Com. v. Peterson, O.

• Court: Superior Court of Pennsylvania
• Decided: January 16, 2019
• Docket: 1054 EDA 2017
• Status: Unpublished

Opinion

J-A25042-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF : IN THE SUPERIOR PENNSYLVANIA : COURT OF : PENNSYLVANIA : v. : : : OMAR L. PETERSON, : : Appellant. No. 1054 EDA 2017

Appeal from the Judgment of Sentence, March 15, 2017, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0003487-2016.

BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 16, 2019

Omar Peterson appeals from the judgment of sentence, after a trial

judge convicted him of various drug-distribution offenses and imposed an

aggregate sentence of three to six years in prison, followed by five years’

probation. This appeal raises one issue, challenging the sufficiency of the

Commonwealth’s evidence. See Peterson’s Brief at 7. Specifically,

Peterson is arguing that the evidence is insufficient for a factfinder to infer

that he intended to possess heroin for distribution, rather than for only

personal use. See id. at 12-16. We affirm.

When considering a challenge to the sufficiency of the evidence, we

look for whether the Commonwealth has placed into the record proof of

each element of the crimes charged. This presents a mixed question of

fact and law. Because a crime’s elements raise a legal question, our J-A25042-18

standard of review is de novo, but our scope of review, given the fact

finder’s role in determining credibility, is curtailed. See Commonwealth

v. Hughes, 908 A.2d 924, 927 (Pa. Super. 2006). We may determine

only if the trial court or jury’s factual findings find support in the record

and if the legal conclusions are correct; we may consider the

Commonwealth’s evidence and all favorable inferences arising from it,

and only so much of the defendant’s evidence that remains

uncontradicted. See id.

After reviewing the record, the parties’ briefs, the trial court’s

opinion, and the controlling law, we conclude that the 1925(a) Opinion

has cogently addressed the issue that Peterson raises on appeal. See

Trail Court 1925(a) Opinion (properly relying upon the Commonwealth’s

expert on drug distribution, who concluded that Peterson possessed

heroin for distribution due to the quantity of heroin found, the manner

and location in which it was stored, the unopened packages, and the racks

of heroin; also, rightly holding that a person who is using heroin typically

has drug paraphernalia located close by). Thus, further discussion from

this Court is unneeded.

Accordingly, we adopt Judge Vincent N. Melchiorre’s well-reasoned

1925(a) Opinion as our own. In the event of future proceedings, the

litigants shall attach a copy of Judge Melchiorre’s Opinion to any filings.

Judgment of sentence affirmed. -2- J-A25042-18

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/16/19

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IN THE COURT OF C O M M O N PLEAS FIRST JUDICIAL DISTRICT OF P E N N S Y L V A N I A CRIMINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANIA CP-S 1-CR-0003487-2016

VS. SUPERIOR COURT OMAR PETERSON NO. 10S4 EDA 2017

i CP-51-CR-OCJOJ487-2016Com Opinion m. v Peterson. Omar l FILED OPINION DEC 2 O 2017

III I IIIII II/II/II IIIII/I -- . 8045561471 Appeals/Post Trial Office of Judicial Records

MELCHIORRE, .J. DECEMBER 20, 2017

I. PROCEDURAL HISTORY

On March 24, 2016, the Defendant, Omar Peterson, was arrested and was charged with

inter alia Possession of a Controlled Substance with the Intent to Deliver.,1 Possession of a

Controlled Substance by a Person Not Registered,2 and Possession of Marijuana3 for events that

occurred at or near the 700 block of North 65th Street in the City and County of Philadelphia.

The Defendant filed a motion to suppress physical evidence which was heard and denied

on September 8, 2016. On November 23, 2016, following a wavier trial, the Defendant was found

____________________________________________

1 35 Pa.C.S.A. § 780-113(a)(30) 2 35 Pa.C.S.A. § 780-113(16) 3 35 Pa.C.S.A. § 780-113(a)(31) J-A25042-18

guilty of all charges. Sentencing was deferred pending a presentence investigation and mental

health examination. On March 15, 2017, the Defendant was sentenced to a term of three (3) to six

(6) years of incarceration followed by five (5) years of probation on the conviction for possession

of a controlled substance with intent to deliver. No further penalty was imposed on the remaining

convictions. Defendant filed a notice of appeal to the Superior Court. Following the receipt of the

notes of testimony, and the appointment of new counsel, a Statement of Matters Complained of on

Appeal pursuant to Pa. R.A.P. Rule 1925 (h) was ordered. A 1925(b) Statement was Filed on

September 21, 2017.

II. FACTS

At the suppression hearing, Officer Vincent Palmer testified that, on March 23, 2016, he

and two (2) other officers, Officer Ondarza and Officer Preston (first names not given), were

working as back-up officers to a narcotics surveillance set up at another nearby location. They

were in plain clothes, in an unmarked police vehicle, parked on the 700 block of North 65th Street.

As they waited, Officer Palmer’s attention was drawn to the 2004 blue Acura that pulled up directly

behind their vehicle. The only person in the car (later identified as the Defendant) exited and

looked up and down the street before going to the front of the Acura and lifting the hood. As he

looked up and down the street again, Officer Palmer noticed a white package on the driver’s side

ledge under the hood. The Defendant removed the package, shut the hood, got back into the car

and drove northbound on the 700 block of 56th Street. (N.T. 9/8/16. pp. 8-14).

Suspecting that the white package was heroin and not wanting to alert the Defendant to

their presence, Officer Palmer watched the Defendant turn left onto the 6500 block of Lansdowne

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Avenue before following him. As soon as he made the turn, Officer Palmer observed the

Defendant park the car and exit the vehicle with his cell phone in his hand. Officer Palmer had

not activated lights and sirens before Officer Ondarza exited from the passenger side of their

vehicle and engaged in conversation with the Defendant. Officer Palmer didn’t see the white

package in the Defendant’s hands, so he walked over to the Acura and looked into the driver’s side

window; he observed, in plain view, the white package (opened at the top) and a rubber band

bundle (a heroin rubber banded bundle) sitting on the front seat. Officer Palmer observed four (4)

individual packets (clear Ziploc packets with a blue glassine insert), all stamped with “walking

dead.” There were also two (2) jars of marijuana, one with a blue top and a second jar with an

orange top. The white package contained five (5) rubber banded bundles: each bundle contained

fourteen (14) individual packets of heroin for a total of seventy (70) packets. Marijuana was

recovered, as well as $145.00 in United States currency. (N.T. 9/8/16, pp. 15-20).

The Defendant testified, and he denied that the drugs were on the front seat in the Acura;

he stated they were in the center console which was closed. (N.T., 9/8/16, p. 45). The motion to

suppress was denied. (N.T. 9/8/16. p. 67). The matter proceeded to trial and, after a stipulation as

to Police Officer Joseph McCook's expertise in narcotics, the Commonwealth called Officer

McCook as an expert in the field of narcotics; specifically, the way narcotics are packaged,

delivered, and managed in Philadelphia. Defense counsel objected as there was no written report

pursuant to Rule 373 13(1)(e). The court bifurcated the trial to give Officer McCook the

opportunity to submit a written report. (N.T. 9/8/16. pp. 73-80).

On November 22. 2016, trial resumed. Since the last hearing, Officer McCook suffered a

brain aneurysm and was unable to be present. The Defendant stipulated to the expertise of his

replacement, Police Officer Kevin Keys. (N.T., 11/22/16, pp. 5-6). According to Officer Keys,

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based on his experience and training in the field of narcotics, and to a reasonable degree of

certainty, the narcotics recovered from the Defendant at the time of his arrest were for distribution

and not personal use. (N.T. 11/22/16. pp. 11-14. 17. 21-22. 33. 36-43).

Following argument, the Defendant was convicted of all charges. A pre-sentence report

and mental health report were ordered. On March 5, 2017, the Defendant was sentenced to a term

of three (3) to six (6) years of incarceration, followed by five (5) years of probation on the

possession with intent to deliver charge. No further penalty was imposed on the remaining

convictions. Anthony Petrone, Esquire, represented the Defendant at trial.

Post-sentence motions were not tiled. On March 21, 2016, the Defendant filed a timely

notice of appeal pursuant to Pa. R.A.P. § 1925(h). After receiving the notes of testimony and the

appointment of new counsel, a Statement of Matters Complained of on Appeal, pursuant to Pa.

R.A.P. Rule 1925 (h), was Ordered; that statement was filed on September 21, 2017.

III. ISSUE ON APPEAL

The Defendant raises the following issue on appeal.

The evidence was insufficient to support the guilty verdict for possession of a controlled

substance with intent to distribute (PWID), as there was no large amount of money in

denominations indicating drug trafficking, and the Commonwealth’s narcotics expert failed to

establish that the heroin was possessed by appellant under circumstances indicative of anything

more than mere possession, and where there was an overall lack of evidence proving, beyond a

reasonable doubt, that the packets of heroin were possessed for distribution.

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IV. DISCUSSION

The Defendant argues that there was insufficient evidence to establish, beyond reasonable

doubt, the crime of possession with intent to distribute. Specifically, the Defendant argues that he

did not have a large amount of money in denominations that would indicate drug trafficking, that

the Commonwealth’s narcotics expert failed to establish that the heroin was possessed by

Defendant under circumstances indicative of anything more than mere possession, and there was

an overall lack of evidence proving, beyond a reasonable doubt, that the packets of heroin were

possessed for distribution.

A challenge to the sufficiency of the evidence is based upon whether the evidence and all

reasonable inferences arising therefrom, viewed in the light most favorable to the Commonwealth

as verdict winner, is sufficient to establish all the elements of the offense(s) beyond reasonable

doubt. Commonwealth v. Walter. 600 Pa. 392, 966 A.2d 560 (2009); Commonwealth v. Bracey,

541 Pa. 322, 330, 662 A.2d 1062, 1065 (1995). The credibility of witnesses and the weight to be

accorded the evidence produced are matters within the province of the trier of fact. The fact-finder

is free to believe all, some or none of the evidence. Commonwealth v. Baker. 24 A.3d 1006, 2011

PA Super 131 (2011); Commonwealth v. Walker, 540 Pa. 80, 656 A.2d 90 (1995); Commonwealth

v. Nelson, 320 Pa. Super. 488, 467 A.2d 638 (1983); Commonwealth v. Cody, 401 Pa. Super. 85,

584 A2d 992 (1991); appeal denied 527 Pa. 622, 592 A.2d 42. The court finds the Defendant’s

claim to be meritless. There was sufficient evidence to convince the court beyond reasonable

doubt that the Defendant, Omar Peterson, was guilty of committing the aforementioned criminal

acts.

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To sustain a conviction under The Controlled Substance, Drug, Device, and Cosmetic Act,

the Commonwealth must prove under subsection 30 that the defendant manufactured, delivered,

or possessed, with intent to manufacture, deliver, or possess, a controlled substance. 35 Pa. C.S.A.

§ 780-113(a)(30). See also Commonwealth v. Conaway, 791 A.2d 359, 362 (Pa.Super.2002). In

determining whether there is sufficient evidence to support a PWID conviction, all facts and

circumstances surrounding the possession are relevant, and the Commonwealth may establish the

essential elements of the crime wholly by circumstantial evidence. Commonwealth v. Drummond,

775 A.2d 849, 853-54 (Pa.Super.2001). Factors to consider in determining whether the drugs were

possessed with the intent to deliver include the particular method of packaging, the form of the

drug, and the behavior of the defendant. Commonwealth v. Kirkland, 831 A.2d 607, 610

(Pa.Super.2003).

Since the drugs were not found on the Defendant’s person, the Commonwealth was

required to establish that he constructively possessed the heroin and marijuana. Constructive

possession requires proof of the ability to exercise conscious dominion over the substance, the

power to control the contraband, and the intent to exercise such control. Commonwealth v.

Petteway, 847 A.2d 713, 716 (Pa.Super.2004). Constructive possession may be established by the

totality of the circumstances. Commonwealth v. Parker, 847 A.2d 745, 750 (Pa.Super.2004). The

Superior Court has held that circumstantial evidence is reviewed by the same standard as direct

evidence. A decision by the trial court will be affirmed “so long as the combination of the evidence

links the accused to the crime beyond reasonable doubt.” Commonwealth v. Johnson, 818 A.2d

514, 516 (Pa.Super.2003).

In the instant case, Officer Palmer observed the Defendant pull up behind his parked car

and remove a white package from the driver’s side ledge under the hood of the car he was driving.

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Once he removed the package, he got back into the car and drove to Lansdowne Avenue where he

parked and exited the vehicle without the package. Officer Ondarza got out of Officer Palmer’s

vehicle and engaged in a conversation with the Defendant. Meanwhile, Officer Palmer walked

over to the Defendant’s vehicle and observed, in plain view, the white package, which was only

opened a little at the top and a rubber band bundle (a heroin rubber banded bundle). Officer Palmer

observed four (4) individual packets all stamped with “walking dead,” as well as two (2) jars of

marijuana. The white package contained five (5) rubber handed bundles: each bundle contained

fourteen (14) individual packets for a total of seventy-four (74) packets (70 packets in the white

package and 4 loose packets). (N.T. 9/8/16. pp. 8-20). The evidence presented was sufficient to

convict Defendant of possession of a controlled substance with the intent to deliver.

The second part of Defendant’s argument, that the Commonwealth’s narcotics expert failed

to establish that the heroin was possessed by Defendant under circumstances indicative of anything

more than mere possession, must also fail.

Contrary to Defendant's argument. Officer Keys did establish that the Defendant was doing

more than merely possessing the heroin found in the Acura. Officer Keys testified that based on

his training and experience, users of heroin do not purchase half racks of heroin, they do not store

their heroin under the hood of a car, nor do they purchase a package of heroin and leave it unopened

(only the top of the white package was ripped open) as Officer Palmer found it on the front seat of

the car. Officer Keys opined that “one of the biggest concerns about users of drugs is their concern

about being beat for their money and so it would be urgent for a user to hurry up and find out what

he has, in this particular case, it [the white package] was still only ripped at the top and was not

ripped throughout the rest.” (N.T.. 11/22/16, pp. 12-13). According to Officer Keys, these actions

are associated with a distributor, not a user. Furthermore, Officer Keys stated that racks of heroin

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are usually associated with a distributor, because only they know what’s inside. (N.T 11/22/16, p.

13).

Officer Keys also testified that based on the amount of heroin, along with his experience

with heroin users, if the individual is a serious user, they generally are shooting the drug up. That

most people start off snorting the drugs, or in some situations, smoking the drug; but after a month,

two months, the individual generally begins to go to a syringe of some sort, and there was no

indication that any syringes or anything used for snorting heroin. (N.T.. 11/22/16. p. 13).

Additionally, Officer Keys stated that throughout the city, heroin is consistently $10.00 a

packet. Here, there was an additional four (4) packets for a total of 74 individual packets, for a

total amount of 1.648 grams, or $740.00, which Officer Keys stated was a considerable amount of

heroin for a user. (N.T., 11/22/16, p. 14).

IV. CONCLUSION

In summary, this court has carefully reviewed the entire record and finds no harmful,

prejudicial, or reversible error, and nothing to justify the granting of Defendant’s request for relief

in this case. For the reasons set forth above, Defendant’s judgment of sentence should be affirmed.

BY THE COURT:

___/s/______________________ VINCENT N. MELCHIORRE, J.

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