Com. v. Sabater, L.

J-S79012-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

LORENZO SABATER :

:

Appellant : No. 2 EDA 2017

Appeal from the Judgment of Sentence August 9, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0002275-2016,

MC-51-CR-0001905-2016

BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED MAY 08, 2018

Lorenzo Sabater appeals from the judgment of sentence imposed on

August 9, 2016, in the Court of Common Pleas of Philadelphia County,

following his non-jury convictions of possession of a controlled substance,

possession with intent to deliver a controlled substance (“PWID”), and

possession of drug paraphernalia.1 The trial court sentenced Sabater to ten

years of probation. In this appeal, Sabater challenges the denial of his motion

to suppress, the sufficiency of the evidence, and the weight of the evidence.

Based upon the following, we vacate the judgment of sentence and remand

for resentencing.

____________________________________________

1 35 P.S. §§ 780-113(a)(16), (a)(30), and (a)(32), respectively.

J-S79012-17

The trial court summarized the facts underlying Sabater’s convictions as

follows:

The evidence adduced at the Motion and Trial on May 12,

2016 was as follows:[2] On January 19, 2016, at approximately

11:00 p.m., Police Officer Delricci and his partner, Police Officer

Sidebotham, observed a silver Buick traveling northbound on the

6900 block of Norwood Street, a very high crime area in

Philadelphia, without a functioning middle brake light. The officers

had been placed in that specific area that night due to recent

shootings in the area. They activated their lights and sirens, and

the vehicle pulled over the side of the road. [Sabater] was in the

front passenger side of the vehicle. He gave his identification to

the officers2, and the PCIC/NCIC revealed that he had an active

scofflaw warrant. At that point, [Sabater] was removed from the

vehicle and placed in handcuffs for arrest. The driver was still

sitting in the driver’s seat, and Officer Delricci proceeded to “frisk”

the immediate area for weapons in the passenger area where

[Sabater] had been seated, for officer safety, as he testified that

the driver or the passenger could have secreted a weapon under

the seats before the officers approached the vehicle; the officer

had approximately 60-70 situations in which he had found

weapons secreted under seats in vehicles, and 10-15 of them were

specifically under the passenger seat. Officer Delricci recovered a

black scale that he believed was for narcotics from under the

driver’s seat. At that time, he called for a K-9 dog to come out to

the location, and the K-9 “hit on” the passenger’s seat in the

center console/cup holder area, leading to the glove box area. The

officer also recovered from under the glove box three bundles of

heroin, small ziplock bags with blue glassine, 28 of the bags were

stamped “Almighty,” and 14 were stamped “Illuminati.” In

addition, cash in the amount of $1,565.00 was recovered from

[Sabater]. [Sabater] indicated that he was unemployed on his []

biographical information report.

_________________________

____________________________________________

2 Following the denial of Sabater’s motion to suppress, Sabater and the

Commonwealth stipulated to incorporation at trial of all non-hearsay evidence

presented at the suppression hearing.

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2 Officer Delricci testified that he always asked for

identification from all people in a car to see if any warrants

were outstanding. He acknowledged, however, that the

person can refuse, and there was nothing the officer could

do.

_________________________

Finally, the officer indicated that the driver/owner of the

vehicle was then released, and not arrested and [Sabater] was

taken to the Northwest Division Police Station. …

Trial Court Opinion, 6/30/17, at 2-3 (record citations omitted).

The Commonwealth subsequently charged Sabater with one count each

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

paraphernalia. On March 31, 2016, Sabater filed a pretrial motion to suppress

the evidence recovered during the search of the vehicle and his person.

Following a hearing, the trial court denied the motion to suppress on May 12,

2016. On that same date, the case proceeded to a non-jury trial. The court

announced its verdict on May 19, 2016, finding Sabater guilty of all charges.

On August 9, 2016, the court sentenced Sabater to ten years of probation for

the PWID conviction. No further penalty was imposed for the remaining

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convictions. Sabater filed a post-sentence motion on August 19, 2016, which

as denied by operation of law.3 This timely appeal followed.4

In his first issue,5 Sabater argues the trial court erred in denying his

pretrial motion to suppress the contraband recovered from the vehicle.

Sabater claims the vehicle search was unsupported by probable cause because

neither of the officers observed anything suggesting the vehicle contained

evidence of criminal activity. See Sabater’s Brief at 44. Sabater further

asserts the police lacked reasonable suspicion to believe the vehicle contained

weapons posing a threat to their safety. See id. at 47. He claims the officer’s

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3 According to the trial court docket, Sabater filed his post-sentence motion

on August 23, 2016. The time stamp on the motion, however, indicates it was

filed on August 19, 2016. Therefore, we deem the motion to have been timely

filed within ten days of the imposition of sentence, pursuant to Pa.R.Crim.P.

720(A)(1). Consequently, Sabater’s notice of appeal is also timely, as it was

filed on December 21, 2016, within thirty days after the date his post-sentence

motion was denied by operation of law. See Pa.R.Crim.P. 720(A)(2)(b)

(stating that if the defendant files a timely post-sentence motion, the notice

of appeal shall be filed within thirty days after entry of the order denying the

motion by operation of law in cases in which the judge fails to decide the

motion).

4 On April 4, 2017, the court ordered Sabater to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On April 18,

2017, Sabater filed a concise statement along with a request for an extension

of time to file a supplemental statement. The court granted the extension on

April 25, 2017, directing Sabater to file a supplemental concise statement

within 21 days of counsel’s receipt of all notes of testimony. Sabater filed the

supplemental statement on May 30, 2017. The trial court issued an opinion

pursuant to Pa.R.A.P. 1925(a) on June 30, 2017.

5 We have reordered Sabater’s issues for purposes of disposition.

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previous recovery of firearms from under car seats and the high-crime area

where the stop occurred, absent more, were insufficient to justify the search

based on a concern for officer safety. See id.

Our standard of review of a trial court’s denial of a motion to suppress

is as follows:

[An appellate court’s] standard of review in addressing a challenge

to the denial of a suppression motion is limited to determining

whether the suppression court’s factual findings are supported by

the record and whether the legal conclusions drawn from those

facts are correct. Because the Commonwealth prevailed before

the suppression court, we may consider only the evidence of the

Commonwealth and so much of the evidence for the defense as

remains uncontradicted when read in the context of the record as

a whole. Where the suppression court’s factual findings are

supported by the record, [the appellate court] is bound by [those]

findings and may reverse only if the court’s legal conclusions are

erroneous. Where ... the appeal of the determination of the

suppression court turns on allegations of legal error, the

suppression court’s legal conclusions are not binding on an

appellate court, whose duty it is to determine if the suppression

court properly applied the law to the facts. Thus, the conclusions

of law of the courts below are subject to [ ] plenary review.

Commonwealth v. Mason, 130 A.3d 148, 151–152 (Pa. Super. 2015)

(quotation omitted), appeal denied, 138 A.3d 3 (Pa. 2016).

“The Fourth Amendment of the United States Constitution and Article I,

Section [8] of the Pennsylvania Constitution guarantee individuals freedom

from unreasonable searches and seizures.” Commonwealth v. El, 933 A.2d

657, 660 (Pa. Super. 2007), aff’d, 977 A.2d 1158 (Pa. 2009). “The concept

of standing in a criminal search and seizure context empowers a defendant to

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assert a constitutional violation and thus seek to exclude or suppress the

government’s evidence pursuant to the exclusionary rules under the Fourth

Amendment of the United States Constitution or Article I, Section 8 of the

Pennsylvania Constitution.” Commonwealth v. Bostick, 958 A.2d 543, 550-

51 (Pa. Super. 2008), appeal denied, 987 A.2d 158 (Pa. 2009). “A defendant

moving to suppress evidence has the preliminary burden of establishing

standing and a legitimate expectation of privacy.” Commonwealth v.

Maldonado, 14 A.3d 907, 910 (Pa. Super. 2011).

[A] defendant must allege one of the following “personal” interests

in order to establish standing: (1) his presence on the premises

at the time of the search and seizure; (2) a possessory interest in

the evidence improperly seized; (3) that the offense charged

include as an essential element of the prosecution’s case, the

element of possession at the time of the contested search and

seizure; or (4) a proprietary or possessory interest in the searched

premises.

Commonwealth v. Peterkin, 513 A.2d 373, 378 (Pa. 1986), cert. denied,

479 U.S. 1070 (1987).

A defendant must separately establish a legitimate expectation of

privacy in the area searched or thing seized. Whether defendant

has a legitimate expectation of privacy is a component of the

merits analysis of the suppression motion. The determination

whether defendant has met this burden is made upon evaluation

of the evidence presented by the Commonwealth and the

defendant.

With more specific reference to an automobile search, this Court

has explained as follows:

[G]enerally under Pennsylvania law, a defendant charged

with a possessory offense has automatic standing to

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challenge a search. However, in order to prevail, the

defendant, as a preliminary matter, must show that he had

a privacy interest in the area searched.

An expectation of privacy is present when the

individual, by his conduct, exhibits an actual

(subjective) expectation of privacy and that the

subjective expectation is one that society is prepared

to recognize as reasonable. The constitutional

legitimacy of an expectation of privacy is not

dependent on the subjective intent of the individual

asserting the right but on whether the expectation is

reasonable in light of all the surrounding

circumstances.

Commonwealth v. Burton, 973 A.2d 428, 435 (Pa. Super. 2009) (en banc)

(internal citations omitted).

In Burton, supra, a panel of this Court concluded that a defendant,

who was stopped for a routine traffic violation, “failed to demonstrate that he

had a reasonably cognizable expectation of privacy in a vehicle that he did not

own, that was not registered to him, and for which he ha[d] not shown

authority to operate.” Id. at 436.6 Subsequently, in Commonwealth v.

Caban, 60 A.3d 120 (Pa. Super. 2012), appeal denied, 79 A.3d 1097 (Pa.

2013), another panel of this Court stated there was no “distinction between

automobile drivers and passengers . . . in determining whether a reasonable

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6 See also Maldonado, supra, (finding no basis for suppression because

defendant-driver failed to meet his burden of establishing standing and a

reasonable expectation of privacy in the vehicle searched where the evidence

established the vehicle was not owed by or registered to him, and he did not

demonstrate that he had authority to operate it).

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expectation of privacy exists in a particular case.” Id. at 130. See

Commonwealth v. Powell, 994 A.2d 1096, 1107 (Pa. Super. 2010) (“In the

present case, Powell submitted no evidence at the suppression hearing to

demonstrate that he had any privacy interest in the trunk of the vehicle in

which he was a passenger. ... Powell had no connection to the vehicle

whatsoever.”), appeal denied, 13 A.3d 477 (Pa. 2010).

Here, Sabater sought to suppress the evidence the police recovered

from the vehicle during the warrantless search of the passenger side

compartment.7 Consequently, Sabater had a “preliminary burden of

establishing standing and a legitimate expectation of privacy” in the area of

the vehicle searched. Maldonado, supra, 14 A.3d at 910. Sabater had

standing to move to suppress the evidence because the charges against him

included as an essential element possession of the contraband at the time of

the search.

Nevertheless, Sabater failed to prove he had a legitimate expectation of

privacy in the areas of the automobile where the search occurred. Sabater

____________________________________________

7 In his motion to suppress, Sabater contested both the constitutionality of

the traffic stop and the subsequent search of the vehicle. Sabater’s brief on

appeal, however, challenges only the lawfulness of the search. Therefore, the

issue of the legality of the traffic stop has been abandoned and waived for

purposes of this appeal. See Commonwealth v. Rodgers, 605 A.2d 1228,

1239 (Pa. Super. 1992) (deeming issue waived on appeal where appellant

abandoned issue in brief), appeal denied, 615 A.2d 1311 (Pa. 1992).

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was merely a passenger in the vehicle, which was registered to another

individual. No evidence produced at the suppression hearing suggested that

Sabater had any other connection to it. He did not assert he owned the

vehicle, that it was registered to him, or that he had any authority to operate

it. See Burton, 973 A.2d at 436. The police recovered the contraband from

underneath Sabater’s seat and from the area behind the glove box. Sabater

presented no evidence, and he makes no argument on appeal, that he had

even a subjective expectation of privacy in those areas. See Powell, surpa.8

Because Sabater failed to meet his burden of establishing a legitimate

expectation of privacy, the officer’s search of the vehicle did not violate his

rights under the Fourth Amendment or Article I, Section 8 of the Pennsylvania

Constitution. Therefore, the trial court properly denied Sabater’s motion to

suppress. Accordingly, his first claim fails.9

____________________________________________

8 See also Commonwealth v. Millner, 888 A.2d 680, 692 (Pa. 2005)

(holding there was no basis for suppression of a firearm seized from a vehicle,

where the defendant offered no evidence that he owned the vehicle or had

any other connection to it which could form the basis for even a subjective

expectation of privacy); Commonwealth v. Viall, 890 A.2d 419, 423 (Pa.

Super. 2005) (stating an ordinary passenger in an automobile does not by his

mere presence have a legitimate expectation of privacy in the entire

passenger compartment of that vehicle).

9 We note that in its Rule 1925(a) opinion, the court analyzed whether the

search of the vehicle was proper and “reluctantly conclude[d] that the search

for weapons in this matter was without reasonable suspicion that the

occupants of the car were armed and dangerous[.]” Trial Court Opinion,

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In his second issue, Sabater challenges the sufficiency of the evidence

supporting his convictions. Sabater argues the Commonwealth failed to prove

he constructively possessed the contraband inside the vehicle. See Sabater’s

Brief at 12. Sabater contends there was another individual in the vehicle when

it was pulled over, and the vehicle was registered in that individual’s name.

See id. at 20. Sabater asserts there was insufficient evidence that he actually

knew of the existence of the contraband, which was hidden under his seat and

behind the glove compartment. See id.

Our standard of review for a challenge to the sufficiency of the evidence

is well-settled:

Whether sufficient evidence exists to support the verdict is a

question of law; our standard of review is de novo and our scope

of review is plenary. When reviewing the sufficiency of the

evidence, this Court is tasked with determining whether the

evidence at trial, and all reasonable inferences derived therefrom,

are sufficient to establish all elements of the offense beyond a

reasonable doubt when viewed in the light most favorable to the

Commonwealth[.] The evidence need not preclude every

possibility of innocence and the fact-finder is free to believe all,

part, or none of the evidence presented.

____________________________________________

6/30/2017, at 9. The court did not address the preliminary issue of whether

Sabater established he had a privacy interest in the car. Nevertheless, we are

“not bound by the rationale of the trial court, and we may affirm the trial court

on any basis.” Commonwealth v. Williams, 73 A.3d 609, 617 n.4 (Pa.

Super. 2013), appeal denied, 87 A.3d 320 (Pa. 2014).

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Commonwealth v. Walls, 144 A.3d 926, 931 (Pa. Super. 2016) (internal

citations and quotation marks omitted), appeal denied, 167 A.3d 698 (Pa.

2017).

Section 780-113 of The Controlled Substance, Drug, Device and

Comestic Act provides in relevant part:

(a) The following acts and the causing thereof within the

Commonwealth are hereby prohibited:

* * *

(16) Knowingly or intentionally possessing a controlled or

counterfeit substance by a person not registered under this

act, or a practitioner not registered or licensed by the

appropriate State board, unless the substance was obtained

directly from, or pursuant to, a valid prescription order or

order of a practitioner, or except as otherwise authorized by

this act.

* * *

(30) Except as authorized by this act, the manufacture,

delivery, or possession with intent to manufacture or

deliver, a controlled substance by a person not registered

under this act, or a practitioner not registered or licensed by

the appropriate State board, or knowingly creating,

delivering or possessing with intent to deliver, a counterfeit

controlled substance.

* * *

(32) The use of, or possession with intent to use, drug

paraphernalia for the purpose of planting, propagating,

cultivating, growing, harvesting, manufacturing,

compounding, converting, producing, processing,

preparing, testing, analyzing, packing, repacking, storing,

containing, concealing, injecting, ingesting, inhaling or

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otherwise introducing into the human body a controlled

substance in violation of this act.

35 P.S. §§ 780-113(a)(16), (30), (32).

“To sustain a conviction for possession of drug paraphernalia the

Commonwealth must establish that items possessed by defendant were used

or intended to be used with a controlled substance so as to constitute drug

paraphernalia and this burden may be met by Commonwealth through

circumstantial evidence.” Commonwealth v. Little, 879 A.2d 293, 300 (Pa.

Super. 2005), appeal denied, 890 A.2d 1057 (Pa. 2005).

The following principles govern the Commonwealth’s burden of proof in

drug possession cases:

In narcotics possession cases, the Commonwealth may meet its

burden by showing actual, constructive, or joint constructive

possession of the contraband. Actual possession is proven by

showing ... [that the] controlled substance [was] found on the

[defendant’s] person. If the contraband is not discovered on the

defendant’s person, the Commonwealth may satisfy its

evidentiary burden by proving that the defendant had constructive

possession of the drug.

Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa. Super. 2014) (en banc)

(internal citations and quotation marks omitted), appeal denied, 121 A.3d 496

(Pa. 2015).

Constructive possession is a legal fiction, a pragmatic

construct to deal with the realities of criminal law

enforcement. Constructive possession is an inference

arising from a set of facts that possession of the contraband

was more likely than not. We have defined constructive

possession as conscious dominion. We subsequently

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defined conscious dominion as the power to control the

contraband and the intent to exercise that control. To aid

application, we have held that constructive possession may

be established by the totality of the circumstances.

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

appeal denied, [] 63 A.3d 1243 (2013) (internal quotation marks

and citation omitted). Additionally, it is possible for two people to

have joint constructive possession of an item of contraband.

Commonwealth v. Sanes, 955 A.2d 369, 373 (Pa. Super. 2008),

appeal denied, 601 Pa. 696, 972 A.2d 521 (2009).

Commonwealth v. Hopkins, 67 A.3d 817, 820-821 (Pa. Super. 2013),

appeal denied, 78 A.3d 1090 (Pa. 2013). “An intent to maintain a conscious

dominion may be inferred from the totality of the circumstances, and

circumstantial evidence may be used to establish a defendant’s possession of

drugs or contraband.” Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa.

Super. 2013) (citation omitted), appeal denied, 77 A.3d 636 (Pa. 2013).10

In the present case, the evidence was sufficient to conclude Sabater was

in constructive possession of the scale found in the vehicle. The scale was

located directly under Sabater’s seat, and within his reach. The officer who

conducted the search specifically testified that the scale “was right at the front

of the seat.” N.T., 5/12/16, at 42. Additionally, Sabater was carrying

$1,565.00 in cash and indicated on a police form that he was unemployed.

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10 “The purpose of the constructive possession doctrine is to expand the scope

of possession statutes to encompass those cases where actual possession at

the time of arrest cannot be shown but where the inference that there has

been actual possession is strong.” Commonwealth v. Carroll, 507 A.2d 819,

820 (Pa. 1986) (citation omitted).

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Officer James Trappler, who was qualified as an expert in the packaging,

distribution, and sale of narcotics, testified that both the scale and the large

amount of cash in Sabater’s possession were factors indicating involvement in

drug sales. Id. at 101, 104. Viewing the evidence in the light most favorable

to the Commonwealth, the court, sitting as fact-finder, could reasonably

conclude that the totality of the circumstances established the scale

constituted drug paraphernalia and Sabater had the ability and intent to

exercise control over it. See Johnson, supra.

Sabater’s connection to the bags of heroin, however, was more tenuous.

Unlike the scale, the drugs were not similarly located right at the front of his

seat. They were fully concealed in the area behind the glove box. See N.T.,

5/12/16, at 17. Indeed, the officer was only able to locate the heroin after a

K9 dog conducted a sniff of the vehicle, and then the officer then had to pull

on a piece of the vehicle’s interior to access the drugs. Id. at 15, 17, 49.

Sabater was not the owner of the vehicle, nor the only person in it at the time

of the stop. Moreover, we find that given the surreptitious location of the

drugs and the fact that Sabater was not the owner of the vehicle or its sole

occupant, the Commonwealth did not establish Sabater possessed “conscious

dominion” over the drugs, in which he had “the power to control the

contraband and the intent to exercise that control.” Hopkins, 67 A.3d at 820.

As such, the Commonwealth failed to produce sufficient evidence for the court

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to find beyond a reasonable doubt that Sabater had constructive possession

of the drugs. Further, the court could no less reasonably have found the driver

possessed the drugs and Sabater had no knowledge of them.11 See

Commonwealth v. Tribble, 467 A.2d 1130, 1131 (Pa. 1983) (stating that

when two equally reasonable and mutually inconsistent inferences can be

drawn from the same set of circumstances, a jury must not be permitted to

guess which inference it will adopt, especially when one of the two guesses

may result in depriving a defendant of his life or his liberty). Because the

evidence of Sabater’s guilt of possession of a controlled substance and PWID

“is at least equally consistent with [his] innocence,” the evidence is insufficient

to sustain his convictions for those charges. Id. at 1132. Accordingly, we are

compelled to reverse Sabater’s convictions for 35 P.S. §§ 780-113(a)(16) and

(a)(30), vacate his judgment of sentence, and remand for resentencing.12

In his third issue, Sabater argues the verdict was against the weight of

the evidence because no evidence demonstrated he was aware of the

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11 It merits mention that the investigating officers did not charge the

driver/owner of the vehicle at issue, who would, allegedly and presumably,

have a closer connection to the drugs. See Trial Court Opinion, 6/30/2017,

at 3.

12 Because Sabater received no penalty on the only remaining conviction,

possession of drug paraphernalia, we must remand for resentencing, since our

disposition disturbs the entire sentencing scheme. See Commonwealth v.

Thur, 906 A.2d 552, 569-570 (Pa. Super. 2006), appeal denied, 946 A.2d 687

(Pa. 2008).

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contraband in the vehicle. Sabater emphasizes he was only a passenger in

another individual’s vehicle, the contraband was not in plain view, and he said

and did nothing evincing his possession of the items. See Sabater’s Brief at

39, 41. Sabater claims his convictions were the result of “a mere guess” that

he possessed the contraband. Id. at 39-40. Because we have already

determined that Sabater’s convictions of possession of a controlled substance

and PWID were not supported by sufficient evidence, we need only address

his weight claim with respect to his conviction of possession of drug

paraphernalia.

When a defendant challenges the weight of the evidence, he “concedes

that the evidence is sufficient to sustain the verdict, but seeks a new trial on

the ground that the evidence was so one-sided or so weighted in favor of

acquittal that a guilty verdict shocks one’s sense of justice.” Commonwealth

v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied, 134 S.Ct. 1792 (U.S.

2014). Our review of a weight claim is well-established:

The weight of the evidence is a matter exclusively for the finder

of fact, who is free to believe all, part, or none of the evidence

and to determine the credibility of the witnesses. A new trial is

not warranted because of “a mere conflict in the testimony” and

must have a stronger foundation than a reassessment of the

credibility of witnesses. Rather, the role of the trial judge is to

determine that notwithstanding all the facts, certain facts are so

clearly of greater weight that to ignore them or to give them equal

weight with all the facts is to deny justice. On appeal, our purview

is extremely limited and is confined to whether the trial court

abused its discretion in finding that the jury verdict did not shock

one’s conscience. Thus, appellate review of a weight claim

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consists of a review of the trial court’s exercise of discretion, not

a review of the underlying question of whether the verdict is

against the weight of the evidence. An appellate court may not

reverse a verdict unless it is so contrary to the evidence as to

shock one’s sense of justice.

Commonwealth v. Rosser, 135 A.3d 1077, 1090 (Pa. Super. 2016) (en

banc), quoting Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super.

2015), appeal denied, 125 A.3d 1196 (Pa. 2015) (citations omitted).

Instantly, Sabater timely filed a post-sentence motion in which he

challenged the weight of the evidence supporting his convictions. See Motion

For Reconsideration, 8/19/16, at 14. However, the trial court never

specifically addressed the weight claim, because the motion was denied by

operation of law.13 Nevertheless, “when a claim is denied by operation of law,

the effect of the denial operates in the same manner as if the court had denied

the motion itself.” Commonwealth v. Upshur, 764 A.2d 69, 73 (Pa. Super.

2000) (en banc), appeal dismissed as improvidently granted, 782 A.2d 538

(Pa. 2001). As such, the denial of Sabater’s post-sentence motion, in which

he challenged the weight of the evidence as an alternative to his sufficiency

claim, substantiates an inference that the court did not believe the verdict

“shock[ed] one’s sense of justice.” Rossner, 135 A.3d at 1090. See Upshur,

supra (holding weight claim, which trial court failed to address in opinion, was

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13 Moreover, the trial court also focused solely on the suppression issue in its

Rule 1925(a) opinion. See Trial Court Opinion, 6/30/2017, at 3-9.

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still reviewable on appeal because court’s denial of post-sentence motion

signified court’s dismissal of claim).

We agree. Although Sabater’s conviction rests solely upon

circumstantial evidence, including constructive possession of the scale, we

detect no abuse of discretion on the part of the trial court in concluding the

weight of the evidence, considering all the circumstances surrounding

Sabater’s arrest, supports the guilty verdict as to possession of drug

paraphernalia. Indeed, we conclude that verdict does not “shock one’s sense

of justice.” Rossner, 135 A.3d at 1090. Therefore, Sabater’s final argument

fails.

Judgment of sentence vacated as to the convictions pursuant to 35 P.S.

§§ 780-113(a)(16) and (a)(30). Judgment of sentence affirmed in all other

respects. Case remanded for resentencing only as to 35 P.S. §§ 780-

113(a)(32) conviction. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/8/18

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