J-S50024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :      IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                       Appellee         :
                                        :
           v.                           :
                                        :
KENNETH EUGENE SPARKS,                  :
                                        :
                       Appellant        :      No. 171 WDA 2014


    Appeal from the Judgment of Sentence Entered December 26, 2013,
              In the Court of Common Pleas of Fayette County,
             Criminal Division, at No. CP-26-CR-0000164-2013.


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and ALLEN, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED SEPTEMBER 24, 2014

      Appellant, Kenneth Eugene Sparks, appeals from the judgment of

sentence entered following his conviction of violations of the Controlled

Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-113(a)(16) &

(30). We affirm.

      The trial court summarized the facts surrounding this incident as

follows:

            On December 16, 2011, at 12:45 A.M. Pennsylvania State
      Trooper Keith Abels and his partner were dispatched for an
      incident at 56 Oliver Road in North Union Township, Fayette
      County, Pennsylvania.      The incident involved a tenant of
                                                              arate
      entrance in the front portion of the home owned by [Appellant]
      at 56 Oliver Road.

           After speaking with tenant, Lillian Arnold, Trooper Abels, at
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      separate entrance to talk with him relative to the incident.
      [Appellant] responded to the door.           While talking with
      [Appellant] about the incident, Trooper Abels observed a strong
      odor of burnt marijuana emanating from the residence. Trooper
      Abels then inquired of [Appellant] about the strong odor.
      [Appellant] stated to the officer that he had just smoked
      marijuana with another person.        Officer Abels then asked
      [Appellant] if he could conduct a search of the residence and the
      attached garage for marijuana. [Appellant] gave his permission
      to Officer Abels to search the residence and garage. Upon
      entering the garage from the kitchen area, Officer Abels noticed
      a sheet hanging over something along the rear wall of the
      garage. When the officer removed the sheet, he observed what
      he determined to be two marijuana plants hanging upside down.
      According to Trooper Abels, both plants were approximately six
      feet in height with the root system intact.         Upon inquiry,
      [Appellant] made a statement to Officer Abels indicating that he
      did not sell marijuana and that the marijuana was for
      recreational use. [Appellant] also stated that he does not grow
      the marijuana at his residence. He stated that he grows the
      marijuana on a farm that he does not own. He also stated to
      Trooper Abels that the plants were hanging upside down for the
      purpose of drying the marijuana. He stated that he was the
      person who hung the plants to dry.

              Officer Abels photographed the plants, took them into
      custody and transported the plants to the Uniontown Barracks of
      the Pennsylvania State Police. He thereafter removed the root
      systems from each plant with a saw, placed the plants in a
      sealed bag which was then entered into a secured evidence
      facility. Trooper Abels then prepared a request for forensic
      analysis. The evidence was subsequently transported to the
      Pennsylvania State Police Crime Laboratory in Greensburg,
      Pennsylvania, for analysis.

            Forensic scientist Leonard McCoy conducted testing on the
      plants and determined that the evidence was marijuana, a
      Schedule I controlled substance with a weight of 1,060 grams, in
      excess of two pounds.

Trial Court Opinion, 5/30/14, at 2-3 (citation omitted).




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     Appellant was charged with possessing with the intent to manufacture

a controlled substance (marijuana) and possession of a controlled substance

(marijuana). Following a jury trial, Appellant was convicted of both charges.

Appellant was sentenced on the conviction for manufacturing marijuana to a

term of incarceration of not less than one year nor more than three years,

pursuant to 18 Pa.C.S.A. § 7508,1 and to pay costs and fines.     No further

penalty was imposed for the conviction of possession of marijuana.

Appellant filed a timely appeal. The trial court ordered a Pa.R.A.P. 1925(b)

statement, and Appellant timely complied. The trial court issued an opinion

pursuant to Pa.R.A.P. 1925(a).


1
 We are mindful of the holding of the United States Supreme Court in
Alleyne v. United States

                                                           Alleyne, 133
S.Ct. at 2155. In Commonwealth v. Watley, 81 A.3d 108 (Pa. Super.
2013) (en banc), this Court recognized that many mandatory minimum
statutes in Pennsylvania are no longer constitutional based on Alleyne.
Nevertheless, we find that the holding in Alleyne does not affect the
sentence in the present case.

   In Watley
mandatory was not illegal because the facts that triggered the mandatory
minimum sentence were proven and decided by the jury beyond a
reasonable doubt. Such is the case here. In the case sub judice, the jury
made a determination, beyond a reasonable doubt, that Appellant was guilty
of po

verdict slip gave the jury two options in response to the question of the
                                         pounds or more but less than 10

Verdict Slip, 12/10/13, at 1.    Thus, an Alleyne issue is not raised by the
facts of this case.

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      Appellant presents the following issues for our review:

            Issue No. 1:      Was the evidence insufficient to find the
            Appellant guilty beyond a reasonable doubt of the criminal
            charges[?]

            Issue No. 2:      Did the court err by refusing to read
            requested jury instructions proposed by the defense?

            Issue No. 3:      Did    the    court   err    by     refusing




      When an appellant raises both a sufficiency-of-the-evidence issue and

a suppression issue, we address the sufficiency of the evidence supporting

the conviction first, and we do so without a diminished record:

      [W]e are called upon to consider all of the testimony that was
      presented to the jury during the trial, without consideration as to
      the admissibility of that evidence. The question of sufficiency is
      not assessed upon a diminished record.          Where improperly
      admitted evidence has been allowed to be considered by the
      jury, its subsequent deletion does not justify a finding of
      insufficient evidence. The remedy in such a case is the grant of
      a new trial.

Commonwealth v. Sanford, 863 A.2d 428, 431 432 (Pa. 2004) (emphasis

in original). Thus, we begin by addressing the sufficiency of the evidence, as



                                                          Commonwealth v.

Mullins, 918 A.2d 82, 85 (Pa. 2007) (citations omitted).

      In his first issue, Appellant argues that evidence presented at trial was

insufficient to enable the trier of fact to find every element of the crimes


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and co

Id. at 13.

      In reviewing the sufficiency of the evidence, we must determine

whether the evidence admitted at trial and all reasonable inferences drawn

therefrom, viewed in the light most favorable to the Commonwealth as

verdict winner, were sufficient to prove every element of the offense beyond

a reasonable doubt. Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa.

                                                                             t



                   Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa.

Super. 2008). The Commonwealth may sustain its burden of proving every

element of the    crime   by   means    of wholly   circumstantial   evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011).

Moreover, as an appellate court, we may not re-weigh the evidence and

substitute our judgment for that of the fact-finder.    Commonwealth v.

Kelly, 78 A.3d 1136, 1139 (Pa. Super. 2013).

      We first consider whether the evidence was sufficient to sustain



Section 780-113(a)(30). This portion of the Act provides:




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      (30) Except as authorized by this act, the manufacture, delivery,
      or possession with intent to manufacture or deliver, a controlled
      substance by a person not registered under this act, or a
      practitioner not registered or licensed by the appropriate State
      board, or knowingly creating, delivering or possessing with intent
      to deliver, a counterfeit controlled substance.

35 P.S. § 780-113(a)(30).      Providing as such, the Act criminalizes the



the Act as follows:

                     means the production, preparation, propagation,
      compounding, conversion or processing of a controlled
      substance, other drug or device or the packaging or repackaging
      of such substance or article, or the labeling or relabeling of the
      commercial container of such substance or article, but does not
      include the activities of a practitioner who, as an incident to his
      administration or dispensing such substance or article in the
      course of his professional practice, prepares, compounds,
      packages or labels such substance or article.            The term

      substance, other drug or device.

35 P.S. § 780-

                                                                     controlled

               Id. It is undisputed that, for purposes of the Act, marijuana

is a controlled substance. 35 P.S. § 780 104(1)(iv).         Growing a small



Section 780-113(a)(30):

      The statute does not fix any requirements governing the
      quantity manufactured; presumably, had the Legislature
      contemplated a minimum quantity requirement, it would have
      included one. Finally, we note our Supreme Court has held that
      a harsher penalty for the manufacture (versus simple


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     possession) of marijuana is a rational deterrent to the increased
     production and sale of an illegal drug and the attendant social
     harm. Commonwealth v. Burnsworth, 543 Pa. 18, 669 A.2d
     883, 889 (1995).

           We hold that growing even a small amount of marijuana

     controlled substance within the meaning of, and in violation of,
     35 P.S. § 780 113(a)(30).

Commonwealth v. Van Aulen, 952 A.2d 1183, 1185 (Pa. Super. 2008).

The crime of simple possession of narcotics prohibits:

     [k]nowingly or intentionally possessing a controlled or
     counterfeit substance by a person not registered under this act,
     or a practitioner not registered or licensed by the appropriate
     State board, unless the substance was obtained directly from, or
     pursuant to, a valid prescription order or order of a practitioner,
     or except as otherwise authorized by this act.

35 P.S. § 780-113(a)(16).

     Where the contraband a person is charged with possessing is not

found on the person of the defendant, the Commonwealth is required to

prove constructive possession.    Commonwealth v. Kirkland, 831 A.2d



exercise conscious control or dominion over the illegal substance and the

                                      Id.

inference arising from a set of facts that possession of the contraband was

                       Commonwealth v. Parker, 847 A.2d 745, 750 (Pa.

Super. 2004).




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        Read in a light most favorable to the Commonwealth as verdict winner,

the evidence established that Appellant possessed marijuana and did so for

purposes of manufacturing. The record reflects that two marijuana plants,

which were approximately six-feet in height and had the root systems intact,



officers permission to search his property. N.T., 12/10/13, at 10-11. The

Commonwealth produced evidence that Appellant was the owner of this

property, was the primary resident and the only individual present at

                                                           Id. at 54-56, 68.

        Moreover, Appellant told the Officers that he had grown the plants on

a farm that he did not own and had hung the plants upside down for

purposes of drying the marijuana.      N.T., 12/10/13, at 23, 82.    Corporal

Ulery provided the following testimony regarding the hanging of the plants:

              Once the plants are harvested they are always dried to a
        certain [sic] before they are used to be smoked, and they almost
        always hang them upside down. Sometimes they separate the
        leaves, the buds, the stems, and hang them separately.
        Sometimes they hang them with the entire plant, and based on
        the photographs I had reviewed earlier, this one here was all
        intact with the root system, the stem and the leaves and the
        buds were all intact on the plant all hanging.

Id. at 32. Appellant also stated that he grew and harvested the plants for

                                              ana.2 Id. at 12.



2
    As previously stated, growing even a small amount of marijuana solely for



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      Thus, this evidence, if accepted as true by the jury within its province

as sole finder of fact, permitted the determination that Appellant possessed

the marijuana plants discovered in his garage, and possessed them with the

intent to manufacture consumable marijuana.        The jury made this finding.



      Appellant next contends that the trial court erred in refusing to issue a

                                                                8. At the close

of trial, Appellant requested that the jury be given the following instruction:

            Guilt by association is unacceptable, mere presence of one
      person, among a group, at the scene of contraband, is not a
      strong factor indicative of guilt.

Id. at 18. Appellant asserts that the evidence at trial established that the



were the reason that the police were called for an incident unrelated to this

case. Id.

      We review a challenge to jury instructions with the following standards

in mind:


      the discretion of the court, so long as the court accurately

      Commonwealth v. Kim, 888 A.2d 847, 852 (Pa.Super.2005)
      (quoting Commonwealth v. Hartey, 424 Pa.Super. 29, 621

      charge clearly, adequately, and accurately presents the law to


the meaning of, and in violation of, 35 P.S. § 780 113(a)(30). Van Aulen,
952 A.2d at 1185.

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     the jury for its co          Id. (quoting Commonwealth v.
     Collins, 810 A.2d 698, 701 (Pa.Super.2002)). The jury charge

     ascertain whether it fairly conveys the required legal principles
                 Commonwealth v. McClendon, 874 A.2d 1223,
     1232 (Pa.Super.2005).

Commonwealth v. Willis, 990 A.2d 773, 776 (Pa. Super. 2010). A new

trial is required because of an erroneous jury instruction only if the

instruction under review contained fundamental error, misled or confused

the jury. Commonwealth v. Fletcher, 986 A.2d 759, 792 (Pa. 2009).

     We first note that a party is required to make a specific objection to a

jury charge or an omission from the charge before the jury retires to

deliberate. Pa.R.Crim.P. 647(B). The failure to make such specific objection

will constitute waiver of the issue on appeal.   Commonwealth v. Baker,



subsequent denial of proposed points for charge that are inconsistent with or

omitted from the instructions actually given will not suffice to preserve an



Commonwealth v. Marquez, 980 A.2d 145, 150-151 (Pa. Super. 2009)

(citing Commonwealth v. Pressley, 887 A.2d 220, 225 (Pa. 2005)).

     Here, Appellant has failed to cite to the record indicating that he made



fact, a review of the transcript reflects that upon conclusion of the charge,

the court inquired as to whether the parties wanted to make any additions or


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corrections to the charge. N.T., 12/10/13, at 132. Both parties declined.

Id.

647(B); see Commonwealth v. Russell, 938 A.2d 1082, 1093 (Pa. Super.

2007) (holding that, in order to preserve for appeal a challenge to a jury

charge, the defendant must lodge a specific objection or exception to the

jury charge itself).

      However, even if Appellant made such objection, the trial court did not



counsel stated the following in terms of the requested jury charge:

      case law indicates that guilt by association is unacceptable, mere
      presence of one person among group at scene of contraband not
      strong factor indicative of guilt.

N.T., 12/10/13, at 86. The trial court determined that the instruction was

not appropriate based on the facts of the case, specifically that Appellant

                       Id.; Trial Court Opinion, 5/30/14, at 10-11.

      A review of the record reflects that Appellant was the only individual

present at his residence when the Officers approached him on the date in

                                                                      e scene of



garage.     Additionally, testimony regarding the tenant, Lillian Arnold,

consistently established that she is a tenant in a unit entirely separate from

                         (N.T., 12/10/13, at 68-69) and that she was not




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requested point for charge was not appropriate given the factual pattern in

this case.    As such, the trial court properly denied the instruction.



     In his third claim, Appellant maintains that the trial court erred in

                                                                      at 20.

Appellant asserts that he made incriminating statements and that these

                                                                Id.

     Our Supreme Court has declared:

            Our standard of review in addressing a challenge to a trial
              enial 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 as a whole. 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



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

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




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             See Commonwealth v. Charleston, 16 A.3d 505, 516 (Pa.

Super. 2011), (quoting Commonwealth v. Chacko, 459 A.2d 311, 317 n.5

(Pa. 1983)).3

        Under Miranda v. Arizona, 384 U.S. 436 (1966), a suspect has a

right to have an attorney present during custodial interrogation. Prior to any

custodial interrogation, the police must inform a suspect of his rights under

Miranda

asserts his Fifth Amendment right to counsel, not only must the current

interrogation cease, but he may not be approached for further interrogation

until counsel has been made available to him, unless he himself initiates

                                      Commonwealth v. Keaton, 45 A.3d

1050, 1067 (Pa. 2012).

        In order to determine whether a custodial interrogation took place, we

consider the following:

        A law enforcement officer must administer Miranda warnings
        prior to custodial interrogation. The standard for determining



3
    The Supreme Court recently held that the scope of review of a suppression

hearing, and not the whole record. In the Interest of L.J., 79 A.3d 1073,
1076 (Pa. 2013). That case does not apply here, however, because the
ruling is prospective and was decided after this case had commenced. Id. at

Commonwealth-



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      police have initiated a custodial interrogation is an objective one
      based on a totality of the circumstances, with due consideration
      given to the reasonable impression conveyed to the person
      interrogated.     Custodial interrogation has been defined as
                   initiated by law enforcement officers after a person
      has been taken into custody or otherwise deprived of his [or her]



      in response to custodial interrogation, the statement is classified
      as gratuitous, and is not subject to suppression for lack of
      warnings.

Commonwealth v. Baker, 24 A.3d 1006, 1019 (Pa. Super. 2011) (quoting

Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999)(en

banc) (citations omitted). An interrogation is custodial when the subject of

the interrogation reasonably believes her freedom was restricted in a

significant way. Commonwealth v. Schwing, 964 A.2d 8, 11 (Pa. Super.

2008). In other words, the circumstances of the interrogation must become



Commonwealth v. Baker, 963 A.2d 495, 501 (Pa. Super. 2008). Relevant

factors include:

      the basis for the detention; its length; its location; whether the
      suspect was transported against his or her will, how far, and
      why; whether restraints were used; whether the law
      enforcement officer showed, threatened or used force; and the
      investigative methods employed to confirm or dispel suspicions.
      The fact that a police investigation has focused on a particular

      Miranda warnings.

Id. at 501.




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      The testimony provided by Officer Partee reflects that when he and



residence, near the front door.    N.T., 12/10/13, at 80-81.     Officer Partee

testified that the exchange was conversational and that Appellant was not

under arrest, was not handcuffed and was not threatened in any way. Id. at

81.

      Officer Abels testified that when he asked Appellant about the smell of

burnt marijuana, Appellant related that he had just smoked marijuana with

another person. N.T., 12/10/13, at 9. During this conversation, Appellant

                                                       Id. at 9-10. Appellant

was not handcuffed and was not placed in custody. Id. at 9. Officer Abels

testified that he asked Appellant if he could sear

garage, and Appellant gave him permission.       Id. at 10. Moreover, during



troopers permission to search his residence and garage. Id. at 67.

      The trial court provided the following analysis in support of its decision



            Here, [Appellant] was never taken into custody or
      restrained by the police in any manner.         All contact with
      [Appellant] by the police was conducted in the familiar surrounds

      officer smelled the odor of burnt marijuana he asked [Appellant]
      about it. [Appellant] related that he just smoked marijuana with
      another person. He was not threatened in any way and no force
      was used against [Appellant] in order to obtain a statement.


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     The officer inquired as to whether [Appellant] would consent to a
     search of his residence and garage for marijuana, and
     [Appellant] readily agreed. [Appellant] accompanied the officers
     as they looked through the residence and garage. When the
     marijuana plants were found in the garage [Appellant] told the
     officers that he did not sell marijuana, that it was only used for
     recreational purposes, that he did not grow it in his residence
     but grew it on a farm that he does not own, and he admitted
     hanging the marijuana plants upside down in his garage to dry.
     Although, at trial, [Appellant] denied making certain admissions
     to the officers, he never indicated that the officers had taken him
     into custody. Based upon the totality of the circumstances, the

     Trooper Abels posed questions to him regarding the marijuana.
     Therefore, the Miranda warnings were not required.
     [A
     intelligently and of his own free will and, therefore, were not
     subject to suppression.

Trial Court Opinion, 5/30/14, at 18-19.

                                                                   ed by the

record and the legal conclusions drawn from those facts are correct.       As



motion to suppress.

     Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/24/2014




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