J-S35022-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CURTIS CLAY PHILLIPS,

Appellant No. 2168 EDA 2014

Appeal from the Judgment of Sentence June 20, 2014

In the Court of Common Pleas of Northampton County

Criminal Division at No(s): CP-48-CR-0001893-2013

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 21, 2016

Appellant, Curtis Clay Phillips, appeals from the judgment of sentence 

of two to eight years’ imprisonment, followed by three years’ probation, 

imposed after he was convicted of possession with intent to deliver (PWID), 

possession of a controlled substance, possession of drug paraphernalia, and 

two traffic violations. For the following reasons, we conclude that 

Appellant’s issues are meritless. However, we sua sponte recognize that he 

received an illegal, mandatory minimum sentence under 18 Pa.C.S. § 7508. 

Accordingly, we vacate his judgment of sentence and remand for 

resentencing.

The facts of this case can be briefly summarized as follows. On March 

6, 2013, Trooper Michael C. Kalinchock stopped Appellant’s vehicle on the 

side of an interstate highway, after observing Appellant commit traffic 
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violations, including following another vehicle too closely and failing to use 

his turn signal. Upon running Appellant’s license plate number through the 

National Crime Information Center (NCIC), the trooper discovered that the 

vehicle was registered to Appellant, Appellant had an outstanding warrant 

for his arrest for a firearms charge, and Appellant was considered armed and 

dangerous. Accordingly, Trooper Kalinchock called for backup, and after 

other officers arrived, he removed Appellant and another individual from 

Appellant’s car. 

After arresting Appellant on the outstanding warrant, and discovering 

that his cohort did not have a valid driver’s license, Trooper Kalinchock 

determined that Appellant’s vehicle would have to be removed from the side 

of the highway and towed to a secure location, in accordance with the 

written policies of the Pennsylvania State Police. Those policies also required 

Trooper Kalinchock to perform an inventory search of the car before the tow 

truck removed it. Accordingly, Trooper Kalinchock began an inventory 

search, during which he opened the center console located between the 

driver and passenger seats. In plain view inside that console, Trooper 

Kalinchock discovered approximately 190 packets of heroin. 

Based on these facts, Appellant was charged with the above-stated 

offenses. Prior to trial, he filed a motion to suppress the drugs recovered 

from his vehicle, and a hearing was conducted on September 6, 2013. On 

November 27, 2013, the trial court denied Appellant’s motion to suppress. 

His case proceeded to a jury trial, which was conducted on December 4-5, 
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2013. At the close thereof, the jury found Appellant guilty of PWID, 35 P.S. 

§ 780-113(a)(30); possession of a controlled substance, 35 P.S. § 780-

113(a)(16); and possession of drug paraphernalia, 35 P.S. § 780-

113(a)(32). On February 14, 2014, just prior to Appellant’s sentence being 

imposed, the court also found him guilty of the summary traffic offenses of 

following too closely, 75 Pa.C.S. § 3310, and turning movements and 

required signals, 75 Pa.C.S. § 3334. After convicting Appellant of those 

offenses, the court imposed a sentence of two to eight years’ incarceration, 

followed by three years’ probation, for Appellant’s PWID offense. No further 

penalty was imposed. Finally, at the close of the sentencing proceeding, 

Appellant’s counsel sought, and was granted, permission to withdraw from 

representing Appellant.

At this point, the procedural history of Appellant’s case becomes more 

complex. On February 20, 2014, Appellant - who was at that point 

proceeding pro se - filed a “Motion to Reconsider Sentence.” On March 6, 

2014, new counsel entered his appearance on Appellant’s behalf. On March 

31, 2014, the Honorable Edward G. Smith, the judge who presided over 

Appellant’s trial and sentencing, was appointed to the federal bench. See 

Trial Court Opinion (TCO), 7/16/14, at 1 (unnumbered) (opinion drafted by 

the President Judge of Northhampton County who was assigned this case 

following Judge Smith’s departure). Presumably because of Judge Smith’s 

departure, the court did not rule on Appellant’s post-sentence motion. Thus, 

that motion should have been denied by operation of law 120 days later, or 
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on Friday, June 20, 2014. See Pa.R.Crim.P. 720(B)(3)(a). However, as the 

Commonwealth concedes, see Commonwealth’s Brief at 3 n.7, a breakdown 

in the operation of the court occurred and the Northampton County Clerk of 

Courts never entered an order denying Appellant’s post-sentence motion by 

operation of law, as it was required to do under Pa.R.Crim.P. 720(B)(3)(c).

Despite that an order ruling on Appellant’s post-sentence motion was 

never filed, Appellant’s counsel filed a notice of appeal on July 10, 2014. 

That notice of appeal was filed within 30 days from the date on which the 

order denying Appellant’s post-sentence motion should have been entered 

by the clerk of courts. Consequently, we conclude that Appellant’s notice of 

appeal was timely filed. 

The trial court, however, deemed Appellant’s notice of appeal 

untimely. See TCO at 1. The court’s decision was premised on its 

erroneous belief that Appellant did not file a post-sentence motion. See id. 

The court’s error in this regard was likely caused by the clerk of court’s 

mistake in not filing an order denying the post-sentence motion by operation 

of law. Because the trial court concluded that Appellant’s notice of appeal 

was untimely filed, it did not direct him to file a Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. Moreover, while the court 

issued a Rule 1925(a) opinion, it did not address any issues, or even set 

forth the facts and procedural history of Appellant’s case. Instead, the court 

simply discussed its conclusion that Appellant’s appeal was untimely filed. 
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During the pendency of Appellant’s appeal, he had two different 

attorneys enter their appearance on his behalf, and both sought permission 

to withdraw, which we granted by per curiam orders. Appellant also filed a 

motion seeking to proceed pro se, and we remanded for the court to conduct 

a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), 

to ascertain if Appellant’s waiver of his right to counsel was knowing, 

intelligent, and voluntary. After conducting a Grazier hearing, the court 

permitted Appellant to proceed pro se. 

On January 22, 2016, Appellant filed a 68-page, handwritten brief that 

fails to adhere to the Pennsylvania Rules of Appellate Procedure. Namely, 

his brief does not contain the following sections: Statement of Jurisdiction 

(Pa.R.A.P. 2114), Order or Other Determination in Question (Pa.R.A.P. 

2115), Statement of Questions Involved (Pa.R.A.P. 2116), or Summary of 

Argument (Pa.R.A.P. 2118). Appellant’s issues are interspersed throughout 

his brief, and include numerous subsidiary claims that are not included in, or 

even suggested by, the statement of the questions he sets forth. It is an 

understatement to say that it is unclear from a cursory review of 

Appellant’s brief what (or how many) issues he is seeking to raise.

On February 19, 2016, the Commonwealth filed a motion to quash 

Appellant’s brief based on the fact that he violated Pa.R.A.P. 2135, which 

directs that a principal brief “shall not exceed 14,000 words....” Pa.R.A.P. 

2135(a)(1). By utilizating an approximation method discussed by this Court 

in Commonwealth v. Spuck, 86 A.3d 870, 873 (Pa. Super. 2014), the 
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Commonwealth estimated that Appellant’s 68-page brief contains 

“approximately 20,808 words.” Commonwealth’s Motion to Quash, 2/19/16, 

at 2 (unnumbered). Accordingly, the Commonwealth argued that this Court 

should “quash Appellant’s brief in its entirety or the portion of Appellant’s 

brief that goes beyond the limitation.” Id. at 2-3 (unnumbered; citation 

omitted).

On March 14, 2016, Appellant filed a typed reply brief that set forth 

the sections omitted from his principal brief, as discussed supra. Therein, he 

set forth the following seven issues for our review, which we reproduce 

verbatim:

1.) Was Northampton County Adult Probation and Parole Officer 

Timothy D. Werkheiser without jurisdiction required to petition 

the court for a violation of parole conditions? Was the court 

without jurisdiction required to find a violation thereof where it 

appears that the parole ordered was specifically ordered, by 

statute, to be without supervision?

2.) Was the March 6th, 2013 traffic stop, search and seizure of 

my vehicle improper under the circumstances? Did the court err 

in denying my omnibus pre-trial motion to suppress the evidence 

seized as a result of the search?

3.) Has the court violated my right to due process of law by 

withholding evidence? Altering evidence? Refusing to provide 

me with a certified copy of the court record? Causing me to 

stand trial on charges stemming directly from an alleged 

violation of parole prior to finding me guilty of violation?

4.) Did the court err when it failed to hold a hearing in 

accordance with Comm. V. Carroll prior to the imposition of 

sentence upon my request and, as a result, was my right to due 

process of law violated?

5.) Did the court err in the deemed denial of my post-sentence 

motions?
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6.) Has the court violated my right to a fair and impartial trial in 

a cumulative theory sense?

7.) Did the court abuse its discretion in application of an eight 

(8) year maximum sentence of confinement while, at the same 

time, invoking the mandatory minimum of two (2) years? In 

sentencing an additional three (3) year term of “special” 

probation upon parole?

Appellant’s Reply Brief at 1-2 (unnumbered).

Upon reviewing Appellant’s principal brief and reply brief, we chastise 

him not only for being excessively wordy and for failing to adhere to the 

Rules of Appellate Procedure, but also for presenting extremely confusing 

arguments (in difficult to read handwriting) that contain numerous claims 

and sub-claims not set forth, nor even suggested by, the above-stated 

issues. That being said, however, we decline to grant the Commonwealth’s 

motion to quash Appellant’s brief in its entirety, or to quash the part of his 

brief that exceeds the page limitation.1 Rather, we will attempt to address 

those claims of Appellant’s that we can readily understand, and which are 

sufficiently developed to permit our meaningful review. To the extent that 

we exclude certain claims that have been lost within Appellant’s excessively 

lengthy and confusing brief, the fault is Appellant’s, and we consider those 

claims waived for our review.

In Appellant’s first issue, he challenges the ‘jurisdiction’ of a parole 

officer to seek revocation of his parole based on a technical violation in a 

____________________________________________

1 Accordingly, the Commonwealth’s motion to quash is denied.
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case unrelated to the present matter. See Appellant’s Brief at 11-17. 

Appellant reiterates this argument in his second and third issues, as well. 

See id. at 17-19; 28. Appellant acknowledges that these claims are 

“technically[] a challenge to the legality of [his] preceding sentence.” Id. at 

12. Because this is not an appeal from the judgment of sentence in that 

case, we cannot entertain Appellant’s challenge to that parole revocation or 

sentence herein. Accordingly, we will not address any of the arguments 

presented in his first issue, or his reiteration of those claims in other portions 

of his brief.

In Appellant’s second issue, he challenges the suppression court’s 

denial of his motion to suppress. Our standard of review for denial of a 

suppression motion is as follows:

In reviewing an order from a suppression court, we consider the 

Commonwealth’s evidence, and only so much of the defendant’s 

evidence as remains uncontradicted. We accept the suppression 

court’s factual findings which are supported by the evidence and 

reverse only when the court draws erroneous conclusions from 

those facts.

Commonwealth v. Hoopes, 722 A.2d 172, 174-75 (Pa. Super. 1998). 

First, he attacks the credibility of the officer who stopped his vehicle, 

Trooper Kalinchock, claiming that the trooper’s testimony was unbelievable. 

See Appellant’s Brief at 20-21. In particular, Appellant asserts that Trooper 

Kalinchock’s testimony that Appellant failed to use his turn signal was belied 

by a video shown at the suppression hearing demonstrating that his turnsignal was blinking when he made the “turn in question.” Id. at 22. 
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At the suppression hearing, the defense played a video from the police 

cruiser’s dashboard camera, which showed that Appellant’s turn-signal was 

blinking. N.T. Suppression Hearing, 9/6/13, at 39. Trooper Kalinchock 

explained, however, that Appellant’s signal “was blinking at that point but 

when [the car] moved from the single lane into the left [turning] lane it did 

not use its directional signal until it approached 78 and then put its 

directional on.” Id. The suppression court found that “Trooper Kalinchock’s 

testimony was consistent with ... the video....” Suppression Court Opinion 

(SCO), 11/27/13, at 7. The court explained:

The video from the dashboard camera did not clearly show 

whether the operator was using the left-turn signal as the car 

moved into the left turn lane on Morgan Hill Road. Trooper 

Kalinchock testified that not everything he saw was visible on 

the video, because the dashboard camera was stationary, the 

video was not very clear, and there was some distance between 

the patrol car and [Appellant’s] car. See N.T. Suppr. Hrg. At 43-

44. The video did clearly show that after the car made the left 

turn from Morgan Hill Road onto the access ramp, the car’s leftturn signal was blinking. However, this evidence proved only 

that [Appellant] activated the signal sometime after he made the 

left turn. It did not prove that [Appellant] had activated the 

signal at or before the moment he made the left turn onto the 

access ramp. Thus, the [c]ourt found that the video was 

inconclusive and did not contradict Trooper Kalinchock’s 

testimony.

Id. at 8. The record supports the suppression court’s factual findings, and 

we may “not substitute our credibility determinations for that of the 

suppression court.” Commonwealth v. Queen, 639 A.2d 443, 445 (Pa. 

1994). Therefore, Appellant’s first attack on the suppression court’s ruling is 

meritless.
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Appellant also contends that the evidence recovered from his vehicle 

should have been suppressed because Trooper Kalinchock conducted an 

illegal inventory search. This Court has summarized the law regarding 

inventory searches, as follows:

Inventory searches are a well-defined exception to the 

search warrant requirement. Colorado v. Bertine, 479 U.S. 

367, 371, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); 

Commonwealth v. Nace, 524 Pa. 323, 327, 571 A.2d 1389, 

1391 (1990), cert. denied, 498 U.S. 966, 111 S.Ct. 426, 112 

L.Ed.2d 411 (1990). “The purpose of an inventory search is not 

to uncover criminal evidence. Rather, it is designed to safeguard 

seized items in order to benefit both the police and the 

defendant.” Commonwealth v. Woody, 451 Pa. Super. 324, 

679 A.2d 817, 819 (1996). See also Commonwealth v. 

Brandt, 244 Pa. Super. 154, 366 A.2d 1238, 1241 (1976) (en 

banc). Inventory searches serve one or more of the following 

purposes: (1) to protect the owner's property while it remains in 

police custody; (2) to protect the police against claims or 

disputes over lost or stolen property; (3) to protect the police 

from potential danger; and (4) to assist the police in determining 

whether the vehicle was stolen and then abandoned. See South 

Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 49 

L.Ed.2d 1000 (1976).

A warrantless inventory search of an automobile is 

different from a warrantless investigatory search of the same. An 

inventory search of an automobile is permitted where: (1) the 

police have lawfully impounded the automobile; and (2) the 

police have acted in accordance with a reasonable, standard 

policy of routinely securing and inventorying the contents of the 

impounded vehicle. Id. at 368–372, 96 S.Ct. 3092. A 

warrantless investigatory search of an automobile requires both 

a showing of probable cause to search and exigent 

circumstances. See Commonwealth v. Luv, 557 Pa. 570, 735 

A.2d 87 (1999); Commonwealth v. White, 543 Pa. 45, 669 

A.2d 896 (1995).

In determining whether a proper inventory search has 

occurred, the first inquiry is whether the police have lawfully 

impounded the automobile, i.e., have lawful custody of the 
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automobile. Opperman, 428 U.S. at 368, 96 S.Ct. 3092. The 

authority of the police to impound vehicles derives from the 

police's reasonable community care-taking functions. Id. Such 

functions include removing disabled or damaged vehicles from 

the highway, impounding automobiles which violate parking 

ordinances (thereby jeopardizing public safety and efficient 

traffic flow), and protecting the community's safety. Id. at 368–

369, 376 n. 10, 96 S.Ct. 3092.

The second inquiry is whether the police have conducted a 

reasonable inventory search. Id. at 370, 96 S.Ct. 3092. An 

inventory search is reasonable if it is conducted pursuant to 

reasonable standard police procedures and in good faith and not 

for the sole purpose of investigation. See Bertine, 479 U.S. at 

374, 107 S.Ct. 738 (“reasonable police regulations relating to 

inventory procedures of automobiles administered in good faith 

satisfy the Fourth Amendment, even though courts might as a 

matter of hindsight be able to devise equally reasonable rules 

requiring a different procedure”). Compare Florida v. Wells, 

495 U.S. 1, 4–5, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990) (where 

police had no standard procedure with respect to the opening of 

closed containers found during inventory searches, marijuana 

found in a closed suitcase was properly suppressed). Said 

another way, the inventory search must be pursuant to 

reasonable police procedures, and conducted in good faith and 

not as a substitute for a warrantless investigatory search.

Commonwealth v. Hennigan, 753 A.2d 245, 254-55 (Pa. Super. 2000).

Here, Appellant first avers that his vehicle was not lawfully impounded, 

pointing out that the Commonwealth offered no evidence that it was 

necessary to tow his car, such as proof that it was illegally parked. 

Appellant also avers that Trooper Kalinchock was required to “grant 

[Appellant] the opportunity, under the circumstances, to call someone to 

remove [his] vehicle for [him]” before having it towed. Appellant’s Brief at 

23. In support, Appellant cites Commonwealth v. Germann, 621 A.2d 

589 (Pa. Super. 1993). 
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In rejecting these arguments, the suppression court declared:

By statute, Pennsylvania law enforcement officials have 

authority to impound a car when the driver is taken into custody. 

See 75 Pa.C.S.A. § 3352(c)(3). 

§ 3352. Removal of vehicle by or at direction of 

police.

...

(c) Removal to garage or place of safety.--Any police 

officer may remove or cause to be removed to the place of 

business of the operator of a wrecker or to a nearby 

garage or other place of safety any vehicle found upon a 

highway under any of the following circumstances:

...

(3) The person driving or in control of the vehicle is 

arrested for an alleged offense for which the officer is 

required by law to take the person arrested before an 

issuing authority without unnecessary delay.

Id. Section 3352 is based on the need to remove the car from 

the highway, where it could pose a safety hazard. See [] 

Hennigan, 753 A.2d [at] 258-59....

[T]he phrase “control of the vehicle” reasonably means 

control of a vehicle on a highway where the vehicle poses 

a possible public safety concern or traffic control concern if 

left unattended. ... If a defendant is driving alone and the 

police stop him in his car on a highway and arrest him, the 

presence of the car on a highway usually poses a public 

safety concern if left there unattended. Thus, ... subsection 

(c)(3) covers situations where a public safety concern or 

traffic hazard exists, and where the arrestee is either 

“driving” or otherwise in “control” of the vehicle at the time 

of arrest. When interpreted in this manner, § 3352(c)(3) 

authorizes police to impound a vehicle in circumstances 

that involve the community care-taking functions of the 

police, such as public safety concerns and traffic control 

concerns, and, thus, comports with constitutional 

standards for impoundment
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Id. (police did not obtain lawful custody of vehicle under section 

3352(c)(3) for purposes of determining validity of inventory 

search; defendant’s car was legally parked on public street, he 

was not driving his vehicle, he was not near the vehicle at the 

time of his arrest, his vehicle was not shown to have a nexus to 

the crime for which he was being arrested, no items of value 

were in plain view in the vehicle, and the vehicle was not shown 

to cause any public safety concern or traffic control concern).

When Trooper Kalinchock stopped [Appellant’s] car, it was 

on I-78, an interstate highway. Thus, leaving the car there 

unattended would have posed a public safety hazard. Trooper 

Kalinchock determined that [Appellant] was the driver. Thus, 

[Appellant] was “driving or in control of the vehicle.” 75 

Pa.C.S.A. § 3352(c)(3). After Trooper Kalinchock stopped 

[Appellant’s] car, he learned that there was a warrant for 

[Appellant’s] arrest, and on the basis of that warrant, he took 

[Appellant] into custody. Thus, [Appellant] was “arrested.” Id. 

The warrant directed that [Appellant] be “held in County Jail 

until the Court is opened for business, at which time [Appellant] 

shall be promptly conveyed and delivered into the custody of the 

Court.” Suppr. Hrg., Ex. C-1. Thus, [Appellant] was being held 

“for an alleged offense for which the officer is required by law to 

take the person arrested before an issuing authority without 

unnecessary delay.” 75 Pa.C.S.A. § 3352(c)(3). [Appellant’s] 

passenger did not have a valid driver’s license and could not 

drive the car away from the scene. Based on these 

circumstances, Trooper Kalinchock lawfully impounded 

Appellant’s car under 75 Pa.C.S.A. § 3352(c)(3).

[Appellant] argues that police did not lawfully take custody 

of his car, because, he asserts, Trooper Kalinchock was required 

to offer him the opportunity to make his own arrangements to 

have his car towed rather than impounding the car pursuant to 

75 Pa.C.S.A. § 3352(c)(3). We disagree.

The only authority [Appellant] cites for such a requirement 

is ... Germann, 621 A.2d 589 .... However, the car in Germann

was not stopped on a highway where it posed a public safety 

hazard but was parked on a city street. See id. The Superior 

Court has limited the holding of Germann to cases in which 

public safety is not at issue. See Commonwealth v. 

Chambers, 920 A.2d 892, 897 n.5 (Pa. Super. 2007).
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To the extent Appellant cites to ... Germann ... for the 

proposition that the police officer was required to ask [the 

defendant] whether he wished to make arrangements for 

the pick-up truck instead of the police impounding it, we 

find the case to be distinguishable. In Germann, a panel 

of this Court determined that there was no justification for 

towing the vehicle and there was no evidence that the 

vehicle at issue was obstructing traffic or otherwise 

creating a safety hazard. Such was not the situation in the 

case sub judice. 

Id. As noted above, [Appellant’s] car was on the side of an 

interstate highway and would have posed a public safety hazard 

if left unattended. Thus, Trooper Kalinchock lawfully impounded 

[Appellant’s] car.

SCO at 13-17 (one citation omitted).

Based on the suppression court’s analysis, and our review of the case 

law relied upon by the court, we ascertain no abuse of discretion in the 

court’s ruling that Appellant’s vehicle was lawfully impounded. Therefore, 

the first prong of the test for determining if a valid inventory search occurred 

was satisfied. 

Appellant, however, also challenges the second prong of the inventory 

search test. He maintains that Trooper Kalinchock’s search was truly for 

investigative purposes and, therefore, it was not a valid inventory search. 

The suppression court did not rule on this claim, as it concluded that even if 

the trooper had searched the car for an improper purpose, the evidence 

found therein would have been inevitably discovered aside from Trooper 

Kalinchock’s search. The suppression court reasoned:

Even where evidence has been illegally seized, the 

evidence is nevertheless admissible if it inevitably would have 

been discovered pursuant to a lawful search. See Nix v. 
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Williams, 467 U.S. 431, 448 (1984); Commonwealth v. 

Bailey, 986 A.2d 860, 862 (Pa. Super. 2009); Commonwealth 

v. Gonzalez, 979 A.2d 879, 890-91 (Pa. Super. 2009). 

[E]vidence that ultimately or inevitably would have been 

recovered by lawful means should not be suppressed 

despite the fact that its actual discovery was accomplished 

through illegal actions. ... Suppressing evidence in such 

cases, where it ultimately or inevitably would have been 

lawfully recovered, “would reject logic, experience, and 

common sense.” 

Gonzalez, 979 A.2d at 890-91 (quoting Nix, 467 U.S. at 444).

Thus, even where police perform an illegal search of a 

vehicle before it is impounded, if the evidence seized inevitably 

would have been discovered during a routine inventory search of 

the impounded vehicle, the evidence is admissible under the 

inevitable-discovery exception. See Bailey, 986 A.2d at 863.

[B]ecause [the defendant] was arrested while in control of 

his vehicle, the police were legally permitted to tow the 

car, they would have conducted an inventory of the car 

which would have included looking in obvious storage 

places such as the glove compartment and the center 

console. Because they would have legally opened the 

center console during a proper inventory search, the gun 

would have been found. ... Because the police would have 

been able to tow [the defendant’s] car pursuant to his 

arrest and because the police conduct routine inventory

searches whenever a car is towed, and an inventory search 

includes looking into obvious storage places such as the 

center console, we must agree that the gun would have 

inevitably been discovered absent police error or 

misconduct. Therefore the record supports the 

suppression court[’s] determination that evidence was not 

subject to suppression.

Id. 

The same rationale applies here. Even assuming that 

Trooper Kalinchock searched [Appellant’s] car for the improper 

purpose of locating contraband, the evidence he found is 

nevertheless admissible, because it inevitably would have been 

discovered pursuant to a lawful inventory search at the impound 

lot. Trooper Kalinchock had to arrest [Appellant] due to the 
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existence of the outstanding warrant. [Appellant’s] passenger 

could not drive the car away from the scene. Therefore, 

pursuant to 75 Pa.C.S.A. § 3352(c)(3), Trooper Kalinchock had 

to arrange for the car to be towed to a secure facility. Once in 

storage, under the Pennsylvania State Police Vehicle Storage 

Procedure, the car would have been subjected to an inventory 

search. Because the one hundred ninety (190) packets of heroin 

seized from [Appellant’s] car were located in the center console 

(as in Bailey), it is certain that the heroin would have been 

found during the inventory search. Accordingly, the heroin is 

admissible under the inevitable-discovery exception to the 

warrant requirement.

SCO at 18-20.

Appellant offers one argument challenging the court’s admission of this 

evidence under the inevitable discovery doctrine. He maintains that, 

the police inventory policy ... fails to specifically identify a policy 

with regard to the searching of closed compartments within the 

vehicle, which is an element of a lawful inventory search 

pursuant to ... Wells, 495 U.S. 1 ... (police must directly specify 

a standardred [sic] procedure regarding the searching of closed 

compartments with-in [sic] the vehicle, and there can be no 

room for discretion on the part of the individual officer 

conducting the search)[,] in conjunction with ... Bertine, 479 

U.S. 367 .... Under the above authorities, any contraband which 

has been seized from a closed compartment with-in [sic] the 

vehicle in question will still be inadmissible in the absence of a 

directive which specifically authorizes an individual officer to 

open such compartments during a standardred [sic] inventory 

search of the vehicle.

Appellant’s Brief at 26.

Appellant does not discuss Bailey, or the suppression court’s reliance 

thereon to conclude that the center console of his car would have been 

lawfully opened during a routine inventory search of his vehicle after it was 

impounded. In Bailey, this Court characterized the center console of a 

vehicle as an “obvious storage place” that can be “legally opened ... during a 
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proper inventory search....” Bailey, 986 A.2d at 862. While Appellant 

contends that the console was a ‘closed compartment’ that could not be 

opened without proof that the police had an inventory policy specifically 

addressing the opening of such a ‘compartment,’ the cases on which he 

relies are distinguishable. Namely, in both Wells and Bertine, police 

officers opened a closed container - a locked suitcase and a closed backpack, 

respectively - that was found inside the car. Unlike in the present case, the 

containers opened in Wells and Bertine were separate containers simply 

located inside the car - they were not part of the vehicle itself, such as the 

center console is in the present case. Accordingly, Appellant has not 

convinced us that our holding in Bailey, or the suppression court’s ruling 

here, are incorrect in light of Wells and/or Bertine. Therefore, his 

challenge to the suppression court’s admission of the heroin is meritless.

In Appellant’s next issue, his third, he presents several sub-claims. 

First, he argues that the court violated Brady v. Maryland, 373 U.S. 83 

(1963), by withholding certain evidence. 

[T]o establish a Brady violation, a defendant must demonstrate 

that: (1) the evidence was suppressed by the Commonwealth, 

either willfully or inadvertently; (2) the evidence was favorable 

to the defendant; and (3) the evidence was material, in that its 

omission resulted in prejudice to the defendant. 

Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297, 308 

(2011).

Commonwealth v. Haskins, 2012 PA Super 223, 60 A.3d 538, 545 

(2012). Appellant’s Brady claim, framed at the outset as a court error, is 
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incorrect on its face. In any event, he goes on to argue that the 

Commonwealth violated Brady, premising his entire claim on his belief that 

the Commonwealth withheld video footage taken from Trooper Kalinchock’s 

patrol vehicle. Appellant has not actually discovered any such video 

evidence; instead, he merely speculates that such evidence must exist. This 

unsupported allegation fails to prove that the Commonwealth committed a 

Brady violation. 

Also within his third issue, Appellant presents a confusing argument 

regarding a video that was shown at trial by the Commonwealth. From what 

we can ascertain, Appellant essentially contends that the video was edited to 

remove certain portions. Appellant’s argument is again based on mere 

speculation; he does not cite to anything in the record that would support 

this claim. Therefore, it is meritless.

Likewise, Appellant also challenges the court’s admission of a recorded 

phone call he made while incarcerated, which the Commonwealth turned 

over on the morning his trial began. Appellant only devotes a few sentences 

to this claim, simply stating that the Commonwealth committed a discovery 

violation by not turning this evidence over to him earlier. Appellant’s 

underdeveloped argument does not convince us that the court abused its 

discretion in admitting this evidence. See Commonwealth v. Young, 989 

A.2d 920, 924 (Pa. Super. 2010) (citation omitted) (“Questions concerning 

the admissibility of evidence lie within the sound discretion of the trial court, 
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and a reviewing court will not reverse the trial court's decision absent a clear 

abuse of discretion.”).

In Appellant’s fourth issue, he argues that the court erred by denying 

his request for a hearing, prior to the imposition of his sentence, for the 

court to “determine the amount of drugs intended for personal use and for 

delivery.” Appellant’s Brief at 37 (citation to the record omitted). Appellant 

avers he had a right to such a hearing under Commonwealth v. Carroll, 

651 A.2d 171 (Pa. Super. 1995). Appellant does not point to where in the 

record he requested such a hearing; thus, we deem this issue waived. See 

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and 

cannot be raised for the first time on appeal.”).

We note that Appellant also embeds, within his fourth issue, lengthy 

arguments purporting to challenge the sufficiency and weight of the 

evidence to sustain his convictions. Appellant’s arguments are extremely 

confusing. For instance, he begins by stating that he is challenging the 

weight of the evidence to support his conviction of following too closely, as 

defined by 75 Pa.C.S. § 3310. See Appellant’s Brief at 42. However, in 

support of this claim, Appellant suggests that Trooper Kalinchock’s testimony 

was not sufficient to prove that Appellant committed this offense. See id. at 

42-44. Not only does Appellant mischaracterize his sufficiency challenge as 

a weight-of-the-evidence claim, but in his argument, he only provides 

citations to portions of Trooper Kalinchock’s testimony from the suppression

hearing. See Appellant’s Brief at 43. The trooper’s testimony at the 
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suppression hearing is irrelevant in assessing either a sufficiency or weightof-the-evidence claim. Accordingly, Appellant’s argument is meritless. 

Appellant also challenges the sufficiency of the evidence to sustain his 

conviction for possession with intent to deliver. Id. at 46. We decline to 

assess the specifics of Appellant’s lengthy and confusing claim; rather, we 

will provide a general discussion of the sufficiency of the evidence. To begin, 

we note our standard of review of a challenge to the sufficiency of the 

evidence:

In reviewing a sufficiency of the evidence claim, we must 

determine whether the evidence admitted at trial, as well as all 

reasonable inferences drawn therefrom, when viewed in the light 

most favorable to the verdict winner, are sufficient to support all 

elements of the offense. Commonwealth v. Moreno, 14 A.3d 

133 (Pa. Super. 2011). Additionally, we may not reweigh the 

evidence or substitute our own judgment for that of the fact 

finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 

2009). The evidence may be entirely circumstantial as long as it 

links the accused to the crime beyond a reasonable doubt. 

Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

This Court has also explained that,

[t]o establish the offense of possession of a controlled substance 

with intent to deliver, the Commonwealth must prove beyond a 

reasonable doubt that the defendant possessed a controlled 

substance with the intent to deliver it. The intent to deliver can 

be inferred from an examination of the surrounding facts and 

circumstances. 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.

The Commonwealth has the option to establish actual or 

constructive possession. 
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Constructive possession requires proof of the ability to 

exercise conscious dominion over the substance, the power 

to control the contraband, and the intent to exercise such 

control. Constructive possession may be established by the 

totality of the circumstances. We have held that 

circumstantial evidence is reviewed by the same standard

as direct evidence-a decision by the trial court will be 

affirmed so long as the combination of the evidence links 

the accused to the crime beyond a reasonable doubt.

Commonwealth v. Perez, 931 A.2d 703, 707-08 (Pa. Super. 2007) 

(internal citations and quotation marks omitted).

In this case, Trooper Kalinchock testified that Appellant was driving 

the vehicle when the trooper conducted the traffic stop. N.T. Trial, 12/4/13, 

at 40. The vehicle was registered to Appellant. Id. at 37. During an 

inventory search of the vehicle, Trooper Kalinchock opened the center 

console between the two front seats. Id. at 53. Inside, the trooper found a 

large bag containing “wax folds that are consistent with the way heroin is 

packaged.” Id. at 44. The trooper also observed that the wax folds were 

stamped with the words “Zero Tolerance.” Id. Based on the trooper’s 

training and experience, he believed that the bag contained heroin. Id. at 

45. He seized the bag of drugs, which was later determined to contain 19 

bundles of heroin. Id. at 54. Each bundle contained “10 individually waxed 

folds of heroin. They were rubber banded together and each one contained 

10 packets, so 190 packets total; 19 bundles of 10.” Id. The wax folds 

were stamped with the words “Zero Tolerance.” Id. 

Additionally, the other individual present in Appellant’s vehicle when it 

was stopped by Trooper Kalinchock testified for the Commonwealth at 
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Appellant’s trial. That man, Carlos Salas, testified that prior to Trooper 

Kalinchock’s discovering the heroin in Appellant’s vehicle, he had never seen 

those drugs. Id. at 145. Salas stated that he did not know the drugs were 

in Appellant’s car, and at no point was he inside the vehicle by himself. Id. 

He testified that on the night of the traffic stop, Appellant picked him up in 

the vehicle and the two drove around until Trooper Kalinchock stopped 

them. Id. He testified that when the trooper confronted him with the drugs 

and asked if they were his, Salas “said no.” Id. at 146.

This evidence was sufficient to demonstrate that Appellant 

constructively possessed the heroin, and did so with the intent to deliver it. 

The drugs were located in the center console directly beside Appellant. 

Appellant owned the vehicle and was driving it. The only other person in the 

vehicle, Salas, testified that he did not know the drugs were in the car, and 

he denied that they were his. These facts were sufficient for the jury to infer 

that Appellant had the ability, power, and intent to exercise control over the 

heroin and, thus, that he constructively possessed those drugs. Additionally, 

the large quantity of drugs was alone sufficient to demonstrate that 

Appellant intended to sell them. See Commonwealth v. Jackson, 645 

A.2d 1366, 1368 (Pa. Super. 1994) (“In Pennsylvania, the intent to deliver 

may be inferred from possession of a large quantity of controlled 

substances.”) (citations omitted). Accordingly, the evidence was sufficient 

to prove Appellant’s PWID offense. We also note that the jury’s verdict 

convicting Appellant of this offense was not contrary to the weight of the 
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evidence, as it does not “shock[] one’s sense of justice.” Commonwealth 

v. Houser, 18 A.3d 1128, 1136 (Pa. 2011) (citation omitted).2

In Appellant’s next issue, his fifth, he presents numerous challenges to 

the admission of certain evidence. 

The standard of review employed when faced with a challenge to 

the trial court's decision as to whether or not to admit evidence 

is well settled. Questions concerning the admissibility of evidence 

lie within the sound discretion of the trial court, and a reviewing 

court will not reverse the trial court's decision absent a clear 

abuse of discretion. Abuse of discretion is not merely an error of 

judgment, but rather where the judgment is manifestly 

unreasonable or where the law is not applied or where the record 

shows that the action is a result of partiality, prejudice, bias or ill 

will. 

Young, 989 A.2d at 924 (citations omitted).

First, Appellant reiterates a challenge to the admission of a recorded 

phone call made by Appellant to his grandmother while Appellant was 

incarcerated.3 In that phone call, Appellant essentially tells his grandmother 

____________________________________________

2 As discussed, supra, the judge who presided over Appellant’s trial left the 

bench in Northampton County before ruling on Appellant’s post-sentence 

motion raising his weight-of-the-evidence claim. Facing these same 

circumstances in Armbruster v. Horowitz, 744 A.2d 285 (Pa. Super. 

1999), this Court concluded that such a scenario is “an exception to the 

general rule that a court, relying solely on a ‘cold’ record, may not exercise a 

review of a weight of the evidence claim.” Id. at 286. We further stated 

that, “[i]n these exceptional circumstances, we believe the interests of 

justice require that the weight of the evidence claim be reviewed by the 

appellate tribunal rather than vacating the judgment and remanding for a 

new trial.” Id. at 286-87. 

3 Appellant also briefly addressed the admission of this evidence in his third 

issue, discussed supra.
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that he was not planning on selling the heroin, but claims he purchased it for 

personal use. See Appellant’s Brief at 54; see also N.T. Trial, 12/5/13, at 

6. Appellant explained that he bought such a large amount “because when 

you buy a lot it’s cheaper[.]” Appellant’s Brief at 54; see also N.T. Trial, 

12/5/13, at 6. 

Appellant provides an excessively lengthy and confusing argument, 

offering various reasons why he believes the court erred by admitting this 

recorded phone conversation. However, at trial, defense counsel objected to 

the admission of this recording on the basis that the Commonwealth had 

committed a discovery and/or Brady violation by not turning this evidence 

over to the defense earlier than the day on which Appellant’s trial was set to 

begin. See N.T. Trial, 12/5/13, at 13-16. In response, the Commonwealth 

stressed that it did not willfully withhold the recording; rather, it maintained 

that it had not discovered the recorded phone call until December 3, 2013. 

The Commonwealth maintained that upon discovering the recording, it 

immediately called defense counsel, informed him about the content of the 

conversation, and turned a copy of the recording over to the defense as 

soon as it was available, which was on December 4, 2013. Id. at 17. 

The court ruled that the Commonwealth did not have an obligation to 

discover this evidence earlier, and that as soon as the Commonwealth came 

into possession of the recording, it turned it over to defense counsel. The 

court also noted that “[e]ven if [the recording] had been turned over earlier, 

[the court could not] fathom what the defense could have done to meet it. 
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There’s no indication that it could be suppressed in any fashion. There’s no 

indication it could have been forged or that the authentication of it was in 

question where an expert needed to be called [to verify] it was his voice.” 

Id. at 18. Nevertheless, the court asked defense counsel if he would be 

“requesting a continuance in order to prepare to meet this new evidence[,]” 

and defense counsel replied, “No, Your Honor.” Id. 

Herein, Appellant attempts to present novel theories regarding why 

this recording should not have been admitted. However, only the arguments 

presented by defense counsel below are preserved for our review. See 

Pa.R.A.P. 302(a). Because Appellant offers no clear discussion pertaining to 

those preserved arguments, he has not convinced us that the court abused 

its discretion by admitting the evidence of his recorded phone conversation.

Within this issue, Appellant also challenges the court’s “allowing the 

[jury] to hear numerous references, by both witnesses for the prosecution as 

well as the District Attorney, regarding a ‘felony gun warrant’ or 

[Appellant’s] being entered as ‘wanted - armed and dangerous’ in the in-car 

[police] computer system....” Appellant’s Brief at 56. Appellant does not cite 

to where in the record he objected to these ‘numerous references.’ While he 

does direct us to where these references were made, none of those portions 

of the transcript contain any objection by defense counsel. See Appellant’s 

Brief at 57 (citing N.T. Trial, 12/4/13, at 93, 148, 163-165). Indeed, several 

of Appellant’s citations refer to defense counsel’s cross-examination of one 

of the police officers present at the scene of Appellant’s traffic stop. See id. 
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(citing N.T. Trial, 12/4/13, at 177-178). As Appellant did not object to these 

purportedly improper references to his ‘felony gun warrant’ or the fact that 

he was labeled ‘armed and dangerous’ in the police computer system, he has 

waived those issues for our review. See Commonwealth v. Bruce, 916 

A.2d 657, 671 (Pa. Super. 2007) (holding that a “failure to offer a timely 

and specific objection results in waiver of” the claim). 

Similarly, Appellant also alleges that the prosecutor made improper 

comments during her closing argument, yet the portions of the record to 

which he cites contain no defense objection. See id. at 58 (citing N.T. Trial, 

12/5/13, at 132, 142, 144). Thus, this argument is also waived. See 

Bruce, supra.

Finally, in his last issue, Appellant appears to challenge the 

discretionary aspects of his sentence. We need not address his specific 

arguments, as the record indicates that the court imposed an illegal 

mandatory minimum term of incarceration under 18 Pa.C.S. § 7508, which 

has been declared unconstitutional in its entirety in light of Alleyne v. 

United States, 133 S.Ct. 2151, 2163 (2013) (holding that facts that 

increase a mandatory minimum sentence must be submitted to the factfinder and proven beyond a reasonable doubt). See Commonwealth v. 

Cardwell, 105 A.3d 748, 755 (Pa. Super. 2014) (deeming section 7508 
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unconstitutional in light of Alleyne).4 While Appellant does not raise this 

claim, “challenges to an illegal sentence can never be waived and may be 

reviewed sua sponte by this Court.” Commonwealth v. Randal, 837 A.2d 

1211, 1214 (Pa. Super. 2003) (citation, internal quotation marks, and 

brackets omitted). Because Appellant’s sentence is illegal under Alleyne 

and Cardwell, we vacate that sentence and remand for resentencing.

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.

____________________________________________

4 At the sentencing hearing, the court indicated that Appellant’s minimum 

sentence of two years’ incarceration for PWID was a mandatory minimum 

term under 18 Pa.C.S. § 7508(a)(7)(i) (“A person who is convicted of 

violating section 13(a)(14), (30) or (37) of The Controlled Substance, Drug, 

Device and Cosmetic Act where the controlled substance or a mixture 

containing it is heroin shall, upon conviction, be sentenced as set forth in 

this paragraph: (i) when the aggregate weight of the compound or mixture 

containing the heroin involved is at least 1.0 gram but less than 5.0 grams 

the sentence shall be a mandatory minimum term of two years in prison....”). 

See N.T. Sentencing, 12/14/14, at 6 (court’s stating that “the amount of 

heroin was determined to be ... greater than one gram but less than ten 

grams,” and thus, “mandatory minimum of two years[’] incarceration” 

applied); see also id. at 18 (court’s stating: “I’m sentencing you to the 

mandatory minimum in the state correctional institution, but I’m setting a 

maximum of eight years. So a minimum in the state correctional institution 

of two years to a maximum of eight years....”).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/21/2016