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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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