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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERIC YALE                                  :
                                               :
                       Appellant               :   No. 472 MDA 2018

           Appeal from the Judgment of Sentence November 17, 2017
      In the Court of Common Pleas of Luzerne County Criminal Division at
                        No(s): CP-40-CR-0001152-2017


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

MEMORANDUM BY LAZARUS, J.:                             FILED AUGUST 09, 2019

        Eric Yale appeals from the judgment of sentence, entered in the Court

of Common Pleas of Luzerne County, after a jury convicted him of two counts

of possession with intent to manufacture or deliver a controlled substance

(PWID),1 and one count each of possession of a controlled substance,2




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135 P.S. § 780-113(a)(30) (pertaining to methamphetamine); and 35 P.S. §
780-113.1(a)(3) (pertaining to precursor chemicals with the intent to
unlawfully manufacture a controlled substance).

2   35 P.S. § 780-113(a)(16).
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possession of drug paraphernalia,3 and risking catastrophe.4        After careful

review, we affirm.

        On March 21, 2017, Officer Jeffrey Ference of the Wilkes-Barre City

Police Department assisted US Marshalls in serving an arrest warrant on Larry

Thompson at Yale’s mother’s home. While searching for Thompson, Officer

Ference entered Yale’s bedroom and found Yale, methamphetamine, and

items     consistent     with    the    “one-pot”   method5   of   manufacturing

methamphetamine, including lighter fluid, Drano, lithium batteries, and

bottles containing chemicals.          Officer Ference then discovered Thompson

hiding in Yale’s bedroom closet, and took both Thompson and Yale into

custody. Officer Ference subsequently contacted the clandestine lab response

team, a specialized unit of the Pennsylvania State Police, to dispose of the

above-mentioned materials, owing to their propensity to catch on fire or emit

toxic gasses.     While in custody, after being read his Miranda rights, Yale

admitted the items were found in his bedroom and were there to manufacture

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3   35 P.S. § 780-113(a)(32).

4   18 Pa.C.S.A. § 3302(b).

5 The one-pot method is a common method of methamphetamine production
where precursor chemicals are mixed together in a plastic soda bottle. See
N.T. Trial, 9/26/17, at 45–46 (“The way people make methamphetamine right
now is called the one-pot method[.] [I]ngredients are mixed together . . . in
a plastic soda bottle. These soda bottles fail a lot; they light on fire, they
ignite, they injure people, they send people to the burn unit.”).




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methamphetamine. The Commonwealth charged Yale and Thompson under

accomplice and principal theories of liability.6

        At trial, Yale denied any involvement in producing methamphetamine

and claimed the contraband belonged to Thompson. He attempted to present

evidence      demonstrating        Thompson       pleaded   guilty   to   producing

methamphetamine using the “one-pot” method on November 3, 2015, and

further, that Thompson was charged with additional methamphetamine-

related offenses on February 6, 2017.            The trial court precluded evidence

concerning either event as irrelevant to the instant case and confusing to the

jury.

        The jury found Yale guilty of the above-mentioned charges on

September 26, 2017. On November 17, 2017, the trial court sentenced Yale

to an aggregate of 60 to 144 months’ incarceration. On the same day, Yale

filed post-sentence motions, which the trial court denied on February 15,

2018.     Yale timely filed a notice of appeal and a court-ordered concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

        Yale raises the following issues for our review:

        1. Whether the evidence as to all charges, as a matter of law, was
           insufficient to support any conviction, where the evidence
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6 As a general rule, “[a] person is guilty of an offense if it is committed by his
own conduct or by the conduct of another person for which he is legally
responsible, or both.” 18 Pa.C.S.A. § 306(a). An accomplice is defined, in
relevant part, as someone who, “with the intent of promoting or facilitating
the commission of [an] offense . . . aids or agrees or attempts to aid such
other person in planning or committing it[.]” 18 Pa.C.S.A. § 306(c).

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          established no more than mere presence of [Yale, and not] that
          he was the perpetrator, either as an accomplice or principal,
          contrary to the Due Process provisions of the United States
          Constitution?

       2. Did the trial court err as a matter of law or abuse its discretion
          in precluding, contrary to Pa.R.E. 404, the defense from
          presenting evidence that [] Thompson, an individual found at
          the scene, had been previously arrested for similar offenses
          and possessed knowledge of how to manufacture
          methamphetamine, to demonstrate that he was the
          perpetrator of the present charges?

Brief of Appellant, at 2.

       Yale first argues the Commonwealth failed to present sufficient evidence

to establish his intent to control the contraband at issue, and consequently,

failed to prove he constructively possessed the items underpinning his

convictions—namely, precursor chemicals, methamphetamine manufacturing

equipment, and methamphetamine. See id. at 8, 14.

       Our standard of review with regard to sufficiency claims is well-settled:7


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7 We note our displeasure with the trial court’s recitation of the standard for
sufficiency claims, which, in part, reads as follows: “Only where the evidence
offered to support the verdict is in contradiction to the physical facts, in
contravention to human experience and the laws of nature, is it deemed
insufficient as a matter of law.” Pa.R.A.P. 1925(a) opinion, 10/26/18, at 3
(emphasis added) (citing Commonwealth v. Robinson, 817 A.2d 1153,
1158 (Pa. Super. 2003)). This sentence is largely a direct quotation from
Robinson, deviating only in its addition of the word “only.” Compare id.
with Robinson, supra at 1158. Adding the qualifier “only” drastically
changes the meaning of the quotation, which itself details a sufficient
condition, not a necessary condition, for finding the evidence insufficient.
Robinson, supra at 1158. The test for evidentiary sufficiency, as properly
stated in Robinson, is evaluating whether the record establishes “each



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       A claim challenging the sufficiency of the evidence is a question of
       law. Evidence will be deemed sufficient to support the verdict
       when it establishes each material element of the crime charged
       and the commission thereof by the accused, beyond a reasonable
       doubt[.] When reviewing a sufficiency claim[,] the court is
       required to view the evidence in the light most favorable to the
       verdict winner giving the prosecution the benefit of all reasonable
       inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

       The possession of contraband—an element at issue in each of Yale’s

convictions8—can be established by demonstrating actual, constructive, or

joint constructive possession of contraband. Commonwealth v. Mudrick,

507 A.2d 1212, 1213 (Pa. 1986). Our Supreme Court has previously defined

constructive possession as follows:

       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
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material element of the crime charged and the commission thereof by the
accused, beyond a reasonable doubt.” Id. (quotation omitted).

8 Yale’s PWID and possession of a controlled substance convictions required
the Commonwealth to prove he possessed methamphetamine or precursor
chemicals. 35 P.S. § 780-113(a)(30) and 35 P.S. § 780-113.1(a)(3); 35 P.S.
§ 780-113(a)(16). Yale’s possession of drug paraphernalia and risking
catastrophe convictions required the Commonwealth prove his possession of
the drug paraphernalia for the purpose of manufacturing or producing
methamphetamine. 35 P.S. § 780-113(a)(32); 18 Pa.C.S.A. § 3302(b).




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      established by the totality of the circumstances[.] [C]onstructive
      possession may be found in either or both actors if contraband is
      found in an area of joint control and equal access.

Id. (citations omitted) (emphasis added).

      Where more than one person has equal access to contraband, presence

at the scene of the crime does not in and of itself prove conscious dominion

over prohibited items. Commonwealth v. Ocasio, 619 A.2d 352, 354 (Pa.

Super. 1993). “[T]he 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. at 354–44 (emphasis added); see Commonwealth v. Keefer, 487 A.2d

915, 918 (Pa. Super. 1985) (“The circumstances of the seizure of the instant

drugs were sufficient to provide an inference that appellant maintained control

over the bedroom in which they were seized, and, thus, over the drugs.”).

      Here,    the   officers    found   materials    used   in   the   production   of

methamphetamine, as well as the finished product. N.T. Trial, 9/26/17, at

27.     Yale    admitted        the   contraband     was   for    the   production   of

methamphetamine. Id. at 31. Further, Yale admitted the room in which the

items were found was his bedroom. Id. at 31, 89. Viewing this evidence in

the light most favorable to the Commonwealth, we conclude the evidence was

sufficient to enable the jury to find Yale constructively possessed the

contraband underlying his convictions. See Keefer, supra at 918 (finding

defendant constructively possession drugs found in his bedroom).


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      Next, Yale claims the trial court erred by precluding evidence of

Thompson’s previous arrests for methamphetamine-related offenses, which

he sought to admit to prove Thompson’s sole responsibility for the presence

of contraband in Yale’s bedroom. Brief of Appellant, at 14.

      The Supreme Court previously articulated the standard by which we

evaluate evidentiary rulings as follows:

      It is well-established that the admissibility of evidence is within
      the discretion of the trial court, and such rulings will not form the
      basis for appellate relief absent an abuse of discretion. Thus, the
      Superior Court may reverse an evidentiary ruling only upon a
      showing the trial court abused that discretion. A determination
      that a trial court abused its discretion in making an evidentiary
      ruling may not be made merely because an appellate court might
      have reached a different conclusion, but requires a result of
      manifest unreasonableness, or partiality, prejudice, bias, or ill-
      will, or such lack of support so as to be clearly erroneous. Further,
      discretion is abused when the law is either overridden or
      misapplied.

Commonwealth v. Hoover, 107 A.3d 723, 729 (Pa. 2014).

      “A defendant has a fundamental right to present evidence[,] provided

that the evidence is relevant and not subject to exclusion under one of our

established evidentiary rules.   Evidence is relevant if it tends to prove or

disprove some material fact or tends to make a fact at issue more or less

probable.” Commonwealth v. McGowan, 635 A.2d 113, 115 (Pa. 1993).

Further, “[i]t is well[-]established that evidence which tends to show that the

crime with which a defendant is charged was committed by someone else is

relevant and admissible. In this regard, the defense may introduce evidence

that someone else committed a crime which bears a highly detailed similarity

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to the crime with which the defendant is charged.” Id. (emphasis added)

(citing with approval Commonwealth v. Rini, 427 A.2d 1385, 1388 (Pa.

Super. 1981)).

       In Rini, this Court established a defendant’s right to introduce evidence

of another individual committing a “strikingly similar” crime to the one at issue

on trial, reasoning as follows:

       The Commonwealth is permitted in such cases to introduce
       evidence that the defendant committed crimes other than the one
       charged, because their highly detailed similarity makes their
       probative value in showing that the defendant committed the
       crime charged so great as to outweigh even the substantial danger
       of prejudice to the defendant. When the defense offers evidence
       that someone other than the defendant committed a crime with a
       detailed similarity to the one charged, the probative value is
       equally strong in showing that the defendant did not commit the
       crime charged, and the argument for admissibility is even
       stronger, because there is no prejudice to weigh against this
       equally strong probative value.

Rini, supra at 1388.

       Following Rini, Superior Court case law established a criminal

defendant’s right to offer such evidence, if the following two factors

established its relevance and probative value: “1) the lapse of time between

the commission of the two crimes; and 2) the resemblance between the

methodologies of those two crimes.”            Commonwealth v. Palagonia, 868

A.2d 1212, 1216 (Pa. Super. 2005). 9 Even if the proffered third-party crime

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9 In a recent concurrence, Justice Wecht cast doubt, not only on the vitality of
the two-part test outlined in Palagonia, but on whether so-called “reverse



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and the charged crime occurred close in time to one another, “the [proffered]

evidence is not admissible unless the nature of the crimes is so distinctive or

unusual as to be like a signature or the handiwork of the same individual.”

See id. (finding evidence insufficiently similar to permit admission where

proffered evidence of burglaries committed by a third party involved tools and

burglary at issue did not involve forced entry); see also Commonwealth v.

Nocero, 582 A.2d 376, 379 (Pa. Super. 1990) (finding “ripping a water




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404(b)” evidence should incorporate any principles whatsoever from case law
related to Pa.R.E. 404(b). See Commonwealth v. Gill, 206 A.3d 459, 468-
74 (Pa. 2019) (Wecht, J., concurring) (“[T]he admissibility of ‘reverse 404(b)’
evidence should not be governed by Rule 404(b) or subject to the standards
imposed on Rule 404(b) case law”); see also id. at 473 (defining “reverse
404(b)” evidence as “evidence of a crime committed by a third party that is
similar to the crime for which the defendant stands accused, and that a
defendant seeks to admit for the purpose of establishing that the defendant
was not the perpetrator of the charged offense.”). Justice Wecht posits, since
Rini, where we first recognized a defendant’s right to introduce evidence of a
crime bearing a “highly detailed similarity” to the one at issue, Superior
Court’s case law has diverged from the Supreme Court’s; in doing so, the
strictures of Rule 404(b), which exist to prevent the Commonwealth from
introducing impermissible character evidence, have been improperly applied
in the context of “reverse 404(b) evidence, [where] the defendant’s character
is simply not implicated.” Id. He asserts such evidence ought to be
admissible so long as it passes the “liberal relevance hurdle and survives Rule
403 balancing[.]” Id. at 473–74. While Justice Wecht’s concurring opinion
sheds a great deal of light on the development of a poorly-defined branch of
the law of evidence, we remain bound by Palagonia, and thus, obligated to
apply the two-part test contained therein to Yale’s appeal.                See
Commonwealth v. Minor, 647 A.2d 229, 231 n.3 (Pa. Super. 1994) (“Non-
majority decisions of the Pennsylvania Supreme Court are not binding on
lower courts.”); see also Commonwealth v. Hull, 705 A.2d 911, 912 (Pa.
Super. 1998) (“It is beyond the power of a Superior Court panel to overrule a
prior decision of the Superior Court.”).

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fountain from its base is not such a unique type of vandalism that the jury

could infer [that] the same person did both acts.”).

      Yale argues the trial court abused its discretion by precluding evidence

of Thompson’s October 12, 2016 arrest and November 3, 2015 guilty plea,

both of which involved Thompson’s use of the “one-pot” method to produce

methamphetamine. Brief of Appellant, at 19–22. We, however, agree with

the   trial   court’s     reasoning;    beyond   Thompson’s   cases   involving

methamphetamine production, “[Yale] did not demonstrate how the present

cases against [Yale] and [Thompson] had such detailed similarities or the

same methodology as the . . . cases against [Thompson] to show any common

scheme, plan or design which would have exonerated [Yale.]”           Pa.R.A.P.

1925(a) Opinion, 10/26/18, at 9. Consequently, Yale fails to demonstrate

how Thompson’s prior bad acts are so “strikingly similar” to his own charged

crimes as to establish Thompson as “the person charged with the commission

of the crime on trial.”     Rini, supra at 1388; see N.T. Trial, 9/26/17, at 45

(describing one-pot method of methamphetamine production as “[t]he way

people make methamphetamine right now[.]”). Our review of the record leads

us to conclude that the trial court did not abuse its discretion in finding that

evidence of Thompsons prior methamphetamine-related activity was not so

distinctive as to warrant admission. Palagonia, supra at 1216–17. Yale,

therefore, is not entitled to relief.




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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2019




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