J-S70017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL COLLINS

                            Appellant                 No. 601 EDA 2014


           Appeal from the Judgment of Sentence February 10, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0002420-2013


BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                         FILED DECEMBER 19, 2014

        Appellant, Michael Collins, appeals1 from the February 10, 2014

aggregate judgment of sentence of three to six years’ imprisonment, plus

five years’ probation, imposed after he was found guilty of one count each of

possession with intent to deliver (PWID), intentional possession of a

controlled substance, possession of drug paraphernalia, and three counts of

criminal conspiracy.2 After careful review, we affirm.


____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
  We note that Appellant’s co-defendant, Jonathan DeWilliams, also appeals
from his judgment of sentence in this matter. DeWilliams’ appeal is pending
before this Court at 705 EDA 2014.
2
  35 P.S. §§ 780-113(a)(30), 780-113(a)(16), 780-113(a)(32), and 18
Pa.C.S.A. § 903(c), respectively.
J-S70017-14


        The trial court summarized the relevant factual and procedural

background of this case as follows.

                    [Appellant] was arrested on February 23,
              201[3] while driving a vehicle bearing stolen
              registration  plates.      [Appellant]   had    three
              passengers. All four occupants were removed from
              the vehicle[,] and three packets of heroin were
              removed from the area between the driver’s seat
              and the center console. Several “bundles” of heroin
              and seven loose baggies of heroin were also
              discovered in the “map pocket” on the back of the
              front passenger seat. Suboxone and a cut straw
              were removed from [Appellant]’s person. All of the
              occupants of the car were arrested and transported
              to police headquarters. In a holding cell, Charles
              Williams, the front seat passenger, attempted to
              flush eleven packets of heroin down the toilet.

Trial Court Opinion, 4/30/14, at 1.

        On May 8, 2013, the Commonwealth filed an information, charging

Appellant with the above-mentioned offenses, as well as one count each of

driving an unregistered vehicle, operating a motor vehicle without the

required financial responsibility, and operating a motor vehicle without a

valid inspection.3 On December 17, 2013, Appellant proceeded to a two-day

jury trial, at the conclusion of which the jury found Appellant guilty of one

count each of PWID, intentional possession of a controlled substance,

possession of drug paraphernalia, and three counts of criminal conspiracy.

The motor vehicle code offenses were all withdrawn. On February 10, 2014,


____________________________________________
3
    75 Pa.C.S.A. §§ 1301(a), 1786(f), and 4703(a), respectively.



                                           -2-
J-S70017-14


the trial court imposed an aggregate sentence of three to six years’

imprisonment, plus five years’ probation.4       Appellant did not file a post-

sentence motion. On February 12, 2014, Appellant filed a pro se notice of

appeal.5

       On appeal, Appellant raises the following four issues for our review.

              (I).   Is [Appellant]’s conviction for [PWID] against
                     the weight and sufficiency of the evidence?

              (II.) For purposes of sentencing [Appellant], was his
                    prior   record   score   (“PRS”)    incorrectly
                    calculated?


____________________________________________
4
  Specifically, the trial court sentenced Appellant to three to six years’
imprisonment plus three years’ probation for PWID. The trial court further
sentenced Appellant to 30 to 60 days’ imprisonment for possession of drug
paraphernalia, 60 to 120 days’ imprisonment for one count of criminal
conspiracy, and 21 to 42 months’ imprisonment plus two years’ probation for
the second count of criminal conspiracy. All terms of imprisonment were to
run concurrently to each other; however, all probationary terms were to be
consecutive to each other, as well as consecutive to the terms of
imprisonment.
5
  We have held that a criminal defendant’s pro se actions have no legal
effect while he or she remains represented by counsel. Commonwealth v.
Hall, 476 A.2d 7, 9-10 (Pa. Super. 1984); see also Commonwealth v.
Nischan, 928 A.2d 349, 355 (Pa. Super. 2007) (noting that a defendant’s
pro se filings while represented by counsel are legal nullities), appeal denied,
936 A.2d 40 (Pa. 2007). However, our Supreme Court has held that a pro
se notice of appeal filed by an appellant while represented by counsel shall
be considered merely premature if counsel and the trial court take
appropriate actions to perfect the appeal. Commonwealth v. Cooper, 27
A.3d 994, 1008 (Pa. 2011). Instantly, in our view, counsel’s filing of a Rule
1925(b) statement and an advocate’s brief on Appellant’s behalf effectively
perfected this appeal. Accordingly, we have jurisdiction to address the
merits of the appeal. We note the trial court filed its Rule 1925(a) opinion
on April 30, 2014.



                                           -3-
J-S70017-14


             (III). Was [Appellant] denied RRRI at the time of
                    sentencing despite eligibility therefor?

             (IV). Was [Appellant] prejudiced by the [trial c]ourt
                   where it conducted the voir dire with
                   [Appellant] clothed in a prison jumpsuit (while
                   all co-defendant’s [sic] were dressed [in] street
                   clothes) and where the trial [court] knew
                   defense counsel brought said clothing yet
                   declined to expend de minimis time in order to
                   permit [Appellant] to change his clothing[?]

Appellant’s Brief at 12.

      Although Appellant’s statement of questions presented asserts his first

issue as one of sufficiency and weight of the evidence, we address them

separately. We address Appellant’s sufficiency claim first, as the remedy for

a sufficiency of the evidence claim is complete discharge rather than a new

trial. See generally Commonwealth v. Simpson, 832 A.2d 496, 500 (Pa.

Super. 2003) (citation omitted).             Our standard of review regarding

challenges to the sufficiency of the Commonwealth’s case is well settled. “In

reviewing the sufficiency of the evidence, we consider whether the evidence

presented at trial, and all reasonable inferences drawn therefrom, viewed in

a light most favorable to the Commonwealth as the verdict winner, support

the jury’s verdict beyond a reasonable doubt.”                Commonwealth v.

Patterson,    91   A.3d    55,   66   (Pa.    2014)   (citation   omitted).   “The

Commonwealth can meet its burden by wholly circumstantial evidence and

any doubt about the defendant’s guilt is to be resolved by the fact finder

unless the evidence is so weak and inconclusive that, as a matter of law, no


                                       -4-
J-S70017-14


probability of fact can be drawn from the combined circumstances.”

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc)

(internal quotation marks and citation omitted), appeal denied, 95 A.3d 277

(Pa. 2014). As an appellate court, we must review “the entire record … and

all evidence actually received[.]” Id. (internal quotation marks and citation

omitted). “[T]he 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. Kearney, 92 A.3d 51, 64 (Pa. Super.

2014) (citation omitted), appeal denied, 101 A.3d 102 (Pa. 2014). “Because

evidentiary sufficiency is a question of law, our standard of review is de novo

and our scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d

119, 126    (Pa. 2013) (citation omitted),      cert. denied, Diamond v.

Pennsylvania, 135 S. Ct. 145 (2014).

      Appellant challenges his conviction for PWID, the statute for which

provides, in relevant part, as follows.

            § 780-113. Prohibited acts; penalties

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

                                          …

            (30) Except as authorized by this act, the
            manufacture, delivery, or possession with intent to
            manufacture or deliver, a controlled substance by a
            person not registered under this act, or a practitioner
            not registered or licensed by the appropriate State
            board, or knowingly creating, delivering or


                                      -5-
J-S70017-14


            possessing with intent to deliver, a counterfeit
            controlled substance.

                                      …

35 P.S. § 780-113(a)(30).

     In his first issue on appeal, Appellant avers that the Commonwealth

failed to produce sufficient evidence to show, at a minimum, that Appellant

was in constructive possession of the controlled substance in question, and

that he possessed the intent to deliver the same. Appellant’s Brief at 17, 19.

            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. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013) (citation

omitted), appeal denied, 78 A.3d 1090 (Pa. 2013).

     In the case sub judice, the Commonwealth presented the following

evidence.     Officer   Robert   McCaughan   of   the   Clifton   Heights   Police

Department testified that he pulled over Appellant and his co-defendants.

N.T., 12/17/13, at 102-103.      Appellant was driving the vehicle, and was

found with a cell phone on his person. Id. at 103, 111. The police found,

within Appellant’s immediate reach, three packets of heroin, labeled


                                     -6-
J-S70017-14


“Obama.” Id. at 106, 107-108. In the car, the police found a total of 182

packets of heroin. Id. at 113. All but four of these packets were labeled

“Obama,” the other four were labeled “New York.” Id. The Commonwealth

also presented Sergeant Michael Boudwin, who was qualified as an expert in

the field of drugs and drug paraphernalia. Id. at 167. Sergeant Boudwin

testified that the street value of the heroin found was approximately

$1,800.00.    Id. at 171, 177.    Sergeant Boudwin also testified that the

significance of labeling the packets with the “Obama” stamp was because

“[d]ealers stamp their product [as] … [i]t shows purity [and] … [i]t shows

consistency with a certain dealer, a certain type of narcotic.”   Id. at 107-

108.

       Based on the above, we conclude the Commonwealth presented

sufficient evidence to prove, at a minimum, constructive possession, and

that Appellant had the required intent to deliver. As noted above, Appellant

was found in a confined space with $1,800.00 worth of heroin that was

individually packaged, some of which was within Appellant’s immediate

reach. The jury was permitted to believe the officers’ testimony, and infer

that Appellant was a part of a heroin distribution business, as well as that

Appellant had the power to exercise dominion and control over the heroin

found in the vehicle.    See, e.g., Kearney, supra; Commonwealth v.

Baker, 72 A.3d 652, 659 (Pa. Super. 2013) (concluding the Commonwealth

presented sufficient evidence of intent to distribute where “15 vials of crack


                                    -7-
J-S70017-14


cocaine and five vials of heroin found on [Baker’s] person were located in a

black change purse, from which he had just provided the drugs he sold to

the undercover state trooper during the last controlled buy[, and where]

police also found in the [same] black change purse over $2,300.00 in cash,

$620.00 of which was the pre-marked buy money[]”) (internal citation

omitted), appeal denied, 86 A.3d 231 (Pa. 2014); Hopkins, supra. Based

on these considerations, we conclude the Commonwealth produced sufficient

evidence of constructive possession, as well as an intent to deliver.              See

Diamond, supra; Baker, supra; Hopkins, supra. As a result, Appellant

is not entitled to relief.

      Within his first issue, Appellant indicates he is also raising a claim that

the jury’s verdict was against the weight of the evidence. See Appellant’s

Brief at 16 (stating his first argument heading as “[Appellant]’s conviction

for [PWID] is against both the sufficiency and weight of the evidence[]”)

(emphasis added).       However, Appellant’s argument, as developed in his

brief, only addresses his sufficiency claim. See id. at 16-20. It is axiomatic

that sufficiency and weight of the evidence are separate and distinct claims

because an argument that the jury’s verdict was against the weight of the

evidence    concedes     that   the   evidence   was   sufficient   to   sustain   the

convictions.   Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013),

cert. denied, Lyons v. Pennsylvania, 134 S. Ct. 1792 (2014).




                                        -8-
J-S70017-14


       This Court will not consider issues where Appellant fails to cite to any

legal authority or otherwise develop the issue.          Commonwealth v.

McLaurin, 45 A.3d 1131, 1139 (Pa. Super. 2012), appeal denied, 65 A.3d

413 (Pa. 2013). Appellant was required to develop a separate argument in

his brief explaining why the jury’s verdict was against the weight of the

evidence.     See id.; Pa.R.A.P. 2119(a) (stating, “[t]he argument shall be

divided into as many parts as there are questions to be argued; and shall

have at the head of each part--in distinctive type or in type distinctively

displayed--the particular point treated therein, followed by such discussion

and citation of authorities as are deemed pertinent[]”). As Appellant does

not attempt to develop his weight claim in any meaningful way, we deem

this argument waived on appeal.6 See McLaurin, supra.

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

abused its discretion in sentencing him based on an improperly calculated

prior record score. Appellant’s Brief at 20. However, Appellant’s brief also




____________________________________________
6
  Even if Appellant had developed his weight argument, we would still deem
the issue waived. It is axiomatic that to preserve a weight claim, a
defendant must either raise it during sentencing on the record, or in a post
sentence motion.        See generally Pa.R.Crim.P. 607(A); accord
Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014). As
noted above, Appellant did not file a post-sentence motion in this case.
Furthermore, we have reviewed the sentencing transcript, and at no point
did Appellant raise any claim that the verdict was against the weight of the
evidence.



                                           -9-
J-S70017-14


“concedes that he has waived [his] right to challenge the discretionary

aspects of the sentence imposed.” Id.

       It is firmly established that in order for this Court to entertain a

discretionary aspects of sentence issue on appeal, an appellant must, among

other requirements, preserve said issue below, by either raising the issue in

a post-sentence motion, or during sentencing. Commonwealth v. Colon, -

-- A.3d ---, 2014 WL 5408189, *7 (Pa. Super. 2014) (citation omitted). In

this case, Appellant did not file a post-sentence motion.       Additionally, we

have reviewed the sentencing transcript, and at no point did Appellant raise

any claim pertaining to the discretionary aspects of his sentence. Therefore,

we agree with the trial court that this issue is waived. See id.; Trial Court

Opinion, 4/30/14, at 8.

       In his third issue, Appellant avers that the trial court imposed an illegal

sentence when it deemed him ineligible for a Recidivism Risk Reduction

Incentive Act (RRRI) minimum sentence.7 Appellant’s Brief at 20. Among

its requirements, the RRRI statute states an eligible defendant is one who

“[d]oes not demonstrate a history of present or past violent behavior[.]” 61

Pa.C.S.A. § 4503. The trial court deemed Appellant ineligible because of his

prior conviction for robbery as a first-degree felony, which in the trial court’s
____________________________________________
7
 We note that a failure to impose an RRRI minimum sentence on an eligible
defendant implicates the legality of the sentence, which renders the issue
non-waivable. Commonwealth v. Tobin, 89 A.3d 663, 669-670 (Pa.
Super. 2014) (citations omitted).



                                          - 10 -
J-S70017-14


view “has been included in a class of offenses that have been designated

‘crimes of violence’ because it poses a risk of violence, or injury, to another

person.” Trial Court Opinion, 4/30/14, at 9 (citation omitted).

       In his brief, Appellant asks this Court to hold this case in abeyance

pending the outcome of Commonwealth v. Chester, 74 A.3d 116 (Pa.

2013), where our Supreme Court granted the defendant’s petition for

allowance of appeal to decide “[w]hether a prior conviction of a felony one

burglary, which is not included as a disqualifier in the definition of ‘eligible

offender’ may nevertheless amount to ‘a history of present or past violent

behavior’ such as to exclude a defendant from RRRI [Act] eligibility?” Id. at

117.     On September 24, 2014, our Supreme Court issued its opinion in

Chester, concluding that a prior conviction for burglary as a first-degree

felony    is   “violent   behavior”   for   the   purposes   of   Section   4503.

Commonwealth v. Chester, 101 A.3d 56, 65 (Pa. 2014).               We recognize

that Chester had three first-degree burglary convictions, and Appellant only

has one. See id. We further acknowledge that our Supreme Court declined

to consider whether one first-degree burglary conviction was a “history” of

violent behavior for the purpose of determining RRRI eligibility. Appellant’s

only argument is for this Court to await our Supreme Court’s decision in

Chester. Appellant’s Brief at 20. As Chester has been decided, Appellant

is not entitled to relief.




                                       - 11 -
J-S70017-14


     In his fourth issue, Appellant argues that the trial court erred when it

permitted Appellant to appear for voir dire in prisoner’s clothing, while

others were dressed in formal suits and ties. Appellant’s Brief at 20. The

Commonwealth counters that Appellant waived this claim by not objecting

on the record during voir dire. Commonwealth’s Brief at 15.

     It is axiomatic that “[i]ssues not raised in the lower court are waived

and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Our

Supreme Court has repeatedly emphasized the importance of issue

preservation.

                   Issue preservation is foundational to proper
           appellate review. Our rules of appellate procedure
           mandate that “[i]ssues not raised in the lower court
           are waived and cannot be raised for the first time on
           appeal.” Pa.R.A.P. 302(a). By requiring that an issue
           be considered waived if raised for the first time on
           appeal, our courts ensure that the trial court that
           initially hears a dispute has had an opportunity to
           consider the issue. This jurisprudential mandate is
           also grounded upon the principle that a trial court,
           like an administrative agency, must be given the
           opportunity to correct its errors as early as possible.
           Related thereto, we have explained in detail the
           importance of this preservation requirement as it
           advances the orderly and efficient use of our judicial
           resources. Finally, concepts of fairness and expense
           to the parties are implicated as well.

In re F.C. III, 2 A.3d 1201, 1211-1212 (Pa. 2010) (some internal citations

omitted); accord Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super.

2013) (citation omitted).




                                   - 12 -
J-S70017-14


       In the case sub judice, the Commonwealth avers that Appellant’s issue

on appeal is waived as “neither [Appellant] nor his attorney addressed the

[trial] court regarding [Appellant]’s clothing.” Commonwealth’s Brief at 16.

The trial court concluded that Appellant had waived this issue on this basis

as well.    Trial Court Opinion, 4/30/14, at 9-10.          We have reviewed the

transcript of voir dire, and we agree with both the Commonwealth and the

trial court that the record is devoid of any reference to Appellant’s clothing

during voir dire. Furthermore, Appellant did not make any objection, nor did

Appellant move for a mistrial.         Appellant’s brief cites to an off-the-record

discussion on page 11 of the transcript. Appellant’s Brief at 21. While there

is an indication on page 11 that a discussion was held off the record, there is

no indication of the subject of said discussion. See N.T., 12/17/13, at 11.

In addition, as we have already noted, once back on the record, no objection

to   or    mention    of   Appellant’s    attire   was   made.    Appellant’s   Brief

acknowledges that “there [is] nothing in the record to suggest that

[Appellant] was forced to wear prison clothing[.]”          Appellant’s Brief at 21.

Based on these considerations, we conclude Appellant has waived his fourth

issue on appeal, for failure to object during the proceedings in the trial

court.8 See In re F.C. III; Miller, supra.


____________________________________________
8
  The Commonwealth has filed a motion to strike Appellant’s brief based on
his inclusion of this argument on appeal. However, based on our disposition
of this issue, the Commonwealth’s motion to strike is denied as moot.



                                          - 13 -
J-S70017-14


     Based on the foregoing, we conclude all of Appellant’s issues on appeal

are either waived or devoid of merit. Accordingly, the trial court’s February

10, 2014 judgment of sentence is affirmed.

     Judgment of sentence affirmed. Motion to strike denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2014




                                   - 14 -
