J-S29034-15 

*Retired Senior Judge assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, 

 Appellee 

 v. 

DANIEL J. STEWART, 

 Appellant 

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 

 No. 1811 WDA 2014 

Appeal from the Judgment of Sentence Entered October 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 October 15, 2014 

judgment of sentence of five to fifteen years of incarceration, 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 Appellant’s trial. On 

October 4, 2013, Masontown Police Officer Thomas O’Barto encountered a 

Jeep with no registration stickers and a missing fender. After Officer O’Barto 

pulled behind the vehicle with his emergency lights activated, the Jeep 

pulled into the lot for a gas station/convenience store. 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 entrance to the 
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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 determined that there were 

five people in the Jeep: Chad Workman, the front passenger who had 

jumped from the vehicle; Stephanie Workman, who was driving the car; 

Christopher Workman, who was in the back seat behind the driver; Jasmine 

Workman, the owner of the Jeep, who was in the middle back seat; and 

Appellant, who was in the back seat behind the front passenger. Backup 

from the Masontown and Brownsville police departments arrived, including 

Officer Alexis Metros. The officers removed the individuals from the Jeep 

one at a time, and Officer O’Barto obtained permission from Jasmine 

Workman to search the vehicle. 

During the search, Officer O’Barto found a box of plastic baggies in a 

seat compartment directly in front of where Appellant 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 Appellant 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. at 
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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 shackled to a bench, 

with Christopher Workman at one end, Chad Workman in the middle, and 

Appellant at the other end. Officers O’Barto and Metros 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 hands had been in clear 

view and empty during the lapsed time, while Appellant had moved a lot and 

pulled something from behind his back. Officer Metros took the baggies to 

Officer O’Barto, who performed a field test that indicated the presence of 

cocaine in each bag. Subsequent testing by the state 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-side seat of the Jeep where 

the paraphernalia was found. Appellant also insisted that, upon learning of 

Chad Workman’s claim that Appellant possessed cocaine, he denied it to 

Officer O’Barto. Finally, Appellant maintained that the baggies recovered in 

the detention area were not his; rather, while shackled to the bench in the 
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detention area, Appellant heard a noise, noticed the baggies, and 

immediately stood up and called for the police. 

Upon the above evidence, the jury found Appellant guilty of one count 

each of possession and PWID, and the trial court sentenced him as 

previously indicated. Appellant’s timely-filed post-sentence motion was 

denied, and he timely filed a notice of appeal to this Court. 

Appellant presents five1 questions for our consideration, which we 

have re-ordered for ease of disposition: 

[1.] Did the Commonwealth establish, beyond a reasonable 

doubt, both that [Appellant] possessed the two baggies of 

cocaine and possessed the baggies with the intent to 

deliver? 

[2.] Did the suppression court err in denying [Appellant’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 [Appellant] to 

the Masontown Police Station, when the substance was 

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 scheme? 

 

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.
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Appellant’s Brief at 7 (unnecessary capitalization omitted). 

 We first consider Appellant’s claim that the Commonwealth 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 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 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 benefit 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 case depended wholly 
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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 circumstantial evidence 

allowed the jury to conclude beyond a reasonable doubt that Appellant had 

possessed the baggies of cocaine. Specifically, “Appellant’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 something from the rear, moving 

further away and immediately standing up after his movements.” Trial Court 

Opinion, 1/23/2015, at 13. Furthermore, the jury heard the additional 

circumstantial evidence of Appellant’s fidgeting and 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 reasonably that the appellant 

had actual possession of the contraband later recovered from the possession 

of a person in the vehicle). 
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 Appellant also claims that the Commonwealth offered insufficient 

evidence to prove intent to deliver, noting that the cocaine was “not 

individually wrapped for sale[,]” that the scale and baggies recovered from 

the Jeep “were not in plain view and were accessible 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 quantity 

of drugs and the presence of packing materials and digital 

sca[l]e established intent to deliver beyond a reasonable doubt. 

At trial, Officer O’Barto, an officer with twenty-four years of law 

enforcement experience including [as] a member of the Fayette 

County Drug Task Force, was admitted without objection as an 

expert in the field of narcotics investigation. Additionally, 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, the digital 

scale, and the amount of cocaine found in close proximity to 

Appellant indicated to him that Appellant had the intent to 

deliver the cocaine. Specifically, Officer O’Barto testified that a 

person does not possess over 40 grams of cocaine with the 

presence of a box and baggies and a digital scale merely for 

personal use. Rather, a drug dealer uses the digital 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 and repetition of quantities 

in numeral form omitted). The jury was free to believe Officer O’Barto’s 

testimony and discredit the evidence to which Appellant pointed. 
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Accordingly, the evidence was sufficient to prove beyond a reasonable doubt 

that Appellant possessed the cocaine with the intent 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 inferred from the quantity of the 

drugs possessed by Little in his residence along with the numerous items of 

drug paraphernalia the officers recovered.”). 

 Appellant next argues that the suppression court erred in denying his 

motion to suppress evidence. 

[I]n addressing a challenge to a trial court’s denial of a 

suppression motion [we are] limited to determining whether the 

factual findings are supported by the record and whether the 

legal conclusions drawn from those facts are correct. Since the 

[Commonwealth] prevailed in the suppression court, we may 

consider only the evidence of the [Commonwealth] 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. Cauley, 10 A.3d 321, 325 (Pa. Super. 2010) (citation 

omitted). “It is within the suppression court’s sole province as fact[-]finder 

to pass on the credibility of witnesses and the weight 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 cause to 

take Appellant into custody. The record clearly demonstrates 
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that there were four other individuals inside the vehicle with 

Appellant. During a search of the vehicle, [Officer] O’Barto 

discovered a box of plastic baggies and a digital scale. 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 warrant a person of 

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

committed.” Commonwealth v. Hernandez, 935 A.2d 1275, 1284 (Pa. 

2007) (quotation and citations omitted). “We evaluate probable cause by 

considering all relevant facts under a totality of circumstances analysis.” Id. 

Additionally, “[o]ne or more actors may jointly constructive[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 where he had been sitting in 

the car, coupled with Chad Workman’s indication that Appellant was part of 

a conspiracy to sell cocaine which Appellant possessed in his pants, clearly 

was sufficient to warrant a person of reasonable caution that Appellant was 

committing an offense. See, e.g., Commonwealth v. Stembridge, 579 

A.2d 901, 905 (Pa. 1990) (affirming conviction following arrest for 

possession of controlled substances where the appellant’s “access to and 
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control over the area in which the contraband was found was greater than 

that of the driver and the other passenger”). Accordingly, Appellant’s 

argument is meritless. 

 Appellant’s next two issues concern the trial court’s evidentiary 

rulings. We consider them mindful of the following. 

The standard of review for a trial court’s evidentiary 

rulings is narrow. The admissibility of evidence is solely within 

the discretion of the trial court and will be reversed 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 judgment that is 

manifestly unreasonable, or the result of bias, prejudice, 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 should not have been 

permitted to testify about the white substance she noticed in the police 

cruiser where Appellant had been sitting because she 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 white powder present on the 

seat when he got out of the vehicle that had not been there before. N.T., 

10/7-8/2014, at 15-16. This was relevant circumstantial evidence that 

Appellant had been the one who had possessed the bags of cocaine 
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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 authority 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 issue. 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 sustains 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 began 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, Appellant 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 said 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-
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search me here. He said no, we’ll do that at the police station. 

... 

Id. at 106. 

 After the defense rested, the Commonwealth recalled Officer O’Barto, 

who was questioned, in relevant part, as follows. 

Q. At the time of the stop, you spoke with Chad Workman? 

A. Several times. 

Q. And what did Mr. Workman tell you? 

[Appellant’s counsel]: I’m going to object. It would be 

hearsay. 

[ADA]: We can’t have it both ways. 

[Trial court]: I think the door has been open[ed] at 

this point. We’ll overrule. 

Q. What did Chad Workman tell you about what was going 

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 that was 

the information? 

A. That’s right. 

Id. at 116-17. 
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 Appellant contends that he did not open the door for Officer O’Barto to 

testify to Chad Workman’s statements.2 Appellant’s Brief at 12. Appellant 

maintains that his testimony “had absolutely nothing to do with [Officer] 

O’Barto’s conversation with Chad Workman[,]” but was instead offered to 

prove that he did not possess cocaine and that he had 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’Barto’s rebuttal testimony 

bolstered, rather than impeached, Appellant’s testimony. The jury merely 

heard from Officer O’Barto what it had already heard from Appellant: that 

Chad Workman told Officer O’Barto that Appellant had cocaine in the vicinity 

of his testicles, and that Appellant denied possessing any cocaine. Appellant 

has again failed to meet his heavy burden of proving 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’Barto’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., 10/7-8/2014, at 116. 

Accordingly, all bases for objection other than hearsay 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.”). 
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was due where improperly-admitted evidence was cumulative, not unduly 

prejudicial, “and still resulted in a fair trial”). 

 With his last issue, Appellant claims that the trial court erred in 

denying his motion to modify sentence. Appellant argues that the 

mandatory minimum sentence applied in his case, 18 Pa.C.S. § 7508, is 

unconstitutional. The trial court agreed with Appellant and opined that “a 

remand for resentencing without consideration of the 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 sentence and remand for 

resentencing without application of the mandatory minimum. 

 Convictions affirmed. Judgment of sentence vacated. Case remanded 

for resentencing. Jurisdiction relinquished. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/16/2015