Opinion
J-S75035-17 No. 741 WDA 2017
02-27-2018
COMMONWEALTH OF PENNSYLVANIA v. BRIAN SCOTT HUGHES, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 25, 2017 in the Court of Common Pleas of Mercer County, Criminal Division at No(s): CP-43-CR-0001370-2016, CP-43-CR-0001372-2016 BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
Brian Scott Hughes ("Hughes") appeals from the judgment of sentence imposed following his convictions of two counts of possession of drug paraphernalia, and one count each of possession with intent to manufacture a controlled substance, possession of a controlled substance, possession of ephedrine, liquefied ammonia gas; precursors and chemicals, operating a methamphetamine laboratory, risking catastrophe, and recklessly endangering another person. We affirm.
See 35 P.S. §§ 780-113(a)(32), 780-113(a)(30), 780-113(a)(16), 780-113(a)(39), 780-113.1, 780-113.4(a)(1); 18 Pa.C.S.A. §§ 3302(b), 2705.
The suppression court set forth the relevant factual and procedural history in its Order denying Hughes's Motion to suppress, which we adopt for the purpose of this appeal. See Trial Court Order, 1/25/17, at 1-6.
On December 30, 2016, Hughes filed a nunc pro tunc Motion to suppress evidence recovered from his hotel room after the initial search by Agent Gary Double ("Agent Double") of the Board of Probation and Parole, and the second search by the Hermitage Police Department. The suppression court conducted a hearing, and subsequently denied Hughes's Motion to suppress.
Following a jury trial, Hughes was convicted of the above-mentioned crimes. The trial court deferred sentencing and ordered a pre-sentence investigation report ("PSI"). Subsequently, the trial court sentenced Hughes to an aggregate term of 2½ to 10 years in prison, with credit for time served. Hughes filed a Motion to Modify Sentence. The trial court denied Hughes's Motion to Modify Sentence. Hughes filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
On appeal, Hughes raises the following questions for our review:
1. Whether the suppression court erred when it admitted evidence found from a search done by [Agent Double] that led to additional evidence found in a search done by the Hermitage Police Department[?]
2. Whether the trial court erred when it denied Hughes'[s] Motion for judgment of acquittal when the Commonwealth clearly failed to produce sufficient evidence to prove the element of possession in regard to the charge of operating a methamphetamine laboratory and related charges thereof[?]
3. Whether the trial court erred when it issued a clearly unreasonable sentence to Hughes for operating a methamphetamine laboratory[,] resulting in a 1½ year to 8 year
state penitentiary sentence[,] and for risking a catastrophe[,] resulting in a 1 year to 2 year concurrent state penitentiary sentence in violation of a fundamental norm where a sentence of confinement should address a defendant's rehabilitative needs[?]Brief for Appellant at 9-10 (issues numbered; some capitalization omitted; footnote added).
We note that Hughes incorrectly states throughout his brief that he received concurrent sentences for his operating a methamphetamine laboratory and risking catastrophe convictions. In fact, the trial court imposed consecutive sentences for these convictions. See Sentencing Order, 4/25/17, at 1-2.
In his first claim, Hughes argues that the suppression court erred by allowing the admission of evidence obtained during the search by Agent Double, and the second search by police. Id . at 23. Regarding the search by Agent Double, Hughes claims that because Agent Double arrived at the hotel to determine whether Hughes had violated his parole by moving without first obtaining permission, "[t]he possible parole violation was moot upon confirming that Hughes[] was still at his approved residence[.]" Id . at 25. Hughes contends that the subsequent weapons pat-down search performed by Agent Double "was nothing more than a ploy to find a violation[,] and not reasonabl[y] related to the initial suspected violation." Id . at 26.
Regarding the subsequent police search of the hotel room, Hughes argues that he had a reasonable expectation of privacy in his concealed personal effects (i.e., the duffle bag and plastic water bottle found under the box spring). Id . at 27. Hughes contends that the discovery of the illegal items by the police was the result of the hotel staff's search, and that "[t]he hotel staff had no justification to examine the contents of the bag found in the room." Id . at 28.
In reviewing the denial of a motion to suppress, our responsibility is to determine whether the record supports the suppression court's factual findings and legitimacy of the inferences and legal conclusions drawn from those findings. If the suppression court held for the prosecution, we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, the appellate court may reverse if there is an error in the legal conclusions drawn from those factual findings.Commonwealth v. Arnold , 932 A.2d 143, 145 (Pa. Super. 2007) (citation omitted).
The suppression court previously considered both of Hughes's arguments in its Order denying Hughes's Motion to suppress. See Trial Court Order, 1/25/17, at 6-14. Regarding the search by Agent Double, the suppression court set forth the relevant law concerning searches of a parolee's person and property, addressed Hughes's argument, and concluded that the search was supported by reasonable suspicion that Hughes possessed contraband or other evidence of violations of the conditions of his supervision. See id. at 6-11. Regarding the police search, the suppression court set forth the relevant law, addressed Hughes's argument, and concluded that any privacy interest Hughes may have had in his personal effects, after he had checked out, was outweighed by the exigent circumstances created by the "notoriously dangerous process" of clandestine methamphetamine production. See id. at 11-14. We agree with the suppression court's determinations, which are supported by the record and free of legal error, and affirm on this basis as to Hughes's first issue. See id. at 6-14.
In his second claim, Hughes contends that there was insufficient evidence to support his convictions of possession with intent to deliver a controlled substance and operating a methamphetamine laboratory because the Commonwealth did not establish the element of possession. Brief for Appellant at 29. Hughes argues that "[t]here was no evidence produced to show that Hughes was the owner of the bag, that he knew the bag was present under his bed and that he was an active participant in the making of methamphetamines." Id . at 32. Hughes additionally claims that there was no testimony regarding when the methamphetamine laboratory would have been active. Id . Hughes claims that "the Commonwealth's evidence was so weak as to the issue of possession that the [t]rial [c]ourt should have granted Hughes['s] Motion for Judgment of Acquittal on a majority of the charges where possession was a key element." Id.
We observe that Hughes's conviction under 35 P.S. § 780-113(a)(30) was for possession with intent to manufacture a controlled substance.
The standard we apply in reviewing the sufficiency of the evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact, while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.Commonwealth v. Furness , 153 A.3d 397, 401 (Pa. Super. 2016) (citation and brackets omitted).
Section 780-113(a)(30) of The Controlled Substance, Drug, Device and Cosmetic Act ("the Act") prohibits the following acts:
[T]he 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). The Act defines "manufacture" as "the production, preparation, propagation, compounding, conversion or processing of a controlled substance...." Id . § 780-102.
The Act defines the offense of operating a methamphetamine laboratory as follows:
A person commits the offense of operating a methamphetamine laboratory if the person knowingly causes a chemical reaction involving ephedrine, pseudoephedrine or phenylpropanolamine, or any other precursor or reagent substance under section 13.1,[FN] for the purpose of manufacturing methamphetamine or preparing a precursor or reagent substance for the manufacture of methamphetamine.Id. § 780-113.4(a)(1). Section 780-113.1 prohibits the possession of the above-mentioned substances with the intent to unlawfully manufacture a controlled substance. See id . § 780-113.1.
[FN]: 35 P.S. § 780-113.1.
Hughes does not specifically challenge his conviction under 35 P.S. § 780-113.1.
Hughes challenges the sufficiency of the evidence only as it relates to his possession of the duffle bag found under the bed. Where, as here, "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).
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 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. Roberts , 133 A.3d 759, 767-68 (Pa. Super. 2016) (citation omitted); see also Vargas , 108 A.3d at 868 (stating that "circumstantial evidence may be used to establish a defendant's possession of drugs or contraband." (citation omitted)).
Here, Roberta Betts ("Betts"), an assistant housekeeper at the Quality Inn, testified that she entered Hughes's room on July 7, 2016, after he had checked out, to perform a "deep clean." See N.T., 2/15/17, at 24. Betts stated that she removed all of the bedding, including the bed skirt, from the room's only bed. See id . at 25. Betts testified that when she adjusted the box spring, she noticed a jar containing clear liquid and brown pellets under the left box spring. See id. Betts also noticed a duffel bag containing a black bowl, brown pellets in a plastic bag, something that "looked like Drano," and a bag containing white powder. See id. at 25, 31; see also id. at 30-31 (wherein Betts testified that the top of the duffle bag was open when she found it, and the bag's contents were in plain view). Betts called the front desk to report what she had found, and was instructed to leave the room. See id. at 31-32. Betts testified that, to her knowledge, no other staff members entered Hughes's room before the police arrived. See id . at 32-33.
Deborah Donella ("Donella"), the general manager of the Quality Inn, testified that Hughes had checked into the Quality Inn on June 5, 2016. See id. at 49. Donella stated that Hughes was the only individual identified on the room lease, and he had paid for the room through July 11, 2016. See id . at 43, 45. Donella testified that Hughes had checked out at 11:22 a.m. on July 7, 2016. See id. at 43. Additionally, Donella testified that she did not enter Hughes's room after he had checked out, until she entered with police officers. See id . at 45.
Corporal Dennis Ulery ("Corporal Ulery"), the coordinator for the Pennsylvania State Police Clandestine Laboratory Response Team ("CLRT"), testified that the most common method of making methamphetamine is known as the "one-pot" or "shake-and-bake" method, which involves the use of a plastic bottle. See id . at 67-68. Corporal Ulery stated that on July 7, 2016, he was dispatched to the Quality Inn in Hermitage with the CLRT and met with members of the Hermitage Police Department, who informed him that there was a suspected meth lab in a room on the second floor. See id. at 71-72. Corporal Ulery testified that, in his opinion, the items recovered from Hughes's hotel room (i.e., lithium batteries, pliers, solvent, ammonium nitrate, which was removed from the cold pack package and placed in a plastic bag, drain cleaner, and a bottle) evidenced a clandestine methamphetamine laboratory. See id. at 78-80; see also id. at 79 (wherein Corporal Ulery stated that "[t]hese items [] really have no reason to be together unless they are going to be used for a meth cook.").
In its Rule 1925(a) Opinion, the trial court considered Hughes's claim, and concluded that, "[g]iven the length of time [Hughes] was in the room, given that he was the sole person named on the lease, and given [that] he was the only one in the room the day the contraband was found," there was "ample circumstantial evidence to conclude beyond a reasonable doubt that [Hughes] possessed the contraband." Rule 1925(a) Opinion, 6/6/17, at 6. Upon review, we agree that the totality of the circumstances supports the finding that Hughes was in constructive possession of the contraband found in his hotel rom. Accordingly, Hughes is not entitled to relief on his second claim.
In his third claim, Hughes asserts that his sentence is "clearly unreasonable and against the fundamental norms of sentencing." Brief for Appellant at 33. Hughes claims that he should have received a mitigated sentence because his "actual possession of the materials found in the hotel room was highly speculative[.]" Id. at 36.
Hughes's claim challenges the discretionary aspects of his sentence, from which there is no automatic right to appeal. See Commonwealth v. Mastromarino , 2 A.3d 581, 585 (Pa. Super. 2010). Prior to reaching the merits of a discretionary sentencing issue,
[this Court conducts] a four-part analysis to determine: (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 has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010) (quotation marks and some citations omitted).
Here, Hughes filed a timely Notice of Appeal, as well as a post-sentence Motion to Modify Sentence. Hughes also included a separate Rule 2119(f) Statement in his brief. Accordingly, we will review Hughes's Rule 2119(f) Statement to determine whether he has raised a substantial question.
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. A substantial question exists only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.Moury , 992 A.2d at 170. Our inquiry "must focus on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits." Commonwealth v. Tirado , 870 A.2d 362, 365 (Pa. Super. 2005) (citation omitted). Additionally, this Court "cannot look beyond the statement of questions presented and the prefatory 2119(f) statement to determine whether a substantial question exists." Commonwealth v. Provenzano , 50 A.3d 148, 154 (Pa. Super. 2012).
In his Rule 2119(f) Statement, Hughes concedes that he received a standard-range sentence for both convictions. Brief for Appellant at 21-22. However, Hughes cites to Section 9781(c)(2) of the Sentencing Code, and again argues that his "knowledge and actual possession of the materials found in the hotel room was highly speculative at the close of the Commonwealth's case." Id . at 22.
Section 9781 provides, in relevant part, as follows:
(c) Determination on appeal.--The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:
* * *
(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable[.]
While Hughes cites Section 9781(c)(2), he has failed to explain why he believes his standard-range sentence is unreasonable in light of the circumstances of this case. See Commonwealth v. Goggins , 748 A.2d 721, 727 (Pa. Super. 2000) (en banc) (stating that "where a defendant merely asserts that his sentence is inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing scheme without explaining how or why, we cannot determine whether he has raised a substantial question."); id. (explaining that in addition to specifying "where the sentence falls in relation to the sentencing guidelines and what particular provision of the Code is violated," an appellant's "Rule 2119(f) statement must specify what fundamental norm the sentence violates and the manner in which it violates that norm"). Instead, Hughes appears to rely on his challenge to the sufficiency of the evidence. We conclude that Hughes has not raised a substantial question that his standard-range sentence is inappropriate or contrary to a fundamental norm underlying the Sentencing Code, and we will not address the merits of his final claim.
Moreover, where, as here, the trial court had the benefit of a PSI, this Court will presume that the trial court was aware of, and considered all relevant factors, and "[h]aving been fully informed by the [PSI], the sentencing court's discretion should not be disturbed." Commonwealth v. Devers , 546 A.2d 12, 18 (Pa. 1988). Additionally, during the sentencing hearing, the trial courted noted the seriousness of Hughes's crimes, and "the life-threatening qualities of the gases which are produced during making meth...." N.T., 4/25/17, at 16. --------
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/27/2018
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