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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KESHON LAMAR CANYON :
:
Appellant : No. 10 MDA 2022
Appeal from the Judgment of Sentence Entered November 15, 2021
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0001291-2020
BEFORE: DUBOW, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: JULY 19, 2022
Keshon Lamar Canyon (Canyon) appeals from the judgment of sentence
imposed by the Court of Common Pleas of Schuylkill County (trial court) after
a jury found him guilty of two counts of possession with intent to deliver a
controlled substance (PWID), three counts of possession of a controlled
substance and one count of possession of drug paraphernalia.1 On appeal, he
challenges (1) the sufficiency of evidence for his PWID convictions, (2) the
denial of his suppression motion, (3) the jury instructions about the Medical
Marijuana Act (MMA),2 (4) his expert being barred from testifying about
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. §§ 780-113(a)(30), (a)(16) and (a)(32), respectively.
2 35 P.S. §§ 10231.101-10231.2110.
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certain matters, and (5) the trial court correcting defense counsel during
cross-examination of a witness. We affirm.
I.
On May 3, 2020, Minersville Police applied for a warrant to search
Canyon’s home. According to the affidavit:
During the month of February of 2020, [police] received
multiple complaints of suspected drug activity from 214 Lewis
Street, Minersville, Pa. Neighbors report seeing a large volume of
stop and go traffic both in vehicle and on foot. Reports include
vehicles parking outside and occupants exiting the vehicle,
entering 214 Lewis Street and emerging a short later and leaving
in vehicles. Neighbors also report a very strong odor of marijuana
emitting from the home and it can be detected in the street and
adjacent areas.
On March 3, 2020, [police] conducted a trash pull from
outside 214 Lewis Street, Minersville. During the operation, five
(5) white trash bags and one (1) black trash bag were taken from
curbside in front of 214 Lewis Street, Minersville and returned to
the Minersville Police Headquarters. A search of the trash
revealed medium and large glassine and vacuum style bags
containing green leafy residue that field tested positive for
marijuana, [and] mail addressed to Keshon Canyon and Samantha
Lynn Ellex, 214 Lewis Street, Minersville.
[Police] conducted a check on Canyon through the
Pennsylvania State Police Central Repository. Result of this check
indicated that Canyon had multiple arrests for trafficking of
controlled substances and weapons violations, mainly originating
from the Shenandoah Police Department.
Upon reaching out to Shenandoah Police Chief George
Carado concerning Canyon, Chief Carado advised that while living
in Shenandoah, Canyon was involved in a shooting, was known to
illegally possess firearms and was heavily involved in the
trafficking of heroin. These investigations resulted in Canyon’s
arrest for the aforementioned violations.
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After the warrant was issued, police executed it the same day. At the
time of the search, Canyon was in the home with his father, his girlfriend and
their two children. Inside the kitchen, police found 5.5 ounces of marijuana
broken down into several smaller bags; a digital scale; a heat vacuum sealer;
and a cell phone in a U.S. postage box. Inside a bedroom, police found a
vacuumed sealed pouch containing 212 Tylenol with codeine pills; 29
hydrocodone pills; another digital scale; a safe; two more cell phones; silver
aluminum packaging materials; a glass bong; a box of rolling materials; and
$440 cash in Canyon’s wallet. Inside the basement, police found 394 codeine
pills hidden in the wall of the basement steps. Finally, the police found a
medical marijuana card for Canyon but nothing else showing that the
marijuana in the kitchen was prescribed by a doctor. Canyon repeatedly told
the officers : “All the stuff in here is mine, nobody else’s.”
After being charged with the above offenses,3 Canyon moved to
suppress the items found in his home. When his motion was denied, he
proceeded to an October 2021 jury trial. At trial, the Commonwealth
presented Agent Leo Securda (Agent Securda) of the Pennsylvania Office of
the Attorney General as an expert in “drug law investigation, identification,
enforcement, packaging, and distribution.” He concluded that Canyon
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3 Canyon was also charged with endangering the welfare of children, 18
Pa.C.S. § 4304, but the Commonwealth dropped the charge before trial.
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intended to deliver the marijuana because of the way it was packaged. He
stated the same about the codeine pills because of the large number (over
600) that were found. Canyon did not testify but presented David Leff (Leff),
who testified as an expert on drug usage, packaging, methodology and drug
trafficking, and opined that Canyon possessed the drugs for personal use.
Aside from his medical marijuana card, however, Canyon presented no
evidence that he was prescribed the marijuana.
The jury found Canyon guilty on all offenses, and the trial court
sentenced him to an aggregate term of 2 to 8 years’ imprisonment.4 After the
trial court denied his post-sentence motion, Canyon filed this appeal and raises
eight issues for review, which we have reordered:
1. Did the evidence presented at trial establish beyond a
reasonable doubt that Canyon was guilty of [PWID] marijuana and
codeine in the form of Tylenol III.
2. Did the trial court err in failing to suppress the fruits of the
search of [Canyon’s] residence as the search warrant was not
supported by probable cause.
3. Did the trial court err in failing to instruct the jury in accordance
with Section 405 of the [MMA] that the Act limits the amount of
marijuana that may be dispensed to a patient or caregiver to a
thirty-day supply but does not limit the amount of marijuana that
may be dispensed as a thirty-day supply, nor does it limit the
amount that may be possessed by a patient or caregiver.
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4 The trial court sentenced Canyon to 1 to 4 years’ imprisonment for each
PWID count and merged their corresponding simple possession counts. The
trial court imposed concurrent sentences on the remaining counts.
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4. Did the trial court err in failing to instruct the jury that while
Section 303(6) of the [MMA] provides that unused medical
marijuana shall be kept in the original package in which it was
dispensed, it does not limit the amount of medical marijuana that
may be possessed by a patient or caregiver.
5. Did the trial court abuse its discretion in instructing the jury
that defense counsel misstated the law in opening to the jury.
6. Did the trial court abuse its discretion in barring Canyon’s
expert from testifying regarding the existence of different strains
of marijuana, thereby preventing defense counsel from arguing
that the medical marijuana was in different packaging due to the
different strains and not for purpose of distributing the same.
7. Did the trial court abuse its discretion in barring Canyon’s
witness from identifying documents which tended to show that
Canyon was gainfully employed, thereby preventing defense
counsel from arguing that the fact that Canyon was employed was
evidence that he did not intend to distribute controlled
substances.
8. Did the trial court abuse its discretion in criticizing defense
counsel for not being accurate in describing the denominations of
cash while cross-examining the Commonwealth’s expert.
Canyon’s Brief at 4-5.
II. Sufficiency of Evidence
Canyon contends that the Commonwealth presented insufficient
evidence for both of his PWID convictions. Like he did at trial, Canyon
concedes possession but asserts there was not enough evidence that he
intended to distribute any of the substances. Addressing the marijuana first,
he emphasizes that the amount recovered (5.5 ounces) was not a large
amount. He notes the same about the cash found in his wallet ($440),
characterizing it as not an “excessive” amount of cash. Consistent with
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personal use of marijuana, he observes that the police found a glass smoking
device and a box of rolling papers. As for the codeine, he emphasizes only
that the pills were not packaged for resale.5
Section 780-113 of the Controlled Substance, Drug, Device and
Cosmetic Act defines PWID as follows: “Except as authorized by this act, the
manufacture, delivery, or possession with intent to manufacture or deliver, a
controlled substance by a person not registered under this act, or a
practitioner not registered or licensed by the appropriate State board, or
knowingly creating, delivering or possessing with intent to deliver, a
counterfeit controlled substance.” 35 P.S. 780-113(a)(30). To sustain a
conviction for PWID, “the Commonwealth must prove both the possession of
the controlled substance and the intent to deliver the controlled substance.”
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5 Our standard of review of a sufficiency challenge is well-settled:
In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial, and all reasonable
inferences drawn from that evidence, when viewed in the light
most favorable to the Commonwealth as verdict winner, was
sufficient to enable the fact finder to conclude that the
Commonwealth established all of the elements of the offense
beyond a reasonable doubt. The Commonwealth may sustain its
burden by means of wholly circumstantial evidence. Further, the
trier of fact is free to believe all, part, or none of the evidence.
Commonwealth v. Rayner, 153 A.3d 1049, 1054 (Pa. Super. 2016) (citation
omitted).
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Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa. Super. 2008) (citations
omitted).
“[T]he intent to deliver may be inferred from possession of a large
quantity of controlled substances. It follows that possession of a small amount
of a controlled substance supports the conclusion that there is an absence of
intent to deliver.” Id. If the quantity of the controlled substance is not
dispositive as to the intent, the court may look to other factors. Id.
Other factors to consider when determining whether a defendant
intended to deliver a controlled substance include the manner in
which the controlled substance was packaged, the behavior of the
defendant, the presence of drug paraphernalia, and ... [the] sums
of cash found in possession of the defendant. The final factor to
be considered is expert testimony. Expert opinion testimony is
admissible concerning whether the facts surrounding the
possession of controlled substances are consistent with an intent
to deliver rather than with an intent to possess it for personal use.
Commonwealth v. Ratsamy, 934 A.2d 1233, 1237–38 (Pa. 2007)
(quotation and internal quotation marks omitted).
We first address the PWID conviction for marijuana. At trial, Officer
Jeffrey Bowers of the Minersville Police testified that the 5.5 ounces of
marijuana in the kitchen was “prepackaged” and “broken down into smaller
bags.” N.T., 10/21/21, at 28. He also found a heat vacuum sealer, new
vacuum seal bags and a digital scale near where he found the marijuana. Id.
at 29. Based on these facts, Agent Securda concluded that the marijuana was
packaged or for resale rather than for personal use. Id. at 147. He explained:
So the factors that came into play were the glassine baggies
that were found that were not used, did not have any residue in
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them, are commonly used when a person obtains a larger amount
or larger amounts of marijuana. It’s broken up into gram, half
gram, eighth ounce, however they want to break it up and sell it.
When it’s broken up, it’s weighed out on a scale, which there
was a scale located in this case. The weight of the drug is how
they set their pricing. It’s different in marijuana than it is in
tablets. Tablets are usually done by milligram, how many
milligrams there are. There’s a dollar amount set to it.
The marijuana or any other – cocaine, methamphetamine is
all set by the weight of the substance. So the glassine baggies
would have been used to repackage the substance, weighed out;
and then pricing would be set for sale.
Id. at 148-49.
When asked about the weight of the marijuana, Agent Securda conceded
it was not a large amount but iterated that did not preclude him from
concluding the packaging showed an intent to distribute.
Q. In terms of the overall weight of the marijuana, did that play a
role into the basis for your opinion?
A. It’s not a large amount of marijuana. I have 145.93 grams.
But the way it was packaged, it was packaged in smaller amounts
that, like I had stated earlier, that usually when they repackage
them, they set it for a sale amount.
Id. at 149.
As noted, how a controlled substance is packaged is a factor when
determining whether a defendant intended to deliver a controlled substance.
Here, the marijuana was broken down and packaged in smaller bags and found
near a digital scale. The jury was presented with competing expert opinions
about whether Canyon possessed the marijuana for personal use or
distribution. After hearing both experts, the jury credited Agent Securda’s
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opinion over that of Canyon’s expert and found that Canyon possessed the
marijuana with an intent to distribute, a determination that they were free to
make. Thus, viewing the evidence in the light most favorable to the
Commonwealth, there was sufficient evidence to support PWID for marijuana.
We conclude the same about Canyon’s PWID conviction for the codeine
pills found in his bedroom and the basement. Unlike the small amount of
marijuana, Agent Securda found the large number of codeine pills found
dispositive in concluding that Canyon intended to distribute them. He
explained:
The Tylenol with codeine I believe was possessed with the
intent to deliver because there was a bulk amount. 607 is a rather
large amount to have. Typically, when you go to the doctor and
they prescribe you such a pill, you only get maybe a 90-day
supply, which if he was hoarding them, the doctor would have
been – you only get a refill so many times.
I’m sure everyone here has had a prescription. You don’t
get unlimited refills. And doctors are trained, oddly enough, by
the Attorney General’s Office to look for what they call drug-
seeking culture or drug-seeking behavior. And they are told to
not prescribe if they come across that. The amount of the pills,
usually its set to $1 a milligram. These were, I believe, 30
milligram tablets, if I recall. So you’re looking at a substantial
gain of money that he could have incurred from this.
The way that the officers found the drugs, that they were in
a hidden compartment in the house or just behind the wall – I
know I store my meds in a medicine cabinet. If he didn’t have
one, maybe that safe in his room would been a better spot for it.
Id. at 149-50.
The Commonwealth followed up about the street value. Since each
tablet contained 30 milligrams, and with a street value of $1 per milligram,
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that meant each tablet would be $30. Id. at 151. Because the police
recovered over 600 tablets during the search, the total street value of the pills
was over $18,000 according to Agent Securda. Id. at 154.
Viewing the evidence in the light most favorable to the Commonwealth,
this was more than enough to support the PWID conviction for the codeine
pills. While conceding possession and that he did not have a prescription for
the pills, Canyon argues there was not enough evidence to establish that the
pills were not for personal use. Through Agent Securda’s expert testimony,
however, the Commonwealth presented evidence that the sheer number of
pills that Canyon possessed (over 600) expressed an intent to distribute, not
to mention that nearly two thirds of the pills were hidden in the basement.
Again, like its determination about the marijuana, the jury was free to credit
Agent Securda’s opinion over that of Canyon’s expert that Canyon possessed
the pills with an intent to distribute. We, thus, hold that his sufficiency
challenge to his PWID conviction for the codeine pills fails as well.
III. Suppression
Canyon also contends that the trial court erred in denying his motion to
suppress. He emphasizes that the police never conducted surveillance of his
home to verify the neighbors’ complaints about the suspected drug activity.
The same is true of the neighboring borough’s police chief’s claim that he was
involved in trafficking heroin. Because neither was corroborated, Canyon
asserts that they should have been disregarded by the magistrate. As for the
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trash pull, he emphasizes that, after the passage of the MMA, the mere
presence of marijuana residue in someone’s trash should not provide enough
probable cause for the issuance of a search warrant, citing our Supreme
Court’s decision in Commonwealth v. Barr, 266 A.3d 25, 44 (Pa. 2021)
(holding that, following the enactment of the MMA, “the odor of marijuana
alone does not amount to probable cause to conduct a warrantless search of
a vehicle but, rather, may be considered as a factor in examining the totality
of the circumstances.”).6
In reviewing a challenge to a search warrant based on an affidavit of
probable cause, our review is limited to “the information within the four
corners of the affidavit.” Commonwealth v. Batista, 219 A.3d 1199, 1202
(Pa. Super. 2019) (quoting Commonwealth v. Rogers, 615 A.2d 55, 62 (Pa.
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6 Our standard of review on suppression issues is well-settled:
Our standard of review in addressing a challenge to a trial court’s
denial of a suppression motion is whether the factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. When reviewing the ruling of a
suppression court, we must consider only the evidence of the
prosecution and so much of the evidence of the defense as
remains uncontradicted when read in the context of the record.
Where the record supports the findings of the suppression court,
we are bound by those facts and may reverse only if the legal
conclusions drawn therefrom are in error.
Commonwealth v. Heidelberg, 267 A.3d 492, 498-99 (Pa. Super. 2021)
(en banc) (quoting Commonwealth v. Bumbarger, 231 A.3d 10 (Pa. Super.
2020)).
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Super. 1992), and citing Pa.R.Crim.P. 203(D)). A reviewing court ensures
that the issuing authority “had a substantial basis for concluding that probable
cause existed” instead of reviewing de novo that determination. Id. (quoting
Illinois v. Gates, 462 U.S. 213, 238–39 (1983), and Commonwealth v.
Huntington, 924 A.2d 1252, 1259 (Pa. Super. 2007)). “Probable cause exists
where the facts and circumstances within the affiant’s knowledge and of which
he has reasonably trustworthy information are sufficient in and of themselves
to warrant a [person] of reasonable caution in the belief that a search should
be conducted.” Commonwealth v. Jacoby, 170 A.3d 1065, 1081–82 (Pa.
2017). A search should be conducted when “the police officers have a
reasonable belief that the items to be seized are related to criminal conduct
and that those items are presently located in the place to be searched.”
Commonwealth v. Waltson, 724 A.2d 289, 292 (Pa. 1998) (citing
Commonwealth v. Jackson, 337 A.2d 582 (Pa. 1975)).
Moreover, unlike tips from confidential informants that require
independent corroboration, Pennsylvania courts do not require an averment
of facts to establish the credibility and reliability of an ordinary citizen. See
Commonwealth v. Lyons, 79 A.3d 1053, 1064–65; accord
Commonwealth v. Brogdon, 220 A.3d 592, 600 (Pa. Super. 2019) (“[A]
citizen informer, identified eyewitness[,] or ordinary citizen reporting his or
her observations of a crime stands on a different ground than a police
informer.”
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Under the totality of the circumstances, we find that the issuing
magistrate had a substantial basis for determining that probable cause existed
for the search warrant for Canyon’s home. First, rather that receiving a single
report from one neighbor, the affidavit relates that the police received multiple
reports about Canyon’s home. Whereas a single report would tend to be less
reliable, multiple reports of the same complaint inherently tend to bolster each
other, making it less likely that the complaints are not accurate, not to
mention that the reports are received from ordinary citizens as opposed to
confidential informants.
Second, contrary to Canyon’s assertions, the police corroborated the
neighbors’ complaints by conducting a trash pull of Canyon’s trash. As noted,
the police found Canyon’s mail in the trash, confirming that it was, in fact, his
trash. Moreover, the police discovered “medium and large glassine and
vacuum style bags containing green leafy residue that field tested positive for
marijuana.” Thus, police substantiated the neighbors’ complaints about not
only the smell of marijuana coming from the home but also that Canyon was
possibly distributing, at the very least, marijuana out of the home. On top of
that, the police conducted the trash pull on the same day that they applied for
the search warrant, thus avoiding any complaints the information was stale.
Third, the police went on to independently check the Pennsylvania State
Police Central Repository and confirm that Canyon had multiple arrests for
trafficking of controlled substances and weapons violations, which they
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confirmed with a neighboring police chief. Whatever weight the magistrate
afforded to this information in no way diminished the fact that police had
corroborated the neighbors’ complaints through the trash pull. Thus, under
the totality of the circumstances, based on the facts within the four corners of
the affidavit, the magistrate had a substantial basis for finding that probable
cause existed that Canyon was distributing, at the very least, marijuana from
his home.
Finally, our Supreme Court’s decision in Barr does not compel a
different result. This Court has previously summarized the facts of that case:
In [Barr], Pennsylvania State Police troopers pulled over a
vehicle driven by the defendant’s wife for a Vehicle Code violation
and they detected the smell of burnt marijuana as they
approached the vehicle. The troopers stated their intention to
search the vehicle based upon probable cause from the odor of
marijuana, whereupon the defendant, who was in the passenger
seat of the vehicle, presented a medical marijuana identification
card. After the troopers recovered a firearm and marijuana from
the vehicle, the defendant was charged with person not to possess
a firearm and possession of a small amount of marijuana.
In analyzing the impact of the MMA on probable cause
assessments, the Court found “that the MMA makes abundantly
clear that marijuana no longer is per se illegal in this
Commonwealth. Accordingly, the enactment of the MMA
eliminated this main pillar supporting the ‘plain smell’ doctrine as
applied to the possession or use of marijuana.” [Barr, 266 A.3d]
at 41. However,
the [Controlled Substance, Drug, Device and Cosmetic Act,
35 P.S. §§ 780-101—144] still renders possession of
marijuana illegal for those not qualified under the MMA.
Thus, the smell of marijuana indisputably can still signal
the possibility of criminal activity. Given this dichotomy,
we conclude that the odor of marijuana may be a factor,
but not a stand-alone one, in evaluating the totality of the
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circumstances for purposes of determining whether police
had probable cause to conduct a warrantless search.
In so doing, we emphasize that the realization that a
particular factor contributing to probable cause may
involve legal conduct does not render consideration of the
factor per se impermissible, so long as the factor is
considered along with other factors that, in combination,
suggest that criminal activity is afoot. As recognized by
the Commonwealth, the totality-of-the-circumstances
analysis encompasses the consideration of factors that
may arguably be innocent in nature.
Id. at 42 (case citation omitted).
Commonwealth v. Lutz, 270 A.3d 571, 578-79 (Pa. Super. February 14,
2022).
Thus, that the marijuana residue found in the trash pull from Canyon’s
home may have been legally obtained does not mean that it could not still be
considered. More importantly, that the marijuana may have been legally
obtained does not explain the neighbors’ complaints of suspected drug activity
at Canyon’s home, which was the impetus for the trash pull in the first place.
Accordingly, having found that Barr does not compel a different result, we
conclude the trial court properly denied Canyon’ motion to suppress.
IV. Jury Instructions
Canyon next raises three issues with the trial court’s jury instructions
concerning the MMA. First, he claims that the trial court instructed the jury
that medical marijuana users are limited to a 30-day supply but did not explain
that the MMA does not quantify how much that would be. Second, he faults
the trial court’s instruction that medical marijuana must be maintained in its
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original packaging or it was otherwise possessed illegally. Third, he criticizes
the trial court for pointing out that defense counsel misstated the law in his
opening that the Commonwealth must show that it chemically tested the
marijuana for different strains. None of these issues, however, were
preserved for appeal.
To preserve a challenge to the adequacy or omission of a particular jury
instruction, the defendant must make a specific and timely objection to the
instruction at trial before the jury deliberates. See Commonwealth v.
Smith, 206 A.3d 551, 564 (Pa. Super. 2019); see also Pa.R.A.P. 302(b) (“A
general exception to the charge to the jury will not preserve an issue for
appeal. Specific exception shall be taken to the language or omission
complained of.”); Pa.R.Crim.P. 647(C) (“No portions of the charge nor
omissions from the charge may be assigned as error, unless specific objections
are made thereto before the jury retires to deliberate.”). A specific and timely
objection must be made to preserve a challenge to a particular jury
instruction; failure to do so results in waiver. See Commonwealth v.
Forbes, 867 A.2d 1268, 1274 (Pa. Super. 2005).
After the trial court gave its jury charge, Canyon did not raise a specific
and timely objection to the instructions about the MMA, even when the trial
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court asked him if he wished to raise anything before the jury deliberated.
See N.T., 10/22/21, at 373-374. As a result, his challenges are waived.7
Even if properly preserved, we would find his challenges meritless. The
trial court’s instructions about the MMA were limited to this:
And before I go on to talk about the possession with intent
to deliver, I think I should talk to you about the Medical Marijuana
Act since that was brought up in this case and it’s not something
that a layperson would be aware of if it’s a law of Pennsylvania.
The possession of marijuana is against the law in Pennsylvania,
unless it’s possessed in accordance with the Medical Marijuana
Act, which would require that a person have a medical marijuana
card and that the marijuana be prescribed by a doctor and
dispensed by an authorized dispensary.
But it also requires that the marijuana has to be stored –
whatever is not immediately used has to be stored in the same
packaging as it was dispensed, the same package that it came
from the dispensary. It can’t be stored otherwise. If it’s stored
otherwise, it becomes an illegally possession of marijuana. And it
cannot – also, if it’s dispensed in the leaf form, it cannot be
burned.
So you should consider that in terms of the charge of
possession of marijuana, whether or not you believe the
Defendant possessed the marijuana, whether he possessed it
lawfully. That’s how the medical marijuana card comes into play
in this act. It’s not a lawful possession if you change the
packaging, even if you obtain it originally lawfully from an
authorized dispensary.
Id. at 371-72.
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7 Canyon also waived his second challenge about the packaging by failing to
include it in his Pa.R.A.P. 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii)
(“Issues not included in the Statement and/or not raised in accordance with
the provisions of this paragraph (b)(4) are waived.”).
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First, contrary to Canyon’s claims, the trial court never instructed the
jury that medical marijuana users are limited to a 30-day supply, nor does he
point us to where he believes the trial court made the alleged misstatement.
Second, the trial court correctly instructed the jury about the packaging of
marijuana: a condition for the “lawful use of medical marijuana” is that it
“shall be kept in the original package in which it was dispensed.” 35 P.S.
§ 10231.303(b)(6). Third, we find no abuse of discretion in the trial court
clarifying that the Commonwealth had no burden of showing that the
marijuana was chemically tested for different strains; we are unaware of any
case law for such a proposition, nor does Canyon point us to any. Thus, all
three of his jury instruction challenges fail.
V. Defense Expert
Canyon raises two issues with the trial court precluding Leff from
testifying about certain matters concerning his expert opinion. First, Canyon
asserts that the trial court erred in barring Leff from testifying that there are
different strains of marijuana which can be prescribed for different medical
conditions, which would explain why Canyon had the marijuana broken down
into different bags. Second, Canyon argues that Leff should have been
allowed to testify about reviewing Canyon’s federal tax returns as part of his
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review of the case, the purpose being to show that Canyon was employed and
less likely to distribute controlled substances.8
First, the trial court explained its reasoning for barring Canyon’s expert
from testifying about different strands of marijuana:
…Defense counsel sought to have Mr. Leff testify that the
individual bags of marijuana contained different strains and were
separated by Canyon much the same way one might place
different medications in different containers. To bolster the
proposed testimony, counsel proposed allowing Leff to inform the
jury that Canyon had a “DSM-5 diagnosis.” There are several
reasons Mr. Leff was not permitted to do so.
Canyon chose not to testify. No medical testimony was
proposed by Canyon to establish a diagnosis. Whatever
documents there may been to support such a diagnosis would
have been hearsay, and Mr. Leff was not qualified to render
medical opinions. Furthermore, defense counsel acknowledged he
had no evidence regarding the strain or strains of marijuana in the
bags found in Canyon’s house. Mr. Leff would have testified that
the marijuana in the bags did not appear to be the same strain,
but there was no evidence as to what strain or strains may have
been prescribed for Canyon. In fact, there was no evidence that
Canyon had obtained any marijuana from a dispensary.
Testimony about what strains of marijuana are generally
prescribed to treat specific ailments would require medical
expertise, which Canyon’s expert did not possess. It would also
have been irrelevant without evidence of the strain or strains
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8 As this Court has explained concerning expert testimony:
Our standard of review in cases involving the admission of expert
testimony is broad: Generally speaking, the admission of expert
testimony is a matter left largely to the discretion of the trial court,
and its rulings thereon will not be reversed absent an abuse of
discretion. An expert’s testimony is admissible when it is based
on facts of record and will not cause confusion or prejudice.
Commonwealth v. Watson, 945 A.2d 174, 176 (Pa. Super. 2008) (internal
citations omitted).
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present in the marijuana found in Canyon’s residence and without
competent evidence that Canyon suffered from a particular
ailment. If counsel wanted to pursue this line of defense, he could
have had the recovered marijuana independently tested and
presented testimony from Canyon’s treating physician.
Trial Court Opinion (TCO), 11/30/21, at 5-6.
We agree with this analysis. Under Pennsylvania Rule of Evidence 702,
an expert witness can testify when “the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue.” Pa.R.E. 702(b). There was no evidence that the
marijuana found was prescribed, let alone that Canyon was prescribed
different strains of marijuana for different medical diagnosis. Instead, Canyon
was hoping to have the expert testify about how sometimes different strains
of medical marijuana are prescribed for different reasons, and that this was
the reason the marijuana found was packaged in different bags, even though
there was no record evidence of that being the case. As a result, we find no
abuse of discretion in the trial court precluding Canyon’s expert from testifying
about something for which there was no evidence.
We next address the trial court precluding Leff from testifying about
Canyon’s tax returns, which Canyon did not otherwise admit into evidence.
As our Supreme Court has explained:
An expert opinion may be based on inadmissible facts or facts not
in evidence, including other expert opinions and hearsay
statements, as long as such facts are of a type reasonably relied
on by experts in that profession. See Pa.R.E. 703; see also
Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630, 639
(1991) (citations omitted). Implicit in Rule 703 is the trial court’s
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sound discretion under Pa.R.E. 104(a) to make a preliminary
determination as to whether the particular underlying facts are of
a kind reasonably relied upon by experts in the particular field.
See id., 703 cmt. Rule 705 of Pennsylvania's Rules of Evidence
mandates, “If an expert states an opinion[,] the expert must state
the facts or data on which the opinion is based.” Id., 705.
However, an expert may not act as a mere conduit of hearsay or
transmitter of extrajudicial information. See id., 703 cmt. (“An
expert witness cannot be a mere conduit for the opinion of another
... [and] may not relate the opinion of a non-testifying expert[.]”).
Commonwealth v. Towles, 106 A.3d 591, 605-06 (Pa. 2014).
In this case, Leff was going to state that the tax returns had been filed,
without any detail as to who or how much Canyon made, to opine that Canyon
was gainfully employed and less likely to be a street drug dealer.
We find that the trial court did not abuse its discretion in precluding
Canyon from having Leff testify that he had filed tax returns that Canyon made
no effort to admit at trial or, for that matter, offer any evidence that he was
gainfully employed. While expert opinion may be based on inadmissible facts
or facts not in evidence, the expert may not be a conduit of direct evidence to
avoid having to prove essential facts particular to the case at issue necessary
to render the opinion. As the trial court determined, Canyon was merely trying
to use his expert as a means of admitting non-record facts that he was
otherwise unwilling to independently admit. As a result, we will not disturb
the trial court’s discretion in precluding Canyon from introducing inadmissible
hearsay through his expert.
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VI. Admonishment of Defense Counsel
In his final issue, Canyon faults the trial court for correcting defense
counsel during his cross-examination of a witness about the denominations of
the bills found in Canyon’s wallet. See N.T., 10/21/21, at 172-73. He does
not dispute that his counsel inadvertently misstated the bills but nonetheless
argues that the trial court should have allowed the witness to correct him
rather than single him out in front of the jury.
Canyon waived this issue by not including it in his Pa.R.A.P. 1925(b)
statement. See Pa.R.A.P. 1925(b)(4)(vii). Regardless, as the trial court
stated:
The testimony regarding the denominations of the currency
found in Canyon’s wallet came during Officer Bowers’ testimony.
In that cross-examination counsel was making the point that the
police did not find small bills consistent with street sales and
specifically referred to the absence of any five-dollar bills and the
presence of only one ten-dollar bill. In the above quoted cross-
examination, defense counsel was stating his questions in a
manner suggesting he was not at that time sure of his recollection
about the number of tens and fives found. The Court was merely
helping him to recall the denominations which were not in dispute
by reminding him that he had previously made the point that there
were no fives found. In no way was he reprimanded.
TCO at 9. We have little to add to this other than Canyon cites no case law
for the proposition that a trial court can commit reversible abuse of discretion
by correcting a misstatement of fact made by counsel. After reviewing the
relevant exchange, we find no error in the trial court correcting counsel’s
misstatement of fact.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/19/2022
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