J-S51043-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                :       IN THE SUPERIOR COURT OF
                                             :             PENNSYLVANIA
                    Appellee                 :
                                             :
              v.                             :
                                             :
JAMEEL R. MINCEY,                            :
                                             :
                    Appellant                :           No. 1505 MDA 2013

        Appeal from the Judgment of Sentence entered on July 18, 2013
              in the Court of Common Pleas of Lycoming County,
                 Criminal Division, No. CP-41-CR-0001155-2012

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED SEPTEMBER 22, 2014

        Jameel R.

imposed following his convictions of one count each of possession with the

intent to deliver, possession of drug paraphernalia, public intoxication and

disorderly conduct.1 We affirm.

        The trial court set forth the underlying facts as follows:

        At approximately 2:41 a.m. on June 22, 2012, Williamsport
        police officers were dispatched to the Sheetz at 105 Maynard
        Street for a fight in progress. When the police arrived, they
        observed a white male, a white female, and [Mincey] involved in
        a verbal altercation. The police tried to separate the individuals.
        Officer Jonathan Deprenda spoke to [Mincey] and asked
        [Mincey] to tell him what happened.         [Mincey] told Officer
        Deprenda that the white male had hit him in the mouth and then
        he stepped towards the white male. Officer Deprenda was
        between the two men and walked [Mincey] towards his vehicle.
        He noticed a strong odor of an alcoholic beverage coming from
                  s person. [Mincey] also was very unsteady on his feet,

1
    35 P.S. § 780-113(a)(30), (32); 18 Pa.C.S.A. §§ 5503(a)(1), 5505.
J-S51043-14

     nearly falling over as [he] go
     Officer Deprenda asked [Mincey] to identify himself or produce
     identification, but [Mincey]
     identification. Officer Deprenda took [Mincey] into custody for
     disorderly conduct and public drunkenness and transported him
     to City Hall where he was identified as Mincey.

          Officer Deprenda searched [Mincey] incident to his arrest
     and discovered 19 baggies of cocaine contained within a larger
                                                            neteen
     baggies of cocaine weighed 9.6 grams.

           [Mincey] was charged with possession with intent to
     deliver a controlled substance, an ungraded felony; possession
     of drug paraphernalia, an ungraded misdemeanor; and the
     summary offenses of disorderly conduct and public drunkenness.
     Following a nonjury trial held on January 14, 2013, the court
     found [Mincey] guilty of all the charges.

           On July 18, 2013, the court sentenced [Mincey] to 2½ to 5
     years of incarceration in a state correctional institution for
     possession with intent to deliver a controlled substance and a
     consecutive 6 months to 1 year of incarceration for possession of
     drug paraphernalia. [The court imposed no further punishment
     for each of the summary offenses.]

           [Mincey] filed a motion for reconsideration of sentence in
     which he asserted that[]
     and excessive; the possession of drug paraphernalia charge
     should have run concurrently because the paraphernalia was the
     bags in which the cocaine was discovered; and the court failed to

     treatment. The court denied this motion, and [Mincey] filed a
     timely appeal.

Trial Court Opinion, 11/26/13, at 1-2 (footnote omitted).

     On appeal, Mincey raises the following questions for our review:

     1. Was the evidence presented at trial [] insufficient to prove
        beyond a reasonable doubt that [Mincey] was guilty of
        possession of drug paraphernalia; specifically because
        evidence established that he purchased the controlled



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J-S51043-14

         substance as packaged and did not have separate implements
         for storage, ingestion, etc.?
      2. Did the trial court abuse its discretion when imposing
         consecutive sentences for possessing drug paraphernalia and
         possession with the intent to deliver?

Brief for Appellant at 8.

      In his first claim, Mincey contends that he did not have the requisite

mens rea to be found guilty of possession of drug paraphernalia, as he

                                        .   Id. at 12-13. Mincey argues that

he had no intent to use the baggies and that his sole objective was to obtain

the cocaine for personal use. Id. at 13-14.

      In reviewing a challenge to the sufficiency of the evidence, we

                                  most favorable to the verdict winner giving

the prosecution the benefit of all reasonable inferences to be drawn from the

              Commonwealth v. Bibbs, 970 A.2d 440, 445 (Pa. Super.

2009) (citation omitted).

            Evidence will be deemed sufficient to support the verdict
      when it established each element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty, and may sustain its burden by means of
      wholly circumstantial evidence.     Significantly, [we] may not
      substitute [our] judgment for that of the factfinder; if the record
      contains support for the convictions they may not be disturbed.

Id.   (citation



weak and inconclusive that, as a matter of law, no probability of fact can be




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                                            Commonwealth v. Scott, 967

A.2d 995, 998 (Pa. Super. 2009).

     Relevantly, 35 P.S. § 780-



storing, containing, concealing, injecting, inhaling or otherwise introducing

                                                                         Drug



kind which are used, intended for use, or designed for use in storing,

containing, concealing

P.S. § 780-102.

     The trial court addressed          claim as follows:

     The law does not require the paraphernalia to be separate from
     the controlled substance. See Commonwealth v. Caban, 60
     A.3d 120 (Pa. Super. 2012) (Superior Court rejected a challenge
     to the sufficiency of the evidence for a paraphernalia conviction
     where the paraphernalia was the gift box and cellophane in
     which the marijuana was wrapped); Commonwealth v.
     Coleman, 984 A.2d 998, 1000-1002 (Pa. Super. 2009) (glass
     vials, glassine baggie and sock which contained crack cocaine
     constituted drug paraphernalia). In fact, determining whether
     an object is drug paraphernalia a court should consider the
     proximity of the object to controlled substances. 35 P.S. § 780-
     102.

           In this case, the bags clearly were being used to store or
     contain the cocaine. In fact, [Mincey] called a witness, James


     is no such thing as a distribution bag in the drug world. The bag
     was just a sandwich bag; its purpose was to keep the smaller
     bags of cocaine together so no one would lose any of them.
     [N.T., 7/18/13, at 69.]



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         showed that the bags were being used to store or contain the
         cocaine. Therefore, this issue lacks merit.

Trial Court Opinion, 11/26/13, at 3-4. We agree with the sound reasoning of

the trial court and conclude that the evidence was sufficient to convict

Mincey of possession of drug paraphernalia. See id.

                   second   claim   implicates   the   discretionary   aspects   of

sentencing.

               An appellant challenging the discretionary aspects of his
         sentence must invoke thi
         part test:

         [We] conduct a four-part analysis to determine: (1) whether
         appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
         and 903; (2) whether the issue was properly preserved at
         sentencing or in a motion to reconsider and modify sentence,
         see Pa.R.Crim.P. [720]; (3) whether appellant
         defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
         question that the sentence appealed from is not appropriate
         under the Sentencing Code, 42 Pa. C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

         Here, Mincey filed a timely Notice of Appeal, preserved the issue in his

Motion for Reconsideration, and included a Rule 2119(f) statement in his

brief.    In his Rule 2119(f) statement, Mincey claims that the trial court

imposed consecutive sentences contrary to the fundamental norms of

sentencing,




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Brief for Appellant at 15.   This claim raises a substantial question. See

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013).

     The trial court addressed this claim as follows:

     The court could impose separate sentences on these offenses,
     because the crimes did not merge. 42 Pa.C.S.A. §
     crimes merge for sentencing purposes unless the crimes arise
     from a single criminal act and all of the statutory elements of
     one offense are included in the statutory elements of the other

     sentencing court discretion to impose its sentences concurrently
     or consecutively to other sentences being imposed at the same
                                                 Commonwealth v.
     Austin, 66 A.3d 798, 808 (Pa. Super. 2013). A sentence will
     not be reversed on appeal unless the sentencing court abused its

     of judgment; thus, a sentencing court will not have abused its

     exercised was manifestly unreasonable or the result of partiality,
     prejudice, bias or ill-    Commonwealth v. Walls, 592 A.2d
     957, 961 (Pa. 2007), quoting Commonwealth v. Smith, 543
     A.3d 893, 895 (Pa. 1996).


     this case was neither unreasonable nor based on any partiality,
     prejudice, bias, or ill-will against [Mincey], but rather was
     motivated by a desire to protect the public. [N.T., 7/18/13, at
     26-29; N.T., 8/1/13, at 12.] Although in many cases the court
     would not impose a consecutive sentence for a paraphernalia
     charge when there was no additional paraphernalia for ingesting
     or packaging controlled substances, this was not a typical case.
     Generally speaking, from 1996 to the present [Mincey] had
     difficulty refraining from selling drugs, using drugs, or driving a
     vehicle while he was under the influence of drugs or alcohol
     while his license was suspended except when he was
     incarcerated. He had been in and out of the criminal justice
     system with escalating consequences and nothing seemed to
     work. Furthermore, [Mincey] had three other cases that were
     being sentenced at the same time as this case. He committed
     the offenses in this case about two months after his arrest for
     possession of Percocet[,] and within eight days of his arrest for
     DUI. Then he committed another DUI about two months after


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      he committed the offenses in this case. [N.T., 7/18/13, at 5;
      N.T., 8/1/13, at 11.]    These factors could have justified a
      sentence in the aggravated range or a lengthier maximum
      sentence for possession with intent to deliver cocaine,[fn] but the
      court did not do that. Instead, the court simply imposed a
      consecutive sentence of six months to one year on the
      paraphernalia charge, which under all the facts and
      circumstances was neither an abuse of discretion nor an
      excessive sentence.

      [fn] The statutory maximum sentence for possession with intent
      to deliver cocaine was 20 years, because [Mincey] had prior
      convictions for delivery or possession with intent to deliver a
      controlled substance. 35 P.S. § 780-115.

Trial Court Opinion, 11/26/13, at 5 (footnote in original); see also N.T.,

7/18/13, at 11-15, 26-

rehabilitative needs and his prior history of addiction in rendering the

sentence).    Furthermore, the trial court was informed by a pre-sentence

investigation report.   N.T., 7/18/13, at 8-13; see also Commonwealth v.

Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (stating that where trial

court had the benefit of pre-sentence investigation report, the court satisfies

its requirement that the reasons for the sentence be placed on the record

and all relevant factors considered).

      Based on the foregoing, we conclude that the trial court did not abuse

its discretion by imposing consecutive sentences and therefore adopt the

sound reasoning of the trial court.

      Judgment of sentence affirmed.




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J-S51043-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/22/2014




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