Com. v. Allen, L. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LYMICC ARTIE ALLEN :
:
Appellant : No. 1355 MDA 2022
Appeal from the Judgment of Sentence Entered August 24, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000372-2022
BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.
MEMORANDUM BY BOWES, J.: FILED: JULY 26, 2023
Lymicc Artie Allen appeals from the judgment of sentence of fines
totaling $25.00, which was imposed after the trial court convicted him of
possession of a controlled substance. We affirm.
On October 24, 2021, Officer Adrienne Monroy of the Steelton Borough
Police Department initiated a traffic stop of a vehicle, in which Appellant was
a passenger, for improper placement of a temporary registration placard. See
N.T. Trial, 8/24/22, at 6-7. Upon questioning by Officer Monroy, the driver
exhibited difficulty answering questions regarding her home address and
where she was driving and showed signs that indicated nervous, deceptive
behavior. Id. at 10-11. At the same time, Appellant displayed signs of
aggression, including asking repeatedly for the reason for the stop, even after
having that reason explained to him, and attempting to exit the vehicle
multiple times despite being directed to remain in the vehicle. Id. at 9, 11.
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Based upon this suspicious behavior, Officer Monroy questioned both
Appellant and the driver regarding whether there was anything illegal in the
vehicle. After receiving a negative reply from both individuals, Officer Monroy
requested consent to search the vehicle. Id. at 12. The driver refused to give
consent. A K-9 officer, who was already on-scene as part of Officer Monroy’s
backup, had their narcotics-detecting canine conduct an open-air sniff of the
vehicle. As the canine began, Appellant and the driver became more agitated.
Id. at 13-14. Ultimately, the canine alerted to the presence of narcotics and
Appellant admitted to the possible presence of a THC pen in the vehicle.1 Id.
at 14.
When asked about a medical marijuana card,2 Appellant displayed one
that had expired two months prior, in August of 2021. Id. at 14. Appellant
explained that he was renewing his card but did not elaborate on the status.
Id. at 22. Officer Monroy had the vehicle towed and obtained contact
information for both the driver and Appellant. Id. at 16, 23. Upon receiving
a search warrant, Officer Monroy, with the assistance of other officers, located
a vape pen containing an amber liquid in the center console of the vehicle.
Id. at 17. The vape pen contained no packaging to indicate that it was from
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1 “THC stands for tetrahydrocannabinol and is the active ingredient of
marijuana.” Commonwealth v. Jones, 121 A.3d 524, 526 n.3 (Pa.Super.
2015).
2 The Medical Marijuana Act, 35 P.S. §§ 10231.101-10231.2110, provides
that “[a] patient . . . shall possess an identification card whenever the patient
. . . is in possession of medical marijuana.” 35 P.S. § 10231.303(b)(7).
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a medical marijuana business or that it was prescribed to Appellant. Id. at
17. The pen was sent for testing and the amber substance within the pen was
confirmed to be THC, a schedule I controlled substance.3 Id. at 26.
Based on the foregoing, Appellant was arrested and charged with
possession of a controlled substance and possession of drug paraphernalia.
Prior to trial, the Commonwealth withdrew the paraphernalia charge. On
August 24, 2022, Appellant proceeded to a nonjury trial. Appellant did not
testify and the only evidence presented by either side was the testimony of
Officer Monroy. Following the close of evidence, Appellant’s counsel argued
that Appellant purchased the marijuana when his prescription card was still
valid and therefore should be found not guilty. The Commonwealth, on the
other hand, argued that “[w]hether or not he purchased that legally or not is
not the issue[,]” but rather whether he was validly in possession of marijuana
at the time of the stop. Id. at 30-31. The trial court convicted Appellant of
possession of a controlled substance. The trial court imposed a $25.00 fine
and did not charge Appellant court costs.
Appellant timely filed a notice of appeal. He filed a concise statement
pursuant to Pa.R.A.P. 1925(b) and the trial court issued a Rule 1925(a)
opinion. Appellant raises the following issue for our consideration: “Whether
the trial court erred in accepting the jury’s verdict where the Commonwealth
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3 We note that despite the passage of the Medical Marijuana Act, “[a]ll
marijuana, medical or otherwise, remains a Schedule I controlled substance
in Pennsylvania.” Commonwealth v. Dabney, 274 A.3d 1283, 1291
(Pa.Super. 2022) (citation omitted).
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failed to present sufficient evidence Appellant possessed marijuana without a
valid prescription.”4 Appellant’s brief at 4 (capitalization altered).
We consider Appellant’s sufficiency challenge within the following legal
parameters. “In reviewing a challenge to the sufficiency of the evidence, we
must determine whether the evidence, and all reasonable inferences deducible
therefrom, viewed in the light most favorable to the Commonwealth as the
verdict winner, are sufficient to establish all elements of the offense beyond a
reasonable doubt.” Commonwealth v. Kennedy, 789 A.2d 731, 732
(Pa.Super. 2001) (citation omitted). We observe that “[t]he facts and
circumstances established by the Commonwealth need not be absolutely
incompatible with the defendant’s innocence[.]” Id. (citation omitted).
Rather, any question of “doubt is for 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.” Id. (citation omitted).
Appellant challenges the sufficiency of the evidence for the charge of
possession of a controlled substance. The Controlled Substance, Drug, Device
and Cosmetic Act (“Controlled Substance Act”) in pertinent part prohibits:
Knowingly or intentionally possessing a controlled or counterfeit
substance by a person not registered under this act, or a
practitioner not registered or licensed by the appropriate State
board, unless the substance was obtained directly from, or
pursuant to, a valid prescription order or order of a practitioner,
or except as otherwise authorized by this act.
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4 We note that counsel mistakenly referenced a jury verdict in a case that
was decided following a nonjury trial.
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35 P.S. § 780-113(a)(16).
Appellant does not contest the Commonwealth’s evidence that he
knowingly or intentionally possessed a controlled substance. Rather, focusing
on the Medical Marijuana Act and the exception set forth in § 780-113(a)(16),
he alleges that the Commonwealth failed to adduce sufficient evidence that
he possessed the marijuana without a valid prescription. See Appellant’s brief
at 8-11. Likewise focusing on the Medical Marijuana Act, the trial court
concluded that “Appellant’s expired card d[id] not provide him with an
affirmative defense to the charge of unlawful possession of a controlled
substance.” Trial Court Opinion, 11/18/22, at 5. Appellant assails the trial
court’s interpretation, contending that the issue is “whether [his] lawful
purchase of medical marijuana becomes unlawful upon the expiration of his
medical marijuana card.” Id. at 9. He argues that § 780-113(a)(16) does
not prohibit the continued possession of a controlled substance once a
prescription lapses where the substance was originally obtained pursuant to a
valid prescription. Id. at 10-11. In other words, Appellant contests that,
under the statute, he was not required to possess a valid prescription at the
time of the stop so long as the substance was initially obtained when the
prescription was valid.
It bears reminding that Appellant is challenging the sufficiency of the
evidence to sustain his conviction pursuant to § 780-113(a)(16), not whether
the Commonwealth was permitted to arrest, prosecute, or penalize him for
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possession of medical marijuana.5 Thus, before examining the interplay
between § 780-113(a)(16) and the Medical Marijuana Act, we must first
determine whether the Commonwealth even had the burden to establish
beyond a reasonable doubt that Appellant was not authorized to possess the
marijuana. In that respect, we are guided by a prior en banc decision of this
Court that answered the question of whether “the Commonwealth failed to
establish the elements of possession because it did not disprove [the
defendant’s] claim that he had a valid prescription for the [controlled
substance] he possessed.” Commonwealth v. James, 46 A.3d 776, 779
(Pa.Super. 2012) (en banc) (footnote and citation omitted).
In James, we summarized the relevant burden-shifting, which had been
set forth by this Court in Commonwealth v. Sojourner, 408 A.2d 1108(Pa.Super. 1978). “In Sojourner, this Court explained that the
Commonwealth has the burden of proving every element of a criminal offense
beyond a reasonable doubt, but the burden of going forward with evidence of
every aspect of a criminal offense need not rest on the Commonwealth from
the outset.” James, supra at 779 (citation omitted). Indeed, “before the
prosecution must disprove the accused was authorized to possess narcotics
under the [Controlled Substance Act], the accused must establish some
credible evidence of such authorization.” Id. at 780 (cleaned up). Stated
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5 The Medical Marijuana Act provides that no medical marijuana patient “shall
be subject to arrest, prosecution or penalty in any manner, or denied any right
or privilege, including civil penalty or disciplinary action . . . solely for lawful
use of medical marijuana[.]” 35 P.S. § 10231.2103(a).
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simply, in order to validate the possession of a controlled substance otherwise
prohibited by the Controlled Substance Act, the defendant must first provide
some credible evidence to support the claim of authorization.
Here, Appellant presented no evidence that he was authorized to
purchase the marijuana at issue. At no point did the parties stipulate that
Appellant purchased the marijuana legally. Appellant avers that the
Commonwealth conceded “that Appellant properly purchased the marijuana.”
Appellant’s brief at 9 n.2 (citing N.T. Trial, 8/24/22, at 30-31). This statement
is an overreach. Read in context, the Commonwealth’s statement that
“there’s no argument that the defendant legally purchased the marijuana” was
made to urge the trial court not to get lost on the matter of purchasing when
it believed the relevant inquiry was “the matter of possession.” N.T. Trial,
8/24/22, at 30-31. Simply put, the Commonwealth’s position was that
“[w]hether or not [Appellant] purchased [the marijuana] legally . . . [wa]s not
the issue[.]”6 Id. at 30-31. An argument that the legality of the purchase
was irrelevant, while not wholly accurate, does not amount to a concession
that the purchase was legal.
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6 The Commonwealth’s position comports with Officer Monroy’s reaction to
Appellant’s counsel focusing on the purchase of the marijuana on cross-
examination. See N.T. Trial, 8/24/22, at 24 (“So at this point possessing –
we’re not talking the purchasing but possessing of the THC with an expired
card would be the point which I would intervene at this point. . . . I know he
said he has purchased legally, he has a medical marijuana card, he’s waiting
on his new one. But again at this particular court hearing we’re talking about
the possession and not the purchasing. Which we may have had a
conversation about the purchasing of it, but the possession is what we’re
indicating here we’re talking about.”).
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Rather, all the evidence established was that Appellant possessed
marijuana on October 24, 2022, and that at that time his medical marijuana
card had been expired for two months. There was no evidence as to when or
where the marijuana was purchased, or whether it was even purchased using
the medical marijuana card. Moreover, the vape pen contained no labeling
indicative of medical marijuana prescribed to Appellant.7 Regardless of
whether Appellant allegedly offered to provide a receipt to Officer Monroy
during the traffic stop, no such receipt was produced at trial. See N.T. Trial,
8/24/22, at 22-23 (the officer testifying on cross-examination that (1) she did
not remember Appellant offering to provide a receipt from a dispensary that,
as counsel phrased it, “he probably purchased [the] THC from[,]” (2)
Appellant did not provide a date for when he purchased the marijuana, and,
(3) the nature of his prescription was not discussed during the interaction).
As Appellant did not submit any evidence in support of the claim that
the marijuana was obtained pursuant to the medical marijuana card prior to
its expiration, the burden of production to disprove lawful possession did not
transfer to the Commonwealth. See James, supra at 780 (concluding that
the burden of disproving authorization did not shift to the Commonwealth
because the record supported the trial court’s conclusion that there was no
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7 In that vein, we note that a valid prescription card does not authorize an
individual to purchase marijuana on the street. Thus, even possession of
marijuana while holding a valid prescription card does not mean that the
defense set forth in § 780-113(a)(16) automatically applies because the
marijuana must be “obtained directly from, or pursuant to, a valid prescription
order.” 35 P.S. § 780-113(a)(16).
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credible evidence in support of James’s claim that he was authorized to
possess the narcotics). Appellant’s argument in support of his continued
possession of the marijuana after the card’s expiration is entirely premised on
the assumption that the marijuana was lawfully purchased in the first place.
Since Appellant did not set forth any evidence of a valid purchase, this
argument fails.8
For these reasons, we conclude that an examination of the entirety of
the record evidence, viewed in the light most favorable to the Commonwealth,
established possession of a controlled substance beyond a reasonable doubt
and supported Appellant’s conviction. Accordingly, we affirm Appellant’s
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2023
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8 As this Court does not issue advisory opinions, we decline to answer
Appellant’s question of whether purchasing marijuana legally pursuant to a
valid prescription card permits an individual to indefinitely possess or use it.
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