Com. v. Bundy, J. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JANET BUNDY
Appellant No. 989 MDA 2016
Appeal from the Judgment of Sentence April 21, 2016
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0000997-2015
BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT*, J.
MEMORANDUM BY PANELLA, J. FILED FEBRUARY 28, 2017
Appellant, Janet Bundy, appeals from the judgment of sentence entered in the
Centre County Court of Common Pleas, following her conviction of
possession with intent to deliver and contraband. Appellant contends that
the trial court erred by denying her request to instruct the jury on a lesser -
included offense and by accepting the jury's seemingly contradictory verdict.
We affirm.
On June 13, 2015, Appellant traveled to State Correctional Institution
Rockview to visit an inmate. While Appellant was completing the Correctional
Institution's check-in procedure, Corrections Officer Robert Bonsell ("Officer
Bonsell") observed Appellant push a rolled -up napkin underneath a computer
* Retired Senior Judge assigned to Superior Court.
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monitor on the reception desk. After completing registration, Appellant was
subjected to a K-9 search. The K-9 officer alerted Officer Bonsell to the
presence of narcotics on Appellant's person. Following notification, Officer
Bonsell examined the paper napkin Appellant placed on his desk and
discovered twelve packets apparently filled with marijuana. Once
Pennsylvania State Police Corporal Leigh Barrows ("Corporal Barrows")
arrived to begin an investigation, she searched Appellant and found eight
pills on her person. Subsequent drug testing by the Pennsylvania State
Police laboratory confirmed the packets contained marijuana, weighing a
total of 5.9 grams, and revealed that four of the pills found on Appellant
were Hydrocodone (an opioid pain medication) while the other four pills were
Carisoprodol (a muscle relaxer that works by blocking pain sensations).
Appellant admitted to possessing the Hydrocodone and Carisoprodol,
alleging that the pills were prescribed for her personal use. However,
Appellant denied ever possessing the marijuana.
By criminal complaint, Appellant was charged with three counts of
Possession with Intent to Distribute,' one count of Contraband,2 and one
' 35 P.S. 780-113(a)(30). Appellant was charged for each controlled
§
substance recovered, thus one count of possession with intent to distribute
was attributable to the marijuana, one count attributable to the
Hydrocodone, and one count attributable to the Carisoprodol.
2 18 Pa.C.S.A. § 5123(a).
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count of Possession of a Small Amount of Marijuana to Distribute, Not Sell.3
The matter proceeded to a jury trial. Prior to the commencement of trial,
Appellant's counsel requested that the trial court charge the jury on the
lesser -included charge of Possession of a Small Amount of Marijuana. The
court denied that request.
After the trial, the jury found Appellant guilty of Possession with Intent
to Deliver, in respect to the marijuana, and Contraband.4 Following the
finding of guilt for Contraband on the verdict sheet, the jury was asked to
provide a specific finding with regard to the Contraband charge. This finding
was intended to identify which controlled substance the jury believed
supported the Contraband conviction. Pursuant to the instructions preceding
the specific finding, the jury found that none of the three controlled
substances at issue supported the Contraband charge. Once the jury was
excused, the trial court found Appellant guilty of Possession of a Small
Amount of Marijuana to Distribute not Sell.
On April 21, 2016, Appellant was sentenced to an aggregate sentence
of two to four years' imprisonment. Appellant filed post -sentence motions.
3 35 P.S. § 780-113(a)(31)(ii).
4 The jury acquitted Appellant of Possession with Intent to Distribute, in
respect to the Hydrocodone, and Possession with Intent to Distribute, in
respect to the Carisoprodol.
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And upon denial of Appellant's motions by the trial court, filed a timely
appeal.
Appellant's first issue presents a challenge to the sufficiency of the
evidence for her Contraband conviction. See Appellant's Brief, at 10-14.
Specifically, Appellant points to the specific finding the jury made pursuant
to Appellant's requested verdict sheet that suggested that none of the three
controlled substances in question supported the Contraband verdict. See id.
Based upon this interrogatory, Appellant submits that the jury found that the
evidence produced by the Commonwealth was insufficient to support a
critical element of the crime charged-that a controlled substance was
involved. See id., at 12. Therefore, Appellant submits that her conviction for
Contraband is at odds with the jury's specific finding and the court should
have set aside the verdict. See id. We disagree.
When examining the sufficiency of the evidence
[t]he standard we apply . .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 factfinder to find every
element of the crime beyond a reasonable doubt. In applying
[this] 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 factfinder 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 the evidence actually received must be considered. Finally,
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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. Houck, 102 A.3d 443, 448 (Pa. Super. 2014) (citations
omitted).
Further, we have previously stated that
[c]onsistency in verdicts in criminal case is not necessary. This
Court has stated, [w]hen an acquittal on one count in an
indictment is inconsistent with a conviction on a second count,
the court looks upon [the] acquittal as no more than the jury's
assumption of a power they had no right to exercise, but to
which they were disposed through lenity. Thus, this Court will
not disturb guilty verdicts on the basis of apparent
inconsistencies as long as there is evidence to support the
verdict.
Commonwealth v. Swann, 635 A.2d 1103, 1104 (Pa. Super. 1994)
(internal citations and quotations omitted). However, inconsistency in
verdicts is not permissible in cases where a defendant is convicted of a crime
that has, as a specific statutory element, another crime that the jury
simultaneously acquits the defendant of. See Commonwealth v.
Magliocco, 883 A.2d 479 (Pa. 2005).
Thus, the core of this issue on appeal theoretically hinges on whether
Appellant's assertion is correct: that the jury's response to the interrogatory
actually contradicts an element of the Contraband conviction. However, we
do not reach this analysis as our review of the record reveals that the
interrogatory in question-drafted by Appellant's counsel-was superfluous,
confusing, and a blatant mischaracterization the law.
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The record reflects that, following a charging conference, the trial
court, Commonwealth, and Appellant's counsel agreed that the law the trial
court planned to provide to the jury in relation to the Contraband charge
was accurate. See N.T., 3/18/16, at 210.5 However, due to the fact that the
Commonwealth presented evidence of three controlled substances during
the trial, Appellant's counsel requested an interrogatory to discern the
substance the jury found supported the Contraband charge. The trial court
and Commonwealth agreed to the use of this interrogatory, and the trial
court ultimately used the verdict sheet with the interrogatory prepared by
Appellant's counsel, which read in relevant part:
If your verdict is "guilty"
as to the count of Contraband, please
answer this question: did Ms. Bundy sell, give, transmit or
furnish to any convict in the State Correctional Institution at
Rockview, or give away in or bring into or put in any place where
it may be secured by a convict:
Verdict Sheet, 3/18/16, at 2. Following this interrogatory, each of the
controlled substances at issue, marijuana, Hydrocodone, and Carisoprodol,
were listed followed by "Yes" and "No."
During jury instructions, the trial court provided the jury with the
previously agreed upon law regarding the Contraband charge:
5 We are cognizant of the fact that Appellant's counsel was denied his
request for the "mens rea" charge to be read in conjunction with the
Contraband charge. See N.T., at 207. However, Appellant's counsel agreed
that Contraband instruction itself was accurate. See id., at 210.
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Defendant has been charged with providing contraband. To find
the defendant guilty of this offense, you must find that the
following elements have been proven beyond a reasonable
doubt. First, that the defendant brought into prison a controlled
substance so classified under Pennsylvania law. I again instruct
you that marijuana, Hydrocodone, and Carisoprodol are
controlled substances. And second, that defendant did so without
written permit signed by the physician of the prison.
N.T., 3/18/16, at 256-57.
Following deliberations, the jury returned to the courtroom and
informed the trial court that they found Appellant guilty of Possession with
Intent to Distribute, in relation to the marijuana, and guilty of the count of
Contraband. However, in relation to the specific finding for Contraband, the
jury foreperson indicated that the jury checked "No" in relation to all three of
the specific substances underlying the Contraband charge "because it said
did she sell, give, or transmit to any convict." Id., at 270.
First, we note that we are confused as to the exact reason why the
trial court and Commonwealth agreed to include Appellant's interrogatory on
the verdict sheet. There is no requirement for the charge of Contraband that
the jury make an additional finding for grading purposes or otherwise. See
18 Pa.C.S.A. § 5123(a). Thus, the addition of this interrogatory was
superfluous; it served only to cloud the issue. Additionally, our review of the
interrogatory as compared to the statutory language reveals that Appellant's
interrogatory misstates the relevant law.
The Crimes Code defines the offense of Contraband as follows:
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(a) Controlled substance contraband to confined
persons prohibited.-- A person commits a felony of the
second degree if he sells, gives, transmits or furnishes to
any convict in a prison, or inmate in a mental hospital, or
gives away in or bring into any prison, mental hospital, or
any building appurtenant thereto, or on the land granted
to or owned or leased by the Commonwealth or county for
the use and benefit of the prisoners or inmates, or puts in
any place where it may be secured by a convict of a
prison, inmate of a mental hospital, or employee thereof,
any controlled substance included in Schedules I through V
of the . . .Controlled Substance, Drug, Device and
Cosmetic Act without a written permit by the physician
. . .
of such institution, specifying the quantity and quality of
the substance which may be furnished to any convict,
inmate, or employee in the prison or mental hospital, the
name of the prisoner, inmate or employee for whom, and
the time when the same may be furnished, which permit
shall be delivered to and kept by the warden or
superintendent of the prison or mental hospital.
18 Pa.C.S.A. § 5123(a).
The interrogatory provided by Appellant neglects to include the critical
language of "any prison, mental hospital, or building appurtenant thereto"
following the phrase "brings into." Instead, Appellant's counsel attempts to
muddy the waters by following the phrase "brings into" with "or put in any
place where it may be secured by a convict." This language selection
appears to make it necessary for a defendant to bring a controlled substance
into a place where it may be secured by a convict. As the law has previously
been found to only require a defendant to bring a controlled substance into a
prison, Appellant's counsel's paraphrasing clearly misstates the law, and we
admonish counsel for doing so. See Commonwealth v. Williams, 579 A.2d
869, 871 (finding that 18 P.S. 18 Pa.C.S.A. § 5123(a) only requires a
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defendant to bring a controlled substance into one of the enumerated
facilities to constitute commission of a crime). The trial court should never
have accepted Appellant's interrogatory.
We reject Appellant's attempt to profit from her attempt to mislead the
jury. Thus, we find that the jury's answers to the interrogatory on the
verdict sheet amounted to nothing more than a legal nullity. The
Commonwealth provided the jury with ample evidence that Appellant
brought contraband into the prison. Accordingly, we affirm Appellant's
conviction for Contraband.
Next, Appellant alleges that the trial court erred in denying her request
for a jury charge on the lesser -included offense of possession of a small
amount of marijuana for personal use.6 See Appellant's Brief, at 15.
6
We note that Appellant's counsel appears to misapprehend the statutory
section that his client was charged with, and ultimately convicted of,
violating. Both the criminal complaint and the trial court's verdict sheet in
this matter clearly indicate that Count 5 of the criminal complaint charged
Appellant with "the possession of a small amount of mari[j]uana with the
intent to distribute it but not sell it." 35 P.S. § 780-113(a)(31)(ii). However,
the section of the statute that Appellant's counsel appears to request a jury
instruction for, and argues in her brief that the trial court erred by failing to
give, penalizes "the possession of a small amount of mari[j]uana only for
personal use." 35 P.S. § 780-113(a)(31)(i). As Appellant has preserved her
argument that possession of a small amount of marijuana for personal use is
a lesser -included offense of possession with intent to distribute, 35 P.S. §
780-113(a)(30), that should have been presented to the jury, we will
address this claim. However, to the extent that Appellant desired to
challenge the trial court's failure to charge the jury on what she was actually
charged with in Count 5, possession of a small amount of marijuana to
distribute, not sell, we find that Appellant has waived this argument for
purposes of our review by failing to develop this claim on appeal. See
(Footnote Continued Next Page)
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Appellant argues that counsel timely requested this instruction; the offense
is a lesser -included offense of the possession with intent to distribute charge
that was given to the jury; and that the evidence produced by the
Commonwealth would support such a verdict. See id. Therefore, Appellant
contends that the trial court's refusal to charge the jury on possession of a
small amount of marijuana for personal use constituted reversible error. See
id.
Our standard of review when considering a challenged jury instruction
is as follows:
In examining the propriety of the instructions a trial court
presents to a jury, our scope of review is to determine whether
the trial court committed a clear abuse of discretion or an error
of law which controlled the outcome of the case. A jury charge
will be deemed erroneous only if the charge as a whole is
inadequate, not clear or has a tendency to mislead or confuse,
rather than clarify, a material issue. A charge is considered
adequate unless the jury was palpably misled by what the trial
judge said or there is an omission which is tantamount to
fundamental error. Consequently, the trial court has wide
discretion in fashioning jury instructions. The trial court is not
required to give every charge that is requested by the parties
and its refusal to give a requested charge does not require
reversal unless the appellant was prejudiced by that refusal.
Commonwealth v. Baker, 963 A.2d 495, 507 (Pa. Super 2008) (citation
omitted).
(Footnote Continued)
Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super. 2006) (holding
appellant waived issue on appeal where he failed to develop claim with
relevant citations to case law and record).
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The trial court is required to instruct the jury as to the applicable law
of the case. See Commonwealth v. Daniels, 963 A.2d 409, 430 (Pa.
2009). If a defendant requests a charge for a lesser -included offense, the
trial court must charge on that offense "if there is some disputed evidence
concerning an element of the greater charge or if the undisputed evidence is
capable of more than one rational inference." Commonwealth v. Hawkins,
614 A.2d 1198, 1201 (Pa. Super. 1992) (en banc) (citation omitted). The
court does not err, however, in refusing "to instruct the jury on the lesser -
included offense unless the evidence could support a conviction on the lesser
offense. There is no duty on a trial judge to charge upon law which has no
applicability to presented facts." Commonwealth v. Wilds, 362 A.2d 273,
278 (Pa. Super. 1976) (internal quotation marks omitted).
The evidence presented at trial established that Officer Bonsell
observed Appellant hide a napkin under his computer monitor while
completing the check -in procedure at the prison. Once alerted by the K-9
officer to the presence of narcotics on Appellant's person, Officer Bonsell
recovered the napkin and discovered it contained marijuana. The marijuana
was divided almost equally among twelve separate latex balloons. Corporal
Barrows testified that the fact that the marijuana was divided into equal
portions in latex balloons heavily suggested that Appellant's intent was to
distribute the marijuana.
Additionally, Appellant's requested jury instruction for the lesser -
included offense of possession of a small amount of marijuana for personal
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use ran completely counter to her defense strategy. While Appellant
admitted to possession of the Hydrocodone and Carisprodol tablets, she
unequivocally denied ever possessing the marijuana.
We recognize that the crime of possession of a small amount of
marijuana, is a lesser -included offense of possession with intent to deliver
marijuana. See Commonwealth v. DeLong, 879 A.2d 234, 237 n.2 (Pa.
Super. 2005). However, based upon the evidence adduced at trial, we find
that the trial court correctly refused to provide the charge to the jury for the
offense of possession of a small amount of marijuana. Due to her defense
strategy of completely denying ownership of the marijuana, Appellant did
not present any evidence to demonstrate that she possessed the marijuana
for personal use.
The only evidence presented in relation to the marijuana, i.e., the
individual packaging, the amount of packages, and the type of packaging,
demonstrated that the marijuana was possessed with the intent to deliver.
See, e.g., Commonwealth v. Carpenter, 955 A.2d 411, 415 (Pa. Super.
2008) (finding that "[e]ven where the quantity of the drug could possibly be
consistent with personal use, the presence of the drug paraphernalia in
[appellant's] home, such as scales and packaging materials, unequivocally
establish more than just personal use."); Commonwealth v. Ratsamy, 934
A.2d 1233, 1235-38 (Pa. 2007) (finding that appellant possessed crack
cocaine with intent to deliver where he possessed a large quantity of unused
plastic bags, and an expert testified that the circumstances surrounding the
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appellant's possession of the crack cocaine, including the amount and the
form of the drug, established that he intended to distribute the crack
cocaine). Thus, the trial court correctly found that the evidence is not
capable of more than one rational inference and properly refused to instruct
the jury on the possession of a small amount of marijuana offense. See
Hawkins, 614 A.2d at 1201. Accordingly, Appellant's second claim is
without merit.
Judgment of Sentence Affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 2/28/2017
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