Com. v. Yale, E.

J-S33011-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC YALE :
:
Appellant : No. 472 MDA 2018
Appeal from the Judgment of Sentence November 17, 2017
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001152-2017
BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 09, 2019
Eric Yale appeals from the judgment of sentence, entered in the Court
of Common Pleas of Luzerne County, after a jury convicted him of two counts
of possession with intent to manufacture or deliver a controlled substance
(PWID),1 and one count each of possession of a controlled substance,2
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135 P.S. § 780-113(a)(30) (pertaining to methamphetamine); and 35 P.S. §
780-113.1(a)(3) (pertaining to precursor chemicals with the intent to
unlawfully manufacture a controlled substance).
2 35 P.S. § 780-113(a)(16).
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possession of drug paraphernalia,3 and risking catastrophe.4 After careful
review, we affirm.
On March 21, 2017, Officer Jeffrey Ference of the Wilkes-Barre City
Police Department assisted US Marshalls in serving an arrest warrant on Larry
Thompson at Yale’s mother’s home. While searching for Thompson, Officer
Ference entered Yale’s bedroom and found Yale, methamphetamine, and
items consistent with the “one-pot” method5 of manufacturing
methamphetamine, including lighter fluid, Drano, lithium batteries, and
bottles containing chemicals. Officer Ference then discovered Thompson
hiding in Yale’s bedroom closet, and took both Thompson and Yale into
custody. Officer Ference subsequently contacted the clandestine lab response
team, a specialized unit of the Pennsylvania State Police, to dispose of the
above-mentioned materials, owing to their propensity to catch on fire or emit
toxic gasses. While in custody, after being read his Miranda rights, Yale
admitted the items were found in his bedroom and were there to manufacture
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3 35 P.S. § 780-113(a)(32).
4 18 Pa.C.S.A. § 3302(b).
5 The one-pot method is a common method of methamphetamine production
where precursor chemicals are mixed together in a plastic soda bottle. See
N.T. Trial, 9/26/17, at 45–46 (“The way people make methamphetamine right
now is called the one-pot method[.] [I]ngredients are mixed together . . . in
a plastic soda bottle. These soda bottles fail a lot; they light on fire, they
ignite, they injure people, they send people to the burn unit.”).
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methamphetamine. The Commonwealth charged Yale and Thompson under
accomplice and principal theories of liability.6
At trial, Yale denied any involvement in producing methamphetamine
and claimed the contraband belonged to Thompson. He attempted to present
evidence demonstrating Thompson pleaded guilty to producing
methamphetamine using the “one-pot” method on November 3, 2015, and
further, that Thompson was charged with additional methamphetamine-
related offenses on February 6, 2017. The trial court precluded evidence
concerning either event as irrelevant to the instant case and confusing to the
jury.
The jury found Yale guilty of the above-mentioned charges on
September 26, 2017. On November 17, 2017, the trial court sentenced Yale
to an aggregate of 60 to 144 months’ incarceration. On the same day, Yale
filed post-sentence motions, which the trial court denied on February 15,
2018. Yale timely filed a notice of appeal and a court-ordered concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Yale raises the following issues for our review:
1. Whether the evidence as to all charges, as a matter of law, was
insufficient to support any conviction, where the evidence
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6 As a general rule, “[a] person is guilty of an offense if it is committed by his
own conduct or by the conduct of another person for which he is legally
responsible, or both.” 18 Pa.C.S.A. § 306(a). An accomplice is defined, in
relevant part, as someone who, “with the intent of promoting or facilitating
the commission of [an] offense . . . aids or agrees or attempts to aid such
other person in planning or committing it[.]” 18 Pa.C.S.A. § 306(c).
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established no more than mere presence of [Yale, and not] that
he was the perpetrator, either as an accomplice or principal,
contrary to the Due Process provisions of the United States
Constitution?
2. Did the trial court err as a matter of law or abuse its discretion
in precluding, contrary to Pa.R.E. 404, the defense from
presenting evidence that [] Thompson, an individual found at
the scene, had been previously arrested for similar offenses
and possessed knowledge of how to manufacture
methamphetamine, to demonstrate that he was the
perpetrator of the present charges?
Brief of Appellant, at 2.
Yale first argues the Commonwealth failed to present sufficient evidence
to establish his intent to control the contraband at issue, and consequently,
failed to prove he constructively possessed the items underpinning his
convictions—namely, precursor chemicals, methamphetamine manufacturing
equipment, and methamphetamine. See id. at 8, 14.
Our standard of review with regard to sufficiency claims is well-settled:7
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7 We note our displeasure with the trial court’s recitation of the standard for
sufficiency claims, which, in part, reads as follows: “Only where the evidence
offered to support the verdict is in contradiction to the physical facts, in
contravention to human experience and the laws of nature, is it deemed
insufficient as a matter of law.” Pa.R.A.P. 1925(a) opinion, 10/26/18, at 3
(emphasis added) (citing Commonwealth v. Robinson, 817 A.2d 1153,
1158 (Pa. Super. 2003)). This sentence is largely a direct quotation from
Robinson, deviating only in its addition of the word “only.” Compare id.
with Robinson, supra at 1158. Adding the qualifier “only” drastically
changes the meaning of the quotation, which itself details a sufficient
condition, not a necessary condition, for finding the evidence insufficient.
Robinson, supra at 1158. The test for evidentiary sufficiency, as properly
stated in Robinson, is evaluating whether the record establishes “each
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A claim challenging the sufficiency of the evidence is a question of
law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a reasonable
doubt[.] When reviewing a sufficiency claim[,] the court is
required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
The possession of contraband—an element at issue in each of Yale’s
convictions8—can be established by demonstrating actual, constructive, or
joint constructive possession of contraband. Commonwealth v. Mudrick,
507 A.2d 1212, 1213 (Pa. 1986). Our Supreme Court has previously defined
constructive possession as follows:
Constructive possession is a legal fiction, a pragmatic construct to
deal with the realities of criminal law enforcement. Constructive
possession is an inference arising from a set of facts that
possession of the contraband was more likely than not. We have
defined constructive possession as “conscious dominion.” We
subsequently defined “conscious dominion” as “the power to
control the contraband and the intent to exercise that control.” To
aid application, we have held that constructive possession may be
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material element of the crime charged and the commission thereof by the
accused, beyond a reasonable doubt.” Id. (quotation omitted).
8 Yale’s PWID and possession of a controlled substance convictions required
the Commonwealth to prove he possessed methamphetamine or precursor
chemicals. 35 P.S. § 780-113(a)(30) and 35 P.S. § 780-113.1(a)(3); 35 P.S.
§ 780-113(a)(16). Yale’s possession of drug paraphernalia and risking
catastrophe convictions required the Commonwealth prove his possession of
the drug paraphernalia for the purpose of manufacturing or producing
methamphetamine. 35 P.S. § 780-113(a)(32); 18 Pa.C.S.A. § 3302(b).
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established by the totality of the circumstances[.] [C]onstructive
possession may be found in either or both actors if contraband is
found in an area of joint control and equal access.
Id. (citations omitted) (emphasis added).
Where more than one person has equal access to contraband, presence
at the scene of the crime does not in and of itself prove conscious dominion
over prohibited items. Commonwealth v. Ocasio, 619 A.2d 352, 354 (Pa.
Super. 1993). “[T]he Commonwealth must introduce evidence demonstrating
either appellant’s participation in the drug related activity or evidence
connecting appellant to the specific room or areas where the drugs were kept.”
Id. at 354–44 (emphasis added); see Commonwealth v. Keefer, 487 A.2d
915, 918 (Pa. Super. 1985) (“The circumstances of the seizure of the instant
drugs were sufficient to provide an inference that appellant maintained control
over the bedroom in which they were seized, and, thus, over the drugs.”).
Here, the officers found materials used in the production of
methamphetamine, as well as the finished product. N.T. Trial, 9/26/17, at
27. Yale admitted the contraband was for the production of
methamphetamine. Id. at 31. Further, Yale admitted the room in which the
items were found was his bedroom. Id. at 31, 89. Viewing this evidence in
the light most favorable to the Commonwealth, we conclude the evidence was
sufficient to enable the jury to find Yale constructively possessed the
contraband underlying his convictions. See Keefer, supra at 918 (finding
defendant constructively possession drugs found in his bedroom).
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Next, Yale claims the trial court erred by precluding evidence of
Thompson’s previous arrests for methamphetamine-related offenses, which
he sought to admit to prove Thompson’s sole responsibility for the presence
of contraband in Yale’s bedroom. Brief of Appellant, at 14.
The Supreme Court previously articulated the standard by which we
evaluate evidentiary rulings as follows:
It is well-established that the admissibility of evidence is within
the discretion of the trial court, and such rulings will not form the
basis for appellate relief absent an abuse of discretion. Thus, the
Superior Court may reverse an evidentiary ruling only upon a
showing the trial court abused that discretion. A determination
that a trial court abused its discretion in making an evidentiary
ruling may not be made merely because an appellate court might
have reached a different conclusion, but requires a result of
manifest unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support so as to be clearly erroneous. Further,
discretion is abused when the law is either overridden or
misapplied.
Commonwealth v. Hoover, 107 A.3d 723, 729 (Pa. 2014).
“A defendant has a fundamental right to present evidence[,] provided
that the evidence is relevant and not subject to exclusion under one of our
established evidentiary rules. Evidence is relevant if it tends to prove or
disprove some material fact or tends to make a fact at issue more or less
probable.” Commonwealth v. McGowan, 635 A.2d 113, 115 (Pa. 1993).
Further, “[i]t is well[-]established that evidence which tends to show that the
crime with which a defendant is charged was committed by someone else is
relevant and admissible. In this regard, the defense may introduce evidence
that someone else committed a crime which bears a highly detailed similarity
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to the crime with which the defendant is charged.” Id. (emphasis added)
(citing with approval Commonwealth v. Rini, 427 A.2d 1385, 1388 (Pa.
Super. 1981)).
In Rini, this Court established a defendant’s right to introduce evidence
of another individual committing a “strikingly similar” crime to the one at issue
on trial, reasoning as follows:
The Commonwealth is permitted in such cases to introduce
evidence that the defendant committed crimes other than the one
charged, because their highly detailed similarity makes their
probative value in showing that the defendant committed the
crime charged so great as to outweigh even the substantial danger
of prejudice to the defendant. When the defense offers evidence
that someone other than the defendant committed a crime with a
detailed similarity to the one charged, the probative value is
equally strong in showing that the defendant did not commit the
crime charged, and the argument for admissibility is even
stronger, because there is no prejudice to weigh against this
equally strong probative value.
Rini, supra at 1388.
Following Rini, Superior Court case law established a criminal
defendant’s right to offer such evidence, if the following two factors
established its relevance and probative value: “1) the lapse of time between
the commission of the two crimes; and 2) the resemblance between the
methodologies of those two crimes.” Commonwealth v. Palagonia, 868
A.2d 1212, 1216 (Pa. Super. 2005). 9 Even if the proffered third-party crime
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9 In a recent concurrence, Justice Wecht cast doubt, not only on the vitality of
the two-part test outlined in Palagonia, but on whether so-called “reverse
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and the charged crime occurred close in time to one another, “the [proffered]
evidence is not admissible unless the nature of the crimes is so distinctive or
unusual as to be like a signature or the handiwork of the same individual.”
See id. (finding evidence insufficiently similar to permit admission where
proffered evidence of burglaries committed by a third party involved tools and
burglary at issue did not involve forced entry); see also Commonwealth v.
Nocero, 582 A.2d 376, 379 (Pa. Super. 1990) (finding “ripping a water
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404(b)” evidence should incorporate any principles whatsoever from case law
related to Pa.R.E. 404(b). See Commonwealth v. Gill, 206 A.3d 459, 468-
74 (Pa. 2019) (Wecht, J., concurring) (“[T]he admissibility of ‘reverse 404(b)’
evidence should not be governed by Rule 404(b) or subject to the standards
imposed on Rule 404(b) case law”); see also id. at 473 (defining “reverse
404(b)” evidence as “evidence of a crime committed by a third party that is
similar to the crime for which the defendant stands accused, and that a
defendant seeks to admit for the purpose of establishing that the defendant
was not the perpetrator of the charged offense.”). Justice Wecht posits, since
Rini, where we first recognized a defendant’s right to introduce evidence of a
crime bearing a “highly detailed similarity” to the one at issue, Superior
Court’s case law has diverged from the Supreme Court’s; in doing so, the
strictures of Rule 404(b), which exist to prevent the Commonwealth from
introducing impermissible character evidence, have been improperly applied
in the context of “reverse 404(b) evidence, [where] the defendant’s character
is simply not implicated.” Id. He asserts such evidence ought to be
admissible so long as it passes the “liberal relevance hurdle and survives Rule
403 balancing[.]” Id. at 473–74. While Justice Wecht’s concurring opinion
sheds a great deal of light on the development of a poorly-defined branch of
the law of evidence, we remain bound by Palagonia, and thus, obligated to
apply the two-part test contained therein to Yale’s appeal. See
Commonwealth v. Minor, 647 A.2d 229, 231 n.3 (Pa. Super. 1994) (“Non-
majority decisions of the Pennsylvania Supreme Court are not binding on
lower courts.”); see also Commonwealth v. Hull, 705 A.2d 911, 912 (Pa.
Super. 1998) (“It is beyond the power of a Superior Court panel to overrule a
prior decision of the Superior Court.”).
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fountain from its base is not such a unique type of vandalism that the jury
could infer [that] the same person did both acts.”).
Yale argues the trial court abused its discretion by precluding evidence
of Thompson’s October 12, 2016 arrest and November 3, 2015 guilty plea,
both of which involved Thompson’s use of the “one-pot” method to produce
methamphetamine. Brief of Appellant, at 19–22. We, however, agree with
the trial court’s reasoning; beyond Thompson’s cases involving
methamphetamine production, “[Yale] did not demonstrate how the present
cases against [Yale] and [Thompson] had such detailed similarities or the
same methodology as the . . . cases against [Thompson] to show any common
scheme, plan or design which would have exonerated [Yale.]” Pa.R.A.P.
1925(a) Opinion, 10/26/18, at 9. Consequently, Yale fails to demonstrate
how Thompson’s prior bad acts are so “strikingly similar” to his own charged
crimes as to establish Thompson as “the person charged with the commission
of the crime on trial.” Rini, supra at 1388; see N.T. Trial, 9/26/17, at 45
(describing one-pot method of methamphetamine production as “[t]he way
people make methamphetamine right now[.]”). Our review of the record leads
us to conclude that the trial court did not abuse its discretion in finding that
evidence of Thompsons prior methamphetamine-related activity was not so
distinctive as to warrant admission. Palagonia, supra at 1216–17. Yale,
therefore, is not entitled to relief.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2019
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