Com. v. Wright, P. ( 2021 )

J-S28036-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PHILLIP WRIGHT :
:
Appellant : No. 180 EDA 2020
Appeal from the Judgment of Sentence Entered December 26, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002632-2019
BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*
CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:
FILED DECEMBER 16, 2021
Although I concur in the learned Majority’s analysis concerning the
suppression motion and discovery sanctions, I cannot join in their conclusion
that Wright’s separate convictions for possession with intent to distribute
(“PWID”) should merge. Hence, I respectfully dissent. Specifically, I would
hold that the two stashes of cocaine maintained by Appellant support
independent PWID convictions.
As the Majority has aptly explained, cocaine was discovered in two
separate locations on Wright’s front porch. Specifically, a leather pouch
containing individually packaged bags of cocaine was recovered from the
mailbox “located outside and to the immediate right of Wright’s front door.”
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S28036-21
Majority Memorandum at 2. Separately, two larger bags of cocaine were
discovered in the “trashcan on the front porch directly next to Wright’s
apartment.” Id. While police were aware that Wright had recently “renewed
his supply of cocaine with a large quantity,” it is beyond cavil that Wright
chose to divide this illicit stockpile for separate storage and packaging. The
Majority has concluded that since both the trashcan and the mailbox were on
Wright’s front porch, these caches should be treated as one and the same.
Id. at 12 (“Both counts of PWID and both counts of possession of drug
paraphernalia arose from [Wright’s] single act of preparing the large quantity
of cocaine he had just received from his supplier for distribution.”). I disagree.
As a general matter, “in all criminal cases, the same facts may support
multiple convictions and separate sentences for each conviction except in
cases where the offenses are greater and lesser included offenses.”
Commonwealth v. Williams, 958 A.2d 522, 527 (Pa.Super. 2008); see also
42 Pa.C.S. § 9765 (“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.”).
Although the elements of Wright’s convictions for PWID are indisputably
identical, “the facts underlying each crime are totally separate and constitute
two different criminal acts.” Williams, supra at 527. Specifically, Wright’s
“convictions are based on his possession of cocaine in two different locations
and of two different amounts.” Id.at 528.
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In Williams, the defendant was found to have a stash of cocaine “in his
sock” and a second one hidden in his car. On these facts, Williams was found
guilty of two counts of possession of a controlled substance. On appeal, this
Court concluded that Williams’ sentences did not merge because his
convictions were predicated upon “two separate counts of possession for two
separate incidents.” Id. This rationale is fully applicable in the instant case,
wherein Wright was indisputably found to maintain discrete collections of
cocaine around his property. Pursuant to Williams, I would conclude that
Wright’s convictions for PWID do not merge because these differentiated
reserves constituted separate facts pursuant to § 9765.
I also emphasize that Williams contains no discussion of the requisite
physical distance that must exist between two stashes of narcotics to avoid
waiver where the Commonwealth charges multiple possessory offenses.
Rather, all that Williams requires is that Appellant possessed “two different
amounts” of cocaine in “two different locations.” Williams, supra at 528.
Instantly, the stockpiles maintained by Appellant were secreted in separate
containers, i.e., the mailbox and the trashcan. Furthermore, these respective
reserves were packaged differently and were not comingled. The mere fact
that both containers were housed on Appellant’s front porch does not, in my
opinion, undermine the application of Williams to these circumstances. To
my mind, the factual distinction drawn by the learned Majority to avoid
application of Williams is arbitrary and has the potential to create confusion.
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J-S28036-21
This variance risks subsuming the holding in Williams, entirely, if we may
simply redefine what constitutes “different locations” on a case-by-case basis.
Therefore, I respectfully dissent as to the merger holding and the need
to remand the case for resentencing. In all other aspects, I concur in the
Majority’s memorandum.
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