Com. v. Mincey, J. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMEEL R. MINCEY, :
:
Appellant : No. 1505 MDA 2013
Appeal from the Judgment of Sentence entered on July 18, 2013
in the Court of Common Pleas of Lycoming County,
Criminal Division, No. CP-41-CR-0001155-2012
BEFORE: BOWES, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 22, 2014
Jameel R.
imposed following his convictions of one count each of possession with the
intent to deliver, possession of drug paraphernalia, public intoxication and
disorderly conduct.1 We affirm.
The trial court set forth the underlying facts as follows:
At approximately 2:41 a.m. on June 22, 2012, Williamsport
police officers were dispatched to the Sheetz at 105 Maynard
Street for a fight in progress. When the police arrived, they
observed a white male, a white female, and [Mincey] involved in
a verbal altercation. The police tried to separate the individuals.
Officer Jonathan Deprenda spoke to [Mincey] and asked
[Mincey] to tell him what happened. [Mincey] told Officer
Deprenda that the white male had hit him in the mouth and then
he stepped towards the white male. Officer Deprenda was
between the two men and walked [Mincey] towards his vehicle.
He noticed a strong odor of an alcoholic beverage coming from
s person. [Mincey] also was very unsteady on his feet,
1
35 P.S. § 780-113(a)(30), (32); 18 Pa.C.S.A. §§ 5503(a)(1), 5505.
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nearly falling over as [he] go
Officer Deprenda asked [Mincey] to identify himself or produce
identification, but [Mincey]
identification. Officer Deprenda took [Mincey] into custody for
disorderly conduct and public drunkenness and transported him
to City Hall where he was identified as Mincey.
Officer Deprenda searched [Mincey] incident to his arrest
and discovered 19 baggies of cocaine contained within a larger
neteen
baggies of cocaine weighed 9.6 grams.
[Mincey] was charged with possession with intent to
deliver a controlled substance, an ungraded felony; possession
of drug paraphernalia, an ungraded misdemeanor; and the
summary offenses of disorderly conduct and public drunkenness.
Following a nonjury trial held on January 14, 2013, the court
found [Mincey] guilty of all the charges.
On July 18, 2013, the court sentenced [Mincey] to 2½ to 5
years of incarceration in a state correctional institution for
possession with intent to deliver a controlled substance and a
consecutive 6 months to 1 year of incarceration for possession of
drug paraphernalia. [The court imposed no further punishment
for each of the summary offenses.]
[Mincey] filed a motion for reconsideration of sentence in
which he asserted that[]
and excessive; the possession of drug paraphernalia charge
should have run concurrently because the paraphernalia was the
bags in which the cocaine was discovered; and the court failed to
treatment. The court denied this motion, and [Mincey] filed a
timely appeal.
Trial Court Opinion, 11/26/13, at 1-2 (footnote omitted).
On appeal, Mincey raises the following questions for our review:
1. Was the evidence presented at trial [] insufficient to prove
beyond a reasonable doubt that [Mincey] was guilty of
possession of drug paraphernalia; specifically because
evidence established that he purchased the controlled
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substance as packaged and did not have separate implements
for storage, ingestion, etc.?
2. Did the trial court abuse its discretion when imposing
consecutive sentences for possessing drug paraphernalia and
possession with the intent to deliver?
Brief for Appellant at 8.
In his first claim, Mincey contends that he did not have the requisite
mens rea to be found guilty of possession of drug paraphernalia, as he
. Id. at 12-13. Mincey argues that
he had no intent to use the baggies and that his sole objective was to obtain
the cocaine for personal use. Id. at 13-14.
In reviewing a challenge to the sufficiency of the evidence, we
most favorable to the verdict winner giving
the prosecution the benefit of all reasonable inferences to be drawn from the
Commonwealth v. Bibbs, 970 A.2d 440, 445 (Pa. Super.
2009) (citation omitted).
Evidence will be deemed sufficient to support the verdict
when it established each element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty, and may sustain its burden by means of
wholly circumstantial evidence. Significantly, [we] may not
substitute [our] judgment for that of the factfinder; if the record
contains support for the convictions they may not be disturbed.
Id. (citation
weak and inconclusive that, as a matter of law, no probability of fact can be
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Commonwealth v. Scott, 967
A.2d 995, 998 (Pa. Super. 2009).
Relevantly, 35 P.S. § 780-
storing, containing, concealing, injecting, inhaling or otherwise introducing
Drug
kind which are used, intended for use, or designed for use in storing,
containing, concealing
P.S. § 780-102.
The trial court addressed claim as follows:
The law does not require the paraphernalia to be separate from
the controlled substance. See Commonwealth v. Caban, 60
A.3d 120 (Pa. Super. 2012) (Superior Court rejected a challenge
to the sufficiency of the evidence for a paraphernalia conviction
where the paraphernalia was the gift box and cellophane in
which the marijuana was wrapped); Commonwealth v.
Coleman, 984 A.2d 998, 1000-1002 (Pa. Super. 2009) (glass
vials, glassine baggie and sock which contained crack cocaine
constituted drug paraphernalia). In fact, determining whether
an object is drug paraphernalia a court should consider the
proximity of the object to controlled substances. 35 P.S. § 780-
102.
In this case, the bags clearly were being used to store or
contain the cocaine. In fact, [Mincey] called a witness, James
is no such thing as a distribution bag in the drug world. The bag
was just a sandwich bag; its purpose was to keep the smaller
bags of cocaine together so no one would lose any of them.
[N.T., 7/18/13, at 69.]
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showed that the bags were being used to store or contain the
cocaine. Therefore, this issue lacks merit.
Trial Court Opinion, 11/26/13, at 3-4. We agree with the sound reasoning of
the trial court and conclude that the evidence was sufficient to convict
Mincey of possession of drug paraphernalia. See id.
second claim implicates the discretionary aspects of
sentencing.
An appellant challenging the discretionary aspects of his
sentence must invoke thi
part test:
[We] conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
see Pa.R.Crim.P. [720]; (3) whether appellant
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code, 42 Pa. C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(quotation marks and some citations omitted).
Here, Mincey filed a timely Notice of Appeal, preserved the issue in his
Motion for Reconsideration, and included a Rule 2119(f) statement in his
brief. In his Rule 2119(f) statement, Mincey claims that the trial court
imposed consecutive sentences contrary to the fundamental norms of
sentencing,
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Brief for Appellant at 15. This claim raises a substantial question. See
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013).
The trial court addressed this claim as follows:
The court could impose separate sentences on these offenses,
because the crimes did not merge. 42 Pa.C.S.A. §
crimes merge for sentencing purposes unless the crimes arise
from a single criminal act and all of the statutory elements of
one offense are included in the statutory elements of the other
sentencing court discretion to impose its sentences concurrently
or consecutively to other sentences being imposed at the same
Commonwealth v.
Austin, 66 A.3d 798, 808 (Pa. Super. 2013). A sentence will
not be reversed on appeal unless the sentencing court abused its
of judgment; thus, a sentencing court will not have abused its
exercised was manifestly unreasonable or the result of partiality,
prejudice, bias or ill- Commonwealth v. Walls, 592 A.2d
957, 961 (Pa. 2007), quoting Commonwealth v. Smith, 543
A.3d 893, 895 (Pa. 1996).
this case was neither unreasonable nor based on any partiality,
prejudice, bias, or ill-will against [Mincey], but rather was
motivated by a desire to protect the public. [N.T., 7/18/13, at
26-29; N.T., 8/1/13, at 12.] Although in many cases the court
would not impose a consecutive sentence for a paraphernalia
charge when there was no additional paraphernalia for ingesting
or packaging controlled substances, this was not a typical case.
Generally speaking, from 1996 to the present [Mincey] had
difficulty refraining from selling drugs, using drugs, or driving a
vehicle while he was under the influence of drugs or alcohol
while his license was suspended except when he was
incarcerated. He had been in and out of the criminal justice
system with escalating consequences and nothing seemed to
work. Furthermore, [Mincey] had three other cases that were
being sentenced at the same time as this case. He committed
the offenses in this case about two months after his arrest for
possession of Percocet[,] and within eight days of his arrest for
DUI. Then he committed another DUI about two months after
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he committed the offenses in this case. [N.T., 7/18/13, at 5;
N.T., 8/1/13, at 11.] These factors could have justified a
sentence in the aggravated range or a lengthier maximum
sentence for possession with intent to deliver cocaine,[fn] but the
court did not do that. Instead, the court simply imposed a
consecutive sentence of six months to one year on the
paraphernalia charge, which under all the facts and
circumstances was neither an abuse of discretion nor an
excessive sentence.
[fn] The statutory maximum sentence for possession with intent
to deliver cocaine was 20 years, because [Mincey] had prior
convictions for delivery or possession with intent to deliver a
controlled substance. 35 P.S. § 780-115.
Trial Court Opinion, 11/26/13, at 5 (footnote in original); see also N.T.,
7/18/13, at 11-15, 26-
rehabilitative needs and his prior history of addiction in rendering the
sentence). Furthermore, the trial court was informed by a pre-sentence
investigation report. N.T., 7/18/13, at 8-13; see also Commonwealth v.
Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (stating that where trial
court had the benefit of pre-sentence investigation report, the court satisfies
its requirement that the reasons for the sentence be placed on the record
and all relevant factors considered).
Based on the foregoing, we conclude that the trial court did not abuse
its discretion by imposing consecutive sentences and therefore adopt the
sound reasoning of the trial court.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2014
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