J-S62002-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
KEITH BROWN,
Appellant No. 455 EDA 2013
Appeal from the Judgment of Sentence entered January 15, 2013, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0008751-2012
BEFORE: ALLEN, OLSON, and OTT, JJ.
MEMORANDUM BY ALLEN, J.: FILED SEPTEMBER 26, 2014
imposed after the trial court convicted him of possession with intent to
deliver a controlled substance and intentional possession of a controlled
substance.1 We affirm.
The trial court summarized the relevant facts as follows:
On July 5, 2012 at approximately 4:55 p.m., Officer Daniel Adams was conducting surveillance for illegal narcotics at 1102 West Somerville Avenue in Philadelphia, Pennsylvania. At approximately 5:15 p.m., Officer Adams witnessed a male identified as Quentin Thompson hand [Appellant] an unknown amount of United States Currency in exchange for unknown small objects [Appellant] took out of a clear bag from his left- hand pocket. At approximately 5:25 p.m., Officer Adams witnessed a male identified as Larry Goodman approach [Appellant] on a bicycle. [Appellant] descended down the stairs ____________________________________________
1 35 P.S. §§780-113(a)(30) and (16) respectively. J-S62002-14
in front of 1102 West Somerville Avenue to meet the male. [Appellant] accepted an unknown quantity of United States Currency in exchange for unknown objects taken out of a clear plastic bag from his left-hand pocket.
After the second transaction, [Appellant] walked away from 1102 West Somerville Avenue. Officer Tyrick Armstead proceeded to arrest [Appellant] in the middle of the street at 5200 Tenth Street, approximately one and a half to two blocks away from 1102 West Somerville [Avenue]. At the time of the arrest, [Appellant] had thirty four ($34.00) dollars on his person. Nothing else was recovered from [Appellant].
Officer Deirdre Still recovered one clear Ziploc bag containing white chunks weighing 106 milligrams that tested positive for cocaine base from Mr. Thompson. Officer Still also recovered one clear Ziploc bag containing white chunks weighing 130 milligrams that also tested positive for cocaine base from Mr. Goodman.
Trial Court Opinion, 4/2/14, at 1-2 (citations to notes of testimony omitted).
The Commonwealth charged Appellant with possession with intent to
deliver a controlled substance and intentional possession of a controlled
substance. The trial court convened a bench trial on January 15, 2013, after
which the trial court rendered its guilty verdicts and sentenced Appellant to
eighteen (18) months of probation on the possession with intent to deliver a
controlled substance charge, with no further penalty on the intentional
possession of a controlled substance charge. See N.T., 1/15/13, at 72-73.
Appellant did not file a post-sentence motion. On February 4, 2012, he filed
a timely notice of appeal. Both Appellant and the trial court have complied
with Pa.R.A.P. 1925.
Appellant raises a single issue on appeal:
-2- J-S62002-14
Was not the evidence insufficient as a matter of law to with the intent to deliver and knowing and intentional possession of a controlled substance where there were no drugs founds on appellant or in the area he occupied and all that was recovered from appellant was $34?
The essence of
f
Id. at 10, 18. Appellant further asserts
Id. at 13.
We initially note that to the extent Appellant challenges the trial
inferences and credibility determinations, such challenge goes to the
weight of the evidence. Commonwealth v. Wilson, 825 A.2d 710, 713-
714 (Pa. Super. 2003) (a review of the sufficiency of the evidence does not
include an assessment of the credibility of testimony, such claim goes to the
weight of the evidence). Because Appellant has not raised a weight claim
before either the trial court or this Court, it is waived. Pa.R.Crim.P. 607(A);
Pa.R.A.P. 1925(b). However, even had Appellant preserved a weight claim,
-3- J-S62002-14
such claim would be meritless in this case because this Court cannot
substitute its judgment for the trial court as the finder of fact.
Commonwealth v. Holley, 945 A.2d 241, 246 (Pa. Super. 2008).
To the extent Appellant raises a sufficiency claim, we must view the
evidence, together with all reasonable inferences therefrom, in a light most
favorable to the Commonwealth as the verdict winner. Commonwealth v.
Weston, 749 A.2d 458, 461 (Pa. 2000). If the fact finder in this case the
trial court could have reasonably determined from the evidence that the
necessary elements of the crimes were established, then the evidence is
sufficient to support the convictions. Id. Upon review, we find that the trial
court was presented with sufficient evidence from which it could find that the
reasonable doubt.
To find a defendant guilty of possession with the intent to deliver, 35
P.S. § 780-113(a)(30), the Commonwealth must prove that the defendant
possessed a controlled substance and did so with the intent to deliver it.
Commonwealth v. Conaway, 791 A.2d 359, 362 (Pa. Super. 2002). The
intent to deliver may be inferred from an examination of the facts and
circumstances surrounding the case. Id. at 362-363.
To sustain a conviction for intentional possession of a controlled
substance, 35 P.S. § 780-113(a)(16), the Commonwealth must prove that
the defendant knowingly and intentionally possessed the controlled
-4- J-S62002-14
substance. Commonwealth v. Valette, 613 A.2d 548, 549-550 (Pa.
1992).
The record reveals the following: Philadelphia Police Officer Daniel
Adams tes
n amount of
-hand
pocket and removed a clear bag, removed small objects from that bag and
Id. at 13-14, 21, 24. Officer Adams
testified that approximately ten minutes later, at 5:25 p.m., Larry Goodman
Id. at 15. Officer Adams, again from 20 feet away, observed Appellant
objects from
Id.
Philadelphia Police Officer Dierdre Still testified to working on July 5,
Id. at
30-31. Officer Still testified to appre
Goodman. Id. at 33.
Philadelphia Police Officer Tyrick Armstead testified to working
plainclothes narcotic surveillance on July 5, 2012, and being given
information to stop Appellant. Id. at 41-42. Officer Armstead testified to
-5- J-S62002-14
42.
Philadelphia Police Officer Mark Robinson testified to being part of an
Quentin Thompson and recover[ing] from his right front pants pocket one
Id. at 47. Officer
Thompson. Id. at 51.
Counsel stipulated that 106 milligrams of cocaine were recovered from
Mr. Thompson and 130 milligrams of cocaine were recovered from Mr.
Goodman. Id. at 52-54.
Appellant did not present any witnesses in his defense.
Based on the testimony presented by the Commonwealth, the trial
court reached its guilty verdicts and offered the following rationale:
Free access — add to your briefcase to read the full text and ask questions with AI
J-S62002-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
KEITH BROWN,
Appellant No. 455 EDA 2013
Appeal from the Judgment of Sentence entered January 15, 2013, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0008751-2012
BEFORE: ALLEN, OLSON, and OTT, JJ.
MEMORANDUM BY ALLEN, J.: FILED SEPTEMBER 26, 2014
imposed after the trial court convicted him of possession with intent to
deliver a controlled substance and intentional possession of a controlled
substance.1 We affirm.
The trial court summarized the relevant facts as follows:
On July 5, 2012 at approximately 4:55 p.m., Officer Daniel Adams was conducting surveillance for illegal narcotics at 1102 West Somerville Avenue in Philadelphia, Pennsylvania. At approximately 5:15 p.m., Officer Adams witnessed a male identified as Quentin Thompson hand [Appellant] an unknown amount of United States Currency in exchange for unknown small objects [Appellant] took out of a clear bag from his left- hand pocket. At approximately 5:25 p.m., Officer Adams witnessed a male identified as Larry Goodman approach [Appellant] on a bicycle. [Appellant] descended down the stairs ____________________________________________
1 35 P.S. §§780-113(a)(30) and (16) respectively. J-S62002-14
in front of 1102 West Somerville Avenue to meet the male. [Appellant] accepted an unknown quantity of United States Currency in exchange for unknown objects taken out of a clear plastic bag from his left-hand pocket.
After the second transaction, [Appellant] walked away from 1102 West Somerville Avenue. Officer Tyrick Armstead proceeded to arrest [Appellant] in the middle of the street at 5200 Tenth Street, approximately one and a half to two blocks away from 1102 West Somerville [Avenue]. At the time of the arrest, [Appellant] had thirty four ($34.00) dollars on his person. Nothing else was recovered from [Appellant].
Officer Deirdre Still recovered one clear Ziploc bag containing white chunks weighing 106 milligrams that tested positive for cocaine base from Mr. Thompson. Officer Still also recovered one clear Ziploc bag containing white chunks weighing 130 milligrams that also tested positive for cocaine base from Mr. Goodman.
Trial Court Opinion, 4/2/14, at 1-2 (citations to notes of testimony omitted).
The Commonwealth charged Appellant with possession with intent to
deliver a controlled substance and intentional possession of a controlled
substance. The trial court convened a bench trial on January 15, 2013, after
which the trial court rendered its guilty verdicts and sentenced Appellant to
eighteen (18) months of probation on the possession with intent to deliver a
controlled substance charge, with no further penalty on the intentional
possession of a controlled substance charge. See N.T., 1/15/13, at 72-73.
Appellant did not file a post-sentence motion. On February 4, 2012, he filed
a timely notice of appeal. Both Appellant and the trial court have complied
with Pa.R.A.P. 1925.
Appellant raises a single issue on appeal:
-2- J-S62002-14
Was not the evidence insufficient as a matter of law to with the intent to deliver and knowing and intentional possession of a controlled substance where there were no drugs founds on appellant or in the area he occupied and all that was recovered from appellant was $34?
The essence of
f
Id. at 10, 18. Appellant further asserts
Id. at 13.
We initially note that to the extent Appellant challenges the trial
inferences and credibility determinations, such challenge goes to the
weight of the evidence. Commonwealth v. Wilson, 825 A.2d 710, 713-
714 (Pa. Super. 2003) (a review of the sufficiency of the evidence does not
include an assessment of the credibility of testimony, such claim goes to the
weight of the evidence). Because Appellant has not raised a weight claim
before either the trial court or this Court, it is waived. Pa.R.Crim.P. 607(A);
Pa.R.A.P. 1925(b). However, even had Appellant preserved a weight claim,
-3- J-S62002-14
such claim would be meritless in this case because this Court cannot
substitute its judgment for the trial court as the finder of fact.
Commonwealth v. Holley, 945 A.2d 241, 246 (Pa. Super. 2008).
To the extent Appellant raises a sufficiency claim, we must view the
evidence, together with all reasonable inferences therefrom, in a light most
favorable to the Commonwealth as the verdict winner. Commonwealth v.
Weston, 749 A.2d 458, 461 (Pa. 2000). If the fact finder in this case the
trial court could have reasonably determined from the evidence that the
necessary elements of the crimes were established, then the evidence is
sufficient to support the convictions. Id. Upon review, we find that the trial
court was presented with sufficient evidence from which it could find that the
reasonable doubt.
To find a defendant guilty of possession with the intent to deliver, 35
P.S. § 780-113(a)(30), the Commonwealth must prove that the defendant
possessed a controlled substance and did so with the intent to deliver it.
Commonwealth v. Conaway, 791 A.2d 359, 362 (Pa. Super. 2002). The
intent to deliver may be inferred from an examination of the facts and
circumstances surrounding the case. Id. at 362-363.
To sustain a conviction for intentional possession of a controlled
substance, 35 P.S. § 780-113(a)(16), the Commonwealth must prove that
the defendant knowingly and intentionally possessed the controlled
-4- J-S62002-14
substance. Commonwealth v. Valette, 613 A.2d 548, 549-550 (Pa.
1992).
The record reveals the following: Philadelphia Police Officer Daniel
Adams tes
n amount of
-hand
pocket and removed a clear bag, removed small objects from that bag and
Id. at 13-14, 21, 24. Officer Adams
testified that approximately ten minutes later, at 5:25 p.m., Larry Goodman
Id. at 15. Officer Adams, again from 20 feet away, observed Appellant
objects from
Id.
Philadelphia Police Officer Dierdre Still testified to working on July 5,
Id. at
30-31. Officer Still testified to appre
Goodman. Id. at 33.
Philadelphia Police Officer Tyrick Armstead testified to working
plainclothes narcotic surveillance on July 5, 2012, and being given
information to stop Appellant. Id. at 41-42. Officer Armstead testified to
-5- J-S62002-14
42.
Philadelphia Police Officer Mark Robinson testified to being part of an
Quentin Thompson and recover[ing] from his right front pants pocket one
Id. at 47. Officer
Thompson. Id. at 51.
Counsel stipulated that 106 milligrams of cocaine were recovered from
Mr. Thompson and 130 milligrams of cocaine were recovered from Mr.
Goodman. Id. at 52-54.
Appellant did not present any witnesses in his defense.
Based on the testimony presented by the Commonwealth, the trial
court reached its guilty verdicts and offered the following rationale:
[The trial] court considers the observations made by the narcotics surveillance team to be direct evidence of guilt. [Appellant] was observed by the specialized team making two hand-to-hand transactions, which resulted in [Appellant] accepting unknown quantities of United States Currency. In addition, the same type of drug with the same packaging was recovered from both of the buyers observed by the surveillance team. The two transactions coupled with the similar packaging of the crack cocaine obtained from the buyers established [Appell combination of this evidence links [Appellant] to the crime beyond a reasonable doubt.
Although no drugs were recovered from [Appellant], it is reasonable to believe that [Appellant] exhausted his supplies
-6- J-S62002-14
after the second transaction. The officers that arrested [Appellant], Mr. Thompson, and Mr. Goodman were able to keep close observation of all three individuals during the transaction. leaves no reasonable doubt that Mr. Thompson and Mr. Goodman purchased the crack cocaine from [Appellant]. Viewing the totality of the evidence, the [trial c]ourt concluded that [Appellant] had constructive possession of the crack cocaine that he sold to Mr. Thompson and Mr. Goodman.
Trial Court Opinion, 4/2/14, at 4.
Pennsylvania statutory and case law, as well as the evidence of record. We
cy claim and affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/26/2014
-7-