J-A24026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    KASHIF M. ROBERTSON                         :
                                                :
                       Appellant                :   No. 1606 MDA 2017

        Appeal from the Judgment of Sentence Entered August 16, 2017
     In the Court of Common Pleas of Dauphin County Criminal Division at
                       No(s): CP-22-CR-0002594-2016


BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                        FILED FEBRUARY 05, 2019

       Kashif M. Robertson appeals from the judgment of sentence entered

following his convictions for fleeing and eluding a police officer, possession of

drug paraphernalia, driving on a sidewalk, failure to stop at stop sign, and

failure to signal.1 He challenges the denial of his motion to suppress, the

sufficiency of the evidence, and the court’s instructions to the jury. We affirm.

       Police arrested and charged Robertson with the above crimes in March

2016, and Robertson filed a motion to suppress. The trial court held a hearing

on the motion at which the Commonwealth presented the following evidence.

       Harrisburg     City   Police   Officer   Robert   Fleagle   testified   that   at

approximately 3:45 a.m. on March 14, 2016, he was on patrol in a police SUV

with Officer Angel Diaz. N.T. (Suppression Hearing), 6/22/17, at 9, 18. Both
____________________________________________


1See 75 Pa.C.S.A. § 3733(a); 35 P.S. § 780-113(a)(32); and 75 Pa.C.S.A.
§§ 3703(a), 3323(b), and 3334(a), respectively.
J-A24026-18



officers were in full uniform. Id. at 9. As they were driving down a narrow

two-way street with cars parked on both sides, they noticed a car parallel-

parked on the opposite side of the street with two motionless occupants. Id.

at 10, 20-21, 28. Both Officer Fleagle and Officer Diaz testified that the person

sitting in the driver’s seat, later identified as Robertson, appeared to be

sleeping. Id. at 10, 21, 28-29, 38, 45-46. Both officers also testified that there

were no lights on in the car, and that they did not initially notice whether the

car was running. Id. at 16, 29, 44.

      Officer Fleagle testified that “in [his] 18 years as a patrolman for

Harrisburg City, [the police have] had numerous situations that could be

somebody with a health issue, somebody may be just asleep, maybe a DUI,

[or that] somebody might be dead.” Id. at 11. He also said that the police

have encountered “people who are actually shot in vehicles before, [and we]

came across them that they were dead in the vehicle.” Id. Officer Fleagle

stated that he and Officer Diaz therefore “wanted to check on their welfare

and see what was going on.” Id. He elaborated,

      we didn’t know if it was medical, if he’s just asleep or if it’s a DUI.
      I mean, let’s be honest. I’m looking for criminal activity at that
      time, I’m not going to, you know, lie to you. But, you know, I
      didn’t know if he was – if something was wrong with him or if they
      were just drunk, high, or just sleeping.

Id. at 23-24.

      Officer Fleagle pulled the police SUV alongside the driver’s side of the

parked car, leaving two or three feet of space between the vehicles. Id. at 10,



                                       -2-
J-A24026-18



18. Both officers testified that the placement of the SUV blocked Robertson’s

car from leaving. Id. at 12, 19, 23, 43.

       Officer Fleagle shined a floodlight inside the car and confirmed that both

occupants were asleep. Id. at 10, 23.2 Robertson’s seat was leaning partially

backward, and the passenger, a woman, had leaned her seat all the way back.

Id. at 10, 29. Robertson and the passenger awoke. Id. at 11, 23. Officer

Fleagle lowered his window and asked Robertson if he was okay. Id. at 11,

23-24. According to Officer Fleagle, Robertson stared blankly at him, with a

“thousand-yard stare,” and did not lower his window. Id. at 11. Officer Diaz

similarly testified that “they both looked towards us with a thousand-yard

stare. They had, like, a surprised look on their face[s] and were very slow with

their movements.” Id. at 29. Officer Diaz concluded that “they appeared to

be under the influence of drugs or something,” and that “from the way they

looked over to me, I believed them – from my experience at the time that

they might be – at least the driver might be under the influence.” Id. at 29,

43. This assessment took “no longer than a minute.” Id. at 43.

       Because the officers suspected that the occupants might be under the

influence of drugs and alcohol, Officer Diaz decided they should investigate

further. Id. at 32, 44-45. Officer Fleagle then backed up the police SUV so

that the front of its bumper was in line with the front of Robertson’s car. Id.

____________________________________________


2 Officer Fleagle also testified that he first observed the female passenger once
he turned the floodlight on, contradicting his earlier testimony that he had
initially seen two people in the car. N.T. (Suppression) at 29.

                                           -3-
J-A24026-18



at 12, 24. The officers’ vehicle continued to block Robertson’s car from leaving,

and Officer Fleagle testified that Robertson was not free to leave at that time.

Id. at 24-26.

      While Officer Diaz walked to the rear of the car, Officer Fleagle

approached Robertson’s driver’s-side window on foot, tapped on the window,

and asked Robertson again if he was okay. Id. at 12. Officer Fleagle testified

that both Robertson and the female passenger “had a blank look on their face,

kind of confused, moving slow.” Id. at 12. Officer Fleagle asked Robertson to

lower his window, and Robertson lowered it three inches. Id. at 12, 25. Officer

Fleagle asked Robertson for identification, and Robertson “just looked at

[him]” and “was fumbling around.” Id. at 12. Officer Fleagle also stated that

Robertson “seemed lethargic, confused, he had a blank stare on his face, and

he was fumbling at one point when I asked him for his ID.” Id. at 14, 25.

Robertson never said “one word” to Officer Fleagle, but did produce an ID. Id.

at 13-15, 25. Both officers testified that it was around this time that they

smelled the odor of burnt marijuana emanating from inside the vehicle. Id. at

12, 25, 32-33.

      Officer Fleagle stepped away to investigate Robertson’s identification.

Id. at 25. Officer Diaz approached the drivers’ window, and asked Robertson

and the passenger if they were on probation or parole; they responded in the

negative. Id. at 33. Officer Diaz asked the passenger for an ID, but she said

she did not have one with her. Id. at 33. Officer Diaz testified that he asked

Robertson if he had recently smoked marijuana, and Robertson said that he

                                      -4-
J-A24026-18



had not. Id. at 33. Officer Diaz told Robertson that he could smell it, and

Robertson admitted to smoking “at least one marijuana cigarette.” Id. at 33.

Robertson spoke using only one or two words, not full sentences. Id. at 34.

According to Officer Diaz, Robertson was moving slowly, with bloodshot eyes,

and continually reached for his left waistband. Id. at 33-34. Officer Diaz

testified that he shined a flashlight into the car, and saw a clear plastic baggie

containing what appeared to be marijuana. Id. at 34. Officer Diaz then asked

Robertson to give him the bag, and when he did, Officer Diaz placed it atop

the car. Id. at 15, 34-35. Officer Diaz also observed a black scale next to the

gearshift. Id. at 35. During his interactions with Robertson, Officer Diaz

noticed that Robertson’s car was running, because he could see occasional

exhaust fumes. Id. at 34.

         Officer Diaz asked Robertson to step out of the vehicle. Id. at 37.

Instead of complying, Robertson started to close the window. Id. at 37. Officer

Diaz told Robertson that if he did not stop, he would smash the window. Id.

at 37. Robertson continued rolling up the window, and Officer Diaz shattered

it. Id. at 37. Robertson then put the car in reverse and backed onto the

sidewalk, almost striking Officer Fleagle, and drove away. Id. at 16, 35-36,

49. Officer Fleagle never heard Robertson start the car before reversing. Id.

at 16.

         A third police officer, John Rosinski, who was just arriving at the scene,

pursued Robertson’s fleeing vehicle. Id. at 36, 49. Officer Rosinski testified

that Robertson ignored stop signs, failed to signal, and drove at a high rate of

                                        -5-
J-A24026-18



speed. Id. at 49-50. Eventually, the car came to a stop at a dead end, and

Robertson jumped out and fled on foot. Id. at 50. Officer Rosinski yelled to

the female passenger to stay in the vehicle and chased Robertson on foot, but

lost sight of him. Id. When Officer Rosinski returned to the vehicle, the

passenger was no longer there. Id. Inside the vehicle, in plain view, he saw

another bag of suspected marijuana on the driver’s seat; a small digital scale

on the floor; and scattered pieces of mail addressed to Robertson on the

backseat. Id. at 50, 52-53.

      The court denied Robertson’s motion to suppress, and Robertson

proceeded to a jury trial. At trial, which took place on August 16, 2017, the

Commonwealth presented the testimony of the three police officers and

introduced into evidence the two plastic bags of marijuana. N.T. (Trial),

8/16/17, at 35. The parties stipulated that the bags contained in all 0.27

grams of marijuana. Id. at 36-37. The prosecution did not introduce the digital

scale into evidence. Robertson testified in his own defense, and argued that

he fled from the police to protect himself and his passenger from danger, after

Officer Diaz shattered his window with the handle of a firearm. Id. at 80.

      After the close of evidence and arguments, the court instructed the jury.

Because Robertson had argued that he was justified in fleeing from the police

in self-defense, the court instructed the jury on the “justification defense,” in

relation to the charge of fleeing and eluding an officer. Id. at 120-22. The

court explained,




                                      -6-
J-A24026-18


      conduct the actor reasonably believes to be necessary to avoid an
      imminent harm or evil to himself or another is justifiable if [(1)]
      the harm or evil sought to be avoided by such conduct is greater
      than that sought to be prevented by the law defining the offense
      charged[,] and (2) the [statute defining the offense does not]
      provide[] exceptions or defenses dealing with the specific situation
      involved[,] and a legislative purpose to exclude the justification
      claimed does not otherwise plainly appear.

Id. at 121-22. Robertson did not object.

      After deliberating for approximately one hour, the jury asked the court

to repeat the elements of fleeing and eluding a police officer. Id. at 129. The

court reinstructed the jury on the elements of that crime, but did not reinstruct

on the justification defense. Id. at 129-30. Robertson objected, and the court

explained that it did not reinstruct the jury on the justification defense because

the jury had only asked for the elements of fleeing and eluding, and not

justification. Id. at 132.

      The jury found Robertson guilty of fleeing and eluding an officer and

possession of drug paraphernalia. The trial court then found Robertson guilty

of the summary offenses of driving on a sidewalk, failure to stop at stop sign,

and failure to signal, but acquitted him of driving under the influence of a

controlled substance. The court then immediately sentenced Robertson to a

total of eight to twenty-three months’ incarceration followed by 12 months’

probation.

      On September 1, 2017, the trial court docketed receipt of Robertson’s

post-sentence motion. The motion was stamped as received by the Dauphin

County Clerk of Courts on August 29, 2017, and dated as mailed by Robertson


                                      -7-
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from prison on August 25, 2017. The court denied the motion on September

27, 2017, and Robertson filed a notice of appeal on October 10, 2017.

      Robertson raises the following issues:

      I. Did not the court err in denying [Robertson’s] Motion to
      Suppress when the police effected a seizure of [Robertson’s]
      person under Article 1, Section 8, of the Pennsylvania Constitution
      without reasonable suspicion and when [Robertson’s] subsequent
      flight and discarding of evidence is deemed not to constitute an
      abandonment under Article 1, Section 8, of the Pennsylvania
      Constitution?

      II. Was not the evidence insufficient to sustain a conviction for the
      offense of possessing drug paraphernalia?

      III. Did not the court err in failing to re-instruct the jury on the
      defense of justification when it re-instructed the jury on the
      elements of the offense of fleeing and eluding?

Robertson’s Br. at 6.

      On November 13, 2017, while this appeal was pending, Robertson filed

in this Court an “Application to Acknowledge August 25, 2017, as Date of Filing

of Post-Sentence Motion Pursuant to ‘Prisoner Mailbox Rule.’” According to

Robertson, the deadline for him to file his post-sentence motion was August

28, 2017. See Pa.R.Crim.P. 720(1) (allowing defendant ten days from date of

sentencing to file post-sentence motion); 1 Pa.C.S.A. § 1908 (providing that

when the last day of a period falls on a Saturday, Sunday, or holiday, it is

excluded from the computation of time). He asserts that he mailed his post-

sentence motion pro se from prison on August 25, 2016, and points out that

the trial court’s noting receipt of the motion on August 29 proves that he could

have mailed it no later than August 28, the due date. Robertson therefore


                                      -8-
J-A24026-18



argues that his motion should be deemed timely pursuant to the prisoner

mailbox rule. See Pa.R.A.P. 121(a) (providing that mailings from pro se

defendants in prison are deemed filed on the date that they are given to prison

authorities for mailing). The prisoner mailbox rule is clearly applicable to

Robertson’s mailing, and we therefore grant Robertson’s application.

      The more difficult question is whether the trial court properly

entertained his pro se post-sentence motion, such that Robertson’s Notice of

Appeal was timely. It is unclear from the certified record whether Robertson

had counsel when he submitted his pro se motion, and a trial court generally

may not consider      the   pro   se   filings   of a represented   party. See

Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010) (stating pro se filing of

a represented defendant was a “legal nullity”).

      Although Robertson had sought to represent himself at the outset of this

case, by the time of trial, he was represented by counsel, and counsel filed a

Pa.R.A.P. 1925(b) statement and appellate brief. Nothing in the certified

record suggests that Robertson knowingly, intelligently, and voluntarily

waived counsel for purposes of post-sentence motions. Nonetheless, the trial

court apparently did not think his post-sentence motion was a “legal nullity”

and ruled on it on the merits. Robertson relied on the entry of the order

disposing of that motion as triggering the 30-day clock for him to file an

appeal.

      It thus appears from the certified record that either Robertson

improperly lacked counsel at the post-sentence motion stage, or the trial

                                       -9-
J-A24026-18



court’s ruling on his motion misled him about the deadline for him to file his

appeal. Notably, neither the trial court nor the Commonwealth is of the opinion

that Robertson improperly engaged in hybrid representation such that his

appeal is untimely. Under the circumstances presented here, we will deem

Robertson’s appeal to be timely. See Commonwealth v. Leatherby, 116

A.3d 73, 79 (Pa.Super. 2015) (en banc).

                               I. Suppression

      In his first issue, Robertson argues that the police seized him when they

first blocked his car and shined a floodlight in his eyes. Robertson contends

that the seizure violated his rights under the federal and state Constitutions

because the police did not have reasonable suspicion at that time that he was

committing a crime. According to Robertson, when the officers blocked his car,

all they observed was someone sleeping in a legally parked car, who was

awakened by a floodlight. He argues that there were no signs of criminal

activity, such as indications that Robertson had recently been driving the car

or that the motor was running. Robertson argues that because the seizure

was illegal, the evidence recovered thereafter, including the bags of marijuana

that Robertson discarded, should be suppressed as tainted by the illegal

detention. See Robertson’s Br. at 33-35. Robertson further argues that the

seizure cannot be supported by the “community caretaking” exception to the

warrant requirement, because the police “lacked any objective basis to

believe” that Robertson “needed assistance.” See Robertson’s Reply Br. at 10.




                                    - 10 -
J-A24026-18



      We review the denial of a motion to suppress to determine whether the

certified record supports the factual findings of the suppression court, and

reverse only if there is an error in the legal conclusions drawn from those

factual findings. Commonwealth v. Gould, 187 A.3d 927, 934 (Pa.Super.),

appeal denied, 194 A.3d 1040 (Pa. 2018). Our standard of review of the trial

court’s legal conclusions is de novo, and the scope, plenary. Commonwealth

v. Wilmer, 194 A.3d 564, 567 (Pa. 2018).

      A warrantless seizure by the police violates a citizen’s constitutional

rights unless it is a brief detainment based on “reasonable suspicion that the

individual is or is about to be engaged in criminal activity” or qualifies under

certain established exceptions to the warrant requirement. Id. at 568. Police

interaction with a citizen rises to the level of a detainment or seizure when,

under an objective consideration of the circumstances, a reasonable person

would not believe he or she was free to leave. Commonwealth v.

Mulholland, 794 A.2d 398, 401 (Pa.Super. 2002). It is settled that a seizure

occurs when uniformed police purposefully park their vehicle in such a way as

to block the path of an occupied vehicle. See Gould, 187 A.3d at 936-37 &

n.9; Mulholland, 794 A.2d at 402.

      Here, the uncontradicted evidence established that Robertson’s vehicle

was unable to legally exit its parking space when the police pulled their SUV

alongside of it, shined the floodlight inside, rolled down the window, and asked

Robertson if he was all right. It was therefore at this moment that Robertson

was detained for purposes of our analysis. See Gould, 187 A.3d at 936-37 &

                                     - 11 -
J-A24026-18



n.9; Mulholland, 794 A.2d at 402. The trial court concluded that the police

had reasonable suspicion to support an investigatory detention after this initial

interaction. See Trial Court Opinion, filed, 12/15/17, at 8-9. However, we may

affirm the trial court on any basis. See Commonwealth v. Clouser, 998 A.2d

656, 661 n.3 (Pa.Super. 2010). Our de novo review leads us to the conclusion

that the officers’ actions were justified under the public servant exception.

      The public servant exception to the warrant requirement falls under the

umbrella of the “community caretaking doctrine.” Wilmer, 194 A.3d at 568-

69. Our Supreme Court has deemed this exception to apply when police

officers are “able to point to specific, objective, and articulable facts that would

reasonably suggest to an experienced officer that a citizen is in need of

assistance.” Commonwealth v. Livingstone, 174 A.3d 609, 634 (Pa. 2017).

The resulting actions of the police “must be independent from the detection,

investigation, and acquisition of criminal evidence” and “must be tailored to

rendering assistance or mitigating the peril.” Id. at 635. However, as the

standard is an objective one, “a coinciding subjective law enforcement concern

by the officer will not negate the validity of that search under the public

servant exception to the community caretaking doctrine.” Id. at 637. The

reasonableness inquiry must allow “for the fact that police officers are often

forced to make split-second judgments—in circumstances that are tense,

uncertain, and rapidly evolving,” and take into consideration “that a

combination of events each of which is mundane when viewed in isolation may

paint an alarming picture.” Commonwealth v. Coughlin, --- A.3d ----, 2018

                                      - 12 -
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PA Super 304, at 4 (Nov. 14, 2018) (en banc) (quoting Commonwealth v.

Ford, 175 A.3d 985, 990 (Pa.Super. 2017), appeal denied, 190 A.3d 580 (Pa.

2018)).3

       Here, Officer Fleagle testified that when he saw Robertson, who was

leaning back and motionless in his car at 3:45 a.m., he was concerned, based

on his 18 years’ experience as a police officer in Harrisburg, that Robertson

might be sick, might be dead, or might be under the influence of an intoxicant

that would prevent him from safely driving. N.T. (Suppression) at 11, 23-24.

We conclude that these are “specific, objective, and articulable facts that

would reasonably suggest to an experienced officer that a citizen is in need of

assistance.” Livingstone, 174 A.3d at 634–37. Accordingly, Officer Fleagle

pulled the police SUV alongside the car and shined a light inside. Under the

circumstances, we hold that this action was sufficiently tailored to further

investigate whether the occupants needed aid.


____________________________________________


3   As our Supreme Court acknowledged:

       The modern police officer is a jack-of-all-emergencies, with
       complex and multiple tasks to perform in addition to identifying
       and apprehending persons committing serious criminal offenses;
       by default or design he is also expected to aid individuals who are
       in danger of physical harm, assist those who cannot care for
       themselves, and provide other services on an emergency basis.
       To require reasonable suspicion of criminal activity before police
       can investigate and render assistance in these situations would
       severely hamstring their ability to protect and serve the public.

Livingstone, 174 A.3d at 628-29 (quoting Williams v. State, 962 A.2d 210,
216 (Del. 2008)) (internal quotation marks omitted).

                                          - 13 -
J-A24026-18



      Officer Fleagle testified that during the interaction that followed, while

he was shining the floodlight into the car, Robertson stared at him blankly,

with a “thousand-yard-stare,” did not lower his window, and did not answer

when Officer Fleagle asked if he was all right. N.T. (Suppression) at 11. Officer

Diaz also testified that Robertson and his passenger both had a “thousand-

yard stare,” and were “very slow with their movements.” Id. at 29. “[F]rom

the way [Robertson and the passenger] looked at [him],” Officer Diaz believed

the occupants to be intoxicated. Id. at 29, 43. These uncontradicted facts

reasonably suggested that the car’s occupants may have needed assistance

and that further investigation was warranted. Thus, the police parked their car

and attempted to further engage Robertson, to determine whether he and the

passenger were all right.

      Although the trial court credited the officers’ testimony that their

investigation was motivated by the desire to check on the welfare of the car’s

occupants, see Trial Ct. Op. at 5, 9, the credibility of their subjective intent of

the   officers   is not relevant   to    the     objective   reasonableness   query.

Livingstone, 174 A.3d at 637. Nor does the fact that the law enforcement

officers expressed a coinciding objective to search for signs of criminal activity

negate the reasonableness of their actions in this scenario. Id. Obviously,

rending assistance to a person incapacitated by drug use may result in the

discovery of evidence of crimes such as drug possession or driving under the

influence. That the police may discover such evidence in addition to offering




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assistance does not negate the obvious concern that a person debilitated by

drug use may need immediate medical attention.

       Robertson does not contest that after the police officers parked, exited

their vehicle, and tapped on his window, the officers’ interactions did not

render the necessary reasonable suspicion or probable cause to support their

further detainment of Robertson. Thus, we affirm the trial court’s denial of

Robertson’s suppression motion.

                                    II. Sufficiency

       In his second issue, Robertson argues that the plastic bags containing

marijuana were insufficient evidence to support a conviction of possession of

drug paraphernalia. Robertson cites Commonwealth v. Miller, 130 A.3d 1

(Pa.Super. 2015), in which we held that the burnt paper wrapping of a single

joint of marijuana did not constitute paraphernalia. Robertson further argues

that there was insufficient evidence to prove that Robertson possessed the

digital scale found in his vehicle, which was observed in the common area of

the vehicle, between him and the passenger. Robertson states that his mere

knowledge of the presence of the contraband was insufficient to prove he

constructively possessed it. See Robertson’s Br. at 38-41.4

       A challenge to the sufficiency of the evidence will not prevail when the

trial evidence, “and all reasonable inferences drawn from that evidence, when

____________________________________________


4 Robertson does not argue that the evidence was insufficient because the
officers did not introduce the scale as physical evidence at trial, or assert that
the scale did not qualify as paraphernalia under the statute.

                                          - 15 -
J-A24026-18



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.”

Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (quoting

Commonwealth        v.   Fears,   836    A.2d   52,   58-59   (Pa.   2003)).   The

Commonwealth may sustain its burden to prove each element of the charged

offenses through the use of wholly circumstantial evidence. Id. (citation

omitted). “Because evidentiary sufficiency is a question of law, our standard

of review is de novo and our scope of review is plenary.” Id. (citation omitted).

      We first address Robertson’s contention that two plastic bags containing

marijuana do not constitute drug paraphernalia under the statute. Robertson

was convicted of possession of drug paraphernalia under 35 P.S. § 780-

113(a)(32), which prohibits “[t]he use of, or possession with intent to use,

drug paraphernalia for the purpose of . . . packing, repacking, storing, [or]

containing . . . a controlled substance in violation of this act.” 35 P.S. § 780-

113(a)(32). “Drug paraphernalia” is defined by 35 P.S. § 780-102, as

      all equipment, products and materials of any kind which are used,
      intended for use or designed for use in . . . packaging,
      repackaging, storing, [or] containing . . . a controlled substance
      in violation of this act. It includes, but is not limited to:

                                        ...

         (9) Capsules, balloons, envelopes and other containers
         used, intended for use or designed for use in packaging
         small quantities of controlled substances.




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          (10) Containers and other objects used, intended for use or
          designed for use in storing or concealing controlled
          substances.

35 P.S. § 780-102.

       Because the statute explicitly includes containers intended for use in

packaging and storing small quantities of controlled substances,5 we conclude

that the plastic bags containing Robertson’s marijuana were contemplated by

the statute’s definition of drug paraphernalia. We are unpersuaded that Miller

demands a different result, as that case confronted only the question of

whether the statute’s definition of drug paraphernalia included the burning

paper encasing a single joint. See Miller, 130 A.3d at 6. Moreover, precedent

has established that the storage containers of controlled substances, including

bags     containing     marijuana,       constitute    paraphernalia.   See,    e.g.,

Commonwealth v. Caban, 60 A.3d 120, 133 (Pa.Super. 2012) (finding

cellophane in which marijuana was wrapped constituted paraphernalia),

overruled on other grounds by In re L.J., 79 A.3d 1073 (Pa. 2013);

Commonwealth v. Coleman, 984 A.2d 998, 1002 (Pa.Super. 2009) (holding

glass vials and glassine baggie containing drugs and sock they were stored in

were paraphernalia); Commonwealth v. Pitner, 928 A.2d 1104, 1109

(Pa.Super.     2007)     (holding     bag      containing   marijuana   qualified   as

paraphernalia).



____________________________________________


5 Under Subsection (a)(31), a small amount of marijuana is less than 30
grams. See 35 P.S. § 780-113(a)(31).

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      As we hold that the bags containing marijuana were sufficient evidence

of drug paraphernalia, we need not address Robertson’s argument that there

was insufficient evidence that he possessed the digital scale found in his car.

However, considering that the Commonwealth can prove that contraband was

both jointly and constructively possessed by showing that a defendant had

knowledge of the existence and location of contraband, see Commonwealth

v. Thompson, 428 A.2d 223, 224 (Pa.Super. 1981), and that “a jury need

not ignore presence, proximity and association” in determining whether the

defendant had knowledge of and power over the contraband found at the

scene, Commonwealth v. Vargas, 108 A.3d 858, 869 (Pa.Super. 2014) (en

banc) (citation omitted), we conclude that there was sufficient evidence that

Robertson constructively possessed the digital scale. Robertson’s mail was

scattered across the backseat of the vehicle, Robertson was driving the

vehicle, and Officer Diaz easily noticed the scale next to the stick shift.

Robertson’s challenges to the sufficiency of the evidence of possession of drug

paraphernalia are without merit.

                           III. Jury Instructions

      In his final issue, Roberson argues that the trial court erred in refusing

to re-instruct the jury on the justification defense when it re-charged the jury

on the elements of the corresponding crime of fleeing and eluding. According

to Robertson, it was fundamentally unfair to explain the elements of the crime

without also explaining what negates those elements. Robertson also




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complains that the court erroneously believed it was not permitted to

reinstruct on a point that the jury did not specifically request.

      We review the denial of a request to give a jury instruction for whether

the court abused its discretion or committed an error of law. See

Commonwealth v. Phillips, 946 A.2d 103, 110 (Pa.Super. 2008).

      Robertson has set forth no authority establishing that the jury must be

reinstructed on the elements of a defense when it reinstructed on the elements

of the corresponding crime. And we are not persuaded that the result here

was fundamentally unfair, where the jury submitted a total of five questions

to the court, none of which displayed confusion regarding the court’s earlier

explanation of the justification defense.

      We are instead guided by this Court’s decision in Commonwealth v.

Akers, 572 A.2d 746 (Pa.Super. 1990). In that case, during deliberations, the

jury requested that the trial court repeat the instructions regarding first and

second degree murder. Akers, 572 A.2d at 755. The trial court declined the

defendant’s request “to recharge the jury on all degrees of homicide.” Id. We

reiterated that a trial court “may properly confine supplemental instructions

to the particular question asked by the jury despite a defendant’s request for

additional instructions.” Id. (quoting Commonwealth v. Haddle, 413 A.2d

735, 738 (Pa.Super. 1979)). We held that there was “no abuse of discretion

in the trial court’s confining its supplemental instructions to the specific areas

of the jury’s inquiry.” Id. Here, the decision whether to reinstruct the jury on




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the defense of justification was within the purview of the trial court, and we

discern no abuse of discretion.

      Having found no basis on which to provide relief, we affirm Robertson’s

judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/05/2019




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