J-S13012-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. ROBERT REAGAN Appellant No. 529 WDA 2015

Appeal from the Judgment of Sentence March 12, 2015 In the Court of Common Pleas of Cambria County Criminal Division at No(s): CP-11-CR-0002403-2013
BEFORE: LAZARUS, J., STABILE, J., and FITZGERALD, J

. * MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 23, 2016 Robert Reagan appeals from the judgment of sentenc e entered in the Court of Common Pleas of Cambria County after a jur y convicted him of one count each of delivery of a controlled substance 1 and possession of a controlled substance. 2 Upon careful review, we affirm. The trial court set forth the facts of this case a s follows: On January 17, 2012, the Cambria County Drug Task F orce executed a controlled buy after receiving informati on that [Reagan] illegally distributed bath salts. An unde rcover police officer, Detective Lia DeMarco, and an undercover p olice informant testified regarding their participation i n the controlled

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* Former Justice specially assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30).

2 35 P.S. § 780-113(a)(16).J-S13012-16

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buy. The informant testified he called [Reagan] to arrange a deal to buy bath salts for $150.00. Detective DeMa rco drove the informant to meet [Reagan] at his home and then to a pull-off to purchase the bath salts. At the pull-off, the info rmant and [Reagan] exchanged cash for two vials, which were s ubmitted into evidence without objection. At trial, Detective Kevin Price, Drug Task Force Fi eld Supervisor, testified that a controlled buy includes photocopyi ng the official funds to be used; strip searching the informant bef ore and after the buy; activating a video device on the informant ; and conducting surveillance of the buy. Detective Pric e confirmed that the Drug Task Force properly implemented these techniques during the controlled buy from [Reagan]. Douglas Samber, a forensic scientist for the Pennsy lvania State Police Greensburg Regional Laboratory, testified as an expert in laboratory analysis, laboratory procedures, and ana lysis of controlled substances. Mr. Samber tested the conte nts of the vials purchased from [Reagan] and concluded they co ntained Pyrovalerone, a Schedule V controlled substance. Trial Court Opinion, 5/18/15, at 1-2 (internal cita tions to record and footnote omitted). On January 21, 2014, the Commonwealth filed an inf ormation in which it alleged that Reagan possessed and delivered “Bat h Salts, a Schedule I Controlled Substance.” Information, 1/21/14. Just prior to the commencement of jury selection on October 2, 2014, the Commonwealth moved for a continuance to enable it to amend its i nformation to properly classify the drug involved – pyrovalerone – as a Cl ass V controlled substance. The court granted the continuance and t he information was amended to reflect the proper classification of the drug, which the Commonwealth continued to refer to as “bath salts.”J-S13012-16

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A jury trial was held on December 11 and 12, 2014. At the conclusion of the Commonwealth’s case, Reagan moved for judgme nt of acquittal, arguing that the Commonwealth did not prove he poss essed or delivered “bath salts.” The motion was denied and Reagan was found guilty of the above offenses. On March 12, 2015, the court sente nced Reagan to 6 to 12 months’ imprisonment, to run consecutively to anoth er sentence he is currently serving. Reagan filed a timely notice of appeal, followed by a court-ordered concise statement of errors complaine d of on appeal pursuant to Pa.R.A.P. 1925(b). On appeal, Reagan asserts t hat the Commonwealth failed to present sufficient evidence to convict hi m of possession and delivery of “bath salts,” as alleged in the information, whe re the actual substance contained pyrovalerone. As a general matter, our standard of review of suff iciency claims requires that we evaluate the record in the light m ost favorable to the verdict winner giving the prosecution the be nefit of all reasonable inferences to be drawn from the evidence . Evidence will be deemed sufficient to support the verdict wh en it establishes each material element of the crime char ged and the commission thereof by the accused, beyond a reasona ble doubt. Nevertheless, the Commonwealth need not establish g uilt to a mathematical certainty. The facts and circumstance s established by the Commonwealth need not be absolutely incompat ible with the defendant’s innocence. Any doubt about the def endant’s guilt is to be resolved by the fact finder unless t he evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. Commonwealth v. Mauz , 122 A.3d 1039, 1040-41 (Pa. Super. 2015) (citation omitted).J-S13012-16

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The purpose of an information is to provide the ac cused with sufficient notice to prepare a defense, and to ensure that he will not be tried twice for the same act. Commonwealth v. Alston , 651 A.2d 1092, 1095 (Pa. 1994) (citations omitted). An information is sufficient if it sets forth the elements of the offense intended to be charged with sufficie nt detail that the defendant is apprised of what he must be prepared t o meet, and may plead double jeopardy in a future prosecution based on th e same set of events. Id. At an earlier stage of legal development, indictmen ts were strictly and technically construed, and the slightest imprecisio n in wording was often considered incurable error. Commonwealth v. Pope , 317 A.2d 887, 890 (Pa. 1974). Today, however, such arguments are unp ersuasive. Id. Indictments must be read in a common-sense manner, and are not to be construed in an overly technical sense. Id. Here, Reagan concedes that he had sufficient notice of the crimes of which he was accused. Instead, he asserts that “th e Commonwealth did not prove what it had set out to prove in its informati on.” Brief of Appellant, at 17. Reagan claims that the Commonwealth did not pr esent sufficient evidence to prove that “bath salts” is the street n ame for pyrovalerone, the drug he sold to the informant.
In Commonwealth v. Kelly , 409 A.2d 21 (Pa. 1979), our Supreme Court was presented with the defendant’s claim that judgment should have been arrested because the complaint charged that he was in possession ofJ-S13012-16

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heroin, but the proof at trial showed the controlle d substance to have been methamphetamines. The Court rejected the argument, concluding that “[v]ariations between allegations and proof at tria l are not fatal unless a defendant could be misled at trial, prejudicially s urprised in efforts to prepare a defense, precluded from anticipating the prosecution’s proof, or otherwise impaired with respect to a substantial ri ght.” Id. at 23. In his brief, Reagan acknowledges that “ Kelly appears to remain good law, as the Supreme Court has cited to both cases i n addressing claims by defendants that are based on variances in proof.” Brief of Appellant, at 20. However, Reagan cites the age of the case, as well as the fact that this Court has not applied it to a drug case in over thi rty years, and essentially asks us to disregard its holding. In support of his claim, Reagan also cites to the decision of the U.S. Court of Appeals for the Third Circuit in United States v. Tucker , 703 F.3d 205 (3d Cir. 2012). There, the Third Circuit addre ssed whether the defendant’s previous Pennsylvania conviction for po ssession with intent to deliver qualified as a “serious drug offense” under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). However , Tucker is not only not binding on this Court, but also inapposite. Specif ically, Tucker does not concern itself with the propriety of the underlying state conviction, i.e., whether the Commonwealth’s evidence was sufficient to convict him of the state charges. Indeed, the Third Circuit did not h old that Tucker was improperly convicted under Pennsylvania law. Rathe r, it concluded only thatJ-S13012-16

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Tucker’s Pennsylvania convictions did not satisfy t he requirements necessary for the imposition of an enhanced sentence under th e ACCA. Accordingly, Tucker provides no guidance here. The amended information charged Reagan with posses sing and distributing a Schedule V controlled substance. Al though that substance was described by the street name “bath salts,” we find that the amended information provided Reagan with adequate notice of the charges against him to enable him to prepare his defense. Alston , supra ; Kelly , supra . Moreover, the evidence adduced at trial was suffici ent to enable the jury to infer that the street name for pyrovalerone in Camb ria County is “bath salts.” See Mauz , supra (in sufficiency claim, prosecution receives benefi t of all reasonable inferences to be drawn from evide nce adduced at trial). Specifically, Detective DeMarco testified that the informant spoke with Reagan and made arrangements to buy a drug called “ blizzard,” which she testified is also known locally as “bath salts.” N .T. Trial, 12/11/14, at 29-30. In addition, the informant, Donald Forshey, testifi ed that after speaking with Reagan on the telephone, he understood he would be purchasing bath salts and that it would cost a total of $150. See id. at 76. Forshey further stated that he met Reagan in Reagan’s garage and discussed obtaining bath salts. Id. at 78. Based on this testimony, it is clear that Reagan understood that Forshey wanted to purchase bath salts and provided him with the drug known by that name. Accordingly, Reagan is entitle d to no relief. Judgment of sentence affirmed.J-S13012-16

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/23/2016