J-S66032-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    Appellee              :
                                          :
                    v.                    :
                                          :
CHRISTOPHER DESHAWN LANIER,               :
                                          :
                     Appellant            :     No. 706 WDA 2015

      Appeal from the Judgment of Sentence Entered March 18, 2015,
               in the Court of Common Pleas of Erie County,
           Criminal Division, at No(s): CP-25-CR-0001245-2014

BEFORE:     OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED JANUARY 05, 2016

      Christopher Deshawn Lanier (Appellant) appeals from a judgment of

sentence entered after a jury convicted him of committing several drug-

related crimes. We affirm.

      The background underlying this matter can be summarized as follows.

On the morning of January 31, 2014, City of Erie police officers executed a

search warrant and searched an apartment at 342 East Third Street.         The

only persons present in the apartment were Appellant, Myia Carr, and Ms.

Carr’s two young children. During the search, the officers found a plethora

of drugs and related items.

      Appellant was arrested and charged with committing multiple drug-

related offenses. Appellant’s initial trial ended in a hung jury. A second jury

convicted Appellant of the following: Count 1 - possession with the intent to



*Retired Senior Judge assigned to the Superior Court.
J-S66032-15

deliver (PWID) 166.69 grams of cocaine; Count 2 - PWID 138.96 grams of

heroin; Count 3 - PWID 186 tablets of Dihydrocodeinone/Vicodin; Count 4 -

PWID 220 tablets of BZT/Ecstacy; Count 5 - possession of 166.69 grams of

cocaine; Count 6 - possession of 138.96 grams of heroin; Count 7 -

possession of 186 tablets of Dihydrocodeinone/Vicodin; Count 8 - possession

of 220 tablets of BZT/Ecstacy; Count 9 - possession of a small amount of

marijuana; and Count 10 - possession of drug paraphernalia. For Counts 1,

2, and 4, the trial court imposed sentences of 60 to 120 months in prison.

The court ordered Count 2 to run consecutively to Count 1 and Count 4 to

run concurrently with Count 2. For Count 3, the court imposed a sentence of

12 to 24 months of imprisonment to run concurrently with Count 2.            For

sentencing purposes, Count 5 merged with Count 1; Count 6 merged with

Count 2; Count 7 merged with Count 3; and Count 8 merged with Count 4.

As to Counts 9 and 10, the court directed Appellant to pay fines and costs.

Thus, in terms of time in prison, Appellant’s aggregate sentence is 10 to 20

years.

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

denied.   Appellant timely filed a notice of appeal.      The court directed

Appellant to comply with Pa.R.A.P. 1925(b).       Appellant filed a 1925(b)

statement, and the trial court subsequently filed an opinion in compliance

with Pa.R.A.P. 1925(a).

     In his brief to this Court, Appellant presents us with two questions:



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      A.    Whether the verdict of the trial court was against the
      sufficiency of the evidence regarding the Appellant’s convictions
      for possession with intent to manufacture/deliver, intentional
      possession of a controlled substance, possession of marijuana
      small amount and use/possession of drug paraphernalia[?]

      B. Whether the Appellant’s sentence is manifestly excessive,
      clearly unreasonable and inconsistent with the objectives of the
      sentencing code?

Appellant’s Brief at 3 (unnecessary capitalization omitted).

      Appellant first attempts to challenge the sufficiency of the evidence

admitted at his trial.    In his 1925(b) statement, Appellant presented the

following issue addressing the sufficiency of the evidence:        “[Appellant]

avers that there was insufficient evidence to link him with the location where

drugs were found and for the jury to have found as a matter of law that he

was guilty of the crimes charged.” 1925(b) Statement, 5/20/2015, at ¶ 8.

The trial court addressed this averment, stating, “As to the allegation of

insufficient evidence to link [Appellant] to the location does not set forth how

or why the evidence was insufficient and this issue is waived for lack of

specificity.”   Trial Court Opinion, 6/2/2015.   Appellant’s brief to this Court

does not address the court’s conclusion that he waived his sufficiency claim.

      Assuming arguendo that Appellant did not waive his sufficiency-of-the-

evidence claim, as best we can discern from a review of Appellant’s 1925(b)

statement and the “Argument” section of his brief, Appellant contends that,

because the Commonwealth failed to present evidence linking him to the




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property where the drugs were seized, the evidence was insufficient to

establish that Appellant possessed the drugs. We disagree.

     Our standard of review in determining whether the evidence was
     sufficient

        requires that we consider the evidence admitted at trial in
        a light most favorable to the Commonwealth, since it was
        the verdict winner, and grant it all reasonable inferences
        which can be derived therefrom. The evidence, so viewed,
        will be deemed legally sufficient to sustain the jury’s
        conviction on appeal only if it proves each element of the
        offense charged beyond a reasonable doubt.

Commonwealth v. Poland, 26 A.3d 518, 521 (Pa. Super. 2011) (citation

omitted).

     In terms of evidence “linking” Appellant to the rear apartment of 342

East Third Street, the Commonwealth established that Appellant was present

at the residence when police officers searched it.        See, e.g., N.T.,

1/12/2015, at 27.     In addition, Lieutenant Michael Nolan and Detective

Sergeant Matthew Fischer interviewed Appellant after his arrest. During that

interview, Appellant stated that he lived at 342 East Third Street, rear

apartment, and that he had lived there for nearly one month. See, e.g., id.

at 30-31 and 94-95.

     The Commonwealth also presented the testimony of Patrolman James

Cousins, who completed Appellant’s intake after his arrest. In so doing, the

patrolman asked Appellant a number of questions in order to complete a

booking slip. Among the questions the patrolman asked Appellant was what




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his residence was. Appellant informed the patrolman that his address was

“342 East Third, rear apartment.” Id. at 49. In fact, the patrolman twice

asked Appellant for his address, and on both occasions, Appellant gave the

same address. Id. at 50.

        Thus, contrary to Appellant’s position, the Commonwealth presented

more than sufficient evidence to “link” Appellant to the rear apartment of

342 East Third Street. When the evidence admitted at trial is viewed in the

light most favorable to the Commonwealth, it is sufficient to establish that

Appellant     constructively   possessed   the   drugs   and   related   items.1

Consequently, Appellant’s claim fails.

        Appellant also attempts to challenge the discretionary aspects of his

sentence.


1
    As this Court has explained:

        When contraband is not found on the defendant’s person, the
        Commonwealth must establish “constructive possession,” that is,
        the power to control the contraband and the intent to exercise
        that control. The fact that another person may also have control
        and access does not eliminate the defendant’s constructive
        possession; two actors may have joint control and equal access
        and thus both may constructively possess the contraband. As
        with any other element of a crime, constructive possession may
        be proven by circumstantial evidence. The requisite knowledge
        and intent may be inferred from examination of the totality of
        the circumstances. The fact that the contraband is located in an
        area usually accessible only to the defendant may lead to an
        inference that he placed it there or knew of its presence.

Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super 1996)
(citations omitted).


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      It is well settled that, with regard to the discretionary aspects of
      sentencing, there is no automatic right to appeal.

         Before [this Court may] reach the merits of [a challenge to
         the discretionary aspects of a sentence], we must engage
         in a four part analysis to determine: (1) whether the
         appeal is timely; (2) whether Appellant preserved his
         issue; (3) whether Appellant’s brief includes a concise
         statement of the reasons relied upon for allowance of
         appeal with respect to the discretionary aspects of
         sentence; and (4) whether the concise statement raises a
         substantial question that the sentence is appropriate under
         the sentencing code.... [I]f the appeal satisfies each of
         these four requirements, we will then proceed to decide
         the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

      Appellant timely filed a notice of appeal. Appellant did not object to

his sentence during the sentencing hearing; however, he did seek

reconsideration of his sentence in his post-sentence motion. In that motion,

Appellant   summarized    his    convictions   and   sentences,   supplied   some

personal information such as his age and educational background, provided

what could be considered mitigating factors that were presented during the

sentencing hearing, and submitted that his sentence “may have been too

harsh and might be seen as excessive.”         Motion to Reconsider Sentence,

3/27/2015, at ¶ 13. Thus, the only challenge to the discretionary aspects of

his sentence that Appellant arguably preserved for potential appellate review

is that his sentence is excessive due to the trial court’s failure to consider

adequately mitigating factors.



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      Appellant’s brief does contain a Pa.R.A.P. 2119(f) concise statement.

To the extent that Appellant presents his preserved challenge in that

statement, we must determine whether he has raised a substantial question

worthy of appellate review.

         The determination of whether a substantial question exists
         must be made on a case-by-case basis. It is only where
         an aggrieved party can articulate clear reasons why the
         sentence issued by the trial court compromises the
         sentencing scheme as a whole that we will find a
         substantial question and review the decision of the trial
         court.   This [C]ourt has been inclined to find that a
         substantial question exists where the appellant advances a
         colorable argument that the sentencing judge’s actions
         were either: (1) inconsistent with a specific provision of
         the Sentencing Code; or (2) contrary to the fundamental
         norms underlying the sentencing process.

      Also, a bald allegation that a sentence is excessive does not
      raise a substantial question.

Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa. Super. 2002) (citations

omitted).

      “[T]his Court has held on numerous occasions that a claim of

inadequate consideration of mitigating factors does not raise a substantial

question for our review.”     Disalvo, 70 A.3d at 903 (citation omitted).

Appellant fails to convince us that such a claim raises a substantial question

in this case. Thus, we conclude that he has failed to present this Court with

a challenge worthy of appellate review.       For these reasons, we affirm

Appellant’s judgment of sentence.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 1/5/2016




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