Case Information
*-714 Circulated 11/10/2021 11:36 AM *-692 Circulated 11/10/2021 11:36 AM *1 J-S30011-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA :
v. :
:
:
WILLIAM A. JORDAN :
: Appellant : No. 427 MDA 2020 Appeal from the Judgment of Sentence Entered July 24, 2018 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0000077-2018 BEFORE: BENDER, P.J.E., McCAFFERY, J., and COLINS, J. [*]
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 23, 2021
Appellant, William A. Jordan, appeals from the judgment of sentence of an aggregate term of 66 to 144 months’ incarceration, imposed after he was
convicted by a jury of delivery of a controlled substance (35 P.S. § 780-
113(a)(30)), conspiracy to deliver a controlled substance (18 Pa.C.S. §
903(a)(1)), possession of a controlled substance with intent to deliver (35 P.S.
§ 780-113(a)(30)), possession of a controlled substance (35 P.S. § 780-
113(a)(16)), possession of drug paraphernalia (35 P.S. § 113(a)(32)), and
possession of marijuana (35 P.S. § 780-113(a)(31)). Appellant raises various
issues on appeal, including challenges to the sufficiency and weight of the
evidence; a claim that the court erred by admitting prior bad acts evidence
and denying his pretrial motion to suppress evidence; that his sentence is
[*] Retired Senior Judge assigned to the Superior Court.
excessive; and that the court lacked jurisdiction over his conspiracy charge.
After careful review, we affirm.
The trial court set forth a detailed summary of the evidence presented at Appellant’s trial in its Pa.R.A.P. 1925(a) opinion, which we adopt herein.
See Trial Court Opinion (TCO), 5/7/21, at 3- 11. Briefly, Appellant’s
convictions were premised on evidence that he sold cocaine to a “middleman,”
who moments thereafter sold the cocaine to a confidential informant (CI).
Police were conducting surveillance of the CI when the drug sale occurred,
and the CI was also outfitted with a recording device. When Appellant’s
vehicle was stopped moments after the drug transaction, he was smoking
marijuana, and he had in his possession a small quantity of cocaine and a
portion of the pre- recorded “buy money” the police had given to the CI to
purchase the drugs.
Appellant was arrested and proceeded to a jury trial on May 1, 2018. At the close thereof, he was convicted of the above-stated offenses. On July 24,
2018, the court sentenced Appellant to the aggregate term set forth supra .
He then filed a timely post-sentence motion. However, the court did not rule
on that motion within 120 days, and the clerk of courts did not issue an order
denying it by operation of law until January 31, 2020. Appellant filed his notice
of appeal within 30 days of the January 31, 2020 order. Appellant also timely Where a trial court fails to rule on a timely-filed post-sentence motion within
120 days, the clerk of courts is required to enter an order denying the motion
(Footnote Continued Next Page)
complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. On May 7, 2021, the trial court
filed its Rule 1925(a) opinion. Herein, Appellant states the following six issues
for our review, which we have reordered for ease of disposition:
1. Whether the trial court lacked subject matter jurisdiction over the criminal conspiracy to deliver charge[?] 2. Whether the evidence was insufficient to sustain a verdict of guilty beyond a reasonable doubt on the charges of delivery of a controlled substance, possession with intent to deliver and criminal conspiracy to deliver a controlled substance?
3. Whether the trial court abused its discretion in failing to find the verdict against the weight of the evidence as it relates to delivery and possession with intent to deliver, and conspiracy to deliver since the evidence related to same was so tenuous, vague and uncertain that the ultimate verdict is such that it shocks one ’ s [conscience]?
4. Whether the trial court abused its discretion in allowing testimony and evidence regarding [Appellant’s] prior criminal record to be admitted during the Commonwealth ’ s direct examination on the basis that [Appellant] “ opened the door ” and thereafter in failing to grant a mistrial?
by operation of law and serve that order on the parties. See Pa.R.Crim.P.
720(B)(3)(a), (c). A notice of appeal must then be filed within 30 days of the
entry of that order. See Pa.R.Crim.P. 720(A)(2)(b). Here, the clerk of courts
should have entered an order denying Appellant’s timely post -sentence
motion by operation of law on November 30, 2018, but it did not do so until
January 31, 2020. We have held that a breakdown in the operations of the
court occurs when the clerk fails to enter an order deeming post-sentence
motions denied by operation of law. See Commonwealth v. Patterson , 940
A.2d 493, 498-99 (Pa. Super. 2007) (citation omitted). Therefore, because
Appellant filed his notice of appeal within 30 days of the entry of the January
31, 2020 order denying his post-sentence motion by operation of law, we
decline to quash his appeal.
5. Whether the trial court [’s] denial of Appellant ’ s motion to suppress evidence recovered after an illegal stop was supported by the record and free from legal error?
6. Whether the trial court abuse[d] its discretion by running each of the individual drug related offenses in [the] high-end of the standard range and running them consecutively thereby making the aggregate sentence unnecessarily harsh and unreasonable when neither his history nor his character warranted such a harsh and excessive sentence and in otherwise failing to explain or provide [an] adequate and/or proper basis for the excessive sentence?
Appellant’s Brief at 3 -4 (emphasis omitted).
In Appellant’s first issue, he argues that the trial court lacked jurisdiction over the conspiracy to commit delivery charge, which was added
to the charges pending against Appellant on April 16, 2018, when the
Commonwealth filed an amended criminal information. Appellant’s jury trial
began on May 1, 2018. According to Appellant, the trial court lacked
jurisdiction over this newly-added charge because the Commonwealth had not
established, at a preliminary hearing, that it could make out a prima facie case
for this offense.
Appellant’s arguments are waived and/or moot. First, in Appellant’s Rule 1925(b) statement, he did not raise any challenge to the court’s
permitting the Commonwealth to amend the criminal information to add the
conspiracy charge, and he cites no case law to support his assertion that this
claim constitutes a non-waivable challenge to the jurisdiction of the court. We Appellant also claims that the court lacked jurisdiction over the conspiracy
charge because the Commonwealth failed to demonstrate that an overt act in
furtherance of the conspiracy occurred in Pennsylvania. We address this claim
infra . See infra , at 6 n.4.
conclude that it does not. Namely, Rule of Criminal Procedure 564, which
governs the amendment of a criminal information, states that:
The court may allow an information to be amended, provided that the information as amended does not charge offenses arising from a different set of events and that the amended charges are not so materially different from the original charge that the defendant would be unfairly prejudiced. Upon amendment, the court may grant such postponement of trial or other relief as is necessary in the interests of justice.
Pa.R.Crim.P. 564. As Appellant recognizes, “ [t]he purpose of Rule 564 is to
ensure that a defendant is fully apprised of the charges, and to avoid prejudice
by prohibiting the last minute addition of alleged criminal acts of which the
defendant is uninformed.” Appellant’ s Brief at 52 (quoting Commonwealth
v. Sinclair , 897 A.2d 1218, 1221 (Pa. Super. 2006) (citation omitted)). Thus,
it is clear Appellant’s challenge to the court’s permitting the Commonwealth
to amend the criminal information implicates due process and notice concerns,
not the jurisdiction of the court. Therefore, Appellant waived this claim by
failing to raise it in his Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii)
(“Issues not included in the Statement and/or not raised in accordance with
the pr ovisions of this paragraph (b)(4) are waived.”). We note that the court informed Appellant in its Rule 1925(b) order that
“[a]ny issue not properly included in the Statement timely filed and served
shall be deemed waived.” Trial Court Order, 3/9/20, at 1 (single page); see
also Greater Erie Indus. Development Corp. v. Presque Isle Downs,
Inc. , 88 A.3d 222, 225 (Pa. Super. 2014) ( en banc ) ( “[I]n determining
whether an appellant has waived his issues on appeal based on non-
compliance with Pa.R.A .P. 1925, it is the trial court’ s order that triggers an
appellant’ s obligation[.] ... [T]herefore, we look first to the language of that
order.” ) (citations omitted).
We also deem moot Appellant’s claim that the trial court lacked jurisdiction over his conspiracy charge because the Commonwealth did not
present a prima facie case for that offense at a preliminary hearing. It is well-
settled that “[o]nce [the] appellant has gone to trial and been found guilty of
the crime, any defect in the preliminary hearing is rendered immaterial. ”
Commonwealth v. Tyler , 587 A.2d 326, 328 (Pa. Super. 1991). In other
words, “[a]n adjudication of guilt renders moot any allegation that the
Commonwealth failed to establish a prima facie case.” Commonwealth v.
Lee , 662 A.2d 645, 650 (Pa. 1995); see also Commonwealth v.
McCullough , 461 A.2d 1229, 1231 (Pa. 1983) (holding that the failure to
establish a prima facie case at a preliminary hearing is clearly immaterial
where at the trial the Commonwealth met its burden by proving the offense
beyond a reasonable doubt). Accordingly, Appellant’s first issue does not
warrant relief.
In reviewing Appellant’s remaining five issues, we have carefully examined the briefs of the parties, the certified record, and the applicable law.
We also considered the detailed, 45-page opinion authored by the Honorable
Michael J. Barrasse of the Court of Common Pleas of Lackawanna County. We
conclude that Judge Barrasse adequately addresses the issues and arguments
Appellant raises herein, and properly concludes that they are meritless. Judge Barrasse did not explicitly discuss Appellant’s claim, raised for the first
time on appeal, that the trial court lacked jurisdiction over the conspiracy
(Footnote Continued Next Page)
Accordingly, we adopt Judge Barrasse’s well -reasoned decision as our own and
affirm Appellant’s judgment of sentence for the reasons set forth therein.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2021
charge because there was no evidence that an overt act in furtherance of that
conspiracy occurred in Pennsylvania. However, Judge Barrasse did conclude,
for the reasons set forth in his assessment of Appellant’s challenge to the
sufficiency of the evidence, that “the overt act was [] Appellant’s delivery of
cocaine to Donald Miles at [] Miles’ resid ence for [] Miles to sell on the street,
including [to the CI].” TCO at 20. We agree. Accordingly, Appellant’s
jurisdictional claim is meritless. We note that Judge Barrasse addresses a claim that Appellant has
abandoned on appeal. See TCO at 33-35 (discussing Appellant’s claim that
the court erred by failing to grant Appellant’s request for a mistrial after
evidence was admitted regarding his prior criminal record). We do not adopt,
or assess the merits of, this portion of Judge Barrasse’s decision .