J-S76039-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANDREW MOSLEY,

                            Appellant                No. 1268 WDA 2014


            Appeal from the Judgment of Sentence of July 29, 2014
               In the Court of Common Pleas of Fayette County
             Criminal Division at No(s): CP-26-CR-0000221-2014


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.

MEMORANDUM BY OLSON, J.:                         FILED DECEMBER 12, 2014

       Appellant, Andrew Mosley, appeals from the judgment of sentence

entered on July 29, 2014, following his jury trial convictions of two counts

each of possession of a controlled substance with intent to deliver (PWID)

and possession of a controlled substance by a person not registered, and

one count of possession of drug paraphernalia.1 Upon review, we affirm.

       We briefly summarize the facts and procedural history of this case as

follows. On November 7, 2013, the police received a tip from a confidential

informant that Appellant was transporting narcotics through Masontown,

Pennsylvania. Police instituted a traffic stop of an automobile driven by the

confidential informant.      Appellant was a passenger in that vehicle.   Upon
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1
    35 P.S. §§ 780-113(a)(30), 780-113(a)(16), and 780-113(a)(32),
respectively.
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approaching the vehicle, the police smelled burnt marijuana.       As a result,

the police obtained the confidential informant’s permission to search the

vehicle with the assistance of a canine unit.       When Appellant exited the

vehicle, he dropped a small, florescent green bag into the grass.           The

arresting officer suspected that the bag contained the narcotics.       Upon a

search of the vehicle by the canine unit, police recovered empty plastic bags

(similar to the one Appellant dropped on the ground) under the passenger

side seat and a Coca-Cola can which contained 28 bags of suspected

narcotics on the floor behind the passenger seat.2 When confronted with the

fact that the bag of drugs recovered from the grass matched several of the

bags of drugs found in the Coca-Cola can, Appellant asked police, “Is there

anything I can do to get out of this?” In a search incident to arrest, police

recovered a glass pipe with marijuana residue in it from Appellant’s person.

       Following a two-day trial in July 2014, a jury convicted Appellant of the

aforementioned charges.           On July 29, 2014, the trial court sentenced




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2
   There were four different colored bags found in the Coca-Cola can. Four
of the bags, however, were florescent green, just like the bag police found
on the ground when Appellant exited the vehicle. All but one of the bags
later tested positive for heroin or cocaine. The last bag contained a
substance commonly used as a cutting agent to dilute narcotics and increase
sale profits.




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Appellant to three to nine years of imprisonment.          This timely appeal

followed.3

       Appellant presents the following issue for our review:

         Was the evidence insufficient to find [] Appellant guilty
         beyond a reasonable doubt of the criminal charges[?]

Appellant’s Brief at 8.

       Initially, we note that the trial court found that Appellant waived his

sole issue for failing to specify which crime he was challenging and the

element or elements of that specific crime that the Commonwealth failed to

prove sufficiently. See Trial Court Opinion, 9/15/2014, at 5-6. We agree.

This Court has recently reaffirmed the following legal principle:

         If Appellant wants to preserve a claim that the evidence was
         insufficient, then the 1925(b) statement needs to specify
         the element or elements upon which the evidence was
         insufficient. This Court can then analyze the element or
         elements on appeal.

Commonwealth v. Melvin, 2014 PA Super 181, at * 31 (Aug. 21, 2014),

citing Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super.

2008). Herein, Appellant’s Rule 1925(b) statement globally challenged all of

his convictions and failed to specify any of the elements of the individual

crimes allegedly not proven sufficiently by the Commonwealth.       Moreover,

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3
  On August 5, 2014, Appellant filed a notice of appeal and a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
September 15, 2014.



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even though the trial court addressed the sufficiency of the evidence to

support all of Appellant’s convictions in its Rule 1925(a) opinion, “the

presence of a trial court opinion [is] of no moment to our analysis because

we apply Pa.R.A.P.1925(b) in a predictable, uniform fashion, not in a

selective manner dependent on […] a trial court's choice to address an

unpreserved claim.” Williams, 959 A.2d at 1257. Thus, we are constrained

to find the issue waived.

      Furthermore, even if Appellant’s sole appellate claim were not waived,

aid claim is without merit. We apply the following standard of review when

considering 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 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
        finder 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.

Melvin, at * 31.



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      Here, the trial court determined that the possessory offenses were

proven with sufficient evidence because:      (1) police witnessed Appellant

drop a bag of narcotics; (2) Appellant was in close proximity to the found

narcotics (which were packaged similarly to the discarded drugs) and

Appellant had a marijuana pipe on his person; (3) Appellant made an

incriminating statement to police after the discovery of the contraband, and;

(4) the confidential informant was the only other person in the vehicle. Trial

Court Opinion, 9/15/2014, at 6. The trial court further found that the PWID

convictions were supported by sufficient evidence because:          (1)   the

narcotics were packaged for individual sale; (2) Appellant had paraphernalia

for personal marijuana use, but no paraphernalia for the use of cocaine or

heroin which were the only drugs recovered from the scene; (3) Appellant’s

demeanor and statements to police at the time of the search were

inculpatory, and; (4) the Commonwealth presented expert testimony that

the narcotics were intended for sale. Id. at 6-7. Based upon the foregoing

standard of review, we agree with the trial court’s analysis.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2014


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