J-S43038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOHN NAJUNAS

                            Appellant                   No. 1669 MDA 2015


          Appeal from the Judgment of Sentence September 18, 2015
              in the Court of Common Pleas of Schuylkill County
             Criminal Division at No(s): CP-54-CR-0002153-2014


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                               FILED JUNE 20, 2016

        Appellant John Najunas appeals from the judgment of sentence

entered in the Lehigh County Court of Common Pleas following his jury trial

convictions for possession of a controlled substance with intent to deliver

(“PWID”),1 possession of a controlled substance,2 and possession of drug

paraphernalia.3 We affirm.

        In its opinion, the trial court sets forth the relevant facts underlying

this case derived from the trial evidence as follows:

        Daniel Hastings, a United States Postal Inspector, was alerted by
        postal management about concerns related to a foreign piece of
____________________________________________


1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(16).
3
    35 P.S. § 780-113(a)(32).
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     mail from China that did not have a valid return address. After
     obtaining a search warrant for the package, opening it and
     examining its contents, Hastings recognized that it contained
     illegal controlled substances, commonly known as bath salts.
     [Appellant] was identified on the package as the intended
     recipient with his home address set forth thereon as 324 South
     White Street, Shenandoah, Pa.

           Hastings set up a controlled delivery of the package to
     take place at [Appellant’s] home with assistance of the Schuylkill
     County Drug Task Force.         The delivery was unsuccessfully
     attempted on March 12, 2014 as no one answered the door of
     the residence at the time. Early the next day, March 13, 2014,
     [Appellant’s] son, John Najunas, Jr., appeared at the
     Shenandoah post office, where the package had been held since
     the prior day. The son requested the package. As he was
     leaving the post office after he had signed for the package and it
     was released to him, the son was apprehended. The package
     was removed from the son’s control and he was taken to the
     basement of the post office. A short time later, [Appellant]
     appeared at the post office’s front counter inquiring about the
     package and his son.

            Upon being alerted of [Appellant’s] presence, Hastings,
     together with Leo Securda, the latter having been a detective of
     the Schuylkill County District Attorney’s Office, exited the post
     office basement and went to the front counter where [Appellant]
     was given the package. As [Appellant] was turning to leave the
     post office, Securda emerged from behind the counter and the
     package was recovered from [Appellant]. Hastings and Securda
     accompanied [Appellant] to the basement of the post office
     where after receiving Miranda warnings, [Appellant] gave
     Hastings a written statement.

                                  *****

           The package was secured by Hastings with evidence tape
     and subsequently transported by him to the State Police Crime
     Laboratory where [a] forensic scientist, Nicole Blascovich,
     examined its contents. After doing so, Blascovich found that the
     contents included 57.93 grams, plus/minus 0.01 grams, of
     pyrrolidinovalerophenone (PVP), derived from 2-aminopropan-1-
     one, commonly known as bath salts, a Schedule I controlled
     substance.



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             According to Securda, who also had been a member of the
       Schuylkill County Drug Task Force and was qualified to testify as
       an expert witness in the sale and delivery of controlled
       substances, the excessive quantity of the drug involved in this
       case indicated that the purpose for possessing it was to
       repackage and sell it to other persons. Per Securda, bath salts
       are commonly sold in quantities of one-tenth of a gram. The
       amount recovered from [Appellant’s] possession, lethal if
       consumed over a limited period by one individual, constituted
       enough for up to 580 individual re-sale packages.

Trial Court Pa.R.A.P. 1925(a) opinion, filed December 9, 2015 (“1925(a)

Opinion”), pp. 2-5.

       On August 26, 2015, a jury found Appellant guilty of PWID, possession

of a controlled substance, and possession of drug paraphernalia.           On

September 18, 2015, the trial court imposed one to two years’ incarceration

on the PWID conviction and one year of probation on the paraphernalia

conviction.4 Appellant filed a notice of appeal on September 24, 2015, and a

Pa.R.A.P. 1925(b) statement of matters complained of on appeal on October

21, 2015. The trial court filed its 1925(a) Opinion on December 9, 2015.

       Appellant raises the following issues for our review:

       1. DID THE COURT ERR IN ADMITTING THE EVIDENCE AS TO
       THE TYPE AND QUANTITY OF CONTROLLED SUBSTANCES
       WITHOUT A CHAIN OF CUSTODY?

       2. DID THE TRIAL COURT UNDULY AND ACTIVELY TAKE PART IN
       THE PROSECUTION OF THE CASE?

       3. DID THE COURT ERR IN FAILING TO GRANT A MISTRIAL
       AFTER THE COMMONWEALTH OFFERED IMPROPER TESTIMONY
____________________________________________


4
 The possession of a controlled substance conviction merged for sentencing
purposes.



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      ON SEVERAL OCCASIONS FROM WHICH THE JURY COULD INFER
      [APPELLANT] WAS INVOLVED IN PRIOR CRIMINAL ACTIVITY?

      4. WAS THE EVIDENCE OFFERED BY THE COMMONWEALTH
      SUFFICIENT TO SUPPORT THE POSSESSORY DRUG CRIMES
      CHARGED?

Appellant’s Brief at 7.

      Appellant first claims that the trial court erred by admitting the

controlled substances into evidence because the Commonwealth failed to

prove a proper chain of custody for the package that contained the bath

salts. See Appellant’s Brief, pp. 9-10. This claim lacks merit.

      This Court has stated the well-established standard of review for

admission of evidence claims as follows:

      The admission or exclusion of evidence is within the sound
      discretion of the trial court, and in reviewing a challenge to the
      admissibility of evidence, we will only reverse a ruling by the
      trial court upon a showing that it abused its discretion or
      committed an error of law. Thus, [this Court’s] standard of
      review is very narrow.        To constitute reversible error, an
      evidentiary ruling must not only be erroneous, but also harmful
      or prejudicial to the complaining party.

Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.Super.2012).

      The trial court found that the Commonwealth had adequately proven

the chain of custody for the package containing the bath salts, and admitted

it into evidence. N.T. 8/26/2015, p. 99. As the trial court explained:

      Hastings had testified that following its recovery from
      [Appellant], the package was secured by Hastings and later
      transported by him to the laboratory for testing. The laboratory
      scientist testified that when received by the laboratory the
      evidence tape on the package showed no signs of tampering.
      Hastings also testified that the package he presented at trial
      showed no signs of tampering. Any question on chain of custody


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        implicated the weight to be given by the jury to the evidence
        and did not serve as a basis to preclude the opinion offered by
        the analyst.

1925(a) Opinion, p. 5 (internal citation omitted).

        The trial court’s determination regarding the admission of evidence

over Appellant’s chain of custody objection was not error.5

        Next, Appellant alleges the trial court took an unduly active part in the

trial by calling a recess at which the court asked the prosecutor his theory of

the case. See Appellant’s Brief, pp. 10-12. Indeed, the trial court discussed

the Commonwealth’s theory of the case and intended proof with the parties

outside the presence of the jury following the testimony of the postal

inspector. See N.T. 8/26/2015, pp. 58-77. However, defense counsel did

not lodge a contemporaneous objection to the trial court’s intervention, 6 and

____________________________________________


5
    At trial, counsel objected specifically as follows:

        [Defense Counsel]: Yes, there’s no information of where this
        [package] went from the day - - the 13th on the post office till
        the 18th when it arrived [at the police laboratory] in Harrisburg.

N.T. 8/26/2015, p. 99. To the extent Appellant now raises a chain of
custody complaint encompassing any date prior to March 13, 2014,
Appellant waived this issue by failing to raise a contemporaneous objection
at trial.  See Commonwealth v. Baumhammers, 960 A.2d 59, 84
(Pa.2008) (“the absence of a specific contemporaneous objections renders
the appellant’s claim waived.”).
6
  To the extent defense counsel lodged objections during this recess, counsel
objected only to the Commonwealth’s characterization of Appellant’s custody
status at the post office and the Commonwealth’s proposed expert
testimony, not the intervention of the trial court regarding its inquiry into
the Commonwealth’s theory of the case. See N.T. 8/26/2015, pp. 61-74.



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Appellant has accordingly waived this argument.               See Bauhammers,

supra.

      Further, Appellant’s claim lacks merit. During the initial portion of the

recess, the trial court questioned the prosecutor out of concern of wasting

the jury’s time if the Commonwealth had no evidence to support certain

elements of the crimes charged.       See N.T. 8/26/2015, pp. 58-77.              The

Commonwealth responded to the court’s satisfaction, and the trial court

allowed the Commonwealth to continue and prove its case.                   Id.    The

remainder   of   the   recess   involved    the    intended    testimony     of   the

Commonwealth’s proposed expert.         Id.       This discussion arose from an

objection brought by defense counsel that was effectively a motion in limine.

Id. at 62-63. Accordingly, this discussion was not the trial court prosecuting

the Commonwealth’s case, but rather responding to a defense request to

preclude a Commonwealth witness. Therefore, Appellant’s second claim fails

even if we reach the merits.

      In his third issue, Appellant claims the trial court erred in failing to

grant a mistrial for the Commonwealth’s reference to Appellant as a known

drug dealer. See Appellant’s Brief, pp. 12-13. This issue lacks merit.

      The standard of review regarding the denial of a motion for mistrial is

abuse of discretion:

      In criminal trials, the declaration of a mistrial serves to eliminate
      the negative effect wrought upon a defendant when prejudicial
      elements are injected into the case or otherwise discovered at
      trial. By nullifying the tainted process of the former trial and
      allowing a new trial to convene, declaration of a mistrial serves

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      not only the defendant’s interests but, equally important, the
      public’s interest in fair trials designed to end in just judgments.
      Accordingly, the trial court is vested with discretion to grant a
      mistrial whenever the alleged prejudicial event may reasonably
      be said to deprive the defendant of a fair and impartial trial. In
      making its determination, the court must discern whether
      misconduct or prejudicial error actually occurred, and if so, . . .
      assess the degree of any resulting prejudice. Our review of the
      resulting order is constrained to determining whether the court
      abused its discretion.       Judicial discretion requires action in
      conformity with [the] law on facts and circumstances before the
      trial court after hearing and consideration. Consequently, the
      court abuses its discretion if, in resolving the issue for decision,
      it misapplies the law or exercises its discretion in a manner
      lacking reason.

Commonwealth v. Culver, 51 A.3d 866, 871 (Pa.Super.2012).

      Defense counsel requested a mistrial twice.       First, counsel objected

following a comment by the postal inspector that the jury could have

construed as a statement that Appellant was a known user of bath salts.

See N.T. 8/26/2015, pp. 23-27. During the course of the sidebar following

the testimony, counsel requested a mistrial or that the trial court sustain the

objection and instruct the jury to disregard the testimony as a statement of

opinion. Id. The trial court sustained the objection and gave the requested

jury instruction.   Id.   Counsel did not further object.   Id.   Any negative

wrought upon Appellant by the postal inspector’s comment was adequately

eliminated by the trial court’s instruction.     The trial court did not err in

refusing to grant a mistrial in this instance.




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       Defense counsel also requested a mistrial during the testimony of

Commonwealth witness Police Chief Shawn Tray.7                     During Chief Tray’s

testimony, the following exchange occurred:

       Q. Okay. And at that time, did you have occasion to come in
       contact with a - - an incident involving John Najunas, Sr.?

       A. Yes.

       Q. Okay. And is that John Najunas, Sr., in the courtroom here
       today?

       A. Yes.

       Q. He’s been identified previously?

       A. Yes.

       Q. Now, could you tell us basically how this came about?

       A. As a member of the Drug Task Force, we interview a lot of
       people. During them interviews, Mr. Najunas was identified - -

       [Defense Counsel]: I object to these - - hearsay.

       [Prosecutor]: Withdraw the question.

       [Defense Counsel]: I would ask for a mistrial.

N.T. 8/26/2015, pp. 134-135.           At the ensuing sidebar discussion, the trial

court and counsel discussed the highly objectionable nature of the response.

Id. at 135-136. However, the trial court indicated that it would not grant a

mistrial   as    the   witness     had    not    completed   his    answer   and   the

Commonwealth withdrew the question.               Id. at 136.      When asked by the

court whether he wished the court to address the matter with the jury,
____________________________________________


7
  Chief Tray is a member of the Schuylkill County Drug Task Force and an
officer in the Shenandoah Police Department.



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defense counsel declined and lodged no further objection on the matter once

the trial resumed.    Id. at 136-137.      The trial court did not abuse its

discretion in ruling on this second defense motion for a mistrial.

      In his last issue, Appellant claims the Commonwealth failed to adduce

sufficient evidence to sustain his convictions. See Appellant’s Brief, pp. 13-

14. Specifically, Appellant claims the Commonwealth failed to prove he had

knowing possession of the controlled substance where the container was

always in the possession of the police and the Commonwealth’s evidence

regarding the quantity of the controlled substance was insufficient to

establish Appellant had the intent to deliver. Id. This claim lacks merit.

      When examining a challenge to the sufficiency of evidence, this Court’s

standard of review is as follows:

      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
      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.

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Commonwealth v. Smith, 97 A.3d 782, 790 (Pa.Super.2014).

      The Controlled Substance, Drug, Device and Cosmetic Act (“Drug Act”)

provides, in pertinent part, 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.

                                     ***

         (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 possessing with intent to deliver, a
         counterfeit controlled substance.

                                     ***

         (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).




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      Here, the trial court explained its rejection of Appellant’s sufficiency of

the evidence claims as follows:

      The evidence . . . indicates that [Appellant] went to the post
      office to retrieve the package addressed to him at his home
      address after he had sent his son to retrieve it and the latter had
      not exited the post office following his attempt to get the
      package. Upon [Appellant] receiving the package, which he
      acknowledged was for him, he was immediately prevented from
      leaving the post office with it.

            Although [Appellant] did not have possession of the
      package for a long period of time, he had received and held it,
      and later admitted in writing that he had ordered the drug and
      expected its delivery. Further, testimony from Securda about
      the extensive quantity of the drug in the package – which was
      exhibited to the jury to view – identifying the amount which
      would constitute one dose (described as the quantity contained
      in a Sweet ‘N Low packet), indicating that the quantity would
      have a street value of up to $11,600.00, and describing the
      potential lethality of the quantity to an individual, provided the
      jury sufficient evidence upon which to base a determination that
      [Appellant] intended to possess the drug not simply for his own
      use but for delivery to one or more other people.

1925(a) Opinion, p. 8 (citation omitted).

      Viewed in the light most favorable to the Commonwealth as verdict

winner, the trial court properly concluded that the evidence was sufficient to

convict Appellant of PWID, possession of a controlled substance, and

possession of drug paraphernalia.

      Judgment of sentence affirmed.




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J-S43038-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2016




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