J-S52027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GRAYSON MITCHELL                           :
                                               :
                       Appellant               :   No. 54 EDA 2019

       Appeal from the Judgment of Sentence Entered December 5, 2018
       In the Court of Common Pleas of Bucks County Criminal Division at
                        No(s): CP-09-CR-0004346-2018


BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY KUNSELMAN, J.:                        FILED NOVEMBER 04, 2019

        Grayson Mitchell appeals from the judgment of sentence imposed

following his conviction of possession of a controlled substance and possession

of drug paraphernalia.1 We affirm.

        The relevant facts are as follows: On March 28, 2018, Officer Nicole

Diviny of the Falls Township Police Department, responded to a request from

a local motel for police assistance in removing an occupant who had not

vacated his room.        When the officer arrived, she accompanied the motel

employee to the room in question. The officer knocked, and identified herself

as a police officer. When no one answered, she and the employee entered

the room. Mitchell was asleep on the bed. The officer detected a strong odor


____________________________________________


1   35 P.S. §§ 780-113(a)(16), (32).
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of alcohol, and observed a blue and pink pipe on the bed stand, which she

knew from training and experience was a marijuana pipe. The officer was able

to wake Mitchell, who appeared intoxicated and smelled of alcohol. Additional

police arrived on the scene. Officer Diviny retrieved the pink and blue pipe

from the bed stand.    As she did so, she observed a small glass pipe with

residue on the bed stand, and two baggies in an open drawer that appeared

to contain cocaine. The officer knew from her training and experience that

the second device was a pipe used to smoke cocaine. As Officer Diviny was

collecting these items, Mitchell made an unsolicited comment that the

marijuana pipe was his, and that he had been smoking the previous evening.

Mitchell additionally stated that the other items were not his. The baggies and

the pipes were submitted to the lab. The residue in the baggies tested positive

for cocaine. The pipes were not chemically tested.

      Mitchell was arrested and charged with two counts of possession with

intent to use drug paraphernalia, and one count of possession of a controlled

substance (marijuana). On December 5, 2018, following a non-jury trial, the

court found Mitchell guilty of one count each of possession of drug

paraphernalia and possession of a controlled substance (marijuana). He was

found not guilty of the second count of possession of drug paraphernalia. The

trial court sentenced Mitchell to a probationary term of one year on the charge

of possession of drug paraphernalia, and to pay the costs of prosecution. No

further penalty was imposed on the charge of possession of a controlled


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substance. Mitchell filed a timely notice of appeal, and both Mitchell and the

trial court complied with Pa.R.A.P. 1925.

      Mitchell raises the following issue for our review: “Was the evidence

insufficient to convict [Mitchell] of possession with intent to use drug

paraphernalia and possession of a controlled or counterfeit substance?”

Mitchell’s Brief at 4.

      Prior to analyzing the merits of Mitchell’s claim, we must first determine

whether he preserved it for our review. In Commonwealth v. Lord, 719

A.2d 306, 309 (Pa. 1998), our Supreme Court held that if an appellant is

directed to file a concise statement of errors to be raised on appeal pursuant

to Pa.R.A.P. 1925(b), “[a]ny issues not raised in a 1925(b) statement will be

deemed waived.” See also Pa.R.A.P. 1925(b)(3)(vii) (stating that “issues not

included in the Statement . . . are waived.”). Lord “eliminated any aspect of

discretion and established a bright-line rule for waiver under Rule 1925.”

Commonwealth v. Butler, 812 A.2d 631, 632 (Pa. 2002).

      Here, the trial court directed Mitchell to file a concise statement of errors

to be raised on appeal pursuant to Pa.R.A.P. 1925(b). In his 1925(b) concise

statement, Mitchell raised the same sufficiency claim he raises in his appellate

brief, i.e., “[w]hether the evidence was insufficient to convict [Mitchell] of

possession with intent to use drug paraphernalia and possession a controlled

or counterfeit substance.”       Concise Statement, 1/22/19, at 1.             The




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Commonwealth contends that the issue, as raised in Mitchell’s concise

statement, is waived due to lack of specificity.

       Our review confirms that waiver applies here.       As this Court has

explained, in order to preserve a challenge to the sufficiency of the evidence

on appeal, an appellant’s Rule 1925(b) statement must state with specificity

the element or elements upon which the appellant alleges that the evidence

was insufficient. Commonwealth v. Garland, 63 A.3d 339, 344 (Pa Super.

2013). Such specificity is of particular importance in cases where, as here,

Mitchell was convicted of multiple crimes, each of which contains elements

that   the   Commonwealth     must    prove   beyond   a   reasonable   doubt.

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009).

       Applying these principles to the sufficiency challenge presented in

Mitchell’s concise statement, we conclude that due to the complete lack of

specificity, Mitchell failed to preserve this issue for review.   To sustain a

conviction for possession of drug paraphernalia the Commonwealth must

establish that items possessed by defendant were used or intended to be used

with a controlled substance so as to constitute drug paraphernalia.

Commonwealth v. Little, 879 A.2d 293, 300 (Pa. Super. 2005); see also

35 P.S. §§ 780-113(a)(32). In his concise statement, Mitchell did not indicate

to the trial court which of the elements of possession of drug paraphernalia

the Commonwealth purportedly failed to establish.       Further, to sustain a

conviction for possession of a controlled substance, the Commonwealth must


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prove that “the defendant had knowing or intentional possession of a

controlled substance and, if the substance is not found on the defendant's

person, then the Commonwealth must satisfy that burden by proof of

‘constructive possession.’” Commonwealth v. Alford, 192 A.3d 289 (Pa.

Super. Ct. 2018) (quoting Commonwealth v. Valette, 613 A.2d 548 (Pa.

1992)); see also 35 P.S. §§ 780-113(a)(16).            Again, Mitchell’s concise

statement did not indicate to the trial court which of the elements of

possession of a controlled substance the Commonwealth allegedly failed to

establish. To be sure, Mitchell did not identify for the trial court the actual

grounds that he now argues before this Court; namely, the lack of chemical

testing of the marijuana pipe.

       While the trial court did address generally the topic of sufficiency in its

opinion, it did not address the specific claims Mitchell raises before us.

Moreover, we have held that this is of no moment to our analysis because we

apply Pa.R.A.P. 1925(b) in a predictable, uniform fashion, not in a selective

manner dependent on an appellee’s argument or a trial court’s choice to

address an unpreserved claim. Gibbs, 981 A.2d at 281.2

       Judgment of sentence affirmed.

       Judge Ott joins this memorandum.


____________________________________________


2 Even if Mitchell had preserved a sufficiency challenge for our review, we
would have concluded that the Commonwealth presented sufficient evidence
to support his convictions for the reasons expressed by the trial court in its
opinion. See Trial Court Opinion, 5/14/19, at 2-5.

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Judge McLaughlin concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/4/19




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