J-S05023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                            IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                            Appellee

                       v.

VANESSA ANN MOORE,

                            Appellant                         No. 561 MDA 2015


          Appeal from the Judgment of Sentence November 25, 2014
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0005371-2013


BEFORE: BENDER, P.J.E., SHOGAN, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                                FILED FEBRUARY 22, 2016

       Vanessa Ann Moore (“Appellant”) appeals from the judgment of

sentence imposed on November 25, 2014, after a jury convicted her of

multiple drug offenses. We affirm in part and vacate in part.

       This case arises out of a shooting incident in Reading, Pennsylvania, at

2:40 a.m. on February 21, 2013.                In response to a report of shots fired,

Reading Police Officer Christopher Dinger proceeded to the Queen City

Diner. There, witnesses told the officer about a black man with dreadlocks

in a grey hoodie who ran into the diner claiming he had been shot, then left

the diner and drove off in a black SUV. Officer Dinger was then dispatched

to Reading Hospital where a man fitting the victim’s description was being
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S05023-16


treated for gunshot wounds.      Officer Dinger identified the victim as Kevin

Douglas McGee (“McGee”), who informed the officer that he had been shot

near Topher’s bar in Reading, and that his address was 536 Fern Avenue,

Reading, Pennsylvania. Officer Dinger and several other officers proceeded

to 536 Fern Avenue.      While checking the area around the house, Officer

Dinger observed a white Lincoln Navigator parked in an alley behind the

residence and a black Cadillac Escalade parked inside an open garage behind

the residence. The Navigator was registered to Appellant, and the Escalade

was registered to Appellant’s mother, Rosalie Moore. The officer observed

what he believed to be blood on the console of the Navigator.                He also

observed a flat tire on the Escalade, bullet holes in the front driver’s side

panel, fresh tire tracks into the garage, a warm engine, and a small pool of

water under the tailpipe.    Inside the Escalade, Officer Dinger saw a black

book bag on the floor of the passenger side front seat. Both vehicles were

towed to a local garage while the police applied for a search warrant.

      Inside   536   Fern   Avenue,    Reading     Police   Officer   Kyle   Kunkle

encountered Appellant, co-defendant Erica Henderson, Ms. Henderson’s two

young daughters, and Veronica Ortega. He also found a loaded .380 Bersa

handgun on the living room sofa that was registered to Appellant. Appellant

told Officer Kunkle that McGee used the residence for mail, but he had not

lived there for a long time.    In a second floor bedroom, the police found,

inter alia, a safe containing pills and baggies.


                                      -2-
J-S05023-16


        Investigator Joseph Snell assisted in executing the search warrant for

the Escalade. He recovered a black book bag, which he admittedly opened,

observing inside what he believed to be drugs and drug paraphernalia. He

returned the bag to the vehicle until an additional search warrant could be

secured. With a second search warrant, Criminal Investigator (“C.I.”) Kevin

Haser recovered the black book bag, which contained multiple baggies of

crack cocaine and powder cocaine, four handguns, a scale, spoons, plates,

razor blades, “Black Molly” pills, empty blue and green baggies, and

ammunition.       Fingerprints recovered from the black book bag and its

contents belonged to co-defendant Henderson.

        C.I. Haser filed a nine-count information against Appellant on July 24,

2013.     Appellant filed an omnibus pretrial motion on December 5, 2013,

seeking the suppression of drug and contraband evidence.        The trial court

held a hearing on the suppression motion on January 9, 2014, and, following

the submission of briefs, denied the motion to suppress on May 1, 2014.

Following her jury trial and conviction of five drug offenses1 on August 29,

2014, the trial court sentenced Appellant to incarceration for an aggregate

term of four to eight years on November 25, 2014. The sentence did not

____________________________________________


1
   The five convictions were for possession with intent to deliver—cocaine
(“PWID”), 35 P.S. § 780-113(a)(30); conspiracy to commit PWID—cocaine,
18 Pa.C.S. § 903; possession—cocaine, 35 P.S. § 780-113(a)(16);
conspiracy to commit possession of cocaine, 18 Pa.C.S. § 903; and
possession—Black Molly, 35 P.S. § 780-113(a)(16).



                                           -3-
J-S05023-16


include a minimum sentence under the Recidivism Risk Reduction Incentive

(“RRRI”) Program.      Defense counsel withdrew with the trial court’s

permission, and appellate counsel was appointed.      This appeal followed.

Appellant and the trial court have complied with Pa.R.A.P. 1925.

     On appeal, Appellant presents the following questions for our review:

     1.    Whether Trial Court erred in denying and dismissing
           [Appellant’s] omnibus pre-trial motion.

     2.    Whether the trial court erred in failing to address the
           omnibus pre[-]trial motion issue that the search of
           [A]ppellant’s garage was an illegal and unlawful entry into
           the property done without a search warrant and with[out]
           exigent circumstances and without probable cause. All
           later searches and search warrants being fruits of the
           poisonous tree arising from the initial illegal entry and
           illegal search of the garage.

     3.    Whether the Trial Court erred in dismissing juror #1 over
           the objections of counsel and with lawful or good cause.

     4.    Whether the evidence adduced at trial was sufficient to
           support the jury’s verdict on all the charges as the
           Commonwealth failed to establish constructive possession
           (no evidence of knowledge or intent to control) drugs and
           weapons found inside the black bag found inside a black
           Cadillac Escalade.

     5.    Whether the Trial Court failed to impose a RRRI eligible
           sentence where the sentence was not imposed as a
           mandatory sentence and Appellant was not barred by
           statute. The sentence is illegal since it does not impose a
           RRRI range.

Appellant’s Brief at 4–5 (emphasis omitted).

     When, as here, an appellant raises both a sufficiency-of-the-evidence

issue and a suppression issue, we address the sufficiency of the evidence


                                    -4-
J-S05023-16


supporting the conviction first, and we do so without a diminished record.

Rather:

      we are called upon to consider all of the testimony that was
      presented to the jury during the trial, without consideration as to
      the admissibility of that evidence. The question of sufficiency is
      not assessed upon a diminished record.          Where improperly
      admitted evidence has been allowed to be considered by the
      jury, its subsequent deletion does not justify a finding of
      insufficient evidence. The remedy in such a case is the grant of
      a new trial.

Commonwealth v. Sanford, 863 A.2d 428, 431–432 (Pa. 2004) (emphasis

in original). Thus, we begin by addressing the sufficiency of the evidence, as

“[t]he Double Jeopardy Clause bars retrial after a defendant’s conviction has

been overturned because of insufficient evidence.”        Commonwealth v.

Mullins, 918 A.2d 82, 85 (Pa. 2007) (citations omitted).

      Appellant argues that the evidence was insufficient because the

Commonwealth failed to establish her knowledge of, or ability and intent to

exercise control over, the drugs in the book bag.      Appellant’s Brief at 13.

Contrarily, based on Appellant’s connection to both vehicles and to the drugs

and paraphernalia recovered from the book bag and Appellant’s home, the

trial court concluded that the evidence was sufficient to sustain Appellant’s

convictions. Trial Court Opinion, 5/14/15, at 30–31.

            Our standard of review in a sufficiency of the
            evidence challenge is to determine if the
            Commonwealth established beyond a reasonable
            doubt each of the elements of the offense,
            considering all the evidence admitted at trial, and
            drawing all reasonable inferences therefrom in favor
            of the Commonwealth as the verdict-winner. The

                                     -5-
J-S05023-16


           trier of fact bears the responsibility of assessing the
           credibility of the witnesses and weighing the
           evidence presented. In doing so, the trier of fact is
           free to believe all, part, or none of the evidence.

     Commonwealth v. Newton, 994 A.2d 1127, 1131
     (Pa.Super.2010), appeal denied, 608 Pa. 630, 8 A.3d 898
     (2010), quoting Commonwealth v. Pruitt, 597 Pa. 307, 318,
     951 A.2d 307, 313 (2008) (citations omitted). The
     Commonwealth may sustain its burden by means of wholly
     circumstantial evidence, and we must evaluate the entire trial
     record and consider all evidence received against the defendant.
     Commonwealth v. Markman, 591 Pa. 249, 270, 916 A.2d 586,
     598 (2007).

Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013).

     Appellant was not in physical possession of the book bag; therefore,

the Commonwealth was required to establish that she had constructive

possession of the seized items to support her convictions.

           Constructive possession is a legal fiction, a pragmatic
           construct to deal with the realities of criminal law
           enforcement.       Constructive possession is an
           inference arising from a set of facts that possession
           of the contraband was more likely than not. We
           have defined constructive possession as conscious
           dominion.      We subsequently defined conscious
           dominion as the power to control the contraband and
           the intent to exercise that control.            To aid
           application, we have held that constructive
           possession may be established by the totality of the
           circumstances.

     Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super.2012),
     appeal denied, ––– Pa. ––––, 63 A.3d 1243 (2013) (internal
     quotation marks and citation omitted). Additionally, it is possible
     for two people to have joint constructive possession of an item of
     contraband. Commonwealth v. Sanes, 955 A.2d 369, 373
     (Pa.Super.2008), appeal denied, 601 Pa. 696, 972 A.2d 521
     (2009).


                                    -6-
J-S05023-16


Hopkins, 67 A.3d at 820–821. Where more than one person has access to

the contraband, presence alone will not prove conscious dominion over the

contraband. Commonwealth v. Bricker, 882 A.2d 1008, 1016 (Pa. Super.

2005) (citation omitted).    “Rather, the Commonwealth must introduce

evidence demonstrating either Appellant’s participation in the drug-related

activity or evidence connecting Appellant to the specific room or areas where

the drugs were kept.” Id. (citation omitted).

     Additionally, the Commonwealth charged Appellant as a conspirator

with McGee and Henderson in drug-related activity.     In order to convict a

defendant as a conspirator, the Commonwealth must prove: (1) that the

defendant intended to commit or aid in the commission of the criminal act;

(2) that the defendant entered into an agreement with another to engage in

the crime; and (3) that the defendant or one or more of the other co-

conspirators committed an overt act in furtherance of the agreed-upon

crime.   Commonwealth v. Smith, 985 A.2d 886, 895 (Pa. 2009); 18

Pa.C.S. § 903.

     The Commonwealth presented the following evidence of Appellant’s

connection to specific rooms or areas where the vehicles, firearms, drugs,

and paraphernalia were found.      Bricker, 882 A.2d at 1016.      Appellant

owned the residence at 536 Fern Avenue. N.T. Suppression, 1/9/14, at 71.

McGee’s address was 536 Fern Avenue.       N.T., 8/26–29/14, at 137.     The

Navigator was parked behind Appellant’s residence, and the Escalade was


                                    -7-
J-S05023-16


parked in the detached garage. Id. at 141. Appellant’s mother owned the

Escalade, and McGee drove it on the night he was shot near Queen City

Diner. Id. at 288, 351. One of the guns recovered from the book bag was

registered to Appellant. Id. at 436–437, 445. Henderson lived at 536 Fern

Avenue, she was home on the night in question, and her fingerprints were

on the contraband found in the book bag. N.T. Suppression, 1/9/14, at 76;

N.T., 8/26–29/14, at 309, 516–518.              In Appellant’s home, the police

recovered drugs, including pills found in the bedroom Appellant shared with

McGee; the pills matched the Black Mollies recovered from the book bag.

Id. at 342–343.     Apple logo baggies containing crack cocaine recovered

from the book bag matched apple logo baggies found inside Appellant’s

residence.    Id. at 450.       The police recovered drug paraphernalia and

ammunition in the basement.           Id. at 420–421.       The ammunition was

capable of being loaded into the guns recovered from the book bag. Id. at

451.

       Upon review of the record, we agree with the trial court that the

evidence     was   sufficient    to   sustain     Appellant’s   convictions.   The

Commonwealth proved beyond a reasonable doubt that Appellant was

involved in drug-related activity along with McGee and Henderson at

Appellant’s residence, 536 Fern Avenue. As a co-conspirator, Appellant was

liable for possession of the drugs and contraband found in the book bag that

were handled by Henderson and transported by McGee.


                                       -8-
J-S05023-16


      Next, we consider Appellant’s allegation that the trial court erred in

denying her suppression motion.      Appellant argues that police searches of

the garage and 536 Fern Avenue violated her constitutional rights because

the police “did not have a warrant or permission to cross the threshold into

the garage . . . [or] a warrant when they entered the house at Fern

Avenue.” Appellant’s Brief at 12. Appellant further argues that the warrant

supporting the search of 536 Fern Avenue “was defective in that it lacked

probable cause to believe that contraband or evidence of a crime would be

found at that particular place.” Id. at 12.

      In response, the Commonwealth argues that the police did not violate

Appellant’s rights by crossing the garage threshold because the Escalade

was in plain view from outside of the garage. Commonwealth’s Brief at 14.

Additionally, the Commonwealth contends that Appellant voluntarily allowed

the police officers to enter her residence and that the search warrant for 536

Fern Avenue was supported by probable cause. Id. at 19.

      The standard of review an appellate court applies when considering an

order denying a suppression motion is well established:

      An appellate court may consider only the Commonwealth’s
      evidence and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record
      as a whole. Commonwealth v. Russo, 594 Pa. 119, 934 A.2d
      1199, 1203 (2007) (citing Commonwealth v. Boczkowski,
      577 Pa. 421, 846 A.2d 75 (2004)). Where the record supports
      the factual findings of the trial court, the appellate court is bound
      by those facts and may reverse only if the legal conclusions
      drawn therefrom are in error. Id. However, it is also well
      settled that an appellate court is not bound by the suppression

                                      -9-
J-S05023-16


      court’s conclusions of law. Id. (citing Commonwealth v.
      Duncan, 572 Pa. 438, 817 A.2d 455 (2003)).

            With respect to factual findings, we are mindful that
            it is the sole province of the suppression court to
            weigh the credibility of the witnesses. Further, the
            suppression court judge is entitled to believe all, part
            or none of the evidence presented. However, where
            the factual determinations made by the suppression
            court are not supported by the evidence, we may
            reject those findings. Only factual findings which are
            supported by the record are binding upon this Court.

      Commonwealth v. Benton, 440 Pa.Super. 441, 655 A.2d
      1030, 1032 (1995) (citations omitted). In addition, we are
      aware that questions of the admission and exclusion of evidence
      are within the sound discretion of the trial court and will not be
      reversed on appeal absent an abuse of discretion.
      Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa.Super.2003).
      In appeals from suppression orders, our scope of review is
      limited to the evidence presented at the suppression hearing. In
      the Interest of L.J., 622 Pa. 126, 79 A.3d 1073, 1088–1089
      (2013).1
            1
               Our Supreme Court in L.J. clarified that the scope
            of review of orders granting or denying motions to
            suppress is limited to the evidence presented at the
            suppression hearing. The suppression hearing in this
            case post-dates L.J., so L.J. is applicable here.
            Commonwealth v. Davis, 102 A.3d 996, 999 n. 5
            (Pa.Super.2014).

Commonwealth v. Caple, 121 A.3d 511, 516–517 (Pa. Super. 2015).

      Following the suppression hearing, the trial court opined as follows

regarding police interaction with the Escalade:

      Officers initially arrived at 536 Fern Avenue in response to a
      shooting investigation involving Mr. McGee.       As Mr. McGee
      refused to provide any relevant information relating to the
      incident, officers followed up their shooting investigation at the
      only residence known to be associated with Mr. McGee. Since
      hospital staff informed police that Mr. McGee had been dropped

                                     - 10 -
J-S05023-16


      off at the hospital by a white SUV with large chrome rims, it was
      a natural investigatory response for the officers to search the
      residential area for that type of vehicle. Once Officer Dinger
      located a white Lincoln Navigator, matching the hospital
      description and in close proximity to the residence, he saw in
      plain view what he thought was blood on the center console.
      While Officer Dinger continued his investigation of the perimeter
      of the residence, he also observed a black Cadillac Escalade
      inside the open, detached garage of the residence, which
      appeared to have a flat tire and bullet holes in the driver’s side
      door. It also appeared that the black Escalade had recently been
      driven [based on] Officer Dinger’s [observation] that the hood
      was still warm as he approached the vehicle. Based on the
      entirety of Officer Dinger’s observations, officers properly seized
      the vehicles, pending search warrant applications to search for
      evidence relative to the shooting investigation.

Findings of Fact and Conclusions of Law, 5/1/14, at 9–10.

      We apply the following test to determine whether the plain-view

exception to the warrant requirement applies to the case at bar:

      For the exception to be present, initially, the officer must not
      have violated the Fourth Amendment in arriving at the place
      from which the evidence could be plainly viewed. Moreover, two
      additional conditions must be satisfied to justify the warrantless
      seizure. First, the incriminating character of the item must be
      immediately apparent. Also, the officer must have a lawful right
      of access to the object itself.

Commonwealth v. Turner, 982 A.2d 90, 92 (Pa. Super. 2009) (quotation

marks and citations omitted). “This doctrine rests on the principle that an

individual cannot have a reasonable expectation of privacy in an object that

is in plain view.”   Commonwealth v. Winfield, 835 A.2d 365, 369 (Pa.

Super. 2003) (quoting Commonwealth v. Ballard, 806 A.2d 889, 891 (Pa.

Super. 2002)).




                                    - 11 -
J-S05023-16


      Upon review of the suppression record, we conclude that the officers

lawfully arrived at 536 Fern Avenue, McGee’s known address, in furtherance

of their search for the white Navigator identified by the hospital’s security

personnel.    N.T. Suppression, 1/9/14, at 25, 26, 37, 65, 69, 70.

Additionally, Officer Dinger observed the black Escalade in an open garage, a

fact which negates Appellant’s expectation of privacy. Id. at 27; Winfield,

835 A.2d at 369. The suspicious character of the bullet holes and the flat

tire was immediately apparent to Officer Dinger from the alley.           N.T.,

1/9/14, at 27–29. Fresh tire tracks into the garage, a warm engine, and a

pool of water under the tailpipe suggest that the Escalade was recently

parked in the garage. Id.; Commonwealth’s Exhibit 3 (Affidavit of Probable

Cause), 2/21/13, at 2. We emphasize that nothing in the record indicates

that Officer Dinger searched the garage. Rather, he “walked into the garage

far enough to see in the [Escalade] to make sure there was no injured

persons inside the car relative to the bullet hole.” N.T. Suppression, 1/9/14,

at 28, 36. Seeing no one, Officer Dinger secured both vehicles and waited

for search warrants. Id. at 28–29. Thus, we further conclude that Officer

Dinger had a lawful right of access to the vehicle itself and he did not violate

Appellant’s rights by crossing the garage threshold.

      With regard to entry of 536 Fern Avenue, the trial court wrote,

“C.I. Perkin’s [sic] indicated that [Appellant] allowed officers to come into

the house to discuss the shooting investigation.”        Findings of Fact and


                                     - 12 -
J-S05023-16


Conclusions of Law, 5/1/14, at 11. The suppression record supports the trial

court’s finding. N.T., 1/9/14, at 96; Commonwealth Exhibit 3 (Affidavit of

Probable Cause), 2/21/13, at 3.      We conclude, therefore, that Appellant’s

challenge to the initial entry of her residence is disingenuous.

      Appellant also challenges the search warrant for 536 Fern Avenue as

“defective in that it lacked probable cause to believe that contraband or

evidence of a crime would be found at that particular place.”       Appellant’s

Brief at 12. In response, the trial court opined as follows:

      The information contained within the search warrant for the
      residence established probable cause. C.I. Perkins and the other
      officers’ observations at the residence, which were set forth in
      his supporting affidavit, established a fair probability that
      [Appellant] was involved in criminal activity.       Although C.I.
      Perkins did not include the information relating to finding red
      fluid in the cleaning bucket in his report, his supporting affidavit
      of     probable    cause   does     include    such    information.
      (Commonwealth Exhibit 3, p. 3). Furthermore, C.I. Perkins
      clarified this discrepancy at the pretrial hearing, testifying that
      he did in fact see blood droplets in the cleaning solution. . . . In
      addition to observing the cleaning solution inside the residence
      and Appellant’s attempt to destroy evidence, both of the vehicles
      were in close proximity to the residence as well. [Appellant] also
      advised the officers that there was a loaded handgun in the
      living room of the house.         After the firearm was seized,
      [Appellant] became uncooperative and could not confirm Mr.
      McGee’s whereabouts.          Based on the totality of the
      circumstances, there was sufficient information available to the
      magistrate to establish the probability that criminal activity
      existed within the residence. C.I. Perkins[’] observations inside
      the residence combined with the additional facts setting forth
      [Appellant’s] relationship to the vehicles led the magistrate to
      conclude there was a fair probability that contraband or evidence
      of a crime would be found in the residence. Therefore, the
      warrant for the residence was properly issued.

Findings of Fact and Conclusions of Law, 5/1/14, at 11–12.

                                     - 13 -
J-S05023-16


      “In order to obtain a valid search warrant, the affiant must establish

probable cause to believe that execution of the warrant will lead to the

recovery of contraband or evidence of a crime.” Commonwealth v. Janda,

14 A.3d 147, 157 (Pa. Super. 2011).           We review the issuing authority’s

decision in light of the totality of the circumstances:

      Pursuant to the “totality of the circumstances” test set forth by
      the United States Supreme Court in Illinois v. Gates, 462 U.S.
      213 (1983), the task of an issuing authority is simply to make a
      practical, commonsense decision whether, given all of the
      circumstances set forth in the affidavit before him, including the
      veracity and basis of knowledge of persons supplying hearsay
      information, there is a fair probability that contraband or
      evidence of a crime will be found in a particular place.... It is the
      duty of a court reviewing an issuing authority’s probable cause
      determination to ensure that the magistrate had a substantial
      basis for concluding that probable cause existed. In so doing,
      the reviewing court must accord deference to the issuing
      authority’s probable cause determination, and must view the
      information offered to establish probable cause in a
      commonsense, non-technical manner.

Caple, 121 A.3d at 520 (quoting Janda, 14 A.3d at 157–158).

      Our review of the certified record reveals support for the trial court’s

findings of fact.    See Commonwealth’s Exhibit 3 (Affidavit of Probable

Cause), 2/21/13, at 2–3 (summarizing events surrounding shooting and

police investigation of 536 Fern Avenue).       The affidavit of probable cause

provided the magistrate with information about an uncooperative shooting

victim; two vehicles (one with bullet holes and one with a blood-like

smudge) connected to the victim and his residence; an uncooperative

woman connected to the victim, the vehicles, and the residence; signs of


                                     - 14 -
J-S05023-16


recently destroyed evidence; and a loaded weapon in the residence. When

viewed in a commonsense, non-technical manner, such information suggests

a fair probability that contraband or evidence of a crime will be found inside

536 Fern Avenue.    Therefore, we discern no error in the trial court’s legal

conclusion that the warrant for 536 Fern Avenue was supported by probable

cause.

      In sum, the warrantless entries into Appellant’s garage and residence

did not violate her constitutional rights, and the search warrant for 536 Fern

Avenue was supported by probable cause. Thus, we hold that the trial court

did not err in denying Appellant’s motion to suppress.

      Appellant next challenges the trial court’s decision to remove Juror

Number One on the second day of trial and replace her with an alternate

juror. Appellant’s Brief at 16. In essence, Appellant complains that the trial

court did not inquire into alternatives to removal of Juror Number One and

that the removal was not supported by evidence of good cause. Id. at 16,

17.

      According to the record, the trial judge instructed the jury on the first

day of trial that court “usually” adjourned at 5:00 p.m., but that he was “not

going to guarantee” that he would do that tomorrow because he “certainly

want[ed] to get this case finished by Friday” due to the holiday weekend,

and he “won’t be able to continue with the trial on Thursday” due to a full

schedule. N.T., 8/26–29/14, at 49. The jury was excused at 4:58 p.m. on


                                    - 15 -
J-S05023-16


the first day of trial, but the second day of trial ran longer.    N.T., 8/26–

29/14, at 56, 336. Juror Number One explained her inability to remain in

the court room after 6:00 p.m. on the second day, as follows: “I am the

only one that can watch my granddaughter who was very sick when she was

born, and I am the only one who can take her. And my daughter has to be

at school.”   N.T., 8/26–29/14, at 337.       Defense counsel objected to Juror

Number One’s removal, suggesting instead that they adjourn for the evening

so Juror Number One could meet her obligation and then return on Friday for

the third day of trial. Id. at 338–339. Unpersuaded, the trial court excused

Juror Number One sua sponte “based upon the court’s schedule and the

delays . . . in this trial up to this point and the calendar including the

upcoming holiday weekend.” Id. at 339. The court adjourned at 7:35 p.m.

that evening. Id. at 382.

      The trial court explained its removal of Juror Number One as follows:

             After review of the record, it is apparent that Juror #1
      properly informed the trial court of the issue she faced at home
      if she was forced to stay past 6:00 p.m. on the second day of
      trial. The trial court excused the juror and the juror’s place was
      taken by the first alternate juror. The contention that the trial
      court committed reversible error is unfounded since Juror #1
      was excused due to a long standing commitment to take care of
      her sick granddaughter and she evidently did not expect the trial
      to last as long as it did that second evening. Furthermore, the
      trial court recognized its intention to finish the jury trial before
      the three-day holiday weekend so as to avoid juror confusion
      and/or forgetfulness.     The jury trial consisted of three co-
      defendants who were each charged with various offenses. The
      trial court believed the jury was more likely to give their full
      attention to the complicated evidence if the trial completed prior
      to the eventual three-day holiday break. Due to the scheduling

                                     - 16 -
J-S05023-16


      obstacles and Juror #1’s family predicament, there was nothing
      improper in the court’s handling of this matter. The court did
      not abuse its discretion when it excused Juror #1 for these
      reasons and replaced Juror #1 with an alternate juror.

Trial Court Opinion, 5/14/15, at 26.

      “Pursuant to Pa.R.Crim.P. [645(a)], a trial court may seat an alternate

juror whenever a principal juror becomes unable or disqualified to perform

his duties.” Commonwealth v. Williams, 720 A.2d 679, 684 (Pa. 1998).

“This discretion exists even after the jury has been impaneled and the juror

sworn.” Commonwealth v. Carter, 643 A.2d 61, 70 (Pa. 1994) (citation

omitted). The trial court’s discretion in this regard must be based upon a

sufficient record of competent evidence to sustain removal.         Id. at 70

(citation omitted). The trial court’s decision to discharge a juror will not be

reversed absent a palpable abuse of discretion.          Commonwealth v.

Treiber, 874 A.2d 26, 31 (Pa. 2005).

      Upon review, we conclude that the trial court’s decision to remove

Juror Number One is based upon a sufficient record of competent evidence.

Juror Number One testified that, because her daughter had to go to school,

she was the only person available to watch her sick granddaughter. The trial

court referenced its heavy schedule and its desire to complete the trial

before the holiday weekend.     The trial involved multi-defendants charged

with various offenses and required the undistracted attention of the jurors.

Moreover, Appellant failed to demonstrate how she was prejudiced as a

result of the removal of Juror Number One and the seating of an alternate

                                       - 17 -
J-S05023-16


juror.     In light of this record, we discern no abuse of the trial court’s

discretion. Thus, we conclude that Appellant’s challenge to the removal of

Juror Number One warrants no relief.

         Finally, Appellant asserts that the trial court erred in applying a drug-

weight      mandatory     minimum     sentence     because   the   drug-trafficking

sentencing statute was declared unconstitutional several days before

Appellant’s sentence. Appellant’s Brief at 18–19. See Commonwealth v.

Fennell, 105 A.3d 13, 17 (Pa. Super. 2014), appeal denied, 121 A.3d 494

(Pa.     2015)    (holding    18    Pa.C.S.   §§   7508(a)(7)(i)    and    7508(b)

unconstitutional).      Rather, Appellant contends, the trial court should have

applied an RRRI minimum sentence. Appellant’s Brief at 18–19.

         According to the Commonwealth, Appellant “was not sentenced to a

RRRI minimum in this matter because of ‘weight.’             This mere statement

would not appear to be sufficient to make a determination of [Appellant’s]

eligibility in either direction.”    Commonwealth’s Brief at 29.          Thus, the

Commonwealth acknowledges that “remand for further investigation as to

whether or not [Appellant] is an eligible offender would appear to be

appropriate.”     Id.    Similarly, the trial court “requests a remand for RRRI

review and consideration” because, “[a]t the Sentencing Hearing on

November 25, 2014, neither Appellant nor the Commonwealth gave an

indication of RRRI eligibility.”        Trial Court Opinion, 5/14/15, at 32.




                                        - 18 -
J-S05023-16


Consequently, we are constrained to vacate the judgment of sentence and

remand for consideration of Appellant’s RRRI eligibility.

      Judgment of sentence affirmed in part, vacated in part, and remanded

for consideration of Appellant’s RRRI eligibility. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/2016




                                     - 19 -
