J-A23029-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

STEPHEN ANTONIO BLACKWOOD,

Appellant No. 64 WDA 2019

Appeal from the Judgment of Sentence Entered November 30, 2018

In the Court of Common Pleas of Bedford County

Criminal Division at No(s): CP-05-CR-0000708-2017

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 30, 2019

Appellant, Stephen Antonio Blackwood, appeals from the judgment of 

sentence of an aggregate term of 6-23 months’ incarceration, followed by 3 

years’ probation, imposed following his conviction for possession with intent 

to deliver (PWID)1 marijuana and related offenses. Appellant challenges the 

trial court’s denying his motion to suppress, as well as the sufficiency of the 

evidence supporting his PWID conviction. After careful review, we affirm.

The trial court has failed to provide this court with a summary of the 

facts adduced at trial. However, it did summarize the facts adduced at 

Appellant’s suppression hearing as follows:

At the evidentiary hearing, Trooper Joseph Watkins testified, in 

relevant part, that he was monitoring traffic along Interstate 99 

____________________________________________

1 35 P.S. § 780-113(a)(30). 
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in Bedford County on October 3, 2017. While doing so, he 

observed a vehicle drive by him in the left lane[,] which he viewed 

to have dark window tint. Trooper Watkins testified that the 

vehicle had “extremely dark window tint” and th[at] he “couldn’t 

identify the driver at all.” [N.T. Suppression, 2/23/18, at 9.] The 

Trooper effectuated a stop o[f] the vehicle due to the window tint 

and made contact with [Appellant] after he pulled his vehicle over.

Upon making contact with [Appellant,] Trooper Watkins testified 

that [Appellant] appeared slightly nervous, that was “too much for 

just a regular traffic stop.” Id. at 10. Trooper Watkins testified

that he noticed a strong odor of air freshener and a faint odor of 

marijuana coming from inside the vehicle. The Trooper testified 

that, in his opinion, the air freshener scent was pungent enough 

to be a masking scent to cover up the smell of marijuana. The 

Trooper testified that he could smell marijuana from the other side 

of the vehicle as well. When Trooper Watkins confronted 

[Appellant] about the smell of marijuana, [Appellant] initially 

denied the smell, but eventually stated that he believed he 

smoked marijuana the day prior to the traffic stop. Id. at 12. The

Trooper then advised [Appellant] that he would be performing a 

warrantless search of the vehicle. Upon searching the vehicle, the 

Trooper smelled marijuana coming from the glove box and 

eventually found marijuana, cocaine,[2] and drug paraphernalia 

after opening the glove box. After seizing the controlled 

substances, the Trooper placed [Appellant] under arrest and had 

[his] vehicle towed.

The next day, the Trooper visited the lot where [Appellant]’s 

vehicle was towed and tested the tint on [Appellant]’s vehicle[’s] 

windows. The Trooper testified that ... [Appellant]’s driver’s side 

window tested at 28 percent visibility. The Trooper testified that 

he initially pulled over [Appellant]’s vehicle to investigate the 

window tint and that, at the location he was sitting on Interstate 

99, the window tint meter was located at the Pennsylvania State 

Police Barracks approximately three miles away. Trooper Watkins 

testified credibly as to the testimony recited above .... [Appellant] 

testified briefly at the evidentiary hearing on the limited issue of 

the window tint on his vehicle. [Appellant] admitted that his 

____________________________________________

2 Trooper Watkins merely suspected the white powdery substance was 

cocaine, but it ultimately tested negative for cocaine. N.T. Trial, 10/11/18, at 

38. 
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vehicle did have window tint and did not dispute the percentage 

of visibility testified to by the Trooper.

Suppression Opinion, 8/14/18, at 2-4 (footnotes omitted).

Trooper Watkins was the Commonwealth’s only witness at Appellant’s 

non-jury trial. As noted by Appellant:

Trooper Watkins proceeded to testify as a fact witness with 

respect to the same observations that he made and testified to at 

the February 23, 2018 Suppression Hearing, with a few additional 

details relevant to the instant appeal.

First, Trooper Watkins testified that when Appellant was back at 

the police barracks he asked Appellant if he was a “big fish[,”] at 

which time Appellant apparently said that he was “just a little 

fish[,”] [N.T. Trial at 42]; however Trooper Watkins never offered 

any testimony or clarification as to what being a “little fish”

actually means in the context of being a drug user[] versus a drug 

dealer.

Regarding the $5,050.00 that was seized from Appellant’s vehicle, 

Trooper Watkins testified that Appellant stated that he got these 

monies by “being dishonest.” [Id.] Regarding the condition of 

the seized currency, Trooper Watkins testified that this money 

consisted of large, crisp bills that were similar to the bills that 

Trooper Watkins keeps in his gun safe at home. [Id. at 49.]

With respect to the packaging of the marijuana at issue, Trooper 

Watkins testified that there were five (5) plastic bags of “bud”

marijuana. [Id. at 50.] Trooper Watkins testified that each of the 

five (5) bags contained a different amount of marijuana; however 

he was not aware of how much marijuana was in each bag. [Id.] 

In addition to the “bud” marijuana, there were four (4) 

commercially packaged THC cartridges. [Id. at 52-53.]

Similarly, Trooper Watkins admitted that he did not know if the 

marijuana contained in each of the five (5) bags w[as] the same 

or different types/strands of marijuana, and also acknowledged 

that marijuana users like to consume different types/strands of 

marijuana. [Id. at 51.]
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Trooper Watkins testified that he charged Appellant with [PWID]

the marijuana at issue “because of the weight of the marijuana 

[and] how it was packaged.” [Id. at 39.] However, Appellant did 

not possess any items typically associated with drug distribution,

including scales, packaging material (other than the ones already 

containing the marijuana), or “owe sheets[.”] [Id. at 53.]

Trooper Watkins also seized Appellant’s cell phone; however he 

never conducted a search of its contents. [Id. at 54.] In contrast, 

Trooper Watkins seized a marijuana grinder from Appellant’s 

vehicle, which, according to Trooper Watkins, is an item of 

paraphernalia consistent with personal use. [Id. at 52.]

Appellant’s Brief at 15-17.3 Additionally, at trial, Appellant stipulated to the 

lab results showing “the items that were tested contained 5.177 grams of 

marijuana and 7.53 grams of THC....” N.T. Trial at 6.

The trial court convicted Appellant of PWID, possession of a controlled 

substance, 35 P.S. § 780-113(a)(16), possession of a small amount of 

marijuana, 35 P.S. § 780-113(a)(31)(i), possession of drug paraphernalia, 35 

P.S. § 780-113(a)(32), and illegally-tinted windows, 75 Pa.C.S. § 4524(e)(1). 

On November 30, 2018, the court sentenced Appellant to 6-23 months’

incarceration and a consecutive term of 3 years’ probation for PWID. The 

court imposed only fines and costs, or no further penalty, at each of the 

remaining offenses. 

____________________________________________

3 After reviewing the trial transcript, we conclude that Appellant’s summary of 

the facts accurately reflects Trooper Watkins’ testimony at trial. As noted, the 

trial court did not provide a summary of the facts adduced at trial. 

Additionally, the Commonwealth failed to file a brief in this case. 
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Appellant timely filed a post-sentence motion, which the court denied

on December 11, 2018. Appellant subsequently filed a timely notice of appeal, 

and a timely, court-ordered Pa.R.A.P. 1925(b) statement. The trial court 

issued a Rule 1925(a) statement on April 9, 2019, indicating that it was would 

rely on its August 14, 2018 suppression opinion.4 

Appellant now presents the following questions for our review:

I. Whether the [t]rial [c]ourt erred in denying Appellant’s 

motion to declare the search and seizure at issue illegal 

under Article 1, Section 8 of the Pennsylvania Constitution 

as well as the Fourth and the Fourteenth Amendments of 

the United States Constitution and suppress all evidence and 

fruit of the poisonous tree that was derived therefrom since 

the arresting officer did not possess the requisite probable 

cause to conduct a warrantless search of Appellant’s 

vehicle?

II. Whether the [t]rial [c]ourt erred in denying Appellant’s 

[m]otion [f]or [judgment] of [a]cquittal with respect to 

Count #1 ([PWID] [m]arijuana) due to insufficient evidence 

being presented at [t]rial to enable the fact-finder to 

properly find that Appellant possessed the marijuana at 

issue with the specific intent to distribute the same, and 

where Appellant was found to have possessed the same unit 

of marijuana for personal use only beyond a reasonable 

doubt?

Appellant’s Brief at 7. 

We will address Appellant’s claims in reverse order for ease of 

disposition. Thus, we first consider Appellant’s sufficiency claim.

____________________________________________

4 The trial court failed to address any other issues in its Rule 1925(a) opinion, 

other than to state that in “regards to [Appellant]’s other issues, we 

respectfully refer the appellate court to the relevant portions of the trial and 

sentencing transcripts.” Trial Court Opinion, 4/9/19, at 1.
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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. 

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal 

citations omitted).

Appellant asserts that the evidence is insufficient to support his 

conviction for PWID-marijuana, because it is ostensibly inconsistent with his 

conviction for possessing a small amount of marijuana for personal use.5 He 

contends that

under the very specific circumstances of this case where the 

Commonwealth never identified what amount of the controlled 

substance at issue was intended for delivery and what amount 

was intended for personal use, it would be factually and legally 

____________________________________________

5 To the extent Appellant argues that the individual facts presented at trial do 

not support a PWID conviction, we deem those matters waived. In Appellant’s 

Rule 1925(b) statement, he raised two sufficiency claims regarding the alleged 

incompatibility of a PWID-marijuana conviction and a possession-ofmarijuana-for-personal-use conviction. In neither instance did he raise the 

numerous individual arguments he now makes in his brief regarding the 

nature of the packaging, the total amount of marijuana seized, his possession 

of use paraphernalia, and the absence of distribution paraphernalia. See

Appellant’s Rule 1925(b) Statement, 1/28/19, at 1-2 ¶¶ I, III. Appellant did 

raise such concerns in the context of a weight-of-the-evidence claim. See id.

at 2 ¶ III. However, Appellant has abandoned his weight claim on appeal, and 

cannot now incorporate such matters under the rubric of a sufficiency claim. 

“Any issues not raised in a 1925(b) statement will be deemed waived.”

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).
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impossible for Appellant to simultaneously possess this single unit 

of marijuana with these two mutually exclusive intentions.

Appellant’s Brief at 32. Appellant further believes that “the Commonwealth 

actually proved, beyond a reasonable doubt, that Appellant possessed the 

marijuana at issue for personal use only, which effectively rendered a 

finding that Appellant possessed the same marijuana with the specific intent 

to deliver the same insufficient.” Id. at 37 (internal citation omitted, emphasis 

in original). 

Appellant is not entitled to relief. First, as a purely logical matter—

assuming for a moment that the case law does not clearly weigh against 

Appellant’s argument as discussed below—it is not clear why the 

Commonwealth had not disproven the possession-of-marijuana-for-personaluse offense by proving, beyond a reasonable doubt, the offense of PWIDmarijuana, rather than vice versa, following Appellant’s strained reasoning. It 

appears merely self-serving for Appellant to challenge his PWID conviction 

rather than his possession-for-personal-use conviction in that regard. 

Moreover, Appellant assumes, incorrectly, that PWID and possession for 

personal use have wholly incompatible mens rea elements. Appellant could 

have intended the aggregate amount of marijuana in part for personal use 

and in part for distribution.6 Accordingly, we ascertain no logical discrepancy

between PWID and possession for personal use, especially where, as here, it 

____________________________________________

6

In this regard, the only mens rea that is truly inconsistent with PWID is not 

possession intended for personal use, but the absence of an intent to possess 

the substance for any purpose whatsoever. 
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is undisputed that Appellant’s marijuana was packaged in five separate 

baggies, where he also had four separate THC vaping devices, and where he 

had all these items in close proximity to an extremely large amount of cash.

Second, it is now axiomatic in this Commonwealth that inconsistent 

verdicts do not render the evidence insufficient with regard to any specific 

conviction. “[U]nder longstanding federal and state law, [inconsistent 

verdicts] are allowed to stand so long as the evidence is sufficient to support 

the conviction.” Commonwealth v. Miller, 35 A.3d 1206, 1208 (Pa. 2012). 

Here, Appellant effectively concedes that the evidence was sufficient to 

support his possession-for-personal-use offense. With regard to the PWIDmarijuana offense: 

In determining whether there is sufficient evidence to support a 

PWID conviction, all facts and circumstances surrounding the 

possession are relevant, and the Commonwealth may establish

the essential elements of the crime wholly by circumstantial 

evidence. Factors to consider in determining whether the drugs 

were possessed with the intent to deliver include the particular 

method of packaging, the form of the drug, and the behavior of 

the defendant.

Commonwealth v. Bricker, 882 A.2d 1008, 1015 (Pa. Super. 2005) (citation 

omitted). 

Here, in determining that the evidence was sufficient to support PWID, 

the trial court stated: “My review of the evidence based on how they were 

packaged, where they were kept, and the money that was kept along with 

him, those all indicate to me[,] ... beyond a reasonable doubt[,] that he 

possessed these with the intent of delivering them or selling them.” N.T. Trial 
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at 76. We ascertain no legal error in the trial court’s reasoning. Although we

acknowledge that the total amount of controlled substances seized and 

Appellant’s possession of paraphernalia were factors consistent with personal 

use, the separate packaging of the drugs and the large sum of cash were 

factors consistent with an intent to distribute. Thus, there was evidence 

supporting both an intent to distribute and an intent to possess the marijuana 

for personal use, and it was exclusively for the factfinder to address the weight 

of the evidence. Our standard of review dictates that we “view the evidence 

in the light most favorable to the verdict winner giving the prosecution the 

benefit of all reasonable inferences....” Widmer, 744 A.2d at 751. It was 

reasonable to infer from the circumstances of this case that Appellant 

possessed the seized contraband with the intent to sell or distribute it. 

Accordingly, Appellant’s sufficiency claim fails. 

Appellant also contends that the trial court abused its discretion when it 

denied his motion to suppress. 

Our standard of review in addressing a challenge to the denial of 

a suppression motion is limited to determining whether the 

suppression court’s factual findings are supported by the record 

and whether the legal conclusions drawn from those facts are 

correct. Because the Commonwealth prevailed before 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 suppression court’s factual findings are 

supported by the record, we are bound by these findings and may 

reverse only if the court’s legal conclusions are erroneous. Where 

... the appeal of the determination of the suppression court turns 

on allegations of legal error, the suppression court’s legal 

conclusions are not binding on an appellate court, whose duty it 
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is to determine if the suppression court properly applied the law 

to the facts. Thus, the conclusions of law of the courts below are 

subject to our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783–84 (Pa. Super. 2012) 

(cleaned up). 

As a general rule, for a search to be reasonable under the Fourth 

Amendment or Article I, Section 8 [of the Pennsylvania 

Constitution,] police must obtain a warrant, supported by 

probable cause and issued by an independent judicial officer, prior 

to conducting the search. This general rule is subject to only a 

few delineated exceptions, including the existence of exigent 

circumstances.

Commonwealth v. Gary, 91 A.3d 102, 107 (Pa. 2014). In Gary, our 

Supreme Court adopted “the federal automobile exception to the warrant 

requirement, which allows police officers to search a motor vehicle when there 

is probable cause to do so and does not require any exigency beyond the 

inherent mobility of a motor vehicle.” Id. at 104. Furthermore,

[t]he Supreme Court of the United States has held that an odor 

may be sufficient to establish probable cause for the issuance of 

a search warrant. United States v. Ventresca, 380 U.S. 102 ... 

(1965); Johnson v. United States, 333 U.S. 10 ... (1948), as 

cited in Commonwealth v. Stoner, ... 344 A.2d 633 ([Pa. Super.] 

1975). In ... Stoner, ... this [C]ourt stated that the rationale used 

to establish probable cause in those Supreme Court cases applies 

equally well when determining the validity of a search of a 

movable vehicle. In Stoner, we analogized a “plain smell”

concept with that of plain view and held that where an officer is 

justified in being where he is, his detection of the odor of 

marijuana is sufficient to establish probable cause. 

Commonwealth v. Stainbrook, 471 A.2d 1223, 1225 (Pa. Super. 1984). 

Appellant essentially argues that the trial court determined that Trooper 

Watkins possessed probable cause to search Appellant’s vehicle based solely 
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on his smelling a faint or subtle odor of marijuana. Appellant’s Brief at 20. 

He asserts that “the supposed detection of a ‘very faint’ and ‘subtle’ odor of 

marijuana may give an officer reasonable suspicion to investigate further, 

[but] it does not support a finding of probable cause necessary for a 

warrantless search of an automobile.” Id. Appellant further argues:

[T]he Commonwealth will suggest that the detection of any odor 

of marijuana, no matter how slight, in and of itself is sufficient to 

establish probable cause. However, neither Stoner nor its 

progeny’s holdings establish such a bright-line rule. Rather, the 

Stoner Court noted that “it would be a dereliction of a duty for a 

police officer to ignore the obvious aroma of an illegal drug which 

he/she was trained to identify.” Stoner, ... 344 A.2d [at] 635 ... 

(emphasis added).

However, in order for the odor of marijuana to be “obvious[,”] it 

must be “easily discovered, seen, or understood.” MERRIAMWEBSTER, http://www.merriam-webster.com/dictionary/obvious 

(last visited June 18, 2019). It goes without saying that 

something that is “subtle” and “faint” cannot be said to be 

“obvious[.”]

Although the Pennsylvania Supreme Court has never addressed 

the specific issue sub judice,

5

the case law is clear and 

Pennsylvania Courts have consistently held that the officer must 

detect a strong and obvious odor of marijuana; and must be able 

to point to other observations, criminal indicators, or a 

combination of both such that a probable cause determination 

must be viewed under the totality of the circumstances.

5 Appellant recognizes that the Pennsylvania Supreme Court 

recently decided In Interest of A.A., 195 A.3d 896 (Pa. 

2018), where the Court announced in dicta that “the odor of 

marijuana alone, particularly in a moving vehicle, is 

sufficient to support at least reasonable suspicion, if not the 

more stringent requirement of probable cause.” Id. at 904. 

However, these statements were not central to the Court’s 

holding, and the issue of whether or not the odor of 

marijuana alone is sufficient to support a finding of probable 

cause was not before the Court. Rather, the question before 
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the Court in In re A.A. was “whether information obtained 

by a police officer during a lawful initial traffic stop may be 

used to justify re-engagement with the driver after the 

police officer indicates the driver is free to go, such that 

consent to search given during that re-engagement is valid. 

Id. at 898.

Appellant’s Brief at 24-25. 

Thus, Appellant contends that only an obvious smell of marijuana will 

independently support a finding of probable cause. He insists that a subtle

or faint smell of marijuana only supports a finding of reasonable suspicion. 

However, this is not a case where the smell of marijuana was the sole basis 

for the finding of probable cause. As articulated by the trial court:

Trooper Watkins testified that [Appellant] appeared to be more 

nervous than what he believe[d] was usual for a normal traffic 

stop. More importantly, the Trooper testified that he smelled a 

strong odor of air freshener overtop a faint odor of marijuana 

coming from inside the vehicle. If this was the extent of the 

record, we may agree with [Appellant] that there is a lack of 

probable cause. However, in addition to the above information, 

[Appellant] admitted to smoking marijuana the day prior to the 

stop. Therefore, upon [Appellant]’s admission, the Trooper’s 

sensory observations of the marijuana and masking air fresheners 

were affirmed, and [Appellant]’s nervous behaviors increased in 

relevance to the likelihood of criminal behavior.5 Viewing all of 

the circumstances known to Trooper Watkins, we find that he 

possessed an articulable substantial basis to conclude that a 

search of [Appellant]’s vehicle would uncover evidence of criminal 

wrongdoing.

5 We note that [Appellant] argues that his admission to 

smoking marijuana the day prior [to the] stop is not 

evidence in favor of the search, but rather evidence that the 

smell of marijuana was old and unrelated to the actual 

presence of a controlled substance in the vehicle. We 

disagree with [Appellant]’s premise that, in conducting his 

investigation, the Trooper must accept every statement 

made by [Appellant] as literal truth. Here, [Appellant] 

admitted to smoking marijuana after initially denying the 
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existence of the smell to the Trooper. We see no reason 

why the Trooper should then be constrained to 

unquestionably accept the timeline given by [Appellant]. 

Moreover, based upon the record, there was no indication 

of where [Appellant] smoked the marijuana. Indeed, if 

[Appellant] smoked marijuana inside the vehicle, there is 

certainly a heightened possibility of the continued presence 

of contraband.

Suppression Opinion at 6-7. 

Appellant premises his claim on the false factual assertion that Trooper 

Watkins searched his vehicle based solely on the faint or subtle smell of 

marijuana. As that was clearly not the only basis for the trial court’s 

determination that Trooper Watkins possessed probable cause, Appellant’s 

claim is meritless. 

Moreover, probable cause exists “where the facts and circumstances 

within the officers’ knowledge are sufficient to warrant a person of reasonable 

caution in the belief that an offense has been or is being committed.” 

Commonwealth v. Green, 168 A.3d 180, 186–87 (Pa. Super. 2017) (quoting 

Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999)). Here, the trial court 

determined that Trooper Watkins possessed probable cause to search 

Appellant’s vehicle based on 1) the subtle smell of marijuana, detectable from 

both sides of Appellant’s car, in conjunction with 2) the presence of a masking 

agent, 3) Appellant’s abnormally nervous behavior during the stop, and 4) 

Appellant’s admission that he had smoked marijuana, after initially denying 

any knowledge of the smell. We ascertain no abuse of discretion in that 

determination. It was reasonable for Trooper Watkins to believe that 
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Appellant was committing a marijuana-related crime based on his 

observations. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/30/2019