Com. v. McDermott, V. ( 2016 )

J-S20040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VALERIE MCDERMOTT,
Appellant No. 1470 WDA 2015
Appeal from the Judgment of Sentence July 22, 2015
in the Court of Common Pleas of Beaver County
Criminal Division at No.: CP-04-CR-0000003-2015
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 04, 2016
Appellant, Valerie McDermott, appeals from the judgment of sentence
imposed pursuant to her jury conviction of possession of drug
paraphernalia.1 We affirm.
We take the following facts from the trial court’s September 1, 2015
opinion and our independent review of the certified record. On February 9,
2015, the Commonwealth filed an information against Appellant charging her
with possession of drug paraphernalia and related crimes. The case
proceeded to trial on May 4, 2015. At trial, the Commonwealth presented
the following pertinent evidence.
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*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. 780-113(a)(32).
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Officer Ronald L. Lutton of the Midland Borough Police Department
testified that, on May 29, June 3, and June 6, 2014, the Midland Township
Police Department conducted three controlled buys from Appellant at her
home, 49 Midcrest Homes, with the assistance of their informant, Brian
Ward. On each occasion, Ward would phone Appellant to arrange the
purchase of controlled substances from her in the presence of Officer Lutton,
who heads the department’s drug investigations, and is a fourteen-year
police veteran. Thereafter, at the time set for the drug buy, Officer Lutton
would meet Ward at a remote location, conduct a thorough search of his
person and vehicle, provide him with marked “buy” money, and escort him
to Appellant’s residence. Ward would then enter the home, and return
moments later with the illegal prescription drugs and marijuana, which he
immediately would give to Officer Lutton.
After the June 6, 2014 controlled buy, Officer Lutton obtained and
executed a search warrant for Appellant’s 49 Midcrest Homes residence. At
the time that he executed the search, Appellant’s roommates, Jesse Jackson
and Monica Miller were at the home, but she was not. During the search of
Appellant’s bedroom, Officer Lutton recovered, among other things, two
digital scales, plastic baggies, and a large bag of marijuana. He testified
that, based on his experience and expertise in investigating drug cases,
digital scales like the ones found in Appellant’s bedroom are utilized to weigh
contraband and fix prices.
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On May 6, 2015, the jury convicted Appellant of possession of drug
paraphernalia.2 On July 22, 2015, the court sentenced her to one year of
reporting probation. Appellant filed a post-sentence motion, which the court
denied on September 1, 2015. Appellant timely appealed.3
Appellant raises one issue for this Court’s review: “Whether the
Commonwealth presented sufficient evidence to prove beyond a reasonable
doubt that Appellant possessed both digital scales and plastic baggies as
drug paraphernalia as defined by statute?” (Appellant’s Brief, at 6)
(emphasis and unnecessary capitalization omitted). Specifically, Appellant
argues that the evidence that the plastic baggies were drug paraphernalia
was insufficient where they did not contain a controlled substance; and that
the evidence as to the digital scales was insufficient because the only
“evidence presented by the Commonwealth to suggest that the scales were
possessed with the intent to use them with controlled substances” was the
testimony of Officer Lutton. (Id. at 12). Appellant’s issue lacks merit.
Our standard of review of this matter is well-settled:
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2
The jury found Appellant not guilty of possession with intent to deliver a
controlled substance, 35 P.S. § 780-113(a)(30).
3
Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on October 7, 2015. See
Pa.R.A.P. 1925(b). The court filed a Rule 1925(a) opinion on October 21,
2015, in which it relied on the reasons stated in its September 1, 2015
opinion. See Pa.R.A.P. 1925(a).
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The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
finder of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Giordano, 121 A.3d 998, 1002-03 (Pa. Super. 2015)
(citation omitted).
The Controlled Substance, Drug, Device and Cosmetic Act (the Act)
defines possession of drug paraphernalia, in pertinent part, as “[t]he use of,
or possession with intent to use, drug paraphernalia for the purpose of . . .
packing, repacking, storing, [or] containing . . . a controlled substance in
violation of this [A]ct.” 35 P.S. § 780-113(a)(32). Drug paraphernalia
includes, but is not limited to . . . [s]cales and balances used,
intended for use or designed for use in weighing or measuring
controlled substances[;] . . . [c]apsules, balloons, envelopes and
other containers used, intended for use or designed for use in
packaging small quantities of controlled substances[; and]
[c]ontainers and other objects used, intended for use or
designed for use in storing or concealing controlled substances.
35 P.S. §§ 780-102(5), (9), (10).
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In determining whether an object is drug
paraphernalia, a court or other authority should
consider, in addition to all other logically relevant
factors, statements by an owner or by anyone in
control of the object concerning its use . . . the
proximity of the object, in time and space, to a direct
violation of this act, the proximity of the object to
controlled substances, the existence of any residue
of controlled substances on the object, direct or
circumstantial evidence of the intent of an owner, or
of anyone in control of the object, to deliver it to
persons who he knows, or should reasonably know,
intend to use the object to facilitate a violation of
this [A]ct . . . the existence and scope of legitimate
uses for the object in the community, and expert
testimony concerning its use.
35 P.S. § 780–102(b) []. To sustain a conviction for possession
of drug paraphernalia[,] the Commonwealth must establish
that items possessed by defendant were used or intended
to be used with a controlled substance so as to constitute
drug paraphernalia and this burden may be met by [the]
Commonwealth through circumstantial evidence.
Commonwealth v. Coleman, 984 A.2d 998, 1001 (Pa. Super. 2009) (case
citation and quotation marks omitted) (emphasis added).
Preliminarily, we observe that Appellant’s claim that the evidence was
insufficient to establish that the baggies were drug paraphernalia because
they did not contain any controlled substances fails. (See Appellant’s Brief,
at 12). The Commonwealth only was required to prove that Appellant
possessed the baggies with the intent to use them for controlled
substances, which, as stated above, can be proven through circumstantial
evidence. See Coleman, supra at 1001; see also 35 P.S. §§ 780-
102(b)(5), (9), (10), 780-113(a)(32).
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Additionally, the evidence presented by the Commonwealth supports
Appellant’s conviction. Specifically, our review of the record reveals the
Commonwealth established that Appellant sold illegal prescription narcotics
and marijuana to a police informant, at her home, on three occasions within
the week previous to the execution of the search warrant, (see N.T. Trial,
5/05/15, at 40-47, 100-04, 106-10, 115-17); upon executing the warrant,
police found the plastic baggies, scales, and marijuana in her bedroom, (see
id. at 119-23, 152); and, a fourteen-year police veteran, who leads the drug
investigations section of the arresting police department, testified that,
based on his experience, digital scales like the ones found in Appellant’s
bedroom are used for weighing and pricing controlled substances for sale,
(see id. at 97, 122).
Viewing the foregoing in the light most favorable to the
Commonwealth as verdict winner, we conclude that the jury could
reasonably find that Appellant possessed the scale and the plastic baggies
with the intent of using them with a controlled substance. See Coleman,
supra at 1001; Commonwealth v. Pitner, 928 A.2d 1104, 1108 (Pa.
Super. 2007), appeal denied, 944 A.2d 757 (Pa. 2008) (“Drug paraphernalia
includes bags used to package or store marijuana.”) (citation omitted).
Therefore, the trial court properly found that there was sufficient evidence to
establish that Appellant was guilty of possessing drug paraphernalia. See,
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Giordano, supra at 1002-03; see also 35 P.S. §§ 780-102(b)(5), (9),
(10), 780-113(a)(32).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/2016
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