J-S28036-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

PHILLIP WRIGHT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 180 EDA 2020

Appeal from the Judgment of Sentence Entered December 26, 2019

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

No(s): CP-23-CR-0002632-2019

BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*

CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:

FILED DECEMBER 16, 2021

Although I concur in the learned Majority’s analysis concerning the 

suppression motion and discovery sanctions, I cannot join in their conclusion 

that Wright’s separate convictions for possession with intent to distribute 

(“PWID”) should merge. Hence, I respectfully dissent. Specifically, I would 

hold that the two stashes of cocaine maintained by Appellant support 

independent PWID convictions.

As the Majority has aptly explained, cocaine was discovered in two 

separate locations on Wright’s front porch. Specifically, a leather pouch 

containing individually packaged bags of cocaine was recovered from the 

mailbox “located outside and to the immediate right of Wright’s front door.” 

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* Retired Senior Judge assigned to the Superior Court.
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Majority Memorandum at 2. Separately, two larger bags of cocaine were 

discovered in the “trashcan on the front porch directly next to Wright’s 

apartment.” Id. While police were aware that Wright had recently “renewed 

his supply of cocaine with a large quantity,” it is beyond cavil that Wright

chose to divide this illicit stockpile for separate storage and packaging. The 

Majority has concluded that since both the trashcan and the mailbox were on 

Wright’s front porch, these caches should be treated as one and the same. 

Id. at 12 (“Both counts of PWID and both counts of possession of drug 

paraphernalia arose from [Wright’s] single act of preparing the large quantity 

of cocaine he had just received from his supplier for distribution.”). I disagree.

As a general matter, “in all criminal cases, the same facts may support 

multiple convictions and separate sentences for each conviction except in 

cases where the offenses are greater and lesser included offenses.” 

Commonwealth v. Williams, 958 A.2d 522, 527 (Pa.Super. 2008); see also 

42 Pa.C.S. § 9765 (“No crimes shall merge for sentencing purposes unless the 

crimes arise from a single criminal act and all of the statutory elements of one 

offense are included in the statutory elements of the other offense.”). 

Although the elements of Wright’s convictions for PWID are indisputably 

identical, “the facts underlying each crime are totally separate and constitute 

two different criminal acts.” Williams, supra at 527. Specifically, Wright’s

“convictions are based on his possession of cocaine in two different locations 

and of two different amounts.” Id.at 528. 
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In Williams, the defendant was found to have a stash of cocaine “in his 

sock” and a second one hidden in his car. On these facts, Williams was found 

guilty of two counts of possession of a controlled substance. On appeal, this 

Court concluded that Williams’ sentences did not merge because his 

convictions were predicated upon “two separate counts of possession for two 

separate incidents.” Id. This rationale is fully applicable in the instant case, 

wherein Wright was indisputably found to maintain discrete collections of 

cocaine around his property. Pursuant to Williams, I would conclude that 

Wright’s convictions for PWID do not merge because these differentiated

reserves constituted separate facts pursuant to § 9765.

I also emphasize that Williams contains no discussion of the requisite 

physical distance that must exist between two stashes of narcotics to avoid 

waiver where the Commonwealth charges multiple possessory offenses. 

Rather, all that Williams requires is that Appellant possessed “two different 

amounts” of cocaine in “two different locations.” Williams, supra at 528. 

Instantly, the stockpiles maintained by Appellant were secreted in separate 

containers, i.e., the mailbox and the trashcan. Furthermore, these respective 

reserves were packaged differently and were not comingled. The mere fact 

that both containers were housed on Appellant’s front porch does not, in my 

opinion, undermine the application of Williams to these circumstances. To 

my mind, the factual distinction drawn by the learned Majority to avoid 

application of Williams is arbitrary and has the potential to create confusion. 
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This variance risks subsuming the holding in Williams, entirely, if we may

simply redefine what constitutes “different locations” on a case-by-case basis.

Therefore, I respectfully dissent as to the merger holding and the need 

to remand the case for resentencing. In all other aspects, I concur in the 

Majority’s memorandum.