J-S34003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
    DAVID RYAN BATES                      :
                                          :
                     Appellant            :   No. 661 WDA 2017

             Appeal from the Judgment of Sentence April 7, 2017
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                          CP-25-CR-0003421-2016

    COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
    DAVID RYAN BATES                      :
                                          :
                     Appellant            :   No. 1195 WDA 2017

            Appeal from the Judgment of Sentence August 7, 2017
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                          CP-25-CR-0003421-2016

BEFORE:     BOWES, J., STABILE, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                           FILED AUGUST 27, 2018

       David Ryan Bates appeals from the judgments of sentence that were

imposed on April 7, 2017, and August 7, 2017, following his jury convictions

for simple possession of cocaine and firearms violations, and by a subsequent

jury for possession with intent to deliver (“PWID”) as to the same cocaine.

We vacate Appellant’s sentence for simple possession of the cocaine, but

affirm his judgment of sentence in all other respects.


*    Retired Senior Judge assigned to the Superior Court.
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      The trial court offered the following summary of the facts underlying

Appellant’s convictions.

             On the evening of September 24, 2016, Pennsylvania State
      Police Troopers John Stephanik and his partner were patrolling a
      high crime area in a marked police cruiser when they encountered
      a white car with a defunct headlight. The [t]roopers activated
      their lights and initiated a traffic stop of the white car. Trooper
      Cody Williams and his partner arrived behind Trooper Stephanik
      in a second patrol car. As soon as the white car pulled over in
      front of the two police cruisers, a man jumped out from the right
      passenger side of the vehicle and fled the scene.           Trooper
      Stephanik jumped out of his patrol car and pursued the fleeing
      suspect on foot. During the 20 to 25 second chase, the suspect
      and Trooper Stephanik ran through a yard and over a chain link
      fence. Trooper Williams, from the second patrol car, also pursued
      the suspect on foot, for 5 to 10 seconds, attempting to cut him off
      at an angle. Troopers Stephanik and Williams joined up and
      tackled the suspect who was attempting to scale a six foot high
      wooden fence. During the tackle, a large plastic bag containing a
      powdered substance fell out of the suspect’s pocket. The suspect
      struggled with the officer and was cuffed and taken to the police
      cruiser. The suspect was identified as our Appellant . . . .

            Minutes after the chase, troopers conducted a flashlight
      search of the suspect’s path of travel from his white car to the
      fence where he was stopped and cuffed. The path of travel was
      approximately 50 to 75 feet. The troopers found a hat they had
      observed the suspect wearing when he exited the white car. They
      also found a bandana and a gun. The hat and bandana were
      approximately 2 to 3 feet apart, and the gun was approximately
      10 feet from the articles of clothing.

Trial Court Opinion, 6/13/17, at 1-2 (citations omitted).

      Appellant was arrested and taken to the police station.       A second,

smaller plastic bag of white powder was recovered from where Appellant sat

in the patrol car.   Both bags were placed in the same evidence envelope,




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where the substances became comingled. Laboratory results on the mixed

substance revealed it to be primarily cocaine, with a small amount of caffeine.

       At the first trial, the jury (1) found Appellant guilty of possession of a

firearm prohibited, firearms not to be carried without a license, and possession

of a controlled substance; (2) acquitted him of receiving stolen property; and

(3) was unable to agree on a verdict as to PWID. On April 7, 2017, the trial

court sentenced Appellant to concurrent sentences on his three convictions,

yielding an aggregate term of five to ten years imprisonment.1

       A new jury trial was held on the PWID charge on June 22, 2017, resulting

in a conviction. On August 7, 2017, Appellant was sentenced on the PWID

conviction to eighteen to thirty-six months incarceration, set to run

consecutively to the five-to-ten-year sentence imposed on April 7, 2017.

       Appellant filed timely notices of appeal from both of his judgments of

sentence.     After a substitution of counsel, the appeals were consolidated.

Several extensions of time for the filing of briefs were granted,2 and the case

is now ready for our review.

       Appellant presents this Court with the following questions.


____________________________________________


1 Appellant was asked whether he wished to continue sentencing on the
convictions until after the retrial on PWID, but he declined. N.T. Sentencing,
4/7/17, at 12.

2  The Commonwealth requested and was granted an extension, but did not
file a brief. After being ordered to do so by this Court, the Commonwealth did
on July 2, 2018, file exhibits from Appellant’s trial that had not previously
been included in the certified record.

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      1.    Did the Commonwealth present insufficient evidence to
            sustain Appellant’s convictions for the two violations of the
            Uniform Firearms Act where the evidence does not establish
            that Appellant possessed the recovered firearm?

      2.    Did the Commonwealth present insufficient evidence to
            sustain Appellant’s conviction for possession with the intent
            to deliver where the State Police packaged two samples of
            contraband together, admitted the substances were mixed
            in the lab, and admitted that combining the two would taint
            the original samples?

      3.    Did the trial court impose an illegal sentence for possession
            of a controlled substance where Appellant was subsequently
            convicted, after a re-trial, for possession with the intent to
            deliver the same substance?

Appellant’s brief at 9.

      We begin with the law applicable to our review of Appellant’s claims that

the evidence was insufficient to sustain his convictions.

      Because a determination of evidentiary sufficiency presents a
      question of law, our standard of review is de novo and our scope
      of review is plenary. In reviewing the sufficiency of the evidence,
      we must determine whether the evidence admitted at trial and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, were sufficient
      to prove every element of the offense beyond a reasonable doubt.
      [T]he facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. It is within the
      province of the fact-finder to determine the weight to be accorded
      to each witness’s testimony and to believe all, part, or none of the
      evidence. The Commonwealth may sustain its burden of proving
      every element of the crime by means of wholly circumstantial
      evidence. Moreover, as an appellate court, we may not re-weigh
      the evidence and substitute our judgment for that of the fact-
      finder.

Commonwealth v. Williams, 176 A.3d 298, 305-06 (Pa.Super. 2017)

(citations and quotation marks omitted).


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      Appellant first challenges the evidentiary sufficiency of his firearms

convictions. He was convicted of person not to possess, which prohibits a

person convicted of certain offenses from, inter alia, possessing or controlling

a firearm. 18 Pa.C.S. § 6105(a)(1). He was also convicted of firearms not to

be carried without a license, which prohibits the carrying of a firearm in a

vehicle or concealed on his person without a valid license.         18 Pa.C.S.

§ 6106(a).

      Appellant challenges the adequacy of the Commonwealth’s proof of the

possession element of each of these crimes.            He contends that the

Commonwealth offered no witness who saw Appellant in actual possession of

the weapon, or evidence that Appellant had the power or intention to control

the gun. Appellant’s brief at 37. He claims that the Commonwealth does not

sufficiently exclude the possibility “that the firearm had been discarded by an

unknown third party.” Id.

      We disagree. As noted above, the Commonwealth was not required to

preclude all possibility of Appellant’s innocence.   Williams, supra at 306.

Although Appellant is correct that there was no direct evidence that he

possessed a firearm, the Commonwealth offered compelling circumstantial

evidence that the recovered weapon was discarded by Appellant during his

flight. As the trial court explained:

      Appellant ignores the following uncontroverted facts: (1) the gun
      was found on the 50[-]to[-]75[-]foot path he took to flee the
      police; (2) the gun was lying 5 to 10 feet away from Appellant’s
      hat and bandanna; (3) the gun was found minutes after Appellant

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      ran through the area; and (4) Trooper Cody Williams testified that
      in his experience as a State Trooper, he has never found an
      abandoned gun on the ground and does not know any officers who
      have ever reported finding a gun on the ground. To find that the
      gun was not related to the Appellant would be a coincidence of
      monumental proportions.

Trial Court Opinion, 6/13/17, at 6-7 (citation omitted).

       We agree with the trial court that the Commonwealth’s circumstantial

evidence enabled the jury to conclude beyond a reasonable doubt that

Appellant possessed, and discarded during his flight, the firearm recovered by

the troopers near the clothing items that Appellant was seen wearing when he

exited the vehicle.   See Commonwealth v. Roberts, 133 A.3d 759, 768

(Pa.Super. 2016) (holding evidence of possession of contraband proven where

officer backtracking defendant’s path found two bags of cocaine four feet away

from defendant’s mobile phone). Accord Commonwealth v. Woodbury,

477 A.2d 890, 893 (Pa.Super. 1984) (holding, where the victim died of a

gunshot wound and the factfinder determined that the defendant was the

person who shot the victim, “the factfinder could logically have concluded from

all of the evidence that appellant had possession of a gun” although there was

no direct evidence that the defendant possessed a weapon).          Therefore,

Appellant’s first issue merits no relief.




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       Appellant next contends that the evidence at his second trial did not

establish that he was guilty of PWID.3            Appellant argues that the

Commonwealth’s evidence that he possessed the controlled substances for

purposes of delivery, rather than personal use, was based “almost exclusively

on the quantity of the controlled substance[.]”       Appellant’s brief at 38.

Appellant observes that there was no indication that he possessed

paraphernalia such as scales or a large sum of cash. Id. at 38-39. Appellant

maintains that, because the Commonwealth comingled the two separate bags

of powder, it was improper to consider the weight of the substances as the

basis for concluding that delivery was his intent.4 Id. at 40.




____________________________________________


3 Appellant does not aver that the evidence was insufficient to sustain his
conviction for simple possession of the cocaine.

4 Appellant also suggests that the comingling of the substances also should
have resulted in suppression of the evidence altogether. Appellant’s brief at
40 n.4. This issue was not raised in the Rule 1925 statement filed by
Appellant’s trial counsel, and thus was not addressed by the trial court in its
opinion. Accordingly, it is waived for purposes of this appeal. See, e.g.,
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (“[A]ny issues not
raised in a Rule 1925(b) statement will be deemed waived[.]”). Although
current counsel requests a remand to amend the statement, such is improper
when there has not been a total failure to file the court-ordered statement.
See Pa.R.A.P. 1925, Note (indicating that the remand procedure of subsection
(c)(3) of the rule “allows an appellate court to remand in criminal cases only
when the appellant has completely failed to respond to an order to file a
Statement”). Should Appellant wish to pursue the claim, he may attempt to
obtain relief through the Post Conviction Relief Act after his direct appeal has
concluded.



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       Once again, we disagree with Appellant.            It is true that the

Commonwealth’s expert, Trooper William McClellan, testified at length that

the amount of powder recovered from Appellant—19.45 grams—indicated that

Appellant possessed it with the intent to deliver it. N.T. Trial, 6/22/17, at 119.

Indeed, Trooper McClellan indicated that that amount of cocaine “is impossible

for a personal use aspect.” Id. He explained that users typically purchase

cocaine by the gram or half-gram, or by the “8 ball,”5 which “would be an

amount that an individual would purchase if they were going out with several

other people[.]” Id. The full amount Appellant possessed was close to being

six 8-balls, and had a value in bulk of $1,400.        Id. at 120.    Each gram

individually had a value in Erie of $100. Id.

       Ted Williams, a civilian chemist employed by the State Police, testified

that the contents of the large bag and small bag recovered from Appellant

were mixed together in the same container before he tested it. Based upon

his visual comparison of the residue in the smaller bag with the contents of

the large bag, the substances appeared to be the same. Id. at 95-97. The

weight of all of the powder combined was 19.45 grams, and tested positive

for cocaine. Id. at 99. There were also trace amounts of caffeine present in

the sample, which is common as caffeine is used as a cutting agent to add to

the weight of the substance “to make it go farther.”             Id. at 100-01.


____________________________________________


5An 8-ball is one-eighth of an ounce, or 3.5 grams. N.T. Trial, 6/22/17, at
119-20.

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Importantly, Mr. Williams testified that over ninety-five percent of the total

weight came from the large bag. Id. at 100.

          Therefore, assuming for the sake of argument that the substance that

had leaked out of the small bag contained absolutely no cocaine, well over

eighteen grams of the total contents was cocaine. That number is still well

beyond the quantity of cocaine Trooper McClellan indicated is purchased for

personal use.       Moreover, Appellant had no paraphernalia on his person

indicative of personal use. Therefore, Appellant’s weight-based challenge to

the sufficiency of the evidence to sustain his PWID conviction warrants no

relief.     See, e.g., Commonwealth v. Harper, 611 A.2d 1211, 1217

(Pa.Super. 1992) (holding evidence was sufficient to establish PWID, in

absence of cash or paraphernalia for drug dealing, where expert testified that

the 11.5 grams of cocaine the defendant possessed was consistent with

distribution even though he could not rule out personal use).

          With his final issue, Appellant contends that his sentence is illegal.6

Specifically, he argues that his conviction for possession of the 19.45 grams

of cocaine merged for sentencing purposes with his conviction for PWID as to

those 19.45 grams of cocaine. Appellant’s brief at 42 (citing Commonwealth

v. Murphy, 592 A.2d 750, 753 (Pa.Super. 1991) (“The trial court should have


____________________________________________


6 This issue was not presented in Appellant’s Rule 1925 statement. However,
“[a] challenge to the legality of the sentence can never be waived and may be
raised by this Court sua sponte.” Commonwealth v. Kline, 166 A.3d 337,
340 (Pa.Super. 2017) (internal quotation marks omitted).

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merged for sentencing purposes the crimes of possession of controlled

substances and possession with intent to deliver since both charges stemmed

from the same act of possession.”)). Appellant indicates that this Court should

vacate Appellant’s April 7, 2017 sentence for simple possession.

      Appellant is correct. See Murphy, supra; see also Commonwealth

v. Eicher, 605 A.2d 337, 353 (Pa.Super. 1992) (“[The] appellant’s convictions

for his May 17, 1989 possession, [PWID,] and delivery of 7.1 grams of cocaine

to the undercover police officer would merge and, in fact, were merged for

sentencing purposes. . . because the possession, [PWID,] and the delivery of

the identical substance arose out of the same transaction and all were

premised on the same set of facts.”). Indeed, the Commonwealth noted at

Appellant’s August 7, 2017 sentencing hearing that the possession conviction

from the first trial “would absolutely merge with the PWID” conviction at the

second trial. N.T. Sentencing, 8/7/17, at 10.

      It seems likely that this error occurred because Appellant was sentenced

for the crimes at different times by different judges. Fortunately, it is easily

corrected. On April 7, 2017, Appellant was given a sentence of one to three

years for possession, to run concurrently with his five-to-ten-year sentence

for possession of a firearm prohibited.       Appellant’s August 7, 2017 PWID

sentence of eighteen to thirty-six months is consecutive to the firearms

sentence.   We may simply vacate his possession sentence without the

necessity for resentencing, as we do not disturb the aggregate sentence or


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overall sentencing scheme. See, e.g., Commonwealth v. Martinez, 153

A.3d 1025, 1033 (Pa.Super. 2016) (“We need not remand for re-sentencing,

however, as we have not upset the sentencing scheme consisting entirely of

concurrent sentences.”).

      Accordingly, we vacate Appellant’s April 7, 2017 sentence at count six

of one to three years incarceration, and affirm Appellant’s judgment of

sentence in all other respects.

      Judgment of sentence vacated in part and affirmed in part. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2018




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