J-A16013-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JODI SHANE HOWELL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 959 WDA 2023

Appeal from the Judgment of Sentence Entered April 4, 2023

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

No(s): CP-26-CR-0001407-2022

BEFORE: KUNSELMAN, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED: AUGUST 5, 2024

Jodi Shane Howell appeals from the judgment of sentence entered 

following his conviction of two counts of possession, two counts of possession 

with intent to deliver,1 and other offenses which arose after a police chase. 

We affirm.

The trial court detailed the pertinent facts and evidence presented at 

trial as follows:

Thomas Patton, a Connellsville Police Officer and a member 

of the Fayette County Bureau of Investigations, testified that on 

July 13, 2022, he received information that [Howell] was 

operating a silver Nissan with dealer plates and that he possessed 

heroin and cocaine on his person. At approximately eight o’clock 

in the evening, while operating an unmarked vehicle, Officer 

Patton located the vehicle. He followed the vehicle until he was 

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1 35 P.S. §§ 780-113(a)(16) and (a)(30).
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able to identify [Howell] as the operator[.] Other officers in 

marked vehicles joined [Officer] Patton as he followed [Howell]. 

One of the marked vehicles moved behind [Howell’s] vehicle. 

[Howell’s] vehicle then proceeded to travel over a grassy strip in 

the middle of the road and move away at over eight (80) miles 

per hour. [Howell] drove into a residential area on Claire Street 

and stopped on Kerr Street. [Howell] stopped the vehicle and ran 

behind the residences on Claire Street leaving the passenger, 

Laura Scott, still in the vehicle. When [an officer] approached the 

vehicle, the driver’s door was open, the vehicle was running, and 

he told the passenger to remain in the vehicle, When [Officer] 

Patton arrived at the location, the officers were not at the vehicle 

but were in pursuit of [Howell]. [Officer] Patton spoke to a 

resident who had surveillance cameras and obtained video 

surveillance from the owner of the residence. At the trial, the 

video from the police vehicle was played as well as the video from 

the ring camera on the house.

In the video, [Howell] left the vehicle with nothing in his 

hands but then as he runs, his left hand goes into his left pocket 

of his pants. The Nissan was towed from the scene and the 

passenger, Laura Scott, was taken to the Connellsville Police 

Department. [Howell] was not immediately located but was 

eventually found in a drain pipe approximately two hours after 

exiting the vehicle. When he was ultimately apprehended, 

[Howell] had nothing in his left pants pocket but had [$515.00] in 

his other pants pocket. No drugs were located in the vehicle. A 

canine search was conducted more than two hours after the stop 

in an attempt to locate [] discarded items[;] the canine did a 

cursory search on the path and by the garage but focused 

primarily on an open area but nothing was located. 

Early the next morning, a resident of Claire Street located a 

baggie in the strawberry plants in her garden. The owner of the 

garden was in her garden daily and paid particular attention to the 

strawberry plants. The baggie was located along the route that 

[Howell] was observed to run as he attempted to elude the officer. 

[Howell] was observed putting his hand in his left pants pocket 

and possessing an item in his hand. An officer collected the bag 

which was laying on a strawberry plant and not visible due to the 

leaves of the plant. The baggie was damp with dew but clean. 

The baggie was found to contain [391] smaller baggies. The 

forensic scientist testified that six baggies contained crack 

cocaine[;] the majority of the other bags contained a mixture of 

[heroin] and fentanyl.
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The canine search was an article search which [was] based on the 

human odor on a discarded item. The search area did not include 

the strawberry plant area of the garden and did not include the 

adjacent pathway but focused on the rear of the garden by the 

garage.

Trial Court Opinion, 11/6/23, at 2-4 (unnumbered; citations to record 

omitted).

The jury found Howell guilty of the drug and related charges. 

Thereafter, the trial court imposed an aggregate sentence of six to twelve 

years of imprisonment. Howell filed a timely post-sentence motion 

challenging the weight and sufficiency of the evidence. This motion was 

denied by operation of law. Howell timely appealed. Both Howell and the trial 

court have complied with Pa.R.A.P. 1925.

Howell raises the following four issues on appeal:

1. Whether the evidence was legally and factually sufficient to 

prove that [Howell] possessed with the intent to deliver 

heroin/fentanyl.

2. Whether the evidence was legally and factually sufficient to 

prove [Howell] possessed with the intent to deliver crack 

cocaine.

3. Whether the evidence was legally and factually sufficient to 

prove that [Howell] possessed heroin/fentanyl.

4. Whether the evidence was legally and factually sufficient to 

prove that [Howell] possessed crack cocaine.

Howell’s Brief at 4 (formatting altered).

Before addressing these issues, we must first determine whether they 

are properly before us. “Issues not included in the [Rule 1925(b)] Statement 

. . . are waived.” Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Sinkiewicz, 
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293 A.3d 681, 691 (Pa. Super. 2023). In his Rule 1925(b) Statement Howell 

raised similar issues, but only challenged the weight of the evidence presented 

by the Commonwealth.

On appeal, however, Howell has changed the nature of his challenge to 

the sufficiency of the evidence supporting his convictions. As our Supreme 

Court has summarized:

[I]t is necessary to delineate the distinctions between a 

claim challenging the sufficiency of the evidence and a claim 

that challenges the weight of the evidence. The distinction 

between these two challenges is critical. A claim challenging 

the sufficiency of the evidence, if granted, would preclude 

retrial under the double jeopardy provisions of the Fifth 

Amendment to the United States Constitution, and Article I, 

Section 10 of the Pennsylvania Constitution, whereas a claim 

challenging the weight of the evidence if granted would 

permit a second trial.

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. 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, then the evidence is insufficient as a matter 

of law. 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.

A motion for new trial on the grounds that the verdict is 

contrary to the weight of the evidence, concedes that there 

is sufficient evidence to sustain the verdict. Thus, the trial 

court is under no obligation to view the evidence in the light 

most favorable to the verdict winner. An allegation that the 

verdict is against the weight of the evidence is addressed to 

the discretion of the trial court. A new trial should not be 

granted because of a mere conflict in the testimony or 
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because the judge on the same facts would have arrived at a 

different conclusion. A trial judge must do more than 

reassess the credibility of the witnesses and allege that he 

would not have assented to the verdict if he were a juror. 

Trial judges, in reviewing a claim that the verdict is against 

the weight of the evidence do not sit as the thirteenth juror. 

Rather, the role of the trial judge is to determine that 

notwithstanding all the facts, certain facts are so clearly of 

greater weight that to ignore them or to give them equal 

weight with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (2000) (quotations, 

citations and footnote omitted). 

Because Howell did not challenge the sufficiency of the evidence 

supporting his drug convictions in his Rule 1925(b) statement, his issues are 

waived. Sinkiewicz, supra. Nonetheless, the trial court, while rejecting

Howell’s weight challenges, also addressed the sufficiency of the evidence 

supporting the convictions. Thus, despite finding waiver, we will briefly 

address Howell’s sufficiency challenges.

We follow a well-settled standard in reviewing a claim that the evidence 

was not sufficient to sustain a conviction. See Widmer, supra. Significant 

to this case, the Commonwealth may sustain its burden of proving every 

element of the crime beyond a reasonable doubt by means of wholly 

circumstantial evidence. Commonwealth v. Jones, 886 A.2d 689, 704 (Pa. 

Super. 2005).

In support of his issues on appeal, Howell contends that the 

Commonwealth did not prove beyond a reasonable doubt that he possessed 

any controlled substance. Although Howell also states that he is challenging 
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the sufficiency of the evidence supporting the jury’s finding that he possessed 

the drugs with intent to deliver them, this claim is based solely on his assertion 

that he did not possess the drugs. Howell does not challenge Officer Patton’s 

expert opinion that the drugs were possessed with an intent to deliver them. 

See N.T., 4/3 /24, at 39-54. Howell contends:

Officers searched the area in which [he] ran for two and half hours 

with a canine unit, and found no narcotics. The Commonwealth 

[presented] only that the drugs were found by a civilian roughly 

ten hours after [he] was apprehended. There could be no 

reasonable inferences drawn thereon nor could that evidence 

prove that the alleged acts occurred with proof beyond a 

reasonable doubt.

Howell’s Brief at 7.

After summarizing the facts detailed above, the trial court found that 

the Commonwealth presented sufficient evidence to support Howell’s drug 

convictions. The court explained:

While the evidence is circumstantial, a jury may base its 

determination of guilt using this type of evidence. It is for the 

jury to determine the evidence and the evidence presented was 

sufficient for a jury to base its determination on the evidence 

presented. The circumstantial evidence goes well past [a] 

common sense inference that [Howell] discarded these drugs 

during his flight from the police and is sufficient evidence to allow 

a jury to find his guilt beyond a reasonable doubt. The jury was 

free to accept this inference that the drugs were dropped by 

[Howell] during the pursuit.

Trial Court Opinion, 11/6/23, at 4 (unnumbered).

Our review of the record supports the trial court’s conclusion that, while 

wholly circumstantial, the evidence was sufficient to support the guilty 
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verdicts. Sinkiewicz, supra. At trial, Anthony Reed, the neighbor whose

ring camera’s video was played at trial, testified that the area where Howell 

exited his car and ran is a very quiet neighborhood, “with only one way in and 

one way out.” N.T., 4/3/23, at 99. Additionally, when asked, Mr. Reed 

testified that he never had a problem with people trespassing or witnessing 

drug transactions. Id. In fact, he testified that after the police left in the 

early morning hours, his camera did not pick up anyone else in the area. 

According to Mr. Reed, he “watched his cameras a good bit. Just to make 

sure that there was nothing else going on.” Id. at 99-100. Another neighbor 

found the drugs when she went to water her garden at 7:00 a.m. Id. at 109. 

This additional evidence only further strengthens the circumstantial evidence 

presented by the Commonwealth.

In sum, the evidence was sufficient to show that Howell was the person 

who possessed the drugs found in the strawberry patch.

Judgment of sentence affirmed.

DATE: 8/5/2024