Opinion

Com. v. Day, L.

Court
Superior Court of Pennsylvania
Filed
Mar 3, 2026
Status
Unpublished
Author
Olson
On the bench
Murray; Olson
Cited by
0 cases
Authority
More cited than 39.0%

The opinion

J-S35022-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

LAWRENCE JOSEPH DAY :

:

Appellant : No. 216 MDA 2025

Appeal from the Judgment of Sentence Entered January 15, 2025

In the Court of Common Pleas of Northumberland County Criminal

Division at No(s): CP-49-CR-0000009-2021

BEFORE: OLSON, J., MURRAY, J., and LANE, J.

CONCURRING AND DISSENTING MEMORANDUM BY OLSON, J.:

FILED: MARCH 3, 2026

I agree with the learned Majority that the trial court properly denied

Appellant’s suppression motion. However, I respectfully disagree with my

colleagues’ conclusion that the evidence was insufficient to support Appellant’s

possession with intent to deliver (“PWID”) conviction. Therefore, I must

dissent, in part.

We review Appellant’s sufficiency of the evidence challenge under the

following standard:

The standard we apply in reviewing the sufficiency of the

evidence is whether viewing all the evidence admitted at trial

in the light most favorable to the verdict winner, there is

sufficient evidence to enable the fact-finder to find every

element of the crime beyond a reasonable doubt. In applying

the above test, we may not weigh the evidence and substitute

our judgment for [that of] the fact-finder. In addition, we

note that the facts and circumstances established by the

J-S35022-25

Commonwealth need not preclude every possibility of

innocence. Any doubts regarding a defendant's guilt may be

resolved by the fact-finder unless the evidence is so weak

and inconclusive that as a matter of law no probability of fact

may be drawn from the combined circumstances. The

Commonwealth may sustain its burden of proving every

element of the crime beyond a reasonable doubt by means

of wholly circumstantial evidence. Moreover, in applying the

above test, the entire record must be evaluated and all

evidence actually received must be considered. Finally, the

trier of fact while passing upon the credibility of witnesses

and the weight of the evidence produced, is free to believe

all, part or none of the evidence.

Commonwealth v. Callen, 198 A.3d 1149, 1167 (Pa. Super. 2018) (citations

and quotation marks omitted).

On appeal, Appellant claims that the evidence was insufficient to support

his PWID conviction because: “the Commonwealth did not establish that there

were any controlled substances found in the residence and no testimony was

offered by the Commonwealth that the substances found in the residence were

counterfeit.” Appellant’s Brief at 12. I believe these claims fail.

After the Commonwealth rested its case, Appellant objected to the

Commonwealth’s laboratory reports, that, inter alia, identified certain seized

items as controlled substances and detailed the weights of each item,1

contending that the reports must be excluded, as the Commonwealth failed to

provide him with notice it intended to offer the forensic laboratory reports at

trial and the Commonwealth also failed to introduce the testimony of the

____________________________________________

1 Earlier in the trial, the trial court admitted the Commonwealth’s laboratory

reports into evidence. See N.T. Trial, 9/12/24, at 51 (admitting “Exhibits 63

to 65 into evidence”).

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analyst who performed the laboratory testing. See N.T. Trial, 9/12/24, at

109; see also Pa.R.Crim.P. 574; Melendez-Diaz v. Massachusetts, 557

U.S. 305 (2009). The trial court sustained Appellant’s objection and instructed

the jury:

So Commonwealth Exhibits 63, 64, and 65, those were the

three lab reports. Those were the first exhibits that [were]

entered by the Commonwealth. [These a]re no longer [in]

evidence so that you cannot – those are not to be considered

as evidence.

N.T. Trial, 9/12/24, at 123.

Although the trial court sustained Appellant’s belated objection and

excluded the laboratory reports, the trial court did not strike the prior

testimony of Pennsylvania State Police Trooper Aaron Brown, Corporal Daniel

Woody, or Corporal Jared Muir – all of whom testified that the police

discovered controlled or counterfeit controlled substances in Appellant’s

possession and further testified that, viewing the totality of the circumstances,

Appellant “was engaging in the manufacture, production, and delivery of

controlled substances.” See, e.g., id. at 61.

Trooper Brown testified:

So during our sweep . . . I observed what appeared to me a

large sum of cash money on the table. I also saw red

packaging material, as well as a bag of synthetic marijuana.

...

In room 3, which is identified as [Appellant’s] room, I seized

one cell phone. There was packaging material which was – I

believe it was the red baggies. One Social Security card for

[Appellant]. There [were] four PA inspection stickers that

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were determined to be false, fake inspection stickers. There

was a plastic bag with green vegetable matter which I believe

was later identified as spice, as what we believed. . . .

[T]here was a bag of marijuana. There was an additional two

cell phones. There [were] three digital scales. There was

another plastic bag containing baggies that were packaging

material. There was a CBD vape cartridge that we seized, a

bag containing gummies, a green turtle smoking device . . .

for smoking narcotics.

So all of that, as well as during the search underneath the

bed within that room we seized two firearms. One was a

Taurus revolver that was a 45 caliber, as well as 410 caliber

revolver pistol. It also had an obliterated serial number,

which means the serial number was scratched off so it’s not

able to be [run] by police, essentially. As well as the other

firearm was the one Smith and Wesson 38 caliber revolver

pistol that had also an obliterated serial number. . . .

Through our lab, when we took the guns to the lab, they were

able to dig down and find the serial numbers, which was later

to be determined that one was stolen from Lycoming County

and one was stolen from Snyder County in the Middleburg

area. As well as two boxes of [nine-]millimeter ammunition.

[The police also seized a number of items from a second room

in the house. There] we seized five cell phones, two

additional digital scales, another bag of suspected marijuana.

Six smoking devices, one with the use of methamphetamine.

Three containers with unknown pills. One bag containing red

baggies, which is multiple baggies. One pill container with

unknown white substance. One large box, cardboard,

containing marshmallow leaf cut. One – an additional box

containing mullein leaf in a cardboard box. As well as

[$520.00].

Now, with these boxes of marshmallow leaf and [] mullein

leaf, this was addressed to [Appellant], at that address. As

well as the packaging material as you hear throughout, these

are all empty packaging material. There was no residue in

most of these packaging material.

N.T. Trial, 9/12/24, at 31, 34-35, and 39.

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Trooper Brown further testified that the police recovered marijuana,

Gabapentin, Tramadol, Alprazolam, Clonazepam, and cocaine from Appellant’s

rooms. Id. at 41-43. He testified:

Q: So based on your knowledge, training, and experience as

a trooper, what did the discovery of the packaging materials

and the bags containing the red small baggies, pill bottle, and

the unknown white substance which you have now identified

as cocaine, marijuana, and synthetic marijuana, and the

three scales found in [Appellant’s] room, what did that lead

you to believe?

[Trooper Brown]: It led me to believe that he was ordering

the leaf and then he was spraying it and distributing it out as

spice. Which he had the scales so he can measure out how

much to put in each bag and how to sell and to price it from

there.

Id. at 43.

Corporals Woody and Muir testified similarly to Trooper Brown.

Specifically, Corporal Woody testified:

Q: And you were present – were you present for the search

of the residence?

A: Yes. . . .

Q: Okay. And based on your knowledge, training, and

experience as a trooper, what did the discovery of the

packaging material, the bags containing smaller red baggies,

other packaging material, pill bottle with unknown, what we

now know is – was cocaine, marijuana and synthetic

marijuana, and the three scales, lead you to believe?

A: Based on my training and experience it suggested that the

controlled substances were being distributed, packaged.

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Q: Yep. And can you explain the packaging material? What

was the packaging material like? Was it used, unused,

empty?

A: It appeared empty and new.

...

Q: And what was – based on your knowledge, training, and

experience, what would that tell you?

A: That they had not been consumed, that they’re – that it

was to be used.

Id. at 55.

Corporal Muir then testified:

Q: Okay. Based on your knowledge, training, and experience

as a trooper, now corporal, what did the discovery of these

packaging materials and the bag containing smaller bags, the

pill[] bottle and [] what now we know is cocaine, marijuana,

synthetic marijuana, and the three scales that were located

in [Appellant’s] room, what did that lead you to believe?

A: It was evident to me that [Appellant] was engaging in the

manufacture, production, and delivery of controlled

substances.

Id. at 61.

A sufficiency of the evidence claim “will not be assessed on a diminished

record, but rather on the evidence actually presented to the finder of fact

rendering the questioned verdict.” Commonwealth v. Lovette, 450 A.2d

975, 977 (Pa. 1982). Here, while the trial court might have sustained

Appellant’s belated objection and excluded the laboratory reports, the trial

court did not strike the testimony of Trooper Brown or Corporals Woody and

Muir; and, as is evident from the above-quoted testimony, all three individuals

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testified that Appellant possessed controlled or counterfeit controlled

substances with the intent to distribute. See Commonwealth v. Ratsamy,

934 A.3d 1233, 1236-1237 (Pa. 2007) (“[t]he amount of the controlled

substance is not crucial to establish an inference of possession with intent to

deliver, if other facts are present”) (quotation marks, citations, and

corrections omitted).

Viewing the above evidence in the light most favorable to the

Commonwealth, I believe it is sufficient to sustain Appellant’s PWID

conviction. I thus conclude that Appellant’s sufficiency of the evidence claim

fails.

Therefore, I respectfully concur, in part, and dissent, in part, from the

learned Majority’s memorandum.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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