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

v.

PHILLIP WRIGHT

Appellant : : : : : : : : : 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 rig ht of Wright’s front door.”

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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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 W right had recently “renewed his sup ply 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 ca ches 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 c onviction except in cases where the offenses are greater and lesser included offenses.” Commonwealth v. Williams , 958 A.2d 522, 52 7 (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

. ”).
A lthough the elements of Wright’s convictions for PWID are indisputably identical, “the facts underlying each crime are t otally 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.J

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In Williams , the defen dant was found to have a stash of cocaine “in his sock” and a s econd 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 cou n ts of possession for two separate incidents

. ” Id

. T h is r ationale is ful ly 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

r eserves 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 di fferent 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, the se respective

reserves were pac kaged 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 le arned Majority to avoid application of Williams is arbitrary and has the potential to create confusion.J

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T his variance risks subsuming the holding in Williams , entirely , if we may simply redefine what constitutes “different locations” on a case

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- case bas is. 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.