J-S53022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WESLEY WILLIAM NACE,

                            Appellant                No. 2054 MDA 2015


             Appeal from the Judgment of Sentence June 17, 2015
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0001520-2014


BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED AUGUST 11, 2016

       Appellant, Wesley William Nace, appeals from the judgment of

sentence entered on June 17, 2015, in the Lebanon County Court of

Common Pleas. We affirm.

       The trial court set forth the relevant facts and procedural history of

this matter as follows:

              On March 24, 2015, [Appellant] first listed his case for
       trial.   At that time, the case was continued by the
       Commonwealth until April 21, 2015. On May 4, 2015, a jury was
       selected for [Appellant’s] case.    Following jury selection,
       however, [Appellant] filed an Omnibus Pre-Trial Motion to
       Suppress Evidence, Dismiss Charges and Make Available Copies
       of his Probation File. We permitted both [Appellant] and the
       Commonwealth to go to the Lebanon County Probation

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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       Department and review the file.           However,         we   found
       [Appellant’s] Suppression Motion to be untimely.

              At trial, the jury heard testimony from Adult Probation
       Officers (APOs) Daniel Marshall and James Doty. Both APOs
       testified that on April 15, 2014, [Appellant] was on active
       supervision with their department. As part of this supervision, a
       routine search of [Appellant’s] home was conducted. During the
       search, the APOs noted a blackcap and plastic bag that both
       contained white residue on top of [Appellant’s] dresser. They
       testified that both items are commonly used to package or to
       ingest drugs. Based on their training and experience, they
       believed that white residue was likely a controlled substance.
       The items were turned over to the Lebanon City Police
       Department and sent out for forensic testing at the Pennsylvania
       State Police Harrisburg Regional Laboratory.         By way of
       stipulation, the lab report was admitted into evidence and
       confirmed the residue as Cocaine, a Schedule II Controlled
       Substance.

             On May 8, 2015, the jury returned a guilty verdict [one
       count of possession of drug paraphernalia]. On June 17, 2015,
       we sentenced [Appellant] to pay the costs of prosecution and a
       fine and to serve fifteen days to one year in the Lebanon County
       Correctional Facility. On June 19, 2015, [Appellant] filed a
       timely Consolidated Post-Sentence Motion, wherein he contested
       the weight and sufficiency of the evidence. He also argued that
       his Pre-Trial Motion should have been considered timely. Finally,
       [Appellant] argued that we abused our discretion when
       sentencing him.

Trial Court Opinion, 10/20/15, at 2-3.           The trial court denied Appellant’s

post-sentence motions on October 20, 2015, and this timely appeal followed.

Both Appellant and the trial court have complied with Pa.R.A.P. 1925.1

____________________________________________


1
   While the trial court did not file an additional opinion after Appellant filed
his Pa.R.A.P. 1925(b) statement of errors complained of on appeal, the trial
court did file an order stating that the issues presented in Appellant’s
Pa.R.A.P. 1925(b) statement were addressed in the trial court’s earlier
(Footnote Continued Next Page)


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      On appeal, Appellant presents the following issues for this Court’s

consideration:

      I.     Did the Commonwealth fail to present sufficient evidence
             at trial to prove beyond a reasonable doubt that Appellant
             possessed drug paraphernalia?

      II.    Did the Lower Court err by denying Appellant’s pretrial
             motion to suppress evidence as untimely without
             conducting a hearing at which testimony would have been
             presented regarding the timeliness of Appellant’s pretrial
             motions where the alleged untimeliness of Appellant’s
             pretrial motion was caused by the Commonwealth’s failure
             to provide timely discovery?

Appellant’s Brief at 4. We shall address these issues in the order in which

they were presented.

      Appellant’s first issue raises a challenge to the sufficiency of the

evidence.

      The standard we apply in reviewing the sufficiency of the
      evidence 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 fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test,
      we may not weigh the evidence and substitute our judgment for
      [that of] 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 fact-finder 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
                       _______________________
(Footnote Continued)

opinion filed on October 20, 2015. Order, 12/23/15. Accordingly, the trial
court satisfied the requirements of Pa.R.A.P. 1925(a)(1).



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      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      trier 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. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011)

(citation omitted).

      Here, Appellant is challenging his conviction for possessing drug

paraphernalia. Specifically, Appellant alleges that the Commonwealth failed

to prove that he had the intent to possess the paraphernalia.        Appellant’s

Brief at 10.   Possession of drug paraphernalia is defined in the Controlled

Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq., as

follows:

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

                                   * * *

            (32) The use of, or possession with intent to use,
            drug paraphernalia for the purpose of planting,
            propagating,     cultivating, growing,    harvesting,
            manufacturing, compounding, converting, producing,
            processing, preparing, testing, analyzing, packing,
            repacking, storing, containing, concealing, injecting,
            ingesting, inhaling or otherwise introducing into the
            human body a controlled substance in violation of
            this act.

35 P.S. § 780-113(a)(32).

      We note that the paraphernalia was not found on Appellant’s person,

and therefore, the Commonwealth was required to prove constructive




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possession.     Commonwealth v. Estepp, 17 A.3d 939, 944 (Pa. Super.

2011).

      Constructive possession is a legal fiction, a pragmatic construct
      to deal with the realities of criminal law enforcement.
      Constructive possession is an inference arising from a set of
      facts that possession of the contraband was more likely than not.
      We have defined constructive possession as conscious dominion.
      We subsequently defined conscious dominion as the power to
      control the contraband and the intent to exercise that control.
      To aid application, we have held that constructive possession
      may be established by the totality of the circumstances.

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012) (internal

quotation marks and citation omitted).

      The Commonwealth established that, while conducting a search of

Appellant’s room, the probation officers saw a plastic cap and plastic baggie

containing suspected cocaine residue. N.T., 5/8/15, at 18. The residue was

later determined to be cocaine. Id. at 39-40. The plastic cap and baggie

were seen sitting atop Appellant’s dresser in plain sight, and while Appellant

lived with his parents, Appellant was the only occupant of his bedroom and

the only person who accessed the bedroom.         Id. at 20, 27.    Additionally,

because the plastic cap and baggie were sitting in the open on his dresser, it

was wholly reasonable for the jury to conclude that the paraphernalia was

not   mislaid   or   unknown    to   Appellant.   Under   the   totality   of   the

circumstances, the evidence was sufficient to establish Appellant had the

power to control and the intent to possess and use the paraphernalia.

Brown, 48 A.3d at 430.         When viewed in the light most favorable to the


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Commonwealth as the verdict winner, we conclude that the evidence

supports Appellant’s conviction for possession of drug paraphernalia.

Accordingly, no relief is due.

      In his second issue on appeal, Appellant avers that the trial court erred

by denying his suppression motion as being untimely. Appellant argues that

the motion was filed late due to the Commonwealth’s failure to provide

discovery. Appellant’s Brief at 10.

      At the outset, we note that Pa.R.Crim.P. 579 and 781 provide the time

in which pretrial motions, including suppression motions, are to be filed, and

that time may be extended in the interests of justice.        The “interests of

justice” exception provides the trial court discretion to excuse a party’s tardy

presentation of a suppression motion. Commonwealth v. Johonoson, 844

A.2d 556, 561 (Pa. Super. 2004).       On appeal, we review the trial court’s

decision on these matters for an abuse of discretion. Id.

      In the case at bar, the trial court aptly addressed this issue as follows:

             The Pennsylvania Rules of Criminal Procedure permit a
      criminal defendant to file an Omnibus Pretrial Motion For Relief
      within 30 days following arraignment. Pa.R.Crim.P. 579(A). The
      30 day deadline applies “unless opportunity therefore did not
      exist, or the Defendant or his counsel was not aware of the
      grounds for the motion.” Pa.R.Crim.P. 579(A). The “interest of
      justice” exception to the time deadline governing the filing of
      pretrial motions provides a Judge with discretion to excuse a
      party’s tardy presentation of such a motion; it does not require
      the Judge to always excuse tardiness. Commonwealth v.
      Johonoson, 844 A.2d 556 (Pa.Super. 2004). The decision of
      whether or not to declare a pretrial motion untimely is a matter
      for the discretion of the Trial Judge. Commonwealth v. Cooke,
      394 A.2d 1271 (Pa.Super. 1978).

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            In this case, [Appellant] waived his formal arraignment on
     October 1, 2014. The waiver of arraignment form signed by
     [Appellant] clearly communicated the deadline for filing an
     Omnibus Pretrial Motion.         Thereafter, [Appellant’s] counsel
     received police reports from the District Attorney’s Office as part
     of an informal discovery request. The Criminal Complaint and
     the police reports communicated that Adult Probation Officers
     were involved in discovering the contraband inside [Appellant’s]
     residence. Despite this fact, [Appellant] did not file a motion
     seeking a copy of any reports generated by the Probation
     Department, nor did [Appellant] even submit a request to the
     District Attorney’s Office for additional information.

           [Appellant’s] case was ultimately listed for trial during the
     May 2015 term of court. On May 4, 2015, a jury was selected
     for [Appellant’s] case and trial was scheduled for May 8, 2015.
     One day prior to the trial, [Appellant] filed an Omnibus Pretrial
     Motion For Relief. In his motion, [Appellant] argued that he did
     not have access to the Lebanon County Probation file and thus
     he should be permitted to file a tardy Omnibus Pretrial Motion.

            In considering [Appellant’s] Motion, we examined the
     discovery file that was provided by the Commonwealth to
     [Appellant]. The initial police report authored by Sergeant Sims
     of the Lebanon City Police Department contained information
     summarizing the search and what was located as a result
     thereof.    The police report, together with the Affidavit of
     Probable Cause attached to the Criminal Complaint, clearly
     apprised [Appellant] that the initial search and discovery of
     contraband was completed by the Lebanon County Probation
     Department. Had [Appellant] wanted copies of the Probation
     Department files, or had [Appellant] wanted to challenge the
     propriety of a search by Probation Officers, he clearly could have
     filed a Motion far earlier.

           As it is, [Appellant’s] extremely late Pretrial Motion placed
     this Court in a procedural bind. By the time [Appellant] filed his
     Motion, a jury had already been selected. When the Court
     received [Appellant’s] Motion, it was already too late to contact
     the jurors in order to prevent or delay their appearance.1 Simply
     stated, there was no time for us to conduct a pretrial hearing
     without canceling the scheduled trial. Given that the lateness of
     the Pretrial Motion was entirely caused by the failure of
     [Appellant] and/or his counsel to evaluate their options more

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      promptly, we were unwilling to pull the rug out from under the
      trial that was about to start mere hours after the Pretrial Motion
      had been filed.
            1
                Twelve jurors and two alternates inconvenienced
            themselves by taking off work and/or leaving their
            daily routines in order to be a part of the criminal
            justice process.       Our system relies upon the
            cooperation of citizens who are summoned to serve
            as jurors. If we were to routinely force jurors to
            rearrange their schedules only to say “never mind”
            after they arrived at the courthouse, [it] would be
            unfair to those citizens who voluntarily agreed to
            fulfill their civil responsibility to serve as jurors.
            Simply stated, we are loathe to treat jurors in the
            manner requested by [Appellant].

            This Court did not err by exercising its discretion to deny
      [Appellant’s] last-second, eve-of-trial Omnibus Pretrial Motion
      that could and should have been filed far earlier in time. Under
      Pa.R.Crim.P. 579(A), we rendered an appropriate decision that
      should not be reversed by the Pennsylvania Superior Court.

Trial Court Opinion, 10/20/15, at 6-9 (emphasis in original).

      We agree with the trial court. The discovery materials provided by the

Commonwealth informed Appellant that the search of his residence was

conducted by the Adult Probation Department. Appellant failed to take any

action in this matter and did not pursue a suppression motion until the eve

of trial. Thus, we discern no abuse of discretion in the trial court’s decision

to deny such a tardy motion.

      For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm the judgment of sentence.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2016




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