J-S61045-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     Appellee              :
                                           :
                     v.                    :
                                           :
TERRANCE TERRELL HOPSON,                   :
                                           :
                     Appellant             :     No. 335 MDA 2015

     Appeal from the Judgment of Sentence Entered December 5, 2014,
             in the Court of Common Pleas of Lycoming County,
           Criminal Division, at No(s): CP-41-CR-0000825-2013

BEFORE:    PANELLA, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                  FILED OCTOBER 27, 2015

      Terrance Terrell Hopson (Appellant) appeals from a judgment of

sentence   entered   following   his   convictions   for   contraband-controlled

substance contraband to confined persons prohibited, contraband-possession

of controlled substance contraband by inmate prohibited, possession of a

controlled substance (marijuana), and possession of a small amount of

marijuana. While we ultimately affirm Appellant’s judgment of sentence, we

vacate his conviction for possession of a controlled substance (marijuana).

      The trial court summarized the background underlying this matter as

follows.

            On May 2, 2013, the mother of [Appellant’s] girlfriend
      called the Pennsylvania State Police (PSP) barracks in Milton.
      The mother told police that [Appellant] was smoking marijuana
      with her daughter and selling narcotics in West Milton,
      Pennsylvania. The barracks in Milton contacted PSP Trooper
      John Whipple (Whipple). Whipple talked with the mother, who

*Retired Senior Judge assigned to the Superior Court.
J-S61045-15


     said that her daughter and [Appellant] had borrowed the
     mother’s car, which was a black Buick Rendezvous. The mother
     said that her daughter and [Appellant] had gone to Williamsport,
     Pennsylvania to purchase drugs to sell in Milton. She told
     Whipple that her daughter and [Appellant] were returning to
     West Milton around 5:30 P.M. or 6 P.M. The mother gave
     Whipple the addresses in Williamsport where she thought her
     daughter and [Appellant] might be. Whipple went to those
     addresses but did not find the black Rendezvous.

           Whipple then parked beside State Route 15 to look for the
     black Rendezvous. Whipple saw a black Rendezvous travelling
     south on Route 15. Whipple testified that a young woman was
     driving the vehicle and [Appellant] was in the passenger seat.
     Whipple followed the vehicle to daughter’s address in West
     Milton. PSP Trooper Mitchell McMunn (McMunn) and Trooper
     Samuel Fishel (Fishel) were already at the address when the
     Rendezvous and Whipple arrived.

           McMunn approached the passenger side of the
     Rendezvous.     As he approached, he observed [Appellant]
     grabbing a black duffle bag. When [Appellant] began to exit the
     Rendezvous, McMunn noticed a strong odor of marijuana
     emanating from the vehicle. McMunn testified that [Appellant]
     appeared very nervous and was fidgeting.         McMunn asked
     [Appellant] whether there was anything in the duffle bag.
     [Appellant] said there was nothing in the bag and told McMunn
     that he could search it. [Appellant] went to open the bag, but
     McMunn told [him] not to open it. McMunn then asked if he
     could search the bag[, and Appellant] said he could not.

           McMunn then decided to detain [Appellant] because of the
     odor of marijuana. McMunn testified that [Appellant] was giving
     non-verbal indicators that he wanted to flee.          Fishel told
     [Appellant] to get up against the car. Fishel put handcuffs on
     one hand of [Appellant], but as he tried to put the cuffs on the
     other hand, [Appellant] threw an elbow and “began to fight” with
     the troopers. Fishel and McMunn wrestled [Appellant] to the
     ground. [Appellant] attempted to keep his arms under him, but
     after 30 seconds, the troopers were able to place [Appellant] in
     handcuffs.    McMunn testified that once [Appellant] was in
     handcuffs, [Appellant] did not have access to his front pockets.




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           After placing [Appellant] in handcuffs, McMunn searched
     [Appellant]. McMunn found a sandwich bag in [Appellant’s] left
     pants pocket. The bag contained marijuana. McMunn found a
     wallet, loose currency, and a cigarette box in [Appellant’s] right
     front pants pocket. A glass device for smoking marijuana was
     found in the cigarette box. During trial, McMunn testified that he
     did not remember whether he told [Appellant] what he found.
     [Appellant] was placed in the back of a patrol car and
     transported to a location where the Lycoming County Adult
     Probation Office (APO) could take custody of him.

            Lycoming County Probation Officer Bryan Bower (Bower)
     testified that when he arrived to take custody of [Appellant],
     [Appellant] was handcuffed in the back of a PSP patrol car.
     Bower placed his handcuffs on [Appellant] and then removed the
     PSP handcuffs. Bower did not search [Appellant] because he
     presumed he was already searched by the PSP. Bower did not
     ask [Appellant] whether he had drugs in his possession.

            Lycoming County Corrections Officer Michael Swain
     (Swain) testified that he was the intake officer at the Lycoming
     County Prison on May 2, 2013. He testified that as an intake
     officer, he “take[s] new commitments from the arresting agency
     as they come in the back door, verif[ies] confinement orders,
     search[es] the inmate, process[es] them, everything up to the
     point where they go to medical and then assign[s] them a bed to
     go upstairs.” Swain testified that [Appellant] was in handcuffs
     when APO brought him to the prison. Immediately after the
     handcuffs were removed, [Appellant] placed his hands on the
     wall. Swain felt a little bulge in the front right watch pocket of
     [Appellant’s] pants. Swain found a clear plastic bag in the watch
     pocket. The bag contained marijuana.

            Whipple testified that he received all of the evidence. The
     bag found by McMunn had 20 grams of marijuana in it. The bag
     found by Swain was one inch by one inch, smaller than the bag
     found by McMunn. Whipple testified that he believe[d] the
     marijuana found by Swain was for resale because it was in a
     separate and smaller bag. The duffle bag contained a clear
     plastic bag. The bag contained smaller clear plastic bags. Half
     of the smaller bags were one inch by one inch. The other half
     were one inch by 1.5 inches.




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              During   the   preliminary  arraignment,    [Appellant]
        commented that the marijuana found at the Lycoming County
        Prison was “from the same stuff.”      Whipple believed this
        comment showed that [Appellant] believed the small bag of
        marijuana in the watch pocket “was just an extension or from
        the big bag of weed that Trooper McMunn found in his left
        pocket.”

              On March 13, 2014, after a non-jury trial, [the trial court]
        found [Appellant] guilty of contraband-controlled substances,
        possession of controlled substances contraband by inmate
        prohibited, possession of marijuana, and possession of a small
        amount of marijuana.[1] Sentencing was originally scheduled for
        June 26, 2014. On June 10, 2014, [Appellant] filed a motion for
        arrest of judgment/new trial. [The trial court] denied the motion
        on June 23, 2014…. On October 21, 2014, [Appellant] was
        sentenced on the contraband-controlled substances offense to
        four years in Lycoming County Intermediate Punishment
        program. [The court] ordered that the first two years be served
        in county prison. The [c]ourt found that the other offenses
        merged with contraband-controlled substances for sentencing
        purposes. [On October 31, 2014, Appellant filed post-sentence
        motions.] On December 5, 2014, after it appeared to [the trial
        court] that it imposed an illegal sentence, [the court]
        resentenced [Appellant] on the contraband-controlled substances
        offense to incarceration in a state correctional institution for a
        minimum of two years and a maximum of four years. The
        [c]ourt again found that the other offenses merged with
        contraband-controlled substances for sentencing purposes.

Trial   Court   Opinion,   2/5/2015,   at    1-4   (footnotes   and   unnecessary

capitalization omitted).

        The trial court denied Appellant’s post-sentence motions on February

5, 2015. Appellant timely filed a notice of appeal. The trial court directed

1
  The non-jury trial that took place on March 13, 2014, related only to the
marijuana Swain found on Appellant in the Lycoming County Prison.
Appellant faced additional charges in Union County for the events that took
place when the various state troopers encountered Appellant outside of the
Rendezvous.


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Appellant to comply with Pa.R.A.P. 1925(b), and Appellant filed a 1925(b)

statement.     The trial court subsequently issued an opinion in compliance

with Pa.R.A.P. 1925(a).

        In his brief to this Court, Appellant asks us to consider the questions

that follow.

        [1.] Whether the lower court erred in finding [] Appellant guilty
        of possession of a controlled substance as defined in 35
        [Pa.C.S.] §780-113(a)(16) despite the more specific offense for
        possession of a small amount of marijuana §780-113(a)(31)?

        [2.] Whether the lower court erred in finding that there was
        sufficient evidence produced at trial to sustain a conviction for
        possession of contraband, possession of a controlled substance,
        and possession of a small amount of marijuana?

Appellant’s Brief at 4 (suggested answers omitted).2

        Regarding the first issue, Appellant was convicted of violating both 35

P.S. § 780-113(a)(16) and 35 P.S. § 780-113(a)(31), which provide as

follows.

        (a) The following acts and the causing thereof within the
        Commonwealth are hereby prohibited:

                                       ***

           (16) Knowingly 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.

2
    We have reordered Appellant’s issues for ease of disposition.



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                                         ***

           (31) Notwithstanding other subsections of this section, (i)
           the possession of a small amount of marihuana only for
           personal use; (ii) the possession of a small amount of
           marihuana with the intent to distribute it but not to sell it;
           or (iii) the distribution of a small amount of marihuana but
           not for sale.

           For purposes of this subsection, thirty (30) grams of
           marihuana or eight (8) grams of hashish shall be
           considered a small amount of marihuana.

35 P.S. § 780-113.

      Appellant argues that the trial court was prohibited from convicting

him of violating subsection (a)(16); instead, the court should have convicted

him only of violating subsection (a)(31).              The trial court agrees with

Appellant in its 1925(a) opinion. Trial Court Opinion, 4/15/2015. We also

agree with Appellant. See Commonwealth v. Tisdale, 100 A.3d 216, 219

(Pa. Super. 2014) (“[I]t is apparent that where both subsection (16) and

(31) apply, conviction properly rests on the specific charge found at

subsection (31)[].”).      Consequently, we vacate Appellant’s conviction for

violating subsection (a)(16).

      In    support   of   the    second      issue,   Appellant   argues    that   the

Commonwealth failed to offer sufficient evidence to convict him of

contraband-controlled substance contraband to confined persons prohibited,

contraband-possession       of   controlled    substance    contraband      by   inmate

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




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of a small amount of marijuana.       We already have vacated Appellant’s

conviction for possession of a controlled substance (marijuana).   Thus, we

need not further address that conviction.

      Regarding his contraband convictions, Appellant was found guilty of

violating 18 Pa.C.S. § 5123(a), which is entitled “controlled substance

contraband to confined persons prohibited,” and 18 Pa.C.S. § 5123(a.2),

which is entitled “possession of controlled substance contraband by inmate

prohibited.”   In his 1925(b) statement, Appellant merely averred that his

convictions for “possession of contraband by an inmate, possession of a

controlled substance, and possession of a small amount of marijuana” were

not supported by sufficient evidence.        Pa.R.A.P. 1925(b) Statement,

3/25/2015.     Thus, in terms of his contraband convictions, Appellant has

waived his issue regarding subsection 5123(a) by failing to include it in his

1925(b) statement. Pa.R.A.P. 1925(b)(4)(vii).

      Moreover, assuming arguendo that Appellant challenged both of his

contraband convictions in his 1925(b) statement, in that statement,

Appellant specifically challenged the mens rea element of his convictions,

stating that the Commonwealth failed to prove that he “knowingly possessed

a small amount of marijuana while being processed through intake at the

Lycoming County Prison.” Id. Yet, in his appellate brief, Appellant offers a

brief argument that the trial evidence was insufficient to support his

conviction for violating subsection 5123(a) of the contraband statute,



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arguing “that the legislative intent of [sub]section (a) is to deter third

parties, or visitors from bringing controlled substances into prison systems.”

Appellant’s Brief at 10.     Appellant failed to include such an issue in his

1925(b) statement; thus, the issue is waived for this reason as well.

Pa.R.A.P. 1925(b)(4)(vii).

      As to his remaining two convictions, Appellant presents the same

argument.     He claims that the Commonwealth failed to prove that he

knowingly possessed the marijuana Swain found in the front right watch

pocket of Appellant’s pants.     Appellant essentially contends that, because

McMunn searched him prior to his intake at the prison, he did not know he

still had the bag of marijuana in his watch pocket when he arrived for intake

at the prison.

            Our standard of review in determining whether the
      evidence was sufficient

         requires that we consider the evidence admitted at trial in
         a light most favorable to the Commonwealth, since it was
         the verdict winner, and grant it all reasonable inferences
         which can be derived therefrom. The evidence, so viewed,
         will be deemed legally sufficient to sustain the jury’s
         conviction on appeal only if it proves each element of the
         offense charged beyond a reasonable doubt.

Commonwealth v. Poland, 26 A.3d 518, 521 (Pa. Super. 2011) (citation

omitted).

      The trial court could find that Appellant knew that he had a bag of

marijuana in the right front watch pocket of his pants.         The evidence




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presented at trial establishes that McMunn retrieved marijuana only from

Appellant’s left front pocket of his pants and other items from Appellant’s

right front pocket. There was no evidence that McMunn or any other officer

searched or removed anything from Appellant’s right front watch pocket. It

is more than reasonable to infer that Appellant knew that the bag of

marijuana remained in his watch pocket after McMunn’s search. Thus, the

evidence   sufficiently   demonstrates   that   Appellant   knew   he   still   had

marijuana in the right front watch pocket of his pants when he arrived at the

Lycoming County Prison. This issue warrants no relief.

     For these reasons, we vacate Appellant’s conviction for violating 35

P.S. § 780-113(a)(16).       Because the court merged this conviction for

sentencing purposes with Appellant’s conviction for violating 18 Pa.C.S.

§ 5123(a), we can affirm the judgment of sentence, as the erroneous

conviction has no impact on the court’s overall sentencing scheme.              See

Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006) (“If [this

Court’s] disposition upsets the overall sentencing scheme of the trial court,

we must remand so that the court can restructure its sentence plan.              By

contrast, if our decision does not alter the overall scheme, there is no need

for a remand.”).

     Judgment of sentence affirmed. Conviction for violating 35 P.S. § 780-

113(a)(16) vacated.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/27/2015




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