J-S58006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 ALBERT D. MAXON, JR.                    :
                                         :
                   Appellant             :   No. 1638 WDA 2017

          Appeal from the Judgment of Sentence October 3, 2017
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                        CP-25-CR-0003995-2016


BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                        FILED NOVEMBER 2, 2018

     Appellant, Albert D. Maxon, Jr., appeals from the judgment of sentence

entered on October 3, 2017. We affirm.

     The trial court thoroughly summarized the evidence presented at the

suppression hearing:

       On August [12,] 2016, City of Erie Police Corporal Curtis
       Waite . . . received a dispatch call to the [400 block] of East
       3rd Street in Erie, Pennsylvania for a male and female passed
       out in a vehicle. Upon arriving in the [400 block,] . . .
       Corporal Waite observed the vehicle, which was parked with
       the driver’s door wide open, and further observed a male
       seated in the driver’s seat and a female seated in the front
       passenger seat. The male, identified as [Appellant,] had a
       [marijuana] blunt in his mouth and discarded the blunt as
       Corporal Waite approached the vehicle. When asked about
       the blunt by Corporal Waite, who has been involved in prior
       drug investigations and has experience with packaging and
       sale of drugs, [Appellant] admitted the blunt contained
       marijuana and he [] had smoked the marijuana blunt earlier.
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          [Appellant] and the female occupant were asked to exit the
          vehicle, to which they complied, and were patted down for
          weapons and contraband, none of which were found on their
          persons. Thereafter, Corporal Waite searched the front area
          of the vehicle[,] as the back seat of the vehicle was filled with
          clothes and other personal belongings.          Corporal Waite
          discovered a closed black hygiene bag on the head cushion
          of the driver’s seat of the vehicle, where [Appellant] had been
          seated. When Corporal Waite opened the black hygiene bag,
          he discovered [109] empty clear [and] yellow baggies, nine
          [] baggies containing a substance suspected to be heroin,
          four [] baggies containing a substance suspected to be
          cocaine[,] and a digital scale.        [Appellant] admitted to
          Corporal Waite that everything in the black hygiene bag was
          his.

          The substances in the baggies were field-tested, which
          indicated positive for heroin and cocaine, and were thereafter
          sent to the Pennsylvania State Police lab. . . . [The]
          Pennsylvania State Police lab report [declared that] the
          baggies found in the black hygiene bag contained 3.09 grams
          of heroin and 4.66 grams of cocaine.

Trial Court Opinion, 7/12/17, at 1-3 (internal paragraphing omitted).

        The Commonwealth charged Appellant with two counts each of

possession of a controlled substance with the intent to deliver (PWID),

possession of a controlled substance, and possession of drug paraphernalia. 1

        On March 24, 2017, Appellant filed a pre-trial motion, where he

requested that the trial court suppress the physical evidence against him.

Appellant claimed that suppression was mandated because Corporal Waite did

not have probable cause to search the closed, black hygiene bag in Appellant’s

vehicle. Appellant’s Motion to Suppress, 3/24/17, at 4-5. The trial court held



____________________________________________


1   35 P.S. §§ 780-113(a)(30), (16), and (32), respectively.

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a hearing on Appellant’s suppression motion and, on July 12, 2017, the trial

court denied the motion. Trial Court Order, 7/12/17, at 1.

      Appellant proceeded to a jury trial, where the Commonwealth again

presented the above-summarized evidence; at the conclusion of trial, the jury

found him guilty of all charged crimes.      N.T. Trial, 8/18/17, at 233.     On

October 3, 2017, the trial court sentenced Appellant to serve an aggregate

term of 27 to 54 months in prison, followed by two years of probation, for his

convictions.   N.T. Sentencing, 10/3/17, at 17-18.     Appellant filed a timely

notice of appeal. He numbers three claims in the “statement of questions

involved” section of his brief:

        [1.] Whether the trial court erred in denying Appellant’s
        omnibus pre-trial motion to suppress?

        [2.] Whether the Commonwealth presented insufficient
        evidence to establish [Appellant’s] guilt beyond a reasonable
        doubt of [PWID], possession of a controlled substance, and
        possession of drug paraphernalia?

        [3.] Whether [Appellant’s] sentence is manifestly excessive,
        clearly unreasonable and inconsistent with the objectives of
        the Pennsylvania Sentencing Code?

Appellant’s Brief at 3 (some internal capitalization omitted).

      Appellant first claims that the trial court erred when it denied his motion

to suppress. Appellant’s Brief at 7. “Once a motion to suppress evidence has

been filed, it is the Commonwealth's burden to prove, by a preponderance of

the evidence, that the challenged evidence was not obtained in violation of

the defendant's rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047–



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1048 (Pa. Super. 2012) (en banc); see also Pa.R.Crim.P. 581(H).          With

respect to an appeal from the denial of a motion to suppress, our Supreme

Court has declared:

        Our standard of review in addressing a challenge to a trial
        court's denial of a suppression motion is whether the factual
        findings are supported by the record and whether the legal
        conclusions drawn from those facts are correct. When
        reviewing the ruling of a suppression court, we must consider
        only the evidence of the prosecution and so much of the
        evidence of the defense as remains uncontradicted when read
        in the context of the record.... Where the record supports the
        findings of the suppression court, we are bound by those facts
        and may reverse only if the legal conclusions drawn
        therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (internal

citations omitted).   “It is within the suppression court's sole province as

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

their testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.

Super. 2006). Moreover, our scope of review from a suppression ruling is

limited to the evidentiary record that was created at the suppression hearing.

In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).

      According to Appellant, the trial court erred when it denied his

suppression motion, as Corporal Waite did not have probable cause to search

the closed, black hygiene bag in his vehicle. This claim fails.

      “The Fourth Amendment to the [United States] Constitution and Article

I, Section 8 of [the Pennsylvania] Constitution protect citizens from

unreasonable searches and seizures.” Commonwealth v. McAdoo, 46 A.3d



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781, 784 (Pa. Super. 2012). “A search conducted without a warrant is deemed

to be unreasonable and therefore constitutionally impermissible, unless an

established exception applies.” Commonwealth v. Strickler, 757 A.2d 884,

888 (Pa. 2000).    One exception to the warrant requirement is a search

conducted on an automobile. As we recently explained:

        In [Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014)
        (plurality)], the Supreme Court of Pennsylvania reinterpreted
        Article I, § 8 as paralleling the Fourth Amendment's
        protections against warrantless searches of automobiles,
        because “it is desirable to maintain a single, uniform standard
        for a warrantless search of a motor vehicle, applicable in
        federal and state court, to avoid unnecessary confusion,
        conflict, and inconsistency in this often-litigated area.”
        [Gary, 91 A.3d at 138]. Hence, Pennsylvania now follows
        federal law on this issue; “where police possess probable
        cause to search a car, a warrantless search is permissible.”
        In re I.M.S., 124 A.3d 311, 317 (Pa. Super. 2015).

Commonwealth v. Davis, 188 A.3d 454, 457-458 (Pa. Super. 2018)

(internal footnote omitted).

      Moreover, in In re I.M.S. and Commonwealth v. Runyan, 160 A.3d

831 (Pa. Super. 2017), we applied the United States Supreme Court’s holding

in Wyoming v. Houghton, 526 U.S. 295 (1999) to Pennsylvania and held

that, in Pennsylvania, where “there is probable cause to search for contraband

in a car, it is reasonable for police officers – like customs officials in the

founding era – to examine packages and containers without a showing of

individualized probable cause for each one.” In re I.M.S., 124 A.3d at 316,

quoting Houghton, 526 U.S. at 302; see also Runyan, 160 A.3d at 837.

Thus, “if [an officer] ha[s] probable cause to search the vehicle [] for


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contraband[, the officer is] also permitted to search any container found

therein where the contraband could be concealed,” without an individualized

showing of probable cause for the particular container. Runyan, 160 A.3d at

837.

       As to the probable cause requirement, we have explained:

         The level of probable cause necessary for warrantless
         searches of automobiles is the same as that required to
         obtain a search warrant. The well-established standard for
         evaluating whether probable cause exists is the “totality of
         the circumstances” test. This test allows for a flexible,
         common-sense approach to all circumstances presented.
         Probable cause typically exists where the facts and
         circumstances within the officer's knowledge are sufficient to
         warrant a person of reasonable caution in the belief that an
         offense has been or is being committed. The evidence
         required to establish probable cause for a warrantless search
         must be more than a mere suspicion or a good faith belief on
         the part of the police officer.

         The question we ask is not whether the officer's belief was
         correct or more likely true than false. Rather, we require only
         a probability, and not a prima facie showing, of criminal
         activity.

Id. (internal quotations, citations, and emphasis omitted).

       As the trial court ably explained, Corporal Waite possessed probable

cause to believe that marijuana was contained within Appellant’s vehicle;

therefore, Corporal Waite possessed probable cause to search the black

hygiene bag inside of the vehicle:

         Corporal Waite’s experience in drug investigations, including
         experience with packaging and sale of drugs, Corporal
         Waite’s observation of the blunt discarded by [Appellant,]
         and [Appellant’s] own admission that the blunt contained
         marijuana supports probable cause that [Appellant] was

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         involved in drug-related criminal activities and gave Corporal
         Waite the authority to search [Appellant’s] vehicle. During
         the search of the vehicle, Corporal Waite [] discovered a
         closed black hygiene bag on the head cushion of the driver’s
         seat of the vehicle, where [Appellant] had been seated.
         Inside the black hygiene bag, Corporal Waite [] discovered
         numerous empty baggies, baggies containing suspected
         heroin and cocaine, and a digital scale.

         Therefore, the totality of the circumstances, Corporal Waite’s
         experience in drug investigations, including the packaging
         and sale of drugs, Corporal Waite’s observation of [Appellant]
         discarding a blunt and [Appellant’s] own admission that the
         blunt contained marijuana, [established] . . . probable cause
         to search [Appellant’s] vehicle and any containers therein for
         controlled substances.

Trial Court Opinion, 7/12/17, at 5.

       We agree with the trial court’s cogent analysis. Therefore, Appellant’s

challenge to the trial court’s suppression order fails.

       Next, Appellant claims that the evidence was insufficient to support his

PWID convictions.2 Appellant’s Brief at 10. We review Appellant’s sufficiency

of the evidence claim under the following standard:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at trial
         in the light most favorable to the verdict winner, there is
         sufficient evidence to enable the fact-finder to find every
____________________________________________


2  Within the “statement of questions involved” section of Appellant’s brief,
Appellant declares that he is challenging the sufficiency of all of his
convictions.     However, the argument section of Appellant’s brief only
challenges the sufficiency of his PWID convictions. See Appellant’s Brief at
10-11. Therefore, we will only consider Appellant’s claim that the evidence
was insufficient to support his PWID convictions.       Commonwealth v.
Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (holding that, where the
appellant “fails to expand upon [a] claim in the argument section of his brief
... the claim is waived”).


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        element of the crime beyond a reasonable doubt. In applying
        the above test, we may not weigh the evidence and substitute
        our judgment for [that of] the fact-finder. In addition, we
        note that the facts and circumstances established by the
        Commonwealth need not preclude every possibility of
        innocence. Any doubts regarding a defendant’s guilt may be
        resolved by the fact-finder unless the evidence is so weak
        and inconclusive that as a matter of law no probability of fact
        may be drawn from the combined circumstances. The
        Commonwealth may sustain its burden of proving every
        element of the crime beyond a reasonable doubt by means
        of wholly circumstantial evidence. Moreover, in applying the
        above test, the entire record must be evaluated and all
        evidence actually received must be considered. Finally, the
        trier of fact while passing upon the credibility of witnesses
        and the weight of the evidence produced, is free to believe
        all, part or none of the evidence.

Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en

banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806 (Pa.

Super. 2008).

      “In order to uphold a conviction for possession of narcotics with the

intent to deliver, the Commonwealth must prove beyond a reasonable doubt

that the defendant possessed a controlled substance and did so with the intent

to deliver it.” Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super.

2000) (en banc). As our Supreme Court has held, while the quantity of a

controlled substance is a factor in determining whether the defendant

possessed the contraband with the intent to deliver, “[t]he amount of the

controlled substance is not crucial to establish an inference of possession with

intent to deliver, if other facts are present.” Commonwealth v. Ratsamy,




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934 A.2d 1233, 1237 (Pa. 2007) (internal quotations, citations, and

corrections omitted). Specifically, our Supreme Court held:

        if the quantity of the controlled substance is not dispositive
        as to the intent, the court may look to other factors. Other
        factors to consider when determining whether a defendant
        intended to deliver a controlled substance include the manner
        in which the controlled substance was packaged, the behavior
        of the defendant, the presence of drug paraphernalia, and
        large[] sums of cash found in possession of the defendant.
        The final factor to be considered is expert testimony. Expert
        opinion testimony is admissible concerning whether the facts
        surrounding the possession of controlled substances are
        consistent with an intent to deliver rather than with an intent
        to possess it for personal use.

Id. (internal quotations, citations, and paragraphing omitted).

      Appellant claims that the evidence was insufficient to support his PWID

convictions because, Appellant contends, “the Commonwealth failed to

establish that the cocaine and heroin recovered from Appellant [were], in fact,

cocaine and heroin.”      Appellant’s Brief at 10.      On appeal, Appellant

acknowledges that City of Erie Police Detective Ryan Victory testified as an

expert at trial that:   Appellant possessed 4.66 grams of cocaine and 3.09

grams of heroin; the amounts of narcotics Appellant possessed were not

consistent with personal use; Appellant possessed unused plastic bags and a

digital scale, which are commonly used for dealing drugs; and, in Detective

Victory’s expert opinion, Appellant possessed both the cocaine and the heroin

with the intent to deliver. Id. at 5 and 10-11; see also N.T. Trial, 8/18/17,

at 111-120. Nevertheless, Appellant claims that the evidence was insufficient

to support his PWID convictions because “[Detective] Victory noted that

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amounts of drugs are ‘cut’ with other substances in order to increase volume

for sale – and[,] in this case, [Detective Victory] could not conclusively

establish” the total weight of the actual narcotic substance. Appellant’s Brief

at 11.

         Appellant’s claim on appeal fails because the relative purity of the

controlled substance is not a required element of PWID.        Rather, as was

already stated, to properly convict a defendant of PWID, the Commonwealth

“must prove beyond a reasonable doubt that the defendant possessed a

controlled substance and did so with the intent to deliver it.” Aguado, 760

A.2d at 1185. In this case, the evidence was sufficient to prove that Appellant

possessed both heroin and cocaine.       N.T. Trial, 8/18/17, at 113 and 117.

Further, the totality of the circumstances (which we summarized above) are

sufficient to prove that Appellant possessed both drugs with the intent to

deliver. See supra at *9. Appellant’s claim on appeal thus fails.

         Finally, we note that the “statement of questions involved” section of

Appellant’s brief lists a challenge to the discretionary aspects of Appellant’s

sentence. See Appellant’s Brief at 3. However, the claim is not contained

within the argument section of Appellant’s brief. As such, the claim is waived.

Leatherby, 116 A.3d at 83 (holding that, where the appellant “fails to expand

upon [a] claim in the argument section of his brief ... the claim is waived”).

         Judgment of sentence affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/2/2018




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