitalization removed).
In his first issue, Appellant contends that the trial court erred by
dismissing his pretrial motion as untimely. We review a trial court’s
dismissal of a pretrial motion on timeliness grounds for an abuse of
discretion. Commonwealth v. Johonoson, 844 A.2d 556, 561 (Pa.
Super. 2004), appeal denied, 863 A.2d 1144 (Pa. 2004) (citation omitted).
Pennsylvania Rule of Criminal Procedure 579 provides, in relevant part:
[T]he omnibus pretrial motion for relief shall be filed and served
within 30 days after arraignment, unless opportunity therefor did
not exist, or the defendant or defense attorney, or the attorney
for the Commonwealth, was not aware of the grounds for the
motion, or unless the time for filing has been extended by the
court for cause shown.
Pa.R.Crim.P. 579(a).
In this case, Appellant was arraigned on March 31, 2014. Therefore,
the pretrial motion was due on April 30, 2014. The pretrial motion was not
filed until July 8, 2014. In his pretrial motion, Appellant sought suppression
of all evidence recovered as a result of the traffic stop and identification of
the confidential informant that provided police with information that led to
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the stop. Counsel averred that he was unable to contact Appellant from the
day he was released on bail, February 28, 2014, until July 7, 2014 as
Appellant did not return counsel’s attempts at communication. Thus,
counsel argued that he was unaware of the bases for the pretrial motion.
Other averments in the pretrial motion, however, indicate that counsel
was fully aware of the grounds for the pretrial motion months earlier.
Specifically, counsel conceded that the Commonwealth turned over all
requested discovery materials in a timely manner after a discovery request
was filed on April 1, 2014. All information needed to file the pretrial motion
was included within those discovery materials as that was the only
information cited in the pretrial motion. Furthermore, the trial court found
that, because Appellant bore responsibility for failing to communicate with
counsel, he should be deemed to have waived his right to a suppression
hearing. We ascertain no abuse of discretion in this determination as we
refuse to incentivize defendants to not communicate with their counsel.
Appellant cites Commonwealth v. Borovichka, 18 A.3d 1242 (Pa.
Super. 2011), in support of his argument that the trial court erred by
dismissing his pretrial motion as untimely. Borovichka, however, did not
address whether the trial court erred by dismissing a pretrial motion as
untimely. Instead, in Borovichka the trial court addressed the defendant’s
pretrial motion despite the fact that it was untimely. This Court simply
noted that this Court would not find the issue waived on appeal because the
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trial court permitted the untimely pretrial motion. Id. at 1248. Accordingly,
we conclude that the trial court did not abuse its discretion in dismissing
Appellant’s pretrial motion as untimely.
In his second issue, Appellant contends that there was insufficient
evidence to convict him of possession of a controlled substance by an
unregistered person. “Whether sufficient evidence exists to support the
verdict is a question of law; thus, our standard of review is de novo and our
scope of review is plenary.” Commonwealth v. Patterson, 91 A.3d 55, 66
(Pa. 2014) (citation omitted). In reviewing a sufficiency of the evidence
claim, we must determine “whether viewing all the evidence admitted at trial
in the light most favorable to the [Commonwealth], there is sufficient
evidence to enable the fact-finder to find every element of the crime beyond
a reasonable doubt.” Commonwealth v. Thompson, 106 A.3d 742, 756
(Pa. Super. 2014) (citation omitted). “The evidence need not preclude every
possibility of innocence and the fact-finder is free to believe all, part, or none
of the evidence presented.” Commonwealth v. Haynes, 2015 WL
1814017, *15 (Pa. Super. Apr. 22, 2015) (internal quotation marks and
citation omitted).
Appellant argues that there was insufficient evidence to convict him of
possession of a controlled substance by an unregistered person because the
criminal information in this case charged him with possession of 3,4-
methylenedioxymethamphetamine (“MDMA”) and at trial the Commonwealth
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conceded that Appellant did not possess MDMA but instead possessed 3,4-
methylenedioxypyrovalerone (“MDPV”). See Information, 3/27/14, at 2;
N.T., 9/4/14, at 42. Our Supreme Court has rejected a similar argument.
In Commonwealth v. Kelly, 409 A.2d 21, 23 (Pa. 1979), the criminal
complaint charged the defendant with possession of heroin. Id. at 23. At
trial, it was revealed the substance was in fact methamphetamine. Id. The
defendant therefore argued that there was insufficient evidence to convict
him of possession of a controlled substance by an unregistered person, the
same offense at issue in the case sub judice. See id. Our High Court held
that the error in the criminal information was not fatal to the prosecution
because the defendant was not “misled at trial, prejudicially surprised in
efforts to prepare a defense, precluded from anticipating the prosecution’s
proof, or otherwise impaired with respect to a substantial right.” Id.
(citation omitted). Kelly is still good law as our Supreme Court recently
cited it with approval. See Commonwealth v. Jones, 912 A.2d 268, 289
(Pa. 2006).
As in Kelly, our “review of the record reveals that [A]ppellant could
not have been prejudiced by the defect in the complaint and that he was
well advised of the nature of the offense charged.” Kelly, 409 A.2d at 23.
MDMA is a schedule I controlled substance, United States v. Baird, 312 F.
App’x 449, 450 (3d Cir. 2008), as is MDPV. Commonwealth v. Tucker,
106 A.3d 796, 797 (Pa. Super. 2014). Thus, possession of both is prohibited
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by 35 P.S. § 780-113(a)(16). Appellant knew he was being charged for
possession of the pills found on his person and he did not dispute the
chemical composition or legal status thereof. Although we are unsure why
the Commonwealth did not amend the criminal information at trial to list
MDPV instead of MDMA, that decision was not fatal to Appellant’s
prosecution or conviction. Accordingly, there was sufficient evidence to
convict Appellant of possession of a controlled substance by an unregistered
person.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2015
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