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[U] Commonwealth v. White

Superior Court of Pennsylvania

February 26, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
BILLY WHITE, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence of February 8, 2013 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0002429-2012

BEFORE: GANTMAN, OLSON AND WECHT, JJ.

MEMORANDUM

OLSON, J.

Appellant, Billy White, appeals from the judgment of sentence entered on February 8, 2013. We vacate Appellant's sentence in part. Specifically, we vacate that portion of Appellant's judgment of sentence, wherein Appellant received a concurrent term of one to three years in prison for simple possession of cocaine. In all other respects, Appellant's judgment of sentence is affirmed. Further, since our ruling does not disturb the trial court's sentencing scheme, we will not remand this case for resentencing.

The trial court has clearly and ably summarized the underlying facts of this case. As the trial court explained:

On October 18, 2011, Appellant ditched his vehicle in a private driveway off of Egypt Road [] in Lower Providence Township, Montgomery County. A search of the vehicle uncovered drugs and drug paraphernalia. An investigation led to Appellant as the operator of the vehicle and to his arrest.
[Appellant's] two-day jury trial began on November 28, 2012 and[, during the trial, the following facts were established]. . . .
[At approximately] 2:00 a.m. on October 18, 2011, Officer Richard Aston of the Lower Providence Township Police Department responded to a 911 call of a suspicious and abandoned vehicle in the driveway of a private residence located at 2719 Egypt Road, which did not belong to the homeowners and was not authorized to be on that property. The vehicle was the same black Acura that the officer had followed on Egypt Road just five minutes before the 911 call was dispatched. Upon arriving at the scene, Officer Aston parked his vehicle so that it blocked the driveway. He observed that no one was in or around the vehicle, and once back-up [officers] arrived[, the officers commenced a search for the driver. The search] was unsuccessful. . . .
Officer Aston opened [] the driver's side door in an attempt to locate identification cards in the center console, and he smelled a profound odor of fresh marijuana and [observed] flakes of marijuana on the driver's side floor mat. No further search was conducted. . . . Officer Aston [] secure[d] the vehicle so that he could obtain a search warrant.
Later in the day [on] October 18, 2011, Detective Michael Jackson of the Lower Providence Township Police Department was assigned to investigate [the] case. As the lead investigator[, Detective Jackson] interviewed Kimberly White, the registered owner of the vehicle. During that interview[, ] the detective obtained Ms. White's consent to search the vehicle. Detective Jackson conducted the search. In the center console[, ] the detective found the bag of suspected marijuana that Officer Aston had already observed, a cell phone, a Pennsylvania State Identification card, a casino card, a Social Security card, [and] a bank card[. Every one of these items] belong[ed] to Appellant. The search also revealed[, ] hidden in the CD changer compartment[, ] numerous bags of what the detective believed to be both powder and crack cocaine. Specifically, there were 23 packets of crack cocaine and about 15 bags of powder cocaine. The search also turned up a marijuana grinder in the glove compartment and an empty firearms magazine in the trunk.
[Appellant was later arrested and charged with possession of cocaine with the intent to deliver, possession of cocaine, possession of marijuana, and possession of drug paraphernalia[1].
At trial, Toreyn Tuggle, Appellant's then on[-again]/off[-]again girlfriend, testified that [Appellant] came to her house after 1:30 a.m. on October 18, 2011 and told her that he ditched his vehicle on Egypt Road because there was a cop behind him and he [did not] have a driver's license. A few days later, Appellant confessed to Ms. Tuggle that he ditched the vehicle because there was a gun in the engine compartment. The testimony of Appellant's sister, Anitria White, also implicated Appellant as the driver of the vehicle on October 18, 2011.
Additionally at trial, the Commonwealth presented the expert testimony of Detective David Holtzman of the Montgomery County Detective Bureau, assigned to the Narcotics Enforcement Team. Detective Holtzman opined that the marijuana was possessed for personal ...

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