Com. v. Allen, L.

Opinion

J-S41044-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

LEWIS ALLEN,

Appellant No. 3201 EDA 2015

Appeal from the Judgment of Sentence September 17, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0014063-2014

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 17, 2016

Appellant Lewis Allen appeals from the judgment of sentence entered

in the Court of Common Pleas of Philadelphia County on September 17,

2015, following a bench trial and conviction of Possession of a Controlled

Substance (heroin) and Possession with Intent to Deliver a Controlled

Substance (heroin) (“PWID”). 1 Following a review of the record, we affirm.

The trial court set forth the relevant facts and procedural history

herein as follows:

Officer Ryan Pownall testified that on October 3, 2014, at 8:11 PM, his tour of duty took him to the 4700 block of Marple Street in the city and county of Philadelphia. N.T. 6/30/15 7: 11-13. From his marked vehicle, he observed a white female approach the Appellant. N.T. 6/30/15 9:9-12. After a brief ____________________________________________

1 35 P.S. §§ 780-113(a)(16) and (a)(30), respectively.

*Former Justice specially assigned to the Superior Court. J-S41044-16

conversation, she attempted to hand the Appellant currency and he attempted to take it. N.T. 6/30/15 10:2-3. However, the white female and the Appellant spotted Officer Pownall and retracted their hands. N.T. 6/30/15 10:4-7. Officer Pownall noted that he had approximately seven years of experience as a Philadelphia police officer in the 15 th district and knew the vicinity of the 4700 block of Marple Street to be a high narcotics and high crime area. N.T. 6/30/15 16:6- 19. Based on his experience, and on his observations, he believed that the white female and the Appellant were engaging in a narcotics transaction. N.T. 6/30/15 18:9-10. Accordingly, Officer Pownall exited his car and approached the white female and the Appellant. The Appellant ran away. N.T. 6/30/15 10:13. Officer Pownall chased after the Appellant and yelled at Appellant to stop. N.T. 6/30/15:12-16. After running two blocks, Appellant reached into his right pants pocket and tossed out packets. N.T. 6/30/15 10:22-25. Officer Pownall ran past the packets, tackled, and arrested the Appellant. N.T. 6/30/15 11:5-7. After arresting the Appellant, Officer Pownall walked back six or seven feet to where the Appellant tossed the packets. N.T. 6/30/15 12:20-22. There, he recovered fourteen clear baggies with blue inserts. N.T. 6/30/15 16:2. These baggies were later confirmed to be packets of heroin. N.T. 6/30/15 29:11-13. Officer Pownall also recovered $457.00 from the Appellant’s person. N.T. 6/30/15 12:25-13:4. Despite the efforts of Officer Pownall and his partner, they were unable to locate the white female. N.T. 6/30/15 15:4-9. At the conclusion of the bench trial, the Court found the Appellant guilty of [PWID] and Intentional Possession of a Controlled Substance. On September 17, 2015, this Court sentenced Appellant to 2 ½ to 5 years of incarceration, to be followed by 5 years of reporting probation to be supervised by the state. On October 16, 2015, Appellant filed a Notice of Appeal to the Superior Court. On December 28, 2015, Appellant submitted a Statement of Matters Complained of on Appeal.

Trial Court Opinion, filed 2/5/16, at 1-2.

In his brief, Appellant presents the following Statement of Question

Involved:

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Was the evidence insufficient to support the charge of possession with intent to deliver because the evidence failed to establish that Appellant intended to deliver drugs as the evidence showed simply that Appellant was observed appearing to accept currency and without more there was no evidence presented indicating that the packets he possessed were possessed for purposes of distributing them?

Brief for Appellant at 3.2

The well-settled standard of review this Court applies to sufficiency of

the evidence claims requires us to consider:

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 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. Brooks, 7 A.3d 852, 856-57 (Pa.Super. 2010)

(citations omitted).

The Crimes Code defines PWID as follows: ____________________________________________

2 Appellant does not challenge his Possession of a Controlled Substance conviction.

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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 a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.

35 P.S. § 780-113(a).

To obtain a conviction for possession of narcotics with the intent to

deliver, the Commonwealth must prove beyond a reasonable doubt both that

the defendant possessed a controlled substance and that did so with the

intent to deliver the same. Commonwealth v. Aguado, 760 A.2d 1181,

1185 (Pa.Super. 2000) (en banc). All the facts and circumstances

surrounding possession are relevant in determining whether one possessed

contraband with an intent to deliver it, and the Commonwealth may

establish the essential elements of the crime wholly by circumstantial

evidence. Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa.Super. 2008),

appeal denied, 964 A.2d 894 (Pa. 2009); Commonwealth v. Bricker, 882

A.2d 1008, 1015 (Pa.Super. 2005).

In addition, our Supreme Court has explained that where the quantity

of the controlled substance is not dispositive as to one’s intent to deliver it, a

court may look to other factors, including:

the manner in which the controlled substance was packaged, the behavior of the defendant, the presence of drug paraphernalia, and [large] sums of cash found in possession of the defendant. The final factor to be considered is expert testimony. Expert opinion testimony is admissible concerning whether the facts surrounding the possession of controlled substances are

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consistent with an intent to deliver rather than with an intent to possess it for personal use.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1237–38 (Pa. 2007) (citation

and quotation marks omitted).

Instructive herein is this Court’s analysis set forth in In re Evans, 717

A.2d 542 (Pa.Super. 1998). Therein, police observed Evans, a juvenile, and

two other men standing on a street in a high crime area. Id. at 543. When

Evans noticed the officers, he appeared startled and quickly turned away

while holding the waistband of his pants. Id. After the officers exited their

vehicle, Evans threw an object to the ground. Id. Police recovered the

object, a clear plastic bag containing nine, individually wrapped pieces of

crack cocaine and weighing a total of 1.03 grams. Id. at 543–44.

Thereafter, the trial court adjudicated Evans delinquent, and he appealed

challenging, inter alia, the sufficiency of the evidence to support his

adjudication of delinquency for PWID. Id. at 544. This Court affirmed and in

doing so found it had been reasonable for the trial court to infer Evans’

intent to deliver as he had been detained in a high crime area in possession

of nine individually wrapped packets of crack cocaine and did not possess

paraphernalia for personal use. Id. at 546.

Herein, Appellant does not dispute that he possessed fourteen,

individually wrapped packets of heroin but rather maintains the evidence

was insufficient to prove he possessed the requisite intent to deliver the

drugs. Appellant asserts there was no testimony he ever exchanged the

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contraband with the unidentified woman and that the “de minimus” amount

of heroin he carried was consistent with an amount a user typically would

possess and use in a day or two. Brief for Appellant at 8, 10, 13-15.3 Yet,

while Appellant points out that the Commonwealth presented no evidence

that Officer Pownall knew Appellant to be a drug dealer, he also stresses no

evidence was offered that he used drugs. Id. at 17.

Appellant further argues his behavior does not support his conviction,

states no drug paraphernalia was found on his person, and reasons that it is

debatable whether the $457.00 he possessed qualifies as a large sum of

money. Id. at 15-17. He also notes the drugs were not bundled together.

Brief for Appellant at 8. Finally, Appellant contends the lack of any expert

testimony to establish Appellant possessed the heroin with an intent to

deliver it factors heavily in his favor. Id. at 17-18.

Appellant essentially suggests this Court should view the record in the

light most favorable to him and posits that the verdict was based on

circumstantial evidence so weak that it cannot support a PWID conviction.

In doing so, Appellant disregards this Court’s standard of review. See

Brooks, 7 A.3d at 856. Applying that standard and after viewing the

evidence in the light most favorable to the Commonwealth as the verdict

winner, together with all reasonable inferences therefrom, we conclude the ____________________________________________

3 The record does not reveal the total gram weight of the heroin or what amount was contained in each individual packet.

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Commonwealth presented sufficient evidence to support Appellant’s PWID

conviction.

As in In re Evans, supra, Appellant’s behavior observed by Officer

Pownall suggested an intent to deliver. At trial, Officer Pownall testified the

notoriously high-crime area in which he encountered Appellant and the

unidentified woman at night was known for drug activity. N.T., 6/30/15, at

16-17, 22. When the pair observed Officer Pownall, who was dressed in full

uniform, the woman withdrew the handful of money she was about to give

Appellant and, along with Appellant, fled. Officer Pownall pursued Appellant

and watched him discard the fourteen individually packaged portions of

heroin after he pulled them from his right pants pocket. Id. at 10-11.

When conducting a search pursuant to Appellant’s arrest, Officer

Pownall discovered Appellant had a considerably large amount of cash,

$457.00, on his person, although he did not recover any drug-use

paraphernalia. Id. at 13. While Appellant argues the lack of drug

paraphernalia weighs in his favor, this absence has been viewed as

suggesting the opposite. See Commonwealth v. Ratsamy, 934 A.2d

1233, 1238 (Pa. 2007) (stating “possession with intent to deliver can be

inferred from the quantity of the drugs possessed and other surrounding

circumstances, such as lack of paraphernalia for consumption”); see also

Commonwealth v. Torres, 617 A.2d 812, 814 (Pa.Super. 1992) (absence

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of paraphernalia for consumption of cocaine provides inference of intent to

deliver).

Furthermore, Officer Pownall testified each heroin packet was of the

same size, shape and color and packaged in a clear baggie with a blue insert

N.T., 6/30/15 at 27. Although Appellant finds support in the fact the

individual packages were not bundled together, to the contrary, “it is

reasonable to infer that the individual wrappings facilitated their

distribution.” In re Evans, 717 A.2d at 546. In addition, upon seeing

police, Appellant attempted to run away. Appellant’s flight and that of the

unidentified woman, who never was found, may be deemed as indicative of

his consciousness of guilt. Commonwealth v. Hudson, 955 A.2d 1031

(Pa.Super. 2008).

Moreover, contrary to Appellant’s claims, expert testimony is not

necessary to support a conviction when the facts established at trial proved

beyond a reasonable doubt that defendant was guilty of each and every

element of the crime charged. See Commonwealth v. Harper, 611 A.2d

1211, 1217 (Pa.Super. 1992) (sufficiency question is determined by the

evidence on the record, not supposed “missing” evidence). In light of the

foregoing, expert testimony was unnecessary in the instant matter because

the Commonwealth presented sufficient evidence to establish appellant's

guilt beyond a reasonable doubt through the eyewitness testimony of Officer

Pownall.

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Based on the foregoing, there was sufficient evidence presented at

trial for the trial court to convict Appellant of PWID (heroin). As such,

Appellant’s claim lacks merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/17/2016

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