Com. v. Marshall, K. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KOREY TIEN MARSHALL :
:
Appellant : No. 28 WDA 2019
Appeal from the Judgment of Sentence Entered August 27, 2018
In the Court of Common Pleas of Cambria County Criminal Division at
No(s): CP-11-CR-0002084-2017
BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 27, 2019
Korey Tien Marshall appeals the judgment of sentence entered following
his convictions for possession with intent to deliver a controlled substance
(PWID), possession of a controlled substance, and criminal use of a
communication facility.1 He challenges the sufficiency of the evidence. We
affirm.
The Commonwealth presented the following evidence at trial. Detective
Arnold Bernard, Sr. testified that on November 7, 2017, a “controlled buy”
was set up to purchase crack cocaine from Marshall. N.T., Trial, 5/30/18, at
8. Detective Bernard explained what a controlled buy is as follows:
It’s a drug deal where we try to control as many of the aspects of
the transaction as we can, which basically usually starts, if we
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1 35 P.S. §§ 780-113(a)(30), (a)(16), and 18 Pa.C.S.A. § 7512(a),
respectively.
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have a confidential informant, the informant is debriefed as to how
the transaction usually goes.
Official funds are used to make purchases. We’ll use video
recording devices as permitted by law, and it can also be audio
depending if the person is consensualized. There will be
undercover officers involved with the transaction, if we can, and
actually there’s also surveillance during the deal.
After the deal, the evidence is – or, I’m sorry, the illegal drugs
purchased are taken into evidence, are submitted to usually the
state police laboratory for analysis, and we’ll get a lab report back
from that.
Id.
He testified that here, police used a confidential informant (“CI”) to
contact Marshall and set up the controlled buy. However, an undercover
officer, Officer Gale Berkin, actually met with Marshall to conduct the buy. Id.
at 8-9. Detective Bernard testified that in this case, they recorded the
transaction using a hidden video camera. On cross-examination, Detective
Bernard conceded he could “only see hand movement, exchange” on the
video, and could not see the drugs themselves:
[Defense Counsel]: The video that we just observed, would you
agree that there’s no controlled substance that is shown in the
video?
[Detective Bernard]: I could not see – I could only see hand
movement, exchange. I could not say, you know – no. I mean, I
could not see these pink bags if that’s what you’re asking, no.
[Defense Counsel]: So you didn’t see any money – the video
showed no money changing hands and no controlled substance
changing hands?
[Detective Bernard]: I could not make them out, no.
Id. at 26.
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The officer who conducted the buy, Officer Berkin, testified that on the
day in question the CI put her in contact with Marshall. Id. at 31. She then
spoke to Marshall directly over the phone and informed him that she wanted
to purchase $100 worth of crack cocaine. Id. at 31-32. She testified that
Marshall “told me to meet him at the Rite Aid in Moxham, and from there he
called me and told me to walk down the alley behind Sheetz.” Id. at 32. Before
meeting with Marshall, Officer Berkin was outfitted with a video device and
$100 in official funds to complete the controlled buy. Id.
Officer Berkin drove an undercover vehicle to meet with Marshall. Id. at
33. Officer Berkin testified that the undercover vehicle is regularly searched
to determine if there are any drugs or money inside. However, she was not
aware if the vehicle was searched on the date in question, or if there were any
drugs or money inside it at the time. Id. When Officer Berkin arrived at the
Rite Aid she received a phone call from Marshall. Id. at 34. Marshall directed
her to his vehicle and she entered his vehicle on the front passenger side. Id.
Officer Berkin testified that once inside the vehicle, she gave Marshall the
money in exchange for two red baggies of crack cocaine. Id. at 34-35. Officer
Berkin turned the crack cocaine over to another officer, Detective Kearn,2 and
they subsequently sent it to the Pennsylvania State Police Laboratory for
analysis. Id. at 19. Marshall stipulated at trial that the analysis “establishes
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2 Detective Kearn’s first name is not mentioned in the notes of testimony.
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that the substances recovered relating to these cases contained cocaine.” Id.
at 45.
Officer Berkin contacted Marshall a second time a week later to institute
another controlled buy but no buy occurred. Id. at 38. Marshall told Officer
Berkin to meet him at the Rite Aid. Id. Marshall arrived at the Rite-Aid and
the drug task force team arrested Marshall and seized the cell phone that he
had used to arrange the drug sales. Id. at 22-23. Officers searched the vehicle
but found no drugs or money. Id. at 24, 29.
Marshall was convicted of the aforementioned crimes. The court
imposed a sentence of 18 to 36 months’ incarceration. Marshall filed a motion
to reinstate post-sentence and appellate rights, which the court granted. On
November 30, 2018, Marshall filed a post-sentence motion challenging his
sentence or alternatively, asking for his convictions to be vacated. The court
denied the motion and this timely appeal followed.
Marshall raises one issue for our review:
Did the Commonwealth provide sufficient evidence of
[Marshall’s] guilt beyond a reasonable doubt on each
element of the alleged crimes to sustain conviction(s) at
trial?
Marshall’s Br. at 2.
The trial court and the Commonwealth both claim that Marshall has
waived his sufficiency challenge. The Commonwealth argues that Marshall
waived the issue because his Pa.R.A.P. 1925(b) statement is vague and
generic. Commonwealth’s Br. at 4-5. The Commonwealth notes that this Court
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has held an issue is waived where the appellant’s 1925(b) statement merely
states, “[t]he evidence was legally insufficient to support the convictions.” See
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.Super. 2013). Similarly,
the trial court found waiver because Marshall’s 1925(b) statement “does not
reference the elements of the crimes that he alleges the Commonwealth failed
to prove, nor does he identify any type of allegedly deficient evidence.” Trial
Court Opinion, filed 2/1/19, at 3.
The Pennsylvania Rules of Appellate Procedure require a 1925(b)
statement to “identify each ruling or error that the appellant intends to
challenge with sufficient detail to identify all pertinent issues for the judge.”
Pa.R.A.P. 1925(b)(4)(ii). “If Appellant wants to preserve a claim that the
evidence was insufficient, then the 1925(b) statement needs to specify the
element or elements upon which the evidence was insufficient. This Court can
then analyze the element or elements on appeal.” Commonwealth v.
Williams, 959 A.2d 1252, 1257 (Pa.Super. 2008) (quoting Commonwealth
v. Flores, 921 A.2d 517, 522 (Pa.Super. 2007)). Our Supreme Court’s
decision in Commonwealth v. Laboy, 936 A.2d 1058 (Pa. 2007), is
instructive. Laboy involved a challenge to the sufficiency of the evidence for
a PWID conviction. Id. Laboy’s 1925(b) statement read:
I. Evidence of drug trafficking and conspiracy was
insufficient.
II. Evidence of conspiracy was insufficient.
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Id. at 1058. The trial court concluded that the statement was insufficient.
However, in its opinion, the trial court “set out the evidence adduced against
[Laboy] in detail, accompanied by citations to the transcript, and concluded
that there was ample evidence” to support his convictions. Id. On appeal, our
Supreme Court agreed that Laboy’s statement was insufficient but declined to
find waiver because the case was “relatively straightforward.” Id. at 1060.
Here, Marshall’s 1925(b) statement asserts, “There was insufficient
evidence offered at trial to support [Marshall’s] convictions.” Pa.R.A.P.
1925(b) Statement. Unlike Laboy, the trial court in the instant case did not
conduct an analysis of Marshall’s sufficiency claims. It found the statement
insufficient and provided no further analysis. Therefore, we conclude that
Marshall has waived his sufficiency claim. However, for the following reasons,
even if Marshall did not waive the issue, his arguments fail.
Our standard of review for a sufficiency of evidence claim is de novo,
while “our scope of review is limited to considering the evidence of record,
and all reasonable inferences arising therefrom, viewed in the light most
favorable to the Commonwealth as the verdict winner.” See Commonwealth
v. Rushing, 99 A.3d 416, 420-21 (Pa. 2014). The finder of fact is free to
believe all, part, or none of the evidence presented in judging the credibility
of the witnesses, and is similarly free to determine the weight to afford the
evidence. Commonwealth v. Henkel, 938 A.2d 433, 438 (Pa.Super. 2007).
We may not re-weigh the evidence and substitute our judgment for that of
the fact finder. Commonwealth v. Smith, 146 A.3d 257, 261 (Pa.Super.
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2016). Additionally, the Commonwealth’s evidence “need not preclude every
possibility of innocence” in order to constitute proof beyond a reasonable
doubt. Commonwealth v. Lewis, 911 A.2d 558, 563 (Pa.Super. 2006)
(quoting Commonwealth v. Kim, 888 A.2d 847, 851 (Pa.Super. 2005)).
Indeed, it may sustain its burden by means of wholly circumstantial evidence.
See Commonwealth v. Crabill, 926 A.2d 488, 490 (Pa.Super. 2007) (citing
Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007)).
A. Possession of a Controlled Substance & PWID
In order to sustain a conviction for PWID, the Commonwealth must
prove “both the possession of the controlled substance and the intent to
deliver the controlled substance.” Commonwealth v. Estepp, 17 A.3d 939,
944 (Pa.Super. 2011) (quoting Commonwealth v. Lee, 956 A.2d 1024, 1028
(Pa.Super. 2008)). “It is well settled that all the facts and circumstances
surrounding possession are relevant in making a determination of whether
contraband was possessed with intent to deliver.” Lee, 956 A.2d at 1028
(quoting Commonwealth v. Brown, 904 A.2d 925, 931 (Pa.Super. 2006)).
“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, 611 (Pa.Super. 2003) (quoting Commonwealth v. Conaway,
791 A.2d 359, 363 (Pa.Super. 2002)).
The Commonwealth may prove possession by showing actual,
constructive, or joint constructive possession. Commonwealth v. Vargas,
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108 A.3d 858, 868 (Pa.Super. 2014) (en banc). To prove actual possession,
the Commonwealth must show that the contraband was found on the
defendant’s person. Id. It may carry its burden of proving constructive
possession by showing that the defendant had “the power to control the
contraband and the intent to exercise that control.” Id.; Commonwealth v.
Brown, 48 A.3d 426, 430 (Pa.Super. 2012) (quoting Commonwealth v.
Parker, 847 A.2d 745, 750 (Pa.Super. 2004)).
Here, Marshall argues that the evidence was insufficient to sustain a
conviction for PWID because the video of the controlled buy did not show an
exchange of money or drugs, there was no recorded conversation about the
controlled buy in the video, and police recovered no contraband or money
after his arrest. Marshall’s Br. at 5. He also maintains that Officer Berkin was
not searched prior to her engaging in the drug sale with Marshall and also
points to the inconsistent testimony of Detective Bernard and Officer Berkin
regarding the color of the packaging of the drugs. Id. at 6.
Viewing the evidence in the light most favorable to the Commonwealth,
we conclude that the Commonwealth presented sufficient evidence to sustain
the PWID conviction. Officer Berkin testified that Marshall handed her crack
cocaine in exchange for money. This was enough to prove at least constructive
possession, if not actual possession. Further, the Commonwealth proved
Marshall’s intent to distribute through Officer Berkin’s testimony that Marshall
contacted her by phone and directed her to where they could meet to complete
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the transaction. See Kirkland, 831 A.2d at 611 (holding that the behavior of
the defendant is a factor in determining intent).
Marshall also claims that the evidence was insufficient to sustain the
possession conviction. Marshall fails to develop this argument in his brief and
therefore waived it. See Commonwealth v. Russell, 209 A.3d 419, 429
(Pa.Super. 2019) (“An issue will be deemed to be waived where an appellant
fails to properly explain or develop it in his brief”). In any event, the testimony
that Marshall gave Officer Berkin crack cocaine in exchange for money
supported the possession conviction.
B. Criminal Use of Communication Facility
To sustain a conviction for criminal use of communication facility, the
Commonwealth “must prove that a defendant intentionally, knowingly, or
recklessly used a communication facility, and that, in so doing, the defendant
intentionally, knowingly, or recklessly facilitated the commission or attempted
commission of the underlying felony.” Commonwealth v. Moss, 852 A.2d
374, 381 (Pa.Super. 2004). A “communication facility” is defined as “a public
or private instrumentality used or useful in the transmission of signs, signals,
writing, images, sounds, data or intelligence of any nature transmitted in
whole or in part, including, but not limited to, telephone, wire, radio,
electromagnetic, photoelectronic or photo-optical systems or the mail.” 18
Pa.C.S.A. § 7512(c) (emphasis added). “Facilitation” is “any use of a
communication facility that makes easier the commission of the underlying
felony.” Moss, 852 A.2d at 382.
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Again, Marshall fails to develop or explain why the evidence was
insufficient, and he therefore has waived this claim as well. See Russell, 209
A.3d at 429. However, even if he had preserved this claim, we would reject it
for lack of merit.
Here, the underlying felony was PWID. The Commonwealth presented
evidence that Marshall used a communication facility, i.e., his cell phone, to
set up the drug sale with Officer Berkin. Using a cell phone in furtherance of
committing a felony is sufficient to sustain a conviction for criminal use of a
communication facility. See Moss, 852 A.2d at 382 (concluding sufficient
evidence for criminal use of communication facility where defendant use a
telephone to “discuss illicit drug transactions”). Viewed in the light most
favorable the Commonwealth, this evidence was sufficient to sustain the
conviction.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/2019
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