J-A01013-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

IAN BRADLEY CORBIN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 704 EDA 2022

Appeal from the Judgment of Sentence Entered February 14, 2022

In the Court of Common Pleas of Lehigh County Criminal Division at 

No(s): CP-39-CR-0005062-2019

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and COLINS, J.*

MEMORANDUM BY LAZARUS, P.J.: FILED MARCH 14, 2024

Ian Bradley Corbin appeals, pro se, from the judgment of sentence, 

entered in the Court of Common Pleas of Lehigh County, after a jury convicted 

him of two counts of manufacture, delivery, or possession with intent to 

manufacture or deliver (heroin and fentanyl/heroin) (PWID)1 and one count 

of possession of a controlled substance (heroin and cocaine).

2 After review, 

we affirm.

The trial court set forth the facts and procedural history of this case as 

follows:

On October 8, 2019[,] at approximately 9:24 a.m., Officer Kyle 

French was dispatched for a report of a domestic disturbance 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30).

2 Id. at § 780-113(a)(16).
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involving a knife. He received a description of [Corbin] and was 

told the suspect was headed to a 7-[Eleven] store on 

Susquehanna Street in Allentown, Lehigh County, Pennsylvania. 

Officer French and Officer Andrew Holvec[k] made contact with 

[Corbin] as he was walking back from the 7-[Eleven] store[.] 

[Corbin] was patted down due to possibly having a knife. Officer 

French felt something in [Corbin’s] pocket[,] which he testified he 

immediately recognized as the packaging for marijuana. He 

reached in [Corbin’s] pocket and found black latex gloves with two 

bags of an off-white powdery substance and small, rock-like[,]

white substance. Officer French also located blue wax baggies. 

The substances field tested positive as heroin and cocaine. 

In the meantime, Officer Holvec[k] followed up with the victim, 

Jessica Maxfield. [] Maxfield indicated [Corbin] woke up angry 

and could not find his drugs. She is a drug user and she admitted 

to previously stealing drugs from [Corbin], who she identified as 

a drug dealer. [] Maxfield indicated that [Corbin] accused her of 

stealing his drugs, then pulled a knife on her and threatened to 

kill her if she did not find the drugs. She provided Officer 

Holvec[k] a written statement to that effect.

Trial Court Opinion, 4/5/23, at 2-3 (unnecessary capitalization omitted).

Corbin was charged with the aforementioned drug offenses. On June 

10, 2020, Corbin filed a motion to suppress evidence due to lack of probable 

cause. The court held a hearing on April 29, 2021, denied the motion to 

suppress, and scheduled the case for trial. See Order, 5/25/21. Prior to trial, 

Corbin insisted on proceeding pro se, and the court appointed Robert E. 

Sletvold, Esquire, as standby counsel. 

Following a two-day trial, the jury convicted Corbin of all three charges. 

The court ordered a presentence investigation report (PSI) and, on February 

14, 2022, sentenced Corbin to an aggregate term of 51⁄2 to 12 years’ 

imprisonment. On March 7, 2022, Corbin filed a pro se notice of appeal. On 

March 8, 2022, the court entered an order directing Corbin file a Pa.R.A.P. 
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1925(b) concise statement of errors complained of on appeal. On March 18, 

2022, Corbin filed a pro se post-sentence motion, which the court denied 

based on the fact that Corbin had already filed his notice of appeal. See 

Pa.R.A.P. 1701(a) (except as otherwise prescribed, after appeal is taken, trial 

court may no longer proceed further in matter). Corbin filed his Rule 1925

(b) statement on April 8, 2022 after the court granted his request for an 

extension of time.

On April 21, 2022, Corbin filed a second pro se notice of appeal and a 

motion for bail pending appeal, which the trial court granted. On appeal, this 

Court remanded for appointment of counsel, and the trial court appointed 

Matthew Rapa, Esquire, to represent Corbin. On June 3, 2022, Corbin was 

convicted in an unrelated criminal matter; the trial court revoked Corbin’s bail, 

and Corbin filed a third pro se notice of appeal on June 28, 2022. 

On or about July 22, 2022, Attorney Rapa advised the court that 

he would be withdrawing the duplicative appeals [Corbin had] 

filed. The same day, the court entered an order directing counsel 

to file an amended [Rule 1925] concise statement identifying any 

issues [Corbin] sought to raise on appeal so that [he] would not 

be inadvertently prejudiced by the discontinuance of his serial 

appeals. The counseled concise statement was filed on August 

11, 2022. 

The court issued a [Rule] 1925(a) opinion on August 25, 2022. 

On August 30, 2022, [Corbin] filed a motion for withdrawal of 

counsel in [the trial] court while his matter was on appeal to the 

Superior Court. The counseled concise statement was filed on 

August 11, 2022. On October 4, 2022, the Superior Court 

remanded the matter with instructions for the court to conduct an 
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on-the-record Grazier[3] hearing. The court held that hearing on 

October 24, 2022 and[,] at the close of that hearing[,] granted 

court-appointed counsel leave to withdraw and [permitted Corbin]

to represent himself. The matter was then returned to the 

Superior Court.

Trial Court Opinion, 4/5/23, at 4-5 (unnecessary capitalization omitted). 

Thereafter, in November 2022, Corbin filed several pro se motions. This 

Court remanded the case once again and directed the trial court to provide 

Corbin with any requested notes of testimony and documents deemed 

necessary and relevant to Corbin’s issues on appeal and directed Corbin to file

a Rule 1925(a) concise statement within twenty-one days of receipt of those 

materials.4 Both Corbin and the trial court have complied with Rule 1925.

Corbin raises the following issues on appeal:

1. Did law enforcement officers exceed permissible bounds 

during a Terry[5] stop and frisk, and unlawfully enter 

[Corbin’s] pocket and remove items, where: the nature and 

scope of the search were unrelated to the justification that 

prompted the search; the officer was not in fear of [his] 

safety; and the incriminating nature of the contraband was 

____________________________________________

3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

4 On remand, the trial court ordered Corbin to specify materials he needed. 

On January 17, 2023, Corbin filed a pro se request for documentary and other 

evidentiary material, including preliminary hearing transcripts and audio 

recordings and transcripts of a 911 call. On January 31, 2023, the court 

ordered certain material be provided to Corbin, but denied his request for 

preliminary hearing transcripts, as they did not exist. On February 8, 2023, 

Corbin filed his pro se Rule 1925(b) concise statement, but did not serve it on 

the trial court. On March 28, 2023, Corbin filed a pro so “Motion for 

Recognition,” asking the trial court to accept his Rule 1925(b) statement, 

which the court granted on April 4, 2023. 

5 Terry v. Ohio, 392 U.S. 1 (1968).
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not immediately detectable based upon its tactile 

impression, in violation of the plain feel doctrine? 

2. Did law enforcement have probable cause or a warrant to 

subject [Corbin] to a custodial detention, [and] to extend 

the search beyond the scope permissible in Terry[,] for any 

domestic violence allegation or marijuana-related offense, 

prior to the intrusion into [Corbin’s] pocket?

3. Were the statements that were obtained from the 

complainant sufficiently attenuated from the taint of the 

original illegality, as law enforcement officers used illegally 

obtained evidence to [e]licit an incriminating statement 

against [Corbin], whereby the fruit of the poisonous tree 

doctrine would apply?

4. Was the evidence the Commonwealth used during the 

criminal proceedings and trial obtained in violation of Article 

1, Section 8 of the Pennsylvania Constitution[,] and the 

Fourth Amendment of the United States Constitution, 

[guaranteeing] freedom from unreasonable searches and 

seizures, and the Fourteenth Amendment rights to due 

process of law and equal protection under the law, as 

determined by the [United States] Supreme Court?

5. Did the trial court abuse its discretion in denying [Corbin’s] 

petition for writ of habeas corpus/motion to suppress 

evidence and dismiss due to lack of probable cause, 

following an unjustifiably excessive Terry search, illegal 

arrest, and further law enforcement misconduct?

6. Were the comments and conduct of the Commonwealth’s 

agents during the trial proceedings, and in closing argument 

to the jury, prejudicial and biased and [in] violati[on of] 

Article 1, Sections 1 and 9 of the Pennsylvania 

Constitution[,] and the Sixth and Fourteenth Amendments 

of the United States Constitution, denying [Corbin] a fair 

and just trial by an impartial jury?

7. Did the trial court abuse its discretion in failing to provide 

the jury with the affirmative defense of justification (18 

Pa.C.S.A. § 503)?

8. Was the verdict against the weight of the evidence for the 

charge of [PWID] (35 P.S. § 780-113(a)(30))?
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Appellant’s Brief, at 5-6.

We address issues two, four, and five together, as each challenges the 

the lawfulness of the officers’ initial encounter with Corbin.6 Corbin argues 

that law enforcement exceeded the permissible bounds of the Terry stop and 

frisk and violated the plain feel doctrine and, therefore, the drugs seized from 

his pocket were fruit of the poisonous tree and should have been suppressed. 

See Appellant’s Brief, at 13-15, citing Terry, supra and Wong Sun v. 

United States, 371 U.S. 471 (1965). 

In an appeal from the denial of a motion to suppress, our Court’s role is 

to determine whether the record supports the suppression court’s factual 

findings and the legitimacy of the inferences and legal conclusions drawn from 

those findings. Commonwealth v. Turner, 772 A.2d 970, 972 (Pa. Super. 

2001), citing Commonwealth v. Hayward, 756 A.2d 23, 26 (Pa. Super.

2000). Moreover,

[s]ince the prosecution prevailed in the suppression court, we may 

consider only the evidence of the prosecution and so much of the 

evidence for the defense as remains uncontradicted when read in 

the context of the record as a whole. Where the record supports 

the factual findings of the trial court, we are bound by those facts 

and may reverse only if the legal conclusions drawn therefrom are 

in error.

Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa. 2003).

____________________________________________

6 Corbin combines issues 1 and 2 in his first argument section (I) in his brief, 

argues issue 3 in the second argument section (II) of his brief, and argues 

issue 6 in section (V) of his brief, in violation of Pa.R.A.P. 2119(a).
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Initially, we note that for a search to be reasonable under the Fourth 

Amendment of the United States Constitution and Article 1, Section 8 of the 

Pennsylvania Constitution, the police must obtain a warrant, supported by 

probable cause, and issued by an independent judicial officer, prior to 

conducting the search. Commonwealth v. Gary, 91 A.3d 102, 107 (Pa. 

2014). There are several exceptions to the warrant requirement, however, 

and one is relevant here: Terry frisks for officer safety based on an officer’s 

reasonable suspicion that criminal activity is afoot. Id.

It is well-established that a police officer may conduct a brief 

investigatory stop of an individual if the officer observes unusual 

conduct which leads him to reasonably conclude that criminal 

activity may be afoot. Terry, 392 U.S. [at] 30 []. Moreover, if 

the officer has a reasonable suspicion, based on specific and 

articulable facts, that the detained individual may be armed and 

dangerous, the officer may then conduct a frisk of the individual’s 

outer garments for weapons. Since the sole justification for a 

Terry search is the protection of the officer or others 

nearby, such a protective search must be strictly “limited 

to that which is necessary for the discovery of weapons 

which might be used to harm the officer or others nearby.”

Thus, the purpose of this limited search is not to discover 

evidence, but to allow the officer to pursue his 

investigation without fear of violence.

Commonwealth v. Stevenson, 744 A.2d 1261, 1264-65 (Pa. 2000)

(emphasis added; some internal citations omitted). Nevertheless, under 

the plain feel doctrine, an officer

may seize non-threatening contraband detected through 

the officer’s sense of touch during a Terry frisk if the officer 

is lawfully in a position to detect the presence of 

contraband, the incriminating nature of the contraband is 

immediately apparent from its tactile impression[,] and the officer 
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has a lawful right of access to the object. [Minnesota v.] 

Dickerson, 508 U.S. 366[,] 373-75 [(1993).] As Dickerson

makes clear, the plain feel doctrine is only applicable where the 

officer conducting the frisk feels an object whose mass or contour 

makes its criminal character immediately apparent. Immediately 

apparent means that the officer readily perceives, without further 

exploration or searching, that what he is feeling is contraband. If, 

after feeling the object, the officer lacks probable cause to believe 

that the object is contraband without conducting some further 

search, the immediately apparent requirement has not been met 

and the plain feel doctrine cannot justify the seizure of the object.

Id. at 1265 (emphasis added; some internal citations omitted); see also 

Commonwealth v. Pakacki, 901 A.2d 983, 989 (Pa. 2006) (under plain feel 

doctrine, officer may seize nonthreatening contraband detected through 

officer’s sense of touch during Terry frisk if officer is lawfully in position to 

detect presence of contraband, incriminating nature of contraband is 

immediately apparent from tactile impression, and officer has lawful right of 

access to object). 

Here, Officers French and Holveck responded to a “report of a domestic

disturbance in which an African-American male was described as threatening 

a person with a knife.” Trial Court Opinion, 4/5/23, at 8. The report specified 

the male was wearing “a black jacket with white stripes on the sleeves and 

heading toward the 7-[Eleven] on E[ast] Susquehanna Street.” Id. at 8-9. 

Based on the physical description of the suspect, the clothing he wore, and 

the reported location, the officers had reasonable suspicion, based on these 

articulable facts, that Corbin was the suspect in the domestic disturbance 

report and that he was armed with a knife. Given what the officers knew 

about the time, place, and characteristics of the actor, their detention of 
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Corbin was justified. The officers, therefore, did not exceed the permissible 

scope of a Terry pat-down. See Commonwealth v. Cunningham, 287 A.3d 

1, 9 (Pa. Super. 2022) (to demonstrate reasonable suspicion, detaining officer 

must articulate something more than inchoate and unparticularized suspicion 

or hunch, and we examine totality of circumstances through eyes of trained 

officer, not ordinary citizen). 

However, whether the seizure of the contraband was within the 

permissible bounds of the plain feel doctrine is a separate issue. In 

Dickerson, the United States Supreme Court applied the plain feel doctrine 

and found the seizure of the contraband was unconstitutional. 508 U.S. at 

379. There, the officer had determined that the lump was contraband only 

“after squeezing, sliding, and otherwise manipulating the contents of the 

defendant’s pocket—a pocket which the officer already knew contained no 

weapon.” Id. at 378. Since the incriminating character of the lump in 

defendant’s pocket was not “immediately apparent,” the further search of 

defendant’s pocket was unconstitutional and, therefore, the seizure of cocaine 

that followed was likewise unconstitutional. Id. at 379.

Unlike the particular facts in Dickerson, here, the identity of the 

contraband was “immediately apparent” to Officer French during a 

constitutionally permissible pat-down. At the suppression hearing, Officer 

French, a twelve-year veteran of the Allentown Police Department, testified 

that following the dispatch, he arrived at the 7-Eleven at 11 East Susquehanna 

within one to two minutes, located the suspect behind the 7-Eleven store, and 
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approached him while wearing his body-worn camera. See N.T. Suppression 

Hearing, 4/29/21, at 103-06. Officer French stated:

I initially made contact with [Corbin] to identify him because he 

matche[d] the description that we were given as the party 

involved in the domestic. And he does give us his name, but he 

was really—the best way to describe it[,] squirrely, and because 

there was a knife involved, [Officer Holveck and I] were afraid he 

still had it on him. . . . I advised him we were going to detain 

him, pat down for any weapons. He did not want to be detained. 

It appeared he wanted to get away, like he was going to run if he 

had the opportunity. . . . We put handcuffs on him. His hands 

[were] handcuffed behind his back. He was a little resistant to 

that. We struggled a little bit, but nothing overbearing. 

Id. at 107-08. Officer French described the ensuing Terry search as follows:

With my hands, the palm of my hands, [I] started at the 

waistband. That’s typically where a lot of weapons are kept. 

Because the knife was involved, I didn’t know if it was a kitchen 

knife, folding knife. Check his pockets, because you can store a 

folding knife in the pockets, and work my way down. . . . In his 

right front pocket I felt a bulge that was very similar to the feel of 

marijuana. . . . When I felt that bulge, it felt like the feeling of 

marijuana. You could hear like a crinkle, like it was in plastic. At 

that point, I looked up at Mr. Corbin, and I said, “You have 

marijuana on you?” And he said, “No, it’s not marijuana.” [I]

then pulled out that item. . . . It was a black latex glove inside 

another black latex glove. Inside that glove was a plastic bag full 

of rice with loose heroin in it, a bundle of heroin, as well as two 

cocaine rocks.

Id. at 108-11. Thereafter, Officer French testified that he had performed at 

least 20 prior pat-downs where he found marijuana, id. at 112, and his tactile 

impression that the bulge was marijuana was “based on [his] training and 

experience.” Id. at 127. The questioning continued:

BY MR. CORBIN:
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Q: [] So would you say—you said on prior statements and 

prior hearings that you did manipulate my pocket, right?

A: After the first time I felt it, yeah. . . . After I felt what I 

believed to be the marijuana, and I did grab it, yes. 

Id. at 126-28 (emphasis added).

This testimony confirms that, unlike the pat-down in Dickerson, here 

there was no “sliding, and otherwise manipulating” the baggie in order to 

ascertain its contents—Officer French testified that he immediately recognized 

that the bulge consisted of a controlled substance, what he believed was 

marijuana. There is nothing in the record to suggest that Officer French

further manipulated the bulge in order to determine its identity. See id. at 

111 (“When I felt that bulge, it felt like the feeling of marijuana. You could 

hear like a crinkle, like it was in plastic.”). See also Commonwealth v. 

Johnson, 631 A.2d 1335, 1336 (Pa. Super. 1993) (lawful Terry search

included crunching and squeezing). The fact that the suspected marijuana 

was actually heroin/fentanyl and cocaine is of no moment. Furthermore, 

Officer French was still in the process of frisking Corbin for weapons; he had 

not already concluded that no knife was present on Corbin’s person. 

Therefore, under these facts, we conclude that Officer French had probable 

cause to believe what he felt was contraband and that he was “both justified 

and duty-bound under Dickerson to seize such contraband.” In Interest of 

B.C., 83 A.2d 919, 926 (Pa. Super. 1996); see also Commonwealth v. 

Stevenson, 744 A.2d 1261, 1265 (Pa. 2000) (under plain feel doctrine “a 

police officer may seize non-threatening contraband detected through the 
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officer’s sense of touch during a Terry frisk if the officer is lawfully in a position 

to detect the presence of contraband, the incriminating nature of the 

contraband is immediately apparent from its tactile impression[,] and the 

officer has a lawful right of access to the object.”). Cf. Commonwealth v. 

Mesa, 683 A.2d 643, 647 (Pa. Super. 1996) (absent testimony officer felt 

possible weapon or recognized item to be contraband, police officers are not 

justified in conducting intrusive search).

In issue three, Corbin argues the statements obtained from the 

complainant were “fruit of the poisonous tree,” and, therefore, were 

inadmissible.7 Appellant’s Brief, at 26, 32. Because we have determined that 

the Terry search and the ensuing seizure of the contraband were valid, the 

fruit of the poisonous tree doctrine does not apply. See Commonwealth v. 

Shabezz, 166 A.3d 278, 290 (Pa. 2017) (evidence constitutes “fruit of the 

poisonous tree,” and must be suppressed, if it was obtained by exploitation of 

illegality of seizure), citing Wong Sun, 371 U.S. at 476. 

Next, Corbin argues the Commonwealth committed prosecutorial 

misconduct during opening statements, trial, and in closing argument to the 

jury. See Appellant’s Brief, at 46. He claims the prosecutor’s comments were 

____________________________________________

7 At trial, the Commonwealth introduced a handwritten statement by the 

complainant, provided to Officer Holveck, in which the complainant wrote, 

“woke up talking bout (sic) missing drugs & pulled a knife said if I dont (sic) 

find the stuff he[’]ll kill me[.]” See Exhibit C-6; N.T. Jury Trial, 12/3/21, at 

137, 179.
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prejudicial and biased, and he was denied a “fair and just trial[.]” Id. No 

relief is due.

In reviewing a claim of prosecutorial misconduct, we are limited to 

determining whether the trial court abused its discretion. Commonwealth 

v. Hall, 701 A.2d 190, 198 (Pa. 1997). Further, we are mindful that a 

defendant is entitled to a fair trial, not a perfect one. Commonwealth v. 

Rios, 721 A.2d 1049, 1054 (Pa. 1998). Even if a prosecutor’s remarks are 

intemperate or improper, relief is warranted only if the unavoidable effect of 

the remarks is so prejudicial as to form in the jury’s mind hostility and bias 

toward the defendant, such that the jury could not weigh the evidence 

objectively and render a true verdict. Commonwealth v. Ragan, 742 A.2d 

390, 404 (Pa. 1999); Commonwealth v. Ervin, 766 A.2d 859, 864 (Pa. 

Super. 2000). 

Corbin takes issue with the prosecutor’s opening and closing 

statements, which portrayed Corbin as a drug dealer—the theory of the 

prosecution’s case based on the amount and packaging of the drugs found on 

Corbin’s person. “A prosecutor is generally allowed to vigorously present and 

argue his case, as long as the comments are supported by evidence and 

contain inferences which are reasonably derived from that evidence.” 

Commonwealth v. LaCava, 666 A.2d 221, 231 (Pa. 1995), citing 

Commonwealth v. Hardcastle, 546 A.2d 1101, 1109 (Pa. 1988). Our 

Supreme Court has consistently held that prosecutorial misconduct “will not 

be found where comments were based on evidence or proper inferences 
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therefrom or were only oratorical flair.” Commonwealth v. Johnson, 289 

A.3d 959, 1039 (Pa. 2023), citing Commonwealth v. Clancy, 192 A.3d 44, 

58 (Pa. 2018). 

Here, the prosecutor’s comments did not create a misleading 

characterization but, rather, were consistent with the evidence and testimony 

presented. We find no abuse of discretion. Hall, supra.

Corbin next argues that the court’s failure to sequester witnesses, in 

particular Detective Matthew Trettor, who testified on behalf of the 

Commonwealth as an expert in drug packaging and trafficking amounted to 

prosecutorial misconduct. See Appellant’s at 49. Corbin did not include this 

claim in his Rule 1925(b) statement and, therefore, it is waived. See

Pa.R.A.P. 1925(b)(4)(vi) (issue not included in Rule 1925 statement and/or 

not raised in accordance with Rule 1925(b)(4) are waived).

8

Corbin also argues that the prosecutor’s questioning of defense witness, 

Ms. Maxfield, the complainant, amounted to witness intimation. See

Appellant’s Brief, at 53. This claim, too, is waived because Corbin failed to 

include it in his Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vi). 

____________________________________________

8 Even if not waived, this claim is meritless. The purpose behind Pennsylvania 

Rule of Evidence 615, the rule permitting sequestration, is to prevent a 

witness from molding his or her testimony to the testimony of other witnesses. 

Detective Tretter was not a fact witness and, therefore, the sequestration 

order did not apply to him. Detective Tretter’s expert testimony was essential 

to the presentation of the Commonwealth’s case, see Pa.R.E. 615(3), and it 

was necessary that he hear the factual basis of the charges in order for him 

to give his opinion. 
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In his next issue, Corbin argues the trial court abused its discretion in 

failing to provide the jury with an instruction on the affirmative defense of 

justification. See Appellant’s Brief, at 57-58, citing 18 Pa.C.S.A. § 503.

Corbin contends that his defense was premised on the theory that he 

possessed the narcotics to protect Maxfield and her unborn child, insofar as 

he was preventing Maxfield, who admitted to a thirteen-year heroin addiction, 

from using the drugs. 

Our standard of review regarding jury instructions is well established:

We review jury instructions for a clear abuse of discretion or an 

error of law. A jury charge is erroneous only if the charge as a 

whole is inadequate, not clear, or has a tendency to mislead or 

confuse a material issue. The trial court properly gives a jury 

instruction if there is an evidentiary basis on which the jury 

could find the element, offense, or defense that is the 

subject of the instruction. 

Commonwealth v. Hall, 199 A.3d 954, 963 (Pa. Super. 2018) (citations 

omitted) (emphasis added). 

Corbin argues:

[Corbin] could reasonably expect that his actions would be 

effective to avoid greater harm or evil in possessing the drugs to 

prevent Ms. Maxfield from ingesting substances that could be 

harmful to her and her pregnancy. (See N.T. 12/3/21, at 132 

(Ms. Maxfield’s addiction results in a miscarriage)). [] This case 

provides a very unique and authentic situation, regarding factual 

elements and the application of the law, in regard to: Possession

of a Controlled Substance []; Possession with Intent to 

Manufacture or Deliver []; and the affirmative defense of 

justification. [] There can be no debate as to the harm or evil that 

is inherent in the use, abuse, and addiction of drugs[,] which is 

even more elevated when it relates to heroin and fentanyl. It can 

also be considered morally reprehensible [] for [Corbin], in failing
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to act, [to] have allowed Ms. Maxfield to consume the drugs in 

question without removing them from her presence when he had 

knowledge of their existence, especially considering her being 

pregnant with his offspring. 

Appellant’s Brief, at 63.

Section 503 provides:

(a) General rule.--Conduct which the actor believes to be 

necessary to avoid a harm or evil to himself or to another is 

justifiable if:

(1) the harm or evil sought to be avoided by such conduct 

is greater than that sought to be prevented by the law 

defining the offense charged;

(2) neither this title nor other law defining the offense 

provides exceptions or defenses dealing with the specific 

situation involved; and

(3) a legislative purpose to exclude the justification claimed 

does not otherwise plainly appear.

(b) Choice of evils.--When the actor was reckless or negligent in 

bringing about the situation requiring a choice of harms or evils or 

in appraising the necessity for his conduct, the justification 

afforded by this section is unavailable in a prosecution for any 

offense for which recklessness or negligence, as the case may be, 

suffices to establish culpability.

18 Pa.C.S.A. § 503 (emphasis added).

Following our review, we agree with the trial court’s conclusion that a 

justification defense was not available to Corbin. In order to be entitled to an 

instruction on justification by necessity as a defense to a crime charged, 

Corbin would have had to offer evidence to show: (1) there was a clear and 

imminent harm to Ms. Maxfield; (2) he could reasonably expect that his 

actions would be effective in avoiding the harm; (3) there was no legal 
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alternative effective to abate the harm; and (4) the legislature has not 

precluded the defense by a clear and deliberate choice regarding the values 

at issue. See Commonwealth v. Capitolo, 498 A.2d 806, 809 (Pa. 1985) 

(holding that if defendant’s proffer on one element of justification is deficient, 

“the trial court has the right to deny use of the defense and not burden the 

jury with testimony supporting other elements of the defense”).

Here, the trial court concluded that, although subsections (a)(2) and 

(a)(3) may have been met, the evidence did not establish that “the harm or 

evil sought to be avoided by such conduct is greater than that sought to be 

prevented by the law defining the offense charged[.]” See N.T. Jury Trial, 

supra at 181. See also 18 Pa.C.S.A. § 503(a)(1). Corbin was in possession 

of the following: Item 1.1—bag containing .55 grams of cocaine; Item 1.2—

bag containing 1.25 grams of heroin; Item 1.3—bag containing 7.15 grams of 

heroin and fentanyl; and Item 1.4—10 glassine packets each of .02 grams 

heroin and phenobarbital. See N.T. Jury Trial, supra at 61-63. The amount 

and packaging of the drugs aside, the trial court noted that Corbin could easily 

have disposed of the drugs before he left the residence. As a result, the court 

determined that since there was no evidence of clear and immediate harm, 

Corbin did not meet the requirements of subsection (a)(1). We agree. Though 

Corbin presents a sympathetic argument, his claim that his possession of the 

drugs was justified by necessity is implausible. The trial court, therefore, did 

not abuse its discretion in refusing Corbin’s request for an instruction on the 

defense of justification. Hall, supra. 
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Corbin’s final issue on appeal challenges the weight of the evidence with 

respect to his conviction of PWID. A challenge to the weight of the evidence 

must be preserved by a motion for a new trial. See Pa.R.Crim.P. 607(A)

(claim that verdict was against weight of evidence shall be raised with trial 

judge in motion for new trial orally, on the record, before sentencing, by 

written motion before sentencing, or in post-sentence motion). As stated 

above, Corbin filed a post-sentence motion on March 18, 2022,

9 after he had 

filed his notice of appeal. The trial court had no jurisdiction to act on the 

motion and, therefore, we conclude Corbin did not properly preserve his 

weight of the evidence claim. See Commonwealth v. Thompson, 93 A.3d 

478, 490 (Pa. Super. 2014) (failure to properly preserve weight claim will 

result in waiver, even if trial court addresses issue in opinion).10 

Judgment of sentence affirmed. 

____________________________________________

9 This motion was untimely filed. See Pa.R.Crim.P. 720(A)(1) (post-sentence 

motion shall be filed within ten days of sentencing). 

10 Even were we to address this claim, we would find it meritless. “The jury 

was free to make credibility determinations and accept or reject [Corbin’s] 

testimony, and all the other testimony, as it chose.” Commonwealth v. 

West, 937 A.2d 516, 522 (Pa. Super. 2007). As this Court has repeatedly 

stated, it not our function to re-weigh the evidence. See Commonwealth v. 

Sanchez, 262 A.3d 1283, 1288-89 (Pa. Super. 2021) (“[I]t is not the function 

of the appellate court to substitute its judgment based on a cold record for 

that of the trial court. The weight to be accorded conflicting evidence is 

exclusively for the fact finder, whose findings will not be disturbed on appeal 

if they are supported by the record.”) (emphasis added; citations omitted); 

see also Commonwealth v. Delmonico, 251 A.3d 829, 837 (Pa. Super. 

2021); Commonwealth v. Collins, 70 A.3d 1245, 1251 (Pa. Super. 2013);

Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa. Super. 2000).
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Date: 3/14/2024