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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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