Com. v. Malone, T.

J. S17036/20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

TERRY MALONE, : No. 1491 MDA 2019

:

Appellant :

Appeal from the Judgment of Sentence Entered August 14, 2019,

in the Court of Common Pleas of Berks County

Criminal Division at No. CP-06-CR-0004433-2017

BEFORE: PANELLA, P.J., STABILE, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 14, 2020

Terry Malone appeals, pro se, from the August 14, 2019 judgment of

sentence entered by the Court of Common Pleas of Berks County following his

conviction of two counts each of manufacture of a controlled substance,

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

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

The trial court sentenced appellant to an aggregate term of 17-42 years’

incarceration. After careful review, we affirm.

The trial court set forth the following factual and procedural history:

On July 26, 2017, patrol units with the Reading Police

Department arrived at 428 West Windsor Street in

Reading, Pennsylvania to serve an arrest warrant for

an individual named Miguel Carrasquillo, living at that

residence who was wanted for a felony burglary

involving a firearm and were granted entrance to the

residence. While serving the arrest warrant, officers

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observed firearms and suspected bulk amounts of

synthetic marijuana in plain view.

During the search, officers were informed by

neighbors that the residents frequently utilize[d] a

white, 2005 Ford Explorer that was parked outside of

the residence. A large container that would attach to

an air compressor and firearms could be seen on the

floor board and in the back seat of the Ford Explorer.

Based on these observations, a search warrant was

issued and a search conducted of the Ford Explorer.

Though the Ford Explorer was not registered to

appellant, inside the vehicle, officers found a

cardboard box addressed to appellant originally from

China and routed through Germany prior to arriving in

the [United States.] A powder substance wrapped in

a foil envelope was also found inside the Ford

Explorer. Packaging with the powder indicated that it

was shipped from China to appellant at a post office

box.

On July 26, 2017, a lawful search warrant was

executed on storage unit 1027 located at 1252 North

9th Street in Reading, Pennsylvania (“Unit 1027”) by

members of law enforcement, including Criminal

Investigator Matthew Niebel (“C.I. Niebel”), who

testified for the Commonwealth at the trial of this

matter. Upon entering Unit 1027, law enforcement

found four large cardboard boxes — some marked

with a specific brand — and a large, black plastic bin.

One of the cardboard boxes contained approximately

nineteen, one-pound packages of a green, leafy

substance suspected to be synthetic marijuana. Each

was packaged in a one-gallon Ziploc bag. C.I. Niebel

testified that, based on his training and experience,

controlled substances, such as synthetic marijuana,

[are] often packaged in bulk for sale or distribution.

Other boxes contained blue tarps with approximately

sixty pounds of unpackaged substance suspected to

be synthetic cannabinoid. Tarps are commonly used

and [are] an essential tool in the manufacturing of

large quantities of synthetic marijuana. The black

plastic bin contained some synthetic marijuana

residue.

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A packaging slip on one of the boxes indicated that

the box was packed with twenty-five pounds of

damiana leaf, which is an herbal substance known to

be used in the processing of synthetic

marijuana.[Footnote 1] Some of the boxes still had

shipping labels with appellant’s name and a Reading

post office box address printed on them. Another

receipt from [an] herb company in Oregon also had

appellant’s name printed on it with an address at

165 Main Street, Building 27 in Wernersville,

Pennsylvania and indicated that the receipt was for

fifty pounds of damiana leaf. Law enforcement

contacted the management office of the storage

center and obtained a copy of the lease for Unit 1027,

which identified appellant as the lessee of Unit 1027

with an address at 1 Rockview Place in Bellefonte,

Pennsylvania.

[Footnote 1] While damiana leaf is known

to be used in the processing of synthetic

marijuana, it is not itself a controlled

substance and the purchase of which is

not illegal in Pennsylvania.

The substances found inside both Unit 1027 and in the

Ford Explorer were then sent to the Pennsylvania

State Police (“PSP”) Laboratory for analysis. Upon

analysis of the substances, the PSP forensic drug

analyst concluded that the substance materials

contained FUB-AMB, an indole carboxamide, which is

a Schedule I controlled substance.

Law enforcement began surveillance on appellant. On

July 27, 2017, at approximately 10:00 a.m., officers

observed appellant exit 839 North 8th Street in

Reading, Pennsylvania and enter a gray 2011 Infiniti

and drive to 428 Windsor Street. Appellant then

traveled to a secondary location and on to the post

office on 5th Street in Reading.

Later in the day, at approximately 2:30 p.m.,

investigators observed appellant enter the 2011

Infiniti, after having placed a black garbage bag into

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the trunk. Appellant traveled to 851 North 3rd Street

in Reading, Pennsylvania, went into that address with

the garbage bag and reemerged with a brown paper

bag that he also placed into the trunk of the Infiniti.

Appellant drove to Storage World, located at

211 North Wyomissing Boulevard in Reading,

Pennsylvania and accessed storage unit 3B007 (“Unit

3B007”). Appellant returned to 851 North 3rd Street,

pulled an object from the trunk, which appeared to be

a rifle wrapped in a garbage bag, and enter the

residence again.

After appellant left 851 North 3rd Street, officers

obtained consent from the residents of the

second-floor apartment — Talaura Gonzalez and

Kevin Jacquez — to search the apartment. In the

second-floor bedroom, a black garbage bag was found

under [a] plastic container. Inside of the garbage bag

was an AR-15 rifle and an Intratec .22 caliber Tech-22

with the serial number filed down. In another closet,

officers found a second garbage bag with a small

purse inside and a scale. Inside of the purse were a

Ruger 9mm handgun, which was loaded with ten

bullets, a pink Cobra .380 handgun and forty bullets.

Ms. Gonzalez informed officers that appellant owned

or possessed the firearms.

Law enforcement then prepared and executed search

warrants on both 839 North 8th Street and the

2011 Infiniti vehicle. A search warrant for Unit 3B007

was also authorized and executed.

Upon searching the 2011 Infiniti registered to

appellant, officers found a brown paper bag in the

trunk of the vehicle containing $25,100 in [United

States] currency and a black garbage bag containing

synthetic marijuana. Inside the vehicle, officers found

a jeweler’s receipt for a watch with appellant’s name

on it and a receipt for [a] $1,500 money order sent to

a location in China. The watch indicated on the

jeweler’s receipt matches a watch found on appellant

upon his arrest.

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A search warrant on [Unit 3B007] was likewise

executed. Unit 3B007 was essentially empty except

for a paper bag on the floor containing $89,893 in

United States currency.

A search was authorized and executed by law

enforcement on appellant’s residence located at

839 North 8th Street in Reading. During the search,

officers found two digital scales, packaging materials

and Ziploc bags and a gun box. Criminal Investigator

Kevin Haser (“C.I. Haser”), who was called by the

Commonwealth both as a fact witness and an expert

at the trial of this matter, testified that based on the

amount of synthetic cannabinoid found during the

searches, that the drugs were possessed with the

intent to distribute, as opposed to merely for personal

use. C.I. Haser also testified as to the process and

materials used during the production of synthetic

cannabinoids[.]

Thereafter, on July 27, 201[7], appellant was taken

into custody. The keys for the post office box listed

on the shipping label and the keys for the locks on

both Unit 1027 and Unit 3B007 were found on

appellant’s person.

Officers also searched post office boxes at the

5th Street Post Office in Reading relative to keys

seized upon appellant’s person. Officers also obtained

the application for the post office box, which indicated

that appellant had applied for and his identity was

verified on the form with his driver’s license. A second

post office box key found on appellant’s person

corresponded with a box leased by appellant’s known

paramour. Law enforcement confirmed that these

were the post office boxes where the damiana leaf

shipments were being sent to appellant.

....

On September 29, 2017, appellant was

charged[Footnote 2] with, inter alia, one count of

possession of a firearm with altered manufacturer’s

number[Footnote 3] at count five, one count of

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receiving stolen property[Footnote 4] at count six,

two counts of manufacture of a controlled

substance[Footnote 5] at counts seven and eight, two

counts of [PWID][Footnote 6] at counts nine and ten,

two counts of possession of a controlled

substance[Footnote 7] at counts eleven and twelve

and two counts of possession of drug

paraphernalia[Footnote 8] at counts thirteen and

fourteen. On September 15, 2017, all charges were

held over for court.

[Footnote 2] [The trial court] note[s] that

appellant was likewise charged with four

counts of unlawful possession of a firearm

pursuant to 18 Pa.C.S.A. § 6105(a)(1),

which were severed from the instant

charges and later withdrawn after

sentencing pursuant to the instant

convictions.

[Footnote 3] 18 Pa.C.S.A. § 6110.2(a)[.]

[Footnote 4] 18 Pa.C.S.A. § 3925(a)[.]

[Footnote 5] 35 P.S. § 780-113(a)(30)[.]

[Footnote 6] 35 P.S. § 780-113(a)(30)[.]

[Footnote 7] 35 P.S. § 780-113(a)(16)[.]

[Footnote 8] 35 P.S. § 780-113(a)(32)[.]

Appellant, [although represented by counsel], filed

various pro se pre-trial motions which were denied by

[the trial] court. On August 16, 2018, appellant filed

counseled omnibus pretrial motions seeking

habeas corpus relief challenging the classification of

FUB-AMB as a controlled substance under

Pennsylvania law on the date of appellant’s arrest. A

hearing was scheduled and held on the motion for

September 19, 2018. At the pretrial hearing, the

Commonwealth presented Adam Shober, a forensic

drug analyst with the [PSP] Crime Lab and was

qualified as an expert witness in the field of drug

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analysis. The Commonwealth submitted eight

laboratory reports from the PSP Crime Lab.

Mr. Shober testified that all of the reports indicated

the substances tested, which were those seized during

the searches, were examined and determined to be

FUB-AMB, an indole carboxamide. Mr. Shober also

testified that the indole carboxamide tested was the

same category of chemical that is considered a

Schedule I controlled substance pursuant to 35 P.S.

§ 780-104(vii)(2.1).

During cross-examination, appellant’s trial counsel

questioned Mr. Shober regarding the ten specific

chemical compounds listed under the statute and the

fact that FUB-AMB is not specifically listed therein.

Mr. Shober insisted that the specifically listed

chemical compounds are merely examples and does

not include all indole carboxamides, though indole

carboxamides are considered Schedule I controlled

substances. Appellant’s trial counsel then shifted to

an emphasis on the fact that the federal government

has specifically designated FUB-AMB, with a different

naming scheme tha[n] that used under Section 780-

104. Mr. Shober testified that the general category of

indole carboxamides, as stated in the statute, may

have slight changes or substitutions that do not

remove the chemical from the general category.

Finally, upon question, Mr. Shober testified that in

FUB-AMB, at the indole ring, a carbon has been

replaced by nitrogen and that there are a number of

substitutions at the propionaldehyde group.

At the conclusion of the hearing, [the trial] court

denied appellant’s pretrial motion. [The trial court’s]

decision was based on the fact that the statute,

though giving several specific examples of the named

controlled substance, does not give an exhaustive list

thereof. [The trial court] also found appellant’s

argument that the federal government’s definition of

the substance somehow differs from that of the

Commonwealth as unconvincing since the violation is

of the Commonwealth’s law and not prosecuted under

federal law. [The trial court] likewise found that the

Commonwealth’s burden in such a proceeding was

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met with the expert witness’ testimony that the

chemical, indole carboxamide, is a controlled

substance under Pennsylvania law.

The case was scheduled for a bench trial on March 21,

2019. On February 4, 2019, appellant, through

counsel, filed a motion for dismissal pursuant to

[Pa.R.Crim.P.] 600. The Commonwealth provided its

answer to the motion on March 15, 2019. A hearing

on the motion was scheduled for the same day as the

scheduled bench trial. At the March 21, 2019 hearing,

[the trial court] denied appellant’s motion and[,]

likewise, denied the bench trial. The matter was

thereafter scheduled for a jury trial on April 10, 2019.

On April 16, 2019, appellant’s trial counsel filed a

petition for withdrawal of appearance, which [the

trial] court denied by order dated the same day. The

case was then rescheduled for jury trial for the trial

term to begin June 5, 2019. The jury trial proceeded

on June 10, 2019 and concluded on June 12, 2019.

Following the jury trial, appellant was found guilty of

the two counts of manufacture of a controlled

substance, two counts of PWID, two counts of

possession of a controlled substance and two counts

of possession of drug paraphernalia. On August 14,

2019, [the trial] court sentenced appellant to an

aggregate sentence of seventeen years to forty-two

years of incarceration in a state correctional facility.

Appellant was determine to be RRRI eligible reducing

his minimum to 170 months.

On August 21, 2019, appellant’s trial counsel filed a

petition to withdraw as counsel. Appellant likewise

expressed his desire to move forward pro se. A

hearing was held on August 27, 2019, after which,

upon satisfaction of [the trial] court from a colloquy of

appellant, [the trial court] granted the petition to

withdraw. Appellant did not file any post-sentence

motions.

On September 12, 2019, appellant, filed a pro se

notice of appeal to the Superior Court of the judgment

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of sentence and all orders entered upon this matter.

On September 13, 2019, [the trial] court ordered that

a concise statement of errors be filed and served

within twenty-one days pursuant to Pennsylvania

Rules of Appellate Procedure 1925(b). On October 7,

2019, appellant filed a pro se concise statement of

errors.

Trial court opinion, 11/15/19 at 1-7 (citations to the record and extraneous

capitalization omitted). On November 15, 2019, the trial court filed an opinion

pursuant to Pa.R.A.P. 1925(a).

Appellant raises the following issues for our review:

[I.] Did the lower court violate [d]ue

[p]rocess/[e]qual protection by denying

[a]ppellant’s motion to [d]ismiss all charges

pursuant to a violation of Pa.R.Crim. P., [sic]

rule 600?

[II.] Did the lower court violate [d]ue [p]rocess by

denying [a]ppellant a bench trial?

[III.] Did the lower court violate [d]ue [p]rocess by

denying [a]ppellant his right to

self-representation?

[IV.] Is “35 P.S. 780-104(1)(vii)(2.1)”

unconstitutionally vague/unconstitutionally

vague as applied?

[V.] Was the verdict against the sufficiency/weight

of the evidence, where the Commonwealth

failed to prove beyond a reasonable doubt that

FUB-AMB was a controlled substance?

[VI.] Did the Commonwealth fail to prove beyond a

reasonable doubt that [a]ppellant had

knowledge (mens rea) that he was dealing in

a controlled substance?

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[VII.] Did the Commonwealth fail to prove the

element that [a]ppellant was not a person

registered under the Controlled Substance,

Drug, Device, and Cosmetics Act or a

practitioner not registered by the appropriate

[s]tate [b]oard to manufacture a controlled

substance, possess a controlled substance

with intents to deliver it, or simply possess a

controlled substance?

[VIII.] Was the verdict against the sufficiency/weight

of the evidence as to counts 7, 9, 11, and 13?

[IX.] Did the lower court violate [d]ue [p]rocess by

giving erroneous jury instructions?

[X.] Was [sic] counts 7 and 9, and counts 8 and 10

supposed to merge for purposes of

sentencing?

Appellant’s brief at 4-5.1, 2

In his first issue for our review, appellant avers the Commonwealth

violated his constitutional right to a speedy trial pursuant to Pennsylvania Rule

of Criminal Procedure 600. (Appellant’s brief at 9-16.) We disagree.

“In evaluating Rule [600] issues, our standard of

review of a trial court’s decision is whether the trial

court abused its discretion.” Commonwealth v. Hill,

736 A.2d 578, 581 (Pa. 1999). See also

Commonwealth v. McNear, 852 A.2d 401

(Pa.Super. 2004). “Judicial discretion requires action

in conformity with law, upon facts and circumstances

judicially before the court, after hearing and due

consideration.” Commonwealth v. Krick, 67 A.2d

746, 749 (Pa.Super. 1949). “An abuse of discretion

is not merely an error of judgment, but if in reaching

1 For ease of discussion, we have re-ordered appellant’s issues on appeal.

2 The pages in appellant’s brief are unnumbered; for the ease of our

discussion, we have assigned each page a corresponding number.

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a conclusion the law is overridden or misapplied or the

judgment exercised is manifestly unreasonable, or the

result of partiality, prejudice, bias, or ill will, as shown

by the evidence or the record, discretion is abused.”

Commonwealth v. Jones, 826 A.2d 900, 907

(Pa.Super. 2003) (en banc) (citing Commonwealth

v. Spiewak, 617 A.2d 696, 699 n.4 (Pa. 1992)).

“The proper scope of review . . . is limited to the

evidence on the record of the Rule [600] evidentiary

hearing, and the findings of the [trial] court.” Hill,

supra at 581; McNear, supra at 404. See also

Commonwealth v. Jackson, 765 A.2d 389

(Pa.Super. 2000), appeal denied, 793 A.2d 905 (Pa.

2002). “[A]n appellate court must view the facts in

the light most favorable to the prevailing party.” Id.

at 392.

....

In assessing a Rule 600 claim, the court must exclude

from the time for commencement of trial any periods

during which the defendant was unavailable, including

any continuances the defendant requested and any

periods for which he expressly waived his rights under

Rule 600. Pa.R.Crim.P. 600(C). “A defendant has no

duty to object when his trial is scheduled beyond the

Rule [600] time period so long as he does not indicate

that he approves of or accepts the delay.”

Commonwealth v. Taylor, 598 A.2d 1000, 1003

(Pa.Super. 1991), appeal denied, 613 A.2d 559 (Pa.

1992) (addressing [m]unicipal [c]ourt’s counterpart

to speedy trial rule).

Commonwealth v. Hunt, 858 A.2d 1234, 1238-1239, 1241 (Pa.Super.

2004) (en banc), appeal denied, 875 A.2d 1073 (Pa. 2005).

The comment to Rule 600 states any delay in the proceedings

instrumentally caused by the defendant or the defense, including the

unavailability of the defendant, must be excluded for the purposes of

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Rule 600. Pa.R.Crim.P. 600 cmt. The court has previously held a defendant

is considered unavailable for any period of time in which he or she is

unrepresented, absent a waiver of his or her right to counsel.

Commonwealth v. Anderson, 959 A.2d 1248, 1251 (Pa.Super. 2008).

The comment to Rule 600 further provides “delay in the time of trial that

is attributable to the judiciary may be excluded from the computation of time.”

Pa.R.Crim.P. 600 cmt. citing Commonwealth v. Crowley, 466 A.2d 1009

(Pa. 1983); see also Commonwealth v. Mills, 162 A.3d 323, 325 (Pa.

2017), citing Commonwealth v. Bradford, 46 A.3d 693, 705 (Pa. 2012)

(“periods of judicial delay are excludible from calculations under the rule”).

Here, the record reflects the original mechanical run date was July 27,

2018. Prior to the hearing on appellant’s Rule 600 motion, the Commonwealth

filed a response to the motion, which demonstrated many of the delays in the

case were caused by appellant, and appellant expressly agreed to waive

Rule 600 for numerous other delays. (Commonwealth’s response, 3/15/19 at

Exhibits A-C.) At the Rule 600 hearing, defense counsel expressly agreed to

the authenticity and accuracy of these documents. (Notes of testimony,

3/21/19 at 3.) Defense counsel never disputed he agreed to the Rule 600

waivers, which resulted in an adjusted mechanical run date of December 27,

2019. (See id. at 2-7.) As appellant was brought to trial in June 2019, well

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before the adjusted mechanical run date, his first claim does not merit relief.3

See Hunt, 825 A.2d at 1241.

In his second issue, appellant contends the trial court violated his due

process rights by denying him a bench trial. (Appellant’s brief at 42-43.) We

disagree.

As appellant admits (id. at 43,) there is no constitutional right to a bench

trial. Commonwealth v. Sanchez, 36 A.3d 24, 54 (Pa. 2011), cert. denied,

568 U.S. 833 (2011). Moreover, the decision to grant or deny a request for a

bench trial is within the discretion of the trial court. Commonwealth v.

Merrick, 488 A.2d 1, 3 (Pa.Super. 1985).

The Commonwealth argues appellant waived this claim because he

failed to make a written request for a bench trial in the trial court.

(Commonwealth’s brief at 27-28.) While we have been unable to locate any

written request, the record of the March 21, 2019 speedy trial hearing

demonstrates appellant had made such a request and the trial court denied it

on the record. (Notes of testimony, 3/21/19 at 6-7.) Thus, we will address

the claim on the merits.

3 Moreover, appellant’s reliance on our supreme court’s decision in Mills,

supra, is misplaced. In Mills, the delays were largely caused by

Commonwealth requests for continuances, which the Commonwealth then

argued should be excluded based upon the 2012 revised computational

instructions to Pa.R.Crim.P. 600(C). Mills, 162 A.3d at 324. This is simply

not the situation in the present case.

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We have reviewed the record and find no abuse of discretion. While

appellant contends there were claims he would have raised in a bench trial,

which he could not before a jury (appellant’s brief at 42), counsel never argued

this in the trial court. (Notes of testimony, 3/21/19 at 6-7.)

Moreover, our review of the examples provided by appellant

demonstrates the claims he wanted to raise in a bench trial were either

meritless, reflect appellant’s misunderstanding of the law, had previously been

decided against him, or were claims which needed to be raised in an omnibus

pre-trial motion, not at trial. Further, the record reflects a relationship

between appellant and the trial court, which can best be described as

acrimonious. Given this, we find the trial court did not abuse its discretion in

denying appellant’s request for a bench trial. See Merrick, 488 A.2d at 3.

Appellant’s second issue does not merit relief.

In his third issue, appellant claims the trial court erred in denying his

request to represent himself. (Appellant’s brief at 38-40.) We disagree.

In considering whether a defendant's request to proceed pro se is valid,

the standard of review is de novo. Cf. Commonwealth v. Davido, 868 A.2d

431, 439 (Pa. 2005) (reviewing totality of circumstances de novo to

determine whether defendant’s request to proceed pro se was unequivocal),

cert. denied, 546 U.S. 1020 (2005). We are guided by the following

standards:

Before a defendant is permitted to proceed pro se,

however, the defendant must first demonstrate that

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he knowingly, voluntarily and intelligently waives his

constitutional right to the assistance of counsel. If the

trial court finds after a probing colloquy that the

defendant’s putative waiver was not knowingly,

voluntarily or intelligently given, it may deny the

defendant’s right to proceed pro se. The “probing

colloquy” standard requires Pennsylvania trial courts

to make a searching and formal inquiry into the

questions of (1) whether the defendant is aware of his

right to counsel or not and (2) whether the defendant

is aware of the consequences of waiving that right or

not. Specifically, the court must inquire whether or

not: (1) the defendant understands that he has the

right to be represented by counsel, and the right to

have free counsel appointed if he is indigent; (2) the

defendant understands the nature of the charges

against him and the elements of each of those

charges; (3) the defendant is aware of the permissible

range of sentences and/or fines for the offenses

charged; (4) the defendant understands that if he

waives the right to counsel he will still be bound by all

the normal rules of procedure and that counsel would

be familiar with these rules; (5) defendant

understands that there are possible defenses to these

charges which counsel might be aware of, and if these

defenses are not raised at trial, they may be lost

permanently; and (6) the defendant understands

that, in addition to defenses, the defendant has many

rights that, if not timely asserted, may be lost

permanently; and that if errors occur and are not

timely objected to, or otherwise timely raised by the

defendant, the objection to these errors may be lost

permanently.

Commonwealth v. Starr, 664 A.2d 1326, 1335 (Pa. 1995) (citations and

parallel citation omitted); see also Indiana v. Edwards, 554 U.S. 164,

175-176 (2008) (explaining defendant competent to stand trial may not

necessarily be competent to waive right to counsel).

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Here, the trial court conducted a probing colloquy into whether appellant

could knowingly, voluntarily, and intelligently waive his right to counsel and

proceed pro se. (See generally notes of testimony, 4/3/19 at 3-9.) We

agree with the trial court; appellant’s answers to its questions, as well as his

conduct throughout the case,4 reflect not only appellant’s inability to

understand the normal rules of procedure but a complete unwillingness to be

bound by them. (See also notes of testimony, 4/3/19 at 4-8 (where appellant

incorrectly answered questions about sentencing ranges for drug felonies and

misdemeanors, fines he would possibly be subjected to, elements of persons

not to possess firearms, and demonstrated a lack of understanding of rules of

evidence).) Having reviewed the totality of the circumstances, we agree with

the trial court. Appellant’s history of misunderstanding, willful or otherwise,

of the normal rules of procedures, and his incorrect responses to several of

the court’s questions, did not evidence an awareness of the consequences of

waiving his right to counsel. See Starr, 664 A.2d at 1335. Appellant’s third

claim does not merit relief.

In his fourth claim, appellant challenges the constitutionality of 35 P.S.

§ 780-104(1)(vii)(2)(A)(I), claiming it is vague. (Appellant’s brief at 23-28.)

However, appellant waived this claim.

4 This conduct included the filing of numerous pro se motions, often

challenging issues already decided by the trial court and despite being

informed several times he was not permitted to file pro se motions while

represented by counsel.

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“Analysis of the constitutionality of a statute is a question of law and,

thus, our standard of review is de novo. Our scope of review, to the extent

necessary to resolve the legal question[] before us, is plenary. . .”

Commonwealth v. Proctor, 156 A.3d 261, 268 (Pa.Super. 2017) (citations

omitted), appeal denied, 172 A.3d 592 (Pa. 2017).

Here, in its Rule 1925(a) opinion, the trial court found appellant had

waived this issue because it was raised for the first time in his Rule 1925(b)

statement. (Trial court opinion, 11/15/19 at 14.) We agree.5

We have long held “issues, even those of constitutional dimension, are

waived if not raised in the trial court. A new and different theory of relief may

not be successfully advanced for the first time on appeal.” Commonwealth

v. Santiago, 980 A.2d 659, 666 (Pa.Super. 2009) (citations omitted),

appeal denied, 991 A.2d 312 (Pa. 2010), cert. denied, 562 U.S. 866

(2010); see also 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”). Moreover, an

appellant cannot raise issues for the first time in a Rule 1925(b) statement.

5 Appellant raised the issue in a pro se motion he filed in April 2019. (Petition

for dismissal, 4/10/19, at (unnumbered) 1-4.) However, he was represented

by counsel during this period. It is well settled under Pennsylvania law there

is no right to hybrid representation either at trial or on the appellate level.

See Commonwealth v. Padilla, 80 A.3d 1238, 1259 (Pa. 2013),

cert. denied, 573 U.S. 907 (2014). Thus, courts in this Commonwealth “will

not accept a pro se motion while an appellant is represented by counsel;

indeed, pro se motions have no legal effect and, therefore, are legal nullities.”

Commonwealth v. Williams, 151 A.3d 621, 623 (Pa.Super. 2016) (citation

omitted).

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See Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa.Super. 2011)

(issues raised for first time in Rule 1925(b) statement are waived). Thus,

appellant waived his fourth issue, and we will not address it further.

In his fifth through eighth issues, appellant challenges both the weight

and sufficiency of the evidence underlying his conviction. (Appellant’s brief at

16-23, 28-37.) For the reasons discussed below, we find appellant waived his

weight of the evidence and certain of his sufficiency of the evidence claims,

and the remainder do not merit relief.

In his fifth and eighth issues, appellant challenges the weight of the

evidence underlying his conviction. However, appellant has not preserved this

claim for our review.

We have long held this court cannot consider, in the first instance, a

claim the verdict is against the weight of the evidence. See Commonwealth

v. Wilson, 825 A.2d 710, 714 (Pa. Super. 2003). Here, appellant did not file

a post-sentence motion. Thus, the issue is not preserved for our review. See

Commonwealth v. Burkett, 830 A.2d 1034, 1036 (Pa. Super. 2003).

Moreover, appellant did not raise the weight of the evidence claims in

his Rule 1925(b) statement. Because of this, the trial court did not address

these claims in its Rule 1925(a) opinion.

As amended in 2007, Pennsylvania Rule of Appellate Procedure 1925

provides issues that are not included in the Rule 1925(b) statement or raised

in accordance with Rule 1925(b)(4) are waived. See Pa.R.A.P.

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1925(b)(4)(vii); see also Commonwealth v. Heggins, 809 A.2d 908, 911

(Pa.Super. 2002) (“[A Rule 1925(b)] [s]tatement which is too vague to allow

the court to identify the issues raised on appeal is the functional equivalent to

no [c]oncise [s]tatement at all.”), appeal denied, 827 A.2d 430 (Pa. 2003);

Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998), superseded by

rule on other grounds as stated in Commonwealth v. Burton, 973 A.2d

428, 431 (Pa.Super. 2009). Thus, appellant waived his weight of the evidence

claims for this reason as well.

In his fifth through eighth issues, appellant also claims the evidence was

insufficient to sustain his convictions. We disagree.

Our standard of review of a sufficiency claim is well settled:

Our standard for evaluating sufficiency of the evidence

is whether the evidence, viewed in the light most

favorable to the Commonwealth [as verdict winner],

is sufficient to enable a reasonable [factfinder] to find

every element of the crime beyond a reasonable

doubt. [T]he entire trial record must be evaluated and

all evidence actually received must be considered,

whether or not the trial court’s rulings thereon were

correct. Moreover, [t]he Commonwealth may sustain

its burden of proving every element of the crime

beyond a reasonable doubt by means of wholly

circumstantial evidence. Finally, the trier of fact,

while passing upon the credibility of witnesses and the

weight to be afforded the evidence produced, is free

to believe all, part or none of the evidence.

Commonwealth v. Shull, 148 A.3d 820, 844 (Pa.Super. 2016) (citation

omitted).

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In his fifth issue, appellant maintains the evidence was insufficient to

show FUB-AMB was a controlled substance. In his sixth issue, appellant

argues the Commonwealth failed to prove he had the requisite mens rea to

show he knew he was dealing in a controlled substance. In its Rule 1925(a)

opinion, the trial court thoroughly addressed these issues as follows:

Section 780-113(a)(30) of the Controlled Substance,

Drug, Device and Cosmetic Act (“the Controlled

Substance Act”), prohibits “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.” 35 P.S. § 780-

113(a)(30). Likewise, [] Section 780-113(a)(16)

prohibits “[k]nowingly 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.” 35 P.S. § 780-113(a)(16).

The Controlled Substance Act also provides schedules

of controlled substances, including, in relevant part,

the following:

(vii) Synthetic cannabinoids, including

any material, compound, mixture or

preparation that is not listed as a

controlled substance in Schedules I, II,

III, IV and V, is not a Federal Food and

Drug Administration-approved drug or not

used within legitimate and approved

medical research and which contains any

quantity of the following substances, their

salts, isomers, whether optical, positional

or geometric, analogues, homologues and

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salts of isomers, analogues and

homologues, unless specifically

exempted, whenever the existence of

these salts, isomers, analogues,

homologues and salts of isomers,

analogues and homologues if possible

within the specific chemical designation:

....

2.1. Indole carboxamides--Any

compound structurally derived from

1H-indole-3-carboxamide or

1H-indole-2-carboxamide:

(A) substituted in both of the

following ways:

(I) At the nitrogen atom of

the indole ring.

(II) At the nitrogen of the

carboxamide by a phenyl,

benzyl, naphthyl,

adamantyl, cyclopropyl or

propionaldehyde group;

and

(B) whether or not the

compound is further modified

to any extent in any of the

following ways:

(I) Substitution to the

indole ring to any extent.

(II) Substitution to the

phenyl, benzyl, naphthyl,

adamantyl, cyclopropyl or

propionaldehyde group to

any extent.

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(III) A nitrogen

heterocyclic analog of the

indole ring.

(IV) A nitrogen

heterocyclic analog of the

phenyl, benzyl, naphthyl,

adamantyl or cyclopropyl

ring.

This shall include AB-CHMINACA,

AB-FUBINACA, AB-PINACA, ADBICA,

ADB-PINACA, AKB-48, AMB, NNEI,

STS-135 and THJ.

35 P.S. § 780-104(vii)(2.1).

The crux of [a]ppellant’s arguments, as to the

manufacturing of a controlled substance, possession

of a controlled substance and possession with intent

to deliver charges seems to hinge again on the

allegation that the Commonwealth failed to prove

beyond a reasonable doubt that FUB-AMB is a

controlled substance. We refer to the earlier recitation

of the pretrial hearing and stand by our reasoning

therefrom. Both at the pre-trial hearing, and then

during trial, the Commonwealth presented expert

opinion that FUB-AMB is an indole carboxamide

consistent with the controlled substance contemplated

under the Controlled Substances Act. Appellant failed

to present any expert witness or other evidence to

counter the determination. Moreover, the

Commonwealth presented evidence of the amount of

synthetic cannabinoids, as well as packaging, bags

and the tarps, to which the Commonwealth’s expert

witnesses testified were consistent with the

manufacture and possession with the intent to deliver

the drugs. Appellant’s contention that FUB-AMB is not

a controlled substance is without merit as a factual

matter.

As to [a]ppellant’s argument that the Commonwealth

failed to present sufficient evidence in order to prove

mens rea as to whether he knew he was dealing in a

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controlled substance, we find such an argument

unavailing. The Superior Court has stated that:

A person who intends to possess a

controlled substance, believes he

possesses a controlled substance, and in

fact possesses a controlled substance is

guilty of [possession of a controlled

substance]. The only knowledge that is

required to sustain the conviction is

knowledge of the controlled nature of the

substance. The defendant need not know

the chemical name or the precise

chemical nature of the substance. Any

more stringent rule as to knowledge

would, for all practical purposes, make the

statute inapplicable to anyone who had

not personally performed a chemical [sic]

analysis of the contraband in his

possession.

Commonwealth v. Sweeting, 528 A.2d 978, 980

(Pa.Super. 1987) (citation omitted)[, appeal denied,

536 A.2d 1331 (Pa. 1987)]. In Commonwealth v.

Mohamud, 15 A.3d 80, 92 (Pa.Super. 2010), the

[c]ourt noted that a defendant must know that the

substance he possesses is a controlled substance to

fulfill the mens rea requirement under the statute.

In Mohamud, the defendant challenged the

sufficiency of the Commonwealth’s evidence to convict

him under The Controlled Substance Act alleging that

the Commonwealth failed to prove that he knew that

the substance in his possession contained a controlled

substance under the Act. The [c]ourt found the

defendant’s argument to be unconvincing since the

defendant had admitted that that [sic] the substance

itself was illegal and such knowledge was sufficient to

fulfill the mens rea requirement.

In the instant matter, we don’t have such an

admission from [a]ppellant. In fact, [a]ppellant has

challenged the inclusion of FUB-AMB as a controlled

substance. However, the sufficiency of the

Commonwealth’s evidence does not hinge simply on

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an admission, but the jury, as fact-finder, may make

reasonable inferences from the evidence and

testimony, including that [a]ppellant’s various storage

locations, processing and packaging operations, the

large amounts of cash being held in paper bags, as

well as [a]ppellant’s own behavior can indicate his

knowledge of the illegality of the controlled substance.

Accepting [a]ppellant’s argument otherwise would

lead to an absurd result. Consequently, we find the

alleged error lacks merit.

Trial court opinion, 11/15/19 at 11-13. As we agree with this well-reasoned

analysis, we adopt the reasoning of the trial court on these issues. Appellant’s

fifth and sixth issues do not merit relief.

In his seventh issue, appellant avers the evidence was insufficient to

show he was not a person registered or licensed by the appropriate state

boards to possess with intent to deliver or possess a controlled substance.

This contention lacks merit.

In Commonwealth v. Sojourner, 408 A.2d 1108 (Pa.Super. 1979),

this court addressed an identical claim under the Controlled Substance, Drug,

Device and Cosmetic Act and held, while the Commonwealth has the burden

of proving every element of a criminal offense beyond a reasonable doubt, the

burden of going forward with evidence of every aspect of a criminal offense

need not rest on the Commonwealth from the outset. See id. at 1113.

Rather, the prosecution may shift to the defendant the burden of production,

in other words, the burden of going forward with sufficient evidence to justify

a reasonable doubt on that issue. See id. at 1114. Accordingly, we

concluded, before the prosecution must disprove the defendant was

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authorized to possess narcotics, the defendant must establish some credible

evidence of such authorization.6

Accordingly, here, appellant was required to come forward with some

proof he was licensed to manufacture, possess, or deliver FUB-AMB before the

Commonwealth was required to disprove his authorization to possess the

drug. Because appellant did not present any such evidence, the

Commonwealth was not required to present evidence to disprove that element

of the offense. Sojourner, 408 A.2d at 1113-1114. Appellant’s seventh issue

does not merit relief.

In his eighth issue, appellant asks, “[w]as the verdict against the

sufficiency/weight of the evidence as to counts 7, 9, 11, and 13?” (Appellant’s

brief at 32.) In his Rule 1925(b) statement, he phrased the same issue thusly,

“[w]as it a violation of [appellant’s] 5th/6th/14th Amendment and

Pennsylvania’s equivalent [c]onstitutional [r]ights for [appellant] to be found

[g]uilty of counts 7, 9, 11, and 13, without the Commonwealth proving all the

elements of the crime beyond a reasonable doubt[?]” (Statement of errors

complained of on appeal, 10/7/19 at (unnumbered) 2.)

Prior to assessing the merits of appellant’s sufficiency claim, we must

determine if it is properly before us. We are constrained to conclude appellant

6 We stated, “the [Controlled Substance, Drug, Device and Cosmetic Act]

would be virtually unenforceable if the Commonwealth were obliged to

disprove, in every case, every potential type of authorization to possess

controlled substances which the [Act] recognizes.” Sojourner, 408 A.2d at

1113.

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waived his eighth claim, because his Rule 1925(b) statement did not

sufficiently identify the claim he intended to raise on appeal.

It is well established any issue not raised in a Rule 1925(b) statement

will be deemed waived for appellate review. See Lord, 719 A.2d at 309.

Further, an appellant’s concise statement must identify the errors with

sufficient specificity for the trial court to identify and address the issues the

appellant wishes to raise on appeal. See Pa.R.A.P. 1925(b)(4)(ii) (requiring

Rule 1925(b) statement to “concisely identify each ruling or error that the

appellant intends to challenge with sufficient detail to identify all pertinent

issues for the judge”). A Rule 1925(b) concise statement that is too vague

can result in waiver of issues on appeal. See Commonwealth v. Dowling,

778 A.2d 683, 686-687 (Pa.Super. 2001) (“a concise statement which is too

vague to allow the court to identify the issues raised on appeal is the functional

equivalent of no concise statement at all”).

If [a]ppellant wants to preserve a claim that the

evidence was insufficient, then the [Rule] 1925(b)

statement needs to specify the element or elements

upon which the evidence was insufficient. This [c]ourt

can then analyze the element or elements on appeal.

[Where a] 1925(b) statement [] does not specify the

allegedly unproven elements[,] . . . the sufficiency

issue is waived [on appeal].

Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa.Super. 2015) (citation

omitted).

In this case, as noted above, appellant’s Rule 1925(b) statement simply

declared the Commonwealth failed to prove the elements of counts 7, 9, 11,

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and 13. There was no way for the trial court to discern from this vague

statement what claim appellant was advancing. Because of this, the trial court

did not address this issue in its opinion. Therefore, we must conclude

appellant waived his eighth issue on appeal. See Commonwealth v.

Williams, 959 A.2d 1252, 1257-1258 (Pa.Super. 2008).

In his ninth issue, appellant contends the trial erred in charging the jury

that the synthetic cannabinoid FUB-AMB was a controlled substance in

Pennsylvania. (See [a]ppellant’s brief at 40-42.) However, appellant waived

this claim.

The standard governing our review of a challenge to jury instructions is

as follows:

When reviewing a challenge to part of a jury

instruction, we must review the jury charge as a whole

to determine if it is fair and complete. A trial court

has wide discretion in phrasing its jury instructions,

and can choose its own words as long as the law is

clearly, adequately, and accurately presented to the

jury for its consideration. The trial court commits an

abuse of discretion only when there is an inaccurate

statement of the law.

Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa.Super. 2008), appeal

denied, 962 A.2d 1196 (Pa. 2008) (citation omitted).

This court has stated:

In order to preserve a claim that a jury instruction was

erroneously given, the [a]ppellant must have objected

to the charge at trial. See Commonwealth v.

Spotz, [624] Pa. [4], 84 A.3d 294, 318 n. 18 (2014)

(citations omitted); Pa.R.A.P. 302(b) (“A general

exception to the charge to the jury will not preserve

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an issue for appeal. Specific exception shall be taken

to the language or omission complained of.”);

Pa.R.Crim.P. 647(B) (“No portions of the charge nor

omissions from the charge may be assigned as error,

unless specific objections are made thereto before the

jury retires to deliberate.”). As our [s]upreme [c]ourt

has explained:

The pertinent rules, therefore, require a

specific objection to the charge or an

exception to the trial court’s ruling on a

proposed point to preserve an issue

involving a jury instruction. Although

obligating counsel to take this additional

step where a specific point for charge has

been rejected may appear

counterintuitive, as the requested

instruction can be viewed as alerting the

trial court to a defendant’s substantive

legal position, it serves the salutary

purpose of affording the court an

opportunity to avoid or remediate

potential error, thereby eliminating the

need for appellate review of an otherwise

correctable issue.

Commonwealth v. Pressley, 584 Pa. 624, 887 A.2d

220, 224 (2005) (footnotes and citations omitted);

see Commonwealth v. Garang, 9 A.3d 237, 244-

245 (Pa.Super.2010) (citations omitted);

Commonwealth v. Moury, 992 A.2d 162, 178

(Pa.Super.2010) (citations omitted).

Commonwealth v. Parker, 104 A.3d 17, 29 (Pa.Super. 2014), appeal

denied, 117 A.3d 296 (Pa. 2015).

In Parker, trial counsel objected to the court’s charge on flight at the

charging conference. Id. However, counsel did not object to the charge when

given and, when asked, did not offer any changes or note an objection to the

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charge. Id. We held, because of this, the appellant waived the issue on

appeal. Id.

Here, as in Parker, appellant made a general objection to the charge at

the charge conference. (Notes of testimony, 6/12/19 at 353.) However, he

did not make a specific objection to the charge as given and did not request

any changes or additions. (Id. at 409.) As appellant responded in the

negative when asked if any additions or corrections to the jury charge needed

to be made, he has waived his ninth claim. Parker, 104 A.3d at 29.

In his tenth and final claim, appellant challenges the legality of his

sentence. Specifically, he contends his sentence for PWID should have

merged with his sentence for manufacturing a controlled substance.

(Appellant’s brief at 43-48.)

“Whether [a]ppellant’s convictions merge for sentencing is a question

implicating the legality of [a]ppellant’s sentence.” Commonwealth v.

Baldwin, 985 A.2d 830, 833 (Pa. 2009). We have stated:

The issue of whether a sentence is illegal is a question

of law; therefore, our task is to determine whether the

trial court erred as a matter of law and, in doing so,

our scope of review is plenary. Additionally, the trial

court’s application of a statute is a question of law that

compels plenary review to determine whether the

court committed an error of law.

Commonwealth v. Williams, 871 A.2d 254, 262 (Pa.Super. 2005) (citations

and quotation marks omitted).

The trial court aptly addressed this issue as follows:

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Appellant claims that this court violated his

constitutional rights by failing to merge counts seven

and nine and counts eight and ten. Appellant was

charged at counts seven and eight with manufacture

of a controlled substance and at counts nine and ten

with possession of a controlled substance with the

intent to deliver. The separate charges were based

on the separate locations at which the offenses

occurred. Based on [a]ppellant’s alleged errors, he

does not contend that the court should have merged

the counts regarding separate locations, but instead

he alleges that the court erred in failing to merge the

manufacturing and possession with intent to deliver

offenses.

Section 9765 of the Sentencing Code provides the

following:

§ 9765. Merger of sentences

No crimes shall merge for sentencing

purposes unless the crimes arise from a

single criminal act and all of the statutory

elements of one offense are included in

the statutory elements of the other

offense. Where crimes merge for

sentencing purposes, the court may

sentence the defendant only on the higher

graded offense.

42 Pa.C.S.A. § 9765. The statute “prohibits merger

unless two distinct facts are present: 1) the crimes

arise from a single criminal act; and 2) all of the

statutory elements of one of the offenses are included

in the statutory elements of the other.”

Commonwealth v. Tanner, 61 A.3d 1043, 1046

(Pa.Super. 2013) [citation omitted]. Moreover, The

Controlled Substances Act provides a definition of

“Manufacturing” to mean:

the production, preparation, propagation,

compounding, conversion or processing of

a controlled substance, other drug or

device or the packaging or repackaging of

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such substance or article, or the labeling

or relabeling of the commercial container

of such substance or article, but does not

include the activities of a practitioner who,

as an incident to his administration or

dispensing such substance or article in the

course of his professional practice,

prepares, compounds, packages or labels

such substance or article. The term

“manufacturer” means a person who

manufactures a controlled substance,

other drug or device.

35 P.S. § 780-102. Likewise, the term ‘[d]elivery’ is

defined as “the actual, constructive, or attempted

transfer from one person to another of a controlled

substance, other drug, device or cosmetic whether or

not there is an agency relationship.” 35 P.S. § 780-

102.

The [s]uperior [c]ourt addressed an issue analogous

to that in this matter in Commonwealth v. Everett,

434 A.2d 785 (Pa.Super. 1981), in which the

defendant had been charged with possession of a

controlled substance, possession with intent to deliver

and manufacture of a controlled substance. Id. at

788. The [c]ourt held that the count of possession

with intent to deliver did not merge with the count of

manufacture of a controlled substance where “the

charge of manufacturing was not dependent solely

upon possession of a large quantity of marijuana,” but

was coupled with other facts, including the seizure of

“other paraphernalia associated with the manufacture

of marijuana as well as a number of marijuana

plants.” Id.

We find the same analysis applies to the instant

matter. The jury found [a]ppellant guilty of both the

manufacture of a controlled substance and the

possession of a controlled substance with the intent to

deliver upon sufficient evidence presented by the

Commonwealth. The amount of synthetic cannabinoid

seized was not the sole support for the manufacturing

charge, but the materials such as the blue tarps, the

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evidence of damiana leaf and the powder used in

processing all provide support for the manufacturing

charge that is separate from the elements for the

possession with intent to deliver charges. Therefore,

we find that [a]ppellant’s alleged errors lack merit.

Trial court opinion, 11/15/19 at 17-19. We have thoroughly reviewed the

record and find the trial court did not err in its analysis of this issue.

Appellant’s tenth and final claim does not merit relief.

For the reasons discussed above, we find appellant’s issues are either

waived or do not merit relief. Accordingly, we affirm the judgment of

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/14/2020

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