J-S42009-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JASON J. PERRONE

                        Appellant                   No. 1304 WDA 2013


          Appeal from the Judgment of Sentence March 19, 2013
            In the Court of Common Pleas of Cambria County
             Criminal Division at No(s): CP-11-0001181-2011


BEFORE: PANELLA, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                     FILED SEPTEMBER 23, 2014

      Appellant, Jason J. Perrone, appeals from the judgment of sentence

entered March 19, 2013, by the Honorable Timothy P. Creany, Court of

Common Pleas of Cambria County. We affirm.

      On May 6, 2011, Zachary Smith was at his home in Cambria County

when he observed Perrone drive by the residence, exit his vehicle and slash

the tires on three vehicles parked outside belonging to the Smith family.

When Northern Cambria Borough Police Officer Anthony Beltowski arrived at




At the time, Perrone was arguing with Zachary S

After Perrone ignored several commands by Officer Beltowski to shut off the

engine and put the vehicle in park, Officer Beltowski reached into the vehicle
J-S42009-14



and turned off the engine. When Perrone refused to step out of the vehicle,

Officer Beltowski assisted Perrone out of the vehicle.              Officer Beltowski

observed a strong odor of alcohol emanating from the vehicle and noted that

when he assisted Perrone from his vehicle, he was unable to stand up on his

own.       A pat-down search for weapons and a vehicular search revealed a

buck knife, a glass container containing marijuana, a blue glass narcotic pipe

and an empty Suboxone1 Film packet.              A subsequent blood test revealed



          Following a jury trial, on February 28, 2013, Perrone was convicted of

six counts of Driving Under the Influence (DUI),2 Criminal Mischief

Tangible Property,3 and Possession of a Controlled Substance (Suboxone

Film).4      The trial court additionally found Perrone guilty of the summary

offenses of Driving While Operating Privilege Suspended or Revoked,5

Disorderly Conduct,6 Driving Under Suspension             DUI Related,7 and Public

Drunkenness.8 On March 19, 2013, the trial court sentenced Perrone to 16

____________________________________________


1
  Suboxone Film is a controlled substance that is prescribed to help manage
the physical symptoms and cravings of opioid dependence.                See
www.suboxone.com (last visited 9/8/14).
2
    75   Pa.C.S. §§ 3802(a)(1), (c), (d)(1)(i)-(iii), and (d)(3).
3
    18   Pa.C.S. § 3304(a)(1).
4
    35   P.S. § 780-113(a)(16).
5
    75   Pa.C.S. § 1543(b)(1).
6
    18   Pa.C.S. § 5503(a)(4).
7
    75   Pa.C.S. § 1543(b)(1.1)(i).
8
    18   Pa.C.S. § 5505.



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J-S42009-14



                       onment.      Perrone filed timely post-sentence motions,

which the trial court denied. This timely appeal followed.

      On appeal, Perrone raises the following issues for our review:

      I.     Whether Perrone was entitled to a mistrial where the jury
             heard several incriminating statements made to the affiant
             that were not included in discovery and never subject to
             pretrial suppression?

      II.    Whether there was sufficient evidence to convict Perrone
             of Simple Possession where the only evidence introduced
             at trial was that he possessed a suboxone film wrapper?

      III.   Whether there was sufficient evidence to convict Perrone
             of Driving Under Suspension (DUI-related) where no
             evidence was introduced of actual notice of the
             suspension.



      Perrone first argues that the trial court erred when it denied his

request for a mistrial.

where the alleged prejudicial event may reasonably be said to have deprived

the   defendant   of   a   fair   and   impartial   trial   Commonwealth     v.

Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013) (citation omitted).

      It is well-
      motion for a mistrial is limited to determining whether the trial
      court abused its discretion. An abuse of discretion is not merely
      an error of judgment, but if in reaching a conclusion the law is
      overridden or misapplied, or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias or ill-will ... discretion is abused. 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. A mistrial is not necessary where
      cautionary instructions are adequate to overcome prejudice.


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Id. (citation omitted).

      Perrone contends that the trial court should have granted a mistrial

after Officer Beltowski repeated several allegedly inculpatory statements

made by Perrone that were not disclosed by the Commonwealth in




                                                N.T., Trial, 2/27/13, at 112.

Officer Beltowski also testified that when he questioned Perrone as to why



               Id., at 120.    Later, Officer Beltowski stated that Perrone

approached him at the call of the list prior to trial and indicated that he was

                                                                         Id.



indicated that he was unaware of these statements prior to Officer

                                Id. at 124. The trial court ultimately declined

                                          nstead advised defense counsel to

                                    Id. at 126. The trial court again denied



case-in-chief, opting to issue a cautionary instruction to the jury to disregard

the statements. See id. at 212-213.

      On appeal, Perrone argues that the trial court should have granted a

mistrial because he was denied the opportunity to suppress the inculpatory

statements as they were not included in pretrial discovery in violation of

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Pa.R.Crim.P. 573(B)(1)(b).    We disagree.      Rule 573(B)(1)(b) provides as

follows:

      (B) Disclosure by the Commonwealth.

      (1) Mandatory. In all court cases, on request by the defendant,
      and subject to any protective order which the Commonwealth
      might obtain under this rule, the Commonwealth shall disclose to
      the defendant's attorney all of the following requested items or
      information, provided they are material to the instant case. The
      Commonwealth shall, when applicable, permit the defendant's
      attorney to inspect and copy or photograph such items.

                                  *    *    *

      (b) any written confession or inculpatory statement, or the
      substance of any oral confession or inculpatory statement, and
      the identity of the person to whom the confession or inculpatory
      statement was made that is in the possession or control of the
      attorney for the Commonwealth[.]

Pa.R.Crim.P. 573(B)(1)(b) (emphasis added).

      Although the statements at issue certainly appear to fall within the

gambit of those mandatory disclosures by the Commonwealth under the

rule, there is no evidence that Officer Beltowski included these statements in

either the incident report or the affidavit of probable cause, or that the



testimony at trial.    Without any prior knowledge of the inculpatory

statements during pretrial discovery, the Commonwealth certainly cannot be

found to have committed a discovery violation.       See Commonwealth v.

Collins, 598 Pa. 397, 957 A.2d 237, 253 (2008)       The Commonwealth does

not violate Rule 573 when it fails to disclose to the defense evidence that it




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      Despite the absence of a discovery violation, even assuming that the

statements were prejudicial, we find th

to the jury to disregard the testimony in its entirety adequately cured any

potential prejudice. The court instructed the jury as follows:

             Okay. Ladies and gentlemen, one of the items on which
      we had argument related to statements that the Commonwealth
      contends were made by Mr. Perrone, three statements in
      particular. All three of them were made to Officer Beltowski, the
      first statement in effect that the defendant acknowledged that he
      was driving because he said something to the effect of what else
      was I going to do; the second statement which is purported to
      have been made by the defendant to Officer Beltowski at one of
      the times when the parties were here in court and he indicated
      to Officer Beltowski that he was going to have his girlfriend or
      his girlfriend was going to testify that she was the one who
      drove that night; and the third statement relating to the

      the defendant said that he did these
      like Mr. Smith.



      disallow the admission of those statements, that testimony, and
      as a result tell you to disregard it entirely in making your


      of those statements. So it is
      you proceed and deliberate when we get to that point presuming
      that those statements had not     that you had not heard those
      statements, that those statements themselves cannot be used to
      in any way implicate or act as an admission or confession by Mr.
      Perrone. Okay?

N.T., Trial, 2/27/13, at 212-

instructions, Commonwealth v. Burno, 94 A.3d 956, 977 (Pa. 2014), and

Perrone has failed to offer any indication that the jury failed to follow the

                                            rdingly, we find no evidence that


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Perrone was deprived of a fair and impartial trial so as to warrant a mistrial

in this case.

      Perrone next challenges the sufficiency of the evidence to support his

convictions for Possession of a Controlled Substance and Driving Under

Suspension      DUI Related. We review a challenge to the sufficiency of the

evidence as follows:

             The standard we apply when 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 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
      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. Furthermore, when reviewing a sufficiency
      claim, our Court is required to give the prosecution the benefit of
      all reasonable inferences to be drawn from the evidence.

             However, the inferences must flow from facts and
      circumstances proven in the record, and must be of such volume
      and quality as to overcome the presumption of innocence and
      satisfy the jury of an accused's guilt beyond a reasonable doubt.
      The trier of fact cannot base a conviction on conjecture and
      speculation and a verdict which is premised on suspicion will fail
      even under the limited scrutiny of appellate review.




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Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).

      Perrone first argues that the evidence was insufficient to support his

conviction of Possession of a Controlled Substance       Suboxone Film.    The

Crimes Code defines the crime of Possession of a Controlled Substance as

[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.                  -

113(a)(16).

      Perrone contends that the Commonwealth failed to establish that he

actually possessed Suboxone Film when the testimony at trial was that an

empty Suboxone Film wrapper was recovered during the pat-down search.

We reiterate that circumstantial evidence may be used to establish a

                                                      See Commonwealth v.

Harvard, 64 A.3d 690, 699 (Pa. Super. 2013), appeal denied, 77 A.3d

636 (Pa. 2013).       At trial, Sergeant Joseph Laughren testified that Perrone

admitted to ingesting Suboxone Film on the day he was arrested, N.T., Trial,

2/27/13, at 189, and a subsequent blood test confirmed the presence of



more than sufficient proof that Perrone possessed the Suboxone Film to

support his conviction under 35 P.S. § 750-113(a)(16).

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      Lastly, Perrone argues that the evidence was insufficient to support his

conviction of Driving Under Suspension             DUI Related, because the

Commonwealth failed to introduce evidence that Perrone had actual notice




is a necessary prerequisite to support a conviction under 75 Pa.C.S. §

1543(b). See Commonwealth v. Vetrini, 734 A.2d 404, 407 (Pa. Super.

1999).   Merely establishing that notice was mailed is not sufficient by itself

                         Id. (citation omitted).    Actual notice may take the

form of a collection of facts and circumstances that allow the fact finder to

                                                          Commonwealth v.

Brewington, 779 A.2d 525, 527 (Pa. Super. 2001) (internal quotes and

citation omitted).

      Moreover, [n]otice is a question of fact, and anything that proves
      knowledge or is legal evidence showing that knowledge exists
      can be sufficient. There are no bright line tests as to what kind
      of proof is required to show actual notice; however, this Court
      has indicated that evidence of mailing of notice coupled with
      some other, additional evidence of knowledge will suffice to
      establish actual notice beyond a reasonable doubt.

Vetrini, 734 A.2d at 407 (internal quotes and citations omitted).

                                      itless. The Commonwealth introduced



suspension was mailed to Perrone on March 7, 2008. See

                                                                    t after this

date, Perrone was convicted of multiple violations of Driving Under

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J-S42009-14




of his arrest in this case. Id. It is simply implausible to countenance that

Perrone was unaware that his license was suspended, despite his repeated

convictions for Driving Under Suspension. We find the mailing of the initial

                                                                     repeated

convictions for Driving Under Suspension, sufficient evidence that Perrone

had actual notice that his license was suspended. Therefore, this claim fails.

      Judgment of sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/23/2014




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