Com. v. Thompson, T. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TEVIS THOMPSON
Appellant No. 3450 EDA 2013
Appeal from the Judgment of Sentence June 17, 2013
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0001324-2013
BEFORE: ALLEN, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 01, 2014
Following a non-jury trial, the court found Tevis Thompson
(“Appellant”) guilty of possession with intent to deliver a controlled
substance (“PWID”)1 and sentenced him to 2½-10 years’ imprisonment. The
lone issue in this direct appeal is whether the evidence is sufficient to sustain
Appellant’s conviction for PWID2. We affirm.
____________________________________________
1
35 P.S. § 780-113(a)(30).
2
The procedural history of this appeal deserves brief mention. On June 27,
2013, Appellant filed a timely post-sentence motion to modify and
reconsider sentence which was denied without a hearing by Order dated July
3, 2013. On September 11, 2013, Appellant filed a pro se Petition pursuant
to the Post-Conviction Relief Act alleging that trial counsel failed to file a
direct appeal after being instructed to do so by Appellant. By order dated
October 9, 2013, the PCRA court reinstated Appellant’s right to file a direct
appeal nunc pro tunc; trial counsel was directed to file a notice of appeal
within 30 days from the date of the Order. On October 24, 2013, Appellant
filed, pro se, a petition for Direct Appeal and subsequently a “Motion for
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Thompson raised multiple issues in his counseled Pa.R.A.P. 1925(b)
statement, but the only issue in his brief is a challenge to the sufficiency of
the evidence. Therefore, he has waived all other issues within his Pa.R.A.P.
1925(b) statement3. Commonwealth v. Kearney, 92 A.3d 51, 66-67
_______________________
(Footnote Continued)
Appointment of Counsel.” On November 13, 2013, trial counsel filed a
motion to withdraw as counsel. On November 20, 2013, the trial court
ordered Thompson to file a Pa.R.A.P. 1925(b) statement of matters
complained of on appeal no later than 21 days from the date of the Order.
On November 26, 2013, the court granted in forma pauperis status to
Thompson and permitted trial counsel to withdraw. On the same date, the
court appointed new counsel to represent Thompson on appeal. On
December 9, 2013, acting pro se, Thompson filed a Pa.R.A.P. 1925(b)
statement. One day later, the court directed appellate counsel to file a
Pa.R.A.P. 1925(b) statement. The court later granted appellate counsel an
extension to file the Pa.R.A.P. 1925(b) statement until after the trial and
sentencing transcripts became available. On March 11, 2014, appellate
counsel filed his Pa.R.A.P. 1925(b) statement. On March 19, 2014, the trial
court filed its Pa.R.A.P. 1925(a) opinion.
3
These issues are as follows:
The trial court erred when it failed to dismiss the case or issue an
appropriate remedy when Officer Brady, while sequestered during a recess
in his testimony, conferred with Sergeant Bugsch, about matters relating to
Officer Brady's testimony.
The guilty verdict to the charge of [PWID] was against the weight of the
evidence.
The trial court erred when it drew an adverse inference from [Appellant’s]
decision to not call the Commonwealth's informant as a defense witness.
The trial court erred when it denied [Appellant’s] motion for the release of
certain information contained within the personnel files of three police
officers involved in the case.
Pa.R.A.P. 1925(b) Statement, ¶¶ 1, 3-5.
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(Pa.Super.2014) (issues are waived on appeal due to absence of developed
argument).
Thompson challenges the sufficiency of the evidence as follows: “The
Commonwealth’s evidence was insufficient to establish a guilty verdict to the
charge of [PWID] when the record contained insufficient evidence to prove
the elements of ‘possession’ and ‘delivery’ beyond a reasonable doubt.”
Pa.R.A.P. 1925(b) statement, ¶ 2. Our standard of review for challenges to
the sufficiency of the evidence is well-settled:
[W]hether[,] viewing all the evidence admitted at
trial in the light most favorable to the
[Commonwealth as 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.
Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super.2003) (citations
omitted).
Pennsylvania law criminalizes “the manufacture, delivery, or
possession with the intent to manufacture or deliver, a controlled substance
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by a person not registered under this act, or a practitioner not registered or
licensed by the appropriate state board, or knowingly creating, delivering or
possessing with intent to deliver a counterfeit controlled substance.” 35 P.S.
§ 780-113(a)(30). A “delivery” is “the actual, constructive, or attempted
transfer from one person to another of a controlled substance, other drug,
device or cosmetic whether or not there is an agency relationship.” 35 P.S.
§ 780-102. Thus, to establish the element of delivery of a controlled
substance, the Commonwealth must prove that the defendant knowingly
made an actual, constructive, or attempted transfer of a controlled
substance to another person without the legal authority to do so.
Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa.2004). PWID may
be inferred from the facts and circumstances surrounding the case.
Commonwealth v. Daniels, 999 A.2d 590, 595 (Pa.Super.2010). Factors
that may be relevant in establishing PWID include packaging, the form of the
drug, and the defendant’s behavior. Id.
Construed in the light most favorable to the Commonwealth, the
evidence is as follows: on August 13, 2012, Bensalem Township police
officers were conducting a drug investigation relating to Adrian Thompson.
N.T. 6/17/13 (“Tr.”), pp. 8-9. During the investigation, the officers
performed a controlled purchase (“controlled buy”) at 909 Bristol Pike,
Building D, with the help of a confidential informant (“CI”). Tr., pp. 8-10.
Bensalem Officer Brady searched the CI prior to the controlled buy, found
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the CI free of contraband, and handed him $120 in prerecorded buy money.
Tr., pp. 10-11. The CI advised that Adrian Thompson told the CI that the
meeting at 909 Bristol Pike would be with Adrian’s brother instead of Adrian
himself. Tr., pp. 7-8.
Upon arriving at 909 Bristol Pike, Officer Brady parked directly in front
of Building D and observed the CI ring the front bell. Tr., pp. 18-19. Officer
Brady does not wear glasses or contact lenses, and his assignment was to
observe the CI throughout the entire transaction. Tr., p. 15. The CI never
left Officer Brady’s view throughout the transaction. Tr., pp. 10, 17, 19, 20,
25, 40, 50.
The building’s main entrance consisted of two doors, both of which had
glass windows. Tr., p. 17. The building was a dwelling with a vestibule in
front of the doors and stairs that lead up to apartments and down to other
apartments. Tr., p. 17.
Officer Brady observed Appellant come up from the bottom floor, open
the front door of the apartment building, and hand something to the CI in
the vestibule. Tr., pp. 19-21. The CI returned directly to Officer Brady’s
vehicle and turned over two bags of cocaine. Tr., pp. 19-21. Officer Brady
was unaware of Appellant’s identity at the time he viewed Appellant deliver
the two bags of cocaine to the CI containing .76 grams of cocaine. Tr., p.
25. The CI no longer had the buy money. Tr., pp. 25-26.
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Sergeant Robert Bugsch, who was positioned about 90 feet away from
Officer Brady, testified that he saw the CI walk to the doorway and saw
movement inside the vestibule, although he could not specifically see the
hand to hand transaction. Tr., pp. 68-69. After the CI walked back to
Officer Brady’s vehicle, Sergeant Bugsch approached the building several
minutes later and rang doorbell number 4. Tr., pp. 71-72. Appellant came
out of Apartment D4, opened the door to the apartment building and stood
face to face with Sergeant Bugsch. Tr., pp. 71-72.
The next day, August 14, 2012, Bensalem police continued their
investigation of Adrian Thompson with the same CI. Tr., pp. 27-28. Officer
Brady testified that he and the CI drove to the same location as the day
before, 909 Bristol Pike, Building D. Tr., p. 29. When they arrived at this
location, a blue Volkswagen Jetta pulled into the same parking lot. Officer
Brady saw Adrian Thompson in the passenger seat of the vehicle and
Appellant in the driver’s seat. Tr., pp. 29-31. Officer Brady then observed
Adrian Thompson deliver drugs to the CI. Tr., p. 30. Officer Brady obtained
the license plate of the Jetta and learned that Appellant was its registered
owner. Tr., pp. 30-31. Based on the vehicle identification, the officers were
able to identify Appellant, by name, as the person they saw conduct the
drug transaction on August 13, 2012. Tr., p. 30.
Viewed in the light most favorable to the Commonwealth, there was
sufficient evidence to prove the elements of possession and delivery beyond
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a reasonable doubt. Prior to the transaction between Appellant and the CI,
the CI had $120.00 in cash on his person but no controlled substances. The
CI then engaged in a hand to hand transaction with Appellant while two
Bensalem police officers watched the transaction. Following the transaction,
the CI brought .76 grams of cocaine back to Officer Brady but no longer had
any cash in his possession. This evidence demonstrates that Appellant
possessed cocaine at the beginning of the transaction and delivered it to the
CI in exchange for money. Cf. Daniels, supra, 999 A.2d at 595 (evidence
was sufficient to support defendant's conviction for PWID; officer witnessed
man approach defendant while defendant was sitting in parked car, officer
witnessed hand-to-hand exchange of money for small objects, the man was
stopped and discovered to be in possession of blue-tinted packet of heroin,
and when defendant was arrested, he was found to be in possession of five
blue heat-sealed packets of heroin and $374 in cash).
Appellant argues that the evidence against him was insufficient due to
inconsistencies in the police officers’ testimony. Specifically, Appellant
complains that during a pre-trial suppression hearing, Sergeant Bugsch
testified that on August 13, 2012, he could not see which apartment unit the
seller came from, but during trial, he testified that he could see the seller
walk up from the lower level of the apartment building to meet the CI.
Further, Appellant contends that Officer Brady’s arrest reports were
inconsistent with his trial testimony, because he failed to document the
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details of the hand to hand transaction on August 13th or document that he
saw Appellant’s face.
These objections do not undermine the sufficiency of the evidence
against Appellant. The trial court, sitting as factfinder, heard these minor
discrepancies and resolved them in the Commonwealth’s favor. We cannot
second-guess the trial court’s findings of fact. Our role on appeal is limited
to determining whether the evidence, viewed in the light most favorable to
the Commonwealth, proves the crime of PWID beyond a reasonable doubt.
Construed under this standard, the evidence clearly is adequate to sustain
Appellant’s conviction.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2014
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