J-A16033-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
            Appellee                     :
                                         :
            v.                           :
                                         :
VERNON DONATE DUNCAN,                    :
                                         :
            Appellant                    :    No. 1258 WDA 2015

            Appeal from the Judgment of Sentence April 20, 2015
             in the Court of Common Pleas of Clearfield County
            Criminal Division at No(s): CP-17-CR-0000217-2013

BEFORE:     SHOGAN, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED SEPTEMBER 30, 2016

     Vernon Donate Duncan (Appellant) appeals from the judgment of

sentence imposed on April 20, 2015. After review, we vacate the judgment

of sentence and remand for resentencing.

     On August 2, 2013, following a jury trial, Appellant was convicted of,

inter alia, numerous charges related to the possession, distribution, and

manufacture of marijuana and cocaine and related criminal conspiracy

offenses.   On October 4, 2013, Appellant was sentenced to an aggregate

term of 14 to 28 years’ imprisonment. Appellant filed a direct appeal, which

this Court quashed as untimely-filed by order of February 10, 2014.

     On September 15, 2014, Appellant filed a petition pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Counsel was

appointed and on December 16, 2014, an amended petition was filed



*Retired Senior Judge assigned to the Superior Court.
J-A16033-16


seeking (1) resentencing in light of this Court’s decision in Commonwealth

v. Valentine, 101 A.3d 801 (Pa. Super. 2014), (2) reinstatement of his

appellate rights nunc pro tunc, and (3) a new trial. A hearing on Appellant’s

amended petition was scheduled for March 26, 2015. On that date, the trial

court granted the petition, in part, and reinstated Appellant’s direct appeal

rights.   The trial court also granted Appellant’s request for resentencing

without imposition of mandatory minimum sentences pursuant to Valentine

and Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014).1

Appellant’s request for a new trial was denied.

      On April 20, 2015, Appellant was resentenced to an aggregate term of

13 years and one month to 38 years of incarceration. Appellant filed timely

post-sentence motions, which were denied by orders dated July 10, 2015

and July 21, 2015. This timely-filed appeal followed. Both Appellant and the

trial court complied with the mandates of Pa.R.A.P. 1925.

      Appellant raises seven questions for our review, which we have

renumbered for ease of disposition.




1
  Appellant was resentenced initially on March 26, 2015; however, on March
27, 2015, the Commonwealth filed a motion for reconsideration, pointing out
that, due to a clerical error, the pre-sentence investigation report relied
upon by the trial court had failed to include three of Appellant’s convictions
and, as a result, Appellant was not resentenced on those charges.
Commonwealth’s Motion for Reconsideration of Sentence, 3/27/2015.
Appellant consented to the motion, which was granted by order dated April
20, 2015. Appellant was then resentenced on all charges.


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      I. Was the evidence presented at trial sufficient to convict
      Appellant of multiple conspiracy counts for possession and
      delivery of controlled substances?

      II. Was the evidence presented at trial sufficient to convict
      Appellant of separate conspiracy counts for possession and
      delivery of controlled substances[,] marijuana and cocaine?

      III. Was the evidence presented at trial sufficient to convict
      Appellant of any conspiracy charge?

      IV. Did the trial court err by denying Appellant’s post-sentence
      motion for a new trial due to the unfairly prejudicial nature of
      firearm evidence presented by the Commonwealth at trial?

      V. Did the trial court err by denying Appellant’s oral motion for
      mistrial during trial regarding the undisclosed inaccuracy of
      Commonwealth [E]xhibit 9[,] a hand-drawn diagram of an
      apartment building?

      VI. Did the trial court err due to misstatements made by the
      [trial] court during jury instructions concerning the additional
      element of possession of a firearm during the crime of [PWID]
      which may be interpreted by a reasonable juror as direct[ing]
      the jury to find Appellant guilty of the underlying crime[?]

      VII. Did the [trial] court abuse its discretion by imposing a
      maximum sentence of 38 years on April 20, 2015 to correct its
      prior sentence with a maximum of only 28 years imposed
      October 4, 2013?

Appellant’s Brief at 8-9 (unnecessary capitalization, lower court answers,

and suggested responses omitted).

      In his first three issues, Appellant challenges the sufficiency of the

evidence presented at trial to support his convictions for criminal conspiracy.

Id. at 40-55. Specifically, Appellant argues (1) that the Commonwealth

presented insufficient evidence to prove an agreement between Appellant



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and any other person to sell cocaine and/or marijuana, and that even if the

evidence was sufficient to support a criminal conspiracy charge it was

insufficient to convict him of multiple counts of that offense. Id.

            To prove conspiracy, the trier of fact must find that: 1) the
      defendant intended to commit or aid in the commission of the
      criminal act; 2) the defendant entered into an agreement with
      another to engage in the crime; and 3) the defendant or one or
      more of the other co-conspirators committed an overt act in
      furtherance of the agreed upon crime. In most cases of
      conspiracy, it is difficult to prove an explicit or formal
      agreement; hence, the agreement is generally established via
      circumstantial evidence, such as by the relations, conduct, or
      circumstances of the parties or overt acts on the part of co-
      conspirators. …

            In reviewing a sufficiency challenge, we must evaluate the
      entire trial record and consider all the evidence received.
      Furthermore, the trier of fact, in passing upon the credibility of
      witnesses and the weight of the evidence, is free to believe all,
      part, or none of the evidence.

Commonwealth v. Johnson, 985 A.2d 915, 920 (Pa. 2009) (internal

citations and quotations omitted).

      Appellant was convicted of the following counts of criminal conspiracy

related to undercover controlled narcotics purchases from his home and the

subsequent execution of a search warrant on the property.

         •   One count of criminal conspiracy to commit PWID and one count

             of criminal conspiracy to commit possession of a controlled

             substance related to an undercover purchase of marijuana on

             February 5, 2013;




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        •   Two counts of criminal conspiracy to commit PWID and two

            counts of criminal conspiracy to commit possession of a

            controlled   substance   related   to   undercover   purchases   of

            marijuana and cocaine, respectively, on February 14, 2013;

        •   Two counts of criminal conspiracy to commit PWID and two

            counts of criminal conspiracy to commit possession of a

            controlled   substance   related   to   undercover   purchases   of

            marijuana and cocaine, respectively, on March 4, 2013; and

        •   Two counts of criminal conspiracy to commit PWID and two

            counts of criminal conspiracy to commit possession of a

            controlled   substance   related   to   marijuana    and   cocaine,

            recovered during the search of Appellant’s home on March 5,

            2013.

     Delores Morgan, a Bureau of Narcotics Investigation and Drug Control

Agent with the Office of the Attorney General, testified that, on three

occasions, she conducted controlled purchases of narcotics from Appellant’s

home, an apartment located at 102 Quarry Avenue, DuBois, Pennsylvania.

N.T., 7/31/2013, at 50-77. The focus of Agent Morgan’s investigation was a

man known as “V Doe.” Id. at 50.

     On February 5, 2013, Agent Morgan, acting in an undercover capacity,

purchased marijuana from Appellant in a bedroom of the apartment at 102




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Quarry Avenue. Id. This initial controlled purchase was set up in advance

by a confidential informant working for the Office of the Attorney General.

Id. at 93. Upon her arrival at the apartment, Agent Morgan knocked and

was let in by a white male, later identified as Shoby Burke. Id. at 53-58.

Once in the apartment, Agent Morgan was approached by a black man, later

identified as Appellant, who introduced himself as “V” and led her to a

bedroom a few steps diagonally from the front door. Id. at 53-54. There,

Agent Morgan purchased a little over a half ounce of marijuana for $80 in

prerecorded funds.    Agent Morgan testified that Appellant weighed and

packaged the marijuana using a scale and baggies he pulled out of a dresser

drawer. Id. at 55-56. Following the purchase, Agent Morgan and Appellant

exchanged contact information and Agent Morgan left the apartment. Id. at

57-58.

      Later that day, Agent Morgan received a text message from Appellant

asking if she liked the marijuana. Id. at 59-60. Appellant informed Agent

Morgan that if she wanted more, all she needed to do was come over to the

apartment. Id.

      On   February   14,   2013,   Agent    Morgan   returned   to   Appellant’s

apartment to conduct an undercover controlled purchase of marijuana and

cocaine from Appellant. Id. at 60-66.       When she reached the door of the

apartment, she identified herself as “Dee, V’s friend” and was let inside. Id.




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at 61. Also present in the apartment were two black men, one of whom was

identified as Appellant’s roommate, Damon Seldon (Seldon). Id. at 66-67.

The negotiations for the controlled purchase took place in the dining room,

while the actual buy (including weighing of the drugs and the exchange of

money) happened in Appellant’s bedroom. Id. at 60-66. While in the dining

room, Agent Morgan confirmed she wanted marijuana but also asked

Appellant if he had cocaine available to purchase. Id. at 62. In response,

Appellant led her to the same bedroom as the earlier purchase where he

sold her marijuana he obtained from a duffle bag in the room’s closet, and

cocaine he took out of the dresser. Id. at 62-64. Once more, Agent Morgan

paid for her purchases in prerecorded funds. Id. at 66.

     On March 4, 2013, Agent Morgan conducted her final controlled

purchase from Appellant’s apartment. Id. at 70.       Before arriving at the

apartment, Agent Morgan and Appellant discussed what she would be

purchasing and the price. Id. Upon her arrival, Appellant answered the door

himself and immediately took her to the bedroom. Id. at 70-71.        Agent

Morgan purchased cocaine with prerecorded funds and marijuana on credit.

Id. at 70-75.

     On the following day, March 5, 2013, a search warrant was executed

on 102 Quarry Road. Id. at 76-80. That search yielded, inter alia, 54 grams

of cocaine, numerous bags of marijuana, five firearms, personal use




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paraphernalia (including syringes, a smoking pipe and a hookah) and

paraphernalia indicative of distribution, including six digital scales, the

prerecorded controlled purchase funds used by Agent Morgan, a marijuana

grinder, indicia of residence for Seldon, and a receipt for rent written to

Seldon. Id. at 135-142, 194-195. These items were found throughout the

apartment, including in both bedrooms. Id.

     In upholding Appellant’s conviction for fourteen separate counts of

criminal conspiracy, the trial court concluded that “a review of the record

reveals that [Appellant] and … Seldon were involved in a series of

conspiracies to possess and sell illegal drugs.” Trial Court Opinion,

10/8/2015, at 2 (unpaginated).

     However, as our Crimes Code makes clear

     (c) Conspiracy with multiple criminal objectives.--If a
     person conspires to commit a number of crimes, he is guilty of
     only one conspiracy so long as such multiple crimes are the
     object of the same agreement or continuous conspiratorial
     relationship.

18 Pa.C.S. § 903(c).

           Under Pennsylvania law, a single conspiracy may have
     multiple criminal objectives. See 18 Pa.C.S.[] § 903(c). Thus,
     when on a single occasion there is a single agreement to commit
     two crimes, e.g. murder and arson, a single conspiracy exists.
     See Commonwealth v. Grove, [] 347, 526 A.2d 369, 379 ([Pa.
     Super.] 1987). Likewise, a single conspiratorial agreement may
     involve a continuing course of criminal conduct involving the
     repetition of a single crime or the commission of a series of
     crimes. See Commonwealth v. Perez, [] 553 A.2d 79, 79-80
     ([Pa. Super.] 1988) (finding a single conspiracy to commit



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      multiple violations of separate statutes against the distribution of
      marijuana and the distribution of cocaine).

Commonwealth v. Savage, 566 A.2d 272, 276-77 (Pa. Super. 1989).

      In Perez, appellant pled guilty to various charges, including two

counts of criminal conspiracy: one to distribute marijuana and one to

distribute cocaine. Perez, 553 A.2d at 79. We vacated appellant’s sentences

for conspiracy and remanded for resentencing on a single conspiracy count,

holding that “nothing presented by the Commonwealth tends to establish

two separate conspiracies but rather instead tends to establish a single

conspiratorial relationship from which two contraband substances were

distributed[.]” Id. at 81. In so doing, we specifically rejected the charging

scheme present in Appellant’s case:

      Undoubtedly, many separate offenses were committed during
      the course of the conspiratorial relationship. However, under our
      law this does not automatically lead to a determination that
      there was more than one conspiracy or conspiratorial
      relationship. One receives the impression that had an individual
      called the appellant and ordered five different types of drugs
      from him which the appellant then agreed to sell, the
      Commonwealth would argue that there were five conspiracies
      committed. We do not read section 903(c) in that manner.

Id. at 81.

      Similarly, here, the evidence seized from the apartment demonstrates

that Seldon, the lessor, and Appellant, his tenant, entered into a single

conspiracy to distribute both cocaine and marijuana from the apartment at

102 Quarry Street. This conclusion is supported by the fact that the indicia



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of distribution was not confined to one room, but was spread throughout

both bedrooms and the apartment common area, in spite of the fact that

Appellant was Agent Morgan’s only contact and the only person present in

the bedroom when the deliveries were completed. Accordingly, we vacate

the sentences imposed on all fourteen counts of criminal conspiracy and

remand for imposition of sentence on (1) a single count of conspiracy related

to PWID and (2) a single count of conspiracy related to possession of a

controlled substance.

      Appellant next argues that the trial court erred by denying Appellant’s

post-sentence motion for a new trial on the basis that admission of firearm

evidence at trial was unduly prejudicial. Appellant’s Brief at 56-60.

      The admissibility of evidence is vested in the sound discretion of the

trial court and this Court will not reverse an evidentiary ruling on appeal

absent an abuse of discretion. Commonwealth v. Brown, 839 A.2d 433,

435 (Pa. Super. 2003). A trial court abuses its discretion when it “overrides

or   misapplies   the   law,   or   exercises   judgment   which   is   manifestly

unreasonable, or the result of partiality, prejudice, bias, or ill will.” Id.

(citation omitted).

      Before we may address Appellant’s underlying claim, we must

determine if the issue has been preserved for our review.           “In order to

preserve an issue for review, a party must make a timely and specific




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objection at trial.” Commonwealth v. Smith, 606 A.2d 939, 942 (Pa.

Super. 1992). This Court “will not consider a claim on appeal which was not

called to the trial court’s attention at a time when any error committed could

have been corrected.” Commonwealth v. Montalvo, 641 A.2d 1176, 1184

(Pa. Super. 1994).

      In his brief, Appellant indicates that he preserved this issue by

including it in his post-sentence motions. Appellant’s Brief at 56, n.34.

However, the record herein indicates that the photographs about which

Appellant now complains were entered into evidence during trial without

objection. N.T., 7/31/2013, at 205; N.T., 8/1/2013, at 6.           Accordingly,

Appellant’s issue is waived.

      Appellant next contends that the trial court erred in denying his motion

for a mistrial. Appellant’s Brief at 61-63.

             The review of a trial court’s denial of a motion for a
      mistrial is limited to determining whether the trial court abused
      its discretion…. A trial court may grant a mistrial only where the
      incident upon which the motion is based is of such a nature that
      its unavoidable effect is to deprive the defendant of a fair trial by
      preventing the jury from weighing and rendering a true verdict.

Commonwealth v. Wright, 961 A.2d 119, 142 (Pa. 2008) (citations

omitted).

      During trial in this matter, the Commonwealth entered into evidence

Exhibit 9, a hand drawn diagram created by Agent Morgan to assist in the

execution of the search warrant.      N.T., 7/31/2013, at 82.     Agent Morgan



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testified that the drawing was not to scale, only depicted the common area

and the bedroom she had entered with Appellant, and incorrectly labeled the

target apartment as “106 Quarry Street.” Id. at 82-84.               When the

Commonwealth moved for admission of, inter alia, Exhibit 9, Appellant did

not object, but sought leave to cross-examine Agent Morgan before

admission of any Commonwealth exhibits. Id. at 91.          The Court granted

Appellant’s request. Id.

      On cross-examination, Appellant questioned Agent Morgan regarding

Exhibit 9, asking her when she realized that the diagram had mislabeled

Appellant’s apartment as 106 Quarry Street. Id. at 103-106. Agent Morgan

testified that she noticed the error when they were executing the search

warrant and explained to the officers present that the apartment numbers

on the diagram should be reversed. Id. at 105.        She explained that 106

Quarry   Street   was   not   searched.   Id.    Further,   she   informed   the

Commonwealth of the error on the Monday before trial. Id. at 105-06.

      Following this testimony, Appellant’s counsel sought a mistrial on the

basis that Agent Morgan’s error, and the Commonwealth’s failure to disclose

the correction, irreparably harmed his defense strategy because he had been

relying on the fact that the officers searched the wrong apartment. Id. at

107. Counsel contended that being able to cross-examine Agent Morgan on

the error was not his strategy “at all;” rather he intended to close on the fact




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that Exhibit 9 “says here, this is where they went in [and] that is not where

my client was” and that Agent Morgan’s testimony foreclosed that option.

Id. at 111. The Commonwealth argued that the error was not material in

light of the agent’s other testimony and could not constitute unfair surprise

when (1) Appellant was arrested in apartment 102 during the search and (2)

the warrant itself indicated that 102 Quarry Street was the targeted location

and described in detail how to reach the front door of the target location.

Id. at 108, 110-11. The trial court ultimately denied Appellant’s request for

a mistrial. Id. at 112.

      In addressing Appellant’s issue, the trial court determined that “the

inaccuracy of the diagram was minor and inconsequential. Even if it caused

[Appellant] prejudice, it cannot be said to have been so prejudicial as to

deprive [Appellant] of a fair and impartial trial.” Trial Court Opinion,

10/8/2015, at 4 (unpaginated). We agree. While the Commonwealth should

have disclosed the error prior to trial, we nevertheless do not find that a

mistrial was warranted.    There was overwhelming evidence introduced at

trial, through the testimony of the officers, the search warrant itself, and the

fact that Appellant was ultimately arrested at 102 Quarry Street during the

search, to demonstrate that the intended target of the search was 102

Quarry Street, the location where each controlled purchase had occurred.

We cannot agree with Appellant that this error was so prejudicial as to deny




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Appellant a fair trial. Accordingly, we hold that Appellant is not entitled to

relief.

          Appellant next argues that he was unfairly prejudiced by alleged

“misstatements” in the trial court’s instruction with respect to the two counts

of PWID stemming from the March 5, 2013 search of 102 Quarry Street.

Appellant’s Brief at 64-66.

          It is well-settled that “[i]n order to preserve a claim that a jury

instruction was erroneously given, the appellant must have objected to the

charge at trial.” See Commonwealth v. Spotz, 84 A.3d 294, 318 n. 18

(Pa. 2014) (citations omitted); Pa.R.A.P. 302(b) (“A general exception to the

charge to the jury will not preserve an issue for appeal. Specific exception

shall be taken to the language or omission complained of.”); Pa.R.Crim.P.

647(B) (“No portions of the charge nor omissions from the charge may be

assigned as error, unless specific objections are made thereto before the

jury retires to deliberate.”).

          Here, the notes of testimony reveal that Appellant’s counsel did not

object to the instruction about which he now complains. N.T., 8/2/2013, at

16. Moreover, when asked if he had any exceptions to the court’s charge,

trial counsel responded “none on behalf of [Appellant]”.           Id. at 36.

Accordingly, we conclude that this issue is waived.




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      Finally, Appellant challenges the discretionary aspects of his sentence.

Appellant’s Brief at 37-40.   Based on our conclusion that the evidence is

insufficient to support Appellant’s conspiracy convictions and resentencing is

required, we need not reach this issue.          However, we note that, in

resentencing Appellant the trial court is bound our determination in

Commonwealth v. Serrano, 727 A.2d 1168, 1170 (Pa. Super. 1999)

(holding that “whenever a judge imposes a more severe sentence upon a

defendant [following remand] ... the reasons for doing so must affirmatively

appear [on the record, in] order to overcome the presumption of

vindictiveness.”).

      In sum, we find the evidence insufficient to support Appellant’s

fourteen separate conspiracy convictions; thus, we vacate twelve of those

convictions and remand for resentencing on (1) a single count of conspiracy

related to PWID and (2) a single count of conspiracy related to possession of

a controlled substance. We affirm the remainder of Appellant’s convictions.

      Judgment of sentence vacated.          Case remanded for resentencing

consistent with this memorandum. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 9/30/2016




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