J-S53024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DESHUNA CROSBY,

                            Appellant                  No. 231 WDA 2014


           Appeal from the Judgment of Sentence of January 10, 2014
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000941-2013


BEFORE: DONOHUE, OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                           FILED OCTOBER 30, 2014

       Appellant, Deshuna Crosby,1 appeals from the judgment of sentence

entered on January 10, 2014, following her jury trial convictions for two

counts each of possession with intent to deliver a controlled substance

(PWID) and possession of a controlled substance, and one count each of

endangering the welfare of a child, possession of drug paraphernalia, and

conspiracy.2 We affirm.

       The trial court set forth the facts and procedural history of this case as

follows:
____________________________________________


1
  Appellant was tried jointly with her co-defendant, Michael Ray James.
James is currently appealing his judgment of sentence in a companion case,
318 WDA 2014.
2
   35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), 18 Pa.C.S.A.
§ 4304, 35 P.S. § 780-113(a)(32), and 18 Pa.C.S.A. § 903, respectively.



*Retired Senior Judge assigned to the Superior Court.
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          On February 12, 2013, Appellant and a co-conspirator,
       Michael Ray James, were found by the U.S. Marshall’s
       Fugitive Task Force in Room 327 of the Wyngate Hotel in
       Summit Township[, Pennsylvania]. The Task Force was
       serving an arrest warrant on James after receiving a tip that
       James was at the hotel.

          When the Task Force arrived to serve the arrest
       warrant, the officers knocked and announced their
       presence. After a short delay, James answered the door,
       stepped into the corridor and was placed in handcuffs.

           Still inside the hotel room was Appellant and her four-
       month old infant. James claims to be the father of the
       child.    The officers directed Appellant to step into the
       hallway. Appellant initially ignored the request, walked
       back into the room, picked up [a] car seat with the infant
       [in it], a baby bag and a coat. Appellant then exited the
       room with the baby and other items.

            Appellant was asked whether she had anything illegal or
       any weapons. Appellant denied possession of anything
       illegal and denied having weapons.         Appellant began
       voluntarily emptying her pockets. The officers asked her if
       they could search the car seat. Appellant [] lifted the baby
       from the car seat. In the car seat, the officers found three
       baggies of white and/or tan substances later identified as
       53.6 grams of heroin and 128.9 grams of cocaine. There
       were two bags of cocaine and one bag of heroin.

          When James realized the drugs were discovered, he
       exclaimed, “-- those aren’t hers. They’re mine. That’s not
       hers. It’s mine.” At trial, James testified that he knew the
       drugs were in the room and admitted that he was in
       possession of the drugs. James admitted to being a drug
       dealer of marijuana.

           Upon a search of her person, the police found almost
       $2[,]600.00 hidden inside Appellant’s bra. Appellant was
       unemployed. Appellant was in the Erie County Prison Work
       Release Program and only had permission to leave the
       prison to apply for jobs on that day.


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             A digital scale used for weighing drugs and plastic
         baggies used for packaging drugs were found in plain view
         in the hotel room on top of the microwave. No drug
         paraphernalia for immediate use of the drugs was found in
         the hotel room or on the person of Appellant or James.
         Appellant denied using the drugs which were found or
         possessing any paraphernalia for drug usage. There was no
         evidence found to suggest that any other persons had been
         in the room using the drugs as opposed to selling them.

             After a [joint] jury trial [with co-conspirator James] on
         November 12th and 13th, 2013, Appellant was found guilty
         [of the aforementioned charges].

                                *          *     *

         Appellant was sentenced on January 10, 2014 [to an
         aggregate sentence of 7½ - 16 years of imprisonment].
         Appellant filed a [m]otion to [r]econsider [s]entence which
         was denied by [o]rder on January 13, 2014. A [n]otice of
         [a]ppeal was filed [on] February 6, 2014. Appellant filed a
         [Pa.R.A.P.] 1925(b) [c]oncise [s]tatement of [errors] on
         [a]ppeal on February 25, 2014.

Trial Court Opinion, 3/25/2014, at 1-3 (record citations omitted).3

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

         1. The [trial] court erred in denying [Appellant’s] pretrial
            motions when it ruled that the police did not violate
            [Appellant’s] constitutional rights when the search was
            not based on reasonable suspicion and/or probable
            cause.

         2. The verdict in this case goes again[s]t the sufficiency of
            the evidence when the evidence failed to establish that
____________________________________________


3
   Judge William R. Cunningham authored the March 25, 2014 opinion. On
March 27, 2014, Judge Ernest J. DiSantis, Jr. authored a supplemental
opinion pursuant to Pa.R.A.P. 1925(a) addressing Appellant’s suppression
issue, because Judge DiSantis presided over Appellant’s omnibus pretrial
motions.



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             [Appellant] acted knowingly and/or intentionally for each
             of the criminal charges.

           3. The sentence in this case was manifestly excessive and
              clearly unreasonable, especially in its consecutiveness.

Appellant’s Brief at 2 (numbers added and superfluous capitalization

omitted).

      In her first issue presented, Appellant argues that the suppression

court erred by failing to suppress the physical evidence obtained by police,

because “[t]he [o]fficers did not have a legal basis to search [Appellant], her

car seat or the hotel room.”       Id. at 7.    She argues that she had an

expectation of privacy in the baby car seat.      Id. at 8.   She claims that

“officers went to the hotel room to execute an arrest warrant of another

person without reasonable suspicion or probable cause that criminal activity

was afoot” and “had no reason to believe that [Appellant] was armed at the

time of the search[.]” Id. at 7. Appellant avers, “[b]oth individuals were in

custody at the time of the search and neither presented a danger to the

officers or a flight risk.” Id. at 8. In the alternative, Appellant maintains

that she “was not under arrest [at the time of the search] and it was not

until later that the officers were instructed to take [Appellant] to the Erie

County Prison” for violating the terms of her work release. Id. at 8-9.

      Our standard of review of an order denying suppression motion is well-

settled:

           We are limited to determining whether the lower court's
           factual findings are supported by the record and whether
           the legal conclusions drawn therefrom are correct. We may


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          consider the evidence of the witnesses offered by the
          Commonwealth, as [the prevailing party], and only so much
          of the evidence presented by [the] defense that is not
          contradicted when examined in the context of the record as
          a whole. We are bound by facts supported by the record
          and may reverse only if the legal conclusions reached by the
          court were erroneous.

Commonwealth v. Landis, 89 A.3d 694, 702 (Pa. Super. 2014) (citation

omitted).

     Here, the suppression court determined the search was constitutionally

permissible and, thus, suppression was unwarranted.       Trial Court Opinion,

3/27/2014, at 3-7. More specifically, the suppression court concluded that

prior to executing the arrest warrant for co-defendant James, police had

information that Appellant was in the hotel room with him and that she was

in violation of the terms of her work release.       Id. at 6-7.   Thus, “her

violation of the work release pass justified the Task Force members to take

her into custody” and because the officers lawfully arrested her, the search

was permissible and conducted incident to the arrest. Id. at 7. Moreover,

the suppression court determined that Appellant voluntarily consented to the

search.     Id. at 6.   The suppression court further concluded the narcotics

would have been admissible under the inevitable discovery doctrine. Id. at

7.




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       We agree, albeit on slightly different grounds.4 The police knew that

Appellant was in an unauthorized location in violation of the terms of her

work release when they executed the arrest warrant for James.             N.T.,

9/30/2013, at 4-6, 8-9, 14-15, 17-22. “[A] participant in [a] work release

program, [] remain[s] in the official detention of the Commonwealth.”

Commonwealth v. Brown, 396 A.2d 377, 379 (Pa. Super. 1978).               “The

county jail officials may detain and recommit [a work-release] offender or

preclude the offender from leaving the county jail if the offender violates the

conditions set by the jail officials or the court[.]” 42 Pa.C.S.A. § 9813(c).

Our Supreme Court has ruled that a person under Commonwealth

supervision, such as a probationer or parolee (or, in this case, a person

supervised on work release), enjoys a reduced scope of privacy rights, but

must still be afforded the protections of the Constitutions of the United

States and Pennsylvania.          See Commonwealth v. Williams, 692 A.2d

1031, 1035 (Pa. 1997).          We have previously determined that before law

enforcement may search a supervisee’s person, the officer must articulate a

reasonable suspicion that the person violated the terms of her supervision or

was involved in further wrongdoing.              Id. (“A search will be deemed

reasonable if the totality of the evidence demonstrates: (1) that the parole


____________________________________________


4
 We can affirm the trial court on any valid basis.          Commonwealth v.
Kemp, 961 A.2d 1247, 1254 n.3 (Pa. Super. 2008).




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officer had a reasonable suspicion that the parolee had committed a parole

violation, and (2) that the search was reasonably related to the parole

officer's duty.”); see also In re J.E., 907 A.2d 1114, 1121-1122 (Pa.

Super. 2006).

      Here, prior to the search, the director of the work release program

advised police officers that Appellant was only authorized to submit job

applications and that she was not permitted to go to James’ hotel.                N.T.,

9/30/2013, at 8, 14- 16.     Because “her whereabouts were not known to the

Erie County Jail[,]” Appellant was in “violation of her work release and not

abiding by the rules that were set for her when she was released to go and

apply for positions.” Id. at 14-16. Accordingly, because police articulated a

reasonable    suspicion   that    Appellant   had   violated   the   terms   of    her

supervision, the search and her arrest were constitutionally permissible.

      We also conclude that the search of the infant’s car seat passes

constitutional muster. We point out initially that Appellant does not challenge

the trial court’s determination that she impliedly, voluntarily consented to

the search.     “[A]ctual consent, implied consent, search incident to lawful

arrest, and exigent circumstances may negate the necessity of obtaining a

warrant before conducting a search.” Commonwealth v. Riedel, 651 A.2d

135, 139 (Pa. 1994).             “[T]he Commonwealth bears the burden of

establishing that a consent is the product of an essentially free and

unconstrained choice—not the result of duress or coercion, express or

implied, or a will overborne—under the totality of the circumstances.”

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Commonwealth v. Caban, 60 A.3d 120, 130 (Pa. Super. 2012).                     Here,

there was evidence that when asked if police could search her, Appellant

“voluntarily began to empty her pockets” and she “voluntarily bent over,

pulled the baby out and let [the officer] look at the car seat.”                N.T.,

9/30/2013, at 9. While she did not verbally reply, Appellant’s actions show

implied consent. Upon review of the certified record, there is no additional

evidence that Appellant was under undue police coercion or duress at the

time of the search. For all of the foregoing reasons, Appellant’s first issue

lacks merit.

      In her second issue presented, Appellant claims the Commonwealth

did not prove her convictions with sufficient evidence, because the

Commonwealth      did   not      establish   that   Appellant   acted   knowingly   or

intentionally. Appellant’s Brief at 9. The entire sum of Appellant’s argument

in this regard, is as follows:

             In this case, the trial court maintains that while a digital
         scale used for weighing drugs and baggies used for
         packaging drugs was found in the hotel room, no
         paraphernalia for ingesting the drugs was located. Further,
         [Appellant] denied using the drugs. However, since another
         person was present in the hotel room, the evidence in this
         case does not prove that [Appellant] possessed illegal
         substances with the intent to deliver them to anyone else.

Id. at 9.

      Our standard of review for a challenge to the sufficiency of the

evidence is well-settled:




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J-S53024-14


        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
        element of the crime beyond a reasonable doubt. In
        applying the above test, we may not weigh the evidence
        and substitute our judgment for 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
        finder 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. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014) (citation

omitted).

     Primarily, we note that Appellant sets forth a blanket sufficiency

challenge to all of her convictions.   In Commonwealth v. Williams, 959

A.2d 1252 (Pa. Super. 2008), this Court reiterated that when challenging the

sufficiency of the evidence on appeal, Appellant's Pa.R.A.P. 1925(b)

statement must “specify the element or elements upon which the evidence

was insufficient” in order to preserve the issue for appeal.   Williams, 959

A.2d at 1257. “Such specificity is of particular importance in cases where,

as here, the Appellant was convicted of multiple crimes each of which

contains numerous elements that the Commonwealth must prove beyond a

reasonable doubt.” Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.

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J-S53024-14



Super. 2009). Here, Appellant only specified that “the evidence presented

was insufficient to establish that [Appellant] acted knowingly and/or

intentionally for each of the criminal charges that she faced at trial.” Rule

1925(b) Statement 2/25/2014, at 3.

      Further, on appeal, Appellant's sufficiency of the evidence argument is

underdeveloped. Appellant challenges all of her convictions based upon

scienter. However, she does not set forth the elements of the crimes she

was convicted. While Appellant does set out the standard of review for

sufficiency of the evidence claims, her argument is otherwise without citation

to any legal authority. For these reasons, we could find the claim waived.

      However, the thrust of her argument is clear. Appellant is challenging

her two PWID convictions.     Pursuant to 35 P.S. § § 780-113, the following

acts are prohibited:

        (30) Except as authorized by this act, the manufacture,
        delivery, or possession with intent to manufacture or
        deliver, a controlled substance by a person not registered
        under this act, or a practitioner not registered or licensed by
        the appropriate State board, or knowingly creating,
        delivering or possessing with intent to deliver, a counterfeit
        controlled substance.

35 P.S. § 780-113(a)(30).

      “[I]n order to prevail on a charge of possession of a controlled

substance with intent to deliver, the Commonwealth must prove, beyond a

reasonable doubt, that the accused possessed a controlled substance and

that the accused had the intent to deliver the controlled substance.



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Commonwealth v. Taylor, 33 A.3d 1283, 1288 (Pa. Super. 2011)

(emphasis in original).

      Regarding possession, a person may have actual or constructive

possession of contraband. Constructive possession is defined as follows:

        [c]onstructive 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. Muniz, 5 A.3d 345, 348-349 (Pa. Super. 2010) (citation

omitted).    “Additionally, it is possible for two people to have joint

constructive possession of an item of contraband.”     Commonwealth v.

Hopkins, 67 A.3d 817, 820-821 (Pa. Super. 2013) (citation omitted). Here,

the Commonwealth presented evidence that Appellant was holding the

infant’s car seat from which the narcotics were recovered.         Thus, the

element of possession is clearly satisfied.

      Regarding intent to deliver, our Supreme Court has stated:

        When the quantity of the controlled substance is not
        dispositive as to the intent, the court may look to other
        factors including 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.

Id., citing Commonwealth v. Ratsamy, 934 A.2d 1233, 1237–1238 (Pa.

2007) (brackets and ellipsis omitted).



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     Here, the trial court noted:

          In this case, the cocaine and heroin were packaged into
          three different plastic baggies. The large quantities of drugs
          found were beyond that needed for personal use. A scale
          for weighing drugs and plastic baggies for packaging drugs
          were in plain view in the hotel room. The purpose of these
          items was to weigh and package heroin for retail sales.
          There was no evidence of any drug paraphernalia used for
          taking drugs. Both Appellant and James were unemployed,
          yet Appellant had approximately $2,600.00 in cash hidden
          on her person.

Trial Court Opinion, 3/25/2014, at 8.

     We agree with the trial court that the evidence points unmistakably to

PWID.     Appellant was carrying a sizeable amount of narcotics in a baby

carrier and $2,600.00 in cash inside her bra. Those items were clearly in

her possession at the time of the search. Moreover, the narcotics were not

packaged for individual use and police did not find paraphernalia commonly

used for personal consumption.       The scales and packaging material were

found inside the hotel room with Appellant and James; thus, Appellant had

joint constructive possession of those items.        These items are used for

packaging controlled substances for delivery. Based upon a totality of the

circumstances, we conclude that there was sufficient evidence to support

Appellant’s convictions for PWID.       As such, Appellant’s second issue is

without merit.

     Finally, Appellant contends that her sentence is excessive. Appellant’s

Brief at 9-11. We find this issue waived, but otherwise not subject to our

review.    In her Rule 1925(b) statement, Appellant claimed that the trial


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court abused its discretion by sentencing her on the endangering the welfare

of a child conviction consecutively to her PWID convictions. Rule 1925(b)

Statement 2/25/2014, at 3. On appeal, Appellant argues that the trial court

failed to individualize her sentence and take her age and the fact that she is

a mother into consideration.     Appellant’s Brief at 10.      Appellant did not

present that issue in her Rule 1925(b) statement and cannot raise a new

theory in support of her sentencing claim on appeal.              See Pa.R.A.P.

1925(b)(4)(vii); Pa.R.A.P. 302(a).         Thus, Appellant has not properly

presented that issue for our review.

      Moreover,    Appellant   challenges       the   discretionary   aspects   of

sentencing:

        The right to appellate review of the discretionary aspects of
        a sentence is not absolute, and must be considered a
        petition for permission to appeal. An appellant must satisfy
        a four-part test to invoke this Court's jurisdiction when
        challenging the discretionary aspects of a sentence.

        We conduct a four-part analysis to determine: (1) whether
        appellant has filed a timely notice of appeal; (2) whether
        the issue was properly preserved at sentencing or in a
        motion to reconsider and modify sentence; (3) whether
        appellant's brief has a fatal defect; and (4) whether there is
        a substantial question that the sentence appealed from is
        not appropriate under the Sentencing Code.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265-1266 (Pa. Super.

2014) (internal citations omitted).

      Appellant fulfilled the first two elements by filing a timely notice of

appeal, and by preserving her claim in a motion for modification of sentence.



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Appellant also met the third element because her brief contains the

necessary concise statement of the reasons relied upon for appeal.

Therefore, we must determine if Appellant's challenge to the discretionary

aspect of her sentence raises a substantial question.

      “Generally speaking, the court's exercise of discretion in imposing

consecutive as opposed to concurrent sentences is not viewed as raising a

substantial question that would allow the granting of allowance of appeal.”

Commonwealth v. Mastromarino, 2 A.3d 581, 586 (Pa. Super. 2010)

(citation omitted).   “[T]he key to resolving the preliminary substantial

question inquiry is whether the decision to sentence consecutively raises the

aggregate sentence to, what appears upon its face to be, an excessive level

in light of the criminal conduct at issue in the case.” Id. at 587. Here, the

aggregate sentence of 7½ - 16 years of imprisonment is not facially

excessive for the criminal conduct involved which included two PWID

convictions, two possession of a controlled substance convictions, and

individual convictions for endangering the welfare of a child, possession of

drug paraphernalia, and conspiracy.

      Appellant’s Rule 2119(f) statement alleges that her sentence was

contrary to fundamental norms underlying the sentencing process because it

was not “individual.”    She also claims that her sentence violated 42

Pa.C.S.A. § 9781 since it was clearly unreasonable. We are not persuaded

that these bald allegations raised a substantial question within the

contemplation of our prior cases. “An allegation that the sentencing court

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failed to consider certain mitigating factors generally does not necessarily

raise a substantial question.”    Commonwealth v. Moury, 992 A.2d 162,

171 (Pa. Super. 2010) (citations omitted). “When imposing a sentence, a

court is required to consider the particular circumstances of the offense and

the character of the defendant.” Id. (citation omitted). “In particular, the

court should refer to the defendant's prior criminal record, [her] age,

personal characteristics and [her] potential for rehabilitation.” Id.      “Where

the sentencing court had the benefit of a presentence investigation report

(PSI), we can assume the sentencing court was aware of relevant

information   regarding   the    defendant's   character   and   weighed    those

considerations along with mitigating statutory factors.”           Id. (internal

quotations and citation omitted). Here, the sentencing court had the benefit

of a PSI report.   N.T., 1/10/2014, at 10.      Hence, for all of the foregoing

reasons, Appellant has waived her sentencing challenge and she has failed

to present a substantial issue to invoke our discretionary review of her

sentence. Accordingly, Appellant’s third claim does not merit review.

      Judgment of sentence affirmed.

      Judge Donohue joins the memorandum.

      Judge Platt concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2014




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