Com. v. Green, G. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
GEORGE NATHANIEL GREEN, : No. 441 MDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, April 12, 2013,
in the Court of Common Pleas of Dauphin County
Criminal Division at No. CP-22-CR-0003983-2012
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 23, 2015
Appellant, George Nathaniel Green, appeals his judgment of sentence
entered April 12, 2013, in the Court of Common Pleas of Dauphin County.
Following a jury trial, appellant was convicted of one count of unlawful
delivery of a controlled substance and one count of unlawful possession of
drug paraphernalia.1 Appellant challenges the sufficiency of the evidence on
the above convictions. We affirm.
The factual history has been summarized by the trial court as follows:
At trial, the Commonwealth presented the
testimony of Detective Donald Heffner
(“Det. Heffner”) and Officer Kelly English
(“Officer English”) of the Harrisburg Bureau of Police
(“HB”). The following facts were established: on
* Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30) and § 780-113(a)(32), respectively.
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July 27, 2012, Det. Heffner was on duty in plain
clothes and driving an unmarked police vehicle;
more specifically a black Ford Escape. (Notes of
Testimony, Trial, Apr. 10, 2013 -- Apr. 12, 2013 at
37-41).[Footnote 4] At approximately 10:30 a.m.,
Det. Heffner had been travelling south on
Sixth Street in Harrisburg City when he saw an
individual later identified as Defendant,
George Green (“Appellant” or “Green”), walking with
two other males in the area of [sic] H&J’s bar located
at Sixth and Schuykill Streets. (N.T. at 43-46).
Based on his professional experience, Det. Heffner
described the neighborhood as an area known for
high crime and high drug activity. (N.T. at 47).
[Footnote 4] Hereinafter “N.T.”
After seeing Appellant, Det. Heffner turned left
onto Schuykill Street and left onto Turner Alley and
proceeded through a vacant lot near where Appellant
was walking towards a nearby store. (N.T. at 47).
Det. Heffner stated that, without his prompting,
Appellant motioned to him to back up into the lot,
which he did. (N.T. at 47; 107-108). After he
parked the vehicle, Appellant approached the
vehicle, greeted the Detective who said “you got any
good?” to which Appellant responded “yes.” (N.T. at
49). Det. Heffner explained that “good” is street
slang for crack cocaine. (Id.) At that point in time,
Appellant entered the vehicle, sat in the front
passenger seat and began a conversation about
buying the illegal drugs. (N.T. 49-50). Det. Heffner
told him that he had $30 to buy the drugs.
Appellant then to [sic] opened the zipper on his
pants and pulled out a plastic bag containing several
smaller black baggies, moved the larger bag to his
feet and came up with three small bags of cocaine.
(N.T. at 49-52; 89; 100-101). Det. Heffner handed
the $30 to Appellant which consisted of a $20 bill
and a $10 bill. He had previously recorded the serial
numbers in a notebook he routinely keeps when
working undercover. (N.T. at 52-55).
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Det. Heffner was able to easily observe
Appellant during the transaction as the vehicle is not
large and, due to the bucket seats in the front,
Green was sitting within 1½ feet from his seat.
(N.T. at 50-51). Heffner described Appellant as a
light skinned black male in his 20s, wearing a white
T-shirt, blue jeans, a blue baseball cap with red on
it, and facial hair. (N.T. at 52). He also noted that
appellant was smoking a long cigar with a yellow tip
and a very pungent odor. (N.T. at 52-53).
Detective Heffner was close enough to Appellant to
observe a tattoo on his left forearm which he
described as a “1,” a “C” and an “O or 0,” each with
a space in between them. (N.T. at 51). He also saw
a tattoo on his left neck that he described as writing
down the side, but he could not see what the writing
said. (N.T. at 51-52). Detective Heffner was able to
positively identify the tattoos described when
presented with photographic evidence of them during
trial. (N.T. at 62-64).
When the transaction was completed,
Appellant exited the car and Det. Heffner observed
him in his rearview mirror heading south on
Turner Alley. (N.T. at 53; 74). Det. Heffner then
drove to Sixth and Curtain to perform a field test on
the substance he had purchased and it tested
presumptively positive for cocaine. (N.T. at 57-58).
Subsequent laboratory testing by the Pennsylvania
State Police (“PSP”) confirmed that the purchase
made by Det. Heffner was, indeed, crack cocaine.
(N.T. at 70-72).
Since Detective Heffner was on patrol alone,
he followed proper protocol by radioing
Corporal Gautsch (“Cpl. Gautsch”), who he had seen
while driving in the area of the crime scene. The
purpose of the contact was to assemble a team to
conduct a search and possibly make an arrest. (N.T.
at 57-58; 60-61). Over the radio and during a
cellphone conversation, he provided Cpl. Gautsch
with a physical description of the suspected dealer
and information on the tattoos. Heffner relayed his
belief that Appellant was headed back towards Sixth
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and Schuykill Streets. (N.T. at 58-60; 75-81).
Cpl. Gautsch, Det. Heffner and two uniformed
officers, Officer English and Officer Minnier,
proceeded to the location of Sixth and Schuykill in
the area of H&J’s bar. Upon arrival Officer English
radioed that he had seen an individual matching the
suspect’s description standing outside H&J’s. (N.T.
at 75; 81-82).
Upon entering H&J’s bar, Det. Heffner spotted
Appellant smoking a cigar and playing pool with a tall
male dressed in all black. (N.T. at 86-87). The
other individual saw police and went into the
bathroom. (Id.) Det. Heffner immediately
recognized Appellant as the individual who had sold
him the packages of crack cocaine. He recognized
the clothing, the hat, the cigar with the yellow tip
and its odor, and he identified the tattoos on
Appellant’s neck and arm. (N.T. at 87-88).
Appellant was immediately arrested, taken into
custody and searched incident to arrest. (N.T. at 88-
89).
Approximately 10 minutes elapsed from the
time when Det. Heffner conducted the transaction
with Appellant in the car and the time of the arrest.
During the intervening timeframe, Appellant was out
of the police’s visual contact. (N.T. at 84-85). The
search incident to arrest resulted in the recovery of
$24, none of which was the “buy” money used by
Det. Heffner, and a cellphone. (N.T. 89; 92).
Additionally, a police search of the bar and bathroom
as well as his cellphone failed to uncover any other
evidence, including the “buy” money or more drugs.
(N.T. at 92-93; 123-124).
Officer English stated that on the date of the
incident he had been summoned by Cpl. Gautsch to
respond to the area of Sixth and Schuykill Streets to
investigate a drug transaction. (N.T. at 133). He
was provided a physical description of the suspected
drug dealer and arrived at that location in under one
minute. (N.T. at 134-135). The description
provided was that of a light-skinned black male, with
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facial hair who was wearing a white shirt, blue jeans
and a blue hat. (N.T. at 134). Officer English
parked the right side of his K9 unit at the curb facing
west on Schuykill Street with the bar on his left.
(N.T. at 135-137). He was the first marked police
unit on the scene and he immediately saw a person
walking into the bar that matched the description
Heffner had provided. (N.T. at 137-138). While he
secured the perimeter, he did not see anybody leave
the bar between the time of his arrival and the time
Appellant was arrested. (N.T. at 138-139).
Trial court opinion, 6/6/14 at 3-6.
A jury trial was held on April 10, 2013 through April 12, 2013.
Appellant was convicted of one count of unlawful delivery of a controlled
substance and one count of unlawful possession of drug paraphernalia, and
he was sentenced to an aggregate term of imprisonment of 24 months to
60 months. Neither post-sentence motions nor a notice of appeal were filed
after sentencing. Subsequently, on November 20, 2013, appellant filed a
timely pro se petition pursuant to the Post Conviction Relief Act (“PCRA”).2
PCRA counsel was appointed on December 12, 2013. Upon review of
appellant’s claims, PCRA counsel concluded that appellant had been
rendered ineffective assistance of counsel as, despite appellant’s request to
do so, counsel failed to perfect an appeal of his judgment of sentence. On
January 31, 2014, PCRA counsel filed a motion to reinstate appellate rights
under the PCRA. The trial court issued an order directing the
Commonwealth to respond to appellant’s motion. The Commonwealth
2
42 Pa.C.S.A. §§ 9541-9546.
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timely complied and informed the court it had no objection to appellant’s
direct appeal rights being reinstated nunc pro tunc. On February 25, 2014,
the trial court granted appellant’s motion and provided him 30 days to file a
notice of appeal.
On March 10, 2014, appellant filed a timely notice of appeal.
Appellant was ordered to file a statement of errors complained of on appeal
and he timely complied. The trial court filed its Rule 1925(a) opinion on
June 6, 2014. Appellant presents one issue for our consideration: “Whether
the evidence presented at trial was insufficient to convict Appellant of the
crime of Unlawful Delivery of a Controlled Substance and Possession of Drug
Paraphernalia[?]” (Appellant’s brief at 7.)
In reviewing a sufficiency challenge, we apply the following
well-settled principles:
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.
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Moreover, in applying the above test, the entire
record must be considered. Finally, the trier 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. Brown, 23 A.3d 559-560 (Pa.Super. 2011) (en banc),
quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805 (Pa.Super.
2008).
Appellant argues that other than the testimony of Detective Heffner,
there was no supporting evidence. (Appellant’s brief at 10.) More
specifically, appellant contends upon his arrest, he did not have any drugs
on his person or the $30 that Detective Heffner testified he paid him. (Id.
at 11.) Our role, as stated previously, is to view the evidence in a light most
favorable to the verdict winner, drawing all reasonable inferences in its
favor, to determine if the finder-of-fact could reasonably have concluded
that all the elements of the crime were established beyond a reasonable
doubt. Commonwealth v. Ferino, 640 A.2d 934, 937 (Pa.Super. 1994),
affirmed, 655 A.2d 506 (Pa. 1995).
Here, the evidence indicated appellant was arrested approximately
ten minutes after the drug transaction. Detective Heffner (“Heffner”) had
personal knowledge of the transaction since it was he who gave appellant
$30 for three small bags of crack cocaine. According to Heffner, he
witnessed appellant take a bag out of the zipper area in his pants and
retrieve three smaller bags. The substance in the bags tested positive for
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crack cocaine. Additionally, Heffner was able to get a clear view of appellant
as appellant sat less than 1½ feet across from him in his vehicle. Heffner
observed two tattoos, one of which he was able to decipher the characters
“as a ‘1,’ a ‘C’, and an ‘O’ or ‘0,’ each with a space in between.” At trial,
appellant displayed his right forearm and the left side of his neck for the jury
to see the tattoos, which were consistent with the description that Heffner
gave of the tattoos he saw on the individual who sold him the crack cocaine.
Heffner’s testimony alone, which was obviously believed by the jury,
was sufficient to support appellant’s convictions. See Commonwealth v.
King, 959 A.2d 405, 411 (Pa.Super. 2008) (rejecting defendant’s “assertion
that the verdict was infirm because no physical evidence linked him to the
crimes” since two eyewitnesses’ identification testimony, which the jury was
permitted to accept, was sufficient to support his conviction);
Commonwealth v. Wilder, 393 A.2d 927, 928 (Pa.Super. 1978) (stating a
positive identification by one witness, a police officer, is sufficient for
conviction). Accordingly, appellant’s judgment of sentence is affirmed.
The judgment of sentence is affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/2015
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