J-S58006-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALBERT D. MAXON, JR. :
:
Appellant : No. 1638 WDA 2017
Appeal from the Judgment of Sentence October 3, 2017
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003995-2016
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 2, 2018
Appellant, Albert D. Maxon, Jr., appeals from the judgment of sentence
entered on October 3, 2017. We affirm.
The trial court thoroughly summarized the evidence presented at the
suppression hearing:
On August [12,] 2016, City of Erie Police Corporal Curtis
Waite . . . received a dispatch call to the [400 block] of East
3rd Street in Erie, Pennsylvania for a male and female passed
out in a vehicle. Upon arriving in the [400 block,] . . .
Corporal Waite observed the vehicle, which was parked with
the driver’s door wide open, and further observed a male
seated in the driver’s seat and a female seated in the front
passenger seat. The male, identified as [Appellant,] had a
[marijuana] blunt in his mouth and discarded the blunt as
Corporal Waite approached the vehicle. When asked about
the blunt by Corporal Waite, who has been involved in prior
drug investigations and has experience with packaging and
sale of drugs, [Appellant] admitted the blunt contained
marijuana and he [] had smoked the marijuana blunt earlier.
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[Appellant] and the female occupant were asked to exit the
vehicle, to which they complied, and were patted down for
weapons and contraband, none of which were found on their
persons. Thereafter, Corporal Waite searched the front area
of the vehicle[,] as the back seat of the vehicle was filled with
clothes and other personal belongings. Corporal Waite
discovered a closed black hygiene bag on the head cushion
of the driver’s seat of the vehicle, where [Appellant] had been
seated. When Corporal Waite opened the black hygiene bag,
he discovered [109] empty clear [and] yellow baggies, nine
[] baggies containing a substance suspected to be heroin,
four [] baggies containing a substance suspected to be
cocaine[,] and a digital scale. [Appellant] admitted to
Corporal Waite that everything in the black hygiene bag was
his.
The substances in the baggies were field-tested, which
indicated positive for heroin and cocaine, and were thereafter
sent to the Pennsylvania State Police lab. . . . [The]
Pennsylvania State Police lab report [declared that] the
baggies found in the black hygiene bag contained 3.09 grams
of heroin and 4.66 grams of cocaine.
Trial Court Opinion, 7/12/17, at 1-3 (internal paragraphing omitted).
The Commonwealth charged Appellant with two counts each of
possession of a controlled substance with the intent to deliver (PWID),
possession of a controlled substance, and possession of drug paraphernalia. 1
On March 24, 2017, Appellant filed a pre-trial motion, where he
requested that the trial court suppress the physical evidence against him.
Appellant claimed that suppression was mandated because Corporal Waite did
not have probable cause to search the closed, black hygiene bag in Appellant’s
vehicle. Appellant’s Motion to Suppress, 3/24/17, at 4-5. The trial court held
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1 35 P.S. §§ 780-113(a)(30), (16), and (32), respectively.
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a hearing on Appellant’s suppression motion and, on July 12, 2017, the trial
court denied the motion. Trial Court Order, 7/12/17, at 1.
Appellant proceeded to a jury trial, where the Commonwealth again
presented the above-summarized evidence; at the conclusion of trial, the jury
found him guilty of all charged crimes. N.T. Trial, 8/18/17, at 233. On
October 3, 2017, the trial court sentenced Appellant to serve an aggregate
term of 27 to 54 months in prison, followed by two years of probation, for his
convictions. N.T. Sentencing, 10/3/17, at 17-18. Appellant filed a timely
notice of appeal. He numbers three claims in the “statement of questions
involved” section of his brief:
[1.] Whether the trial court erred in denying Appellant’s
omnibus pre-trial motion to suppress?
[2.] Whether the Commonwealth presented insufficient
evidence to establish [Appellant’s] guilt beyond a reasonable
doubt of [PWID], possession of a controlled substance, and
possession of drug paraphernalia?
[3.] Whether [Appellant’s] sentence is manifestly excessive,
clearly unreasonable and inconsistent with the objectives of
the Pennsylvania Sentencing Code?
Appellant’s Brief at 3 (some internal capitalization omitted).
Appellant first claims that the trial court erred when it denied his motion
to suppress. Appellant’s Brief at 7. “Once a motion to suppress evidence has
been filed, it is the Commonwealth's burden to prove, by a preponderance of
the evidence, that the challenged evidence was not obtained in violation of
the defendant's rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047–
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1048 (Pa. Super. 2012) (en banc); see also Pa.R.Crim.P. 581(H). With
respect to an appeal from the denial of a motion to suppress, our Supreme
Court has declared:
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. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (internal
citations omitted). “It is within the suppression court's sole province as
factfinder to pass on the credibility of witnesses and the weight to be given
their testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.
Super. 2006). Moreover, our scope of review from a suppression ruling is
limited to the evidentiary record that was created at the suppression hearing.
In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).
According to Appellant, the trial court erred when it denied his
suppression motion, as Corporal Waite did not have probable cause to search
the closed, black hygiene bag in his vehicle. This claim fails.
“The Fourth Amendment to the [United States] Constitution and Article
I, Section 8 of [the Pennsylvania] Constitution protect citizens from
unreasonable searches and seizures.” Commonwealth v. McAdoo, 46 A.3d
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781, 784 (Pa. Super. 2012). “A search conducted without a warrant is deemed
to be unreasonable and therefore constitutionally impermissible, unless an
established exception applies.” Commonwealth v. Strickler, 757 A.2d 884,
888 (Pa. 2000). One exception to the warrant requirement is a search
conducted on an automobile. As we recently explained:
In [Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014)
(plurality)], the Supreme Court of Pennsylvania reinterpreted
Article I, § 8 as paralleling the Fourth Amendment's
protections against warrantless searches of automobiles,
because “it is desirable to maintain a single, uniform standard
for a warrantless search of a motor vehicle, applicable in
federal and state court, to avoid unnecessary confusion,
conflict, and inconsistency in this often-litigated area.”
[Gary, 91 A.3d at 138]. Hence, Pennsylvania now follows
federal law on this issue; “where police possess probable
cause to search a car, a warrantless search is permissible.”
In re I.M.S., 124 A.3d 311, 317 (Pa. Super. 2015).
Commonwealth v. Davis, 188 A.3d 454, 457-458 (Pa. Super. 2018)
(internal footnote omitted).
Moreover, in In re I.M.S. and Commonwealth v. Runyan, 160 A.3d
831 (Pa. Super. 2017), we applied the United States Supreme Court’s holding
in Wyoming v. Houghton, 526 U.S. 295 (1999) to Pennsylvania and held
that, in Pennsylvania, where “there is probable cause to search for contraband
in a car, it is reasonable for police officers – like customs officials in the
founding era – to examine packages and containers without a showing of
individualized probable cause for each one.” In re I.M.S., 124 A.3d at 316,
quoting Houghton, 526 U.S. at 302; see also Runyan, 160 A.3d at 837.
Thus, “if [an officer] ha[s] probable cause to search the vehicle [] for
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contraband[, the officer is] also permitted to search any container found
therein where the contraband could be concealed,” without an individualized
showing of probable cause for the particular container. Runyan, 160 A.3d at
837.
As to the probable cause requirement, we have explained:
The level of probable cause necessary for warrantless
searches of automobiles is the same as that required to
obtain a search warrant. The well-established standard for
evaluating whether probable cause exists is the “totality of
the circumstances” test. This test allows for a flexible,
common-sense approach to all circumstances presented.
Probable cause typically exists where the facts and
circumstances within the officer's knowledge are sufficient to
warrant a person of reasonable caution in the belief that an
offense has been or is being committed. The evidence
required to establish probable cause for a warrantless search
must be more than a mere suspicion or a good faith belief on
the part of the police officer.
The question we ask is not whether the officer's belief was
correct or more likely true than false. Rather, we require only
a probability, and not a prima facie showing, of criminal
activity.
Id. (internal quotations, citations, and emphasis omitted).
As the trial court ably explained, Corporal Waite possessed probable
cause to believe that marijuana was contained within Appellant’s vehicle;
therefore, Corporal Waite possessed probable cause to search the black
hygiene bag inside of the vehicle:
Corporal Waite’s experience in drug investigations, including
experience with packaging and sale of drugs, Corporal
Waite’s observation of the blunt discarded by [Appellant,]
and [Appellant’s] own admission that the blunt contained
marijuana supports probable cause that [Appellant] was
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involved in drug-related criminal activities and gave Corporal
Waite the authority to search [Appellant’s] vehicle. During
the search of the vehicle, Corporal Waite [] discovered a
closed black hygiene bag on the head cushion of the driver’s
seat of the vehicle, where [Appellant] had been seated.
Inside the black hygiene bag, Corporal Waite [] discovered
numerous empty baggies, baggies containing suspected
heroin and cocaine, and a digital scale.
Therefore, the totality of the circumstances, Corporal Waite’s
experience in drug investigations, including the packaging
and sale of drugs, Corporal Waite’s observation of [Appellant]
discarding a blunt and [Appellant’s] own admission that the
blunt contained marijuana, [established] . . . probable cause
to search [Appellant’s] vehicle and any containers therein for
controlled substances.
Trial Court Opinion, 7/12/17, at 5.
We agree with the trial court’s cogent analysis. Therefore, Appellant’s
challenge to the trial court’s suppression order fails.
Next, Appellant claims that the evidence was insufficient to support his
PWID convictions.2 Appellant’s Brief at 10. We review Appellant’s sufficiency
of the evidence claim under the following standard:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial
in the light most favorable to the verdict winner, there is
sufficient evidence to enable the fact-finder to find every
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2 Within the “statement of questions involved” section of Appellant’s brief,
Appellant declares that he is challenging the sufficiency of all of his
convictions. However, the argument section of Appellant’s brief only
challenges the sufficiency of his PWID convictions. See Appellant’s Brief at
10-11. Therefore, we will only consider Appellant’s claim that the evidence
was insufficient to support his PWID convictions. Commonwealth v.
Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (holding that, where the
appellant “fails to expand upon [a] claim in the argument section of his brief
... the claim is waived”).
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element of the crime beyond a reasonable doubt. In applying
the above test, we may not weigh the evidence and substitute
our judgment for [that of] the fact-finder. In addition, we
note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder 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. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
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. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en
banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806 (Pa.
Super. 2008).
“In order to uphold a conviction for possession of narcotics with the
intent to deliver, the Commonwealth must prove beyond a reasonable doubt
that the defendant possessed a controlled substance and did so with the intent
to deliver it.” Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super.
2000) (en banc). As our Supreme Court has held, while the quantity of a
controlled substance is a factor in determining whether the defendant
possessed the contraband with the intent to deliver, “[t]he amount of the
controlled substance is not crucial to establish an inference of possession with
intent to deliver, if other facts are present.” Commonwealth v. Ratsamy,
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934 A.2d 1233, 1237 (Pa. 2007) (internal quotations, citations, and
corrections omitted). Specifically, our Supreme Court held:
if the quantity of the controlled substance is not dispositive
as to the intent, the court may look to other factors. 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
large[] 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.
Id. (internal quotations, citations, and paragraphing omitted).
Appellant claims that the evidence was insufficient to support his PWID
convictions because, Appellant contends, “the Commonwealth failed to
establish that the cocaine and heroin recovered from Appellant [were], in fact,
cocaine and heroin.” Appellant’s Brief at 10. On appeal, Appellant
acknowledges that City of Erie Police Detective Ryan Victory testified as an
expert at trial that: Appellant possessed 4.66 grams of cocaine and 3.09
grams of heroin; the amounts of narcotics Appellant possessed were not
consistent with personal use; Appellant possessed unused plastic bags and a
digital scale, which are commonly used for dealing drugs; and, in Detective
Victory’s expert opinion, Appellant possessed both the cocaine and the heroin
with the intent to deliver. Id. at 5 and 10-11; see also N.T. Trial, 8/18/17,
at 111-120. Nevertheless, Appellant claims that the evidence was insufficient
to support his PWID convictions because “[Detective] Victory noted that
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amounts of drugs are ‘cut’ with other substances in order to increase volume
for sale – and[,] in this case, [Detective Victory] could not conclusively
establish” the total weight of the actual narcotic substance. Appellant’s Brief
at 11.
Appellant’s claim on appeal fails because the relative purity of the
controlled substance is not a required element of PWID. Rather, as was
already stated, to properly convict a defendant of PWID, the Commonwealth
“must prove beyond a reasonable doubt that the defendant possessed a
controlled substance and did so with the intent to deliver it.” Aguado, 760
A.2d at 1185. In this case, the evidence was sufficient to prove that Appellant
possessed both heroin and cocaine. N.T. Trial, 8/18/17, at 113 and 117.
Further, the totality of the circumstances (which we summarized above) are
sufficient to prove that Appellant possessed both drugs with the intent to
deliver. See supra at *9. Appellant’s claim on appeal thus fails.
Finally, we note that the “statement of questions involved” section of
Appellant’s brief lists a challenge to the discretionary aspects of Appellant’s
sentence. See Appellant’s Brief at 3. However, the claim is not contained
within the argument section of Appellant’s brief. As such, the claim is waived.
Leatherby, 116 A.3d at 83 (holding that, where the appellant “fails to expand
upon [a] claim in the argument section of his brief ... the claim is waived”).
Judgment of sentence affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/2/2018
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