Com. v. Winston, W.

J-S38009-22
ON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WAVERLY WINSTON :
:
Appellant : No. 433 EDA 2022
Appeal from the Judgment of Sentence Entered January 7, 2022
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002551-2020
BEFORE: KUNSELMAN, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED JUNE 2, 2023
Waverly Winston (“Winston”) appeals from the judgment of sentence
imposed following a stipulated non-jury trial at which the trial court found him
guilty of possession with intent to deliver a controlled substance (“PWID”),
conspiracy to commit PWID, conspiracy to possess drug paraphernalia, driving
while operating privilege suspended, and related offenses.1 We affirm.
The trial court summarized the factual background of this appeal as
follows:
On May 12, 2020, at approximately 10:00 p.m.,
[Pennsylvania State Police] Trooper [Steve] Slavin was on traffic
patrol when he queried the registration of a vehicle which revealed
the registered owner[, Ernest McClary,] had an active warrant and
was currently suspended [from driving]. Trooper Slavin
conducted a vehicle stop. The vehicle . . . stopped on the shoulder
of the highway, where the speed limit is 45 miles per hour, in an
area typically with heavy traffic. The vehicle contained the driver,
____________________________________________
1 See 35 P.S. § 780-113(a)(30), (32); 18 Pa.C.S.A. § 903; 75 Pa.C.S.A.
§ 1543(a); see also 35 P.S. § 780-113(a)(16).
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[Winston,] and a passenger. Trooper Slavin identified the
passenger[, McClary,] as the registered owner of the vehicle [and
confirmed that he did not have a valid driver’s license. Winston
also] did not have a valid driver’s license.
At this point, Trooper Slavin requested [Winston] to exit the
vehicle to further investigate the stop. [Winston] complied.
Trooper Slavin inquired why [Winston] was driving with a
suspended license. Trooper [Slavin c]onducted a pat-down search
for officer safety, which revealed that [Winston] had marijuana on
his person. Trooper Slavin asked [Winston] whether there was
anything illegal in the vehicle. [Winston] responded there was
marijuana in the vehicle. Trooper Slavin then requested [McClary]
to exit the vehicle. [McClary] complied.
Trooper Slavin’s backup arrived on scene. The vehicle was
to be towed, in accordance with PA State Police policy FR-1-4,
Shield Regulation. Trooper Slavin proceeded to search the
vehicle. There was a black plastic bag on the passenger[-]side
floor. Inside the black bag was a clear bag with [a] white powdery
substance . . .. Trooper Slavin searched the remainder of the car.
The rear seat behind the driver[-]side seat contained a black
zippered bag which contained another clear bag with a white
powdery substance, later identified as cocaine[, having a net
weight of just over thirty grams.] Also on the seat, next to the
bag, was a measuring cup and a towel.[2] [Winston] and
____________________________________________
2 We note that Trooper Slavin testified inconsistently about the location of the
towel and the measuring cup. At the preliminary hearing, the trooper
indicated that the towel and measuring cup were inside the zippered bag. See
N.T. Preliminary Hearing, 9/8/20 at 10, 25. At the suppression hearing, the
trooper testified that the towel and measuring cup were next to the zippered
bag. See N.T. Suppression, 4/20/21, at 15. The trial court apparently
resolved the inconsistency in favor of finding that the towel and measuring
cup were next to the zippered bag. See Trial Court Opinion, 5/31/22, at 3.
Additionally, there appears to be confusion over which bag, the black plastic
bag in the front passenger compartment or the zippered bag in the seat
directly behind Winston, contained white powdery substances later
determined to contain cocaine. A review of the record makes clear that white
powder in the black plastic bag near McClary tested negative for controlled
substances but could be used as a “cutting agent,” while the contents of the
(Footnote Continued Next Page)
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passenger were taken into custody and the vehicle was to be
towed.
Trial Court Opinion, 5/31/22, 2-3. Trooper Slavin’s “dash-cam” recorded
video and portions of the audio from the interactions surrounding the stop,
search, and arrest.
At the preliminary hearing, the Commonwealth presented Trooper Mark
Solerno as an expert witness. Trooper Solerno opined that the amount of
cocaine found in the car, along with the presence of other contraband, was
consistent with an intent to sell the cocaine. See N.T. Preliminary Hearing,
9/8/20, at 30-32. The magisterial district judge held the charges over for
trial.3
Winston filed a motion to suppress asserting that Trooper Slavin
unlawfully stopped and detained him, and no exigent circumstances supported
the warrantless search of the car. See Motion to Suppress, 2/10/21, at ¶¶ 3-
4, 7. The trial court held a hearing, at which Trooper Slavin testified, and the
Commonwealth presented the court with a State Police directive concerning
inventory searches. The trial court denied the suppression motion concluding
that the trooper would have inevitably discovered the contraband in the car
pursuant to an inventory search. See Order, 6/1/21, at 3.
____________________________________________
powder in the zippered bag behind Winston tested positive for cocaine. See
N.T. Preliminary Hearing, 9/8/20, at 13-14, 32.
3 McClary apparently pleaded guilty to the charges against him, including a
count of conspiracy, after the preliminary hearing. See N.T., Stipulated Non-
Jury Trial, 12/21/21, at 33.
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Winston proceeded to a stipulated non-jury trial at which the parties
agreed to a trial upon the record without additional testimony. The
Commonwealth thereafter moved for the admission of the dash-cam video,
the suppression hearing transcript, the affidavit of probable cause, and a
laboratory report, and then rested its case. See N.T., Stipulated Non-Jury
Trial, 12/21/21, at 8. During Winston’s argument to the court that the record
did not establish the intent to deliver a controlled substance, the
Commonwealth objected. See id. at 16-18. The prosecutor asserted that the
Commonwealth had agreed to allow Winston to argue that the evidence was
insufficient to establish his possession of the drugs, but the agreement did not
include challenges to Winston’s intent to deliver the drugs. See id. Over
Winston’s objection, the trial court found there was a mistake regarding the
scope of the record and permitted the Commonwealth to supplement the
record with the preliminary hearing transcript. See id. The trial court
thereafter found Winston guilty of the above-listed offenses,4 and on January
7, 2022, sentenced him to an aggregate term of twenty-one to forty-two
months of incarceration. Winston timely appealed, and both he and the trial
court complied with Pa.R.A.P. 1925.
Winston raises the following issues for our review:
I. Whether the court below erred in denying [the] motion to
suppress evidence, where police conducted a warrantless
vehicle search without probable cause, exigent
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4The trial court found Winston not guilty of conspiracy to possess a controlled
substance.
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circumstance, or any other applicable exception to the
warrant requirement, in violation of Pa. Const. Art. 1, § 8
and U.S. Const. Amends. IV, XIV?
II. Whether the trial court erred when it permitted the
prosecution to introduce evidence of the preliminary hearing
transcript . . . since it did so during closing arguments, after
the prosecution rested and the trial’s evidentiary phase
concluded?
III. Whether the evidence is insufficient to sustain the
convictions for possession with intent to deliver, possession
of a controlled substance, and possession of drug
paraphernalia since the prosecution failed to prove beyond
a reasonable doubt that [Winston] actually or constructively
possessed any controlled substance or paraphernalia?
IV. Whether the evidence is insufficient to sustain the
convictions for conspiracy to possession with intent and to
drug paraphernalia[,] since the prosecution failed to prove
beyond a reasonable doubt that [Winston], with the intent
to promote or facilitate a crime, entered an agreement to
commit either offense or that an overt act was taken to
further such an agreement?
Winston’s Brief at 6 (italics omitted).
In his first issue, Winston challenges the trial court’s denial of his motion
to suppress. Our standard of review is as follows:
Our standard of review in addressing a challenge to a trial court’s
denial of a suppression motion is limited to determining whether
the factual findings are supported by the record and whether the
legal conclusions drawn from those facts are correct. We are
bound by the suppression court’s factual findings so long as they
are supported by the record; our standard of review on questions
of law is de novo. Where . . . the defendant is appealing the ruling
of the suppression court, we may consider only the evidence of
the Commonwealth and so much of the evidence for the defense
as remains uncontradicted. Our scope of review of suppression
rulings includes only the suppression hearing record . . ..
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Commonwealth v. Davis, 241 A.3d 1160, 1171 (Pa. Super. 2020) (internal
citation omitted).
The Fourth Amendment to the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution protect private citizens from
unreasonable searches and seizures by government officials. See
Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000) (citing United
States v. Mendenhall, 446 U.S. 544, 551 (1980)). “Warrantless searches
are presumptively unreasonable under the state and federal constitutions.”
Commonwealth v. Barr, 266 A.3d 25, 40 (Pa. 2021) (internal citation
omitted). Moreover, Article I, Section 8 of the Pennsylvania Constitution
affords greater protections than the Fourth Amendment, and a warrantless
investigatory search of a vehicle generally requires the Commonwealth to
show probable cause and exigent circumstances. See Commonwealth v.
Alexander, 243 A.3d 177, 207 (Pa. 2020).5
Under the inevitable discovery doctrine,
[e]vidence which would have been discovered [is] sufficiently
purged of the original illegality to allow admission of the evidence
____________________________________________
5 Alexander, which our Supreme Court decided approximately seven months
after the vehicle search at issue here, abrogated Commonwealth v. Gary,
91 A.3d 102 (Pa. 2014), which previously held that, consistent with the Fourth
Amendment, the Pennsylvania Constitution required only probable cause to
search a car, not probable cause and exigent circumstances. Here, Winston
preserved an Alexander claim in his motion to suppress and is entitled to
retroactive application of Alexander. See Commonwealth v. Heidelberg,
267 A.3d 492, 502-03 (Pa. Super. 2021) (en banc) (noting that a new rule of
law generally applies retroactively to pending cases but a party must have
raised and preserved in the trial court a claim that the new rule of law should
apply), appeal denied, 279 A.3d 38 (Pa. 2022).
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. . .. [I]mplicit in this doctrine is the fact that the evidence would
have been discovered despite the initial illegality. If the
prosecution can establish by a preponderance of the evidence that
the illegally obtained evidence ultimately or inevitably would have
been discovered by lawful means, the evidence is admissible. The
purpose of the inevitable discovery rule is to block setting aside
convictions that would have been obtained without police
misconduct.
Commonwealth v. King, 259 A.3d 511, 522 (Pa. Super. 2021) (internal
citation omitted). This Court has upheld the recovery of evidence where an
initial search was improper, but the police had a basis to tow a vehicle and
would have inevitably discovered evidence inside the car pursuant to a proper
inventory search. See id. at 522-23; see also Commonwealth v. Bailey,
986 A.2d 860, 862-63 (Pa. Super. 2009).
Section 6309.2 of the Motor Vehicle Code outlines the procedures for
the immobilization or towing of a vehicle when the driver is operating without
a license or proper registration:
(a) General rule.— . . .
(1) If a person operates a motor vehicle . . . on a highway
or trafficway of this Commonwealth while the person’s
operating privilege is suspended . . . the law enforcement
officer shall immobilize the vehicle . . . or, in the interest
of public safety, direct that the vehicle be towed and
stored by the appropriate towing and storage agent
pursuant to subsection (c), and the appropriate judicial
authority shall be so notified.
****
(c) Procedure upon towing and storage.—
(1) [T]he following steps shall be taken:
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(i) The appropriate judicial authority shall notify the
appropriate law enforcement officer of the county in
which the violation occurred.
(ii) The officer notified under subparagraph (i) shall
notify the appropriate towing and storage agent to
tow and store the vehicle . . . and provide notice by
the most expeditious means and by first class mail,
proof of service, of the towing, storage and location of
the vehicle . . . to the owner of the vehicle . . . .
75 Pa.C.S.A. § 6309.2(a)(1), (c)(1)(i)-(ii) (emphasis added).
In Commonwealth v. Lagenella, 83 A.3d 94 (Pa. 2013), our Supreme
Court outlined the requirements of an inventory search as follows: “An
inventory search of an automobile is permissible when (1) the police have
lawfully impounded the vehicle; and (2) the police have acted in accordance
with a reasonable, standard policy of routinely securing and inventorying the
contents of the impounded vehicle.” Lagenella, 83 A.3d at 102 (internal
citation omitted). An inventory search requires, in relevant part, a proper
basis to stop a vehicle and to tow and store or impound the vehicle. See id.
at 105-06 (rejecting the Commonwealth’s argument that an inventory search
based solely on the immobilization of a vehicle is proper). Our Supreme Court
has succinctly stated that “[i]f the search was conducted as part of a criminal
investigation, it is not an inventory search.” Commonwealth v. White, 669
A.2d 896, 903 (Pa. 1995).
Winston initially contends that Trooper Slavin lacked probable cause to
believe that he or McClary were engaged in criminal activity at the time the
trooper searched the car and that no exigent circumstances supported the
search. See Winston’s Brief at 20-21. Winston continues that the trial court
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erred in concluding that the trooper would have inevitably discovered the
contraband upon conducting an inventory search because the trooper failed
to follow standard procedures during the search. See id. at 23-24. Winston
maintains the Commonwealth seeks to avoid Alexander’s requirement that
vehicle searches require probable cause and exigent circumstances by
belatedly attempting to justify Trooper Slavin’s conduct as an inventory search
or by invoking the inevitable discovery doctrine. See id.6
The trial court determined that troopers would have inevitably
discovered the illegal substances and drug paraphernalia located in the bags
in the vehicle. See Trial Court Opinion, 5/31/22, at 3-4. Both Winston, the
driver, and McClary, the owner and passenger of the car, had suspended
driver’s licenses and neither could continue to operate the vehicle. See id. at
4. The court credited evidence that it was not safe to leave the vehicle on the
shoulder of the highway and that a proper inventory search pursuant to State
____________________________________________
6 We note that Winston’s initial brief focuses more on Trooper Slavin’s conduct
of the search and the lack of exigent circumstances than on the trial court’s
application of the inevitable discovery doctrine. Winston, in his reply brief,
argues that inevitable discovery requires more than the mere possibility that
the evidence could have been discovered but proof that the evidence would
have been discovered absent the taint during the prior illegal search. See
Winston’s Reply Brief at 1 (citing Commonwealth v. Perel, 107 A.3d 185,
196 (Pa. Super. 2014)). We find that Winston waived the expanded inevitable
discovery argument first raised in his reply brief. See Commonwealth v.
Fahy, 737 A.2d 214, 219 n.8 (Pa. 1999) (noting that “a reply brief cannot be
a vehicle to argue issues raised but inadequately developed in appellant’s
original brief”) (internal citation omitted). In any event, for the reasons
discussed herein, we conclude that there was a sufficient basis for the trial
court to determine that the inevitable discovery exception applied.
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Police directives would have led to the recovery of the drugs and
paraphernalia. See id.Following our review, we conclude Winston’s arguments do not establish
an error in the trial court’s suppression ruling. Winston’s focus on Trooper
Slavin’s improper search of the car is misplaced. Even if Trooper Slavin
improperly searched the car, the Commonwealth’s invocation of the inevitable
discovery doctrine required the trial court to consider whether, absent
misconduct, troopers would have inevitably discovered the evidence.7 See
King, 259 A.3d at 522. Here, the Commonwealth presented the trial court
with Trooper Slavin’s testimony, the State Police directives, and a dash-cam
recording, all of which showed troopers had a basis to tow the car for public
safety reasons, would have conducted an inventory search, and would have
inevitably found the contraband in the car. See N.T. Suppression Hearing,
4/20/21, at 17-18 (indicating that the Commonwealth marked a
memorandum concerning directive FR-1-4 as Exhibit CS2, and Trooper Slavin
testified that that directives would have required that the car be towed and
____________________________________________
7 If the sole issue at the suppression hearing were the propriety of Trooper
Slavin’s search of the vehicle, we might agree that the search was conducted
as part of a criminal investigation and not an inventory search. See White,
669 A.2d at 903. However, our analysis in this appeal is limited to the trial
court’s conclusion that troopers would have recovered the contraband during
an inventory search, not whether Trooper Slavin found the contraband during
an inventory search. See King, 259 A.3d at 522. The White Court did not
address the specific issue of inevitable discovery. See White, 669 A.2d at
903.
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an inventory search performed);8 see also Exhibit C1 (dash-cam video
showing that the car was stopped on a narrow shoulder close to a lane of
traffic). The State Police directives also provided that an inventory search
would have permitted troopers to open the containers in the vehicle. See
Exhibit CS2 at 9 (stating that unlocked or unsealed container shall be opened
and searched during an inventory search). Accordingly, troopers performing
an inventory search would inevitably have found the contraband inside the
bags. Thus, the trial court’s findings and its legal conclusions that the
inevitable discovery rule applied have record support, and we will not disturb
its suppression ruling. See King, 259 A.3d at 522; Bailey, 986 A.2d at 862-
63.
Winston next challenges the trial court’s decision to reopen the record
to allow the Commonwealth to supplement the stipulated non-jury trial record
with the preliminary hearing transcript. By way of further factual background,
we summarize the record relevant to this issue as follows. Following a
colloquy on Winston’s trial rights, Winston elected to proceed to a non-jury
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8 The Commonwealth marked the State Police directives as Exhibit CS2, but
did not formally move to admit Exhibit CS2 into evidence. However, the
exhibits from the suppression hearing in the record contain Exhibit CS2, and
both Winston and the Commonwealth refer to the substance of the directives
in their appellate briefs. See Winston’s Brief at 24 (noting that the directives
required the creation of a property record form that the Commonwealth did
not produce); Commonwealth’s Brief at 13 (discussing scope of the inventory
search required by the directives); Winston’s Reply Brief at 4 (asserting that
the Commonwealth failed to establish Trooper Slavin complied with the
directives). We therefore conclude that Winston has waived any formal defect
in the inclusion of the directives as part of the suppression record, and we will
refer to it in this appeal.
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trial and agreed to the court rendering a decision based on the record. See
N.T. Stipulated Non-Jury Trial, 12/21/21, at 6-7. The Commonwealth then
represented that the record before the court consisted of: the suppression
hearing transcript; the laboratory report stating that the white powder found
in the bag behind Winston contained cocaine; the criminal complaint; and the
dash-cam video. See id. at 7-10. The Commonwealth thereafter rested, and
Winston began his closing argument with a claim that the trial court should
not find him guilty of PWID because the evidence did not establish his
constructive possession of the cocaine in the car. See id. at 10-13. However,
when Winston’s counsel asserted that the Commonwealth’s evidence did not
establish his intent to deliver the cocaine, see id. at 13-14, the following
exchange occurred:
[The Commonwealth]: Your Honor, if we could stop for a
moment? I agree to a stipulated bench [trial] with . . . the
understanding that there’s going to be an appeal with regard to
the suppression hearing. If counsel is now going to argue
arguments that would entail testimony from experts, then I would
ask that this matter be listed for a jury trial. That was not my
understanding of the reason for a stipulated bench [trial].
****
. . . And we’re talking about testimony that would not have
been presented at a suppression hearing where this is totally
distinct argument which would require testimony from an expert
and that would be a matter for a jury, so if that’s the argument
that’s now being made, I am not in agreement to a . . . waiver of
a jury trial.
[Winston’s Counsel]: . . . Judge, I was very clear when we
conferenced this case that I was not . . . conceding guilt and . . .
we were contesting the elements of the offense and that’s why
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I'm making argument here. And the Commonwealth knew I was
going to make argument on --
[The Commonwealth]: . . . Your Honor, I find that to be
disingenuous because all the conversations we’ve had in the back
had to do with this being a constructive possession case. If we’re
going to now do a sneak attack and contest whether this is actual
intent to deliver, then I request a jury trial. . . .
****
. . . And Mr. Winston can go facing [sic] the jury, but I am
not in agreement at this point. . . .
[Defense Counsel]: Judge, there’s no sneak attack here and
I resent the allegation that it is. I let the [c]ourt know that . . .
we were contesting every element of the offense. I said definitely
possession and probably intent.
[The Commonwealth]: No, that was never said, Your
Honor. . . .
****
THE COURT: I think that . . . there seems to be some
misunderstanding as to what was going to be presented here by
way of factual argument and legal argument. There has to be a
meeting of the minds. They both have to -- both sides have to
agree to a waiver. . . . This seems to be a pretty fundamental
difference . . ..
Id. at 14-16.
After a discussion off the record, the trial court ruled as follows:
. . . [W]e’re still in closing argument for [the d]efense. I
think there has been discussion about notes of the preliminary
hearing be[ing] admitted [and] being marked as C-5.[9]
****
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9Winston renewed his objection to supplementing the record arguing that the
Commonwealth had rested its case. See N.T. Stipulated Non-Jury Trial,
12/21/21, at 17-18.
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Based on the fact that there seems to be . . . a
misunderstanding between counsel, this [c]ourt finds in a matter
of completeness and fairness that the notes of the preliminary
hearing will be marked and admitted into evidence, noting the
objection of [Winston’s counsel].
Id. at 17-18.
When reviewing a trial court’s decision to reopen a trial record, we
employ an abuse of discretion standard. See Commonwealth v. Baldwin,
58 A.3d 754, 763 (Pa. 2012); Commonwealth v. Tharp, 575 A.2d 557, 559
(Pa. 1990). The trial court may reopen a record after the parties rest their
cases to prevent “a failure or miscarriage of justice.” Baldwin, 58 A.3d at
763 (internal citations and quotations omitted). Factors relevant to a decision
to reopen a trial record include: the timing of the request to open; the nature
of the proffered testimony or evidence; the reasons for and reasonableness of
the late proffer; and the relative weight of the proffered evidence versus the
potential for disruption or prejudice. See id.
Winston contends that all relevant factors for reopening the record
weighed against the Commonwealth. See Winston’s Brief at 26-28. Winston
argues that the Commonwealth had no excuse for its failure to include the
preliminary hearing transcript in the record before it rested and that its belated
request, during his closing argument, resulted in prejudice. See id. at 27-28.
Winston concludes that he is entitled to a remand for a consideration of his
guilt based on the record without the preliminary hearing transcript. See id.
at 30.
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As noted above, the trial court determined that there was a
misunderstanding of the scope of agreement that affected the
Commonwealth’s decision to agree to a non-jury trial. N.T. Stipulated Non-
Jury Trial, 12/21/21, at 16-17. The trial court ultimately ruled that as a matter
of “completeness and fairness,” it would admit the transcript of the preliminary
hearing. Id. at 18.
Following our review, we conclude that the trial court’s findings have
support in its record and the court properly reopened the record. The
Commonwealth interposed its objection as soon as Winston began challenging
the intent element of PWID, and the trial court found there was a fundamental
misunderstanding as to the scope of the factual and legal issues for the
stipulated non-jury trial. See id. at 14-18. The trial court implicitly found
this misunderstanding to be reasonable, notwithstanding Winston’s counsel’s
argument that he had consistently preserved his right to challenge intent at
the stipulated non-jury trial. See id. Furthermore, the preliminary hearing
transcript containing Trooper Solerno’s expert opinions concerning the intent
element of PWID was highly probative and its admission was not unduly
disruptive or prejudicial under the circumstances of this case. Thus, we
conclude that the trial court did not abuse its discretion when it reopened the
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record for “completeness and fairness.”10 Id. at 18; see Tharp, 575 A.2d at
559.
In his last two issues, Winston challenges the sufficiency of the
evidence. Winston, in his third issue, challenges the sufficiency of the
evidence that he possessed the drugs or paraphernalia found in the car. In
his fourth issue, he contends that the evidence was insufficient to find him
guilty of conspiracy to commit PWID. These arguments are related, and we
address them together.
Questions concerning the sufficiency of the evidence are questions of
law, and our standard of review is de novo, and our scope of review is plenary.
See Commonwealth v. Mikitiuk, 213 A.3d 290, 300 (Pa. Super. 2019). 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
____________________________________________
10 To the extent Winston asserts that the admission of the preliminary hearing
transcript altered his understanding of the scope of the stipulated non-jury
trial, he, like the Commonwealth, had the option to demand a full trial or a
jury trial. He did not so do.
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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.
Commonwealth v. Perez, 931 A.2d 703, 706-07 (Pa. Super. 2007) (internal
citation omitted).
As for possession, the Commonwealth may establish possession of a
controlled substance or paraphernalia by proving actual or constructive
possession. If contraband is not discovered on the defendant’s person, the
Commonwealth may prove that the defendant had constructive possession of
the contraband. Constructive possession means the defendant had an ability
to exercise conscious dominion over the contraband, that is, that he had the
power to control the contraband and the intent to exercise that control. See
Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa. Super. 2014) (en banc).
“[T]he power and intent to control the contraband does not need to be
exclusive to the defendant[,]” and “constructive possession may be found in
one or more actors where the item [at] issue is in an area of joint control and
equal access.” Id. (internal citation and quotations omitted). However, if
another person has equal access to the location of the contraband, “presence
alone in conjunction with such access will not prove conscious dominion over
the contraband.” Id. (internal citation and quotations omitted).
Regarding conspiracy, a person commits criminal conspiracy with
another person or persons if, “with the intent of promoting or facilitating [a
crime’s] commission he . . . agrees with such other person or persons that
they or one or more of them will engage in conduct which constitutes such
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crime or an attempt or solicitation to commit such crime.” 18 Pa.C.S.A.
§ 903(a). The essence of a criminal conspiracy is a common understanding
or agreement that a particular criminal objective be accomplished. See
Commonwealth v. Munson, 261 A.3d 530, 542 (Pa. Super. 2021).
Circumstantial evidence may provide proof of the conspiracy. The
conduct of the parties and the circumstances surrounding such
conduct may create a “web of evidence” linking the accused to the
alleged conspiracy beyond a reasonable doubt. Additionally:
An agreement can be inferred from a variety of
circumstances including, but not limited to, the relation
between the parties, knowledge of and participation in the
crime, and the circumstances and conduct of the parties
surrounding the criminal episode. These factors may
coalesce to establish a conspiratorial agreement beyond a
reasonable doubt where one factor alone might fail.
Perez, 931 A.2d at 708 (internal citation omitted). Where the Commonwealth
establishes a conspiracy to commit PWID, for example, a co-conspirator will
be fully liable for all drugs recovered without the necessity of proving
constructive possession. See id. at 709.
Winston, in challenging the sufficiency of the evidence that he
constructively possessed the cocaine and the paraphernalia and was liable for
PWID as a co-conspirator, argues that he was merely present in the car. See
Winston’s Brief at 36, 38-39. Winston asserts that no evidence or combination
of circumstances proved that he was aware of the contraband in the car or
that he agreed to possess the cocaine and the paraphernalia or deliver the
cocaine. See id. at 39.
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The trial court, after reciting the relevant law, engaged in a relatively
brief analysis of these issues opining that the evidence supported its verdicts
because “[Winston] was the driver of the vehicle (passenger was the owner)
which contained illegal substances, packaging material[,] and [Winston]
admitted to marijuana being in the vehicle.” Trial Court Opinion, 5/31/22, at
7.
Upon a review of the record adduced at the stipulated non-jury trial and
mindful of our standard of review, we discern no merit to Winston’s mere
presence arguments. Trooper Slavin testified that after he stopped McClary’s
vehicle, he approached the car and found that Winston was driving McClary’s
car, and McClary was in the passenger seat. See N.T. Suppression Hearing,
4/20/21, at 9. Winston had his “hands up during the initial encounter and
approach” and appeared to be “pretty nervous.” Id. at 12. Winston told the
trooper that his license was suspended, but McClary had asked him to drive.
See id. at 9; see also Exhibit C1 (dash-cam video) at 2:25 to 2:30. After
Trooper Slavin had Winston exit the car and frisked him, Winston stated that
he had marijuana on his person, and the trooper recovered marijuana and an
empty baggie from Winston’s pocket.11 See N.T., Suppression Hearing,
4/20/21, at 13; N.T., Preliminary Hearing, 9/8/20, at 9; see also Exhibit C1
____________________________________________
11 We note that the affidavit of probable cause attached to the criminal
complaint indicates that Winston had “two clear green baggies” on his person
that was “consistent with drug paraphernalia.” See Affidavit of Probable
Cause, 5/13/20, at 2; see also N.T., 12/21/21, at 8 (admitting the affidavit
of probable cause as Exhibit C3).
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at 10:13. When the trooper asked how Winston knew McClary, Winston
described McClary as “like an uncle.” See Exhibit C1 at 10:44. Winston also
stated that he was wearing McClary’s jacket. See id. at 11:09. When the
trooper asked if there was anything else in the car, Winston responded, “[J]ust
weed.” N.T., Suppression Hearing, 4/20/21, at 13; see also Exhibit C1 at
11:55 (indicating that Trooper Slavin stated Winston told him there may be a
“little bit of weed in a bag,” which the trooper had not yet seen).
After having McClary exit the car, Trooper Slavin searched the car and
recovered, from around the front passenger seat where McClary had been
seated, a black plastic shopping bag that was “tightly tied.” N.T., Preliminary
Hearing, 9/8/20, at 10, 23. Upon opening the black bag, Slavin discovered a
clear plastic bag containing a white powdery substance. See N.T.,
Suppression Hearing, 4/20/21, at 14.
On the rear passenger seat directly behind the driver’s side seat, the
trooper recovered a zippered bag. See id. at 15. The zippered bag contained
another clear baggie containing a white powdery substance. See id. Next to
the zippered bag, the trooper discovered a clear measuring cup and a towel.
See id. Testing revealed that the bag of white powder from the black
shopping bag found beside co-defendant McClary’s seat was not a controlled
substance. See Exhibit C4 (laboratory report). The bag of white powder from
the zippered bag behind the driver’s seat tested positive as cocaine with a net
weight of over thirty grams. See id. Trooper Solerno, the Commonwealth’s
expert, testified that the non-narcotic white powder beside McClary and the
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measuring cup behind Winston was consistent with paraphernalia used to
“break down the cocaine and make crack cocaine, which could then be . . .
sold for a lower amount to have a larger profit.” N.T. Preliminary Hearing,
9/8/20, at 31-32. Trooper Solerno stated that the purchase price of the
cocaine was approximately $1,500. See id. at 31.
Based on the foregoing record, which we must read in a light most
favorable to the Commonwealth as the verdict winner, we conclude that there
was sufficient evidence that Winston and co-defendant McClary had entered
into a conspiracy to possess the cocaine and the paraphernalia used to convert
and distribute the cocaine in a different, higher-profit form. To the extent
Winston argues that he was merely present and could not have known about
the drugs and paraphernalia in the car, the circumstantial evidence in the
record belies his claims. Winston had a close relationship to McClary and was
driving McClary’s car despite both having suspended driver’s licenses.
Winston possessed at least one empty baggie that Trooper Slavin considered
to be drug paraphernalia. The zippered bag containing thirty grams of cocaine
and the measuring cup were on the seat directly behind the driver’s seat,
where Winston had been seated. Winston, according to Trooper Slavin,
exhibited nervousness on the trooper’s approach, and he attempted to
minimize the nature of the contraband located in the car by indicating that
there was only marijuana in the car.
Viewing the totality of these circumstances, we conclude there was a
“web of evidence” from which a fact finder could reasonably infer the existence
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of the conspiracies to commit PWID and possess drug paraphernalia. See
Perez, 931 A.2d at 708. Winston’s arguments ultimately go to the weight of
the Commonwealth’s evidence, not its sufficiency, and the evidence and
reasonable inference therefrom were not so weak or inconclusive as to upset
the trial court’s finding that Winston and McClary agreed to and engaged in a
conspiracy to commit PWID and to possess the related paraphernalia.12
Because the Commonwealth established conspiracy to commit PWID and
possession of paraphernalia, we need not address Winston’s issue concerning
constructive possession of the cocaine and the paraphernalia separately. See
id. at 709.
Judgment of sentence affirmed.
____________________________________________
12 Winston, for example, insists that the dash-cam recording did not support
Trooper Slavin’s testimony that Winston appeared nervous. However, Trooper
Slavin testified that Winston appeared nervous when the trooper initially made
contact with him, when Winston was inside the car. The dash-cam recording
did not show Winston’s demeanor when he was inside the car. Similarly, given
the location of the cocaine in the zippered bag directly behind Winston, a court
was entitled to reject his argument that he was unaware of the presence of
the cocaine because it was not in plain view. Given the value of the cocaine
and the other paraphernalia in the car, it is reasonable to infer that neither
Winston nor McClary had simply left the cocaine and paraphernalia in the car
for any length of time, but, at the time of the stop, they had either recently
purchased the drugs or were transporting the drugs and paraphernalia to
prepare the cocaine in the near future for distribution.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/2/2023
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