J-S32023-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

TERRANCE JORDAN,

                         Appellant                 No. 1789 WDA 2014


        Appeal from the Judgment of Sentence of October 27, 2014
               In the Court of Common Pleas of Erie County
                 Criminal Division at No(s): 0000525-2014

BEFORE: SHOGAN, OLSON AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                             FILED JULY 10, 2015

      Appellant, Terrance Jordan, appeals from the judgment of sentence

entered on October 27, 2014. We affirm.

      The relevant factual background and procedural history of this case

are as follows.   At approximately 3:00 p.m. on January 23, 2014, police,

acting on information supplied by a confidential informant, stopped a dark

Saturn SUV. Appellant was seated in the front passenger seat of the vehicle.

Police performed a protective frisk of Appellant and recovered a firearm from

his waistband. When Appellant was transported to the police department for

booking, police recovered a baggie of pills.
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        On March 27, 2014, Appellant was charged via criminal information

with possession of a firearm by a prohibited person,1 carrying a firearm

without a license,2 and possession of a controlled substance by an

unregistered person.3 On March 31, 2014, Appellant was formally arraigned.

On April 1, 2014, Appellant filed a discovery request, to which the

Commonwealth forwarded a timely response.         On July 8, 2014, Appellant

filed an omnibus pretrial motion. That same day, the trial court dismissed

the pretrial motion as untimely. On September 4, 2014, the case proceeded

to a non-jury trial and Appellant was found guilty of carrying a firearm

without a license      and possession of a controlled substance by an

unregistered person.4 On October 27, 2014, Appellant was sentenced to an

aggregate term of 30 to 60 months’ imprisonment.          This timely appeal

followed.5

        Appellant presents two issues for our review:



1
    18 Pa.C.S.A. § 6105(a)(1).
2
    18 Pa.C.S.A. § 6106(a)(1).
3
    35 P.S. § 780-113(a)(16).
4
    The possession of a firearm by a prohibited person charge was withdrawn.
5
  On October 28, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On November 10, 2014, Appellant filed his concise
statement. On November 19, 2014, the trial court issued its Rule 1925(a)
opinion. Both issues raised on appeal were included in Appellant’s concise
statement.


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      1. Whether the trial court erred in dismissing Appellant’s
         omnibus pretrial motion as untimely where defense counsel
         was not aware of the grounds for the motion due to an
         inability to contact the Appellant[?]

      2. Whether the trial court, as finder of fact, abused its discretion
         in finding the Appellant guilty of possession of a controlled
         substance, specifically, ecstasy, when the evidence and
         testimony presented was insufficient to establish such a
         finding[?]

Appellant’s Brief at 3 (complete capitalization removed).

      In his first issue, Appellant contends that the trial court erred by

dismissing his pretrial motion as untimely.        We review a trial court’s

dismissal of a pretrial motion on timeliness grounds for an abuse of

discretion.     Commonwealth v. Johonoson, 844 A.2d 556, 561 (Pa.

Super. 2004), appeal denied, 863 A.2d 1144 (Pa. 2004) (citation omitted).

Pennsylvania Rule of Criminal Procedure 579 provides, in relevant part:

      [T]he omnibus pretrial motion for relief shall be filed and served
      within 30 days after arraignment, unless opportunity therefor did
      not exist, or the defendant or defense attorney, or the attorney
      for the Commonwealth, was not aware of the grounds for the
      motion, or unless the time for filing has been extended by the
      court for cause shown.

Pa.R.Crim.P. 579(a).

      In this case, Appellant was arraigned on March 31, 2014. Therefore,

the pretrial motion was due on April 30, 2014. The pretrial motion was not

filed until July 8, 2014. In his pretrial motion, Appellant sought suppression

of all evidence recovered as a result of the traffic stop and identification of

the confidential informant that provided police with information that led to



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the stop. Counsel averred that he was unable to contact Appellant from the

day he was released on bail, February 28, 2014, until July 7, 2014 as

Appellant did not return counsel’s attempts at communication.             Thus,

counsel argued that he was unaware of the bases for the pretrial motion.

      Other averments in the pretrial motion, however, indicate that counsel

was fully aware of the grounds for the pretrial motion months earlier.

Specifically, counsel conceded that the Commonwealth turned over all

requested discovery materials in a timely manner after a discovery request

was filed on April 1, 2014. All information needed to file the pretrial motion

was included within those discovery materials as that was the only

information cited in the pretrial motion. Furthermore, the trial court found

that, because Appellant bore responsibility for failing to communicate with

counsel, he should be deemed to have waived his right to a suppression

hearing.   We ascertain no abuse of discretion in this determination as we

refuse to incentivize defendants to not communicate with their counsel.

      Appellant cites Commonwealth v. Borovichka, 18 A.3d 1242 (Pa.

Super. 2011), in support of his argument that the trial court erred by

dismissing his pretrial motion as untimely. Borovichka, however, did not

address whether the trial court erred by dismissing a pretrial motion as

untimely. Instead, in Borovichka the trial court addressed the defendant’s

pretrial motion despite the fact that it was untimely.     This Court simply

noted that this Court would not find the issue waived on appeal because the



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trial court permitted the untimely pretrial motion. Id. at 1248. Accordingly,

we conclude that the trial court did not abuse its discretion in dismissing

Appellant’s pretrial motion as untimely.

      In his second issue, Appellant contends that there was insufficient

evidence to convict him of possession of a controlled substance by an

unregistered person.     “Whether sufficient evidence exists to support the

verdict is a question of law; thus, our standard of review is de novo and our

scope of review is plenary.” Commonwealth v. Patterson, 91 A.3d 55, 66

(Pa. 2014) (citation omitted).     In reviewing a sufficiency of the evidence

claim, we must determine “whether viewing all the evidence admitted at trial

in the light most favorable to the [Commonwealth], there is sufficient

evidence to enable the fact-finder to find every element of the crime beyond

a reasonable doubt.” Commonwealth v. Thompson, 106 A.3d 742, 756

(Pa. Super. 2014) (citation omitted). “The evidence need not preclude every

possibility of innocence and the fact-finder is free to believe all, part, or none

of the evidence presented.”         Commonwealth v. Haynes, 2015 WL

1814017, *15 (Pa. Super. Apr. 22, 2015) (internal quotation marks and

citation omitted).

      Appellant argues that there was insufficient evidence to convict him of

possession of a controlled substance by an unregistered person because the

criminal information in this case charged him with possession of 3,4-

methylenedioxymethamphetamine (“MDMA”) and at trial the Commonwealth



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conceded that Appellant did not possess MDMA but instead possessed 3,4-

methylenedioxypyrovalerone (“MDPV”).       See Information, 3/27/14, at 2;

N.T., 9/4/14, at 42.     Our Supreme Court has rejected a similar argument.

In Commonwealth v. Kelly, 409 A.2d 21, 23 (Pa. 1979), the criminal

complaint charged the defendant with possession of heroin. Id. at 23. At

trial, it was revealed the substance was in fact methamphetamine. Id. The

defendant therefore argued that there was insufficient evidence to convict

him of possession of a controlled substance by an unregistered person, the

same offense at issue in the case sub judice. See id. Our High Court held

that the error in the criminal information was not fatal to the prosecution

because the defendant was not “misled at trial, prejudicially surprised in

efforts to prepare a defense, precluded from anticipating the prosecution’s

proof, or otherwise impaired with respect to a substantial right.”       Id.

(citation omitted).    Kelly is still good law as our Supreme Court recently

cited it with approval. See Commonwealth v. Jones, 912 A.2d 268, 289

(Pa. 2006).

      As in Kelly, our “review of the record reveals that [A]ppellant could

not have been prejudiced by the defect in the complaint and that he was

well advised of the nature of the offense charged.” Kelly, 409 A.2d at 23.

MDMA is a schedule I controlled substance, United States v. Baird, 312 F.

App’x 449, 450 (3d Cir. 2008), as is MDPV.      Commonwealth v. Tucker,

106 A.3d 796, 797 (Pa. Super. 2014). Thus, possession of both is prohibited



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by 35 P.S. § 780-113(a)(16).    Appellant knew he was being charged for

possession of the pills found on his person and he did not dispute the

chemical composition or legal status thereof. Although we are unsure why

the Commonwealth did not amend the criminal information at trial to list

MDPV instead of MDMA, that decision was not fatal to Appellant’s

prosecution or conviction.   Accordingly, there was sufficient evidence to

convict Appellant of possession of a controlled substance by an unregistered

person.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/10/2015




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