Com. v. Mosley, A. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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