J-S35022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                          Appellee

                     v.

CURTIS CLAY PHILLIPS,

                          Appellant                     No. 2168 EDA 2014


           Appeal from the Judgment of Sentence June 20, 2014
           In the Court of Common Pleas of Northampton County
            Criminal Division at No(s): CP-48-CR-0001893-2013


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                             FILED JUNE 21, 2016

     Appellant, Curtis Clay Phillips, appeals from the judgment of sentence

of two to eight years’ imprisonment, followed by three years’ probation,

imposed after he was convicted of possession with intent to deliver (PWID),

possession of a controlled substance, possession of drug paraphernalia, and

two traffic violations.       For the following reasons, we conclude that

Appellant’s issues are meritless. However, we sua sponte recognize that he

received an illegal, mandatory minimum sentence under 18 Pa.C.S. § 7508.

Accordingly,    we   vacate   his    judgment   of   sentence   and   remand   for

resentencing.

     The facts of this case can be briefly summarized as follows. On March

6, 2013, Trooper Michael C. Kalinchock stopped Appellant’s vehicle on the

side of an interstate highway, after observing Appellant commit traffic
J-S35022-16



violations, including following another vehicle too closely and failing to use

his turn signal. Upon running Appellant’s license plate number through the

National Crime Information Center (NCIC), the trooper discovered that the

vehicle was registered to Appellant, Appellant had an outstanding warrant

for his arrest for a firearms charge, and Appellant was considered armed and

dangerous.    Accordingly, Trooper Kalinchock called for backup, and after

other officers arrived, he removed Appellant and another individual from

Appellant’s car.

      After arresting Appellant on the outstanding warrant, and discovering

that his cohort did not have a valid driver’s license, Trooper Kalinchock

determined that Appellant’s vehicle would have to be removed from the side

of the highway and towed to a secure location, in accordance with the

written policies of the Pennsylvania State Police. Those policies also required

Trooper Kalinchock to perform an inventory search of the car before the tow

truck removed it.     Accordingly, Trooper Kalinchock began an inventory

search, during which he opened the center console located between the

driver and passenger seats.     In plain view inside that console, Trooper

Kalinchock discovered approximately 190 packets of heroin.

      Based on these facts, Appellant was charged with the above-stated

offenses. Prior to trial, he filed a motion to suppress the drugs recovered

from his vehicle, and a hearing was conducted on September 6, 2013. On

November 27, 2013, the trial court denied Appellant’s motion to suppress.

His case proceeded to a jury trial, which was conducted on December 4-5,

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2013. At the close thereof, the jury found Appellant guilty of PWID, 35 P.S.

§ 780-113(a)(30); possession of a controlled substance, 35 P.S. § 780-

113(a)(16);     and possession of drug paraphernalia, 35 P.S. § 780-

113(a)(32). On February 14, 2014, just prior to Appellant’s sentence being

imposed, the court also found him guilty of the summary traffic offenses of

following too closely, 75 Pa.C.S. § 3310, and turning movements and

required signals, 75 Pa.C.S. § 3334.       After convicting Appellant of those

offenses, the court imposed a sentence of two to eight years’ incarceration,

followed by three years’ probation, for Appellant’s PWID offense. No further

penalty was imposed.      Finally, at the close of the sentencing proceeding,

Appellant’s counsel sought, and was granted, permission to withdraw from

representing Appellant.

     At this point, the procedural history of Appellant’s case becomes more

complex.      On February 20, 2014, Appellant - who was at that point

proceeding pro se - filed a “Motion to Reconsider Sentence.” On March 6,

2014, new counsel entered his appearance on Appellant’s behalf. On March

31, 2014, the Honorable Edward G. Smith, the judge who presided over

Appellant’s trial and sentencing, was appointed to the federal bench.     See

Trial Court Opinion (TCO), 7/16/14, at 1 (unnumbered) (opinion drafted by

the President Judge of Northhampton County who was assigned this case

following Judge Smith’s departure).    Presumably because of Judge Smith’s

departure, the court did not rule on Appellant’s post-sentence motion. Thus,

that motion should have been denied by operation of law 120 days later, or

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on Friday, June 20, 2014. See Pa.R.Crim.P. 720(B)(3)(a). However, as the

Commonwealth concedes, see Commonwealth’s Brief at 3 n.7, a breakdown

in the operation of the court occurred and the Northampton County Clerk of

Courts never entered an order denying Appellant’s post-sentence motion by

operation of law, as it was required to do under Pa.R.Crim.P. 720(B)(3)(c).

      Despite that an order ruling on Appellant’s post-sentence motion was

never filed, Appellant’s counsel filed a notice of appeal on July 10, 2014.

That notice of appeal was filed within 30 days from the date on which the

order denying Appellant’s post-sentence motion should have been entered

by the clerk of courts. Consequently, we conclude that Appellant’s notice of

appeal was timely filed.

      The trial court, however, deemed Appellant’s notice of appeal

untimely.   See TCO at 1.       The court’s decision was premised on its

erroneous belief that Appellant did not file a post-sentence motion. See id.

The court’s error in this regard was likely caused by the clerk of court’s

mistake in not filing an order denying the post-sentence motion by operation

of law. Because the trial court concluded that Appellant’s notice of appeal

was untimely filed, it did not direct him to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.       Moreover, while the court

issued a Rule 1925(a) opinion, it did not address any issues, or even set

forth the facts and procedural history of Appellant’s case. Instead, the court

simply discussed its conclusion that Appellant’s appeal was untimely filed.




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      During the pendency of Appellant’s appeal, he had two different

attorneys enter their appearance on his behalf, and both sought permission

to withdraw, which we granted by per curiam orders. Appellant also filed a

motion seeking to proceed pro se, and we remanded for the court to conduct

a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998),

to ascertain if Appellant’s waiver of his right to counsel was knowing,

intelligent, and voluntary.   After conducting a Grazier hearing, the court

permitted Appellant to proceed pro se.

      On January 22, 2016, Appellant filed a 68-page, handwritten brief that

fails to adhere to the Pennsylvania Rules of Appellate Procedure. Namely,

his brief does not contain the following sections: Statement of Jurisdiction

(Pa.R.A.P. 2114), Order or Other Determination in Question (Pa.R.A.P.

2115), Statement of Questions Involved (Pa.R.A.P. 2116), or Summary of

Argument (Pa.R.A.P. 2118). Appellant’s issues are interspersed throughout

his brief, and include numerous subsidiary claims that are not included in, or

even suggested by, the statement of the questions he sets forth. It is an

understatement to say that it is unclear from a cursory review of

Appellant’s brief what (or how many) issues he is seeking to raise.

      On February 19, 2016, the Commonwealth filed a motion to quash

Appellant’s brief based on the fact that he violated Pa.R.A.P. 2135, which

directs that a principal brief “shall not exceed 14,000 words….”      Pa.R.A.P.

2135(a)(1). By utilizating an approximation method discussed by this Court

in Commonwealth v. Spuck, 86 A.3d 870, 873 (Pa. Super. 2014), the

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Commonwealth      estimated   that   Appellant’s   68-page    brief   contains

“approximately 20,808 words.” Commonwealth’s Motion to Quash, 2/19/16,

at 2 (unnumbered). Accordingly, the Commonwealth argued that this Court

should “quash Appellant’s brief in its entirety or the portion of Appellant’s

brief that goes beyond the limitation.”    Id. at 2-3 (unnumbered; citation

omitted).

     On March 14, 2016, Appellant filed a typed reply brief that set forth

the sections omitted from his principal brief, as discussed supra. Therein, he

set forth the following seven issues for our review, which we reproduce

verbatim:

     1.) Was Northampton County Adult Probation and Parole Officer
     Timothy D. Werkheiser without jurisdiction required to petition
     the court for a violation of parole conditions? Was the court
     without jurisdiction required to find a violation thereof where it
     appears that the parole ordered was specifically ordered, by
     statute, to be without supervision?

     2.) Was the March 6th, 2013 traffic stop, search and seizure of
     my vehicle improper under the circumstances? Did the court err
     in denying my omnibus pre-trial motion to suppress the evidence
     seized as a result of the search?

     3.) Has the court violated my right to due process of law by
     withholding evidence? Altering evidence? Refusing to provide
     me with a certified copy of the court record? Causing me to
     stand trial on charges stemming directly from an alleged
     violation of parole prior to finding me guilty of violation?

     4.) Did the court err when it failed to hold a hearing in
     accordance with Comm. V. Carroll prior to the imposition of
     sentence upon my request and, as a result, was my right to due
     process of law violated?

     5.) Did the court err in the deemed denial of my post-sentence
     motions?

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        6.) Has the court violated my right to a fair and impartial trial in
        a cumulative theory sense?

        7.) Did the court abuse its discretion in application of an eight
        (8) year maximum sentence of confinement while, at the same
        time, invoking the mandatory minimum of two (2) years? In
        sentencing an additional three (3) year term of “special”
        probation upon parole?

Appellant’s Reply Brief at 1-2 (unnumbered).

        Upon reviewing Appellant’s principal brief and reply brief, we chastise

him not only for being excessively wordy and for failing to adhere to the

Rules of Appellate Procedure, but also for presenting extremely confusing

arguments (in difficult to read handwriting) that contain numerous claims

and sub-claims not set forth, nor even suggested by, the above-stated

issues. That being said, however, we decline to grant the Commonwealth’s

motion to quash Appellant’s brief in its entirety, or to quash the part of his

brief that exceeds the page limitation.1 Rather, we will attempt to address

those claims of Appellant’s that we can readily understand, and which are

sufficiently developed to permit our meaningful review. To the extent that

we exclude certain claims that have been lost within Appellant’s excessively

lengthy and confusing brief, the fault is Appellant’s, and we consider those

claims waived for our review.

        In Appellant’s first issue, he challenges the ‘jurisdiction’ of a parole

officer to seek revocation of his parole based on a technical violation in a


____________________________________________


1
    Accordingly, the Commonwealth’s motion to quash is denied.



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case unrelated to the present matter.         See Appellant’s Brief at 11-17.

Appellant reiterates this argument in his second and third issues, as well.

See id. at 17-19; 28.        Appellant acknowledges that these claims are

“technically[] a challenge to the legality of [his] preceding sentence.” Id. at

12.   Because this is not an appeal from the judgment of sentence in that

case, we cannot entertain Appellant’s challenge to that parole revocation or

sentence herein.    Accordingly, we will not address any of the arguments

presented in his first issue, or his reiteration of those claims in other portions

of his brief.

      In Appellant’s second issue, he challenges the suppression court’s

denial of his motion to suppress.      Our standard of review for denial of a

suppression motion is as follows:

      In reviewing an order from a suppression court, we consider the
      Commonwealth’s evidence, and only so much of the defendant’s
      evidence as remains uncontradicted. We accept the suppression
      court’s factual findings which are supported by the evidence and
      reverse only when the court draws erroneous conclusions from
      those facts.

Commonwealth v. Hoopes, 722 A.2d 172, 174-75 (Pa. Super. 1998).

      First, he attacks the credibility of the officer who stopped his vehicle,

Trooper Kalinchock, claiming that the trooper’s testimony was unbelievable.

See Appellant’s Brief at 20-21. In particular, Appellant asserts that Trooper

Kalinchock’s testimony that Appellant failed to use his turn signal was belied

by a video shown at the suppression hearing demonstrating that his turn-

signal was blinking when he made the “turn in question.” Id. at 22.


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      At the suppression hearing, the defense played a video from the police

cruiser’s dashboard camera, which showed that Appellant’s turn-signal was

blinking.    N.T. Suppression Hearing, 9/6/13, at 39.     Trooper Kalinchock

explained, however, that Appellant’s signal “was blinking at that point but

when [the car] moved from the single lane into the left [turning] lane it did

not use its directional signal until it approached 78 and then put its

directional on.” Id. The suppression court found that “Trooper Kalinchock’s

testimony was consistent with … the video….”       Suppression Court Opinion

(SCO), 11/27/13, at 7. The court explained:

             The video from the dashboard camera did not clearly show
      whether the operator was using the left-turn signal as the car
      moved into the left turn lane on Morgan Hill Road. Trooper
      Kalinchock testified that not everything he saw was visible on
      the video, because the dashboard camera was stationary, the
      video was not very clear, and there was some distance between
      the patrol car and [Appellant’s] car. See N.T. Suppr. Hrg. At 43-
      44. The video did clearly show that after the car made the left
      turn from Morgan Hill Road onto the access ramp, the car’s left-
      turn signal was blinking. However, this evidence proved only
      that [Appellant] activated the signal sometime after he made the
      left turn. It did not prove that [Appellant] had activated the
      signal at or before the moment he made the left turn onto the
      access ramp.      Thus, the [c]ourt found that the video was
      inconclusive and did not contradict Trooper Kalinchock’s
      testimony.

Id. at 8. The record supports the suppression court’s factual findings, and

we may “not substitute our credibility determinations for that of the

suppression court.”   Commonwealth v. Queen, 639 A.2d 443, 445 (Pa.

1994). Therefore, Appellant’s first attack on the suppression court’s ruling is

meritless.


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     Appellant also contends that the evidence recovered from his vehicle

should have been suppressed because Trooper Kalinchock conducted an

illegal inventory search.   This Court has summarized the law regarding

inventory searches, as follows:

           Inventory searches are a well-defined exception to the
     search warrant requirement. Colorado v. Bertine, 479 U.S.
     367, 371, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987);
     Commonwealth v. Nace, 524 Pa. 323, 327, 571 A.2d 1389,
     1391 (1990), cert. denied, 498 U.S. 966, 111 S.Ct. 426, 112
     L.Ed.2d 411 (1990). “The purpose of an inventory search is not
     to uncover criminal evidence. Rather, it is designed to safeguard
     seized items in order to benefit both the police and the
     defendant.” Commonwealth v. Woody, 451 Pa. Super. 324,
     679 A.2d 817, 819 (1996). See also Commonwealth v.
     Brandt, 244 Pa. Super. 154, 366 A.2d 1238, 1241 (1976) (en
     banc). Inventory searches serve one or more of the following
     purposes: (1) to protect the owner's property while it remains in
     police custody; (2) to protect the police against claims or
     disputes over lost or stolen property; (3) to protect the police
     from potential danger; and (4) to assist the police in determining
     whether the vehicle was stolen and then abandoned. See South
     Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 49
     L.Ed.2d 1000 (1976).

            A warrantless inventory search of an automobile is
     different from a warrantless investigatory search of the same. An
     inventory search of an automobile is permitted where: (1) the
     police have lawfully impounded the automobile; and (2) the
     police have acted in accordance with a reasonable, standard
     policy of routinely securing and inventorying the contents of the
     impounded vehicle. Id. at 368–372, 96 S.Ct. 3092. A
     warrantless investigatory search of an automobile requires both
     a showing of probable cause to search and exigent
     circumstances. See Commonwealth v. Luv, 557 Pa. 570, 735
     A.2d 87 (1999); Commonwealth v. White, 543 Pa. 45, 669
     A.2d 896 (1995).

           In determining whether a proper inventory search has
     occurred, the first inquiry is whether the police have lawfully
     impounded the automobile, i.e., have lawful custody of the

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      automobile. Opperman, 428 U.S. at 368, 96 S.Ct. 3092. The
      authority of the police to impound vehicles derives from the
      police's reasonable community care-taking functions. Id. Such
      functions include removing disabled or damaged vehicles from
      the highway, impounding automobiles which violate parking
      ordinances (thereby jeopardizing public safety and efficient
      traffic flow), and protecting the community's safety. Id. at 368–
      369, 376 n. 10, 96 S.Ct. 3092.

             The second inquiry is whether the police have conducted a
      reasonable inventory search. Id. at 370, 96 S.Ct. 3092. An
      inventory search is reasonable if it is conducted pursuant to
      reasonable standard police procedures and in good faith and not
      for the sole purpose of investigation. See Bertine, 479 U.S. at
      374, 107 S.Ct. 738 (“reasonable police regulations relating to
      inventory procedures of automobiles administered in good faith
      satisfy the Fourth Amendment, even though courts might as a
      matter of hindsight be able to devise equally reasonable rules
      requiring a different procedure”). Compare Florida v. Wells,
      495 U.S. 1, 4–5, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990) (where
      police had no standard procedure with respect to the opening of
      closed containers found during inventory searches, marijuana
      found in a closed suitcase was properly suppressed). Said
      another way, the inventory search must be pursuant to
      reasonable police procedures, and conducted in good faith and
      not as a substitute for a warrantless investigatory search.

Commonwealth v. Hennigan, 753 A.2d 245, 254-55 (Pa. Super. 2000).

      Here, Appellant first avers that his vehicle was not lawfully impounded,

pointing out that the Commonwealth offered no evidence that it was

necessary to tow his car, such as proof that it was illegally parked.

Appellant also avers that Trooper Kalinchock was required to “grant

[Appellant] the opportunity, under the circumstances, to call someone to

remove [his] vehicle for [him]” before having it towed. Appellant’s Brief at

23.   In support, Appellant cites Commonwealth v. Germann, 621 A.2d

589 (Pa. Super. 1993).



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     In rejecting these arguments, the suppression court declared:

          By statute, Pennsylvania law enforcement officials have
     authority to impound a car when the driver is taken into custody.
     See 75 Pa.C.S.A. § 3352(c)(3).

       § 3352. Removal of vehicle by or at direction of
       police.

       …

       (c) Removal to garage or place of safety.--Any police
       officer may remove or cause to be removed to the place of
       business of the operator of a wrecker or to a nearby
       garage or other place of safety any vehicle found upon a
       highway under any of the following circumstances:

       …

       (3) The person driving or in control of the vehicle is
       arrested for an alleged offense for which the officer is
       required by law to take the person arrested before an
       issuing authority without unnecessary delay.

     Id. Section 3352 is based on the need to remove the car from
     the highway, where it could pose a safety hazard. See []
     Hennigan, 753 A.2d [at] 258-59….

       [T]he phrase “control of the vehicle” reasonably means
       control of a vehicle on a highway where the vehicle poses
       a possible public safety concern or traffic control concern if
       left unattended. … If a defendant is driving alone and the
       police stop him in his car on a highway and arrest him, the
       presence of the car on a highway usually poses a public
       safety concern if left there unattended. Thus, … subsection
       (c)(3) covers situations where a public safety concern or
       traffic hazard exists, and where the arrestee is either
       “driving” or otherwise in “control” of the vehicle at the time
       of arrest. When interpreted in this manner, § 3352(c)(3)
       authorizes police to impound a vehicle in circumstances
       that involve the community care-taking functions of the
       police, such as public safety concerns and traffic control
       concerns, and, thus, comports with constitutional
       standards for impoundment



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     Id. (police did not obtain lawful custody of vehicle under section
     3352(c)(3) for purposes of determining validity of inventory
     search; defendant’s car was legally parked on public street, he
     was not driving his vehicle, he was not near the vehicle at the
     time of his arrest, his vehicle was not shown to have a nexus to
     the crime for which he was being arrested, no items of value
     were in plain view in the vehicle, and the vehicle was not shown
     to cause any public safety concern or traffic control concern).

            When Trooper Kalinchock stopped [Appellant’s] car, it was
     on I-78, an interstate highway. Thus, leaving the car there
     unattended would have posed a public safety hazard. Trooper
     Kalinchock determined that [Appellant] was the driver. Thus,
     [Appellant] was “driving or in control of the vehicle.”         75
     Pa.C.S.A. § 3352(c)(3).      After Trooper Kalinchock stopped
     [Appellant’s] car, he learned that there was a warrant for
     [Appellant’s] arrest, and on the basis of that warrant, he took
     [Appellant] into custody. Thus, [Appellant] was “arrested.” Id.
     The warrant directed that [Appellant] be “held in County Jail
     until the Court is opened for business, at which time [Appellant]
     shall be promptly conveyed and delivered into the custody of the
     Court.” Suppr. Hrg., Ex. C-1. Thus, [Appellant] was being held
     “for an alleged offense for which the officer is required by law to
     take the person arrested before an issuing authority without
     unnecessary delay.” 75 Pa.C.S.A. § 3352(c)(3). [Appellant’s]
     passenger did not have a valid driver’s license and could not
     drive the car away from the scene.               Based on these
     circumstances,     Trooper    Kalinchock     lawfully   impounded
     Appellant’s car under 75 Pa.C.S.A. § 3352(c)(3).

            [Appellant] argues that police did not lawfully take custody
     of his car, because, he asserts, Trooper Kalinchock was required
     to offer him the opportunity to make his own arrangements to
     have his car towed rather than impounding the car pursuant to
     75 Pa.C.S.A. § 3352(c)(3). We disagree.

           The only authority [Appellant] cites for such a requirement
     is … Germann, 621 A.2d 589 …. However, the car in Germann
     was not stopped on a highway where it posed a public safety
     hazard but was parked on a city street. See id. The Superior
     Court has limited the holding of Germann to cases in which
     public safety is not at issue.        See Commonwealth v.
     Chambers, 920 A.2d 892, 897 n.5 (Pa. Super. 2007).




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         To the extent Appellant cites to ... Germann … for the
         proposition that the police officer was required to ask [the
         defendant] whether he wished to make arrangements for
         the pick-up truck instead of the police impounding it, we
         find the case to be distinguishable. In Germann, a panel
         of this Court determined that there was no justification for
         towing the vehicle and there was no evidence that the
         vehicle at issue was obstructing traffic or otherwise
         creating a safety hazard. Such was not the situation in the
         case sub judice.

      Id. As noted above, [Appellant’s] car was on the side of an
      interstate highway and would have posed a public safety hazard
      if left unattended. Thus, Trooper Kalinchock lawfully impounded
      [Appellant’s] car.

SCO at 13-17 (one citation omitted).

      Based on the suppression court’s analysis, and our review of the case

law relied upon by the court, we ascertain no abuse of discretion in the

court’s ruling that Appellant’s vehicle was lawfully impounded.      Therefore,

the first prong of the test for determining if a valid inventory search occurred

was satisfied.

      Appellant, however, also challenges the second prong of the inventory

search test.     He maintains that Trooper Kalinchock’s search was truly for

investigative purposes and, therefore, it was not a valid inventory search.

The suppression court did not rule on this claim, as it concluded that even if

the trooper had searched the car for an improper purpose, the evidence

found therein would have been inevitably discovered aside from Trooper

Kalinchock’s search. The suppression court reasoned:

            Even where evidence has been illegally seized, the
      evidence is nevertheless admissible if it inevitably would have
      been discovered pursuant to a lawful search.        See Nix v.


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     Williams, 467 U.S. 431, 448 (1984); Commonwealth v.
     Bailey, 986 A.2d 860, 862 (Pa. Super. 2009); Commonwealth
     v. Gonzalez, 979 A.2d 879, 890-91 (Pa. Super. 2009).

       [E]vidence that ultimately or inevitably would have been
       recovered by lawful means should not be suppressed
       despite the fact that its actual discovery was accomplished
       through illegal actions. … Suppressing evidence in such
       cases, where it ultimately or inevitably would have been
       lawfully recovered, “would reject logic, experience, and
       common sense.”

     Gonzalez, 979 A.2d at 890-91 (quoting Nix, 467 U.S. at 444).

           Thus, even where police perform an illegal search of a
     vehicle before it is impounded, if the evidence seized inevitably
     would have been discovered during a routine inventory search of
     the impounded vehicle, the evidence is admissible under the
     inevitable-discovery exception. See Bailey, 986 A.2d at 863.

       [B]ecause [the defendant] was arrested while in control of
       his vehicle, the police were legally permitted to tow the
       car, they would have conducted an inventory of the car
       which would have included looking in obvious storage
       places such as the glove compartment and the center
       console. Because they would have legally opened the
       center console during a proper inventory search, the gun
       would have been found. … Because the police would have
       been able to tow [the defendant’s] car pursuant to his
       arrest and because the police conduct routine inventory
       searches whenever a car is towed, and an inventory search
       includes looking into obvious storage places such as the
       center console, we must agree that the gun would have
       inevitably been discovered absent police error or
       misconduct.      Therefore the record supports the
       suppression court[’s] determination that evidence was not
       subject to suppression.

     Id.

           The same rationale applies here. Even assuming that
     Trooper Kalinchock searched [Appellant’s] car for the improper
     purpose of locating contraband, the evidence he found is
     nevertheless admissible, because it inevitably would have been
     discovered pursuant to a lawful inventory search at the impound
     lot. Trooper Kalinchock had to arrest [Appellant] due to the

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      existence of the outstanding warrant. [Appellant’s] passenger
      could not drive the car away from the scene.           Therefore,
      pursuant to 75 Pa.C.S.A. § 3352(c)(3), Trooper Kalinchock had
      to arrange for the car to be towed to a secure facility. Once in
      storage, under the Pennsylvania State Police Vehicle Storage
      Procedure, the car would have been subjected to an inventory
      search. Because the one hundred ninety (190) packets of heroin
      seized from [Appellant’s] car were located in the center console
      (as in Bailey), it is certain that the heroin would have been
      found during the inventory search. Accordingly, the heroin is
      admissible under the inevitable-discovery exception to the
      warrant requirement.

SCO at 18-20.

      Appellant offers one argument challenging the court’s admission of this

evidence under the inevitable discovery doctrine. He maintains that,

      the police inventory policy … fails to specifically identify a policy
      with regard to the searching of closed compartments within the
      vehicle, which is an element of a lawful inventory search
      pursuant to ... Wells, 495 U.S. 1 … (police must directly specify
      a standardred [sic] procedure regarding the searching of closed
      compartments with-in [sic] the vehicle, and there can be no
      room for discretion on the part of the individual officer
      conducting the search)[,] in conjunction with ... Bertine, 479
      U.S. 367 …. Under the above authorities, any contraband which
      has been seized from a closed compartment with-in [sic] the
      vehicle in question will still be inadmissible in the absence of a
      directive which specifically authorizes an individual officer to
      open such compartments during a standardred [sic] inventory
      search of the vehicle.

Appellant’s Brief at 26.

      Appellant does not discuss Bailey, or the suppression court’s reliance

thereon to conclude that the center console of his car would have been

lawfully opened during a routine inventory search of his vehicle after it was

impounded.    In Bailey, this Court characterized the center console of a

vehicle as an “obvious storage place” that can be “legally opened … during a

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proper inventory search….”     Bailey, 986 A.2d at 862.       While Appellant

contends that the console was a ‘closed compartment’ that could not be

opened without proof that the police had an inventory policy specifically

addressing the opening of such a ‘compartment,’ the cases on which he

relies are distinguishable.   Namely, in both Wells and Bertine, police

officers opened a closed container - a locked suitcase and a closed backpack,

respectively - that was found inside the car. Unlike in the present case, the

containers opened in Wells and Bertine were separate containers simply

located inside the car - they were not part of the vehicle itself, such as the

center console is in the present case.       Accordingly, Appellant has not

convinced us that our holding in Bailey, or the suppression court’s ruling

here, are incorrect in light of Wells and/or Bertine.          Therefore, his

challenge to the suppression court’s admission of the heroin is meritless.

      In Appellant’s next issue, his third, he presents several sub-claims.

First, he argues that the court violated Brady v. Maryland, 373 U.S. 83

(1963), by withholding certain evidence.

      [T]o establish a Brady violation, a defendant must demonstrate
      that: (1) the evidence was suppressed by the Commonwealth,
      either willfully or inadvertently; (2) the evidence was favorable
      to the defendant; and (3) the evidence was material, in that its
      omission      resulted   in    prejudice    to   the   defendant.
      Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297, 308
      (2011).

Commonwealth v. Haskins, 2012 PA Super 223, 60 A.3d 538, 545

(2012). Appellant’s Brady claim, framed at the outset as a court error, is



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incorrect on its face.     In any event, he goes on to argue that the

Commonwealth violated Brady, premising his entire claim on his belief that

the Commonwealth withheld video footage taken from Trooper Kalinchock’s

patrol vehicle.    Appellant has not actually discovered any such video

evidence; instead, he merely speculates that such evidence must exist. This

unsupported allegation fails to prove that the Commonwealth committed a

Brady violation.

      Also within his third issue, Appellant presents a confusing argument

regarding a video that was shown at trial by the Commonwealth. From what

we can ascertain, Appellant essentially contends that the video was edited to

remove certain portions.      Appellant’s argument is again based on mere

speculation; he does not cite to anything in the record that would support

this claim. Therefore, it is meritless.

      Likewise, Appellant also challenges the court’s admission of a recorded

phone call he made while incarcerated, which the Commonwealth turned

over on the morning his trial began. Appellant only devotes a few sentences

to this claim, simply stating that the Commonwealth committed a discovery

violation by not turning this evidence over to him earlier.          Appellant’s

underdeveloped argument does not convince us that the court abused its

discretion in admitting this evidence. See Commonwealth v. Young, 989

A.2d 920, 924 (Pa. Super. 2010) (citation omitted) (“Questions concerning

the admissibility of evidence lie within the sound discretion of the trial court,




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and a reviewing court will not reverse the trial court's decision absent a clear

abuse of discretion.”).

      In Appellant’s fourth issue, he argues that the court erred by denying

his request for a hearing, prior to the imposition of his sentence, for the

court to “determine the amount of drugs intended for personal use and for

delivery.” Appellant’s Brief at 37 (citation to the record omitted). Appellant

avers he had a right to such a hearing under Commonwealth v. Carroll,

651 A.2d 171 (Pa. Super. 1995). Appellant does not point to where in the

record he requested such a hearing; thus, we deem this issue waived. See

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”).

      We note that Appellant also embeds, within his fourth issue, lengthy

arguments purporting to challenge the sufficiency and weight of the

evidence to sustain his convictions.    Appellant’s arguments are extremely

confusing.    For instance, he begins by stating that he is challenging the

weight of the evidence to support his conviction of following too closely, as

defined by 75 Pa.C.S. § 3310.      See Appellant’s Brief at 42.    However, in

support of this claim, Appellant suggests that Trooper Kalinchock’s testimony

was not sufficient to prove that Appellant committed this offense. See id. at

42-44. Not only does Appellant mischaracterize his sufficiency challenge as

a weight-of-the-evidence claim, but in his argument, he only provides

citations to portions of Trooper Kalinchock’s testimony from the suppression

hearing.     See Appellant’s Brief at 43.     The trooper’s testimony at the

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suppression hearing is irrelevant in assessing either a sufficiency or weight-

of-the-evidence claim. Accordingly, Appellant’s argument is meritless.

      Appellant also challenges the sufficiency of the evidence to sustain his

conviction for possession with intent to deliver. Id. at 46. We decline to

assess the specifics of Appellant’s lengthy and confusing claim; rather, we

will provide a general discussion of the sufficiency of the evidence. To begin,

we note our standard of review of a challenge to the sufficiency of the

evidence:

      In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

      This Court has also explained that,

      [t]o establish the offense of possession of a controlled substance
      with intent to deliver, the Commonwealth must prove beyond a
      reasonable doubt that the defendant possessed a controlled
      substance with the intent to deliver it. The intent to deliver can
      be inferred from an examination of the surrounding facts and
      circumstances. Factors to consider in determining whether the
      drugs were possessed with the intent to deliver include the
      particular method of packaging, the form of the drug, and the
      behavior of the defendant.

      The Commonwealth has the option to establish actual or
      constructive possession.

                                    - 20 -
J-S35022-16


         Constructive possession requires proof of the ability to
         exercise conscious dominion over the substance, the power
         to control the contraband, and the intent to exercise such
         control. Constructive possession may be established by the
         totality of the circumstances. We have held that
         circumstantial evidence is reviewed by the same standard
         as direct evidence-a decision by the trial court will be
         affirmed so long as the combination of the evidence links
         the accused to the crime beyond a reasonable doubt.

Commonwealth v. Perez, 931 A.2d 703, 707-08 (Pa. Super. 2007)

(internal citations and quotation marks omitted).

     In this case, Trooper Kalinchock testified that Appellant was driving

the vehicle when the trooper conducted the traffic stop. N.T. Trial, 12/4/13,

at 40.   The vehicle was registered to Appellant.    Id. at 37.    During an

inventory search of the vehicle, Trooper Kalinchock opened the center

console between the two front seats. Id. at 53. Inside, the trooper found a

large bag containing “wax folds that are consistent with the way heroin is

packaged.” Id. at 44. The trooper also observed that the wax folds were

stamped with the words “Zero Tolerance.”       Id.   Based on the trooper’s

training and experience, he believed that the bag contained heroin. Id. at

45. He seized the bag of drugs, which was later determined to contain 19

bundles of heroin. Id. at 54. Each bundle contained “10 individually waxed

folds of heroin. They were rubber banded together and each one contained

10 packets, so 190 packets total; 19 bundles of 10.”     Id.   The wax folds

were stamped with the words “Zero Tolerance.” Id.

     Additionally, the other individual present in Appellant’s vehicle when it

was stopped by Trooper Kalinchock testified for the Commonwealth at


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J-S35022-16



Appellant’s trial.   That man, Carlos Salas, testified that prior to Trooper

Kalinchock’s discovering the heroin in Appellant’s vehicle, he had never seen

those drugs. Id. at 145. Salas stated that he did not know the drugs were

in Appellant’s car, and at no point was he inside the vehicle by himself. Id.

He testified that on the night of the traffic stop, Appellant picked him up in

the vehicle and the two drove around until Trooper Kalinchock stopped

them. Id. He testified that when the trooper confronted him with the drugs

and asked if they were his, Salas “said no.” Id. at 146.

      This   evidence    was   sufficient     to   demonstrate   that   Appellant

constructively possessed the heroin, and did so with the intent to deliver it.

The drugs were located in the center console directly beside Appellant.

Appellant owned the vehicle and was driving it. The only other person in the

vehicle, Salas, testified that he did not know the drugs were in the car, and

he denied that they were his. These facts were sufficient for the jury to infer

that Appellant had the ability, power, and intent to exercise control over the

heroin and, thus, that he constructively possessed those drugs. Additionally,

the large quantity of drugs was alone sufficient to demonstrate that

Appellant intended to sell them.     See Commonwealth v. Jackson, 645

A.2d 1366, 1368 (Pa. Super. 1994) (“In Pennsylvania, the intent to deliver

may be inferred from possession of a large quantity of controlled

substances.”) (citations omitted).   Accordingly, the evidence was sufficient

to prove Appellant’s PWID offense.      We also note that the jury’s verdict

convicting Appellant of this offense was not contrary to the weight of the

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J-S35022-16



evidence, as it does not “shock[] one’s sense of justice.” Commonwealth

v. Houser, 18 A.3d 1128, 1136 (Pa. 2011) (citation omitted).2

       In Appellant’s next issue, his fifth, he presents numerous challenges to

the admission of certain evidence.

       The standard of review employed when faced with a challenge to
       the trial court's decision as to whether or not to admit evidence
       is well settled. Questions concerning the admissibility of evidence
       lie within the sound discretion of the trial court, and a reviewing
       court will not reverse the trial court's decision absent a clear
       abuse of discretion. Abuse of discretion is not merely an error of
       judgment, but rather where the judgment is manifestly
       unreasonable or where the law is not applied or where the record
       shows that the action is a result of partiality, prejudice, bias or ill
       will.

Young, 989 A.2d at 924 (citations omitted).

       First, Appellant reiterates a challenge to the admission of a recorded

phone call made by Appellant to his grandmother while Appellant was

incarcerated.3 In that phone call, Appellant essentially tells his grandmother
____________________________________________


2
  As discussed, supra, the judge who presided over Appellant’s trial left the
bench in Northampton County before ruling on Appellant’s post-sentence
motion raising his weight-of-the-evidence claim.            Facing these same
circumstances in Armbruster v. Horowitz, 744 A.2d 285 (Pa. Super.
1999), this Court concluded that such a scenario is “an exception to the
general rule that a court, relying solely on a ‘cold’ record, may not exercise a
review of a weight of the evidence claim.” Id. at 286. We further stated
that, “[i]n these exceptional circumstances, we believe the interests of
justice require that the weight of the evidence claim be reviewed by the
appellate tribunal rather than vacating the judgment and remanding for a
new trial.” Id. at 286-87.

3
  Appellant also briefly addressed the admission of this evidence in his third
issue, discussed supra.



                                          - 23 -
J-S35022-16



that he was not planning on selling the heroin, but claims he purchased it for

personal use. See Appellant’s Brief at 54; see also N.T. Trial, 12/5/13, at

6. Appellant explained that he bought such a large amount “because when

you buy a lot it’s cheaper[.]” Appellant’s Brief at 54; see also N.T. Trial,

12/5/13, at 6.

      Appellant provides an excessively lengthy and confusing argument,

offering various reasons why he believes the court erred by admitting this

recorded phone conversation. However, at trial, defense counsel objected to

the admission of this recording on the basis that the Commonwealth had

committed a discovery and/or Brady violation by not turning this evidence

over to the defense earlier than the day on which Appellant’s trial was set to

begin. See N.T. Trial, 12/5/13, at 13-16. In response, the Commonwealth

stressed that it did not willfully withhold the recording; rather, it maintained

that it had not discovered the recorded phone call until December 3, 2013.

The Commonwealth maintained that upon discovering the recording, it

immediately called defense counsel, informed him about the content of the

conversation, and turned a copy of the recording over to the defense as

soon as it was available, which was on December 4, 2013. Id. at 17.

      The court ruled that the Commonwealth did not have an obligation to

discover this evidence earlier, and that as soon as the Commonwealth came

into possession of the recording, it turned it over to defense counsel. The

court also noted that “[e]ven if [the recording] had been turned over earlier,

[the court could not] fathom what the defense could have done to meet it.

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J-S35022-16



There’s no indication that it could be suppressed in any fashion. There’s no

indication it could have been forged or that the authentication of it was in

question where an expert needed to be called [to verify] it was his voice.”

Id. at 18.    Nevertheless, the court asked defense counsel if he would be

“requesting a continuance in order to prepare to meet this new evidence[,]”

and defense counsel replied, “No, Your Honor.” Id.

       Herein, Appellant attempts to present novel theories regarding why

this recording should not have been admitted. However, only the arguments

presented by defense counsel below are preserved for our review.                    See

Pa.R.A.P. 302(a). Because Appellant offers no clear discussion pertaining to

those preserved arguments, he has not convinced us that the court abused

its discretion by admitting the evidence of his recorded phone conversation.

       Within this issue, Appellant also challenges the court’s “allowing the

[jury] to hear numerous references, by both witnesses for the prosecution as

well   as   the   District   Attorney,   regarding   a   ‘felony   gun   warrant’    or

[Appellant’s] being entered as ‘wanted - armed and dangerous’ in the in-car

[police] computer system….” Appellant’s Brief at 56. Appellant does not cite

to where in the record he objected to these ‘numerous references.’ While he

does direct us to where these references were made, none of those portions

of the transcript contain any objection by defense counsel. See Appellant’s

Brief at 57 (citing N.T. Trial, 12/4/13, at 93, 148, 163-165). Indeed, several

of Appellant’s citations refer to defense counsel’s cross-examination of one

of the police officers present at the scene of Appellant’s traffic stop. See id.

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J-S35022-16



(citing N.T. Trial, 12/4/13, at 177-178). As Appellant did not object to these

purportedly improper references to his ‘felony gun warrant’ or the fact that

he was labeled ‘armed and dangerous’ in the police computer system, he has

waived those issues for our review.            See Commonwealth v. Bruce, 916

A.2d 657, 671 (Pa. Super. 2007) (holding that a “failure to offer a timely

and specific objection results in waiver of” the claim).

      Similarly, Appellant also alleges that the prosecutor made improper

comments during her closing argument, yet the portions of the record to

which he cites contain no defense objection. See id. at 58 (citing N.T. Trial,

12/5/13, at 132, 142, 144).           Thus, this argument is also waived.            See

Bruce, supra.

      Finally,   in   his   last   issue,    Appellant    appears   to   challenge   the

discretionary aspects of his sentence.               We need not address his specific

arguments, as the record indicates that the court imposed an illegal

mandatory minimum term of incarceration under 18 Pa.C.S. § 7508, which

has been declared unconstitutional in its entirety in light of Alleyne v.

United States, 133 S.Ct. 2151, 2163 (2013) (holding that facts that

increase a mandatory minimum sentence must be submitted to the fact-

finder and proven beyond a reasonable doubt).                See Commonwealth v.

Cardwell, 105 A.3d 748, 755 (Pa. Super. 2014) (deeming section 7508




                                            - 26 -
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unconstitutional in light of Alleyne).4        While Appellant does not raise this

claim, “challenges to an illegal sentence can never be waived and may be

reviewed sua sponte by this Court.” Commonwealth v. Randal, 837 A.2d

1211, 1214 (Pa. Super. 2003) (citation, internal quotation marks, and

brackets omitted).       Because Appellant’s sentence is illegal under Alleyne

and Cardwell, we vacate that sentence and remand for resentencing.

       Judgment of sentence vacated.               Case remanded for resentencing.

Jurisdiction relinquished.




____________________________________________


4
  At the sentencing hearing, the court indicated that Appellant’s minimum
sentence of two years’ incarceration for PWID was a mandatory minimum
term under 18 Pa.C.S. § 7508(a)(7)(i) (“A person who is convicted of
violating section 13(a)(14), (30) or (37) of The Controlled Substance, Drug,
Device and Cosmetic Act where the controlled substance or a mixture
containing it is heroin shall, upon conviction, be sentenced as set forth in
this paragraph: (i) when the aggregate weight of the compound or mixture
containing the heroin involved is at least 1.0 gram but less than 5.0 grams
the sentence shall be a mandatory minimum term of two years in prison….”).
See N.T. Sentencing, 12/14/14, at 6 (court’s stating that “the amount of
heroin was determined to be … greater than one gram but less than ten
grams,” and thus, “mandatory minimum of two years[’] incarceration”
applied); see also id. at 18 (court’s stating: “I’m sentencing you to the
mandatory minimum in the state correctional institution, but I’m setting a
maximum of eight years. So a minimum in the state correctional institution
of two years to a maximum of eight years….”).



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J-S35022-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/21/2016




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