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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PRESTON STROMAN
Appellant No. 1842 EDA 2013
Appeal from the Judgment of Sentence May 14, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000561-2012
BEFORE: MUNDY, J., OTT, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED OCTOBER 21, 2015
Appellant, Preston Stroman, appeals from the May 14, 2013 judgment
of sentence of one year’s probation imposed after being convicted by a jury
of possession of a controlled substance and possession of marijuana.1 After
careful review, we affirm.
The trial court has summarized the relevant factual and procedural
history as follows.
On October 15, 2011, Officer Darnell Jessie
(“Officer Jessie”) and his partner, Officer Millick,
were on routine patrol in the area of 66th and
Lebanon Streets, Philadelphia, Pennsylvania. Officer
Jessie observed a red Ford Taurus, PA tag HHD 998,
failing to signal while making a right turn, in violation
of Motor Vehicle Code 334-B. Officer Jessie initiated
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1
35 Pa.C.S.A. §§ 780-113(a)(16), and 780-113(a)(30), respectively.
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an investigative stop. The Ford was occupied by
three individuals – a female driver, a female front-
seat passenger and a male rear-seat passenger. At
trial, Officer Jessie identified [Appellant] as the rear-
seat passenger.
As Officer Jessie was approaching the Ford, he
observed [Appellant] quickly move his upper torso to
the right and down toward the floor of the Ford. As
Officer Jessie was asking the driver for her
paperwork, he got a signal from Officer Millick.
Officer Millick then came around to the driver’s side
of the Ford and [Appellant] was removed from the
Ford. At that time, Officer Jessie observed a clear
plastic bag in the area where [Appellant] was sitting.
The bag contained a brown handled cigar/cigarette
and blue pills. Officer Jessie recognized these items
as Marijuana and Xanax, respectively. The bag was
located on the left rear floor of the Ford, next to
[Appellant]’s right foot.
[Appellant] was taken into custody for
possession of a controlled substance. When
questioned about the items recovered from the Ford,
[Appellant] stated that he had a prescription for the
Xanax, but he was unable to produce one.
[Appellant] also stated that the bag containing the
drugs was his. The items recovered from the Ford
were placed on a property receipt. A seizure
analysis corresponding to the property receipt
revealed that item one tested positive for the
presence of Marijuana and item two tested positive
for the presence of Alprozolam, also known as
Xanax.
…
On October 15, 2011, [Appellant] was arrested
and charged with possession of a controlled
substance [and possession of marijuana]. On May
14, 2013, the matter proceeded to a trial.
[Appellant] requested and was granted a waiver of a
jury trial. Thereafter, the Commonwealth presented
the testimony of Officer Jessie and the seizure
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analysis relative to the items recovered from the
Ford. [Appellant] presented the testimony of Ms.
McCray and the 75-49 for the case. Based upon the
testimony and the evidence presented, [on May 14,
2013,] the [t]rial [c]ourt found [Appellant] guilty of
the crime of possession [of a controlled substance
and possession of marijuana] and sentenced
[Appellant] to one year of reporting probation.[2]
Trial Court Opinion, 3/20/15, at 1-3 (footnotes omitted).
Appellant did not file a post-sentence motion. On June 12, 2013,
Appellant filed a timely notice of appeal. Thereafter, on June 27, 2013, the
trial court ordered Appellant to file, within 30 days, a concise statement of
errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). It was not until July 29, 2014, that Appellant filed his
Rule 1925(b) statement.3
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2
Appellant was sentenced to one year’s probation on the possession of a
controlled substance charge, and no further penalty was imposed for the
possession of marijuana charge. Sentencing Order, 5/14/13.
3
We note that, ordinarily, the failure to file a timely court-ordered 1925(b)
statement results in a waiver of all issues on appeal. See Pa.R.A.P.
1925(b)(4)(vii); Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011)
(explaining Rule 1925(b) is a bright-line rule). However, “[t]he complete
failure to file the [Rule] 1925 concise statement is per se ineffectiveness
because it is without reasonable basis designed to effectuate the client’s
interest and waives all issues on appeal.” Commonwealth v. Thompson,
39 A.3d 335, 339 (Pa. Super. 2012), quoting Commonwealth v. Burton,
973 A.2d 428, 432 (Pa. Super. 2009) (en banc); see also generally
Commonwealth v. Scott, 952 A.2d 1190, 1192 (Pa. Super. 2008). In such
circumstances, Rule 1925(c)(3) directs us to remand for the filing of a Rule
1925(b) statement nunc pro tunc and for the preparation of an opinion by
the trial court. Pa.R.A.P. 1925(c)(3). Instantly, however, Appellant’s July
29, 2014 statement, although untimely filed, cures the defect that would be
(Footnote Continued Next Page)
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On appeal, Appellant raises the following issue for our review.
Whether the [trial] court erred in finding that the
evidence was sufficient to convict … Appellant of
simple possession of a controlled dangerous
substance based upon the words of … Appellant
alone, without other evidence independent of …
Appellant’s words, in violation of the corpus delicti
rule[?]
Appellant’s Brief at 4.
We begin by noting our well-settled standard of review. “In reviewing
the sufficiency of the evidence, we consider whether the evidence presented
at trial, and all reasonable inferences drawn therefrom, viewed in a light
most favorable to the Commonwealth as the verdict winner, support the
jury’s verdict beyond a reasonable doubt.” Commonwealth v. Patterson,
91 A.3d 55, 66 (Pa. 2014) (citation omitted), cert. denied, Patterson v.
Pennsylvania, 135 S. Ct. 1400 (2015). “The Commonwealth can meet its
burden by wholly circumstantial evidence and any doubt about the
defendant’s guilt is to be resolved by the fact finder unless the evidence is so
weak and inconclusive that, as a matter of law, no probability of fact can be
drawn from the combined circumstances.” Commonwealth v. Watley, 81
A.3d 108, 113 (Pa. Super. 2013) (en banc) (internal quotation marks and
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(Footnote Continued)
rectified by a remand pursuant to Rule 1925(c)(3). Further, the trial court
did not file its Rule 1925(a) opinion until after the filing of the untimely Rule
1925(b) statement. Therefore, the trial court had the opportunity to address
Appellant’s issues on appeal. Accordingly, we are not precluded from
reviewing Appellant’s sole issue he advances on appeal as it was included in
his Rule 1925(b) statement.
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citation omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate
court, we must review “the entire record … and all evidence actually
received[.]” Id. (internal quotation marks and citation omitted). “[T]he
trier of fact while passing upon the credibility of witnesses and the weight of
the evidence produced, is free to believe all, part or none of the evidence.”
Commonwealth v. Orie, 88 A.3d 983, 1014 (Pa. Super. 2014) (citation
omitted), appeal denied, 99 A.3d 925 (Pa. 2014). “Because evidentiary
sufficiency is a question of law, our standard of review is de novo and our
scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d 119,
126 (Pa. 2013) (citation omitted), cert. denied, Diamond v. Pennsylvania,
135 S. Ct. 145 (2014).
Instantly, however, Appellant argues the evidence was insufficient
because the Commonwealth violated the corpus delicti rule. Appellant’s
Brief at 12. Specifically, he argues that he “was only proven to have been
merely present in the red Ford Taurus and was never shown to have
possessed the bag containing [X]anax and marijuana by independent
evidence, separate and apart from his stand alone admission.” Id. at 13.
The corpus delicti rule provides that the
Commonwealth bears a burden of showing that the
charged crime actually occurred before a confession
or admission by the accused can be admitted as
evidence. The corpus delecti [sic] is literally the
body of the crime; it consists of proof that a loss or
injury has occurred as a result of the criminal
conduct of someone. The purpose of the corpus
delicti rule is to guard against the hasty and
unguarded character which is often attached to
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confessions and admissions and the consequent
danger of a conviction where no crime has in fact
been committed.
Commonwealth v. Otterson, 947 A.2d 1239, 1249 (Pa Super. 2008)
(quotation marks and citations omitted).
We dealt with a similar circumstance in Otterson, which we addressed
as follows. “Initially, we point out that even though Appellant has framed
his argument as a challenge to the sufficiency of the evidence, the corpus
delicti rule applies to the admissibility of evidence.” Id. at 1249 (citation
omitted). In reviewing a trial court’s ruling on the admissibility of evidence,
our standard of review is one of deference. Commonwealth v. Selenski,
18 A.3d 1229, 1232 (Pa. Super. 2011), vacated in part on other grounds, 92
A.3d 766 (Pa. 2014). Questions concerning the admissibility of evidence are
within “the sound discretion of the trial court, and its discretion will not be
reversed absent a clear abuse of discretion.” Id. (citation omitted). “An
abuse of discretion is not merely an error of judgment, but is rather the
overriding or misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,
as shown by the evidence of record.” Commonwealth v. Harris, 884 A.2d
920, 924 (Pa. Super. 2005) (internal citations and quotation marks omitted),
appeal denied, 928 A.2d 1289 (Pa. 2007). Furthermore, “if in reaching a
conclusion the trial court over-rides [sic] or misapplies the law, discretion is
then abused and it is the duty of the appellate court to correct the error.”
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Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa. Super. 2009)
(citation omitted), appeal denied, 986 A.2d 150 (Pa. 2009).
We note, however, that Appellant has waived his corpus deliciti
challenge for failure to preserve it below. Pennsylvania Rule of Appellate
Procedure 302(a) provides that, “[i]ssues not raised in the lower court are
waived and cannot be raised for the first time on appeal.” The relevant
testimony of Officer Jessie, elicited by the Commonwealth, is as follows.
A. There was a clear plastic bag right where
[Appellant] was sitting. In that bag, it had a brown
handle cigar/cigarette, which I immediately
recognized as marijuana. Inside that was also blue
pills. Once that was removed, looked on the pills
and had a stamp of 3721, which in my previous
experience was Xanax. So [Appellant] was taken
into custody for a violation of controlled substance.
Q. I’m going to ask you a question. You said that
the bag was near [Appellant]. Where was it?
A. It was in the left side of the vehicle where he was
sitting as his right foot, so kind of like in the seat --
well on the floor next to the right foot.
Q. Okay. And was [Appellant] asked about the
items in the bag?
A. That’s correct.
Q. What did he say?
A. He had said that he had a prescription, but he
could not produce one.
Q. What did he say about the marijuana?
A. He didn’t say anything in reference to the
marijuana.
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N.T., 5/14/13, at 11-12. Accordingly, the record reveals that no objection
was raised contemporaneously to the testimony at issue. Therefore,
Appellant has waived this issue on appeal.
Based on the foregoing, we conclude Appellant has waived his
challenge to the corpus delicti rule. Accordingly, we affirm the trial court’s
May 14, 2013 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2015
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