Com. v. Reagan, R. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT REAGAN
Appellant No. 529 WDA 2015
Appeal from the Judgment of Sentence March 12, 2015
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0002403-2013
BEFORE: LAZARUS, J., STABILE, J., and FITZGERALD, J.*
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 23, 2016
Robert Reagan appeals from the judgment of sentence entered in the
Court of Common Pleas of Cambria County after a jury convicted him of one
count each of delivery of a controlled substance1 and possession of a
controlled substance.2 Upon careful review, we affirm.
The trial court set forth the facts of this case as follows:
On January 17, 2012, the Cambria County Drug Task Force
executed a controlled buy after receiving information that
[Reagan] illegally distributed bath salts. An undercover police
officer, Detective Lia DeMarco, and an undercover police
informant testified regarding their participation in the controlled
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
2
35 P.S. § 780-113(a)(16).
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buy. The informant testified he called [Reagan] to arrange a
deal to buy bath salts for $150.00. Detective DeMarco drove the
informant to meet [Reagan] at his home and then to a pull-off to
purchase the bath salts. At the pull-off, the informant and
[Reagan] exchanged cash for two vials, which were submitted
into evidence without objection.
At trial, Detective Kevin Price, Drug Task Force Field Supervisor,
testified that a controlled buy includes photocopying the official
funds to be used; strip searching the informant before and after
the buy; activating a video device on the informant; and
conducting surveillance of the buy. Detective Price confirmed
that the Drug Task Force properly implemented these techniques
during the controlled buy from [Reagan].
Douglas Samber, a forensic scientist for the Pennsylvania State
Police Greensburg Regional Laboratory, testified as an expert in
laboratory analysis, laboratory procedures, and analysis of
controlled substances. Mr. Samber tested the contents of the
vials purchased from [Reagan] and concluded they contained
Pyrovalerone, a Schedule V controlled substance.
Trial Court Opinion, 5/18/15, at 1-2 (internal citations to record and footnote
omitted).
On January 21, 2014, the Commonwealth filed an information in which
it alleged that Reagan possessed and delivered “Bath Salts, a Schedule I
Controlled Substance.” Information, 1/21/14. Just prior to the
commencement of jury selection on October 2, 2014, the Commonwealth
moved for a continuance to enable it to amend its information to properly
classify the drug involved – pyrovalerone – as a Class V controlled
substance. The court granted the continuance and the information was
amended to reflect the proper classification of the drug, which the
Commonwealth continued to refer to as “bath salts.”
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A jury trial was held on December 11 and 12, 2014. At the conclusion
of the Commonwealth’s case, Reagan moved for judgment of acquittal,
arguing that the Commonwealth did not prove he possessed or delivered
“bath salts.” The motion was denied and Reagan was found guilty of the
above offenses. On March 12, 2015, the court sentenced Reagan to 6 to 12
months’ imprisonment, to run consecutively to another sentence he is
currently serving. Reagan filed a timely notice of appeal, followed by a
court-ordered concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b). On appeal, Reagan asserts that the Commonwealth
failed to present sufficient evidence to convict him of possession and delivery
of “bath salts,” as alleged in the information, where the actual substance
contained pyrovalerone.
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable
to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. The facts and circumstances established
by the Commonwealth need not be absolutely incompatible with
the defendant’s innocence. Any doubt about the defendant’s
guilt is to be resolved by the fact finder unless the evidence is so
weak and inconclusive that, as a matter of law, no probability of
fact can be drawn from the combined circumstances.
Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)
(citation omitted).
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The purpose of an information is to provide the accused with sufficient
notice to prepare a defense, and to ensure that he will not be tried twice for
the same act. Commonwealth v. Alston, 651 A.2d 1092, 1095 (Pa. 1994)
(citations omitted). An information is sufficient if it sets forth the elements
of the offense intended to be charged with sufficient detail that the
defendant is apprised of what he must be prepared to meet, and may plead
double jeopardy in a future prosecution based on the same set of events.
Id.
At an earlier stage of legal development, indictments were strictly and
technically construed, and the slightest imprecision in wording was often
considered incurable error. Commonwealth v. Pope, 317 A.2d 887, 890
(Pa. 1974). Today, however, such arguments are unpersuasive. Id.
Indictments must be read in a common-sense manner, and are not to be
construed in an overly technical sense. Id.
Here, Reagan concedes that he had sufficient notice of the crimes of
which he was accused. Instead, he asserts that “the Commonwealth did not
prove what it had set out to prove in its information.” Brief of Appellant, at
17. Reagan claims that the Commonwealth did not present sufficient
evidence to prove that “bath salts” is the street name for pyrovalerone, the
drug he sold to the informant.
In Commonwealth v. Kelly, 409 A.2d 21 (Pa. 1979), our Supreme
Court was presented with the defendant’s claim that judgment should have
been arrested because the complaint charged that he was in possession of
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heroin, but the proof at trial showed the controlled substance to have been
methamphetamines. The Court rejected the argument, concluding that
“[v]ariations between allegations and proof at trial are not fatal unless a
defendant could be misled at trial, prejudicially surprised in efforts to
prepare a defense, precluded from anticipating the prosecution’s proof, or
otherwise impaired with respect to a substantial right.” Id. at 23.
In his brief, Reagan acknowledges that “Kelly appears to remain good
law, as the Supreme Court has cited to both cases in addressing claims by
defendants that are based on variances in proof.” Brief of Appellant, at 20.
However, Reagan cites the age of the case, as well as the fact that this
Court has not applied it to a drug case in over thirty years, and essentially
asks us to disregard its holding.
In support of his claim, Reagan also cites to the decision of the U.S.
Court of Appeals for the Third Circuit in United States v. Tucker, 703 F.3d
205 (3d Cir. 2012). There, the Third Circuit addressed whether the
defendant’s previous Pennsylvania conviction for possession with intent to
deliver qualified as a “serious drug offense” under the Armed Career
Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). However, Tucker is not only not
binding on this Court, but also inapposite. Specifically, Tucker does not
concern itself with the propriety of the underlying state conviction, i.e.,
whether the Commonwealth’s evidence was sufficient to convict him of the
state charges. Indeed, the Third Circuit did not hold that Tucker was
improperly convicted under Pennsylvania law. Rather, it concluded only that
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Tucker’s Pennsylvania convictions did not satisfy the requirements necessary
for the imposition of an enhanced sentence under the ACCA. Accordingly,
Tucker provides no guidance here.
The amended information charged Reagan with possessing and
distributing a Schedule V controlled substance. Although that substance was
described by the street name “bath salts,” we find that the amended
information provided Reagan with adequate notice of the charges against
him to enable him to prepare his defense. Alston, supra; Kelly, supra.
Moreover, the evidence adduced at trial was sufficient to enable the jury to
infer that the street name for pyrovalerone in Cambria County is “bath
salts.” See Mauz, supra (in sufficiency claim, prosecution receives benefit
of all reasonable inferences to be drawn from evidence adduced at trial).
Specifically, Detective DeMarco testified that the informant spoke with
Reagan and made arrangements to buy a drug called “blizzard,” which she
testified is also known locally as “bath salts.” N.T. Trial, 12/11/14, at 29-30.
In addition, the informant, Donald Forshey, testified that after speaking with
Reagan on the telephone, he understood he would be purchasing bath salts
and that it would cost a total of $150. See id. at 76. Forshey further stated
that he met Reagan in Reagan’s garage and discussed obtaining bath salts.
Id. at 78. Based on this testimony, it is clear that Reagan understood that
Forshey wanted to purchase bath salts and provided him with the drug
known by that name. Accordingly, Reagan is entitled to no relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2016
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