Com. v. Wylie-Biggs, E. ( 2017 )

J-S66039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
EDWIN GRECO WYLIE-BIGGS,
Appellant No. 625 WDA 2017
Appeal from the Judgment of Sentence April 12, 2017
in the Court of Common Pleas of Fayette County
Criminal Division at No.: CP-26-CR-0000950-2016
BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 29, 2017
Appellant, Edwin Greco Wylie-Biggs, appeals from the judgment of
sentence imposed following his jury conviction of possession of contraband by
an inmate.1 Specifically, he challenges the sufficiency of the evidence to
support his conviction. We affirm.
We take the factual and procedural history in this matter from our
review of the certified record and the trial court’s May 10, 2017 opinion.
At trial, the first witness, [Officer] Albert Wood, a
corrections officer at SCI Fayette, testified that he observed
another inmate hand something to [Appellant] while the prisoners
were being transitioned from their cell block to the dining hall.
(See N.T. Trial, 4/04/17, at 7-8). The inmates, including
[Appellant], were then brought to the security office, and Officer
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 5123(a.2).
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Wood and his co-worker, Officer [Melvin] Wolfe, took [Appellant]
to a secure location in order to strip search him. As the final step
in such search, [Appellant] bent over and separated his buttock
cheeks, whereupon a clear plastic bag containing a small blue
balloon could be seen sticking out of his rectum, and thereafter
[Appellant] himself removed it from his rectum. (See id. at 10-
11). The blue balloon was found to contain a substance which
was identified as K2, synthetic marijuana, during subsequent
testing performed by another corrections officer, James
Vazvinder. (See id. at 26, 28). After the contraband was found,
Security Lieutenant Martin Switzer was notified, and he
immediately went to the secure area where the strip search had
been performed. (See id. at 38). After arriving, Lieutenant
Switzer spoke to [Appellant], who admitted the contraband was
his and identified it as K2. (See id. at 39).
(Trial Court Opinion, 5/10/17, at 1-2) (record citation formatting provided).
On April 12, 2017, the court sentenced Appellant to not less than three
nor more than six years of imprisonment to run consecutively with the
Allegheny County sentence that Appellant had been serving. Appellant did
not file a post-sentence motion. This timely appeal followed.2
Appellant raises one issue on appeal: “Whether the evidence was legally
and factually insufficient to prove that [Appellant] was guilty of possession of
contraband by an inmate?” (Appellant’s Brief, at 7) (unnecessary
capitalization omitted).
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2 Pursuant to the trial court’s order, Appellant filed a concise statement of
errors complained of on appeal on April 26, 2017. The court entered an
opinion on May 10, 2017. See Pa.R.A.P. 1925.
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Appellant challenges the sufficiency of the evidence to support his
conviction, for which our standard of review is well settled.3
Whether sufficient evidence exists to support the verdict is a
question of law; our standard of review is de novo and our scope
of review is plenary. In assessing Appellant’s sufficiency
challenge, we must determine whether, viewing the evidence in
the light most favorable to the Commonwealth as verdict winner,
together with all reasonable inferences therefrom, the trier of fact
could have found that the Commonwealth proved [each] element
of the crime beyond a reasonable doubt. The evidence need not
preclude every possibility of innocence and the fact-finder is free
to believe all, part, or none of the evidence presented.
Commonwealth v. Giron, 155 A.3d 635, 638 (Pa. Super. 2017) (citations
and quotation marks omitted).
To sustain a conviction for possession of contraband by an inmate, the
Commonwealth must prove that an inmate “unlawfully has in his possession
or under his control any controlled substance in violation of section 13(a)(16)
of The Controlled Substance, Drug, Device and Cosmetic Act. For purposes of
this subsection, no amount shall be deemed de minimis.” 18 Pa.C.S.A. §
5123(a.2) (footnote omitted); see 35 P.S. § 780-113(a)(16).
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3 Appellant’s brief contains argument challenging the weight of the evidence
supporting his conviction. (See Appellant’s Brief, at 10, 14, 16). However,
he does not include a weight of the evidence claim in his statement of
questions involved. See Pa.R.A.P. 2116 (“No question will be considered
unless it is stated in the statement of questions involved or is fairly suggested
thereby.”). Furthermore, Appellant failed to raise before the trial court a
challenge to the weight of the evidence, and failed to include it in his Rule
1925(b) concise statement of errors. Therefore, he has waived this claim.
See Commonwealth v. Griffin, 65 A.3d 932, 939 (Pa. Super. 2013), appeal
denied, 76 A.3d 538 (Pa. 2013); Pa.R.Crim.P. 607; Pa.R.A.P. 1925(b)(4)(vii).
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Appellant claims that the evidence introduced by the Commonwealth at
trial was insufficient to sustain his conviction of possession of contraband by
an inmate. (See Appellant’s Brief, at 10-16). We disagree.
Here, the Commonwealth introduced the testimony of Officer Wood at
trial who explained that he conducted a strip search of Appellant after another
officer observed a fellow inmate pass an item to him. (See N.T. Trial, at 9-
10). Officer Woods testified that during the search, Appellant was asked to
bend over and separate his buttock cheeks, whereupon Officer Woods
observed clear plastic sticking out of Appellant’s rectum. (See id. at 11).
Appellant retrieved the clear plastic bag, which contained a blue balloon. (See
id.). The blue balloon contained contraband, which Officer Wood took to
Officer James Vazvinder for testing. (See id. at 13). Officer Vazvinder
testified that the substance tested positive for K2 synthetic marijuana, a
controlled substance. (See id. at 28). He explained that he did not sign a
property receipt for the substance because Officer Wood, who did sign the
receipt, was the custodian of the evidence and was in the room the entire time
while he was testing it. (See id. at 61, 63-65).
Viewing the foregoing evidence in the light most favorable to the
Commonwealth as verdict winner, we conclude that it demonstrates that
Appellant, an inmate, possessed synthetic marijuana, a controlled substance.
Therefore, we conclude the evidence was sufficient to support Appellant’s
possession of contraband as an inmate conviction. See Giron, supra at 638.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2017
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