Com. v. Shields, A.

J-S96026-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

ANTHONY DWAYNE SHIELDS

Appellant No. 837 WDA 2016

Appeal from the Judgment of Sentence May 13, 2016

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0002210-2015

BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.

MEMORANDUM BY BOWES, J.: FILED APRIL 10, 2017

Appellant appeals from the aggregate judgment of sentence of ninety-

nine to 198 months incarceration imposed following his convictions for three

counts each of contraband1 and possession of a controlled substance with

intent to deliver, and one count of possession of marijuana. We affirm.

We adopt the trial court’s recitation of the facts ably memorialized in

its Pa.R.A.P. 1925(a) opinion.

On August 20, 2016, Officer Michael Inman was on a routine

patrol when he initiated a traffic stop for an expired registration.

When he approached the vehicle, Officer Inman could smell

marijuana emanating from the vehicle. Appellant was the driver

and sole occupant. Officer Inman ran Appellant's license through

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1

18 Pa.C.S. § 5123(a) (“A person commits a felony of the second degree if

he . . . brings into any prison . . . any controlled substance[.]”).

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PennDot and discovered Appellant had an arrest warrant for a

parole violation and he did not have a valid license to operate a

motor vehicle. Officer Inman took Appellant into custody,

conducted a pat down of Appellant's loose outer clothing and

transported him to the state parole office. When Appellant

arrived at the state parole office, Parole Officer Charles Page

conducted a second pat down search of Appellant's outer

clothing and placed him in a holding cell. Later that morning,

Appellant was taken to the State Correctional Institution at

Albion ("SCI Albion”) to detox. Correctional Officer Casey

Cleveland, who was working as the yard sergeant that day, met

Appellant at the gate of SCI Albion.

As Officer Cleveland got closer to Appellant, he noticed the

strong odor of marijuana coming from his body. Officer

Cleveland asked Appellant five or more times where the

marijuana was located. He warned Appellant if he did not hand

over the drugs, he could be subject to additional charges for

bringing it into the prison and any contraband would be found

anyway during the strip search. Appellant denied having any

marijuana on his body and said he smelled because he was

smoking marijuana when he was picked up.

Appellant was brought immediately to the receiving and

discharging unit area where Officer Cleveland along with Officer

Todd Stafford and Officer Robert Sunafrank conducted a

standard intake search. Appellant was ordered to face the wall,

remove one article of clothing at a time and hand it back to the

officers to be searched. When Appellant handed back his shorts

and underwear, Officer Stafford noticed something was inside

and told Officer Cleveland to be careful as he searched.

Upon further inspection, Officer Cleveland found what he

suspected to be crack cocaine, powder cocaine, heroin and

marijuana hidden in a slit in Appellant's underwear.

....

The powder substance found in Appellant's underwear weighed

6.07 grams and contained cocaine hydrochloride. The rock like

crystals weighed 6.13 grams and contained cocaine base, more

commonly known as crack cocaine. The yellow stamp bags were

tested and found to contain heroin. Finally, the two bags of

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plant material were analyzed and found to contain a total of 3.03

grams of marijuana.

Trial Court Opinion, 7/27/16, at 1-3. Appellant’s first trial resulted in a

mistrial after the jury could not reach a verdict. Appellant was then retried

and convicted, ultimately receiving the aforementioned sentence. Appellant

filed a timely notice of appeal and raises two questions for our review.

I. The evidence in this case was insufficient to support the

charges of possession with intent to deliver.

II. The sentence in this case was manifestly excessive and

clearly unreasonable.

Appellant’s brief at 2.

Before addressing Appellant’s sufficiency of the evidence argument, we

note that his concise statement set forth a boilerplate allegation. “The

issues to be raised on appeal are the defendant’s claim that the evidence

presented at the trial was insufficient to support a finding of guilty of the

charges of which the defendant was convicted[.]” Concise Statement,

6/27/16, at 1. As we stated in Commonwealth v. Garland, 63 A.3d 339,

344 (Pa.Super. 2013), to preserve a challenge to the sufficiency of the

evidence on appeal the concise statement “must state with specificity the

element or elements upon which the appellant alleges that the evidence was

insufficient.” Id. at 344. “Such specificity is of particular importance in

cases where, as here, the Appellant was convicted of multiple crimes each of

which contains numerous elements that the Commonwealth must prove

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beyond a reasonable doubt.” Commonwealth v. Gibbs, 981 A.2d 274, 281

(Pa.Super. 2009). Appellant's statement failed to do so and we could deem

the issue waived even though the trial court elected to address the claim.

“The fact that the Commonwealth did not object to the defect and the trial

court addressed the sufficiency of the evidence issue in the alternative is of

no moment.” Commonwealth v. Roche, --- A.3d ---, 2017 WL 34931

(Pa.Super. 2017) (published opinion) (citing cases).

However, Appellant’s argument on appeal is clear and does not require

us to undertake the burdensome task of reviewing each element of all seven

convictions. Our Supreme Court observed in Commonwealth v. Laboy,

936 A.2d 1058 (Pa. 2007), that a less strict waiver approach is justified in

some circumstances:

It may be possible in more complex criminal matters that the

common pleas court may require a more detailed statement to

address the basis for a sufficiency challenge. Here, however, the

common pleas court readily apprehended Appellant's claim and

addressed it in substantial detail.

Id. at 1060. We find this principle applicable herein, since Appellant’s

argument is limited to one element common to the three possession of

intent to deliver crimes. Whether the evidence was sufficient to support

these convictions presents a matter of law; our standard of review is de

novo and our scope of review is plenary. Commonwealth v. Walls, 144

A.3d 926, 931 (Pa.Super. 2016) (citation omitted). In conducting our

inquiry, we

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examine whether the evidence admitted at trial, and all

reasonable inferences drawn therefrom, viewed in the light most

favorable to the Commonwealth as verdict winner, support the

jury's finding of all the elements of the offense beyond a

reasonable doubt. The Commonwealth may sustain its burden by

means of wholly circumstantial evidence.

Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015). To sustain a

conviction for possession with intent to deliver

the Commonwealth must prove that Appellant knowingly or

intentionally possessed a controlled substance without being

properly registered to do so under the Act. See 35 P.S. § 780–

113(a)(16). The crime of possession of a controlled substance

with intent to deliver requires the Commonwealth to prove an

additional element: that Appellant possessed the controlled

substance with the intent to manufacture, distribute, or deliver

it. See 35 P.S. § 780–113(a)(30).

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super. 2012). If a

person possesses narcotics with intent to deliver, he is necessarily guilty of

possession. Commonwealth v. Coleman, 130 A.3d 38, 42 (Pa. 2015).

Instantly, Appellant does not challenge the element of possession. He

maintains that the Commonwealth failed to prove he intended to deliver the

drugs.

In this case, no evidence was presented that Mr. Shields tried to

sell the drugs to anyone. He had no other items such as scales

or other packaging items on his person that would be necessary

for a drug dealer to possess in order to package the drugs. No

evidence was presented that Mr. Shields had contacted anyone

to attempt to sell drugs to them. Thus, the Commonwealth did

not sufficiently present evidence against Mr. Shields that would

allow the jury to determine that the drugs were going to be sold

to anyone, as opposed to being for the personal use of Mr.

Shields.

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Appellant’s brief at 7. In determining whether an individual in

possession of drugs intended to deliver2 them, the starting point is the

quantity possessed.

In Pennsylvania, the intent to deliver may be inferred from

possession of a large quantity of controlled substance. It follows

that possession of a small amount of a controlled substance

supports the conclusion that there is an absence of intent to

deliver.

Notably, if, when considering only the quantity of a controlled

substance, it is not clear whether the substance is being used for

personal consumption or distribution, it then becomes necessary

to analyze other factors.

Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa.Super. 2008) (citation

and quotation marks omitted). Herein, the Commonwealth did not rely on

quantity, and we examine the other facts and circumstances. “We

emphasize that, if the quantity of the controlled substance is not dispositive

as to the intent, the court may look to other factors.” Commonwealth v.

Ratsamy, 934 A.2d 1233, 1237 (Pa. 2007). The non-exclusive list of other

factors includes

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2

We note that Appellant argues that the Commonwealth must establish

Appellant intended to sell, as oppose to deliver, the drugs. The

Commonwealth is not required to establish Appellant would profit. See 35.

P.S. § 780-102(b) (defining delivery as the actual, constructive, or

attempted transfer from one person to another); Commonwealth v.

Metzger, 372 A.2d 20, 22 (Pa.Super. 1977) (interpreting the plain meaning

of this language and noting former statute included “sale” in the definition of

the crime).

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the manner in which the controlled substance was packaged, the

behavior of the defendant, the presence of drug paraphernalia,

and [the] sums of cash found in possession of the defendant.

The final factor to be considered is expert testimony. Expert

opinion testimony is admissible concerning whether the facts

surrounding the possession of controlled substances are

consistent with an intent to deliver rather than with an intent to

possess it for personal use.

Id. at 1237–38 (quotation and internal quotation marks omitted). The

relevant factors in this case were Appellant’s possession of drugs prior to

entering the correctional facility, the concealment of the drugs in a slit in

Appellant’s underwear, the manner of packaging, the presence of three

separate types of drugs, and an expert opinion.

We find that the presence of these other factors and the expert opinion

explaining their significance provided a sufficient basis for the jury’s verdicts.

Ratsamy noted that “expert testimony is important in drug cases where the

other evidence may not conclusively establish that the drugs were intended

for distribution.” Id. at 1236. Trooper Shawn Massey, qualified as an

expert witness in the field of narcotic trafficking and investigations, offered

an opinion that Appellant possessed the drugs with the intent to deliver. He

opined that the thirty-one packages of heroin were packaged in a manner

consistent with resale, not personal use. Additionally, he noted that powder

cocaine and crack cocaine are stimulants, while heroin is a depressant. He

stated that a normal user will usually have one or the other type of drug

rather than both. See N.T., 3/6/16, at 84-88. Furthermore, we note that

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Appellant did not possess any use paraphernalia, a circumstance we have

deemed relevant. Commonwealth v. Bess, 789 A.2d 757, 762 (Pa.Super.

2002) (in addition to other factors, the appellant “did not have any drug

paraphernalia to use the drugs himself.”). Therefore, taken together, we do

not find that the evidence was “so weak and inconclusive that as a matter of

law no probability of fact may be drawn from the combined circumstances.”

Ratsamy, supra at 1236, n.2.

Appellant’s remaining issue concerns the discretionary aspects of his

sentence. We apply the following standard of review.

Sentencing is a matter vested in the sound discretion of the

sentencing judge, and a sentence will not be disturbed on appeal

absent a manifest abuse of discretion. In this context, an abuse

of discretion is not shown merely by an error in judgment.

Rather, the appellant must establish, by reference to the record,

that the sentencing court ignored or misapplied the law,

exercised its judgment for reasons of partiality, prejudice, bias

or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014) (citing

Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa.Super. 2007)). The

right to appeal the discretionary aspects of a sentence is not absolute. We

determine whether Appellant has invoked this Court's jurisdiction by

examining the following four criteria:

(1) whether appellant has filed a timely notice of appeal, see

Pa.R.A.P. 902 and 903; (2) whether the issue was properly

preserved at sentencing or in a motion to reconsider and modify

sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief

[complies with] Pa.R.A.P. 2119(f); and (4) whether there is a

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substantial question that the sentence appealed from is not

appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa.Super. 2016) (citing

Commonwealth v. Samuel, 102 A.3d 1001, 1006–07 (Pa.Super. 2014)).

Appellant filed a timely notice of appeal. However, he did not preserve this

claim as he failed to present the issue at sentencing or in a motion to

reconsider.3 See Pa.R.Crim.P. 720(A)(1). Instead, he raised the issue for

the first time in his concise statement. Additionally, his brief does not

contain a separate Pa.R.A.P. 2119(f) statement.4 While we may overlook

the latter defect due to the Commonwealth’s failure to object, we may not

ignore the former. “Issues challenging the discretionary aspects of a

sentence must be raised in a post-sentence motion or by presenting the

claim to the trial court during the sentencing proceedings. Absent such

efforts, an objection to a discretionary aspect of a sentence is waived.”

Commonwealth v. Lamonda, 52 A.3d 365 (Pa.Super. 2012) (quoting

Commonwealth v. Shugars, 895 A.2d 1270, 1273–74 (Pa.Super. 2006)).

Hence, the claim is waived.

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3

Appellant, while represented by counsel, submitted a pro se motion.

4

Appellant’s table of contents indicates that the brief contains a separate

statement at page four. However, the submitted brief does not contain that

page.

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Nevertheless, we add that we would not have granted relief on this

claim. Since we lack a separate statement, we have reviewed the merits of

Appellant’s claim. His attack is little more than a boilerplate allegation that

the sentence is unreasonable because of some terms of incarceration were in

the aggravated range and imposed consecutively. The certified record

reveals that the guideline ranges at count one called for a sentence of

twenty-one to twenty-seven months in the standard range, with thirty-three

months in the aggravated range. At counts two and three, the standard

range was twenty-four to thirty months, and the aggravated range started

at thirty-six months. Appellant received a sentence of thirty-three to sixty-

six months at count one, thirty-six to seventy-two months at count two, and

thirty to sixty months at count three. Thus, Appellant received the lowest-

possible aggravated range sentence, i.e., it did not exceed the aggravated

range, at two of the three counts.

Appellant makes no argument as to why this sentence is unreasonable.

His entire argument is as follows:

Pursuant to § 9781(c)(2) the sentences imposed were manifestly

excessive and clearly unreasonable. A judge should impose the

minimum sentence consistent with the protection of the public,

the gravity of the offense, and the rehabilitative needs of the

Appellant. Commonwealth v. Martin, 351 A.2d 650, 656 n.20

(Pa. 1976). Mr. Shields argued various double jeopardy and

constitutionality issues at the time of his sentencing, especially

as it related to his revocation at another docket, but did not

provide to the court any specific details regarding his specific

circumstances or background that would sway the court in terms

of the sentence imposed. The court imposed a sentence close to

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the aggravated range of the sentencing guidelines for Counts 1

and 3, and a sentence in the aggravated range on Count 2.5 The

judge cited Mr. Shields' past record, along with his failure to take

responsibility for his actions, as a reason for the length of the

sentences.

Appellant’s brief at 8 (paragraph break omitted).

As our Supreme Court set forth in Commonwealth v. Walls, 926

A.2d 957 (Pa. 2007), our examination of a sentence is quite deferential, as

the “sentencing court is in the best position to determine the proper penalty

for a particular offense based upon an evaluation of the individual

circumstances before it.” Id. at 961 (citation and quotation marks omitted).

“Simply stated, the sentencing court sentences flesh-and-blood defendants

and the nuances of sentencing decisions are difficult to gauge from the cold

transcript used upon appellate review.” Id.

Pursuant to 42 Pa.C.S. § 9781(c) we can vacate and remand only if we

find 1) that the court intended to sentence within the guidelines but “applied

the guidelines erroneously;” 2) a sentence was imposed within the

guidelines “but the case involves circumstances where the application of the

guidelines would be clearly unreasonable;” or 3) “the sentencing court

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5

It appears that Appellant calculated identical guideline ranges for all

possession with intent to deliver counts. However, count one, which was the

possession of intent to deliver less than one gram of heroin, carried an

offense gravity score of six, whereas the other two counts carried an offense

gravity score of seven. See 204 Pa.Code § 303.15. As we have set forth,

Appellant received two aggravated range sentences.

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sentenced outside the sentencing guidelines and the sentence is

unreasonable.” 42 Pa.C.S. § 9781(c). “In all other cases the appellate court

shall affirm the sentence imposed by the sentencing court.” Id. Herein, the

sentence was within the guidelines. Commonwealth v. Bowen, 975 A.2d

1120, 1128 (Pa.Super. 2009) (sentence within aggravated range constitutes

sentence within the guidelines). Thus, applying the guidelines would have to

be clearly unreasonable. Walls noted that reasonableness is not defined in

the statute and “commonly connotes a decision that is ‘irrational’ or ‘not

guided by sound judgment.’” Id. at 963.

Walls concluded that this Court can find a sentence not guided by

sound judgment or irrational in only two situations. The first is if the

sentencing court did not weigh the “general standards applicable to

sentencing found in Section 9721, i.e., the protection of the public; the

gravity of the offense in relation to the impact on the victim and the

community; and the rehabilitative needs of the defendant. 42 Pa.C.S. §

9721(b).” Id. at 964; see 42 Pa.C.S. § 9721(b) (In determining whether to

impose a sentence of imprisonment, “the court shall follow the general

principle that the sentence imposed should call for confinement that is

consistent with the protection of the public, the gravity of the offense as it

relates to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant.). The other situation is where the

sentence is unreasonable under the guidelines provided by 42 Pa.C.S. §

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9781(d), which directs this Court to consider the following four factors in

determining whether the sentence is clearly unreasonable:

(1) The nature and circumstances of the offense and the

history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the

defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

Instantly, Appellant offers no reason for why the sentence is clearly

unreasonable. He simply posits that it is. What is clear to Appellant eludes

us; we would not accept his conclusory statement even if this claim had

been properly preserved. Thus, we would be inclined to deem the argument

waived for failure to present an argument. “[M]ere recitation of boilerplate

law followed by conclusory assertions of error typically does not suffice to

ripen an issue for our review.” Commonwealth v. Dozier, 99 A.3d 106,

111 (Pa.Super. 2014) (citation omitted). That failure notwithstanding, we

have proceeded to conduct the analysis mandated by Walls. With respect

to § 9781(d), the instant offenses would not have occurred but for

Appellant’s outstanding warrant for a parole violation. The court presided

over the trial and sentencing, and attached great weight to Appellant’s past

history in fashioning this sentence. While Appellant concedes that he “did

not provide to the court any specific details regarding his specific

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circumstances or background that would sway the court,” we note that the

judge stated he had reviewed the pre-sentence report. N.T. Sentencing,

5/13/16, at 16. See Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.

1988) (reviewing court must presume court weighed the information in the

report; “It would be foolish, indeed, to take the position that if a court is in

possession of the facts, it will fail to apply them to the case at hand.”).

Thus, we would not deem the decision to apply the guidelines to these

crimes unreasonable when considering these four factors and the deference

owed to the sentencing court.

Since § 9781 would afford no relief, the only remaining question is

whether 42 Pa.C.S. § 9721(b) would do so. We find that the sentencing

court considered the general standards. The judge noted that he had read

the presentence report in its entirety, referenced the “variety of drug

offenses and other offenses,” Appellant’s two prior revocations, and the fact

he was on supervision at the time of these offenses. Hence, as there was no

abuse of discretion and the sentence was neither irrational nor unguided by

sound judgment, we would affirm judgment of sentence in any event.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2017

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