J-S44041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JASON JOSEPH BEE,                        :
                                          :
                    Appellant             :         No. 120 EDA 2018

             Appeal from the Judgment of Sentence March 3, 2016
                in the Court of Common Pleas of Bucks County,
             Criminal Division at No(s): CP-09-CR-0004323-2015

BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                         FILED AUGUST 21, 2018

      Jason Joseph Bee (“Bee”) appeals, pro se, from the judgment of

sentence imposed following his convictions of possession of a controlled

substance, possession with intent to deliver a controlled substance, and

possession of drug paraphernalia. See 35 P.S. §§ 780-113(a)(16), (30), (32).

We affirm.

      On May 5, 2015, Bensalem police pulled over a red Ford Mustang for

speeding. Police issued the driver of the Mustang, Bee, a traffic ticket. Police

learned that Bee’s vehicle was registered at 414 Daylily Drive in Langhorne,

Pennsylvania.

      On May 11, 2015, an anonymous person called Bensalem police and told

an officer that Bee was a large-scale marijuana dealer in the Philadelphia area

who sold marijuana from a red convertible Mustang. The anonymous person
J-S44041-18


told the officer that Bee lives with his mother at 414 Daylily Drive, and

provided Bee’s cell phone number.

       Thereafter, Bensalem police searched for Bee’s information in a police

database and learned that Bee’s residence was registered at 414 Daylily Drive.

Police also learned that the cell phone number provided by the anonymous

person was registered to Bee at the same address, and that the Middletown

police had previous contacts with Bee at the same address.

       On May 12, 2015, Bensalem police went to 414 Daylily Drive and

identified Bee’s red Ford Mustang in the driveway. While police were at the

residence, they also conducted a “trash pull.”1 Police recovered the following

items from the trash pull: (1) two pieces of mail addressed to Agnes Levin

(Bee’s mother) at 414 Daylily Drive; and (2) a gallon size plastic bag that had

the word “Purple” written on it. Police used a field test kit to test for the

presence of drugs inside the gallon size plastic bag. The field test kit indicated

a positive result for marijuana.

       Police obtained a search warrant to search Bee’s residence at 414 Daylily

Drive. On May 14, 2015, police executed the search. The following items

were located inside Bee’s bedroom:

       1.    A one-pound bag of marijuana hidden in tan pants;


____________________________________________


1 A trash pull is a law enforcement investigative technique, where officers seize
household trash that is left at the street/curbside during routine trash
collection. The trash is seized and taken to the police department, where the
trash is searched for evidence.

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J-S44041-18


     2.    Two bags of marijuana found in different pants;

     3.    Several marijuana joints and loose marijuana in an ashtray;

     4.    Eight glass tubes used for crack cocaine;

     5.    Three boxes of new sandwich bags from a desk;

     6.    Used sandwich bags and large bags from the desk;

     7.    A digital scale found in the desk that had marijuana and cocaine

           residue on it;

     8.    A bottle with twenty-eight yellow pills;

     9.    Various rolling papers;

     10.   Various pieces of mail in [Bee’s] name;

     11.   A Social Security card for [Bee];

     12.   An identification card for [Bee];

     13.   Two birth certificates for [Bee];

     14.   Several bags of marijuana inside a black bag inside a closet;

     15.   Three marijuana pipes; and

     16.   $770.00 in United States currency.

In total, police seized 1,386.9 grams (3.06 pounds) of marijuana in Bee’s

bedroom.

     Bee was later arrested and charged with a variety of offenses. Bee filed

a Motion to Suppress the evidence seized from his home, which the trial court




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denied. In 2015, a jury trial was held, where Bee represented himself.2 On

November 10, 2015, the jury found Bee guilty of the above-mentioned crimes.

        On March 3, 2016, Bee was sentenced to an aggregate prison term of

three to eight years.3 On March 14, 2016, Bee filed a “Post-Sentence Motion

to Modify Sentence be Waived from Bucks County and Moved to Superior

Court,” which the trial court denied. On May 27, 2016, Bee filed an untimely

appeal to this Court, which he subsequently withdrew.        Thereafter, Bee

submitted a Petition pursuant to the Post Conviction Relief Act (“PCRA”)4

seeking to reinstate his post-sentence and appeal rights nunc pro tunc. The

PCRA court appointed Bee counsel. Thereafter, Bee filed a Motion seeking to

proceed pro se.      The PCRA court granted Bee relief pursuant to his PCRA

Petition. That same day, the court held a Grazier5 hearing, after which it

determined that Bee voluntarily waived his right to counsel and could

represent himself.

        In July and August of 2017, Bee filed three Post-Sentence Motions,

namely a “Motion for Sentence Modification,” a “Post-Sentence Motion,” and



____________________________________________


2Prior to accepting Bee’s pro se request, the trial court conducted a thorough
colloquy. The court also repeatedly advised Bee that he should retain counsel.

3On December 7, 2015, prior to the imposition of sentence, Bee filed a Notice
of appeal. The Notice of appeal was subsequently dismissed.

4   See 42 Pa.C.S.A. §§ 9541-9546.

5   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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J-S44041-18


a “Supplement Amendment of Post-Sentence Motion,” all of which were

denied.    Bee, pro se, filed a timely Notice of appeal and a court-ordered

Concise Statement of matters complained of on appeal pursuant to Pa.R.A.P.

1925(b).

        Bee raises the following issues for our review:

        1) Did the [t]rial [c]ourt err, pursuant to Pa.R.Crim.P. 581(H), in
           denying [Bee’s] [M]otion to [S]uppress the evidence
           recovered as a direct result of the search warrant and affidavit,
           because the Commonwealth did not go forward with any
           evidence, and where it was patently clear [Bee] was never
           offered an opportunity to develop the fact that the Police
           lacked [c]onstitutionally satisfactory probable cause?

        2) Pursuant to Pa.R.E. 702, does the Dequenois-Levine (D-L)
           Reagent in the Narco Pouch Drug Test meet Frye[6]
           [s]tandards to be established as trustworthy probable cause
           for a search warrant, especially because it was tested on an
           [e]mpty clear freezer bag that was allegedly found in [Bee’s]
           trash?

        3) Was [Bee] denied his [c]onstitutional right to a fair trial where
           the [t]rial [c]ourt failed to appoint stand-by counsel (or advise
           [Bee] he could retain stand-by counsel) under Pa.R.Crim.P.
           [ ] 121(D), since it is clear the [trial court] did not explain the
           standards of conduct and stand-by counsel could have
           answered questions of concern of [Bee] during [t]rial if [Bee]
           was unsure of what was occurring in [o]pen [c]ourt?

        4) Did the [t]rial [c]ourt err, in failing to order a competency
           evaluation, pursuant to Indiana v. Edwards, 554 U.S. 164
           (2008), prior to granting [Bee’s] request to represent himself,
           where [Bee] had suffered from mental problems?

        5) Was the evidence sufficient as a matter of law, to prove
           beyond a reasonable doubt that [Bee] was guilty of possession
           of cocaine?
____________________________________________


6   Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

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J-S44041-18



Brief for Appellant at 3-4 (citations corrected, emphasis omitted, footnote

added).

       Bee raises the following issue, in a supplemental brief,7 for our review:

       6) Did the [s]entencing [c]ourt err in denying [Bee’s] “Motion for
          Sentence Modification” requesting relief upon review of the
          [s]entence with respect to available mitigating factors, thus
          misapplying the Sentencing Guidelines, adding points to
          [Bee’s] offense gravity score for [an] offense [Bee] was NEVER
          charged with, resulting in an abuse of discretion when it
          handed down an aggregate [s]entence of three to eight years
          incarceration?

Supplemental Brief for Appellant at 7 (emphasis in original).

       In his first claim, Bee alleges that the trial court erred in denying his

pre-trial Motion to Suppress the evidence recovered from his bedroom. See

Brief for Appellant at 29, 34, 38-39.          Bee asserts that the Commonwealth

violated Pa.R.Crim.P. 581(H), because the Commonwealth did not present

testimony to establish the validity of the statements set forth in the warrant

and Affidavit of probable cause. See id. at 29, 32, 33; see also id. at 39

(claiming that the Affidavit of probable cause must be complete on its face).

Bee claims that he was not offered an opportunity to develop the record



____________________________________________


7 Attached to Bee’s brief is a “Supplemental Brief,” in which Bee raises a sixth
issue for our review. Since Bee is a pro se appellant, we will address his sixth
claim. See Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super.
2003) (declaring willingness to construe materials filed by a pro se litigant
liberally, while recognizing that pro se status generally confers no special
benefit on an appellant).        Bee’s Supplemental Brief will be cited as
Supplemental Brief for Appellant.

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J-S44041-18


regarding probable cause to issue the warrant. See id. at 29, 34. Bee argues

that the field test was unreliable, that the police made false statements, and

that the anonymous tip was false. See id. at 30-32, 35, 36-38; see also id.

at 35-37 (arguing that the police did not corroborate the tip or the reliability

of the tipster).

      Our standard of review when addressing a challenge to a trial court’s

denial of a suppression motion is

      whether the factual findings are supported by the record and
      whether the legal conclusions drawn from those facts are correct.
      When reviewing the ruling of a suppression court, we must
      consider only the evidence of the prosecution and so much of the
      evidence of the defense as remains uncontradicted when read in
      the context of the record as a whole. Where the record supports
      the findings of the suppression court, we are bound by those facts
      and may reverse only if the legal conclusions drawn therefrom are
      in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations

omitted).

             [T]he question of whether probable cause exists for the
      issuance of a search warrant [is] answered according to the
      “totality of the circumstances” test articulated in Commonwealth
      v. Gray, 503 A.2d 921 (Pa. 1985), and its Pennsylvania progeny,
      which incorporates the reasoning of the United States Supreme
      Court in Illinois v. Gates, 462 U.S. 213 (1983). The task of the
      magistrate acting as the issuing authority is to make a practical,
      common sense assessment of whether, given all the
      circumstances set forth in the affidavit, a fair probability exists
      that contraband or evidence of a crime will be found in a particular
      place. A search warrant is defective if the issuing authority has
      not been supplied with the necessary information.

Commonwealth v. Huntington, 924 A.2d 1252, 1255 (Pa. Super. 2007)

(some citations and quotation marks omitted).

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      Further, “[t]he Commonwealth shall have the burden of going forward

with the evidence and of establishing that the challenged evidence was not

obtained in violation of the defendant’s rights.” Pa.R.Crim.P. 581(H). The

standard of proof is preponderance of the evidence. Id., cmt. “[A] defendant

at a suppression hearing has the right to test the veracity of the facts recited

in the affidavit in support of probable cause.” Commonwealth v. James, 69

A.3d 180, 187 (Pa. 2013) (citation omitted). When testing the veracity of the

facts recited in the affidavit, a defendant must make “a substantial preliminary

showing [that] the affiant[(s)] knowingly and intentionally, or with reckless

disregard for the truth, included a false statement in the affidavit.” Id. at 188

(citation omitted).

      Here, the Commonwealth introduced the Affidavit of probable cause and

the search warrant into evidence at the suppression hearing. N.T., 10/27/15,

at 75. The averments contained in the Affidavit of probable cause were set

forth, in relevant part, as follows:

      On 5/5/15, Cpl. Cowden from the Bensalem Township Police
      Department issued a traffic ticket to [Bee] [ ] for speeding in a
      Red Ford Mustang (PA Tag NB - 0016). A Penn [DOT] records
      check was conducted on this vehicle and learned that it is
      registered to 414 Daylily Dr. Langhorne, PA 19047 to an Agnes
      Levine (12/28/1941).

      On 5/11/15, Officer Jennifer Petine spoke with the complainant
      over the phone who wished to remain anonymous.                The
      anonymous complainant state[d] [that] [Bee] is a large scale,
      high grade marijuana dealer. Bee sells four different [strains] of
      high grade marijuana from a red convertible Ford Mustang. Bee
      sells marijuana in the area of Eddington, Andalusia, Northeast
      Philadelphia and Croydon. The complainant state[d] that Bee

                                       -8-
J-S44041-18


     keeps the marijuana in a tote bag in his Ford Mustang. The
     complainant stated that Bee sells the marijuana in various bars in
     the North East sections of Philadelphia and Bensalem.

     On 5/11/15, Officer Gansky spoke with the same anonymous
     complainant in reference to [Bee]. During that conversation[,]
     Officer Gansky learned that Bee lives with his mother in
     Langhorne, Bucks County, but also stops by his girlfriend’s house
     in North East Philadelphia. Bee lives at his mother’s residence at
     414 Daylily Dr. Langhorne, PA 19047. The anonymous source
     stated that Bee’s cell phone number is [(redacted)].          The
     anonymous source stated that Bee keeps a large amount of
     money from the marijuana sales at his mother's residence.

     You[r] affiants also ran a computer check using the T.L.O.
     computer system. T.L.O. is an information database utilized by
     law enforcement. Your affiants learned that [Bee] is registered to
     414 Daylily Drive Langhorne, PA 19047 as his residence. He is
     listed to that address from August of 1998 to the present. Officer
     Gansky was able to T.L.O. this phone number and learned that it
     is registered to [Bee] at 414 Daylily Drive, Langhorne, PA 19047.

     Officer Gansky learned that the Middletown Township Police
     Department has also had contacts with [Bee] where he is listed at
     414 Daylily Drive, Langhorne, PA 19047.

     On 5/12/15[,] Officer Gansky and Officer Hill conducted a trash
     pull at 414 Daylily Drive Langhorne, PA 19047. A trash pull is a
     common law enforcement investigative technique utilized by the
     Bensalem Police Department. A trash pull is conducted when a
     suspect places their household trash to the street/curbside for
     routine trash collection. The trash is then seized and taken to the
     Bensalem Police Department where it is searched through for
     evidence of violations of Title 35. The following items were
     recovered from 414 Daylily Drive Langhorne, PA 19047 during the
     5/12/15 trash pull:

     X1: 2 pieces of mail from 414 Daylily Drive Langhorne, PA 19047.
     The mail is to Agnes Levin[.]

     X2: A gallon size plastic bag with marijuana residue in it. The
     plastic bag had the name of “Purple” on there. Based on your
     affiant[’s] training and experience, “Purple” is believed to be a
     specific brand of marijuana.

                                    -9-
J-S44041-18



     While conducting a trash pull at 414 Daylily Drive Langhorne, PA
     [19047], your affiant[s] also observed a red Ford Mustang parked
     in the driveway. The tag on the vehicle is (HNB-0016). This is
     the same vehicle that Jason Bee was stopped in by Corporal
     Cowden.

     The marijuana [was] field tested using the Narco field test kit and
     a positive result for marijuana was attained. Furthermore, the
     marijuana was sent to the Bucks County Crime Laboratory.

     A criminal history was completed on [Bee]. The criminal history
     revealed that Bee was arrested for the following drug offenses.

     On 9/11/1991[,] Bee was arrested by Philadelphia Police
     Department for possession of controlled substance. Bee was
     placed in Accelerated Rehabilitation Program.

     On 7/2/1992[,] Bee was arrested by Philadelphia Police
     Department for possession of controlled substance. Bee pled
     guilty.

     On 11/9/1993[,] Bee was arrested by Philadelphia Police
     Department for possession of controlled substance. Bee was
     found guilty.

     On 6/28/1994[,] Bee was arrested by the Wildwood Police
     Department for possession of marijuana and use of drug
     paraphernalia. Bee pled guilty to possession of marijuana.

     On 12/7/1994[,] Bee was arrested by the North Wildwood Police
     Department       for     distribution     of     heroin/cocaine,
     manufacture/distribute controlled substances, possession of
     controlled substances, possession of marijuana, and use of drug
     paraphernalia. Bee was found guilty of manufacture/deliver
     controlled substances.

     On 5/11/2008[,] Bee was arrested by the Lower Southampton
     Police Department for possession of marijuana and use of drug
     paraphernalia. Bee pled guilty to possession of marijuana.

     The trash pull mentioned above gives credibility to [the] witness
     and[,] furthermore[,] it freshens the complainant’s information to


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J-S44041-18


      as recently as today. This proves that criminal activity is ongoing
      and evidence of this will be recovered.

      The facts[,] when considered in their totality, establish probable
      cause to believe that 414 Daylily Drive Langhorne PA, 19047
      contains evidence of violations of Title 35 including[,] but not
      limited to[,] marijuana and marijuana paraphernalia, evidence of
      use and distribution of marijuana and other controlled substances,
      and evidence of any proceeds (cash or material) from the use and
      distribution of marijuana.

Affidavit of Probable Cause, 5/13/15, at 2-4 (unnumbered).

      Here, the Affidavit of probable cause explained the manner in which the

police became aware of Bee’s drug activity. It described the timing of the

police’s investigation and the steps taken by the police officers to corroborate

and verify the tip they received. Further, the substance in the trash was found

to be marijuana.    Thus, the totality of the circumstances was sufficient to

demonstrate a fair probability that contraband would be found on the

premises. Moreover, Bee did not demonstrate that the averments contained

in the Affidavit were false or were made with reckless disregard for the truth.

See James, 69 A.3d 188 (stating, “the defendant must allege deliberate

falsehood or reckless disregard for the truth, accompanied by an offer of

proof.”) (citation omitted). Thus, the trial court properly denied Bee’s Motion

to Suppress, and his first claim is without merit.

      In his second claim, Bee argues that, pursuant to Pa.R.E. 702, the

Commonwealth must show that the field test kit satisfied the standards set

forth in Frye, supra, to establish the requisite probable cause for the issuance

of the search warrant. See Brief for Appellant at 40-42. Bee contends that

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the D-L Reagent “continually renders false positives for marijuana when tested

on substances such as caffeine (coffee, tea), lavender, oregano, tobacco, nut

meg, sucrets (cough suppressants), and numerous kinds of vegetable

matter[.]”    Id. at 41.     Bee further claims that the testing could not have

indicated the presence of marijuana in an empty freezer bag found in his trash.

See id. at 40, 42. Bee asserts that because the D-L Reagent test is flawed,

the police lacked probable cause for the search warrant. Id. at 42.8

       Here, Bee has made no showing, other than bald assertions, that the

field test was inaccurate or unreliable. See Trial Court Opinion, 4/11/18, at 4

(noting that Bee “did not introduce any evidence to support his claim that the

test used by the police in this case was inaccurate.”); id. at 4-5 (stating that

the only evidence Bee introduced were “two articles of unknown origin and

authorship,” that were not properly authenticated or established the

unreliability of the “Nacro field test kit” used in this case). Further, Bee does

not show that the averments regarding the field test kit contained in the



____________________________________________


8 We note that Bee’s has not cited to relevant authority to support his
suppression claim that the field test kit was unreliable and could not have
been used to support probable cause. See Pa.R.A.P. 2119(a) (declaring that
the rules require an appellant to provide in the argument section of his or her
brief “such discussion and citation of authorities as are deemed pertinent.”).
Indeed, Pa.R.E. 702 pertains to expert witnesses and the admissibility of
expert testimony at trial. See Pa.R.E. 702. Similarly, Frye pertains to the
admissibility of expert evidence or scientific evidence at trial. See Frye, 293
F. at 1014. While this Court will not develop Bee’s argument or act as his
appellate counsel, see Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa.
Super. 2017), we will briefly address Bee’s second claim.

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Affidavit were false or were made with reckless disregard for the truth. See

James, supra.       To the extent, Bee argues that the field test kit was

inadmissible, we note that probable cause may be supported by inadmissible

evidence. See Commonwealth v. Weaver, 76 A.3d 562, 567-68 (Pa. Super.

2013), aff’d, 105 A.3d 656 (Pa. 2014) (holding that probable cause to arrest

can be supported by the existence of evidence that is inadmissible at trial).

Thus, Bee’s second claim does not entitle him to relief.

      In Bee’s third claim, he challenges the court’s discretion concerning the

appointment of counsel. See Brief for Appellant at 43-47. Bee argues that,

pursuant to Pa.R.Crim.P. 121(D), the trial court was compelled to appoint him

standby counsel. See id. at 43, 45, 46. Bee claims that the trial court did

not advise him of the Standards of Conduct required of a pro se defendant.

See id. at 44-45.

             A criminal defendant has a constitutional right, necessarily
      implied under the Sixth Amendment of the U.S. Constitution, to
      self-representation at trial. However, before a defendant will be
      permitted to proceed pro se, he or she must knowingly,
      voluntarily, and intelligently waive the right to counsel. To ensure
      that a waiver is knowing, voluntary, and intelligent, the trial court
      must conduct a “probing colloquy,” which is a searching and
      formal inquiry as to whether the defendant is aware both of the
      right to counsel and of the significance and consequences of
      waiving that right.

Commonwealth v. Spotz, 18 A.3d 244, 263 (Pa. 2011) (citations omitted).

      Further, “[w]hen the defendant’s waiver of counsel is accepted, standby

counsel may be appointed for the defendant. Standby counsel shall attend

the proceedings and shall be available to the defendant for consultation and

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advice.” Pa.R.Crim.P. 121(D) (emphasis added); see also Commonwealth

v. Spotz, 47 A.3d 63, 82 (Pa. 2012) (stating that “neither the United States

Supreme Court nor our Rules of Criminal Procedure mandate the appointment

of standby counsel[.]”).     While “Rule 121 suggests the advisability of

appointing standby counsel… especially in long or complicated cases,” the trial

court is not required to do so. Spotz, 47 A.3d 63 at 82.

      On September 9, 2015, the trial court judge and Bee engaged in the

following dialogue:

      THE COURT: All right. You want to represent yourself?

      [Bee]: Absolutely.

      THE COURT: And you understand that having a lawyer appointed,
      that lawyer would be able to make legal arguments on your
      behalf?

      [Bee]: I already filed motions. I already did that all myself.

      THE COURT: All right. Well, there’s certain requirements that we
      need to cover. You’re not a lawyer. You’re not trained in the law.
      And what we –

      [Bee]: I know the law enough that I filed motions –

      THE COURT: Can I finish, please?

      [Bee]: Okay.

      THE COURT: The lawyer that would be appointed to you would be
      a lawyer from our conflict list that would have experience in
      criminal defense, who would be a skilled advocate, who would be
      able to make legal arguments and cross-examine on your behalf.
      Those are qualities or skills or training that you don’t have. And
      if you represent yourself, you’re going to have to conduct a trial
      the same as a lawyer would. In other words, the judge is not


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J-S44041-18


     going to take into consideration necessarily that you’re not a
     lawyer. You’ll have to play by the same rules.

     [Bee]: I understand.

     THE COURT: We have Rules of Criminal Procedures and Rules of
     Evidence, and you’ll be held to the same standard as a lawyer
     would in asking questions and making legal arguments. Do you
     understand that?

     [Bee]: Yes. Absolutely.

     THE COURT: And you understand that we’re willing to appoint a
     lawyer off the conflict list for you free of charge; it won’t cost you
     anything?

     [Bee]: Judge, you appointed Ellissa Heinrichs to my –

     THE COURT: I just want to know if that’s –

     [Bee]: No.    No.   No, it’s not acceptable.    I want to represent
     myself.


N.T., 9/9/15, at 8-10.

     On October 27, 2015, the trial court appointed a public defender to

represent Bee.    N.T., 10/27/15, at 17.     However, Bee rejected the public

defender’s representation and adamantly opposed the aid of the public

defender’s office. Id. at 18. At the hearing, the court explained to Bee the

charges that were being brought against him as well as the period of time Bee

could be imprisoned if found guilty of those charges.       Id. at 18-25.     Bee

indicated that he understood the nature of the proceedings, and that he was

able and willing to conduct his own defense. Id. at 25-30.




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      In light of this testimony, the trial court addressed Bee’s third claim as

follows:

      In the instant case the [c]ourt made counsel available to [Bee] on
      at least two separate occasions. [Bee] spoke to at least four
      different attorneys. [Bee] chose, however, to proceed pro se.
      That choice was knowing and voluntary and was based on his
      unalterable belief that only he could properly present his defense.
      The trial was short and uncomplicated. [Bee] demonstrated his
      understanding of the issues and the consequences of waiving his
      right to counsel. Under these circumstances[,] there was no
      reason to appoint standby counsel.

Trial Court Opinion, 4/11/18, at 12 (footnotes omitted).       Considering the

above, we discern no error by the trial court in its decision not to appoint

standby counsel. See id. Thus, Bee’s third claim is without merit.

      In his fourth claim, Bee avers that the court erred by not ordering a

competency evaluation pursuant to Edwards, supra, because he suffers from

a variety of mental disorders.   See Brief for Appellant at 47-48, 49.      Bee

argues that he was denied a fair trial, and he seeks a new trial. See id. at

49-50.

      In Edwards, the United States Supreme Court recognized that, when a

defendant is not mentally competent to conduct his or her own defense, the

United States Constitution permits the judge to require the defendant to be

represented by counsel. Edwards, 553 U.S. at 556; see also Pa.R.Crim.P.

121, cmt. In order to prove that a defendant is not competent to waive his

right to counsel, a defendant must establish that he was either unable to

understand the nature of the proceedings against him or to participate in his


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own defense. Commonwealth v. Starr, 664 A.2d 1326, 1339-40 (Pa. 1995).

A defendant is presumed competent and bears the burden of establishing that

he was unable to understand the nature of the proceedings. Commonwealth

v. Mason, 130 A.3d 601, 655 n.62 (Pa. 2015); Spotz, 47 A.3d at 79.

“Further, an evaluation of a criminal defendant's technical legal knowledge

and courtroom skill is not relevant to an assessment of his knowing and

intelligent exercise of the right to defend himself.” Starr, 664 A.2d at 1337

(citation omitted).

      Here, the court and Bee engaged in the following dialogue:

      THE COURT: Do you suffer from any mental health issues that
      might affect your ability to understand what is being said to you?

      [Bee]: No.

      THE COURT: Do you suffer from any mental health issues that
      might affect your ability to communicate with the jury?

      [Bee]: No.

      THE COURT: Do you suffer from any mental health issues that
      might interfere with your ability to make judgments and
      decisions?

      [Bee]: No.

N.T., 10/27/15, at 28.

      The trial court addressed Bee’s fourth claim as follows:

      [Bee’s] belated averments of mental deficiency are belied by the
      record. [Bee] was given a full colloquy with regard to his decision
      to waive his right to counsel on at least two occasions. This
      [c]ourt specifically inquired as to any potential health issues
      before accepting [Bee’s] waiver of counsel.


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                                      ***

      Given these statements, made under oath, and the fact that [Bee]
      failed by word or deed to indicate that he did not understand the
      proceedings or the significance of his decision to proceed pro se,
      his unsubstantiated claim of mental incompetence is insufficient
      to support a claim for relief.

Trial Court Opinion, 4/11/18, at 13 (footnote omitted). Considering the above,

we discern no error in the trial court’s decision to accept Bee’s request to

proceed pro se. See id. Thus, Bee’s fourth claim is without merit.

      In Bee’s fifth claim, he argues that the evidence presented at trial was

insufficient to support the conviction of possession of cocaine. See Brief for

Appellant at 50.   Bee claims that the Commonwealth did not present any

evidence to establish that the glass pipes found in his bedroom contained

cocaine. See id. at 51. Bee asserts that the residue amount of cocaine found

on his digital scale was insufficient to support the conviction. See id. at 52.

      We apply the following standard of review when considering a challenge

to the sufficiency of the evidence:

      The standard we apply in reviewing the sufficiency of the evidence
      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 fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying the above 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 fact-finder 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

                                      - 18 -
J-S44041-18


      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, 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. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

      The Controlled Substance, Drug, Device and Cosmetic Act provides as

follows, in relevant part:

      (a) The following acts and the causing thereof within the
      Commonwealth are hereby prohibited:

                                       ***

      (16) 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.

35 P.S. § 780-113(a)(16).

      As this matter involves the interpretation of a statutory provision, we

are guided by the principles set forth in the Statutory Construction Act (the

“Act”). See 1 Pa.C.S.A. § 1501 et seq. Section 1921 of the Act specifies that

the object of interpretation and construction of all statutes is to ascertain and

effectuate the intention of the General Assembly. See id. § 1921. However,

statutory interpretation is not without its limits.

      The plain language of the statute is the clearest indication of legislative

intent, and when the words of a statute are clear and free from all ambiguity,


                                      - 19 -
J-S44041-18


the letter of it is not to be disregarded under the pretext of pursuing its spirit.

See id. § 1921(b). “It is only when the words of the statute are not explicit

on the point at issue that resort to statutory construction is appropriate.”

Commonwealth v. Dellisanti, 876 A.2d 366, 369 (Pa. 2005) (citation

omitted).

      When construing statutory language, “words and phrases shall be

construed according to rules of grammar and according to their common and

approved usage….” 1 Pa.C.S.A. § 1903.          A statute must “be construed, if

possible, to give effect to all its provisions,” so that no provision is rendered

mere surplusage.     Id. § 1921(a).      When two such “statutes or parts of

statutes… relate to the same persons or things or to the same class of persons

or things,” they are in pari materia and must be construed together as a single

provision. Id. § 1932(a). “Where the legislature includes specific language

in one section of the statute and excludes it from another, the language should

not be implied where excluded.”       Commonwealth v. Johnson, 125 A.3d

822, 831 (Pa. Super. 2015) (citations omitted).

      We glean from a plain reading of 35 P.S. § 780-113(a)(16) that it does

not require the possession of a specific amount of cocaine in order to sustain

a conviction.   A plain reading of the provision indicates that our General

Assembly has banned the act of knowingly or intentionally possessing cocaine,

in any amount. Without the inclusion of a numerical value that indicates the

minimum amount of cocaine required to sustain a conviction for its possession


                                      - 20 -
J-S44041-18


under 35 P.S. § 780-113(a)(16), it is not in the province of this Court to read

into the statute such a numerical value absent ambiguity or a legislative void.

No such ambiguity or void exists here. Thus, we find that the text of 35 P.S.

§ 780-113(a)(16) indicates the legislature’s intent to prohibit the possession

of any amount of cocaine.

        This finding of the General Assembly’s intent with regard to the plain

language of 35 P.S. § 780-113(a)(16) is consistent with the express statutory

language of other prohibitive provisions under 35 P.S. § 780-101 et seq. For

example, in prohibiting the possession of marijuana, the General Assembly

delineated tiers of culpability based on the amount of marijuana possessed by

an offender.9 Plainly, the General Assembly’s intent in delineating such tiers

was to punish offenders according to the amount of marijuana the offender de

facto possessed.      See 35 P.S. § 780-113(a)(31).      Pointedly, the General

Assembly did not include such a tiered system for the possession of cocaine.

See Johnson, 125 A.3d at 831 (stating, “where a section of a statute contains

a given provision, the omission of such a provision from a similar section is

significant to show a different legislative intent.”).   Indeed, if the General

Assembly wished to criminalize the possession of a “usable,” “weighable,” or

specific amount of cocaine, it would have done so. Thus, constrained by our

rules of statutory construction, we find that a residue amount of cocaine is



____________________________________________


9   The amount of marijuana is weighed in grams.

                                          - 21 -
J-S44041-18


sufficient to sustain a conviction under 35 P.S. § 780-113(a)(16).        See

Commonwealth v. Williams, 565 A.2d 160, 169 (Pa. Super. 1989) (holding

“the Controlled Substance, Drug, Device and Cosmetic Act does not designate

the minimum amount of a controlled substance which must be [possessed] to

constitute grounds for criminal liability[.]”).

      Here, Bee testified that all of the physical evidence seized from his

bedroom at 414 Daylily Drive was his. N.T., 11/10/15, at 15. Officer Gansky

of the Bensalem Police Department testified that police found eight glass tubes

that were used to smoke crack cocaine in Bee’s bedroom. N.T., 11/9/15, at

107-08. Two of the pipes appeared to have been used. Id. Officer Gansky

further testified that a digital scale was found in Bee’s bedroom. Id. at 109.

Joshua Folger of the Bucks County Crime Lab testified that the lab tested the

residue found on the digital scale and determined that a residue amount of

cocaine was present. Id. at 161. Bee’s admission that he possessed all of

the items seized in his bedroom, coupled with the testimony from Joshua

Folger that cocaine residue was present on the digital scale found in his

bedroom, is sufficient to sustain Bee’s conviction for possession of cocaine.

See Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa. Super. 2013)

(stating that “[a]n intent to maintain a conscious dominion may be inferred

from the totality of the circumstances, and circumstantial evidence may be

used to establish a defendant’s possession of drugs or contraband.”) (citation

omitted). Thus, Bee’s fifth claim is without merit.


                                      - 22 -
J-S44041-18


      In his sixth claim, Bee challenges the discretionary aspects of his

sentence. Supplemental Brief for Appellant at 11-15.

      “Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary

sentencing issue,

      [this Court conducts] a four-part analysis to determine: (1)
      whether appellant has filed a timely notice of appeal, see
      Pa.R.A.P. 902 and 903; (2) whether the issue was properly
      preserved at sentencing or in a motion to reconsider and modify
      sentence, see Pa.R.Crim.P. [720]; (3) whether the appellant's
      brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
      is a substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

                                       ***

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. A substantial question
      exists only when the appellant advances a colorable argument
      that the sentencing judge's actions were either: (1) inconsistent
      with a specific provision of the Sentencing Code; or (2) contrary
      to the fundamental norms which underlie the sentencing process.

Moury, 992 A.2d at 170 (quotation marks and some citations omitted).

      Here, Bee filed a timely Notice of appeal, preserved his sentencing

claims in Post-Sentence Motions, and included a Rule 2119(f) Statement in

his brief. Further, Bee’s claim that the trial court miscalculated his prior record




                                      - 23 -
J-S44041-18


score10 by omitting an out-of-state felony conviction raises a substantial

question.    See Commonwealth v. Janda, 14 A.3d 147, 165 (Pa. Super.

2011) (holding that “improper calculation of a prior record score based on out-

of-state offenses raises a substantial question.”). Thus, we will review Bee’s

sentencing claims.

       Our standard of review is as follows:

       Sentencing is a matter vested in the sound discretion of the
       sentencing judge, and a sentence will not be disturbed on appeal
       absent a manifest abuse of discretion. In this context, an abuse
       of discretion is not shown merely by an error in judgment. Rather
       the appellant must establish, by reference to the record, that the
       sentencing court ignored or misapplied the law, exercised its
       judgment for reasons of partiality, prejudice, bias or ill will, or
       arrived at a manifestly unreasonable decision.

Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010)

(citation omitted).

       Bee contends that the trial court abused its discretion in imposing the

excessive sentence where the prior record score considered a prior conviction

of distribution of heroin/cocaine and did not reflect a prior conviction of intent

to distribute less than 50 grams of marijuana.          Supplemental Brief for

Appellant at 16-17, 21-22. Bee also argues that the sentence did not reflect

his lack of serious criminal history, the severity of the crimes, the need to


____________________________________________


10 Bee uses offense gravity score and prior record score interchangeably
throughout his brief. Nevertheless, upon review, Bee is raising a claim
regarding the alleged miscalculation of his prior record score. Moreover, Bee
has not demonstrated that his offense gravity score for any of the convictions
was incorrect.

                                          - 24 -
J-S44041-18


protect the public, his education and work history, and his lack of violent

behavior. Id. at 21

      Our review of the record discloses that Bee’s prior record score properly

reflected Bee’s criminal history.    See Trial Court Opinion, 4/11/18, at 19

(stating that “[Bee] has continued to engage in misdemeanor and felony drug

offenses over the span of more than twenty years despite the repeated

intervention of the criminal justice system[;] sentences within the standard

range of the sentencing guidelines cannot be deemed clearly unreasonable.”);

see also N.T., 3/3/16, at 5-10 (wherein the trial court reviews Bee’s prior

criminal history, including his out-of-state conviction); id. at 39. In fact, Bee’s

previous convictions for Driving Under the Influence (three times) and various

other misdemeanors gave Bee a maximum prior record score of “5.” See 204

Pa. Code § 303.4(a)(3).

      Moreover, the trial court considered Bee’s pre-sentence investigation

report in imposing the sentence. N.T., 3/3/16, at 3-10, 13-14, 15-16; see

also Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010)

(stating that “where the trial court is informed by a pre-sentence report, it is

presumed that the court is aware of all appropriate sentencing factors and

considerations, and that where the court has been so informed, its discretion

should not be disturbed.”) (citation omitted). The trial court also considered

the gravity of the offense in relation to the impact on the community, as well

as Bee’s rehabilitative potential.   N.T., 3/3/16, at 16-25, 43-44; see also


                                      - 25 -
J-S44041-18


Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002) (stating that,

in sentencing, the trial court “is required to consider the particular

circumstances of the offense and the character of the defendant. In particular,

the court should refer to the defendant’s prior criminal record, his age,

personal characteristics, and his potential for rehabilitation.”) (citation

omitted); id. (noting that our law requires a sentencing court “to consider the

prior    criminal   record   to   ascertain    a   defendant’s   amenability   to

rehabilitation[.]”).

        Additionally, the trial court took into account Bee’s recent attainment of

a degree from the Community College of Philadelphia, Bee’s own testimony,

and the testimony of Bee’s mother. N.T., 3/3/16, at 15-20, 26-32, 34, 38,

44.     The trial court also had discretion in imposing the sentences

consecutively. See Moury, 992 A.2d at 171 (holding that the trial court “has

discretion to impose sentences consecutively or concurrently[.]”). Thus, we

discern no abuse of discretion, and cannot grant Bee relief on his sentencing

claims. See Commonwealth v. Andrews, 720 A.2d 764, 768 (Pa. Super.

1998) (rejecting defendant’s argument that the sentencing was focused on his

prior criminal history in imposing the sentence, as a review of the record

demonstrated that the court took a number of factors into consideration).

        In light of the foregoing, Bee’s claims are without merit.

        Judgment of sentence affirmed.




                                      - 26 -
J-S44041-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/18




                          - 27 -
