Com. v. Peterson, O. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/16/19
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0021_Opinion
Circulated 12/27/2018 04:11 PM
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)
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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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