J-S29034-15

*Retired Senior Judge assigned to the Superior Cour t. NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. DANIEL J. STEWART, Appellant : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1811 WDA 2014 Appeal from the Judgment of Sentence Entered Octobe r 15, 2014,

in the Court of Common Pleas of Fayette County, Criminal Division, at No: CP-26-CR-0001886-2013 BEFORE: PANELLA, MUNDY, and STRASSBURGER,* JJ. MEMORANDUM BY STRASSBURGER, J.: FILED JULY 15, 2015 Daniel J. Stewart (Appellant) appeals from his Oct ober 15, 2014 judgment of sentence of five to fifteen years of in carceration, entered after a jury found him guilty of possession of a controlled substance and possession with intent to deliver a controlled substance (PWID ). Although we affirm Appellant’s convictions, we vacate his judgment of sentence and remand for resentencing. The jury received the following evidence during Ap pellant’s trial. On October 4, 2013, Masontown Police Officer Thomas O’ Barto encountered a Jeep with no registration stickers and a missing fe nder. After Officer O’Barto pulled behind the vehicle with his emergency lights activated, the Jeep pulled into the lot for a gas station/convenience s tore. The front passenger door of the Jeep began to open before the Jeep came to a stop, and the front passenger leapt from the vehicle toward the e ntrance to theJ-S29034-15

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convenience store. Officer O’Barto yelled for him to get back into the car; after hesitating and bending over, the man complied

. Officer O’Barto called for backup after he determin ed that there were five people in the Jeep: Chad Workman, the front pa ssenger who had jumped from the vehicle; Stephanie Workman, who was driving the car; Christopher Workman, who was in the back seat behin d the driver; Jasmine Workman, the owner of the Jeep, who was in the midd le back seat; and Appellant, who was in the back seat behind the fron t passenger. Backup from the Masontown and Brownsville police departmen ts arrived, including

Officer Alexis Metros. The officers removed the in dividuals from the Jeep one at a time, and Officer O’Barto obtained permiss ion from Jasmine

Workman to search the vehicle. During the search, Officer O’Barto found a box of p lastic baggies in a seat compartment directly in front of where Appella nt had been sitting, and a digital scale in the area behind Appellant’s head . Upon being questioned by Officer O’Barto about these items, Chad Workman indicated that they

were headed to Masontown to sell the cocaine that A ppellant had in his possession. Thereafter, all five occupants of the Jeep were arrested. While Officer Metros was transporting Appellant to the police station, she noticed that “[h]e was fidgeting a lot with his hands towards his buttocks area. He kept like pushing up in the seat , moving around.” Id. atJ-S29034-15

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18. When she removed Appellant from the vehicle at the detention area, Officer Metros noticed “a white powdery substance” on the seat of the car where Appellant had been sitting. Id. at 16. Inside the detention center, the three men were sha ckled to a bench, with Christopher Workman at one end, Chad Workman i n the middle, and Appellant at the other end. Officers O’Barto and M etros informed the men that the room was being videoed; the two women were taken to an interrogation room. When Officer Metros returned, she saw two baggies containing white power located on the bench between Appellant and Chad

Workman. The video showed that Chad Workman’s hand s had been in clear view and empty during the lapsed time, while Appell ant had moved a lot and pulled something from behind his back. Officer Met ros took the baggies to Officer O’Barto, who performed a field test that in dicated the presence of cocaine in each bag. Subsequent testing by the sta te crime lab revealed that the bags respectively contained 13.29 and 29.9 grams of cocaine. Testifying in his defense, Appellant asserted that Christopher Workman had been the one sitting in the rear, passenger-sid e seat of the Jeep where the paraphernalia was found. Appellant also insist ed that, upon learning of Chad Workman’s claim that Appellant possessed cocai ne, he denied it to Officer O’Barto. Finally, Appellant maintained tha t the baggies recovered in the detention area were not his; rather, while shac kled to the bench in theJ-S29034-15

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detention area, Appellant heard a noise, noticed th e baggies, and immediately stood up and called for the police. Upon the above evidence, the jury found Appellant g uilty of one count each of possession and PWID, and the trial court se ntenced him as previously indicated. Appellant’s timely-filed pos t-sentence motion was denied, and he timely filed a notice of appeal to t his Court. Appellant presents five 1 questions for our consideration, which we have re-ordered for ease of disposition: [1.] Did the Commonwealth establish, beyond a reaso nable doubt, both that [Appellant] possessed the two bagg ies of cocaine and possessed the baggies with the intent t o deliver? [2.] Did the suppression court err in denying [Appe llant’s] omnibus pre-trial motion in the nature of a motion to suppress evidence and dismiss the charges[?] [3.] Did the trial court err in permitting Officer Metros [to] testify that she observed a white substance on the rear seat of her police [cruiser] after transporting [Ap pellant] to the Masontown Police Station, when the substance wa s never tested for any drug residue? [4.] Did the trial court err in permitting Officer O’Barto to present hearsay statements made by Chad Workman, Sr

. during his rebuttal testimony? [5.] Did the trial court err in denying [Appellant’ s] post sentence motion [] to modify sentence as 18 Pa.C.S. [] § 7508 follows an unconstitutional sentencing schem e?

1 Appellant lists a sixth question in his Statement of Questions Involved, but subsequently indicates that he is not pursuing the issue on appeal. Appellant’s Brief at 7, 11.J-S29034-15

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Appellant’s Brief at 7 (unnecessary capitalization omitted). We first consider Appellant’s claim that the Commo nwealth offered insufficient evidence to prove his possession, and possession with intent to deliver, the baggies of cocaine.

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitt ed at trial in the light most favorable to the verdict winner, the re is sufficient evidence to enable the fact-finder to find every el ement of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our ju dgment for the fact-finder. In addition, we note that the fac ts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubt s regarding a defendant’s guilt may be resolved by the fact-finde r unless the evidence is so weak and inconclusive that as a matt er of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its bu rden of proving every element of the crime beyond a reasona ble doubt by means of wholly circumstantial evidence. Moreov er, in applying the above test, the entire record 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. Further, in viewing the evidence in the light most favorable to the Commonwealth as the verdict winner, the court must give the prosecution the ben efit of all reasonable inferences to be drawn from the evidence

. Commonwealth v. Harden , 103 A.3d 107, 111 (Pa. Super. 2014) (internal quotation marks and citations omitted). Appellant claims that the “Commonwealth failed to produce sufficient evidence to connect Appellant to the two baggies of cocaine.” Appellant’s

Brief at 16. He asserts that the Commonwealth’s ca se depended whollyJ-S29034-15

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upon the surveillance video of the detention room, which “is inconclusive at

best.” Id. We disagree. The trial court properly determined that the circu mstantial evidence allowed the jury to conclude beyond a reasonable do ubt that Appellant had possessed the baggies of cocaine. Specifically, “A ppellant’s possession of the controlled substances is supported by: (1) his proximity to the same; and (2) the surveillance which showed Appellant at the detention center sitting on the bench, fidgeting a lot, pulling some thing from the rear, moving further away and immediately standing up after his movements.” Trial Court Opinion, 1/23/2015, at 13. Furthermore, the jury h eard the additional circumstantial evidence of Appellant’s fidgeting an d reaching towards his rear in Officer Metros’ car, and her finding white powder on the seat afterwards. This totality of circumstances, viewed in the light most favorable to the Commonwealth, supports the finding that Appellant possessed the baggies of cocaine. See , e.g. , Commonwealth v. Thompson , 93 A.3d 478, 489-90 (Pa. Super. 2014) (rejecting sufficiency challenge where evidence, inter alia , that the appellant tossed a plastic baggie into a vehicle allowed the jury to infer rea sonably that the appellant had actual possession of the contraband later recov ered from the possession of a person in the vehicle).J-S29034-15

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Appellant also claims that the Commonwealth offere d insufficient evidence to prove intent to deliver, noting that th e cocaine was “not individually wrapped for sale[,]” that the scale an d baggies recovered from the Jeep “were not in plain view and were accessibl e to all passengers in the car[,]” and that Appellant “was found to be without any cash or weapons.” Appellant’s Brief at 17. Appellant presents the evidence most favorable to him, and ignores

the evidence favorable to the Commonwealth. As the trial court explained:

Officer O’Barto’s expert testimony along with the q uantity of drugs and the presence of packing materials and digital sca[l]e established intent to deliver beyond a reas onable doubt. At trial, Officer O’Barto, an officer with twenty-f our years of law enforcement experience including [as] a member of t he Fayette County Drug Task Force, was admitted without object ion as an expert in the field of narcotics investigation. Ad ditionally, he has been qualified as in expert in the Commonwealth of Pennsylvania in the field of narcotics investigation over twenty times. Officer O’Barto testified the packing materials, th e digital scale, and the amount of cocaine found in close pro ximity to Appellant indicated to him that Appellant had the i ntent to deliver the cocaine. Specifically, Officer O’Barto testified that a person does not possess over 40 grams of cocaine wi th the presence of a box and baggies and a digital scale m erely for personal use. Rather, a drug dealer uses the digit al scale to weigh down the cocaine to hundredths of a gram and then packages the weighed[-]out cocaine into baggies to sell. Trial Court Opinion, 1/23/2015, at 14 (citations an d repetition of quantities in numeral form omitted). The jury was free to bel ieve Officer O’Barto’s testimony and discredit the evidence to which Appel lant pointed.J-S29034-15

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Accordingly, the evidence was sufficient to prove b eyond a reasonable doubt that Appellant possessed the cocaine with the inten t to deliver it. See , e.g. , Commonwealth v. Little , 879 A.2d 293, 298 (Pa. Super. 2005) (“[P]ossession with intent to deliver can be inferr ed from the quantity of the drugs possessed by Little in his residence along wi th the numerous items of drug paraphernalia the officers recovered.”). Appellant next argues that the suppression court e rred in denying his motion to suppress evidence.

[I]n addressing a challenge to a trial court’s deni al of a suppression motion [we are] limited to determining whether the factual findings are supported by the record and wh ether the legal conclusions drawn from those facts are correc t. Since the [Commonwealth] prevailed in the suppression court, we may consider only the evidence of the [Commonwealth] an d so much of the evidence for the defense as remains uncontra dicted when read in the context of the record as a whole. Wher e the record supports the factual findings of the trial court, w e are bound by those facts and may reverse only if the legal concl usions drawn therefrom are in error. Commonwealth v. Cauley , 10 A.3d 321, 325 (Pa. Super. 2010) (citation omitted). “It is within the suppression court’s so le province as fact[-]finder to pass on the credibility of witnesses and the wei ght to be given their testimony.” Commonwealth v. Elmobdy , 823 A.2d 180, 183 (Pa. Super. 2003) (citation omitted). Appellant’s suppression argument is as follows. Officer O’Barto lacked the necessary probable caus e to take Appellant into custody. The record clearly de monstratesJ-S29034-15

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that there were four other individuals inside the v ehicle with Appellant. During a search of the vehicle, [Office r] O’Barto discovered a box of plastic baggies and a digital s cale. The items were discovered in a common area and each of the individuals had equal access to them. The officer should not have taken Appellant into custody. Appellant’s Brief at 18. “The police have probable cause where the facts and circumstances within the officer’s knowledge are sufficient to wa rrant a person of

reasonable caution in the belief that an offense ha s been or is being

committed.” Commonwealth v. Hernandez , 935 A.2d 1275, 1284 (Pa. 2007) (quotation and citations omitted). “We evalu ate probable cause by considering all relevant facts under a totality of circumstances analysis.” Id. Additionally, “[o]ne or more actors may jointly con structive[ly] possess an item if it is found in an area of joint control and equal access.”

Commonwealth v. Kinard , 95 A.3d 279, 295 (Pa. Super. 2014). Officer O’Barto’s finding of drug paraphernalia to which Appellant had not only joint access, but primary access given whe re he had been sitting in the car, coupled with Chad Workman’s indication tha t Appellant was part of a conspiracy to sell cocaine which Appellant posses sed in his pants, clearly was sufficient to warrant a person of reasonable ca ution that Appellant was committing an offense. See , e.g. , Commonwealth v. Stembridge , 579 A.2d 901, 905 (Pa. 1990) (affirming conviction foll owing arrest for possession of controlled substances where the appel lant’s “access to andJ-S29034-15

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control over the area in which the contraband was f ound was greater than that of the driver and the other passenger”). Acco rdingly, Appellant’s argument is meritless. Appellant’s next two issues concern the trial cour t’s evidentiary rulings. We consider them mindful of the following

.

The standard of review for a trial court’s evidenti ary rulings is narrow. The admissibility of evidence i s solely within the discretion of the trial court and will be rever sed only if the trial court has abused its discretion. An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgm ent that is manifestly unreasonable, or the result of bias, pre judice, ill-will or partiality, as shown by the evidence of record.

Commonwealth v. Mendez , 74 A.3d 256, 260 (Pa. Super. 2013) (quoting

Commonwealth v. Hanford , 937 A.2d 1094, 1098 (Pa. Super. 2007)). Appellant first contends that Officer Metros shoul d not have been permitted to testify about the white substance she noticed in the police cruiser where Appellant had been sitting because sh e had no idea what the substance was, and it was never tested by a chemist . Appellant’s Brief at

10. Officer Metros did not testify that Appellant left cocaine residue on the seat behind him; she testified that there was a whi te powder present on the seat when he got out of the vehicle that had not be en there before. N.T., 10/7-8/2014, at 15-16. This was relevant circumsta ntial evidence that Appellant had been the one who had possessed the ba gs of cocaineJ-S29034-15

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ultimately recovered in the detention area. See Trial Court Opinion, 1/23/2015, at 7 (discussing the probative value of Officer Metros’ testimony). Appellant has failed to cite any autho rity for the proposition that admission of this relevant evidence was in any way an abuse of discretion. Accordingly, he is entitled to no relief on this is sue. See , e.g. , Commonwealth v. Christine , 78 A.3d 1, 4 (Pa. Super. 2013) ( en banc ) (opinion in support of affirmance) (quoting Commonwealth v. Bryant , 67 A.3d 716, 726 (Pa. 2013)) (“We will reverse a trial court’s decision as to admissibility of evidence only if the appellant sus tains the heavy burden to

show that the trial court has abused its discretion .”). Appellant next argues that the trial court erred in allowing Officer O’Barto to testify on rebuttal about Chad Workman’s statements. On direct examination by the Commonwealth, Officer O’Barto be gan to testify about

what Chad Workman had told him after the search of the vehicle, but the trial court sustained Appellant’s hearsay objection . N.T., 10/7-8/2014, at 56. While later testifying in his defense, Appella nt offered the following testimony: ... Officer O’Barto was talking to Chad, and then he come up to the police car I was in and he opened the back door and said, do you got coke on you, and I said no, I don’t. He sa id well, Mr. Workman just told me you have coke in your nuts. I said sir, it’s a physical impossibility for me to have cocaine in my nuts. And he said okay, smart ass, we’re gonna take everybody to the police station and strip-search them there. I said, you can strip-J-S29034-15

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search me here. He said no, we’ll do that at the p olice station.

... Id. at 106. After the defense rested, the Commonwealth recalle d Officer O’Barto, who was questioned, in relevant part, as follows. Q. At the time of the stop, you spoke with Chad Wor kman?

A. Several times. Q. And what did Mr. Workman tell you? [Appellant’s counsel]: I’m going to object. It wou ld be hearsay. [ADA]: We can’t have it both ways. [Trial court]: I think the door has been open[ed] a t this point. We’ll overrule. Q. What did Chad Workman tell you about what was go ing on? A. Chad Workman said that they were on their way to Masontown to meet an individual to sell them some cocaine that [Appellant] had tucked underneath his nuts. Q. And did you ask [Appellant] if he had cocaine on him while he was in the car?

A. I did. Q. And that’s why you asked him, correct, because t hat was the information? A. That’s right.

Id. at 116-17.J-S29034-15

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Appellant contends that he did not open the door f or Officer O’Barto to testify to Chad Workman’s statements. 2 Appellant’s Brief at 12. Appellant maintains that his testimony “had absolutely nothin g to do with [Officer] O’Barto’s conversation with Chad Workman[,]” but wa s instead offered to prove that he did not possess cocaine and that he h ad consented to a strip search at the scene of the stop. Id. at 13. Even if Appellant is correct that he did not open the door to allow Officer O’Barto’s testimony to come in, he has not convinced us that he suffered any prejudice as a result. Officer O’Bart o’s rebuttal testimony bolstered, rather than impeached, Appellant’s testi mony. The jury merely heard from Officer O’Barto what it had already hear d from Appellant: that Chad Workman told Officer O’Barto that Appellant ha d cocaine in the vicinity of his testicles, and that Appellant denied possess ing any cocaine. Appellant has again failed to meet his heavy burden of provin g his entitlement to relief

from this Court. See , e.g. , Commonwealth v. Mosley , ––– A.3d –––, 2015 WL 1774216 at *11 (Pa. Super. filed April 20, 2015) (holding no relief

2 Appellant also argues on appeal that Officer O’Bar to’s testimony exceeded the scope of proper rebuttal. Appellant’s Brief at 13-14. However, at trial Appellant raised only a hearsay objection. N.T., 1 0/7-8/2014, at 116. Accordingly, all bases for objection other than hea rsay are waived. Commonwealth v. Duffy , 832 A.2d 1132, 1136 (Pa. Super. 2003) (“In order to preserve an issue for review, a party must make a timely and specific objection. ... [A]n appellant may not raise a new theory for an objection made at trial on his appeal.”).J-S29034-15

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was due where improperly-admitted evidence was cumu lative, not unduly prejudicial, “and still resulted in a fair trial”). With his last issue, Appellant claims that the tri al court erred in denying his motion to modify sentence. Appellant a rgues that the mandatory minimum sentence applied in his case, 18 Pa.C.S. § 7508, is unconstitutional. The trial court agreed with Appe llant and opined that “a remand for resentencing without consideration of th e mandatory minimum is necessary and appropriate.” Trial Court Opinion, 1 /23/2015, at 17. Appellant and the trial court are correct: 18 Pa.C .S. § 7508 is unconstitutional on its face in light of Alleyne v. United States , ––– U.S. –––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013); thus, its application in Appellant’s case resulted in an illegal sentence. See Mosely , 2015 WL 1774216 at *13-15; Commonwealth v. Thompson , 93 A.3d 478 (Pa. Super. 2014); Commonwealth v. Fennell , 105 A.3d 13 (Pa. Super. 2014). Accordingly, we vacate Appellant’s judgment of sent ence and remand for resentencing without application of the mandatory m inimum. Convictions affirmed. Judgment of sentence vacate d. Case remanded for resentencing. Jurisdiction relinquished.J-S29034-15

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/16/2015