Com. v. Sanders, F. ( 2017 )

J-A14037-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FREDERICK SANDERS,
Appellant No. 3517 EDA 2015
Appeal from the Judgment of Sentence October 21, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001071-2015
BEFORE: BENDER, P.J.E., BOWES and SHOGAN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 18, 2017
Appellant, Frederick Sanders, appeals from the judgment of sentence
entered following his convictions of simple possession of a controlled
substance and possession of a controlled substance with intent to deliver.1
We affirm.
The trial court summarized the underlying facts of this case as follows:
Officer Don Vandermay [of the Philadelphia Police
Department] testified at trial that during his tour of duty on
January 16, 2015, at approximately 5:45 p.m., he was patrolling
the area of 500 East Cambria Street, in full uniform and in an
unmarked patrol car. While he was driving, he observed
[Appellant] and an unidentified black male walking eastbound on
Cambria St. He saw the arm of the unidentified male extended
in front of him and holding an unknown amount of United States
currency. At this point Officer Vandermay heard yelling from
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1
35 P.S. §§ 780-113(a)(16) and (30).
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behind the patrol vehicle and observed [Appellant] discard a
black object. Officer Vandermay testified that he was about 15
feet from [Appellant] when he dropped the object. The
unidentified male was not stopped. Officer Vandermay and his
partner Officer Walsh exited the patrol vehicle. Officer Walsh
stopped [Appellant] while Officer Vandermay went to look for the
discarded object. The officer recovered a black key holder
containing a bundle of 10 packets of heroin. While waiting with
[Appellant] for his partner to complete the necessary paperwork,
Officer Vandermay saw an unidentified white male approach the
police vehicle and say “Yo, Black, do you have anything left?”
The unidentified male quickly turned away and left the area.
Trial Court Opinion, 5/13/16, at 1-2.
Appellant was charged with simple possession of a controlled
substance and possession with intent to deliver. On July 29, 2015, at the
conclusion of a nonjury trial, Appellant was convicted of both crimes.
Appellant filed a post-trial motion for extraordinary relief on October 20,
2015, which the trial court denied on October 21, 2015. Also on October 21,
2015, the trial court sentenced Appellant to serve a term of incarceration of
two to four years, to be followed by five years of probation for the conviction
of possession with intent to deliver. No further penalty was imposed for the
conviction of simple possession. Appellant filed a timely post-sentence
motion for reconsideration of sentence, which the trial court denied on
November 10, 2015. This timely appeal followed. Both Appellant and the
trial court have complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Was not the evidence insufficient to sustain [A]ppellant’s
conviction for possession with the intent to deliver a controlled
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substance, insofar as there was insufficient evidence that there
was any intent to deliver?
2. Did not the trial court err in admitting inadmissible hearsay
evidence from the Commonwealth at [A]ppellant’s trial?
Appellant’s Brief at 4.
Appellant first argues that the Commonwealth failed to present
sufficient evidence to support his conviction of possession with intent to
deliver. Appellant’s Brief at 9-16. Essentially, Appellant contends the
Commonwealth failed to establish that Appellant intended to deliver the
heroin. Appellant alleges that the evidence against him was circumstantial
and speculative.
We analyze arguments challenging the sufficiency of the evidence
under the following parameters:
Our standard when reviewing the sufficiency of the
evidence is whether the evidence at trial, and all reasonable
inferences derived therefrom, when viewed in the light most
favorable to the Commonwealth as verdict-winner, are sufficient
to establish all elements of the offense beyond a reasonable
doubt. We may not weigh the evidence or substitute our
judgment for that of the fact-finder. Additionally, the evidence
at trial need not preclude every possibility of innocence, and the
fact-finder is free to resolve any doubts regarding a defendant’s
guilt 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. When evaluating the credibility and
weight of the evidence, the fact-finder is free to believe all, part
or none of the evidence. For purposes of our review under these
principles, we must review the entire record and consider all of
the evidence introduced.
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Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)
(quoting Commonwealth v. Emler, 903 A.2d 1273, 1276-1277 (Pa. Super.
2006)).
In order to uphold a conviction for possession of narcotics with the
intent to deliver pursuant to 35 P.S. § 780-113(a)(30), the Commonwealth
must prove beyond a reasonable doubt that the defendant possessed a
controlled substance and did so with the intent to deliver it.
Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000) (en
banc). The intent to deliver may be inferred from an examination of the
facts and circumstances surrounding the case. Commonwealth v.
Conaway, 791 A.2d 359, 362-363 (Pa. Super. 2002). Factors that may be
relevant in establishing that 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. Aguado, 760 A.2d at 1185. Moreover, we have
held that circumstantial evidence is reviewed by the same standard as direct
evidence - that is, that a decision by the trial court will be affirmed “so long
as the combination of the evidence links the accused to the crime beyond a
reasonable doubt.” Commonwealth v. Johnson, 818 A.2d 514, 516 (Pa.
Super. 2003) (citations omitted).
In addressing Appellant’s challenge to the sufficiency of the evidence
to sustain the guilty verdict, the trial court offered the following analysis:
Officer Vandermay saw an unidentified male walking with
[Appellant]. The unidentified male had money in his extended
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hand. Upon hearing a shout from an unknown and unseen
individual, the two men separated and [Appellant] discarded a
black object. Officer Vandermay observed the abandonment of
the object from approximately 10-15 feet. He then immediately
found and recovered a key holder containing heroin in the same
area where [Appellant] had discarded his object. These fact[s]
and circumstances were sufficient to establish an aborted sale
and that [Appellant] was the seller. The unidentified male was
extending the money outward, a signal that he was giving
money, not receiving it. The fact that the heroin was secreted in
a key holder also suggests that the heroin had yet to be sold and
therefore [Appellant] was the seller. There is nothing in this
scenario to suggest that [Appellant] was a buyer. Indeed, no
paraphernalia was recovered from him. Therefore, the evidence
was sufficient to establish possession with the intent to deliver
beyond a reasonable doubt.
Trial Court Opinion, 5/13/16, at 3.
Upon thorough review of the certified record, we agree that the
circumstantial evidence was sufficient for the trial court, sitting as the finder
of fact, to conclude beyond a reasonable doubt that Appellant possessed a
controlled substance with the intent to deliver. Accordingly, the evidence is
sufficient to prove that Appellant committed the crime of possession with
intent to deliver. Therefore, Appellant’s contrary argument lacks merit.
Appellant next argues that the trial court erred in admitting
inadmissible hearsay evidence at trial. Appellant’s Brief at 16-20. Appellant
asserts that the statement: “Yo Black, do you have anything left?,” made by
an unidentified person, while Appellant was under arrest, constituted
inadmissible hearsay that should not have been admitted and was not
harmless error.
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It is well settled that “[t]he admission of evidence is within the sound
discretion of the trial court, and will be reversed on appeal only upon a
showing that the trial court clearly abused its discretion.” Commonwealth
v. Miles, 846 A.2d 132, 136 (Pa. Super. 2004) (en banc) (citing
Commonwealth v. Lilliock, 740 A.2d 237 (Pa. Super. 1999)). Abuse of
discretion requires a finding of misapplication of the law, a failure to apply
the law, or judgment by the trial court that exhibits bias, ill-will, prejudice,
partiality, or was manifestly unreasonable, as reflected by the record.
Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009).
Hearsay has been defined as a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted. Pa.R.E. 801(c). Commonwealth v.
Smith, 586 A.2d 957, 963 (Pa. Super. 1991). Hearsay testimony is not
admissible in this Commonwealth, except as provided in the Pennsylvania
Rules of Evidence, by other rules prescribed by the Pennsylvania Supreme
Court, or by statute. Pa.R.E. 802. “The rationale for the hearsay rule is that
hearsay is too untrustworthy to be considered by the trier of fact.”
Commonwealth v. Bean, 677 A.2d 842, 844 (Pa. Super. 1996).
Assuming, for the sake of argument, that the unidentified person’s
statement was improperly admitted hearsay evidence, we conclude that
Appellant is not entitled to relief. We have often stated that “where a
criminal case proceeds before a judge sitting without a jury, there is a
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presumption that his knowledge, experience and training will enable him to
disregard inadmissible evidence and other improper elements.”
Commonwealth v. Lambert, 765 A.2d 306, 362 (Pa. Super. 2000). See
also Commonwealth v. Miller, 627 A.2d 741, 749 (Pa. Super. 1993)
(stating that “when the court is sitting as fact-finder, it is presumed that
inadmissible evidence is disregarded and that only relevant and competent
evidence is considered”).
Our independent review of the record reflects that Appellant waived
his right to a jury trial and chose to be tried by the Honorable Abbe F.
Fletman. Thus, we are to presume that the trial judge considered only
competent and relevant evidence presented and disregarded any
inadmissible evidence presented by the Commonwealth. Furthermore, this
conclusion is supported by the written statement of the trial judge. In her
opinion authored pursuant to Pa.R.A.P. 1925(a), Judge Fletman addressed
Appellant’s contention that she improperly considered the statement from
the unknown individual. The trial court discounted Appellant’s allegations
with the following thorough discussion:
[Appellant] argues that the trial court abused its discretion
by failing to exclude the hearsay testimony by Officer
Vandermay. Review of a trial court’s evidentiary ruling is limited
to clear abuse of discretion. Com. v. King, 959 A.2d 405, 411
(Pa. Super. 2008). “Abuse of discretion is not merely an error of
judgment, but rather where the judgment is manifestly
unreasonable or where the law is not applied or where the record
shows that the action is a result of partiality, prejudice, bias or ill
will.” Id. (citing Com. v. Hunzer, 868 A.2d 498 (Pa. Super.
2005)).
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The statements by the unknown male constitute hearsay
and there is no applicable exception. The court’s admission of
this statement, however, constitutes harmless error. “Harmless
error exists where ... the error did not prejudice the defendant
or the prejudice was de minimis ....” Com. v. Robinson, 721
A.2d 344, 350 (Pa. 1999). Defense counsel failed to object until
Officer Vandermay already had uttered the entire statement. At
this point, the fact-finder, in this case the Court, had already
heard the statement. The statement was also of little value
and had no bearing on the outcome of the case. “[J]urists
are human and therefore subject to the failings of human nature.
However, their training and experience in assessing the
competency and the relevance of proffered evidence equips
them to be more critical and judicious in their evaluation.” Com.
v. Harvey, 526 A.2d 330, 333 (Pa. 1987). In this case, the
fact-finder would have to make the inference that this
unknown individual walked up to [Appellant], and a
uniformed police officer, and inquired as to whether
[Appellant] had any drugs left because he was a known
drug dealer. While a jury may be willing to make this
logical leap, the Court did not. The Court based its finding
entirely on Officer Vandermay’s observations of
[Appellant], the unidentified male, and the physical
evidence recovered. Therefore, the prejudice to [Appellant]
was de minimis and the Court’s admission of the statement
constituted harmless error.
Trial Court Opinion, 5/13/16, at 5-6 (emphases added). Therefore,
Appellant’s assertion that the evidence was improperly considered by the
trial court lacks merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2017
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