Com. v. Blackwood, S.

J-A23029-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee

v.

STEPHEN ANTONIO BLACKWOOD,

Appellant No. 64 WDA 2019

Appeal from the Judgment of Sentence Entered November 30, 2018
In the Court of Common Pleas of Bedford County
Criminal Division at No(s): CP-05-CR-0000708-2017

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 30, 2019

Appellant, Stephen Antonio Blackwood, appeals from the judgment of

sentence of an aggregate term of 6-23 months’ incarceration, followed by 3

years’ probation, imposed following his conviction for possession with intent

to deliver (PWID)1 marijuana and related offenses. Appellant challenges the

trial court’s denying his motion to suppress, as well as the sufficiency of the

evidence supporting his PWID conviction. After careful review, we affirm.

The trial court has failed to provide this court with a summary of the

facts adduced at trial. However, it did summarize the facts adduced at

Appellant’s suppression hearing as follows:

At the evidentiary hearing, Trooper Joseph Watkins testified, in
relevant part, that he was monitoring traffic along Interstate 99
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1 35 P.S. § 780-113(a)(30).
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in Bedford County on October 3, 2017. While doing so, he
observed a vehicle drive by him in the left lane[,] which he viewed
to have dark window tint. Trooper Watkins testified that the
vehicle had “extremely dark window tint” and th[at] he “couldn’t
identify the driver at all.” [N.T. Suppression, 2/23/18, at 9.] The
Trooper effectuated a stop o[f] the vehicle due to the window tint
and made contact with [Appellant] after he pulled his vehicle over.

Upon making contact with [Appellant,] Trooper Watkins testified
that [Appellant] appeared slightly nervous, that was “too much for
just a regular traffic stop.” Id. at 10. Trooper Watkins testified
that he noticed a strong odor of air freshener and a faint odor of
marijuana coming from inside the vehicle. The Trooper testified
that, in his opinion, the air freshener scent was pungent enough
to be a masking scent to cover up the smell of marijuana. The
Trooper testified that he could smell marijuana from the other side
of the vehicle as well. When Trooper Watkins confronted
[Appellant] about the smell of marijuana, [Appellant] initially
denied the smell, but eventually stated that he believed he
smoked marijuana the day prior to the traffic stop. Id. at 12. The
Trooper then advised [Appellant] that he would be performing a
warrantless search of the vehicle. Upon searching the vehicle, the
Trooper smelled marijuana coming from the glove box and
eventually found marijuana, cocaine,[2] and drug paraphernalia
after opening the glove box. After seizing the controlled
substances, the Trooper placed [Appellant] under arrest and had
[his] vehicle towed.

The next day, the Trooper visited the lot where [Appellant]’s
vehicle was towed and tested the tint on [Appellant]’s vehicle[’s]
windows. The Trooper testified that … [Appellant]’s driver’s side
window tested at 28 percent visibility. The Trooper testified that
he initially pulled over [Appellant]’s vehicle to investigate the
window tint and that, at the location he was sitting on Interstate
99, the window tint meter was located at the Pennsylvania State
Police Barracks approximately three miles away. Trooper Watkins
testified credibly as to the testimony recited above …. [Appellant]
testified briefly at the evidentiary hearing on the limited issue of
the window tint on his vehicle. [Appellant] admitted that his

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2 Trooper Watkins merely suspected the white powdery substance was
cocaine, but it ultimately tested negative for cocaine. N.T. Trial, 10/11/18, at
38.

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vehicle did have window tint and did not dispute the percentage
of visibility testified to by the Trooper.

Suppression Opinion, 8/14/18, at 2-4 (footnotes omitted).

Trooper Watkins was the Commonwealth’s only witness at Appellant’s

non-jury trial. As noted by Appellant:

Trooper Watkins proceeded to testify as a fact witness with
respect to the same observations that he made and testified to at
the February 23, 2018 Suppression Hearing, with a few additional
details relevant to the instant appeal.

First, Trooper Watkins testified that when Appellant was back at
the police barracks he asked Appellant if he was a “big fish[,”] at
which time Appellant apparently said that he was “just a little
fish[,”] [N.T. Trial at 42]; however Trooper Watkins never offered
any testimony or clarification as to what being a “little fish”
actually means in the context of being a drug user[] versus a drug
dealer.

Regarding the $5,050.00 that was seized from Appellant’s vehicle,
Trooper Watkins testified that Appellant stated that he got these
monies by “being dishonest.” [Id.] Regarding the condition of
the seized currency, Trooper Watkins testified that this money
consisted of large, crisp bills that were similar to the bills that
Trooper Watkins keeps in his gun safe at home. [Id. at 49.]

With respect to the packaging of the marijuana at issue, Trooper
Watkins testified that there were five (5) plastic bags of “bud”
marijuana. [Id. at 50.] Trooper Watkins testified that each of the
five (5) bags contained a different amount of marijuana; however
he was not aware of how much marijuana was in each bag. [Id.]
In addition to the “bud” marijuana, there were four (4)
commercially packaged THC cartridges. [Id. at 52-53.]

Similarly, Trooper Watkins admitted that he did not know if the
marijuana contained in each of the five (5) bags w[as] the same
or different types/strands of marijuana, and also acknowledged
that marijuana users like to consume different types/strands of
marijuana. [Id. at 51.]

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Trooper Watkins testified that he charged Appellant with [PWID]
the marijuana at issue “because of the weight of the marijuana
[and] how it was packaged.” [Id. at 39.] However, Appellant did
not possess any items typically associated with drug distribution,
including scales, packaging material (other than the ones already
containing the marijuana), or “owe sheets[.”] [Id. at 53.]

Trooper Watkins also seized Appellant’s cell phone; however he
never conducted a search of its contents. [Id. at 54.] In contrast,
Trooper Watkins seized a marijuana grinder from Appellant’s
vehicle, which, according to Trooper Watkins, is an item of
paraphernalia consistent with personal use. [Id. at 52.]

Appellant’s Brief at 15-17.3 Additionally, at trial, Appellant stipulated to the

lab results showing “the items that were tested contained 5.177 grams of

marijuana and 7.53 grams of THC….” N.T. Trial at 6.

The trial court convicted Appellant of PWID, possession of a controlled

substance, 35 P.S. § 780-113(a)(16), possession of a small amount of

marijuana, 35 P.S. § 780-113(a)(31)(i), possession of drug paraphernalia, 35

P.S. § 780-113(a)(32), and illegally-tinted windows, 75 Pa.C.S. § 4524(e)(1).

On November 30, 2018, the court sentenced Appellant to 6-23 months’

incarceration and a consecutive term of 3 years’ probation for PWID. The

court imposed only fines and costs, or no further penalty, at each of the

remaining offenses.

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3 After reviewing the trial transcript, we conclude that Appellant’s summary of
the facts accurately reflects Trooper Watkins’ testimony at trial. As noted, the
trial court did not provide a summary of the facts adduced at trial.
Additionally, the Commonwealth failed to file a brief in this case.

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Appellant timely filed a post-sentence motion, which the court denied

on December 11, 2018. Appellant subsequently filed a timely notice of appeal,

and a timely, court-ordered Pa.R.A.P. 1925(b) statement. The trial court

issued a Rule 1925(a) statement on April 9, 2019, indicating that it was would

rely on its August 14, 2018 suppression opinion.4

Appellant now presents the following questions for our review:

I. Whether the [t]rial [c]ourt erred in denying Appellant’s
motion to declare the search and seizure at issue illegal
under Article 1, Section 8 of the Pennsylvania Constitution
as well as the Fourth and the Fourteenth Amendments of
the United States Constitution and suppress all evidence and
fruit of the poisonous tree that was derived therefrom since
the arresting officer did not possess the requisite probable
cause to conduct a warrantless search of Appellant’s
vehicle?

II. Whether the [t]rial [c]ourt erred in denying Appellant’s
[m]otion [f]or [judgment] of [a]cquittal with respect to
Count #1 ([PWID] [m]arijuana) due to insufficient evidence
being presented at [t]rial to enable the fact-finder to
properly find that Appellant possessed the marijuana at
issue with the specific intent to distribute the same, and
where Appellant was found to have possessed the same unit
of marijuana for personal use only beyond a reasonable
doubt?

Appellant’s Brief at 7.

We will address Appellant’s claims in reverse order for ease of

disposition. Thus, we first consider Appellant’s sufficiency claim.

____________________________________________

4 The trial court failed to address any other issues in its Rule 1925(a) opinion,
other than to state that in “regards to [Appellant]’s other issues, we
respectfully refer the appellate court to the relevant portions of the trial and
sentencing transcripts.” Trial Court Opinion, 4/9/19, at 1.

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A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to support the
verdict when it establishes each material element of the crime
charged and the commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention to
human experience and the laws of nature, then the evidence is
insufficient as a matter of law. When reviewing a sufficiency
claim[,] the court is required to view the evidence in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

Appellant asserts that the evidence is insufficient to support his

conviction for PWID-marijuana, because it is ostensibly inconsistent with his

conviction for possessing a small amount of marijuana for personal use. 5 He

contends that

under the very specific circumstances of this case where the
Commonwealth never identified what amount of the controlled
substance at issue was intended for delivery and what amount
was intended for personal use, it would be factually and legally

____________________________________________

5 To the extent Appellant argues that the individual facts presented at trial do
not support a PWID conviction, we deem those matters waived. In Appellant’s
Rule 1925(b) statement, he raised two sufficiency claims regarding the alleged
incompatibility of a PWID-marijuana conviction and a possession-of-
marijuana-for-personal-use conviction. In neither instance did he raise the
numerous individual arguments he now makes in his brief regarding the
nature of the packaging, the total amount of marijuana seized, his possession
of use paraphernalia, and the absence of distribution paraphernalia. See
Appellant’s Rule 1925(b) Statement, 1/28/19, at 1-2 ¶¶ I, III. Appellant did
raise such concerns in the context of a weight-of-the-evidence claim. See id.
at 2 ¶ III. However, Appellant has abandoned his weight claim on appeal, and
cannot now incorporate such matters under the rubric of a sufficiency claim.
“Any issues not raised in a 1925(b) statement will be deemed waived.”
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).

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impossible for Appellant to simultaneously possess this single unit
of marijuana with these two mutually exclusive intentions.

Appellant’s Brief at 32. Appellant further believes that “the Commonwealth

actually proved, beyond a reasonable doubt, that Appellant possessed the

marijuana at issue for personal use only, which effectively rendered a

finding that Appellant possessed the same marijuana with the specific intent

to deliver the same insufficient.” Id. at 37 (internal citation omitted, emphasis

in original).

Appellant is not entitled to relief. First, as a purely logical matter—

assuming for a moment that the case law does not clearly weigh against

Appellant’s argument as discussed below—it is not clear why the

Commonwealth had not disproven the possession-of-marijuana-for-personal-

use offense by proving, beyond a reasonable doubt, the offense of PWID-

marijuana, rather than vice versa, following Appellant’s strained reasoning. It

appears merely self-serving for Appellant to challenge his PWID conviction

rather than his possession-for-personal-use conviction in that regard.

Moreover, Appellant assumes, incorrectly, that PWID and possession for

personal use have wholly incompatible mens rea elements. Appellant could

have intended the aggregate amount of marijuana in part for personal use

and in part for distribution.6 Accordingly, we ascertain no logical discrepancy

between PWID and possession for personal use, especially where, as here, it

____________________________________________

6 In this regard, the only mens rea that is truly inconsistent with PWID is not
possession intended for personal use, but the absence of an intent to possess
the substance for any purpose whatsoever.

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is undisputed that Appellant’s marijuana was packaged in five separate

baggies, where he also had four separate THC vaping devices, and where he

had all these items in close proximity to an extremely large amount of cash.

Second, it is now axiomatic in this Commonwealth that inconsistent

verdicts do not render the evidence insufficient with regard to any specific

conviction. “[U]nder longstanding federal and state law, [inconsistent

verdicts] are allowed to stand so long as the evidence is sufficient to support

the conviction.” Commonwealth v. Miller, 35 A.3d 1206, 1208 (Pa. 2012).

Here, Appellant effectively concedes that the evidence was sufficient to

support his possession-for-personal-use offense. With regard to the PWID-

marijuana offense:

In determining whether there is sufficient evidence to support a
PWID conviction, all facts and circumstances surrounding the
possession are relevant, and the Commonwealth may establish
the essential elements of the crime wholly by circumstantial
evidence. Factors to consider in determining whether the drugs
were possessed with the intent to deliver include the particular
method of packaging, the form of the drug, and the behavior of
the defendant.

Commonwealth v. Bricker, 882 A.2d 1008, 1015 (Pa. Super. 2005) (citation

omitted).

Here, in determining that the evidence was sufficient to support PWID,

the trial court stated: “My review of the evidence based on how they were

packaged, where they were kept, and the money that was kept along with

him, those all indicate to me[,] … beyond a reasonable doubt[,] that he

possessed these with the intent of delivering them or selling them.” N.T. Trial

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at 76. We ascertain no legal error in the trial court’s reasoning. Although we

acknowledge that the total amount of controlled substances seized and

Appellant’s possession of paraphernalia were factors consistent with personal

use, the separate packaging of the drugs and the large sum of cash were

factors consistent with an intent to distribute. Thus, there was evidence

supporting both an intent to distribute and an intent to possess the marijuana

for personal use, and it was exclusively for the factfinder to address the weight

of the evidence. Our standard of review dictates that we “view the evidence

in the light most favorable to the verdict winner giving the prosecution the

benefit of all reasonable inferences….” Widmer, 744 A.2d at 751. It was

reasonable to infer from the circumstances of this case that Appellant

possessed the seized contraband with the intent to sell or distribute it.

Accordingly, Appellant’s sufficiency claim fails.

Appellant also contends that the trial court abused its discretion when it

denied his motion to suppress.

Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. Where
… the appeal of the determination of the suppression court turns
on allegations of legal error, the suppression court’s legal
conclusions are not binding on an appellate court, whose duty it

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is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below are
subject to our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783–84 (Pa. Super. 2012)

(cleaned up).

As a general rule, for a search to be reasonable under the Fourth
Amendment or Article I, Section 8 [of the Pennsylvania
Constitution,] police must obtain a warrant, supported by
probable cause and issued by an independent judicial officer, prior
to conducting the search. This general rule is subject to only a
few delineated exceptions, including the existence of exigent
circumstances.

Commonwealth v. Gary, 91 A.3d 102, 107 (Pa. 2014). In Gary, our

Supreme Court adopted “the federal automobile exception to the warrant

requirement, which allows police officers to search a motor vehicle when there

is probable cause to do so and does not require any exigency beyond the

inherent mobility of a motor vehicle.” Id. at 104. Furthermore,

[t]he Supreme Court of the United States has held that an odor
may be sufficient to establish probable cause for the issuance of
a search warrant. United States v. Ventresca, 380 U.S. 102 …
(1965); Johnson v. United States, 333 U.S. 10 … (1948), as
cited in Commonwealth v. Stoner, … 344 A.2d 633 ([Pa. Super.]
1975). In … Stoner, … this [C]ourt stated that the rationale used
to establish probable cause in those Supreme Court cases applies
equally well when determining the validity of a search of a
movable vehicle. In Stoner, we analogized a “plain smell”
concept with that of plain view and held that where an officer is
justified in being where he is, his detection of the odor of
marijuana is sufficient to establish probable cause.

Commonwealth v. Stainbrook, 471 A.2d 1223, 1225 (Pa. Super. 1984).

Appellant essentially argues that the trial court determined that Trooper

Watkins possessed probable cause to search Appellant’s vehicle based solely

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on his smelling a faint or subtle odor of marijuana. Appellant’s Brief at 20.

He asserts that “the supposed detection of a ‘very faint’ and ‘subtle’ odor of

marijuana may give an officer reasonable suspicion to investigate further,

[but] it does not support a finding of probable cause necessary for a

warrantless search of an automobile.” Id. Appellant further argues:

[T]he Commonwealth will suggest that the detection of any odor
of marijuana, no matter how slight, in and of itself is sufficient to
establish probable cause. However, neither Stoner nor its
progeny’s holdings establish such a bright-line rule. Rather, the
Stoner Court noted that “it would be a dereliction of a duty for a
police officer to ignore the obvious aroma of an illegal drug which
he/she was trained to identify.” Stoner, … 344 A.2d [at] 635 …
(emphasis added).

However, in order for the odor of marijuana to be “obvious[,”] it
must be “easily discovered, seen, or understood.” MERRIAM-
WEBSTER, http://www.merriam-webster.com/dictionary/obvious
(last visited June 18, 2019). It goes without saying that
something that is “subtle” and “faint” cannot be said to be
“obvious[.”]

Although the Pennsylvania Supreme Court has never addressed
the specific issue sub judice,5 the case law is clear and
Pennsylvania Courts have consistently held that the officer must
detect a strong and obvious odor of marijuana; and must be able
to point to other observations, criminal indicators, or a
combination of both such that a probable cause determination
must be viewed under the totality of the circumstances.

5Appellant recognizes that the Pennsylvania Supreme Court
recently decided In Interest of A.A., 195 A.3d 896 (Pa.
2018), where the Court announced in dicta that “the odor of
marijuana alone, particularly in a moving vehicle, is
sufficient to support at least reasonable suspicion, if not the
more stringent requirement of probable cause.” Id. at 904.
However, these statements were not central to the Court’s
holding, and the issue of whether or not the odor of
marijuana alone is sufficient to support a finding of probable
cause was not before the Court. Rather, the question before

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the Court in In re A.A. was “whether information obtained
by a police officer during a lawful initial traffic stop may be
used to justify re-engagement with the driver after the
police officer indicates the driver is free to go, such that
consent to search given during that re-engagement is valid.
Id. at 898.

Appellant’s Brief at 24-25.

Thus, Appellant contends that only an obvious smell of marijuana will

independently support a finding of probable cause. He insists that a subtle

or faint smell of marijuana only supports a finding of reasonable suspicion.

However, this is not a case where the smell of marijuana was the sole basis

for the finding of probable cause. As articulated by the trial court:

Trooper Watkins testified that [Appellant] appeared to be more
nervous than what he believe[d] was usual for a normal traffic
stop. More importantly, the Trooper testified that he smelled a
strong odor of air freshener overtop a faint odor of marijuana
coming from inside the vehicle. If this was the extent of the
record, we may agree with [Appellant] that there is a lack of
probable cause. However, in addition to the above information,
[Appellant] admitted to smoking marijuana the day prior to the
stop. Therefore, upon [Appellant]’s admission, the Trooper’s
sensory observations of the marijuana and masking air fresheners
were affirmed, and [Appellant]’s nervous behaviors increased in
relevance to the likelihood of criminal behavior.5 Viewing all of
the circumstances known to Trooper Watkins, we find that he
possessed an articulable substantial basis to conclude that a
search of [Appellant]’s vehicle would uncover evidence of criminal
wrongdoing.
5 We note that [Appellant] argues that his admission to
smoking marijuana the day prior [to the] stop is not
evidence in favor of the search, but rather evidence that the
smell of marijuana was old and unrelated to the actual
presence of a controlled substance in the vehicle. We
disagree with [Appellant]’s premise that, in conducting his
investigation, the Trooper must accept every statement
made by [Appellant] as literal truth. Here, [Appellant]
admitted to smoking marijuana after initially denying the

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existence of the smell to the Trooper. We see no reason
why the Trooper should then be constrained to
unquestionably accept the timeline given by [Appellant].
Moreover, based upon the record, there was no indication
of where [Appellant] smoked the marijuana. Indeed, if
[Appellant] smoked marijuana inside the vehicle, there is
certainly a heightened possibility of the continued presence
of contraband.

Suppression Opinion at 6-7.

Appellant premises his claim on the false factual assertion that Trooper

Watkins searched his vehicle based solely on the faint or subtle smell of

marijuana. As that was clearly not the only basis for the trial court’s

determination that Trooper Watkins possessed probable cause, Appellant’s

claim is meritless.

Moreover, probable cause exists “where the facts and circumstances

within the officers’ knowledge are sufficient to warrant a person of reasonable

caution in the belief that an offense has been or is being committed.”

Commonwealth v. Green, 168 A.3d 180, 186–87 (Pa. Super. 2017) (quoting

Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999)). Here, the trial court

determined that Trooper Watkins possessed probable cause to search

Appellant’s vehicle based on 1) the subtle smell of marijuana, detectable from

both sides of Appellant’s car, in conjunction with 2) the presence of a masking

agent, 3) Appellant’s abnormally nervous behavior during the stop, and 4)

Appellant’s admission that he had smoked marijuana, after initially denying

any knowledge of the smell. We ascertain no abuse of discretion in that

determination. It was reasonable for Trooper Watkins to believe that

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Appellant was committing a marijuana-related crime based on his

observations.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/30/2019

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