Commonwealth v. Lee

956 A.2d 1024, 2008 Pa. Super. 205, 2008 Pa. Super. LEXIS 2459
Superior Court of Pennsylvania·Decided September 4, 2008·Published·Cited by 99 cases

Opinion

OPINION BY

PANELLA, J.:

¶ 1 Appellant, Lawrence Lee, appeals from the judgment of sentence entered on June 14, 2005, by the Honorable Rose Marie DeFino-Nastasi, Court of Common Pleas of Philadelphia County. After careful review, we affirm.

¶ 2 On May 15, 2002, at approximately 1:50 p.m., Philadelphia Police Officer Timothy Riley was conducting surveillance when he observed Lee engage in two separate hand-to-hand transactions during which individuals approached Lee and engaged in conversation. Lee then accepted money from the individuals and proceeded across the street to a vacant lot, whereupon he returned and handed small objects to the individuals. When Officer James Reilly confronted the first buyer, he recovered a pink-tinted Ziploc packet containing a small quantity of crack cocaine.

¶ 3 After the second transaction,1 police proceeded to place Lee under arrest. A search incident to arrest revealed $40.00 on Lee’s person. Additionally, police recovered 49 pink-tinted Ziploc packets containing crack cocaine from a stash hidden in the western wall of the vacant lot across the street from where Lee was observed selling drugs to the two buyers. The packets recovered from the vacant lot were identical to the packet recovered from the first buyer.

¶4 Following a waiver trial, Lee was convicted of one count each of possession of a controlled substance2 and possession with intent to deliver a controlled substance.3 Prior to sentencing, Lee filed a motion pursuant to Commonwealth v. Carroll, 438 Pa.Super. 55, 651 A.2d 171 (1994), appeal denied, 541 Pa. 649, 664 A.2d 539 (1995), which the trial court denied by order dated June 14, 2008.4 Thereafter, [1027] the trial court sentenced Lee to no less than three nor more than six years imprisonment, pursuant to the mandatory minimum sentencing provisions set forth in 18 Pa. CoNS. StatAnn. § 7508.

¶ 5 Thereafter, Lee did not pursue a direct appeal. However, on March 4, 2005, Lee filed a petition for post-conviction relief (“PCRA”),5 after which, on July 11, 2006, the PCRA court reinstated his appellate rights nunc pro tunc. This timely appeal followed.

¶ 6 Lee raises the following issues for our review:

A. WHETHER THE APPELLANT IS ENTITLED TO AN ARREST OF JUDGMENT ON THE CHARGE OF POSSESSION WITH INTENT TO DELIVER WHERE THE COMMONWEALTH FAILED TO PROVE EACH ELEMENT OF THE CRIME BEYOND A REASONABLE DOUBT — SPECIFICALLY, WHERE THE COMMONWEALTH FAILED TO ESTABLISH INTENT TO DELIVER?
B. WHETHER THE LEARNED TRIAL COURT ERRED BY DENYING THE APPELLANT’S CARROLL MOTION — SPECIFICALLY, BECAUSE THE FACTS INTRODUCED DURING THE MOTION ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT THE APPELLANT WAS A HEAVY DRUG USER, THERE WAS NO SEPARATION OF DRUGS AS TO WHAT WOULD BE FOR PERSONAL USE OR DISTRIBUTION, AND AN EXPERT TESTIFIED THAT THE APPELLANT HAD THE NECESSARY DRUG HABIT THAT COULD BRING THE DRUGS FOUND BENEATH THE TWO-GRAM MANDATORY MINIMUM?

Appellant’s Brief, at 5.

¶ 7 Lee challenges the sufficiency of the evidence to sustain his conviction for PWID. In evaluating a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Little, 879 A.2d 293, 296-297 (Pa.Super.2005), appeal denied, 890 A.2d 1057, 586 Pa. 724 (2005). This standard of deference is not altered in cases involving a bench trial, because “the province of a trial judge sitting without a jury is to do what a jury is required to do.” Commonwealth v. Lambert, 765 A.2d 306, 362 (Pa.Super.2000) (quotation omitted). “This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Swerdlow, 431 Pa.Super. 453, 636 A.2d 1173, 1176 (1994) (quotation omitted). Unless the evidence presented at trial is “so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances,” the verdict should not be disturbed on appeal. Commonwealth v. [1028] Davis, 799 A.2d 860, 866 (Pa.Super.2002) (quotation omitted).

¶ 8 When reviewing a challenge to the sufficiency of the evidence with regards to a PWID conviction, we are mindful that

[t]he Commonwealth must prove both the possession of the controlled substance and the intent to deliver the controlled substance. It is well settled that all the facts and circumstances surrounding possession are relevant in making a determination of whether contraband was possessed with intent to deliver.
In Pennsylvania, the intent to deliver may be inferred from possession of a large quantity of controlled substance. It follows that possession of a small amount of a controlled substance supports the conclusion that there is an absence of intent to deliver.
Notably, “if, when considering only the quantity of a controlled substance, it is not clear whether the substance is being used for personal consumption or distribution, it then becomes necessary to analyze other factors.”

Commonwealth v. Brown, 904 A.2d 925, 931-932 (Pa.Super.2006) (citations omitted), appeal denied, 591 Pa. 710, 919 A.2d 954 (2007).

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Commonwealth v. Lee, 956 A.2d 1024, 2008 Pa. Super. 205, 2008 Pa. Super. LEXIS 2459 (Pa. Ct. App. 2008).

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