Com. v. McFarland, J. ( 2022 )

J-S20020-22
2022 PA Super 116COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFFREY DEAN MCFARLAND :
:
Appellant : No. 204 WDA 2022
Appeal from the Judgment of Sentence Entered September 21, 2020
In the Court of Common Pleas of Blair County
Criminal Division at CP-07-CR-0000943-2018
BEFORE: NICHOLS, J., MURRAY, J., and KING, J.
OPINION BY MURRAY, J.: FILED: June 29, 2022
Jeffrey Dean McFarland (Appellant) appeals from the judgment of
sentence imposed after a jury found him guilty of unlawfully manufacturing a
controlled substance (MCS) and criminal conspiracy.1 We affirm.
The trial court detailed the relevant facts as follows:
Officer Philip Worthy [(Officer Worthy)] is employed by the
Altoona Police Department and is a member of the West Drug Task
Force. During the course of his employment, Officer Worthy
[learned] that methamphetamine can be manufactured using a
one-pot method, using a two liter bottle. During the course of his
employment, Officer Worthy [learned] that pseudoephedrine is a
main ingredient of manufacturing methamphetamine.
Pseudoephedrine is typically distributed in blister packets
[purchased at pharmacies or retail stores; this over-the-counter
medication is commonly used to treat seasonal allergy and cold
symptoms]. Other items [that] can be used for manufacturing
methamphetamine are: [lithium] batteries, camp fuel, muriatic
acid, funnels, and coffee filters.
____________________________________________
1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 903(a)(1).
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On March 5, 2018, Officer Worthy responded to 2827 Pine
Avenue, Altoona, PA, with deputies from the Blair County Sheriff’s
Office for attempted warrant service on Shawn Amick and Mary
Blackie. Upon arrival at the residence, [which was owned by Mary
Blackie,] Officer Worthy observed Shawn Amick through a window
in the kitchen area of the home. Shawn Amick attempted to leave
the residence through the back door once police knocked. This
resulted in a brief foot pursuit through the home. Upon entering
the living room, Officer Worthy observed Mary Blackie[, Appellant,
and his brother/co-defendant,] Randy McFarland [(McFarland)
(We collectively refer to Appellant and McFarland as
“Defendants”).] ...
Once Mary Blackie and Shawn Amick were secured, Officer
Worthy noted, in plain sight, a glass smoking pipe consistent with
smoking methamphetamine, empty blister packets, [lithium]
batteries, and a Mountain Dew bottle with a white crystal
substance inside it. The Defendants were seated on chairs [in the
living room] near Mary Blackie and the coffee table. The pipe,
empty blister packs, and batteries were on the coffee table directly
in front of the Defendants …. The Mountain Dew bottle with the
white crystal contents was on the floor at the feet and in between
Mary Blackie and one of the Defendants. Officer Worthy observed
this to be within arm’s reach of both Defendants and Mary Blackie.
Other officers conducted a protective sweep of the residence for
any additional parties and upon doing so, made additional
observations of items in plain sight, in various areas of the house,
which were suspected of [being used to] manufactur[e]
methamphetamine consistent with the one-pot method.
As a result of the observations, Pennsylvania State Police
Clandestine Lab was notified and responded to the house. The
Clandestine Team concluded that the residence contained a
methamphetamine production lab using the one[-]pot method.
To purchase pseudoephedrine, an ingredient of the one-pot
manufacturing method, a buyer must show a government issued
identification and provide a signature to the pharmacy. The
information provided by the buyer, such as name, address, and
date of birth, as well as the date, time, brand, and amount of
purchase is logged by the pharmacy into a database, known as
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the National Precursor Log Exchange (NPLEX).[2] The system
limits the amount of pseudoephedrine that can be purchased [by
an individual] during a specific period of time.
Officer Worthy identified the NPLEX logs for Mary Blackie, as
well as for [Appellant] and [] McFarland[. Officer Worthy
conducted the NPLEX database searches approximately one week
after March 5, 2018.] The logs contained purchases made from
2014 to March 5, 2018. The NPLEX log (Commonwealth Exhibit
1) reveals:
(a) On November 26, 2017, [Appellant] attempted a
purchase of Wal-Phed in a 24, a 48, and a 96 count box at
4:34 pm and 4:35 pm[. Wal-Phed contains
pseudoephedrine]. He was subsequently blocked from
purchasing the items because he exceeded the 9 gram limit
within 30 days. This purchase was attempted at the East
Plank Road Walgreens.
(b) On November 26, 2017, Mary Blackie successfully
purchased a 96 count of Wal-Phed at the same Walgreens
store at 4:42 pm.
(c) On January 4, 2018, [Appellant] was blocked from
purchasing a 10 count box of pseudoephedrine at 10:47 am
at Dick’s Pharmacy in Altoona, Pennsylvania.
(d) On this same date, Mary Blackie bought a 10 count box
of pseudoephedrine from the same pharmacy at 11:09 am.
(e) On January 28, 2018, Mary Blackie bought a 10 count
box of pseudoephedrine at 10:13 am at the Walgreens on
East Plank Road in Altoona[,] while [Appellant] was blocked
from making this same purchase at 10:21 am.
(f) On February 5, 2018, Mary Blackie purchased a 20 count
box of pseudoephedrine at 8:35 pm[. Appellant] made the
same purchase at the same store at 8:36 pm.
____________________________________________
2 The trial court explained NPLEX is a “web-based database [that] enables
retailers to enter sales data pursuant to the federal Combat Methamphetamine
Epidemic Act of 2006. 21 C.F.R. Part 1314.” Trial Court Opinion, 9/18/19, at
12.
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(g) On February 19, 2018, [Appellant] purchased a 20 count
box of pseudoephedrine at 4:22 pm at Walgreens located
on East Plank Road in Altoona, Pennsylvania.
(h) At 4:28 pm on the same date, Mary Blackie purchased
a 10 count box of pseudoephedrine at 4:29 pm at the same
store.
(i) A comparison of the NPLEX logs for [Appellant] and []
McFarland reveal that on March 2, 2018, both individuals
purchased pseudoephedrine at the Walgreens on East Plank
Road in Altoona, Pennsylvania. [Appellant] purchased a 10
count box at 7:42 pm while [McFarland] purchased a 14
count box at 7:49 pm.
The NPLEX logs list numerous purchases and attempted
purchases by [Appellant and McFarland; the logs also contained
Defendants’ respective dates of birth and driver’s license
numbers]. Looking at the time frame of January of 2017 through
March 2, 2018, Commonwealth Exhibit 1 shows 28 successful
purchases and 17 blocked purchases by [Appellant]. All but one
of these purchases and attempts at purchase took place at various
pharmacies in Altoona. During the same time frame, [McFarland]
made 17 purchases and had 12 purchases that were blocked.
A consolidated preliminary hearing for both Defendants was
held on May 23, 2018, before the Honorable Magisterial District
Judge Benjamin Jones; Officer Worthy testified at said preliminary
hearing [as the only witness]. During cross examination, the
officer confirmed that the home located at 2827 Pine Avenue,
Altoona [(the Pine Avenue house)] is owned by Mary Blackie. The
Officer testified that [Appellant] lives at 608 Six Mile Run Road in
Defiance, PA. There was no evidence found by the officer to
indicate [Appellant] was living at the Pine Avenue house. Officer
Worthy admitted that [Appellant and McFarland] did not look
impaired on the evening of March 5, 201[8], when the officer
encountered them at the Pine Avenue house. Officer Worthy
stated [Appellant and McFarland] had no methamphetamine
paraphernalia [or other contraband] on their person. The Officer
did testify that [McFarland] had approximately three-thousand
five-hundred dollars ($3,500.00) in US currency on his person
when an inventory of [his] possessions was taken at the Altoona
Police Department.
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Trial Court Opinion, 9/18/19, at 2-7 (footnote added; citations, paragraph
numbering, and some spacing omitted).
At the close of the preliminary hearing, Judge Jones held for court most
of the charges against Appellant.3 On November 26, 2018, Appellant filed an
omnibus pretrial motion (OPT Motion) seeking, inter alia, suppression of his
NPLEX log. See OPT Motion, 11/26/18, at ¶¶ 20-21, 26-27 (asserting Officer
Worthy did not secure a search warrant or court order before obtaining the
NPLEX log, which contained Appellant’s private, protected health information).
Appellant’s OPT Motion also sought dismissal of all charges. He claimed the
Commonwealth had failed to establish a prima facie case where the evidence
established he was merely present at the Pine Avenue house and unaware of
the drug manufacturing operation.
The trial court held a suppression hearing on May 24, 2019. After the
hearing, the court ordered the parties to file memoranda of law on the
suppression issue. Order, 5/24/19, at 1-2. The court specifically directed the
____________________________________________
3 In addition to MCS and conspiracy, the Commonwealth charged Appellant
with recklessly endangering another person (REAP), 18 Pa.C.S.A. § 2705;
risking catastrophe, id. § 3302(b); possessing precursor substances with
intent to unlawfully manufacture a controlled substance, 35 P.S. § 780-
113.1(a)(3); possessing esters, salts, or isomers with intent to manufacture
a controlled substance, id. § 780-113.1(a)(4); possession of a controlled
substance (PWID), id. § 780-113(a)(16); possession of drug paraphernalia,
id. § 780-113(a)(32); and operating a methamphetamine laboratory near a
school, id. § 780-113.4(a)(3). At the preliminary hearing, Judge Jones
dismissed the charges of REAP, risking catastrophe, and PWID, finding the
Commonwealth failed to establish a prima facie case.
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parties to address a prior opinion authored by a separate Blair County Court
of Common Pleas Judge in the analogous case of Commonwealth v.
Babcock, CR-403-2012 (Babcock), where the court addressed whether
police required a warrant to conduct an NPLEX search.
The Commonwealth claimed in its memorandum of law that Babcock
was directly on point and Babcock’s holding – that no warrant is necessary
to conduct an NPLEX search – applied to Appellant’s case. See Memorandum
of Law, 6/21/19, at 16 (Babcock “had a very similar factual pattern to the
present case as law enforcement located a methamphetamine lab in Mr.
Babcock’s residence”; and “President Judge Elizabeth A. Doyle opined that law
enforcement did not need a warrant to examine the NPLEX logs, as the
information contained in such documents was not personal information that
created a heightened expectation of privacy.”). In his memorandum of law,
Appellant argued Babcock is contrary to precedent. Memorandum of Law,
7/24/19, at 7 (unnumbered).
By opinion and order entered September 18, 2019, the trial court denied
Appellant’s OPT Motion. The case proceeded to trial in February 2020. The
jury found Appellant guilty of MCS and conspiracy, and not guilty of the
remaining charges. On June 29, 2020, the trial court imposed an aggregate
sentence of 3 - 24 months of incarceration, followed by two years of probation.
On July 8, 2020, the Commonwealth filed a post-sentence motion for
reconsideration. It claimed the trial court erred in failing to sentence Appellant
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to the statutory mandatory minimum sentence – two years of incarceration –
pursuant to 35 P.S. § 780-113(k) (mandatory minimum sentence for persons
convicted of MCS or related manufacturing offenses).
On July 13, 2020, Appellant filed a post-sentence motion challenging
the verdicts as being against the weight of the evidence. Appellant further
claimed the jury’s verdicts were not supported by sufficient evidence, and the
trial court erred in failing to suppress the NPLEX logs.
The trial court held a hearing on the parties’ post-sentence motions on
September 21, 2020. The court granted the Commonwealth’s motion and re-
sentenced Appellant, pursuant to 35 P.S. § 780-113(k), to an aggregate two
to four years in prison, followed by two years of probation. Order, 9/21/20.
The court denied Appellant’s post-sentence motion.
This timely appeal followed. Appellant and the trial court complied with
Pa.R.A.P. 1925. Appellant presents three issues for our consideration:
I. Whether the court erred in not granting the motion to
suppress and allowing the admission of the NPLEX precursor
log tracking system search and search results[?]
II. Whether the interests of justice entitle the Appellant to have
the jury’s verdict vacated as it was against the sufficiency of
the evidence[?]
III. Whether the interests of justice entitle the Appellant to have
the jury’s verdict vacated as it was against the weight of the
evidence[?]
Appellant’s Brief at viii (reordered; some capitalization altered).
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Appellant first argues the trial court abused its discretion in denying his
OPT Motion where police failed to obtain a search warrant or court order to
conduct the NPLEX search. See id. at 5-11. Appellant contends: “Because
there is a reasonable expectation of privacy in the information provided to the
NPLEX, law enforcement is required to obtain a search warrant to access these
records[.]” Id. at 10. Appellant also claims the federal Health Insurance
Portability and Accountability Act, 45 C.F.R. § 160.101 et seq. (HIPAA),
protects against disclosure of “health information,” see id. § 160.103, and
the information contained in Appellant’s NPLEX log constitutes “health
information.” See Appellant’s Brief at 8-10.
The Commonwealth rejects Appellant’s claim, arguing that the police
lawfully obtained Appellant’s NPLEX log without a warrant:
The information contained in these logs is basic identification
which is not such personal information that warrants a heightened
expectation of privacy. Further, this information is only kept in
the log for over the counter medicines. It is not utilized when
someone obtains medicine via a prescription from a licensed
physician, which may constitute a medical record that requires a
warrant. The Commonwealth avers that the only basis for
someone to be concerned about privacy with respect to his or her
purchases of pseudoephedrine is if he or she was obtaining the
item for an illegal purpose. This concern for privacy would not be
as strong for someone who is obtaining pseudoephedrine to use
[it] for its intended purpose of treating the common cold or
seasonal allergies. Notably, the logs kept in the NPLEX database
are not medical records that require law enforcement to obtain a
warrant.
Commonwealth Brief at 37. The Commonwealth also correctly observes our
appellate courts have “yet to determine that law enforcement needs a warrant
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in order to conduct a search of the information contained within the [NPLEX]
database.” Id. at 35-36.
Our standard of review applicable in challenges to the denial of an OPT
motion
is limited to determining whether the factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. We are bound by the suppression
court’s factual findings so long as they are supported by the
record; our standard of review on questions of law is de
novo. Where, as here, the defendant is appealing the ruling of
the suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted. Our scope of review of suppression
rulings includes only the suppression hearing record and excludes
evidence elicited at trial.
Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations
omitted). When a defendant files a motion to suppress evidence, “it is the
Commonwealth’s burden to present evidence that the defendant’s
constitutional rights were not infringed.” Commonwealth v. Enimpah, 106
A.3d 695, 701 (Pa. 2014).
“The Fourth Amendment to the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution guarantee the right of the people
to be secure in their persons, houses, papers, and possessions from
unreasonable searches and seizures.” Commonwealth v. Anderson, 2022
PA Super 95, at * 19 (Pa. Super. 2022) (en banc) (citation omitted). “Under
the Fourth Amendment, searches and seizures without a warrant are
presumptively unreasonable, subject only to specifically established
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exceptions.” Commonwealth v. Wilmer, 194 A.3d 564, 568 (Pa. 2018)
(citation and quotations omitted); see also Commonwealth v. Heidelberg,
267 A.3d 492, 502 (Pa. Super. 2021) (en banc) (“As a general rule, a warrant
stating probable cause is required before a police officer may search for or
seize evidence.” (citation and quotations omitted)). The Pennsylvania
Constitution’s protections are broader than those of the United States
Constitution in this regard. Commonwealth v. Alexander, 243 A.3d 177,
202 (Pa. 2020). Our Supreme Court has explained:
A search occurs when police intrude upon a constitutionally
protected area without the individual’s explicit or implicit
permission. To constitute such an intrusion, the action need not
uncover something “of great personal value”; even a small,
seemingly insignificant act of information gathering by police in a
constitutionally protected area is a search.
Commonwealth v. Fulton, 179 A.3d 475, 487-88 (Pa. 2018) (citations
omitted).
Where, as here, our appellate courts have not yet determined the scope
of protection afforded under the Fourth Amendment and Article I, Section 8,
we employ a two-part test: “That test requires a person to (1) have
established a subjective expectation of privacy[;] and (2) have demonstrated
that the expectation is one that society is prepared to recognize as reasonable
and legitimate.” Commonwealth v. Duncan, 817 A.2d 455, 463 (Pa. 2003)
(citation omitted)). “The expectation of privacy is an inquiry into the validity
of the search or seizure itself; if the defendant has no protected privacy
interest, neither the Fourth Amendment nor Article I, § 8 is implicated.”
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Enimpah, 106 A.3d at 699. “In determining whether a person’s expectation
of privacy is legitimate or reasonable, we must consider the totality of the
circumstances and the determination ultimately rests upon a balancing of the
societal interests involved.” Commonwealth v. Kane, 210 A.3d 324, 330
(Pa. Super. 2019) (citation and quotations omitted).
In this case, the trial court determined Appellant’s NPLEX log was
properly admitted without a warrant, reasoning:
NPLEX is the Real Time Stop Sale system used in Pennsylvania.
The Real Time Stop Sale system is defined at 35 [P.S. §] 780-102
as follows:
“Real-time stop-sale system” means a system intended to
be used by law enforcement agencies and pharmacies or
other business establishments that:
(1) is installed, operated and maintained free of any one-
time or recurring charge to the business establishment
or to the Commonwealth;
(2) is able to communicate in real time with similar
systems operated in other states and similar systems
containing information submitted by more than one
state;
(3) complies with the security policy of the Criminal
Justice Information Services Division of the Federal
Bureau of Investigation or its successor;
(4) complies with information exchange standards
adopted by the National Information Exchange Model or
its successor;
(5) uses a mechanism to prevent the completion of a sale
of a product containing ephedrine or pseudoephedrine
that would violate Federal or State law regarding the
purchase of a product containing those substances; and
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(6) is equipped with an override of the mechanism that:
(i) may be activated by an employee of a business
establishment; and
(ii) creates a record of each activation of the override.
[Id.] (emphasis added).
The Controlled Substance, Drug, Device and Cosmetic Act
(35 P.S. [§] 780-101 et seq.) establishes at Section 780-113.6, a
system for tracking retail sales of ephedrine or products
containing pseudoephedrine. Act 53 of 2013 (House Bill 602) was
approved by the Governor on July 9, 2013, and became effective
April 5, 2014. Pennsylvania requires that retailers limit the sale
of pseudoephedrine to certain amounts and to record for each
purchase: (1.) the name[ and] address of the purchaser; (2.) the
name and quantity of the product purchased; (3.) the date and
time of the purchase; and (4.) the purchaser’s identification, type,
and number, plus the purchaser’s signature in the logbook. 35
P.S. § 780-113.6(c). “The vendor of the real-time stop-sale
system shall forward State transaction records in the real-time
stop-sale system to the department weekly and provide real-time
access to the real-time stop-sale system information through the
system’s online portal to law enforcement in this Commonwealth
as authorized by the department.” 35. P.S. § 780-113.6(f). The
term “department” is defined at 35 P.S. [§] 780-102 to be the
Department of Health for the Commonwealth. The retailer is also
required to submit the above referenced information to a real-
time stop-sale system in order to assure that the purchaser is not
making a purchase above the prescribed limits. 35 P.S. § 780-
113.6(d). The collected data is viewable by law
enforcement in keeping with both the federal law and the
corresponding PA statute.
The NPLEX database tracks sales of over-the-counter cold
and allergy medications containing precursors to the illegal drug,
methamphetamine. … HIPAA[] regulates the use and disclosure
of health information. The term “health information” is defined at
45 CFR [§] 160.103. In part, the definition states that health
information:
(2) Relates to the past, present, or future physical or mental
health or condition of an individual; the provision of health
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care to an individual; or the past, present, or future
payment for the provision of health cans to an individual.
[Id.]
The information collected and contained in the NPLEX
database is not “health information” such that i[t] comes under
the jurisdiction of the Privacy Rule under HIPAA. The
information being gathered by retail pharmacies is not
health care information. It is retail purchase information.
It does not speak to a past, present or future physical or mental
health condition that is specific to the purchaser. The [NPLEX]
data simply demonstrates that on a particular date and
time, and at a particular location, the identified individual
purchased, or attempted to purchase an over-the-counter
medication.
The Defendants could have no reasonable expectation of
privacy where each allegedly entered a public business and
requested an over-the-counter medication which could either be
used to treat legitimate physical ailments or could be used to
manufacture illegal substances. In doing so, the Defendants
would have each voluntarily produced a form of
identification with name, address, and date of birth to
procure the requested substance. Lastly, each Defendant
would have supplied a signature. Further, the Defendants could
have no reasonable expectation of privacy in records of the
aforementioned information kept by the pharmacy and logged into
the NPLEX.
Trial Court Opinion, 9/18/19, at 12-15 (emphasis added; paragraph
numbering and some spacing omitted). We agree with and adopt the trial
court’s cogent reasoning and determination. We are also persuaded by the
Commonwealth’s argument that “the only basis for someone to be concerned
about privacy with respect to his or her purchases of pseudoephedrine is if he
or she was obtaining the item for an illegal purpose.” Commonwealth’s Brief
at 37.
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Although our research discloses no Pennsylvania appellate decision on
point, we are persuaded by the reasoning of the Blair County Court of Common
Pleas in Babcock, supra, which involved nearly identical facts. See
Commonwealth v. Anderson, 40 A.3d 1245, 1249 n.5 (Pa. Super.
2012) (“We recognize that decisions of the Court of Common Pleas are not
binding precedent; however, they may be considered for their persuasive
authority.” (citation omitted)). The trial court in Babcock ruled that law
enforcement does not need to secure a search warrant before obtaining NPLEX
database results of an individual’s purchase history (and attempted purchase
history) of over-the-counter (OTC) pseudoephedrine from a pharmacy,4 for
the following reasons:
[Mr. Babcock,] in … open business hours of a public
business, walked into [the pharmacy] in full view of every
member of the public and requested an over-the-counter
substance that could either be used to treat minor ailments, such
as allergies, or could be used to manufacture illegal controlled
substances[. Mr. Babcock also] voluntarily gave his personal
information to procure such substances. The Court finds that
there is no expectation of privacy in such action by an individual
and no expectation of individual privacy in any record voluntarily
kept by a pharmacy in that situation. In fact, the Court almost
deems it a consent to search, that [Mr. Babcock] voluntarily
provided the information he provided [to purchase
pseudoephedrine, i.e., his name, date of birth, and driver’s
license]. … [T]he Court is not going to protect a privacy interest
of people who come into retail establishments seeking to purchase
substances which are not prescribed for them by a licensed
physician …, but also may be used to manufacture controlled
substances to the detriment of the general public.
____________________________________________
4OTC medications, unlike prescription medications, are dispensed in labeled
boxes publicly indicating their contents.
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Order, 9/7/12, at 1-2 (emphasis added).
We conclude the cogent reasoning of the court in Babcock is equally
applicable to the instant appeal. There is no merit to Appellant’s claim that
Babcock is contrary to precedent. Furthermore, federal courts have ruled
that law enforcement is not required to secure a search warrant to obtain
NPLEX results.5 See, e.g., May v. Strain, 55 F. Supp. 3d 885, 898-99 (E.D.
La. 2014) (“Neither the Court nor, apparently, the parties can locate any
authority showing a clearly established constitutional privacy right that
prohibits law enforcement from accessing an individual’s OTC records” of
pseudoephedrine purchases and attempted purchases).
Based on the foregoing, Appellant has no protected privacy interest in
the NPLEX search results, and thus “neither the Fourth Amendment nor Article
I, § 8 is implicated.” Enimpah, supra; cf. Commonwealth v. Shaw, 770
A.2d 295, 299 (Pa. 2001) (“The right to privacy extends to medical records of
patients.”). Finally, we note that Appellant, for the first time on appeal, argues
the admission of his NPLEX log violated his constitutional right to confront
witnesses against him. See Appellant’s Brief at 7-8. Our Supreme Court has
instructed, “it is axiomatic that issues not raised in lower courts are waived
____________________________________________
5 See Rudalavage v. PPL Elec. Utils. Corp., 268 A.3d 470, 479 n.7 (Pa.
Super. 2022) (“Where we are unable to find Pennsylvania precedent, we may
look to federal case law for its persuasive value.” (citation and quotations
omitted)).
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for purposes of appellate review, and they cannot be raised for the first time
on appeal.” Trigg v. Children’s Hosp. of Pittsburgh, 229 A.3d 260, 269
(Pa. 2020) (citing Pa.R.A.P. 302(a)). Accordingly, Appellant waived this
argument.6 As the trial court did not abuse its discretion in declining to
suppress the NPLEX log, Appellant’s first issue does not merit relief.
In his second issue, Appellant contends the Commonwealth failed to
present sufficient evidence to convict him of MCS and conspiracy beyond a
reasonable doubt. See Appellant’s Brief at 1-3. Appellant claims the
“[e]vidence failed to establish that [he] possessed a controlled substance;
therefore, evidence was not sufficient” to support his convictions. Id. at 2-3.
Appellant further argues his “three and a half year purchase history of
pseudoephedrine was at no time during the trial shown to be directly
connected to this one particular incident.” Id. at 3.
We first address whether Appellant preserved this claim. It is settled
that to “preserve a sufficiency claim, the Rule 1925(b) statement must specify
the element or elements upon which the evidence was insufficient.”
____________________________________________
6 Even if not waived, we would determine this argument lacks merit. We are
persuaded by the reasoning of other state appellate courts in State v. Cady,
425 S.W.3d 234, 247 (Mo. Ct. App. 2014) (concluding, “Because
the NPLEX records are not testimonial in nature, Defendant’s right of
confrontation was not violated, and the trial court did not err in admitting
the NPLEX records.”), and People v. Linnartz, 2020 WL 6228285, at **2-3
(Mich. Ct. App. 2020) (same); see also Commonwealth v. Arthur, 62 A.3d
424, 429 n.9 (Pa. Super. 2013) (this Court may consider decisions from other
state courts for their persuasive value).
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Commonwealth v. Widger, 237 A.3d 1151, 1156 (Pa. Super. 2020). If the
appellant does not specify such elements, the sufficiency claim is deemed
waived. Commonwealth v. Roche, 153 A.3d 1063, 1072 (Pa. Super. 2017).
Here, Appellant, in his court-ordered Rule 1925(b) statement, raised a
boilerplate challenge to the sufficiency of the evidence that did not specify the
element or elements for which the evidence was insufficient. See Rule
1925(b) Statement, 2/17/22, at 1 (unnumbered) (stating, “There was
insufficient evidence to convict the Defendant in this case.”). Given this
deficiency, Appellant waived his sufficiency issue. See Roche, supra.
Waiver notwithstanding, the sufficiency challenge would lack merit. We
are mindful of the following:
When reviewing a sufficiency of the evidence claim, this Court
must view the evidence and all reasonable inferences to be drawn
from the evidence in the light most favorable to the
Commonwealth as verdict winner, and we must determine if the
evidence, thus viewed, is sufficient to prove guilt beyond a
reasonable doubt. This Court may not substitute its judgment for
that of the factfinder. If the record contains support for the
verdict, it may not be disturbed. Moreover, a jury may believe all,
some or none of a party’s testimony.
Commonwealth v. Burns, 765 A.2d 1144, 1148 (Pa. Super. 2020) (citations
omitted). “The Commonwealth may sustain its burden by means of wholly
circumstantial evidence[.]” Commonwealth v. Brown, 48 A.3d 426, 430
(Pa. Super. 2012).
The Crimes Code defines conspiracy, in relevant part, as follows:
A person is guilty of conspiracy with another person or persons to
commit a crime if with the intent of promoting or facilitating its
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commission he … agrees with such other person or persons that
they … will engage in conduct which constitutes such crime or an
attempt or solicitation to commit such crime[.]
18 Pa.C.S.A. § 903(a)(1). We have instructed:
Mere association with the perpetrators, mere presence at the
scene, or mere knowledge of the crime is insufficient to establish
that a defendant was part of a conspiratorial agreement to commit
the crime. There needs to be some additional proof that the
defendant intended to commit the crime along with his co-
conspirator. Direct evidence of the defendant’s criminal intent or
the conspiratorial agreement, however, is rarely available.
Consequently, the defendant’s intent as well as the agreement is
almost always proven through circumstantial evidence, such as by
the relations, conduct or circumstances of the parties or overt acts
on the part of the co-conspirators.
Commonwealth v. Dunkins, 229 A.3d 622, 633 (Pa. Super. 2020) (citation
omitted). Once “the trier of fact finds that there was an agreement and the
defendant intentionally entered into the agreement, that defendant may be
liable for the overt acts committed in furtherance of the conspiracy, regardless
of which co-conspirator committed the act.” Commonwealth v. Dixon, 2022
PA Super 96, *10 (Pa. Super. 2022) (citation and brackets omitted).
With respect to MCS, the Controlled Substance, Drug, Device and
Cosmetic Act (the Act) provides:
Except as authorized by this act, the manufacture, delivery, or
possession with intent to manufacture or deliver, a controlled
substance by a person not registered under this act, … or
knowingly creating, delivering or possessing with intent to deliver,
a counterfeit controlled substance [is prohibited].
35 P.S. § 780-113(a)(30). The Act defines “manufacture,” in relevant part,
as “the production, preparation, propagation, compounding, conversion or
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processing of a controlled substance, other drug or device or the packaging or
repackaging of such substance or article[.]” Id. § 780-102.
In “narcotics possession cases, the Commonwealth may meet its burden
by showing actual, constructive, or joint constructive possession of the
contraband.” Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa. Super.
2014) (en banc) (citation omitted). Instantly, as the contraband was not
recovered from Appellant’s person, the Commonwealth had to establish his
constructive possession or joint constructive possession. Commonwealth v.
Roberts, 133 A.3d 759, 767 (Pa. Super. 2016).
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.
Id. at 767-68 (citation omitted). Constructive possession may be proven by
circumstantial evidence. Commonwealth v. Mikitiuk, 213 A.3d 290, 303
(Pa. Super. 2019).
Appellant claims the “evidence presented at the trial established only
that [he] was merely present at the house where Shawn Amick and Mary
Blackie were manufacturing controlled substances.” Appellant’s Brief at 1-2.
The “law is clear that a defendant cannot be convicted of a crime where the
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only evidence to connect him with the crime is ‘mere presence’ at or near the
scene.” Commonwealth v. La, 640 A.2d 1336, 1344 (Pa. Super. 1994).
A defendant’s mere presence at a place where contraband is found
or secreted is insufficient, standing alone, to prove that he
exercised dominion and control over those items. Thus, the
location and proximity of an actor to the contraband alone is not
conclusive of guilt. Rather, knowledge of the existence and
location of the contraband is a necessary prerequisite to proving
the defendant’s intent to control, and, thus, his constructive
possession. If the only inference that the fact finder can make
from the facts is a suspicion of possession, the Commonwealth
has failed to prove constructive possession. It is well settled that
facts giving rise to mere association, suspicion or conjecture, will
not make out a case of constructive possession. Further, for the
Commonwealth to prove constructive possession where more than
one person has access to the contraband, the Commonwealth
must introduce evidence demonstrating either the defendant’s
participation in the drug-related activity or evidence connecting
the defendant to the specific ... areas where the contraband was
kept.
Mikitiuk, 213 A.3d at 304 (citations, quotations, and brackets omitted).
In Mikitiuk, police responded to a parked pick-up truck in which
appellant had been a passenger, upon receiving tips from confidential
informants that illegal drug activity was occurring in the truck. Id. at 294.
Upon arrival, police saw appellant standing outside of the truck. Id. Police
recovered from both the truck, and a backpack on the ground nearby, several
items and precursors consistent with manufacturing methamphetamine using
the “one-pot” method, including plastic bottles, coffee filters, and
pseudoephedrine. Id. at 294-95. On appeal, the appellant raised a sufficiency
challenge to his convictions of, inter alia, MCS and conspiracy. We rejected
the claim, reasoning as follows:
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[T]he evidence reveals appellant was an active participant in the
transporting of [] methamphetamine-making items in an urban
area. For instance, the evidence reveals appellant was riding in
the bed of the pick-up truck with the visible items when the police
stopped it. Also, [the arresting officer] testified Appellant
admitted to him that he was in Lebanon to show Mr. Leeper, who
was driving the pick-up truck, how to manufacture
methamphetamine using the “one pot” method, which was
consistent with the items found in the pick-up truck. …
***
Moreover, in light of the fact appellant was the only person found
outside of the pick-up truck upon the officers’ arrival, the jury was
free to infer that appellant was the person who placed the
backpack in the bushes near the pick-up truck. … All of the
evidence, together, linked appellant to the specific area where the
illegal contraband was found and was sufficient circumstantial
evidence of his possession of the contraband. The jury was, thus,
free to reject appellant’s argument that he was merely present at
the scene and was oblivious to the drug-manufacturing operation.
Accordingly, the evidence was sufficient to establish that appellant
knew about the contraband and had conscious dominion and
control over the contraband. Therefore, we reject his sufficiency
of the evidence claim.
Id. at 302, 305 (citations and some capitalization omitted).
In this case, Officer Worthy described to the jury the information
contained in the respective NPLEX logs, which showed the extensive purchase
history (and unsuccessful attempts to purchase) pseudoephedrine by
Appellant, McFarland, and Mary Blackie. See N.T., 2/4/20, at 115-131; N.T.,
2/5/20, at 7-8. Officer Worthy testified that several of the
purchases/attempts occurred on the same day, sometimes within minutes of
each other, and/or at the same pharmacy. N.T., 2/4/20, at 123 (“[Appellant]
purchased pseudoephedrine at the same pharmacy, the same Walgreens
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pharmacy as had Mary Blackie on numerous occasions and as did []
McFarland. … [Appellant] purchased or attempted to purchase 21 times at
the pharmacy and [] McFarland attempted four purchases at that same
pharmacy.”); see also id. at 127-28. Officer Worthy testified, “of the eight
pharmacies [Appellant] utilized, he had 69 total purchases or attempted
purchases.” Id. at 125. Officer Worthy explained pseudoephedrine is the
“main active ingredient in most methamphetamine labs[.]” Id. at 102; see
also N.T., 2/5/20, at 14 (testimony of Jason Harner (Harner), an expert in
the field of forensic science, that pseudoephedrine is a crucial ingredient in
manufacturing methamphetamine via the one-pot method).
Officer Worthy further testified that he arrived at the Pine Avenue house
on March 5, 2018, knocked on the door, and attempted to serve the arrest
warrants for Shawn Amick and Mary Blackie. See N.T., 2/4/20, at 99-100,
107. Once inside the house, Officer Worthy saw Appellant and McFarland
seated on chairs in the living room, near Mary Blackie. Id. at 101, 132-33.
Officer Worthy saw, in plain view, a two-liter soda bottle on the floor near
Appellant and McFarland. Id. at 100-01, 133. Officer Worthy stated the
“green two liter soda bottle that was on the floor [] we presumed to be a one-
pot laboratory.” Id. at 101. A separate officer involved in the raid of the Pine
Avenue house, Corporal Justin Bennett (Corporal Bennett), testified that the
green two-liter bottle contained a “crystal-like white substance,” which, based
on Corporal Bennett’s training and experience, was consistent with
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methamphetamine manufactured via the one-pot method. Id. at 37-38; see
also N.T., 2/5/20, at 17-18 (Harner testifying, “the items in this case contain
all of the ingredients required to manufacture methamphetamine using the
one-pot method. … [T]he manufacture of methamphetamine using the one-
pot method was attempted and was successful.”). Officer Worthy testified the
two-liter bottle was within the reach of Appellant and McFarland. N.T., 2/4/20,
at 134. Officer Worthy also observed other items in plain view in the house
that were consistent with manufacturing methamphetamine, including
muriatic acid, lithium batteries, and blister packets of pseudoephedrine. See
id. at 103-05, 141-42; see also id. at 34 (Corporal Bennett testifying the
Pine Avenue house contained “multiple bottles [] filled with different fluids and
miscellaneous [] chemicals …[;] it was very messy”). Finally, Officer Worthy
testified McFarland had approximately $3,500 in cash on his person, which, in
the officer’s training and experience, was consistent with engaging in illicit
drug trafficking. Id. at 147, 150; see also id. at 69 (testimony from police
officer who discovered the cash on McFarland’s person at the Altoona Police
Department).
We conclude this evidence, properly viewed in the light most favorable
to the Commonwealth as verdict winner, was sufficient to establish Appellant’s
constructive possession of the contraband, and his conspiratorial agreement
with McFarland. Contrary to Appellant’s claim, the Commonwealth produced
more evidence of his guilt than his mere presence at the Pine Avenue house;
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namely, the Defendants’ respective NPLEX logs, the large amount of cash
found on McFarland’s person, and the two-liter bottle containing
methamphetamine residue that police found within Appellant’s reach. It was
the jury’s prerogative “to reject [A]ppellant’s argument that he was merely
present at the scene and was oblivious to the drug-manufacturing operation.”
Mikitiuk, 213 A.3d at 305. Further, it bears repeating that the jury acquitted
Appellant of numerous charges. Accordingly, there is no merit to Appellant’s
sufficiency issue challenging his MCS and conspiracy convictions.
In his final issue, Appellant argues the trial court erred in denying his
claim that the jury’s verdicts were against the weight of the evidence.
Appellant’s Brief at 3-5. Appellant contends the “majority of evidence against
[him] rests on the information in the NPLEX … search results which was so
heavily weighted as to shock one’s sense of justice.” Id. at 5; see also id.
at 4 (“there was no DNA or fingerprint evidence linking [Appellant] to the
crimes.”).
“When reviewing a challenge to the weight of the evidence, we review
the trial court’s exercise of discretion.” Commonwealth v. Clemens, 242
A.3d 659, 667 (Pa. Super. 2020) (citation omitted). For an appellant to prevail
on a weight challenge, he must establish the evidence supporting the
conviction is “so tenuous, vague, and uncertain that the verdict shocks the
conscience of the court.” Commonwealth v. Akhmedov, 216 A.3d 307, 326
(Pa. Super. 2019) (en banc) (citation omitted). “The weight of the evidence
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is exclusively for the finder of fact, who is free to believe all, none, or some of
the evidence and to determine the credibility of the witnesses.” Clemens,
242 A.3d at 667 (citation omitted). “One of the least assailable reasons for
granting or denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of evidence[.]” Commonwealth v. Clay,
64 A.3d 1049, 1055 (Pa. 2013); see also Corvin v. Tihansky, 184 A.3d 986,
992-93 (Pa. Super. 2018) (“if there is any support in the record for the trial
court’s decision to deny the appellant’s motion for a new trial based on weight
of the evidence, then we must affirm.” (citation omitted)).
Upon review, we discern no abuse of the trial court’s discretion in
rejecting Appellant’s weight claim. The jury was “free to believe all, none or
some of the evidence and to determine the credibility of the witnesses.”
Commonwealth v. Windslowe, 158 A.3d 698, 712 (Pa. Super.
2017). Appellant essentially asks us to make findings of fact and reweigh the
evidence in his favor, which is not our role as an appellate court. See
Commonwealth v. Miller, 172 A.3d 632, 643 (Pa. Super. 2017) (rejecting
appellant’s weight claim where he asked this Court to reweigh the evidence
and testimony in his favor); Mikitiuk, 213 A.3d at 305 (“[a]ppellant requests
that we re-weigh the evidence and assess the credibility of a witness
presented at trial, a task that is beyond our scope of review.”). Finally, and
contrary to Appellant’s claim, there is no constitutional requirement for the
police to conduct a forensic analysis of evidence. See Commonwealth v.
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Gibson, 951 A.2d 1110, 1140 (Pa. 2008). Accordingly, Appellant’s third issue
fails.
Judgment of sentence affirmed.
Judge King joins the opinion.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2022
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