J-S65036-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ERIC K. HARRISON,

                            Appellant                 No. 801 EDA 2014


             Appeal from the Judgment of Sentence May 11, 2012
               in the Court of Common Pleas of Monroe County
              Criminal Division at No.: CP-45-CR-0001542-2011


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 26, 2015

        Appellant, Eric K. Harrison, appeals from the judgment of sentence

imposed after his conviction, following a jury trial, of criminal conspiracy,

use or possession of drug paraphernalia, and three counts of possession of a

controlled substance (heroin, Alprazolam, and Buprenorphine).1 We affirm.

        This Court previously summarized the factual and procedural history of

this case as follows:

        On June 16, 2011, Mr. Matt Stahl was driving his vehicle with
        Appellant in the passenger’s seat when Pennsylvania State
        Trooper Gregory Yanochko stopped the vehicle for a traffic
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. § 903(a)(1), 35 P.S. §§ 780-113(a)(32), 780-113(a)(16),
respectively. This case returns to us after remand. (See Commonwealth
v. Harrison, No. 276 EDA 2013, unpublished memorandum at *4 (Pa.
Super. filed Jan. 31, 2014)).
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     violation. Appellant and Mr. Stahl told Trooper Yanochko they
     were returning from New York City where they had been visiting
     friends.   Trooper Yanochko noticed Appellant and Mr. Stahl
     appeared nervous and requested permission to search the
     vehicle, which Mr. Stahl granted.        Trooper Yanochko found
     $3,020.00 and a hypodermic needle in the center console of the
     car.    He also found a Pringles potato chip container that
     contained 180 bags of heroin, Alprazolam[,] and Buprenorphine,
     prescription pills for individuals experiencing heroin withdrawal.
     Mr. Stahl told Trooper Yanochko the money and the pills were
     his property. Trooper Yanochko’s partner searched Appellant
     and found a hypodermic needle in Appellant’s pants. Appellant
     told Trooper Yanochko that Mr. Stahl had given Appellant two
     packets of heroin, earlier that day, and that Appellant had used
     both packets.

            Appellant was charged with possession with intent to
     manufacture or deliver, conspiracy to commit possession with
     intent to manufacture or deliver, possession of drug
     paraphernalia, and three counts of possession of a controlled
     substance for the heroin, Alprazolam, and Buprenorphine.
     Appellant filed a pretrial habeas corpus motion, which the trial
     court denied on November 18, 2011, after a hearing. On March
     15, 2012, a jury convicted Appellant of criminal conspiracy,
     possession of drug paraphernalia, and [three] counts of
     possession of a controlled substance. On May 11, 2012, the
     court sentenced Appellant to an aggregate term of three and a
     half (3½) to seven (7) years’ imprisonment.

(Harrison, 276 EDA 2013, at *1-2).

     Appellant timely filed a post-sentence motion on May 25, 2012, and a

brief in support of the motion on September 21, 2012. The court did not

decide the motion within 120 days, nor did the Monroe County Clerk of




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Courts enter an order that the motion was deemed denied by operation of

law.2 Appellant appealed on January 18, 2013.3

        On January 31, 2014, this Court quashed the appeal as interlocutory

and remanded for disposition of Appellant’s post-sentence motion.           (See

Harrison, 276 EDA 2013, at *4).                The court denied Appellant’s post-

sentence motion on February 7, 2014.4 Appellant timely appealed on March

6, 2014.5

        Appellant raises the following questions for our review:

        1)   Did the [trial court] err when [it] denied [Appellant’s]
        habeas corpus motion[6] finding that the Commonwealth could
        demonstrate a prima facie case against him for possession,
        possession with intent to deliver, and conspiracy to commit
        possession with intent to deliver heroin, Alprazolam, and
        [Buprenorphine]?
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2
    See Pa.R.Crim.P. 720(B)(3)(a).
3
  Pursuant to the court’s order, Appellant filed a timely Rule 1925(b)
statement on February 12, 2013. The court entered its Rule 1925(a)
opinions on March 21, 2013, addressing Appellant’s issue two, and on March
25, 2013, addressing issue one. See Pa.R.A.P. 1925.
4
  On February 12, 2014, the court amended the order to correct a
typographical error.
5
   Pursuant to the court’s order, Appellant filed a timely Rule 1925(b)
statement on March 27, 2014. The court entered its Rule 1925(a) opinions
on April 9, 2014, addressing Appellant’s issue two, in which it incorporated
and attached its March 21, 2013 opinion; and April 17, 2014, addressing
issue one, in which it incorporated its March 25, 2013 opinion.         See
Pa.R.A.P. 1925.
6
  We note that Appellant filed his habeas issue as part of his motion to
suppress. (See Motion to Suppress, 10/11/11, at unnumbered page 3).



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      2)    Was the jury’s verdict finding [Appellant] guilty of
      conspiracy to commit possession with intent to deliver, and
      possession [of controlled substances] against the weight of the
      evidence?

(Appellant’s Brief, at 5) (some capitalization omitted).

      In his first issue, Appellant argues that the court erred in denying his

habeas corpus motion where the evidence was insufficient to establish a

prima facie case for constructive possession of the drugs. (See Appellant’s

Brief, at 10-13).

      This Court has held that “[o]nce appellant has gone to trial and been

found guilty of the crime, any defect in the preliminary hearing is rendered

immaterial.”   Commonwealth v. Jackson, 849 A.2d 1254, 1257 (Pa.

Super. 2004) (citing Commonwealth v. Tyler, 587 A.2d 326, 328 (Pa.

Super. 1991), appeal quashed, 617 A.2d 1263 (Pa. 1992)).

      Here, a jury convicted Appellant on March 15, 2012 following a jury

trial. (See Verdict, 3/15/12, at unnumbered page 1; N.T. Trial, 3/15/12, at

140-42). Accordingly, this issue does not merit relief.

      Moreover, this issue is waived.      “Issues not included in the [Rule

1925(b) statement] and/or not raised in accordance with the provisions of

this paragraph (b)(4) are waived.” Pa.R.A.P. 1925 (b)(4)(vii). A defendant

must preserve for appellate review a challenge to the denial of a motion to

suppress by raising it with the trial court and presenting it in a timely filed

Rule 1925(b) statement.     See Commonwealth v. Dixon, 997 A.2d 368,




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373 n.7 (Pa. Super. 2010) (en banc), appeal denied, 26 A.3d 482 (Pa.

2011).

       Here, Appellant’s claim of insufficient evidence is not included in his

Rule 1925(b) statement. (See Appellant’s Statement Pursuant to Pa.R.A.P.

1925(b), 3/27/14, at unnumbered page 1).           Instead, he asserts that “the

court erred in denying [his] habeas motion . . . [by] indicat[ing] that

[Appellant] was in possession of heroin when he was arrested, which is not

correct.”   (Id. at ¶2).     Accordingly, Appellant’s first issue is waived.   See

Pa.R.A.P. 1925 (b)(4)(vii); Dixon, supra at 373.7

       Appellant’s second issue challenges the weight of the evidence. (See

Appellant’s Brief, at 13).

       Our standard of review is well-settled:

              The weight given to trial evidence is a choice for the
       factfinder. If the factfinder returns a guilty verdict, and if a
       criminal defendant then files a motion for a new trial on the
       basis that the verdict was against the weight of the evidence, a
       trial court is not to grant relief unless the verdict is so contrary
       to the evidence as to shock one’s sense of justice.

             When a trial court denies a weight-of-the-evidence motion,
       and when an appellant then appeals that ruling to this Court, our
       review is limited. It is important to understand we do not reach
       the underlying question of whether the verdict was, in fact,
____________________________________________


7
  Moreover, upon our independent review, we conclude that in viewing the
evidence in the light most favorable to the Commonwealth, the trial court
did not err in concluding that the Commonwealth presented sufficient
evidence to establish a prima facie case of constructive possession. See
Commonwealth v. Kinard, 95 A.3d 279, 292 (Pa. Super. 2014) (en banc),
appeal denied, 63 A.3d 1243 (Pa. 2013).



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       against the weight of the evidence. We do not decide how we
       would have ruled on the motion and then simply replace our own
       judgment for that of the trial court.     Instead, this Court
       determines whether the trial court abused its discretion in
       reaching whatever decision it made on the motion, whether or
       not that decision is the one we might have made in the first
       instance.

             Moreover, when evaluating a trial court’s ruling, we keep
       in mind that an abuse of discretion is not merely an error in
       judgment. Rather, it involves bias, partiality, prejudice, ill-will,
       manifest unreasonableness or a misapplication of the law. By
       contrast, a proper exercise of discretion conforms to the law and
       is based on the facts of record.

Commonwealth v. Ferguson, 2015 WL 49438, at *4-5 (Pa. Super. filed

Jan. 5, 2015) (citation omitted).

       Here, Appellant claims that the jury’s “verdict finding [him] guilty of

conspiracy to commit possession with intent to deliver and possession [of

controlled substances] was against the weight of the evidence and the

verdict should be overturned and remanded for a new trial.”                   (Appellant’s

Brief, at 13) (capitalization omitted).8          Specifically, he argues that he was

convicted “based on the untrustworthy and unreliable testimony of his co-

defendant, Matthew Stahl. . . . [and w]ithout Mr. Stahl’s testimony, the

Commonwealth would have had an extremely weak constructive possession

case against [him] . . . .” (Id. at 14-15). We disagree.

       We    note   that,   concerning         Appellant’s   challenge   to   Mr.   Stahl’s

testimony, “the jury is free to believe all, part, or none of the evidence and
____________________________________________


8
  Appellant concedes there was sufficient evidence to convict him of
possession of drug paraphernalia. (See Appellant’s Brief, at 13).



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to determine the credibility of the witnesses.”      Ferguson, supra at *5

(citation and internal quotation marks omitted).

       Moreover, our independent review of the record reflects that Trooper

Yanochko observed Appellant looking and acting nervous. (See N.T. Trial,

3/15/12, at 18-19). Trooper Yanochko found $3,020.00 and a hypodermic

needle in the center console of the vehicle; Alprazolam and Buprenorphine

prescription pills, and 180 bags of heroin in a Pringles potato chip container

in close proximity to Appellant; and a hypodermic needle on Appellant’s

person. (See id. at 21-23). Appellant appeared to be under the influence of

a narcotic, admitted to using heroin regularly, and specifically to using two

bags of heroin received from Mr. Stahl that day. (See id. at 18, 28, 35, 38-

39).

       Additionally, Pocono Mountain Regional Police Corporal Lucas D. Bray

testified, as an expert, that it is common practice for the passenger to solicit

the driver for a ride in drug trafficking.   (See id. at 77).    Corporal Bray

further testified that it was his professional opinion that the heroin “was

possessed with intent to deliver.” (Id. at 78).

       Accordingly, we discern no abuse of discretion in the trial court’s

determination that the jury’s verdict did not shock one’s sense of justice.

See Ferguson, supra at *4-5.        Therefore, Appellant’s second issue lacks

merit.

       Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2015




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