Com. v. Horton, S. ( 2017 )

J-S49025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SEAN ZACHERY HORTON
Appellant No. 1765 WDA 2016
Appeal from the Judgment of Sentence Dated November 2, 2016
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0000452-2016
BEFORE: DUBOW, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY SOLANO, J.: FILED DECEMBER 22, 2017
Appellant Sean Zachery Horton appeals from the judgment of sentence
imposed after he was convicted, following a jury trial, of manufacture,
delivery, or possession of a controlled substance with intent to manufacture
or deliver it; intentional possession of a controlled substance by a person not
regulated; and possession of marijuana.1 We affirm.
We state the facts from Appellant’s jury trial in a light most favorable
to the Commonwealth, as the verdict-winner. See Commonwealth v.
Fortune, 68 A.3d 980, 983 (Pa. Super.) (en banc), appeal denied, 78 A.3d
1089 (Pa. 2013); Commonwealth v. McFadden, 156 A.3d 299, 303 (Pa.
Super.), appeal denied, 170 A.3d 993 (Pa. 2017).
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* Former Justice specially assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30), (16) & (31), respectively.
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On August 20, 2015, Agent Charles Hurst and Corporal Steven Kelch
were performing surveillance on a controlled buy between a confidential
informant and Alonzo Davis in New Brighton, Beaver County. N.T., 7/12/16,
at 37-38, 40, 101-02; Trial Ct. Op. at 2. Agent Hurst is a narcotics agent
with the Pennsylvania Attorney General’s Office; prior to his current
employment, he was a police officer in the City of North Charleston in South
Carolina for a total of eight years, including six years as a narcotics
detective. Agent Hurst has also participated in undercover work. Corporal
Kelch has been a police officer with the New Brighton Police Department for
eight years and is detached part-time to the Pennsylvania Attorney General’s
Office’s Anti-Drug Task Force.
After the drug transaction, Davis, Appellant, and another individual left
in a white automobile; Appellant was the only occupant in the back seat.
N.T., 7/12/16, at 39, 41-42. Agent Hurst and Corporal Kelch followed the
white car but lost sight of it when it made a turn, although they eventually
turned after it. Id. at 67-70. The white vehicle was finally located in the
parking lot of a Dollar General store by James Cipriani of the Beaver Falls
Police Department. Trial Ct. Op. at 2; see also N.T., 7/13/16, at 49. As of
August 2015, Cipriani was a patrolman; by the time he testified in July 2016,
he was a detective. Id. at 42. He has worked for the Beaver Falls Police
Department since January 2010 and has served as a police officer since
October 2005. Id.; Trial Ct. Op. at 2.
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Agent Hurst and Corporal Kelch continued driving, and, since the white
automobile did not make any additional turns after they had first lost sight
of it, Agent Hurst and Corporal Kelch ultimately saw the white car and
Officer Cipriani’s patrol vehicle as they approached the Dollar General store.
N.T., 7/12/16, at 67-70. When they arrived at the Dollar General’s parking
lot, Agent Hurst informed Officer Cipriani that the third occupant that he had
observed in the car — later identified as Appellant — was no longer in the
vehicle. N.T., 7/13/16, at 54. As they were talking, Appellant “walk[ed] out
of the front of the establishment, Dollar General.” Id.
According to the testimony of Amy Cragle, the reason Appellant was at
the Dollar General store was that she had called him earlier that day to ask
him to sell her eighty dollars’ worth of heroin. N.T., 7/13/16, at 6. Ms.
Cragle met Appellant at Dollar General to make the purchase, but she
testified that she then did not take possession of the heroin because she
“was scared.” Id. at 11.
After Appellant left the store, Agent Hurst and Corporal Kelch entered
it and an employee showed them where Appellant had been. Corporal Kelch
“noticed the smell of marijuana . . . a pretty strong smell.” N.T., 7/12/16, at
55. Agent Hurst also “smelled . . . burnt marijuana . . . it was real strong.”
Id. at 113.
Corporal Kelch then viewed the store’s surveillance video and observed
Appellant pull “something” out of his right pocket and place it on a store
shelf. N.T., 7/12/16, at 48, 52. Simultaneously, Agent Hurst searched the
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store and located a burnt marijuana blunt, a second full marijuana blunt, a
bag of heroin, and a “small piece of tinfoil also containing heroin” in a
mosquito repellant container on the same shelf where the video had shown
Appellant place the item he had removed from his pocket. Id. at 48, 114,
117; N.T., 7/13/16, at 64.
Meanwhile, after determining that Davis, the driver of the white
vehicle, did not have a valid driver’s license and could not produce a rental
agreement for the vehicle, which was registered to the Budget car rental
company, Officer Cipriani arranged for the vehicle to be towed. N.T.,
7/13/16, at 56-57. Prior to having the vehicle towed, Officer Cipriani helped
the driver complete an inventory tow sheet, which identifies items of value
inside the vehicle before it is towed. Id. at 57-58. While looking inside the
vehicle in order to complete the inventory tow sheet, Officer Cipriani found
“a very small quantity” of marijuana in the door handle of the back seat. Id.
at 58.
Appellant’s jury trial began on July 12, 2016. Agent Hurst and
Corporal Kelch “both testified to smelling a strong odor of burnt marijuana in
the area where the drugs were located. In fact, it was that strong odor that
drew them to the area of the Dollar General Store where they found the
heroin and a whole blunt and a smoked blunt.” Trial Ct. Op. at 2 (internal
quotation marks omitted); see also N.T., 7/12/16, at 55, 113. Agent Hurst
also testified about “discover[ing the] mosquito repellant” package
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containing the burnt marijuana blunt, the full marijuana blunt, the bag of
heroin, and the tinfoil wrapping of heroin. Id. at 114.
Additionally, the Commonwealth also presented the testimony of Amy
Cragle, who began her testimony by explaining that she is “a recovering
heroin addict.” N.T., 7/13/16, at 7. Ms. Cragle testified that “about two
months” after she left the Dollar General, she was “pulled over in a traffic
stop” and “was found in possession of heroin.” Id. at 14. She continued
that, while she was waiting in the New Brighton Police Station afterwards,
Agent Hurst “recognized [her] from Dollar General” and “asked her what had
happened” at Dollar General. Id. She testified that she told Agent Hurst
that she “was there that day to purchase heroin from Rico.” Id. at 15. Ms.
Cragle then identified Appellant as “Rico.” Id. at 17.
During trial, a “lab report [was] introduced into evidence as
Commonwealth’s Exhibit No. 6[.]” Trial Ct. Op. at 1. The report “did not
establish that the substance was marijuana.” Id. at 1-2. Officer Cipriani
“testif[ied] that the Pennsylvania State Police Crime Lab will no longer test
what is thought to be less than 32 grams of marijuana due to a backlog in
the lab completing its work.” Id. at 2; see also N.T., 7/13/16, at 62-63.
Officer Cipriani also testified that the lab report indicated that the other
substance found was confirmed to be heroin, totaling 9.5 grams. Id. at 72.
Appellant was convicted on July 13, 2016. “The Jury made the specific
finding that [Appellant] possessed 9.5 grams of heroin with the intent to
deliver the heroin.” Trial Ct. Op. at 1.
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On August 24, 2016, Appellant was sentenced to 24-180 months’
confinement. On September 6, 2016, Appellant filed a motion for post-
sentence relief that included a motion for modification of sentence and a
motion for a new trial, contending that “the evidence presented by the
Commonwealth was insufficient to support each element of the charges” and
that the “verdict as to each of the charges [was] against the weight of the
evidence presented at trial.” Mot. for Post-Sentence Relief, 9/6/16, at ¶¶ 3-
4. On November 2, 2016, the trial court re-sentenced Appellant:
It was Ordered that [Appellant] serve not less than 24 months
nor more than 60 months in a State Correctional Institution,
followed by a consecutive period of 120 months of probation.
[Appellant] was made eligible for Boot Camp. The Sentence
Order concludes by stating, “No further penalty is imposed at
this time for the conviction at Count 3.”[2]
Trial Ct. Op. at 1. The trial court simultaneously denied Appellant’s motion
for a new trial.
That same day, Appellant filed a notice of appeal. Appellant now
raises two issues for our review:
I. The convictions for possession of heroin and possession
with intent to deliver heroin were against the weight of the
evidence, where the Commonwealth’s case relied upon the
testimony of witness Amy Cragle, an admitted heroin addict,
who agreed to offer evidence against [Appellant] to avoid
prosecution for possession of heroin.
II. The conviction for possession of a small amount of
marijuana was not supported by sufficient evidence where the
Commonwealth did not offer into evidence a crime lab
establishing that the substance was marijuana.
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2 Count 3 was possession of marijuana.
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Appellant’s Brief at 6.
Weight of the Evidence (Heroin)
Appellant first contends:
The convictions for possession of heroin and possession with
intent to deliver heroin were against the weight of the evidence,
where the Commonwealth’s case relied upon the testimony of
witness Amy Cragle, an admitted heroin addict, who agreed to
offer evidence against [Appellant] to avoid prosecution for
possession of heroin.
Appellant’s Brief at 13. The Commonwealth answers that Appellant’s
“argument ignores the totality of the evidence introduced at [Appellant]’s
trial.” Commonwealth’s Brief at 10.
Appellant does not contend that the evidence was insufficient to
convict him. Instead, he contends that he should receive a new trial
because the evidence on which the jury convicted him was weak. A motion
for a new trial alleging that the verdict was against the weight of the
evidence is addressed to the discretion of the trial court. Commonwealth
v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citation omitted). “An appellate
court, therefore, reviews the exercise of discretion, not the underlying
question [of] whether the verdict is against the weight of the evidence.” Id.
The weight of the evidence is exclusively for the finder of fact[,]
who is free to believe all, none or some of the evidence and to
determine the credibility of the witnesses.
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge
has had the opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration to the
findings and reasons advanced by the trial judge when reviewing
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a trial court’s determination that the verdict is against the weight
of the evidence. One of the least assailable reasons for granting
or denying a new trial is the lower court’s conviction that the
verdict was or was not against the weight of the evidence and
that a new trial should be granted in the interest of justice.
In order for a defendant to prevail on a challenge to the weight
of the evidence, the evidence must be so tenuous, vague and
uncertain that the verdict shocks the conscience of the court.
. . . [A]n appellate court cannot substitute its judgment for that
of the finder of fact.
Commonwealth v. Talbert, 129 A.3d 536, 545–46 (Pa. Super. 2015)
(internal citations and quotation marks omitted; some formatting added),
appeal denied, 138 A.3d 4 (Pa. 2016).
Here, the trial court’s analysis of Appellant’s weight of the evidence
challenge, in its entirety, is as follows:
The record speaks for itself in this regard. The jury heard from
four (4) witnesses, and after hearing arguments of counsel and
instructions from the [trial c]ourt, the jury weighed the evidence
presented and returned a unanimous verdict. The jury did have
sufficient evidence as to all three (3) counts for which
[Appellant] was convicted, and the jury weighed the evidence
and returned a true verdict which must stand.
Trial Ct. Op. at 2-3.
Appellant essentially asks us to reassess Ms. Cragle’s credibility and to
reweigh the testimony and the evidence presented at trial. Appellant’s Brief
at 13-15. We cannot and will not do so. See Talbert, 129 A.3d at 546.
The jury found credible Ms. Cragle’s testimony, even though the jury was
aware that Ms. Cragle is a recovering heroin addict, had intended to
purchase heroin from Appellant, and was found in possession of heroin
during an unrelated traffic stop. N.T., 7/13/16, at 6-7, 14-15.
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Ms. Cragle’s testimony was corroborated by other testimony and
physical evidence. See Talbert, 129 A.3d at 545. Agent Hurst testified that
he had located heroin in a mosquito repellant container on the same shelf
where the store’s surveillance video had shown Appellant place an item that
he had removed from his pocket. N.T., 7/12/16, at 114. The laboratory
report, Commonwealth’s Exhibit 6, confirmed the presence of 9.5 grams of
heroin in the container. See N.T., 7/13/16, at 72.
Thus, the trial court did not abuse its discretion by concluding that the
verdict was not so contrary to the evidence as to shock the court’s
conscience. See Ramtahal, 33 A.3d at 609; Talbert, 129 A.3d at 545.
Sufficiency (Marijuana)
Appellant’s second challenge is: “The conviction for possession of a
small amount of marijuana was not supported by sufficient evidence where
the Commonwealth did not offer into evidence a crime lab [report]
establishing the substance was marijuana.” Appellant’s Brief at 16.
Appellant requested that the verdict “be vacated where the Commonwealth
did not establish that [Appellant] intended to possess a controlled
substance.” Id. at 17. In response, the Commonwealth “submits that the
opinion evidence offered by its police officers that identified the substance as
marijuana based on its odor and appearance, in light of their extensive
training and experience in narcotics, . . . was in its totality sufficient for the
jury to conclude that [Appellant] possessed that drug.” Commonwealth’s
Brief at 13.
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Our standard of review for a sufficiency of the evidence challenge is
well established:
A claim challenging the sufficiency of the evidence presents a
question of law. We must determine whether the evidence is
sufficient to prove every element of the crime beyond a
reasonable doubt. We must view evidence in the light most
favorable to the Commonwealth as the verdict winner, and
accept as true all evidence and all reasonable inferences
therefrom upon which, if believed, the fact finder properly could
have based its verdict.
McFadden, 156 A.3d at 303 (citations omitted); see also Fortune, 68 A.3d
at 983.
The trial court disposed of this issue as follows:
Officer James Cipriani, a Beaver Falls Police Detective with ten
(10) years of law enforcement experience, did testify that the
Pennsylvania State Police Crime Lab will no longer test what is
thought to be less than 32 grams of marijuana due to a backlog
in the lab completing its work. At first blush, due to that
testimony and that Exhibit, [Appellant’s] issue would seem to be
meritorious. That position, however, lacks merit when the
testimony of the three (3) law enforcement officers is reviewed
in total. [Agent Hurst and Corporal Kelch] both testified to
smelling a “strong odor of burnt marijuana” in the area where
the drugs were located. In fact, it was that strong odor that
drew them to the area of the Dollar General Store where they
found the heroin and a whole blunt and a smoked blunt. In
addition, the jury heard testimony from Officer Cipriani that his
search of the vehicle that this defendant arrived in revealed a
“small amount of marijuana in foil found in the rear driver’s side
door handle”. [Corporal] Kelch and [Agent] Hurst had previously
testified that [Appellant] was the only occupant of the back seat
of the vehicle. Although not tested in the lab, the jury had
sufficient circumstantial evidence to support its verdict.
Trial Ct. Op. at 2. We agree. We add that Agent Hurst is a narcotics agent
with the Pennsylvania Attorney General’s Office and previously served six
years as a narcotics detective, and that Corporal Kelch is detached to the
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Pennsylvania Attorney General’s Office’s Anti-Drug Task Force. N.T.,
7/12/16, at 37-38, 101; Trial Ct. Op. at 2. Their training and experience
therefore gives them the ability to recognize marijuana visually and
olfactorily. Accordingly, we conclude that Appellant is not entitled to relief
on this issue.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2017
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