Com. v. Pruitt, D. ( 2016 )

J-S75034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DAQUAN PRUITT, :
:
Appellant : No. 3436 EDA 2015
Appeal from the Judgment of Sentence October 30, 2015
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0002103-2014
BEFORE: BOWES, MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 29, 2016
Daquan Pruitt (“Pruitt”) appeals from the judgment of sentence
entered following his convictions of criminal conspiracy, possession of a
controlled substance, and possession with the intent to deliver a controlled
substance.1 We affirm.
The trial court summarized the relevant history underlying the instant
appeal, which we adopt for the purpose of this appeal. See Trial Court
Opinion, 2/4/16, at 1-4.
Pruitt presents the following claims for our review:
1. Whether [Pruitt] is entitled to an arrest of judgment because
there was insufficient evidence to support [his] conviction
beyond a reasonable doubt for possession of cocaine with intent
to deliver, conspiracy, and knowing and intentional possession of
a controlled substance[?] Specifically, [whether] the
Commonwealth failed to prove [Pruitt’s] actual or constructive
possession of the drugs found in the black bag in the alleyway?
1
See 18 Pa.C.S.A. § 903; 35 P.S. § 780-113(a)(16), (30).
J-S75034-16
2. Whether [Pruitt] is entitled to a new trial as the verdict was
not supported by the greater weight of the evidence?
Brief for Appellant at 4.
Pruitt first challenges the sufficiency of the evidence underlying his
convictions. Id. at 9. Pruitt argues that there was no admissible evidence
that he possessed or sold narcotics. Id. at 10. According to Pruitt, “there
was only speculative evidence tying [Pruitt] to the drugs that were
recovered from the alleyway in a black bag.” Id. Regarding his conviction
of criminal conspiracy, Pruitt argues that the evidence is insufficient “to show
that either [Pruitt] or any of the co-conspirators agreed with one another to
deliver or aid in delivering narcotics[,]” or that he had the requisite criminal
intent. Id. at 10-11. Pruitt contends that when he was arrested, he was
not in possession of any contraband, and he was never seen possessing
contraband. Id. at 12. Further, Pruitt points out that the female arrested
with him did not possess contraband. Id. at 12-13. As to his convictions of
possession and possession with intent to deliver narcotics, Pruitt claims that
the Commonwealth presented no evidence that he was selling cocaine, or
that he shared the requisite criminal intent to deliver cocaine. Id. at 13.
In its Opinion, the trial court set forth the relevant law, addressed
Pruitt’s claim, and concluded that it lacks merit. See Trial Court Opinion,
2/4/16, at 5-12. Upon review of the arguments presented by Pruitt, and the
record certified to this Court on appeal, we agree with the sound reasoning
of the trial court, as set forth in its Opinion. See id. We therefore affirm on
-2-
J-S75034-16
the basis of the trial court’s Opinion, with regard to Pruitt’s first issue. See
id.
Pruitt next challenges his convictions as against the weight of the
evidence. Brief for Appellant at 13. Pruitt argues that “there was no
evidence presented of actual or constructive possession, as well as a
conspiratorial agreement to support the verdict of the trial court[.]” Id. at
14. Therefore, Pruitt argues, “the verdict is clearly contrary to the evidence
and is shocking to one’s sense of justice, making the award of a new trial
imperative.” Id.
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. Cousar, 928 A.2d 1025, 1035-36 (Pa. 2007).
Thus, “the function of an appellate court on appeal is to review
the trial court’s exercise of discretion based upon a review of the
record, rather than to consider de novo the underlying question
of the weight of the evidence.” Commonwealth v. Rivera, 603
Pa. 340, 983 A.2d 1211, 1225 (Pa. 2009). An appellate court
may not overturn the trial court’s decision unless the trial court
“palpably abused its discretion in ruling on the weight claim.”
Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403,
408 (Pa. 2003). Further, in reviewing a challenge to the weight
of the evidence, a verdict will be overturned only if it is “so
contrary to the evidence as to shock one’s sense of justice.”
Commonwealth v. Diggs, 597 Pa. 28, 949 A.2d 873, 879 (Pa.
2008).
Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016).
In its Opinion, the trial court addressed this claim and concluded that
it lacks merit. See Trial Court Opinion, 2/4/16, at 13-14. We discern no
-3-
J-S75034-16
abuse of discretion in the trial court’s reasoning or conclusion. We therefore
affirm on the basis of the trial court’s Opinion as to Pruitt’s challenge to the
weight of the evidence. See id.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2016
-4-
Circulated 11/30/2016 04:06 PM
INTHE COURT OF.COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
I
TRIAL DIVISION - CRIMINAL SECTION
I
COMMONWEAL TH OF PENNSYLVANIA CP-51-CR-0002103-2014
FIL~D
v. FEB O 4 2016
3436 EDA 2015
C .. I
DAQUAN PRUITT · nmm.a~ Appea(s Unit
FtrstJu~1c1al Dist1ct of PA
OPINION '
LANE,J. February041, 2016
OVERVIEW AND PROCEDURAL HISTORY
On June 6, 2013, Daquan Pruitt (herein "Defendant") was arrested and later charged with
Manufacture, Delivery, or Possession with Intent to Manufacture or Deliver ("PWID"), 35 P.S. §
780-113 (a)(30), Intentional Possession of Controlled Substance by Person Not Regulated, 35
P.S. § 780-113 (a)(16), and Conspiracy- PWID, 18 Pa.C.S.A. § 903. On July 27, 2015, a waiver
trial was held before this court and the Defendant was found guilty on all charges. Sentence was
deferred for a Pre-Sentence Investigation Report. On October 30, 2015, Defendant was
sentenced to an aggregate term of 1-2 years of incarceration, followed by 6 years of probation.
He was found guilty without further penalty for Intentional Possession of Controlled Substance
by Person Not Regulated. Defense counsel filed a Motion for Reconsideration of Sentence on
November 5, 2015, which was denied on November 6, 2015.
A timely notice of appeal was filed on November 12, 2015. A Motion for Extension of
Time for the 1925(b) Statement of Matters Complained on Appeals was granted on December
14, 2015 due to the lack of transcription of the notes of testimony. A Statement of Matters
Complained on Appeal was filed on January 22, 2016. The following issues are complained
I
on
appeal:
I.The appellant is entitled to an arrest of judgment because there was insufficient evidence
to support appellant's conviction beyond a reasonable doubt for possession of cocaine
with intent to deliver, conspiracy, and knowing and intentional possession of a controlled
substance. Specifically, the Commonwealth failed to 'prove appellant's adual or
constructive possession of the drugs found in the black bag in the alleyway.
2. Appellant is entitled to a new trial as the verdict was not supported by the greater weight
of the evidence. I
FACTS
On June 5, 2013, at approximately 9:20 p.m., Officer McCauley and his partner.Dfficer
Aponte, set up plain clothes surveillance in the area of 500 West Cornwall Street. (N.T. 0'4/24/15
p. 5-6). The area was well-lit with street lights and there was nothing obstructing their view. (Id.
at 6, 16). They observed the Defendant and a female, later identified as Tenesha Govan, standing
next to each other on the northwest comer of s" and Cornwall Street. (Id. at 7-9). A gray Honda
Civic pulled up and parked on the north corner of the west side of the street, and a male referred
to as Mr. Santana exited the vehicle to converse with them. (Id. at 9-10, 27). Ms. Govan then
crossed to the east side of the street and looked north and south before Mr. Santana and the
Defendant walked to the east side of the block. (Id. at I 0). After the Defendant and Mr. Santana
exchanged United States Currency ("USC"), Mr. Santana walked back to his vehicle, placed the
money inside, and handed the Defendant a black cloth bag. (Id. at 11, 27). The Defendant then
ran into the alleyway. (Id.). Although Officer McCauley could not see where the Defendant
went, he observed the Defendant walking in the alleyway with the black bag. (Id. at 22).
The Defendant, Mr. Santana, and Ms. Govan reconvened on 5th and Cornwall Street with
Mr. Santana stating "esta bien", which means "good" in Spanish. (Id. at 12, 30). Mr. Santana '
proceeded down 5th and Westmoreland Street, while Ms. Govan crossed over to the east side of
2
the street. (Id. at 13). Three people engaged in a conversation with the Defendant and eventually
i
handed him money. (Id.). Ms. Govan looked north and south before waiving at Defendant, who
then went inside the alleyway for approximately 30 seconds before handing objects to each of
those three people with a closed fist. (Id. at 13-14). However! the three alleged buyers were not
caught due to a miscommunication between Officer McCauley and the officers from his squad.
(Id. at 14).
After these three transactions, three more alleged buyers engaged the Defendant and held
a brief conversation with him. (Id at 14). Again, Ms. Govan went to the east side of the street,
looked north and south, and waived at the Defendant. (Id). The Defendant went into the alleyway
for approximately 30 seconds, exited, and handed items to each alleged buyers in exchange for
money. (Id. at 14-15, 17). Mr. Santana stood by 5th and Westmoreland Street. (Id.). Shortly after
the transactions, Mr. Santana ran up the block, yelling. (Id). Officer McCauley suspected that it
was a compromised surveillance and radioed for uniform officers. (Id.). He observed Officer
Santiago stop Mr. Santana and recovered $90 USC from his vehicle, which was placed on
property receipt. (Id. at 15-16, 90). Officer Smalls stopped the Defendant and recovered $315
USC on his person. (Id. at 25). Officer Fagan recovered a black bag with bundles of crack and
cocaine in the alleyway. (Id. at 16). Counsels stipulated that $57 USC was recovered: on Ms.
Govan when she was arrested. (Id at 25, 57).
Officer Aponte, Officer Fagan, and Officer Smalls testified next. Officer Aponte-testified
that on that night in question, he observed Ms. Govan cross to the east side of the str1et while
Mr. Santana went towards Westmoreland Street. (Id. at 29-30). Ms. Govan was "looking out" by
looking up and down the street. (Id. at 30). Officer Fagan testified that on June 5, 2013, at
approximately 9:30 p.m., he was directed by Officer McCauley to go into an alleyway. (Id at
• ••"•" "• •- ~ • • - • • • -• • I •" -•••••• •• : t. •
- ··~.• • • , ,,...•- "•o- •• •• ~-..io:;.;.;--...;;.;``;;..,:.;-~-.;.;.~
3
31). He recovered a black bag containing 84 clear packets with a white-powdery substance of
alleged cocaine and 196 orange packets that contained an off-white chunky substance of alleged
cocaine base, all of which was placed on property receipt'. (Id. at 32). The black bag was hidden
in a hole of a brick wall. (Id. at 34). Officer Fagan testified that even though there is a back door
I
to the bar near the alleyway, the bar area is fenced in and one would need to jump the fence to
get into the alleyway. (Id. at 36-37). Officer Smalls testified that he arrested the Defendant a
little after 9:30 p.m. on that night in question and recovered $315 USC on his person, which was
placed on property receipt. (Id. at 38-39).
The defense called Shakeyla Smith and the Defendant to testify. Ms. Smith, the
Defendant's ex-girlfriend, testified that on June 5, 2013, she had an argument with the Defendant
and she dropped him off on 5th and Cornwall Street. (N.T. 07/27/15 at 6). Less than three
minutes later, the Defendant called her and told her he was arrested. (Id. at 9). She then spoke
with Officer Smalls on the phone who told her that the Defendant was "at the wrong place at the
wrong time". (Id.). The Defendant testified that after Ms. Smith dropped him off that night, he I
had plans to meet Ms. Govan, whom he was also involved with. (Id. at 18). The Defendant
denied going into the alleyway and denied serving anyone narcotics. (Id. at 20-21 ). He testified
that as he tried to give Ms. Govan a hug on the street, approximately six cops exited the police
vehicles, searched, and arrested them and Mr. Santana. (Id. at 23-25).
I
There was a total weight of 30.19 grams of cocaine from the 84 clear packets and 54 milligrams of cocaine base
~- ·---.,=``~r;:;~··theT9°6'o-riri'gepackets~-6:f'.t~-· 4124/1Y,il°43f · · · · . ·. ,.·-.- . "···· · · ---~-~ · , - ···- --··' · · · · · ··· .. -~.·-··-···_· -~===-=·=-~-
4
DISCUSSION
a) There was sufficient evidence to support Defendant's conviction of Possession :with
Intent to Deliver, Conspiracy, and Intentional Possession of a Controlled Substance
beyond a reasonable doubt. I
A challenge to the sufficiency of the evidence i~ a question of law requiring a plenary scope
of review. Commonwealth v. Snyder, 870 A.2d 336 (Pa.Super. 2005) (citing Commonwealth v.
Krouse, 799 A.2d 835, 837 (Pa.Super.2002)). The Courts use the following standard to
determine the sufficiency of evidence admitted at trial:
The test for determining the sufficiency of the evidence is whether, viewing the evidence in
the light most favorable to the Commonwealth as verdict winner and drawing allj proper
inferences favorable to the Commonwealth, the [fact-finder] could reasonably have
determined all elements of the crime to have been established beyond a reasonable doubt.
This standard is equally applicable to cases where the evidence is circumstantial rather than
direct so long as the combination of the evidence links the accused to the crime beyond a
reasonable doubt.
Commonwealth v. Cassidy, 668 A.2d 1143, 1144 (Pa.Super. 1995) (citing Commonwealth v.
Hardcastle, 546 A.2d 1101, 1105 (1988) (citations omitted)). 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. Passmore, 857 A.2d 697, 706 (Pa.Super. 2004 ).
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. Id.
1. Criminal Conspiracy
"To sustain a criminal conspiracy conviction, the Commonwealth must establish. that the
defendant entered into an agreement to commit or aid in an unlawful act with another person or
persons, with a shared criminal intent, and an overt act was done in the conspiracy's furtherance." '
Commonwealth v. Murphy, 795 A.2d I 025 (Pa.Super. 2002) atrd, 844 A.2d 1228 (2004) (citing
5
accomplish the crime, but need only be in furtherance thereof, and in fact, no crime at all need be
accompl_ished for the conspiracy to be committed. id. The agreement is generally established via
circumstantial evidence, such as by the relations, conduct, or circumstances of the pa1;ties or
overt acts on the part of co-conspirators. id.
The essence of a criminal conspiracy is a common understanding, no matter how it came into
being, that a particular criminal objective be accomplished. Therefore, a conviction for
conspiracy requires proof of the existence of a shared criminal intent. An explicit orl formal
agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a
criminal partnership is almost invariably extracted from the circumstances that attend its
activities. Thus, a conspiracy may be inferred where it is demonstrated that the relation,
conduct, or circumstances of the parties, and the overt acts of the co-conspirators sufficiently
prove the formation of a criminal confederation. The conduct of the parties ~md the
circumstances surrounding their conduct may create a web of evidence linking the accused to
the alleged conspiracy beyond. a reasonable doubt. Even if the conspirator did not act as a
principal in committing the underlying crime, he is still criminally liable for the actions of his
co-conspirators taken in furtherance of the conspiracy.
Id. at 1038 (citation omitted).
In Commonwealth v. McCall, 911 A.2d 992, 994 (Pa.Super. 2006), at approximately
11 :30 a.m., Officer Harris set up surveillance in Philadelphia where he observed the defendant
I
and co-defendant stand on the west side of the street. Id. At approximately l l :35 a.m., Officer . i
Harris witnessed an unidentified male approach the defendant and co-defendant, engage them in
a conversation, and then hand co-defendant an unknown amount of USC. Id. The co-defendant
then walked to a nearby drainpipe, retrieved a clear plastic bag, removed an item from the
baggie, placed the baggie back inside the pipe, walked back to the unidentified male, and handed
him the item. Id. At approximately 11 :47 a.m., Officer Harris observed another male, who was
later identified, approach the defendant and codefendant. Id. The co-defendant again walked to
the drainpipe, retrieved the same plastic baggie, removed items from it, placed the baggie back
inside the drainpipe, and handed the items to the male. McCall, 911 A.2d at 994. Officer
observed the co-defendant handing money over to the defendant. id. At approximately 12:00
· · .·· ·---- - • ··••-·-.-· •.• u .. u,-·-- -· • - ,., ..... =·• .·.~·· ... 1.,:- .• 'I..•: ..... ••-·:,•.· ... .-·.-· ., t ·-,·.·.N • , *···-~ .. ,or, .. ·.--.·: ... ,.,...._. ..:, .••.• ···=,. ··``-r.:-
..,~:=·~.a,,.;f'llt!'.'f"t
6
I
a.m., Officer Harris observed another male, who was later identified, approach the defendant and
I
co-defendant and hand co-defendant an unknown amount of USC. Id. The co-defendant repeated
I
the same process, retrieving items from the bag in the drainpipe and handing items to th/! male.
Id. Finally, at approximately 12:04 p.m., Officer Harris observed a male, who was also later
•
identified, approach the defendant and co-defendant and gives co-defendant an unknown amount
of USC. Id Again, the co-defendant repeated the same process as described above. id. The
j
I
McCall Court held that under the totality of the evidence, there was sufficient evidence to [sustain
the defendant's convictions for possession with intent to deliver and conspiracy. Id. The Court
reasoned that although the defendant did not take an active role in the illicit activity, he was
observed working as a lookout and received money from his cohort seller. Id. Since the
defendant is criminally liable for the actions of his co-conspirators, the court held that there is
sufficient evidence to convict him of possession with intent to deliver as well. Id.
In Commonwealth v. Perez, 931 A.2d 703, 706 (Pa.Super. 2007), Officer Larry Tilglunan
was on duty conducting an undercover surveillance of the appellant, who was standing directly
in front of Mr. Maddox's home at 2825 North Swanson Street. Id. On May 14, 2002, at
approximately 10:05 a.m., Officer Tilghman observed an individual, Mr. Kissings, approach the
!
appellant. Id. The appellant reached into his pocket and pulled out some blue items, which
I
he
I
exchanged with Kissings for money. Id. Officer Tilghman radioed Kissings' description to other
officers in the area who stopped and searched him. Id. Kissings had three blue packets or heroin
I
I
stamped with the words "Good Fellows" in his possession. Id. Fifteen minutes later, Officer I
Tilghman observed another individual, Mr. Cruz, approach the appellant outside of the same
property. Id. Again, the appellant exchanged with Cruz some blue items for money. Id. Officer
Tilghman again notified officers of Cruz's description so they could stop and search him. Id.
7 .
 Cruz had two blue packets of heroin in his possession stamped with the words "Good Fellows."
Id. Maddox later exited his home and gave the appellant another handful of blue packetsJa The
appellant placed these packets in his pocket and gave money to Maddox. Id. Ten minutes later,
another individual, Mr. Danonhower, 4 approached the appellant and handed the appellant.money
.
in exchange for blue items. Id. Officers stopped Danonhower in a manner similar to Kissings and
Cruz, and found two blue packets of heroin stamped with the words "Good Fellows." kl When
the appellant saw a marked police vehicle drive by, he walked over to the car where Maddox was
sitting and gave Maddox a handful of blue packets and money. Id. Appellant and Maddox had a
brief conversation and walked to the east side of the street, where they were subsequently
arrested by pol ice officers. Id.
The Perez Court held that the Commonwealth met its burden in proving conspiracy
between the appellant and his companion to sell heroin, and as such, it did not have to prove the
defendant's constructive possession of the drugs found in his companion's home. Id. at 710. The
Court reasoned that the officers observed the defendant exchange heroin with blue glassine
inserts to individuals on street for money directly in front of Maddox's home. Id. Maddox exited
his home and the defendant gave proceeds of those transactions to Maddox in exchange for more
identically packaged heroin. Id. Further, upon seeing marked police vehicle, the defendant i
walked over to car where Maddox was sitting and placed heroin packets and money in the car.
Id. The Court held that the evidence established that the appellant and Maddox conspired to sell
heroin. Id.
In the case at bar, there is sufficient evidence to convict the Defendant of conspiracy
I
beyond a reasonable doubt. The Defendant here took an active role in the illicit enterprise.
Officer McCauley testified that he observed the Defendant and Ms. Govan standing at the comer
.•. r:.-;;;-.-:-.:;:~....,_.:..:.~.:..,-:::.,.:;...-.-~·.;;.- •• :-r.,.; • ., •.• -. ·; ~ -.: .• · •• ,. .i .. ,: - •. •••.•
·-...-··.-·.-;..· •••• , ~-.,,.
8
of 5th and Cornw~ll Street, while Mr. Santana pulled up his car and later joined them Ion theI
617 A.2d 812, 814 (Pa.Super. 1992) (citing Commonwealth v. Parsons, 570 A.2d 1328,
1334 (1990)). The trier of fact may infer that the defendant intended to deliver a controlled
1·
substance from an examination of the facts and circumstances surrounding the case.
Commonwealth v. Conawav, 791 A.2d 359, 360 (Pa.Super. 2002). "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).
Where contraband is not found on a defendant's person, the Commonwealth must establish
"constructive possession" to support a conviction of possession with the intent to didtribute.
I
Commonwealth v. Haskins, 677 A.2d 328 (Pa.Super. 1996). Constructive possession is
established by showing that the defendant had the power to control the contraband and the intent
to exercise that control. Id. The Pennsylvania Supreme Court has held that,
Constructive possession is a legal fiction, a pragmatic construct to deal with the realities
of criminal law enforcement. Constructive possession is an inference arising from la set of
facts that possession of the contraband was more likely than not. We have
1defined
constructive possession as conscious dominion. We subsequently defined conscious I
dominion as the power to control the contraband and the intent to exercise that ;control.
To aid application, we have held that constructive possession may be established by the
totality of the circumstances. !
I
''
Commonwealth v. Hopkins, 67 A.3d 817, 820 appeal denied, 78 A.3d 1090 (Pa.Super, 2013)
(citing to Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super. 2012)). "As with aJy other
element of a crime, constructive possession may be proven by circumstantial evidence."
10
Commonwealth v. Haskins. 677 A.2d 328, 330 (Pa.Super. I 996). "The intent to exercise
conscious dominion can be inferred from the totality of the circumstances." Kirkland, 8311 A.2d
I
at 610 (Pa.Super.2003).
I
In the instant mat~er, since the police did not find any narcotics on the Defendant's 'person,
the Commonwealth was required to prove that the Defendant constructively possessed the drugs
beyond a reasonable doubt. The Perez Court held that because the Commonwealth 'proved
conspiracy, it did not have to prove the defendant's constructive possession of the drugs. Perez,
93 I A.2d at 709. In this case, the circumstantial evidence shows that there was an agreement
j
between the Defendant and his co-defendants to intentionally deliver controlled substance to
each alleged buyers. Under the totality of the circumstances, Defendant is guilty of conspiracy
beyond a reasonable doubt. Therefore, the Commonwealth did not have to prove that the
defendant constructively possessed the drugs under Perez.
However, assuming that Perez does not apply, there is sufficient evidence to convict the
Defendant of possession with intent to deliver beyond a reasonable doubt. Like McCall and
Perez, Officer McCauley testified that he observed the Defendant engage in conversations with
multiple alleged buyers, walk into the alleyway, and hand the alleged buyers small objects in
I
exchange for money. (N.T. 04/24/15 at 10-15.). Officer Fagan recovered a black bag containing
!
the narcotics that was hidden in a hole of a brick wall. (Id. at 34.). He testified that even though
there is a back door to the bar near the alleyway, the bar area is fenced in and one would I need to
jump the fence to get into the alleyway. (Id. at 36-37). Officer McCauley also personally
observed the Defendant holding the black bag and entering and exiting the alleyway for the six
I
transactions. (Id. at 6- l 7).
) )
In light of the Defendant's suspicious conduct, the exchange of money for items, a'.nd the
I
experienced narcotics officer's observation of the hand-to-hand exchange, there is no doubt that
the Defendant constructively possessed controlled substance with the intent to deliver to! each
alleged buyer. T~e Defendant exhibited the power to control the contraband and the intent to
exercise that control. Considering all circumstantial and direct evidence under the totality of the
circumstances, there is sufficient evidence to find the Defendant guilty beyond a reasonable
doubt for possession with the intent to distribute a controlled substance.
111. Intentional Possession of a Controlled Substance
Under. 35 P.S. § 780-113 (a)(l6), one is "prohibited from knowingly or intentionally
possessing a controlled or counterfeit substance by a person not registered under this act, or a
practitioner not registered or licensed by the appropriate State board, unless the substance was
obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or
except as otherwise authorized by this act." In Commonwealth v. Davis, 480 A.2d 103.~,
I
1044
(Pa.Super. 1984), the Superior Court ruled that the trial court properly distinguished between
simple possession and possession with intent to deliver. The Court reasoned that the
Commonwealth was required to first show possession and then that such possession was eoupled
the intent to deliver to another. Id. The Superior Court found that no error was committed in the
trial court's sua sponte addition of the simple possession charge. id. In this instant, there was
sufficient evidence to find the Defendant guilty of Intentional Possession of Controlled
I
Substance by a Person Not Registered. Id. The trial court properly determined that the Defendant
I
knowingly or intentionally constructively possessed the narcotics that were found! in the
alleyway. (N.T. 04/24/2015 at 32.).
12
b) The trial court's verdict was not against the weight of evidence.
i. Courts have held that "[b]ecause the trial court has had the opportunity to hear ~nd see
I
the evidence presented, an appellate court will give the gravest consideration to the findings and
. . I
reasons advanced by the trial judge when reviewing a trial court's determination that verdict is
4 •
against the weight of evidence." Commonwealth v. Widmer, 744 A.2d 745, 753 (2000) (citing to
Commonwealth v. Farguharson. 354 A.2d 545 (1976)). "Unlike the challenge of legal
sufficiency of the evidence, the complaint that the verdict was against the weight of the evidence
requires an assessment of the credibility of the testimony offered by the Commonwealth! It is a
!
rule of this Commonwealth that an appellate tribunal should not entertain a challenge to the
weight of the evidence since their examination is confined to the "cold record." Id.
Commonwealth v. Hodge, 658 A.2d 386, 389 (Pa.Super. 1995) (citing to Commonwealth v.
Farguharson, 354 A.2d 545, 550 (1976)).
·The weight of the evidence is exclusively for the finder of fact who is free to believe all,
part, or none of the evidence and to determine the credibility of the witnesses. An
appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may
I
only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's
sense of justice. Moreover, where the trial court has ruled on the weight claim below, an
appellate court's role is not to consider the underlying question of whether the verdict is
against the weight of the evidence. Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Shaffer, 40 A.3d 1250 (Pa.Super. 2012) (citing to Commonwealth v.
Champney, 832 A.2d 403, 409 (2003), cert. denied. 542 U.S. 939, 124 S. Ct. 2906, 159 L. Ed. 2d
816 (2004)).
An allegation that the verdict is against the weight of the evidence is addressed to the
discretion of the trial court. Common.wealth v. Brown, 648 A.2d 1177 (1994).
'A new trial should not be granted because of a mere conflict in the testimony or because
the judge on the same facts would have arrived at a different conclusion. A trial judge
must do more than reassess the credibility of the witnesses and allege that he would not
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have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the
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verdict is against the weight of the evidence do not sit as the thirteenth juror. Ratt11er, the
role of the trial judge is to determine that "notwithstanding all the facts, certain fdcts are
so clearly of greater weight that to ignore them or to give them equal weight with! all the
facts is to deny justice. I
Widmer, 744 A.2d at 751-52.
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ln the case at bar, the trial court's verdict was not against the weight of evidence, and
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therefore, the Defendant is not entitled to a new trial. Courts have held that the role of the trial
judge is to determine that "notwithstanding all the facts, certain facts are so clearly of 'greater
weight that to ignore them or to give them equal weight with all the facts is to deny jttice."
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.
Widmer, 744 A.2d at 752. Further, the weight of the evidence is exclusively for the finder' of fact
who is free to believe all, part, or none of the evidence and to determine the credibility of the
witnesses. Shaffer, 40 A.3d 1253. Here, the trial court finds Officer McCauley's testimony to be
credible, as opposed to the Defendant's testimony. Officer McCauley credibly testified that he
personally observed the Defendant engage in six hand to hand transactions with six alleged
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buyers, while Ms. Govan acted as his lookout and Mr. Santana supplied the Defendant with the
black bag that was later recovered with narcotics in it. (N.T. 04/24/15 at 10-15, 32). The trial
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court's guilty verdict is so not contrary to the evidence as to shock one's sense of justice, and as
such, the Defendant is not entitled to a new trial.
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CONCLUSION
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After review of the applicable statutes, testimony, and case law, there was sufficient
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evidence to convict the Defendant of the charges beyond a reasonable doubt, and the verdict was
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n~t against the weight of evidence. Accordingly, the trial court's judgment of sentence should be
affirmed.
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BY THE COURT:
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