Com. v. Jordan, W.

J-S30011-21 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA WILLIAM A. JORDAN Appellant : No. 427 MDA 2020 Appeal from the Judgment of Sentence Entered July 24, 2018 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0000077-2018 BEFORE: BENDER, P.J.E., MCCAFFERY, J., and COLINS, J.* MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 23, 2021 Appellant, William A. Jordan, appeals from the judgment of sentence of an aggregate term of 66 to 144 months’ incarceration, imposed after he was convicted by a jury of delivery of a controlled substance (35 P.S. § 780- 113(a)(30)), conspiracy to deliver a controlled substance (18 Pa.C.S. § 903(a)(1)), possession of a controlled substance with intent to deliver (35 P.S. § 780-113(a)(30)), possession of a controlled substance (35 P.S. § 780- 113(a)(16)), possession of drug paraphernalia (35 P.S. § 113(a)(32)), and possession of marijuana (35 P.S. § 780-113(a)(31)). Appellant raises various issues on appeal, including challenges to the sufficiency and weight of the evidence; a claim that the court erred by admitting prior bad acts evidence and denying his pretrial motion to suppress evidence; that his sentence is * Retired Senior Judge assigned to the Superior Court. J-S30011-21 excessive; and that the court lacked jurisdiction over his conspiracy charge. After careful review, we affirm. The trial court set forth a detailed summary of the evidence presented at Appellant’s trial in its Pa.R.A.P. 1925(a) opinion, which we adopt herein. See Trial Court Opinion (TCO), 5/7/21, at 3-11. Briefly, Appellant's convictions were premised on evidence that he sold cocaine to a “middleman,” who moments thereafter sold the cocaine to a confidential informant (CI). Police were conducting surveillance of the CI when the drug sale occurred, and the CI was also outfitted with a recording device. When Appellant's vehicle was stopped moments after the drug transaction, he was smoking marijuana, and he had in his possession a small quantity of cocaine and a portion of the pre-recorded “buy money” the police had given to the CI to purchase the drugs. Appellant was arrested and proceeded to a jury trial on May 1, 2018. At the close thereof, he was convicted of the above-stated offenses. On July 24, 2018, the court sentenced Appellant to the aggregate term set forth supra. He then filed a timely post-sentence motion. However, the court did not rule on that motion within 120 days, and the clerk of courts did not issue an order denying it by operation of law until January 31, 2020. Appellant filed his notice of appeal within 30 days of the January 31, 2020 order.! Appellant also timely 1 Where a trial court fails to rule on a timely-filed post-sentence motion within 120 days, the clerk of courts is required to enter an order denying the motion (Footnote Continued Next Page) J-S30011-21 complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On May 7, 2021, the trial court filed its Rule 1925(a) opinion. Herein, Appellant states the following six issues for our review, which we have reordered for ease of disposition: 1. Whether the trial court lacked subject matter jurisdiction over the criminal conspiracy to deliver charge|[? | 2. Whether the evidence was insufficient to sustain a verdict of guilty beyond a reasonable doubt on the charges of delivery of a controlled substance, possession with intent to deliver and criminal conspiracy to deliver a controlled substance? 3. Whether the trial court abused its discretion in failing to find the verdict against the weight of the evidence as it relates to delivery and possession with intent to deliver, and conspiracy to deliver since the evidence related to same was so tenuous, vague and uncertain that the ultimate verdict is such that it shocks one’s [conscience]? 4. Whether the trial court abused its discretion in allowing testimony and evidence regarding [Appellant’s] prior criminal record to be admitted during the Commonwealth’s direct examination on the basis that [Appellant] “opened the door” and thereafter in failing to grant a mistrial? by operation of law and serve that order on the parties. See Pa.R.Crim.P. 720(B)(3)(a), (c). A notice of appeal must then be filed within 30 days of the entry of that order. See Pa.R.Crim.P. 720(A)(2)(b). Here, the clerk of courts should have entered an order denying Appellant’s timely post-sentence motion by operation of law on November 30, 2018, but it did not do so until January 31, 2020. We have held that a breakdown in the operations of the court occurs when the clerk fails to enter an order deeming post-sentence motions denied by operation of law. See Commonwealth v. Patterson, 940 A.2d 493, 498-99 (Pa. Super. 2007) (citation omitted). Therefore, because Appellant filed his notice of appeal within 30 days of the entry of the January 31, 2020 order denying his post-sentence motion by operation of law, we decline to quash his appeal. -3- J-S30011-21 5. Whether the trial court[’s] denial of Appellant’s motion to suppress evidence recovered after an illegal stop was supported by the record and free from legal error? 6. Whether the trial court abuse[d] its discretion by running each of the individual drug related offenses in [the] high-end of the standard range and running them consecutively thereby making the aggregate sentence unnecessarily harsh and unreasonable when neither his history nor his character warranted such a harsh and excessive sentence and in otherwise failing to explain or provide [an] adequate and/or proper basis for the excessive sentence? Appellant’s Brief at 3-4 (emphasis omitted). In Appellant’s first issue, he argues that the trial court lacked jurisdiction over the conspiracy to commit delivery charge, which was added to the charges pending against Appellant on April 16, 2018, when the Commonwealth filed an amended criminal information. Appellant’s jury trial began on May 1, 2018. According to Appellant, the trial court lacked jurisdiction over this newly-added charge because the Commonwealth had not established, at a preliminary hearing, that it could make out a prima facie case for this offense. Appellant’s arguments are waived and/or moot. First, in Appellant’s Rule 1925(b) statement, he did not raise any challenge to the court’s permitting the Commonwealth to amend the criminal information to add the conspiracy charge, and he cites no case law to support his assertion that this claim constitutes a non-waivable challenge to the jurisdiction of the court. We 2 Appellant also claims that the court lacked jurisdiction over the conspiracy charge because the Commonwealth failed to demonstrate that an overt act in furtherance of the conspiracy occurred in Pennsylvania. We address this claim infra. See infra, at 6 n.4. -4- J-S30011-21 conclude that it does not. Namely, Rule of Criminal Procedure 564, which governs the amendment of a criminal information, states that: The court may allow an information to be amended, provided that the information as amended does not charge offenses arising from a different set of events and that the amended charges are not so materially different from the original charge that the defendant would be unfairly prejudiced. Upon amendment, the court may grant such postponement of trial or other relief as is necessary in the interests of justice. Pa.R.Crim.P. 564. As Appellant recognizes, “[t]he purpose of Rule 564 is to ensure that a defendant is fully apprised of the charges, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed.” Appellant’s Brief at 52 (quoting Commonwealth v. Sinclair, 897 A.2d 1218, 1221 (Pa. Super. 2006) (citation omitted)). Thus, it is clear Appellant’s challenge to the court’s permitting the Commonwealth to amend the criminal information implicates due process and notice concerns, not the jurisdiction of the court. Therefore, Appellant waived this claim by failing to raise it in his Rule 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.”).? 3 We note that the court informed Appellant in its Rule 1925(b) order that “[a]ny issue not properly included in the Statement timely filed and served shall be deemed waived.” Trial Court Order, 3/9/20, at 1 (single page); see also Greater Erie Indus. Development Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 225 (Pa. Super. 2014) (en banc) (“[I]n determining whether an appellant has waived his issues on appeal based on non- compliance with Pa.R.A.P. 1925, it is the trial court’s order that triggers an appellant’s obligation[.] ... [T]herefore, we look first to the language of that order.”) (citations omitted). J-S30011-21 We also deem moot Appellant’s claim that the trial court lacked jurisdiction over his conspiracy charge because the Commonwealth did not present a prima facie case for that offense at a preliminary hearing. It is well- settled that “[o]nce [the] appellant has gone to trial and been found guilty of the crime, any defect in the preliminary hearing is rendered immaterial.” Commonwealth v. Tyler, 587 A.2d 326, 328 (Pa. Super. 1991). In other words, “[a]n adjudication of guilt renders moot any allegation that the Commonwealth failed to establish a prima facie case.” Commonwealth v. Lee, 662 A.2d 645, 650 (Pa. 1995); see also Commonwealth v. McCullough, 461 A.2d 1229, 1231 (Pa. 1983) (holding that the failure to establish a prima facie case at a preliminary hearing is clearly immaterial where at the trial the Commonwealth met its burden by proving the offense beyond a reasonable doubt). Accordingly, Appellant’s first issue does not warrant relief. In reviewing Appellant’s remaining five issues, we have carefully examined the briefs of the parties, the certified record, and the applicable law. We also considered the detailed, 45-page opinion authored by the Honorable Michael J. Barrasse of the Court of Common Pleas of Lackawanna County. We conclude that Judge Barrasse adequately addresses the issues and arguments Appellant raises herein, and properly concludes that they are meritless.+ 4 Judge Barrasse did not explicitly discuss Appellant’s claim, raised for the first time on appeal, that the trial court lacked jurisdiction over the conspiracy (Footnote Continued Next Page) J-S30011-21 Accordingly, we adopt Judge Barrasse’s well-reasoned decision as our own and affirm Appellant’s judgment of sentence for the reasons set forth therein.® Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Es¢ Prothonotary Date: 11/23/2021 charge because there was no evidence that an overt act in furtherance of that conspiracy occurred in Pennsylvania. However, Judge Barrasse did conclude, for the reasons set forth in his assessment of Appellant’s challenge to the sufficiency of the evidence, that “the overt act was [] Appellant’s delivery of cocaine to Donald Miles at [] Miles’ residence for [] Miles to sell on the street, including [to the CI].” TCO at 20. We agree. Accordingly, Appellant’s jurisdictional claim is meritless. > We note that Judge Barrasse addresses a claim that Appellant has abandoned on appeal. See TCO at 33-35 (discussing Appellant’s claim that the court erred by failing to grant Appellant’s request for a mistrial after evidence was admitted regarding his prior criminal record). We do not adopt, or assess the merits of, this portion of Judge Barrasse’s decision. -J- wiepea id Bhs td AM COMMONWEALTH OF : IN THE COURT OF COMMON PLEAS PENNSYLVANIA. : OF LACKAWANNA COUNTY v, ; CRIMINAL DIVISION WILLIAM JORDAN ; 18CR77 to = — QO om ee TF 45 — Se OPINION i Coes re “tse es hig’ opitliigp is filed pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate at ss a Piipedure arid @ursuant to the request of the Superior Court. The Appellant’s grounds for appeal