J-A23029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    STEPHEN ANTONIO BLACKWOOD,

                             Appellant                No. 64 WDA 2019


      Appeal from the Judgment of Sentence Entered November 30, 2018
               In the Court of Common Pleas of Bedford County
             Criminal Division at No(s): CP-05-CR-0000708-2017


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED DECEMBER 30, 2019

        Appellant, Stephen Antonio Blackwood, appeals from the judgment of

sentence of an aggregate term of 6-23 months’ incarceration, followed by 3

years’ probation, imposed following his conviction for possession with intent

to deliver (PWID)1 marijuana and related offenses. Appellant challenges the

trial court’s denying his motion to suppress, as well as the sufficiency of the

evidence supporting his PWID conviction. After careful review, we affirm.

        The trial court has failed to provide this court with a summary of the

facts adduced at trial.       However, it did summarize the facts adduced at

Appellant’s suppression hearing as follows:

        At the evidentiary hearing, Trooper Joseph Watkins testified, in
        relevant part, that he was monitoring traffic along Interstate 99
____________________________________________


1   35 P.S. § 780-113(a)(30).
J-A23029-19


       in Bedford County on October 3, 2017. While doing so, he
       observed a vehicle drive by him in the left lane[,] which he viewed
       to have dark window tint. Trooper Watkins testified that the
       vehicle had “extremely dark window tint” and th[at] he “couldn’t
       identify the driver at all.” [N.T. Suppression, 2/23/18, at 9.] The
       Trooper effectuated a stop o[f] the vehicle due to the window tint
       and made contact with [Appellant] after he pulled his vehicle over.

       Upon making contact with [Appellant,] Trooper Watkins testified
       that [Appellant] appeared slightly nervous, that was “too much for
       just a regular traffic stop.” Id. at 10. Trooper Watkins testified
       that he noticed a strong odor of air freshener and a faint odor of
       marijuana coming from inside the vehicle. The Trooper testified
       that, in his opinion, the air freshener scent was pungent enough
       to be a masking scent to cover up the smell of marijuana. The
       Trooper testified that he could smell marijuana from the other side
       of the vehicle as well.        When Trooper Watkins confronted
       [Appellant] about the smell of marijuana, [Appellant] initially
       denied the smell, but eventually stated that he believed he
       smoked marijuana the day prior to the traffic stop. Id. at 12. The
       Trooper then advised [Appellant] that he would be performing a
       warrantless search of the vehicle. Upon searching the vehicle, the
       Trooper smelled marijuana coming from the glove box and
       eventually found marijuana, cocaine,[2] and drug paraphernalia
       after opening the glove box.         After seizing the controlled
       substances, the Trooper placed [Appellant] under arrest and had
       [his] vehicle towed.

       The next day, the Trooper visited the lot where [Appellant]’s
       vehicle was towed and tested the tint on [Appellant]’s vehicle[’s]
       windows. The Trooper testified that … [Appellant]’s driver’s side
       window tested at 28 percent visibility. The Trooper testified that
       he initially pulled over [Appellant]’s vehicle to investigate the
       window tint and that, at the location he was sitting on Interstate
       99, the window tint meter was located at the Pennsylvania State
       Police Barracks approximately three miles away. Trooper Watkins
       testified credibly as to the testimony recited above …. [Appellant]
       testified briefly at the evidentiary hearing on the limited issue of
       the window tint on his vehicle. [Appellant] admitted that his

____________________________________________


2 Trooper Watkins merely suspected the white powdery substance was
cocaine, but it ultimately tested negative for cocaine. N.T. Trial, 10/11/18, at
38.

                                           -2-
J-A23029-19


     vehicle did have window tint and did not dispute the percentage
     of visibility testified to by the Trooper.

Suppression Opinion, 8/14/18, at 2-4 (footnotes omitted).

     Trooper Watkins was the Commonwealth’s only witness at Appellant’s

non-jury trial. As noted by Appellant:

     Trooper Watkins proceeded to testify as a fact witness with
     respect to the same observations that he made and testified to at
     the February 23, 2018 Suppression Hearing, with a few additional
     details relevant to the instant appeal.

     First, Trooper Watkins testified that when Appellant was back at
     the police barracks he asked Appellant if he was a “big fish[,”] at
     which time Appellant apparently said that he was “just a little
     fish[,”] [N.T. Trial at 42]; however Trooper Watkins never offered
     any testimony or clarification as to what being a “little fish”
     actually means in the context of being a drug user[] versus a drug
     dealer.

     Regarding the $5,050.00 that was seized from Appellant’s vehicle,
     Trooper Watkins testified that Appellant stated that he got these
     monies by “being dishonest.” [Id.] Regarding the condition of
     the seized currency, Trooper Watkins testified that this money
     consisted of large, crisp bills that were similar to the bills that
     Trooper Watkins keeps in his gun safe at home. [Id. at 49.]

     With respect to the packaging of the marijuana at issue, Trooper
     Watkins testified that there were five (5) plastic bags of “bud”
     marijuana. [Id. at 50.] Trooper Watkins testified that each of the
     five (5) bags contained a different amount of marijuana; however
     he was not aware of how much marijuana was in each bag. [Id.]
     In addition to the “bud” marijuana, there were four (4)
     commercially packaged THC cartridges. [Id. at 52-53.]

     Similarly, Trooper Watkins admitted that he did not know if the
     marijuana contained in each of the five (5) bags w[as] the same
     or different types/strands of marijuana, and also acknowledged
     that marijuana users like to consume different types/strands of
     marijuana. [Id. at 51.]




                                    -3-
J-A23029-19


       Trooper Watkins testified that he charged Appellant with [PWID]
       the marijuana at issue “because of the weight of the marijuana
       [and] how it was packaged.” [Id. at 39.] However, Appellant did
       not possess any items typically associated with drug distribution,
       including scales, packaging material (other than the ones already
       containing the marijuana), or “owe sheets[.”] [Id. at 53.]

       Trooper Watkins also seized Appellant’s cell phone; however he
       never conducted a search of its contents. [Id. at 54.] In contrast,
       Trooper Watkins seized a marijuana grinder from Appellant’s
       vehicle, which, according to Trooper Watkins, is an item of
       paraphernalia consistent with personal use. [Id. at 52.]

Appellant’s Brief at 15-17.3 Additionally, at trial, Appellant stipulated to the

lab results showing “the items that were tested contained 5.177 grams of

marijuana and 7.53 grams of THC….” N.T. Trial at 6.

       The trial court convicted Appellant of PWID, possession of a controlled

substance, 35 P.S. § 780-113(a)(16), possession of a small amount of

marijuana, 35 P.S. § 780-113(a)(31)(i), possession of drug paraphernalia, 35

P.S. § 780-113(a)(32), and illegally-tinted windows, 75 Pa.C.S. § 4524(e)(1).

On November 30, 2018, the court sentenced Appellant to 6-23 months’

incarceration and a consecutive term of 3 years’ probation for PWID. The

court imposed only fines and costs, or no further penalty, at each of the

remaining offenses.




____________________________________________


3 After reviewing the trial transcript, we conclude that Appellant’s summary of
the facts accurately reflects Trooper Watkins’ testimony at trial. As noted, the
trial court did not provide a summary of the facts adduced at trial.
Additionally, the Commonwealth failed to file a brief in this case.




                                           -4-
J-A23029-19



       Appellant timely filed a post-sentence motion, which the court denied

on December 11, 2018. Appellant subsequently filed a timely notice of appeal,

and a timely, court-ordered Pa.R.A.P. 1925(b) statement.         The trial court

issued a Rule 1925(a) statement on April 9, 2019, indicating that it was would

rely on its August 14, 2018 suppression opinion.4

       Appellant now presents the following questions for our review:

       I.     Whether the [t]rial [c]ourt erred in denying Appellant’s
              motion to declare the search and seizure at issue illegal
              under Article 1, Section 8 of the Pennsylvania Constitution
              as well as the Fourth and the Fourteenth Amendments of
              the United States Constitution and suppress all evidence and
              fruit of the poisonous tree that was derived therefrom since
              the arresting officer did not possess the requisite probable
              cause to conduct a warrantless search of Appellant’s
              vehicle?

       II.    Whether the [t]rial [c]ourt erred in denying Appellant’s
              [m]otion [f]or [judgment] of [a]cquittal with respect to
              Count #1 ([PWID] [m]arijuana) due to insufficient evidence
              being presented at [t]rial to enable the fact-finder to
              properly find that Appellant possessed the marijuana at
              issue with the specific intent to distribute the same, and
              where Appellant was found to have possessed the same unit
              of marijuana for personal use only beyond a reasonable
              doubt?

Appellant’s Brief at 7.

       We will address Appellant’s claims in reverse order for ease of

disposition. Thus, we first consider Appellant’s sufficiency claim.


____________________________________________


4 The trial court failed to address any other issues in its Rule 1925(a) opinion,
other than to state that in “regards to [Appellant]’s other issues, we
respectfully refer the appellate court to the relevant portions of the trial and
sentencing transcripts.” Trial Court Opinion, 4/9/19, at 1.

                                           -5-
J-A23029-19


              A claim challenging the sufficiency of the evidence is a
       question of law. Evidence will be deemed sufficient to support the
       verdict when it establishes each material element of the crime
       charged and the commission thereof by the accused, beyond a
       reasonable doubt. Where the evidence offered to support the
       verdict is in contradiction to the physical facts, in contravention to
       human experience and the laws of nature, then the evidence is
       insufficient as a matter of law. When reviewing a sufficiency
       claim[,] the court is required to view the evidence in the light most
       favorable to the verdict winner giving the prosecution the benefit
       of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

       Appellant asserts that the evidence is insufficient to support his

conviction for PWID-marijuana, because it is ostensibly inconsistent with his

conviction for possessing a small amount of marijuana for personal use. 5 He

contends that

       under the very specific circumstances of this case where the
       Commonwealth never identified what amount of the controlled
       substance at issue was intended for delivery and what amount
       was intended for personal use, it would be factually and legally

____________________________________________


5 To the extent Appellant argues that the individual facts presented at trial do
not support a PWID conviction, we deem those matters waived. In Appellant’s
Rule 1925(b) statement, he raised two sufficiency claims regarding the alleged
incompatibility of a PWID-marijuana conviction and a possession-of-
marijuana-for-personal-use conviction. In neither instance did he raise the
numerous individual arguments he now makes in his brief regarding the
nature of the packaging, the total amount of marijuana seized, his possession
of use paraphernalia, and the absence of distribution paraphernalia. See
Appellant’s Rule 1925(b) Statement, 1/28/19, at 1-2 ¶¶ I, III. Appellant did
raise such concerns in the context of a weight-of-the-evidence claim. See id.
at 2 ¶ III. However, Appellant has abandoned his weight claim on appeal, and
cannot now incorporate such matters under the rubric of a sufficiency claim.
“Any issues not raised in a 1925(b) statement will be deemed waived.”
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).

                                           -6-
J-A23029-19


       impossible for Appellant to simultaneously possess this single unit
       of marijuana with these two mutually exclusive intentions.

Appellant’s Brief at 32. Appellant further believes that “the Commonwealth

actually proved, beyond a reasonable doubt, that Appellant possessed the

marijuana at issue for personal use only, which effectively rendered a

finding that Appellant possessed the same marijuana with the specific intent

to deliver the same insufficient.” Id. at 37 (internal citation omitted, emphasis

in original).

       Appellant is not entitled to relief.      First, as a purely logical matter—

assuming for a moment that the case law does not clearly weigh against

Appellant’s     argument     as   discussed    below—it   is   not   clear   why   the

Commonwealth had not disproven the possession-of-marijuana-for-personal-

use offense by proving, beyond a reasonable doubt, the offense of PWID-

marijuana, rather than vice versa, following Appellant’s strained reasoning. It

appears merely self-serving for Appellant to challenge his PWID conviction

rather than his possession-for-personal-use conviction in that regard.

Moreover, Appellant assumes, incorrectly, that PWID and possession for

personal use have wholly incompatible mens rea elements. Appellant could

have intended the aggregate amount of marijuana in part for personal use

and in part for distribution.6 Accordingly, we ascertain no logical discrepancy

between PWID and possession for personal use, especially where, as here, it

____________________________________________


6 In this regard, the only mens rea that is truly inconsistent with PWID is not
possession intended for personal use, but the absence of an intent to possess
the substance for any purpose whatsoever.

                                           -7-
J-A23029-19



is undisputed that Appellant’s marijuana was packaged in five separate

baggies, where he also had four separate THC vaping devices, and where he

had all these items in close proximity to an extremely large amount of cash.

      Second, it is now axiomatic in this Commonwealth that inconsistent

verdicts do not render the evidence insufficient with regard to any specific

conviction.   “[U]nder longstanding federal and state law, [inconsistent

verdicts] are allowed to stand so long as the evidence is sufficient to support

the conviction.” Commonwealth v. Miller, 35 A.3d 1206, 1208 (Pa. 2012).

Here, Appellant effectively concedes that the evidence was sufficient to

support his possession-for-personal-use offense. With regard to the PWID-

marijuana offense:

      In determining whether there is sufficient evidence to support a
      PWID conviction, all facts and circumstances surrounding the
      possession are relevant, and the Commonwealth may establish
      the essential elements of the crime wholly by circumstantial
      evidence. Factors to consider in determining whether the drugs
      were possessed with the intent to deliver include the particular
      method of packaging, the form of the drug, and the behavior of
      the defendant.

Commonwealth v. Bricker, 882 A.2d 1008, 1015 (Pa. Super. 2005) (citation

omitted).

      Here, in determining that the evidence was sufficient to support PWID,

the trial court stated: “My review of the evidence based on how they were

packaged, where they were kept, and the money that was kept along with

him, those all indicate to me[,] … beyond a reasonable doubt[,] that he

possessed these with the intent of delivering them or selling them.” N.T. Trial


                                     -8-
J-A23029-19



at 76. We ascertain no legal error in the trial court’s reasoning. Although we

acknowledge that the total amount of controlled substances seized and

Appellant’s possession of paraphernalia were factors consistent with personal

use, the separate packaging of the drugs and the large sum of cash were

factors consistent with an intent to distribute.    Thus, there was evidence

supporting both an intent to distribute and an intent to possess the marijuana

for personal use, and it was exclusively for the factfinder to address the weight

of the evidence. Our standard of review dictates that we “view the evidence

in the light most favorable to the verdict winner giving the prosecution the

benefit of all reasonable inferences….” Widmer, 744 A.2d at 751.          It was

reasonable to infer from the circumstances of this case that Appellant

possessed the seized contraband with the intent to sell or distribute it.

Accordingly, Appellant’s sufficiency claim fails.

      Appellant also contends that the trial court abused its discretion when it

denied his motion to suppress.

      Our standard of review in addressing a challenge to the denial of
      a suppression motion is limited to determining whether the
      suppression court’s factual findings are supported by the record
      and whether the legal conclusions drawn from those facts are
      correct.   Because the Commonwealth prevailed before the
      suppression court, we may consider only the evidence of the
      Commonwealth and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record as
      a whole. Where the suppression court’s factual findings are
      supported by the record, we are bound by these findings and may
      reverse only if the court’s legal conclusions are erroneous. Where
      … the appeal of the determination of the suppression court turns
      on allegations of legal error, the suppression court’s legal
      conclusions are not binding on an appellate court, whose duty it


                                      -9-
J-A23029-19


      is to determine if the suppression court properly applied the law
      to the facts. Thus, the conclusions of law of the courts below are
      subject to our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783–84 (Pa. Super. 2012)

(cleaned up).

      As a general rule, for a search to be reasonable under the Fourth
      Amendment or Article I, Section 8 [of the Pennsylvania
      Constitution,] police must obtain a warrant, supported by
      probable cause and issued by an independent judicial officer, prior
      to conducting the search. This general rule is subject to only a
      few delineated exceptions, including the existence of exigent
      circumstances.

Commonwealth v. Gary, 91 A.3d 102, 107 (Pa. 2014).              In Gary, our

Supreme Court adopted “the federal automobile exception to the warrant

requirement, which allows police officers to search a motor vehicle when there

is probable cause to do so and does not require any exigency beyond the

inherent mobility of a motor vehicle.” Id. at 104. Furthermore,

      [t]he Supreme Court of the United States has held that an odor
      may be sufficient to establish probable cause for the issuance of
      a search warrant. United States v. Ventresca, 380 U.S. 102 …
      (1965); Johnson v. United States, 333 U.S. 10 … (1948), as
      cited in Commonwealth v. Stoner, … 344 A.2d 633 ([Pa. Super.]
      1975). In … Stoner, … this [C]ourt stated that the rationale used
      to establish probable cause in those Supreme Court cases applies
      equally well when determining the validity of a search of a
      movable vehicle. In Stoner, we analogized a “plain smell”
      concept with that of plain view and held that where an officer is
      justified in being where he is, his detection of the odor of
      marijuana is sufficient to establish probable cause.

Commonwealth v. Stainbrook, 471 A.2d 1223, 1225 (Pa. Super. 1984).

      Appellant essentially argues that the trial court determined that Trooper

Watkins possessed probable cause to search Appellant’s vehicle based solely



                                    - 10 -
J-A23029-19



on his smelling a faint or subtle odor of marijuana.   Appellant’s Brief at 20.

He asserts that “the supposed detection of a ‘very faint’ and ‘subtle’ odor of

marijuana may give an officer reasonable suspicion to investigate further,

[but] it does not support a finding of probable cause necessary for a

warrantless search of an automobile.” Id. Appellant further argues:

     [T]he Commonwealth will suggest that the detection of any odor
     of marijuana, no matter how slight, in and of itself is sufficient to
     establish probable cause.       However, neither Stoner nor its
     progeny’s holdings establish such a bright-line rule. Rather, the
     Stoner Court noted that “it would be a dereliction of a duty for a
     police officer to ignore the obvious aroma of an illegal drug which
     he/she was trained to identify.” Stoner, … 344 A.2d [at] 635 …
     (emphasis added).

     However, in order for the odor of marijuana to be “obvious[,”] it
     must be “easily discovered, seen, or understood.” MERRIAM-
     WEBSTER, http://www.merriam-webster.com/dictionary/obvious
     (last visited June 18, 2019).     It goes without saying that
     something that is “subtle” and “faint” cannot be said to be
     “obvious[.”]

     Although the Pennsylvania Supreme Court has never addressed
     the specific issue sub judice,5 the case law is clear and
     Pennsylvania Courts have consistently held that the officer must
     detect a strong and obvious odor of marijuana; and must be able
     to point to other observations, criminal indicators, or a
     combination of both such that a probable cause determination
     must be viewed under the totality of the circumstances.

        5Appellant recognizes that the Pennsylvania Supreme Court
        recently decided In Interest of A.A., 195 A.3d 896 (Pa.
        2018), where the Court announced in dicta that “the odor of
        marijuana alone, particularly in a moving vehicle, is
        sufficient to support at least reasonable suspicion, if not the
        more stringent requirement of probable cause.” Id. at 904.
        However, these statements were not central to the Court’s
        holding, and the issue of whether or not the odor of
        marijuana alone is sufficient to support a finding of probable
        cause was not before the Court. Rather, the question before

                                    - 11 -
J-A23029-19


         the Court in In re A.A. was “whether information obtained
         by a police officer during a lawful initial traffic stop may be
         used to justify re-engagement with the driver after the
         police officer indicates the driver is free to go, such that
         consent to search given during that re-engagement is valid.
         Id. at 898.

Appellant’s Brief at 24-25.

      Thus, Appellant contends that only an obvious smell of marijuana will

independently support a finding of probable cause. He insists that a subtle

or faint smell of marijuana only supports a finding of reasonable suspicion.

However, this is not a case where the smell of marijuana was the sole basis

for the finding of probable cause. As articulated by the trial court:

      Trooper Watkins testified that [Appellant] appeared to be more
      nervous than what he believe[d] was usual for a normal traffic
      stop. More importantly, the Trooper testified that he smelled a
      strong odor of air freshener overtop a faint odor of marijuana
      coming from inside the vehicle. If this was the extent of the
      record, we may agree with [Appellant] that there is a lack of
      probable cause. However, in addition to the above information,
      [Appellant] admitted to smoking marijuana the day prior to the
      stop. Therefore, upon [Appellant]’s admission, the Trooper’s
      sensory observations of the marijuana and masking air fresheners
      were affirmed, and [Appellant]’s nervous behaviors increased in
      relevance to the likelihood of criminal behavior.5 Viewing all of
      the circumstances known to Trooper Watkins, we find that he
      possessed an articulable substantial basis to conclude that a
      search of [Appellant]’s vehicle would uncover evidence of criminal
      wrongdoing.
         5 We note that [Appellant] argues that his admission to
         smoking marijuana the day prior [to the] stop is not
         evidence in favor of the search, but rather evidence that the
         smell of marijuana was old and unrelated to the actual
         presence of a controlled substance in the vehicle. We
         disagree with [Appellant]’s premise that, in conducting his
         investigation, the Trooper must accept every statement
         made by [Appellant] as literal truth. Here, [Appellant]
         admitted to smoking marijuana after initially denying the

                                     - 12 -
J-A23029-19


         existence of the smell to the Trooper. We see no reason
         why the Trooper should then be constrained to
         unquestionably accept the timeline given by [Appellant].
         Moreover, based upon the record, there was no indication
         of where [Appellant] smoked the marijuana. Indeed, if
         [Appellant] smoked marijuana inside the vehicle, there is
         certainly a heightened possibility of the continued presence
         of contraband.

Suppression Opinion at 6-7.

      Appellant premises his claim on the false factual assertion that Trooper

Watkins searched his vehicle based solely on the faint or subtle smell of

marijuana.    As that was clearly not the only basis for the trial court’s

determination that Trooper Watkins possessed probable cause, Appellant’s

claim is meritless.

      Moreover, probable cause exists “where the facts and circumstances

within the officers’ knowledge are sufficient to warrant a person of reasonable

caution in the belief that an offense has been or is being committed.”

Commonwealth v. Green, 168 A.3d 180, 186–87 (Pa. Super. 2017) (quoting

Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999)). Here, the trial court

determined that Trooper Watkins possessed probable cause to search

Appellant’s vehicle based on 1) the subtle smell of marijuana, detectable from

both sides of Appellant’s car, in conjunction with 2) the presence of a masking

agent, 3) Appellant’s abnormally nervous behavior during the stop, and 4)

Appellant’s admission that he had smoked marijuana, after initially denying

any knowledge of the smell.      We ascertain no abuse of discretion in that

determination.    It was reasonable for Trooper Watkins to believe that



                                    - 13 -
J-A23029-19



Appellant   was   committing   a   marijuana-related   crime   based   on   his

observations.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2019




                                    - 14 -
