Com. v. Poteat, T.

• Court: Superior Court of Pennsylvania
• Decided: August 7, 2014
• Docket: 1702 WDA 2013
• Status: Unpublished

Opinion

J-S27036-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

TERRANCE POTEAT

Appellant No. 1702 WDA 2013

Appeal from the Judgment of Sentence entered August 20, 2013 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0001997-2012

BEFORE: GANTMAN, P.J. , ALLEN, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED AUGUST 07, 2014

Appellant, Terrance Poteat, appeals from the August 20, 2013

judgment of sentence imposing three to six years of incarceration for

possession with intent to de

possession of a controlled substance, delivery of a controlled substance, and

possession of drug paraphernalia.1 We affirm.

which are not in dispute:

On July 19, 2012, a confidential informant met with Fayette County Drug Task Force Detectives Norman Howard and Troy Rice. The detectives were working with the informant to ____________________________________________

1 35 P.S. § 780-113(a)(16) (Possession), (30) (Delivery and PWID), and (32) (Paraphernalia). The trial court imposed three to six years of incarceration for PWID and no further penalty on the remaining convictions. J-S27036-14

informant indicated to the detectives that he could purchase heroin from [Appellant]. He contacted [Appellant] via phone to

for one hundred twenty (120) dollars. After a thorough search of the inf

sight as he drove to meet [Appellant].

When the informant approached [Appellant], [Appellant] placed two garbage bags into the informant backseat and the other in the trunk. The informant drove [Appellant] to another residence, and [Appellant] entered the residence where he was inside for several minutes. Upon exiting the residence, [Appellant] reentered the inform where the drug exchange occurred. Giving their agreed upon signal, the informant tapped the roof of his vehicle with his hand, and the detectives notified standby police officers to stop the vehicle.

Once the vehicle was stopped, the detectives approached and asked the informant to exit the vehicle and place his hands on it with his legs spread. [Appellant] was also approached. At that time, a Terry[2] frisk was conducted, and Detective Howard found three (3) bundles of heroin in [Appella but no money. He was then placed into custody. The informant was also subjected to a Terry frisk, and one (1) bundle of heroin was recovered from his person. The one hundred twenty (120) dollars was not found on him. He was placed under fake arrest in order to avoid exposing him as a confidential informant. The detectives proceeded to search the vehicle and found some personal items belonging to [Appellant] in the trash bags but no additional drugs, money, or paraphernalia.

[Appellant] was then transported to the Uniontown City Police Station where he was read his Miranda[3] warnings before being interviewed by the detectives. He waived his Miranda ____________________________________________

2 Terry v. Ohio, 392 U.S. 1 (1968). 3 Miranda v. Arizona, 384 U.S. 436 (1966).

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stuff not knowing if it was real or not. So I kept it until I had

house it [sic] another. And I kept it until I was able to see if was

[Appellant] was charged with Delivery, [PWID], Possession, and Possession of Drug Paraphernalia. A jury trial was held on August 8-9, 2013, and [Appellant] was convicted on all counts.

Trial Court Opinion, 12/18/13, at 2-3.

Appellant raises two issues in this timely appeal:

1. The Commonwealth failed to prove beyond a reasonable doubt that [Appellant] possessed the controlled substance with intent to deliver them [sic] to another party.

2. The Commonwealth failed to prove beyond a reasonable doubt that [Appellant] delivered the controlled substance to another party.

evidence. We conduct our review as follows:

The standard of review for a challenge to the sufficiency of the evidence is to determine whether, when viewed in a light most favorable to the verdict winner, the evidence at trial and all reasonable inferences therefrom is sufficient for the trier of fact to find that each element of the crimes charged is established beyond a reasonable doubt. The Commonwealth may sustain its burden of proving every element beyond a reasonable doubt by means of wholly circumstantial evidence.

The facts and circumstances established by the Commonwealth need not preclude every possibility of innocence.

the fact-finder. As an appellate court, we do not assess credibility nor do we assign weight to any of the testimony of record. Therefore, we will not disturb the verdict unless the evidence is so weak and inconclusive that as a matter of law no

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probability of fact may be drawn from the combined circumstances.

Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014)

(citations and quotation marks omitted). As sufficiency of the evidence

presents a question of law, our standard of review is de novo and our scope

of review is plenary. Commonwealth v. Staton, 38 A.3d 785, 789 (Pa.

2012).

Appellant asserts the evidence is insufficient because the

Commonwealth produced no direct evidence in support of his PWID and

convictions were based on mere conjecture or surmise. Id. at 8. This is so,

according to Appellant, because neither of the testifying detectives saw the

actual transaction take place, and because they did not recover the pre-

recorded buy money. Id. at 9-10.

can rest entirely

on circumstantial evidence. Vogelsong, 90 A.3d at 719. In addition, the

detectives observed the confidential informant call Appellant to arrange the

deal and travel to meet Appellant to conduct the deal, which was for one

bundle of heroin. When the informant signaled to the detectives that the

transaction was complete, police arrested both men and found one bundle of

transaction. In summary, the record contains overwhelming evidence of

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relief.

was contrary to the weight of the evidence.4 -9.

Appellant included this issue in a timely post-sentence motion in accordance

with Pa.R.Crim.P. 607.5

as it is under his sufficiency of the evidence argument the detectives did not

observe the actual transaction and did not recover the buy money from

Appellant. Our conclusion, likewise, remains the same under a weight of the

____________________________________________

4 The applicable standard of review is as follows:

A verdict is not contrary to the weight of the evidence because of a conflict in testimony or because the reviewing court on the same facts might have arrived at a different conclusion than the factfinder. Rather, a new trial is warranted only when to the evidence that it shocks

so that right may be given another opportunity to prevail. Where, as here, the judge who presided at trial ruled on the weight claim below, an appellate court the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003) (citations and quotation marks omitted), cert. denied, 541 U.S. 1045 (2004). In his brief, Appellant appears to blur the distinction between challenges to weight and sufficiency of the evidence. 5 We disapprove of of questions involved, in violation of Pa.R.A.P. 2116(a).

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otion for a

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/7/2014

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