J-S51043- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA Appellee :

:

v. :

: JAMEEL R. MINCEY, :

: Appellant : No. 1505 MDA 2013

Appeal from the Judgment of Sentence entered on July 18, 2013 in the Court of Common Pleas of Lycoming County, Criminal Division, No. CP- 41

- CR -0001155-2012

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 22, 2014

Jameel R. Mincey (“Mincey”) appeals from the judgment of sentence

imposed following his convictions of one count each of p ossession with the

intent to deliver, possession of drug paraphernalia, pu blic intoxication and

disorderly conduct. 1 We affirm.

The trial court set forth the underlying facts as foll ows:

At approximately 2:41 a.m. on June 22, 2012, Willia msport police officers were dispatched to the Sheetz at 105 May nard Street for a fight in progress. When the police arriv ed, they observed a white male, a white female, and [Mincey] i nvolved in a verbal altercation. The police tried to separate th e individuals. Officer Jonathan Deprenda spoke to [Mincey] and asked [Mincey] to tell him what happened. [Mincey] told Of ficer Deprenda that the white male had hit him in the mou th and then he stepped towards the white male. Officer Deprenda w as between the two men and walked [Mincey] towards his ve hicle. He noticed a strong odor of an alcoholic beverage coming from [Mincey]’ s person. [Mincey] also was very unsteady on his feet,

1 35 P.S. § 780 -113(a)(30), (32); 18 Pa.C.S.A. §§ 5503(a)(1), 5505

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nearly falling over as [he] go t to Officer Deprenda’s vehicle. Officer Deprenda asked [Mincey] to identify himself or produce identification, but [Mincey] wouldn’t give his name or produce identification. Officer Deprenda took [Mincey] into custody for disorderly conduct and public drunkenness and transported him to City Hall where he was identified as

... Mincey.

Officer Deprenda searched [Mincey] incident to his arr est and discovered 19 baggies of cocaine contained within a l arger “distribution” bag in [Mincey]’s left front pocket. The ni neteen baggies of cocaine weighed 9.6 grams.

[Mincey] was charged with possession with intent to deliver a controlled substance, an ungraded felony; po ssession of drug paraphernalia, an ungraded misdemeanor; and the summary offenses of disorderly conduct and public drunke nness. Following a nonjury trial held on January 14, 2013, the court found [Mincey] guilty of all the charges.

On July 18, 2013, the court sentenced [Mincey] to 21⁄2 to 5 years of incarceration in a state correctional institutio n for possession with intent to deliver a controlled substance a nd a consecutive 6 months to 1 year of incarceration for possessio n of drug paraphernalia. [The court imposed no further pu nishment for each of the summary offenses .]

[Mincey] filed a motion for reconsideration of sentence in which he asserted that [] the court’s sentence was unduly harsh and excessive; the possession of drug paraphernalia charge should have run concurrently because the paraphernalia w as the bags in which the cocaine was discovered; and the court fa iled to adequately consider [Mincey]’s need for drug and alcohol treatment. The court denied this motion, and [Mincey] filed a timely appeal.

Trial Court Opinion, 11/26/13, at 1-2 (footnote omi tted).

On appeal, Mincey raises the following questions for ou r review:

1. Was the evidence presented at trial [] insufficient to p rove beyond a reasonable doubt that [Mincey] was guilty of possession of drug paraphernalia; specifically because evidence established that he purchased the controlledJ-S51043- 14

- 3 - substance as packaged and did not have separate implement s for storage, ingestion, etc.? 2. Did the trial court abuse its discretion when imposing consecutive sentences for possessing drug paraphernalia a nd possession with the intent to deliver?

Brief for Appellant at 8.

In his first claim, Mincey contends that he did not ha ve the requisite

mens rea to be found guilty of possession of drug paraphernalia , as he

bought the controlled substance “as is

. ” Id . at 12- 13

. Mincey argues that

he had no intent to use the baggies and that his sole o bjective was to obtain

the cocaine for personal use. Id . at 13- 14.

In reviewing a challenge to the sufficiency of the evi dence, we

evaluate the record “in the light most favorable to the verdict winner giving

the prosecution the benefit of all reasonable inference s to be drawn from the

evidence.” Commonwealth v. Bibbs , 970 A.2d 440, 445 (Pa. Super.

2009) (citation omitted).

Evidence will be deemed sufficient to support the verd ict when it established each element of the crime charged an d the commission thereof by the accused, beyond a reasonable do ubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty, and may sustain its burden by m eans of wholly circumstantial evidence. Significantly, [we] m ay not substitute [our] judgment for that of the factfinder; if the record contains support for the convictions they may not be disturbed.

Id . (citation and quotation marks omitted). “Any doubt about the

defendant’s guilt is to be resolved by the factfinder u nless the evidence is so

weak and inconclusive that, as a matter of law, no pr obability of fact can beJ-S51043- 14

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drawn from the combined circumstances.” Commonwealth v. Scott , 967

A.2d 995, 998 (Pa. Super. 2009).

Relevantly, 35 P.S. § 780- 113(a)(32) prohibits the “use or possession

with intent to use drug paraphernalia for the purpose of...packing, repacking,

storing, containing, concealing, injecting, inhaling or otherwise introducing

into the human body a controlled substance in violation of this act.” Drug

paraphernalia is defined as “all equipment, products an d materials of any

kind which are used, intended for use, or designed for use in storing,

containing, concealing

... a controlled substance in violation of this act.” 35

P.S. § 780 -102.

The trial court addressed Mincey’s claim as follows:

The law does not require the paraphernalia to be sepa rate from the controlled substance. See Commonwealth v. Caban , 60 A.3d 120 (Pa. Super. 2012) (Superior Court rejected a challenge to the sufficiency of the evidence for a paraphernalia conviction where the paraphernalia was the gift box and celloph ane in which the marijuana was wrapped); Commonwealth v. Coleman
, 98 4 A.2d 998, 1000-1002 (Pa. Super. 2009) (glass vials, glassine baggie and sock which contained crack cocain e constituted drug paraphernalia). In fact, determining whether an object is drug paraphernalia a court should consider the proximity of the object to controlled substances. 35 P. S. § 780- 102.

In this case, the bags clearly were being used to stor e or contain the cocaine. In fact, [Mincey] called a witness, J ames Geddy, to dispute the Commonwealth’s characterization o f the larger bag as a “distribution” bag. Mr. Geddy testified that there is no such thing as a distribution bag in the drug worl d. The bag was just a sandwich bag; its purpose was to keep the smal ler bags of cocaine together so no one would lose any of th em. [N.T., 7/18/13, at 69.] In other words, [Mincey]’s own evidenceJ-S51043- 14

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showed that the bags were being used to store or contai n the cocaine. Therefore, this issue lacks merit.

Trial Court Opinion, 11 / 26 /13, at 3- 4. We agree with the sound reasoning of

the trial court and conclude that the evidence was suffici ent to convict

Mincey of possession of drug paraphernalia. See id

. Mincey’s second claim implicates the discretionary aspects of

sentencing.

An appellant challenging the discretionary aspects of his sentence must invoke thi s Court’s jurisdiction by satisfying a four part test:

[We] conduct a four-part analysis to determine: (1) wh ether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sente nce,
see Pa.R.Crim.P. [720]; (3) whether appellant ’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropr iate under the Sentencing Code, 42 Pa. C.S.A. § 9781(b).

Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

Here, Mincey filed a timely Notice of Appeal, preserve d the issue in his

Motion for Reconsideration, and included a Rule 2119(f ) statement in his

brief. In his Rule 2119(f) statement, Mincey claims th at the trial court

imposed consecutive sentences contrary to the fundamental n orms of

sentencing, as the sentence was “disproportionate to the nature of th e

offense,” and the trial court failed to discuss Mincey’s re habilitative needs.J-S51043- 14

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Brief for Appellant at 15. This claim raises a substan tial question. See

Commonwealth v. Baker , 72 A.3d 652, 662 (Pa. Super. 2013).

The trial court addressed this claim as follows:

The court could impose separate sentences on these offenses, because the crimes did not merge. 42 Pa.C.S.A. § 9765 (“No crimes merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory ele ments of one offense are included in the statutory elements of t he other offense”). Furthermore, “Pennsylvania law affords the sentencing court discretion to impose its sentences concurrent ly or consecutively to other sentences being imposed at the sa me time or to sentences already imposed.” Commonwealth v. Austin , 66 A.3d 798, 808 (Pa. Super. 2013). A sentence wil l not be reversed on appeal unless the sentencing court ab used its discretion. “[A]n abuse of discretion is more than a mer e error of judgment; thus, a sentencing court will not have ab used its discretion unless ‘the record discloses that the judgment exercised was manifestly unreasonable or the result of pa rtiality, prejudice, bias or ill- will.’” Commonwealth v. Walls , 592 A.2d 957, 961 (Pa. 2007), quoting Commonwealth v. Smith , 543 A.3d 893, 895 (Pa. 1996).

The court’s decision to impose consecutive sentences in this case was neither unreasonable nor based on any part iality, prejudice, bias, or ill-will against [Mincey], but rath er was motivated by a desire to protect the public. [N.T., 7 /18/13, at 26 -29; N.T., 8/1/13, at 12.] Although in many cases th e court would not impose a consecutive sentence for a paraphernal ia charge when there was no additional paraphernalia for ingesting or packaging controlled substances, this was not a typical case. Generally speaking, from 1996 to the present [Mincey] had difficulty refraining from selling drugs, using drugs, or driving a vehicle while he was under the influence of drugs or al cohol while his license was suspended except when he was incarcerated. He had been in and out of the criminal justice system with escalating consequences and nothing seemed to work. Furthermore, [Mincey] had three other cases tha t were being sentenced at the same time as this case. He committ ed the offenses in this case about two months after his ar rest for possession of Percocet [,] and within eight days of his arrest for DUI. Then he committed another DUI about two months afterJ-S51043- 14

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he committed the offenses in this case. [N.T., 7/18/13, at 5; N.T., 8/1/13, at 11.] These factors could have justified a sentence in the aggravated range or a lengthier maxim um sentence for possession with intent to deliver cocaine, [fn] but the court did not do that. Instead, the court simply impose d a consecutive sentence of six months to one year on the paraphernalia charge, which under all the facts and circumstances was neither an abuse of discretion nor an excessive sentence.

[ fn ] The statutory maximum sentence for possession with inten t to deliver cocaine was 20 years, because [Mincey] had prio r convictions for delivery or possession with intent to deli ver a controlled substance. 35 P.S. § 780 -115.

Trial Court Opinion, 11/26/13, at 5 (footnote in or iginal); see also N.T.,

7/18/13, at 11-15, 26- 29 (wherein the trial court discusses Mincey’s

rehabilitative needs and his prior history of addiction in rendering the

sentence). Furthermore, the trial court was informed b y a pre-sentence

investigation report. N.T., 7/18/13, at 8-13; see also Commonwealth v.

Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (stat ing that where trial

court had the benefit of pre-sentence investigation rep ort, the court satisfies

its requirement that the reasons for the sentence be pl aced on the record

and all relevant factors considered ).

Based on the foregoing, w e conclude that the trial court did not abuse

its discretion by imposing consecutive sentences and therefore adopt the

sound reasoning of the trial court.

Judgment of sentence affirmed.J-S51043- 14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/22/2014