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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                      1   IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA


                      v.

JANET BUNDY

                           Appellant                       No. 989 MDA 2016


             Appeal from the Judgment of Sentence April 21, 2016
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0000997-2015


BEFORE:      BENDER, P.J.E., PANELLA, J., and PLATT*, J.

MEMORANDUM BY PANELLA, J.                             FILED FEBRUARY 28, 2017

Appellant, Janet Bundy, appeals from the judgment of sentence entered in the

Centre County Court of Common                Pleas,   following   her   conviction       of

possession with intent to deliver and contraband. Appellant contends that

the trial court erred by denying her request to instruct the jury on           a   lesser -

included offense and by accepting the jury's seemingly contradictory verdict.

We affirm.

        On June 13, 2015, Appellant traveled to State Correctional            Institution
Rockview to visit an inmate. While Appellant was completing the Correctional

Institution's check-in procedure, Corrections Officer Robert Bonsell ("Officer
Bonsell") observed Appellant push      a   rolled -up napkin underneath   a   computer


*   Retired Senior Judge assigned to Superior Court.
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monitor on the reception desk. After completing registration, Appellant was

subjected to      a   K-9 search. The K-9 officer alerted Officer Bonsell to the

presence of narcotics on Appellant's person. Following notification, Officer

Bonsell examined the paper napkin Appellant placed on his desk and

discovered        twelve   packets   apparently    filled   with   marijuana.   Once

Pennsylvania State Police Corporal Leigh Barrows ("Corporal Barrows")

arrived to begin an investigation, she searched Appellant and found eight

pills on her person. Subsequent drug testing by the Pennsylvania State

Police laboratory confirmed the packets contained marijuana, weighing              a

total of 5.9 grams, and revealed that four of the pills found on Appellant

were Hydrocodone (an opioid pain medication) while the other four pills were

Carisoprodol (a muscle relaxer that works by blocking pain sensations).

Appellant admitted         to   possessing the    Hydrocodone and      Carisoprodol,

alleging that the pills were prescribed for her personal use. However,

Appellant denied ever possessing the marijuana.

        By criminal complaint, Appellant was charged with three counts of

Possession with Intent to Distribute,' one count of Contraband,2 and one




'   35 P.S.  780-113(a)(30). Appellant was charged for each controlled
              §
substance recovered, thus one count of possession with intent to distribute
was attributable to the marijuana, one count attributable to the
Hydrocodone, and one count attributable to the Carisoprodol.

2   18 Pa.C.S.A. § 5123(a).




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count of Possession of       a   Small Amount of Marijuana to Distribute, Not Sell.3

The matter proceeded to           a   jury trial. Prior to the commencement of trial,
Appellant's counsel requested that the trial court charge the jury on the

lesser -included charge of Possession of          a   Small Amount of Marijuana. The

court denied that request.

        After the trial, the jury found Appellant guilty of Possession with Intent

to Deliver, in respect to the marijuana, and Contraband.4 Following the

finding of guilt for Contraband on the verdict sheet, the jury was asked to

provide   a   specific finding with regard to the Contraband charge. This finding

was intended to identify which controlled substance the                jury believed
supported the Contraband conviction. Pursuant to the instructions preceding

the specific finding, the jury found that none of the three controlled

substances at issue supported the Contraband charge. Once the jury was

excused, the trial court found Appellant guilty of Possession of             a   Small

Amount of Marijuana to Distribute not Sell.

        On April 21, 2016, Appellant was sentenced to an aggregate sentence

of two to four years' imprisonment. Appellant filed post -sentence motions.




3   35 P.S.   §   780-113(a)(31)(ii).

4 The jury acquitted Appellant of Possession with Intent to Distribute, in
respect to the Hydrocodone, and Possession with Intent to Distribute, in
respect to the Carisoprodol.


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And upon denial of Appellant's motions by the trial court, filed                 a   timely

appeal.

        Appellant's first issue presents          a    challenge to the sufficiency of the

evidence for her Contraband conviction. See Appellant's Brief, at 10-14.

Specifically, Appellant points to the specific finding the jury made pursuant

to Appellant's requested verdict sheet that suggested that none of the three

controlled substances in question supported the Contraband verdict. See id.

Based upon this interrogatory, Appellant submits that the              jury found that the
evidence produced by the Commonwealth was insufficient to support                        a

critical element of the crime charged-that                   a   controlled substance was

involved. See id., at 12. Therefore, Appellant submits that her conviction for

Contraband     is   at odds with the jury's specific finding and the court should

have set aside the verdict. See id. We disagree.

        When examining the sufficiency of the evidence

        [t]he standard we apply    .   .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 factfinder to find every
        element of the crime beyond a reasonable doubt. In applying
        [this] test, we may not weigh the evidence and substitute our
        judgment for 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 factfinder 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 the evidence actually received must be considered. Finally,

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        the [finder] 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. Houck, 102 A.3d 443, 448                       (Pa. Super. 2014) (citations

omitted).

        Further, we have previously stated that

        [c]onsistency in verdicts in criminal case is not necessary. This
        Court has stated, [w]hen an acquittal on one count in an
        indictment is inconsistent with a conviction on a second count,
        the court looks upon [the] acquittal as no more than the jury's
        assumption of a power they had no right to exercise, but to
        which they were disposed through lenity. Thus, this Court will
        not disturb guilty verdicts on the basis of apparent
        inconsistencies as long as there is evidence to support the
        verdict.

Commonwealth v. Swann, 635 A.2d 1103, 1104                                (Pa.   Super. 1994)

(internal citations and quotations omitted).                   However,      inconsistency in

verdicts   is   not permissible in cases where       a   defendant   is   convicted of   a   crime

that has, as       a    specific statutory element, another crime that the jury

simultaneously          acquits    the   defendant       of.   See    Commonwealth              v.

Magliocco, 883 A.2d 479            (Pa. 2005).

        Thus, the core of this issue on appeal theoretically hinges on whether

Appellant's assertion       is   correct: that the jury's response to the interrogatory

actually contradicts an element of the Contraband conviction. However, we

do not reach this analysis as our review of the record reveals that the

interrogatory in question-drafted by Appellant's counsel-was superfluous,

confusing, and      a   blatant mischaracterization the law.


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        The record reflects that, following    a   charging conference, the trial

court, Commonwealth, and Appellant's counsel agreed that the law the trial

court planned to provide to the jury in relation to the Contraband charge

was accurate. See N.T., 3/18/16, at 210.5 However, due to the fact that the

Commonwealth presented evidence of three controlled substances during

the trial, Appellant's counsel requested an interrogatory to discern the

substance the jury found supported the Contraband charge. The trial court

and Commonwealth agreed to the use of this interrogatory, and the trial

court ultimately used the verdict sheet with the interrogatory prepared by

Appellant's counsel, which read in relevant part:

        If your verdict   is   "guilty"
                                 as to the count of Contraband, please
        answer this question: did Ms. Bundy sell, give, transmit or
        furnish to any convict in the State Correctional Institution at
        Rockview, or give away in or bring into or put in any place where
        it may be secured by a convict:
Verdict Sheet, 3/18/16, at 2. Following this interrogatory, each of the

controlled substances at issue, marijuana, Hydrocodone, and Carisoprodol,

were listed followed by "Yes" and "No."

        During jury instructions, the trial court provided the jury with the

previously agreed upon law regarding the Contraband charge:




5 We are cognizant of the fact that Appellant's counsel was denied his
request for the "mens rea" charge to be read in conjunction with the
Contraband charge. See N.T., at 207. However, Appellant's counsel agreed
that Contraband instruction itself was accurate. See id., at 210.


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        Defendant has been charged with providing contraband. To find
        the defendant guilty of this offense, you must find that the
        following elements have been proven beyond a reasonable
        doubt. First, that the defendant brought into prison a controlled
        substance so classified under Pennsylvania law. I again instruct
        you that marijuana, Hydrocodone, and Carisoprodol are
        controlled substances. And second, that defendant did so without
        written permit signed by the physician of the prison.

N.T., 3/18/16, at 256-57.

        Following       deliberations, the jury returned to the courtroom and

informed the trial court that they found Appellant guilty of Possession with

Intent to Distribute,      in relation to the    marijuana, and guilty of the count of

Contraband. However, in relation to the specific finding for Contraband, the

jury foreperson indicated that the jury checked "No"            in relation to all   three of

the specific substances underlying the Contraband charge "because it said

did she sell, give, or transmit to any convict."       Id.,   at 270.

        First, we note that we are confused as to the exact reason why the

trial court and Commonwealth agreed to include Appellant's interrogatory on

the verdict sheet. There       is no   requirement for the charge of Contraband that

the jury make an additional finding for grading purposes or otherwise. See

18    Pa.C.S.A.     §    5123(a). Thus, the addition of this interrogatory was

superfluous; it served only to cloud the issue. Additionally, our review of the

interrogatory as compared to the statutory language reveals that Appellant's

interrogatory misstates the relevant law.

        The Crimes Code defines the offense of Contraband as follows:



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           (a)   Controlled substance contraband to confined
                 persons prohibited.-- A person commits a felony of the
                 second degree if he sells, gives, transmits or furnishes to
                 any convict in a prison, or inmate in a mental hospital, or
                 gives away in or bring into any prison, mental hospital, or
                 any building appurtenant thereto, or on the land granted
                 to or owned or leased by the Commonwealth or county for
                 the use and benefit of the prisoners or inmates, or puts in
                 any place where it may be secured by a convict of a
                 prison, inmate of a mental hospital, or employee thereof,
                 any controlled substance included in Schedules I through V
                 of the  .   .   .Controlled Substance, Drug, Device and
                 Cosmetic Act       without a written permit by the physician
                                     .   .   .


                 of such institution, specifying the quantity and quality of
                 the substance which may be furnished to any convict,
                 inmate, or employee in the prison or mental hospital, the
                 name of the prisoner, inmate or employee for whom, and
                 the time when the same may be furnished, which permit
                 shall be delivered to and kept by the warden or
                 superintendent of the prison or mental hospital.
18 Pa.C.S.A. § 5123(a).

           The interrogatory provided by Appellant neglects to include the critical

language of "any prison, mental hospital, or building appurtenant thereto"

following the phrase "brings into." Instead, Appellant's counsel attempts to

muddy the waters by following the phrase "brings into" with "or put in any

place where it may be secured by                              a       convict." This language selection

appears to make it necessary for                     a   defendant to bring         a   controlled substance

into   a   place where it may be secured by                       a   convict. As the law has previously

been found to only require               a       defendant to bring        a    controlled substance into   a

prison, Appellant's counsel's paraphrasing clearly misstates the law, and we

admonish counsel for doing so. See Commonwealth v. Williams, 579 A.2d

869, 871 (finding that 18 P.S. 18 Pa.C.S.A.                                 §    5123(a) only requires      a



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defendant to bring        a   controlled substance into one of the enumerated

facilities to constitute commission of      a   crime). The trial court should never

have accepted Appellant's interrogatory.

          We reject Appellant's attempt to profit from her attempt to mislead the

jury. Thus, we find that the jury's answers to the interrogatory on the
verdict sheet amounted           to   nothing   more   than   a   legal   nullity. The

Commonwealth provided the jury with ample evidence that Appellant

brought contraband into the prison. Accordingly, we affirm Appellant's

conviction for Contraband.

          Next, Appellant alleges that the trial court erred in denying her request

for   a   jury charge   on the lesser -included offense of possession of      a   small

amount of marijuana for personal use.6 See Appellant's Brief, at 15.

6
  We note that Appellant's counsel appears to misapprehend the statutory
section that his client was charged with, and ultimately convicted of,
violating. Both the criminal complaint and the trial court's verdict sheet in
this matter clearly indicate that Count 5 of the criminal complaint charged
Appellant with "the possession of a small amount of mari[j]uana with the
intent to distribute it but not sell it." 35 P.S. § 780-113(a)(31)(ii). However,
the section of the statute that Appellant's counsel appears to request a jury
instruction for, and argues in her brief that the trial court erred by failing to
give, penalizes "the possession of a small amount of mari[j]uana only for
personal use." 35 P.S. § 780-113(a)(31)(i). As Appellant has preserved her
argument that possession of a small amount of marijuana for personal use is
a lesser -included offense of possession with intent to distribute, 35 P.S. §
780-113(a)(30), that should have been presented to the jury, we will
address this claim. However, to the extent that Appellant desired to
challenge the trial court's failure to charge the jury on what she was actually
charged with in Count 5, possession of a small amount of marijuana to
distribute, not sell, we find that Appellant has waived this argument for
purposes of our review by failing to develop this claim on appeal. See
(Footnote Continued Next Page)

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Appellant argues that counsel timely requested this instruction; the offense

is a    lesser -included offense of the possession with intent to distribute charge

that was given to the jury; and that the evidence produced by the
Commonwealth would support such           a   verdict. See id. Therefore, Appellant

contends that the trial court's refusal to charge the jury on possession of         a

small amount of marijuana for personal use constituted reversible error. See

id.

         Our standard of review when considering      a   challenged jury instruction

is as   follows:

         In examining the propriety of the instructions a trial court
         presents to a jury, our scope of review is to determine whether
         the trial court committed a clear abuse of discretion or an error
         of law which controlled the outcome of the case. A jury charge
         will be deemed erroneous only if the charge as a whole is
         inadequate, not clear or has a tendency to mislead or confuse,
         rather than clarify, a material issue. A charge is considered
         adequate unless the jury was palpably misled by what the trial
         judge said or there is an omission which is tantamount to
         fundamental error. Consequently, the trial court has wide
         discretion in fashioning jury instructions. The trial court is not
         required to give every charge that is requested by the parties
         and its refusal to give a requested charge does not require
         reversal unless the appellant was prejudiced by that refusal.
Commonwealth v. Baker, 963 A.2d 495, 507                  (Pa. Super 2008) (citation

omitted).


(Footnote Continued)

Commonwealth v. Gould, 912 A.2d 869, 873                  (Pa. Super. 2006) (holding
appellant waived issue on appeal where he failed to develop claim with
relevant citations to case law and record).


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        The trial court is required to instruct the             jury   as to the applicable law

of the case. See Commonwealth v. Daniels, 963 A.2d 409, 430 (Pa.

2009). If     a   defendant requests       a   charge for   a    lesser -included offense, the

trial court must charge on that offense "if there                 is some   disputed evidence

concerning an element of the greater charge or if the undisputed evidence                    is

capable of more than one rational inference." Commonwealth v. Hawkins,

614 A.2d 1198, 1201 (Pa. Super. 1992) (en banc) (citation omitted). The

court does not err, however, in refusing "to instruct the jury on the lesser -

included offense unless the evidence could support                 a   conviction on the lesser

offense. There is no duty on         a   trial judge to charge upon law which has no

applicability to presented facts." Commonwealth v. Wilds, 362 A.2d 273,

278 (Pa. Super. 1976) (internal quotation marks omitted).

        The       evidence presented at trial established                that Officer Bonsell
observed Appellant hide          a       napkin       under his    computer monitor while

completing the check -in procedure at the prison. Once alerted by the K-9

officer to the presence of narcotics on Appellant's person, Officer Bonsell

recovered the napkin and discovered it contained marijuana. The marijuana

was divided almost equally among twelve separate latex balloons. Corporal

Barrows testified that the fact that the marijuana was divided into equal

portions in latex balloons heavily suggested that Appellant's intent was to

distribute the marijuana.

        Additionally, Appellant's requested jury instruction for the lesser -

included offense of possession of              a   small amount of marijuana for personal

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use ran     completely counter to her defense strategy. While Appellant

admitted to possession of the Hydrocodone and Carisprodol tablets, she

unequivocally denied ever possessing the marijuana.

        We recognize that the crime of possession of a small amount of

marijuana,   is a   lesser -included offense of possession with intent to deliver

marijuana. See Commonwealth v. DeLong, 879 A.2d 234, 237 n.2 (Pa.

Super. 2005). However, based upon the evidence adduced at trial, we find

that the trial court correctly refused to provide the charge to the jury for the

offense of possession of     a   small amount of marijuana. Due to her defense

strategy of completely denying ownership of the marijuana, Appellant did

not present any evidence to demonstrate that she possessed the marijuana

for personal use.

        The only evidence presented in relation to the marijuana, i.e., the

individual packaging, the amount of packages, and the type of packaging,

demonstrated that the marijuana was possessed with the intent to deliver.

See, e.g., Commonwealth v. Carpenter, 955 A.2d 411, 415 (Pa. Super.

2008) (finding that "[e]ven where the quantity of the drug could possibly be

consistent with personal use, the presence of the drug paraphernalia in

[appellant's] home, such as scales and packaging materials, unequivocally

establish more than just personal use."); Commonwealth v. Ratsamy, 934

A.2d 1233, 1235-38 (Pa. 2007) (finding that appellant possessed crack

cocaine with intent to deliver where he possessed     a   large quantity of unused

plastic bags, and an expert testified that the circumstances surrounding the

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appellant's possession of the crack cocaine, including the amount and the

form of the drug, established that he intended to distribute the crack

cocaine). Thus, the trial court correctly found that the evidence is not

capable of more than one rational inference and properly refused to instruct

the jury on the possession of    a   small amount of marijuana offense. See

Hawkins, 614 A.2d at 1201. Accordingly, Appellant's second claim          is

without merit.

        Judgment of Sentence Affirmed.

Judgment Entered.




J    seph D. Seletyn,
Prothonotary


Date: 2/28/2017




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