J-S29034-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                  Appellee                :
          v.                              :
                                          :
DANIEL J. STEWART,                        :
                                          :
                  Appellant               :   No. 1811 WDA 2014

     Appeal from the Judgment of Sentence Entered October 15, 2014,
              in the Court of Common Pleas of Fayette County,
             Criminal Division, at No: CP-26-CR-0001886-2013

BEFORE:        PANELLA, MUNDY, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                        FILED JULY 15, 2015

      Daniel J. Stewart (Appellant) appeals from his October 15, 2014

judgment of sentence of five to fifteen years of incarceration, entered after a

jury found him guilty of possession of a controlled substance and possession

with intent to deliver a controlled substance (PWID).     Although we affirm

Appellant’s convictions, we vacate his judgment of sentence and remand for

resentencing.

      The jury received the following evidence during Appellant’s trial. On

October 4, 2013, Masontown Police Officer Thomas O’Barto encountered a

Jeep with no registration stickers and a missing fender. After Officer O’Barto

pulled behind the vehicle with his emergency lights activated, the Jeep

pulled into the lot for a gas station/convenience store. The front passenger

door of the Jeep began to open before the Jeep came to a stop, and the

front passenger leapt from the vehicle toward the entrance to the

*Retired Senior Judge assigned to the Superior Court.
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convenience store. Officer O’Barto yelled for him to get back into the car;

after hesitating and bending over, the man complied.

     Officer O’Barto called for backup after he determined that there were

five people in the Jeep: Chad Workman, the front passenger who had

jumped from the vehicle; Stephanie Workman, who was driving the car;

Christopher Workman, who was in the back seat behind the driver; Jasmine

Workman, the owner of the Jeep, who was in the middle back seat; and

Appellant, who was in the back seat behind the front passenger.         Backup

from the Masontown and Brownsville police departments arrived, including

Officer Alexis Metros.   The officers removed the individuals from the Jeep

one at a time, and Officer O’Barto obtained permission from Jasmine

Workman to search the vehicle.

     During the search, Officer O’Barto found a box of plastic baggies in a

seat compartment directly in front of where Appellant had been sitting, and

a digital scale in the area behind Appellant’s head. Upon being questioned

by Officer O’Barto about these items, Chad Workman indicated that they

were headed to Masontown to sell the cocaine that Appellant had in his

possession. Thereafter, all five occupants of the Jeep were arrested.

     While Officer Metros was transporting Appellant to the police station,

she noticed that “[h]e was fidgeting a lot with his hands towards his

buttocks area. He kept like pushing up in the seat, moving around.” Id. at




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18.   When she removed Appellant from the vehicle at the detention area,

Officer Metros noticed “a white powdery substance” on the seat of the car

where Appellant had been sitting. Id. at 16.

      Inside the detention center, the three men were shackled to a bench,

with Christopher Workman at one end, Chad Workman in the middle, and

Appellant at the other end. Officers O’Barto and Metros informed the men

that the room was being videoed; the two women were taken to an

interrogation room.    When Officer Metros returned, she saw two baggies

containing white power located on the bench between Appellant and Chad

Workman. The video showed that Chad Workman’s hands had been in clear

view and empty during the lapsed time, while Appellant had moved a lot and

pulled something from behind his back. Officer Metros took the baggies to

Officer O’Barto, who performed a field test that indicated the presence of

cocaine in each bag.    Subsequent testing by the state crime lab revealed

that the bags respectively contained 13.29 and 29.9 grams of cocaine.

      Testifying in his defense, Appellant asserted that Christopher Workman

had been the one sitting in the rear, passenger-side seat of the Jeep where

the paraphernalia was found. Appellant also insisted that, upon learning of

Chad Workman’s claim that Appellant possessed cocaine, he denied it to

Officer O’Barto. Finally, Appellant maintained that the baggies recovered in

the detention area were not his; rather, while shackled to the bench in the




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detention    area,   Appellant   heard   a   noise,   noticed   the   baggies,   and

immediately stood up and called for the police.

      Upon the above evidence, the jury found Appellant guilty of one count

each of possession and PWID, and the trial court sentenced him as

previously indicated.     Appellant’s timely-filed post-sentence motion was

denied, and he timely filed a notice of appeal to this Court.

      Appellant presents five1 questions for our consideration, which we

have re-ordered for ease of disposition:

      [1.]   Did the Commonwealth establish, beyond a reasonable
             doubt, both that [Appellant] possessed the two baggies of
             cocaine and possessed the baggies with the intent to
             deliver?

      [2.]   Did the suppression court err in denying [Appellant’s]
             omnibus pre-trial motion in the nature of a motion to
             suppress evidence and dismiss the charges[?]

      [3.]   Did the trial court err in permitting Officer Metros [to]
             testify that she observed a white substance on the rear
             seat of her police [cruiser] after transporting [Appellant] to
             the Masontown Police Station, when the substance was
             never tested for any drug residue?

      [4.]   Did the trial court err in permitting Officer O’Barto to
             present hearsay statements made by Chad Workman, Sr.
             during his rebuttal testimony?

      [5.]   Did the trial court err in denying [Appellant’s] post
             sentence motion [] to modify sentence as 18 Pa.C.S.[]
             § 7508 follows an unconstitutional sentencing scheme?

1
 Appellant lists a sixth question in his Statement of Questions Involved, but
subsequently indicates that he is not pursuing the issue on appeal.
Appellant’s Brief at 7, 11.


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Appellant’s Brief at 7 (unnecessary capitalization omitted).

      We first consider Appellant’s claim that the Commonwealth offered

insufficient evidence to prove his possession, and possession with intent to

deliver, the baggies of cocaine.

             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. Further, in viewing the evidence in
      the light most favorable to the Commonwealth as the verdict
      winner, the court must give the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (internal

quotation marks and citations omitted).

      Appellant claims that the “Commonwealth failed to produce sufficient

evidence to connect Appellant to the two baggies of cocaine.”      Appellant’s

Brief at 16.   He asserts that the Commonwealth’s case depended wholly




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upon the surveillance video of the detention room, which “is inconclusive at

best.” Id. We disagree.

      The trial court properly determined that the circumstantial evidence

allowed the jury to conclude beyond a reasonable doubt that Appellant had

possessed the baggies of cocaine.     Specifically, “Appellant’s possession of

the controlled substances is supported by: (1) his proximity to the same;

and (2) the surveillance which showed Appellant at the detention center

sitting on the bench, fidgeting a lot, pulling something from the rear, moving

further away and immediately standing up after his movements.” Trial Court

Opinion, 1/23/2015, at 13.     Furthermore, the jury heard the additional

circumstantial evidence of Appellant’s fidgeting and reaching towards his

rear in Officer Metros’ car, and her finding white powder on the seat

afterwards.    This totality of circumstances, viewed in the light most

favorable to the Commonwealth, supports the finding that Appellant

possessed the baggies of cocaine.          See, e.g., Commonwealth v.

Thompson, 93 A.3d 478, 489-90 (Pa. Super. 2014) (rejecting sufficiency

challenge where evidence, inter alia, that the appellant tossed a plastic

baggie into a vehicle allowed the jury to infer reasonably that the appellant

had actual possession of the contraband later recovered from the possession

of a person in the vehicle).




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      Appellant also claims that the Commonwealth offered insufficient

evidence to prove intent to deliver, noting that the cocaine was “not

individually wrapped for sale[,]” that the scale and baggies recovered from

the Jeep “were not in plain view and were accessible to all passengers in the

car[,]” and that Appellant “was found to be without any cash or weapons.”

Appellant’s Brief at 17.

      Appellant presents the evidence most favorable to him, and ignores

the evidence favorable to the Commonwealth. As the trial court explained:

             Officer O’Barto’s expert testimony along with the quantity
      of drugs and the presence of packing materials and digital
      sca[l]e established intent to deliver beyond a reasonable doubt.
      At trial, Officer O’Barto, an officer with twenty-four years of law
      enforcement experience including [as] a member of the Fayette
      County Drug Task Force, was admitted without objection as an
      expert in the field of narcotics investigation. Additionally, he has
      been qualified as in expert in the Commonwealth of Pennsylvania
      in the field of narcotics investigation over twenty times.

            Officer O’Barto testified the packing materials, the digital
      scale, and the amount of cocaine found in close proximity to
      Appellant indicated to him that Appellant had the intent to
      deliver the cocaine. Specifically, Officer O’Barto testified that a
      person does not possess over 40 grams of cocaine with the
      presence of a box and baggies and a digital scale merely for
      personal use. Rather, a drug dealer uses the digital scale to
      weigh down the cocaine to hundredths of a gram and then
      packages the weighed[-]out cocaine into baggies to sell.

Trial Court Opinion, 1/23/2015, at 14 (citations and repetition of quantities

in numeral form omitted).     The jury was free to believe Officer O’Barto’s

testimony   and   discredit   the   evidence   to   which   Appellant   pointed.




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Accordingly, the evidence was sufficient to prove beyond a reasonable doubt

that Appellant possessed the cocaine with the intent to deliver it. See, e.g.,

Commonwealth       v.   Little,   879   A.2d   293,   298   (Pa.   Super.   2005)

(“[P]ossession with intent to deliver can be inferred from the quantity of the

drugs possessed by Little in his residence along with the numerous items of

drug paraphernalia the officers recovered.”).

      Appellant next argues that the suppression court erred in denying his

motion to suppress evidence.

            [I]n addressing a challenge to a trial court’s denial of a
      suppression motion [we are] limited to determining whether the
      factual findings are supported by the record and whether the
      legal conclusions drawn from those facts are correct. Since the
      [Commonwealth] prevailed in the suppression court, we may
      consider only the evidence of the [Commonwealth] and so much
      of the evidence for the defense as remains uncontradicted when
      read in the context of the record as a whole. Where the record
      supports the factual findings of the trial court, we are bound by
      those facts and may reverse only if the legal conclusions drawn
      therefrom are in error.

Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa. Super. 2010) (citation

omitted). “It is within the suppression court’s sole province as fact[-]finder

to pass on the credibility of witnesses and the weight to be given their

testimony.” Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super.

2003) (citation omitted).

      Appellant’s suppression argument is as follows.

           Officer O’Barto lacked the necessary probable cause to
      take Appellant into custody. The record clearly demonstrates



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      that there were four other individuals inside the vehicle with
      Appellant. During a search of the vehicle, [Officer] O’Barto
      discovered a box of plastic baggies and a digital scale. The
      items were discovered in a common area and each of the
      individuals had equal access to them. The officer should not
      have taken Appellant into custody.

Appellant’s Brief at 18.

      “The police have probable cause where the facts and circumstances

within the officer’s knowledge are sufficient to warrant a person of

reasonable caution in the belief that an offense has been or is being

committed.”    Commonwealth v. Hernandez, 935 A.2d 1275, 1284 (Pa.

2007) (quotation and citations omitted).    “We evaluate probable cause by

considering all relevant facts under a totality of circumstances analysis.” Id.

Additionally, “[o]ne or more actors may jointly constructive[ly] possess an

item if it is found in an area of joint control and equal access.”

Commonwealth v. Kinard, 95 A.3d 279, 295 (Pa. Super. 2014).

      Officer O’Barto’s finding of drug paraphernalia to which Appellant had

not only joint access, but primary access given where he had been sitting in

the car, coupled with Chad Workman’s indication that Appellant was part of

a conspiracy to sell cocaine which Appellant possessed in his pants, clearly

was sufficient to warrant a person of reasonable caution that Appellant was

committing an offense.     See, e.g., Commonwealth v. Stembridge, 579

A.2d 901, 905 (Pa. 1990) (affirming conviction following arrest for

possession of controlled substances where the appellant’s “access to and



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control over the area in which the contraband was found was greater than

that of the driver and the other passenger”).         Accordingly, Appellant’s

argument is meritless.

      Appellant’s next two issues concern the trial court’s evidentiary

rulings. We consider them mindful of the following.

             The standard of review for a trial court’s evidentiary
      rulings is narrow. The admissibility of evidence is solely within
      the discretion of the trial court and will be reversed only if the
      trial court has abused its discretion. An abuse of discretion is
      not merely an error of judgment, but is rather the overriding or
      misapplication of the law, or the exercise of judgment that is
      manifestly unreasonable, or the result of bias, prejudice, ill-will
      or partiality, as shown by the evidence of record.

Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (quoting

Commonwealth v. Hanford, 937 A.2d 1094, 1098 (Pa. Super. 2007)).

      Appellant first contends that Officer Metros should not have been

permitted to testify about the white substance she noticed in the police

cruiser where Appellant had been sitting because she had no idea what the

substance was, and it was never tested by a chemist. Appellant’s Brief at

10.

      Officer Metros did not testify that Appellant left cocaine residue on the

seat behind him; she testified that there was a white powder present on the

seat when he got out of the vehicle that had not been there before. N.T.,

10/7-8/2014, at 15-16.      This was relevant circumstantial evidence that

Appellant had been the one who had possessed the bags of cocaine



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ultimately recovered in the detention area.            See Trial Court Opinion,

1/23/2015,    at   7   (discussing   the   probative   value   of   Officer   Metros’

testimony). Appellant has failed to cite any authority for the proposition that

admission of this relevant evidence was in any way an abuse of discretion.

Accordingly, he is entitled to no relief on this issue.                 See, e.g.,

Commonwealth v. Christine, 78 A.3d 1, 4 (Pa. Super. 2013) (en banc)

(opinion in support of affirmance) (quoting Commonwealth v. Bryant, 67

A.3d 716, 726 (Pa. 2013)) (“We will reverse a trial court’s decision as to

admissibility of evidence only if the appellant sustains the heavy burden to

show that the trial court has abused its discretion.”).

      Appellant next argues that the trial court erred in allowing Officer

O’Barto to testify on rebuttal about Chad Workman’s statements. On direct

examination by the Commonwealth, Officer O’Barto began to testify about

what Chad Workman had told him after the search of the vehicle, but the

trial court sustained Appellant’s hearsay objection.       N.T., 10/7-8/2014, at

56.   While later testifying in his defense, Appellant offered the following

testimony:

      … Officer O’Barto was talking to Chad, and then he come up to
      the police car I was in and he opened the back door and said, do
      you got coke on you, and I said no, I don’t. He said well, Mr.
      Workman just told me you have coke in your nuts. I said sir, it’s
      a physical impossibility for me to have cocaine in my nuts. And
      he said okay, smart ass, we’re gonna take everybody to the
      police station and strip-search them there. I said, you can strip-




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     search me here. He said no, we’ll do that at the police station.
     …

Id. at 106.

     After the defense rested, the Commonwealth recalled Officer O’Barto,

who was questioned, in relevant part, as follows.

     Q.       At the time of the stop, you spoke with Chad Workman?

     A.       Several times.

     Q.       And what did Mr. Workman tell you?

              [Appellant’s counsel]:   I’m going to object.   It would be
              hearsay.

              [ADA]:      We can’t have it both ways.

              [Trial court]:     I think the door has been open[ed] at
              this point. We’ll overrule.

     Q.       What did Chad Workman tell you about what was going
              on?

     A.       Chad Workman said that they were on their way to
              Masontown to meet an individual to sell them some
              cocaine that [Appellant] had tucked underneath his nuts.

     Q.       And did you ask [Appellant] if he had cocaine on him while
              he was in the car?

     A.       I did.

     Q.       And that’s why you asked him, correct, because that was
              the information?

     A.       That’s right.

Id. at 116-17.




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      Appellant contends that he did not open the door for Officer O’Barto to

testify to Chad Workman’s statements.2 Appellant’s Brief at 12. Appellant

maintains that his testimony “had absolutely nothing to do with [Officer]

O’Barto’s conversation with Chad Workman[,]” but was instead offered to

prove that he did not possess cocaine and that he had consented to a strip

search at the scene of the stop. Id. at 13.

      Even if Appellant is correct that he did not open the door to allow

Officer O’Barto’s testimony to come in, he has not convinced us that he

suffered any prejudice as a result.     Officer O’Barto’s rebuttal testimony

bolstered, rather than impeached, Appellant’s testimony.     The jury merely

heard from Officer O’Barto what it had already heard from Appellant: that

Chad Workman told Officer O’Barto that Appellant had cocaine in the vicinity

of his testicles, and that Appellant denied possessing any cocaine. Appellant

has again failed to meet his heavy burden of proving his entitlement to relief

from this Court.   See, e.g., Commonwealth v. Mosley, ––– A.3d –––,

2015 WL 1774216 at *11 (Pa. Super. filed April 20, 2015) (holding no relief




2
  Appellant also argues on appeal that Officer O’Barto’s testimony exceeded
the scope of proper rebuttal. Appellant’s Brief at 13-14. However, at trial
Appellant raised only a hearsay objection. N.T., 10/7-8/2014, at 116.
Accordingly, all bases for objection other than hearsay are waived.
Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa. Super. 2003) (“In
order to preserve an issue for review, a party must make a timely and
specific objection. … [A]n appellant may not raise a new theory for an
objection made at trial on his appeal.”).


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was due where improperly-admitted evidence was cumulative, not unduly

prejudicial, “and still resulted in a fair trial”).

      With his last issue, Appellant claims that the trial court erred in

denying his motion to modify sentence.                Appellant argues that the

mandatory minimum sentence applied in his case, 18 Pa.C.S. § 7508, is

unconstitutional.    The trial court agreed with Appellant and opined that “a

remand for resentencing without consideration of the mandatory minimum is

necessary and appropriate.” Trial Court Opinion, 1/23/2015, at 17.

      Appellant and the trial court are correct: 18 Pa.C.S. § 7508 is

unconstitutional on its face in light of Alleyne v. United States, ––– U.S.

–––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013); thus, its application in

Appellant’s case resulted in an illegal sentence.        See Mosely, 2015 WL

1774216 at *13-15; Commonwealth v. Thompson, 93 A.3d 478 (Pa.

Super. 2014); Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014).

Accordingly, we vacate Appellant’s judgment of sentence and remand for

resentencing without application of the mandatory minimum.

      Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 7/16/2015




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