Com. v. Johnson, M. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MATTHEW JOHNSON :
:
Appellant : No. 2784 EDA 2017
Appeal from the Judgment of Sentence July 18, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004231-2016
BEFORE: OTT, J., DUBOW, J., and COLINS*, J.
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 23, 2019
Appellant, Matthew Johnson, appeals from the Judgment of Sentence
entered by the Delaware County Court of Common Pleas following his
conviction after a bench trial of three counts of Sale of Noncontrolled
Substance Representing as a Controlled Substance.1 He raises a challenge to
the sufficiency of evidence. After careful review, we reverse his convictions
and vacate his Judgment of Sentence.
We glean the following facts from the certified record. In February 2016,
Police Officer Stacey Rucker participated in an undercover drug operation
investigation in Darby Borough. While monitoring Instagram, she observed a
photograph of three small blue pills in a clear vial with dark purple liquid,
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1 35 P.S. § 780-113(a)(35)(ii).
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* Retired Senior Judge assigned to the Superior Court.
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labeled “pancakes and syrup,[2] who wants some[?]” N.T. Trial, 7/18/17, at
17. The photograph was associated with the Instagram account belonging to
Itstatagg.
On February 11, 2016, Officer Rucker contacted Itstatagg through
Instagram, and inquired about purchasing “pancakes and syrup.” In response,
Itstatagg gave Officer Rucker a cell phone number to text message when she
was ready to make a purchase.
On February 15, 2016, Officer Rucker texted the cell phone number and
arranged to purchase four vials of “pancakes and syrup” for $70 at the 9th
and Main Street trolley loop that afternoon. When she arrived at the trolley
loop, Officer Rucker recognized Appellant from photograms on the Itstatagg
Instagram account. Appellant reached into a duffle bag and pulled out four
vials filled with dark liquid. In return for the four vials, Officer gave Appellant
$70 in cash.
Two days later, on February 17, 2016, Officer Rucker texted the cell
phone number again and requested four more vials of “pancakes and syrup.”
She again met Appellant at the 9th and Main Street trolley loop later that day,
where Appellant gave her four vials for $70.
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2 “Pancakes and syrup” is the street name for a mix of the narcotic codeine
and promethazine. N.T. Trial, 7/18/17, at 18. Codeine is a controlled
substance; promethazine is not. See 35 P.S. § 780-104 (schedules of
controlled substances).
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Officer Rucker contacted Appellant on February 25, 2016, and inquired
about purchasing “lean.” 3 Appellant informed her that he only had half-ounce
jars of “lean” for sale for $20 each, plus a delivery fee; Officer Rucker agreed
to purchase jars at that price. They met again at the trolley loop where
Appellant gave her two half-ounce jars of purple liquid in exchange for $50.
He informed her that “these ones are stronger than the last ones.” N.T. Trial
at 35.
Officer Rucker sent the vials and jars she purchased from Appellant to
the Pennsylvania State Police laboratory for testing, which revealed that none
of the items she purchased from Appellant contained any controlled
substances. The Commonwealth charged Appellant with three counts of Sale
of Noncontrolled Substance Representing as a Controlled Substance.
On July 18, 2017, the court held a bench trial, in which Officer Rucker
was the sole witness. The court found Appellant guilty of all three counts. On
the same date, the court sentenced him to an aggregate term of four to
twenty-three months of imprisonment. Appellant filed a Post-Sentence
Motion, which the trial court denied.
Appellant filed a Notice of Appeal. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
In his Brief, Appellant raises the following issue: “[w]hether [the]
Commonwealth presented sufficient evidence that [Appellant] sold a
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3 “Lean” is the street name for codeine. Id. at 33.
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Noncontrolled Substance Representing as a Controlled Substance under 35
P.S. 780-113[(]35)(ii),” contending that the Commonwealth failed to present
any evidence supporting the factors set forth in the statute. Appellant’s Br. at
7, 11.
“A claim challenging the sufficiency of the evidence is a question of
law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “We
review claims regarding the sufficiency of the evidence by considering
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.”
Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017), appealed
denied, 172 A.3d 632 (Pa. 2018) (internal quotation marks and citations
omitted). “Further, a conviction may be sustained wholly on circumstantial
evidence, and the trier of fact—while passing on the credibility of the witnesses
and the weight of the evidence—is free to believe all, part, or none of the
evidence.” Id. “In conducting this review, the appellate court may not weigh
the evidence and substitute its judgment for the fact-finder.” Id.
Pursuant to 35 P.S. § 780-113(a)(35)(ii):
[N]o person shall knowingly distribute or sell a noncontrolled
substance upon the express or implied representation that the
substance is a controlled substance. In determining whether there
has been a violation of this subclause, the following factors shall
be considered:
(A) Whether the noncontrolled substance in its overall
finished dosage appearance is substantially similar in
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size, shape, color and markings or lack thereof to a
specific controlled substance.
(B) Whether the noncontrolled substance in its
finished dosage form is packaged in a container which,
or the labeling of which, bears markings or printed
material substantially similar to that accompanying or
containing a specific controlled substance.
(C) Whether the noncontrolled substance is packaged
in a manner ordinarily used for the illegal delivery of
a controlled substance.
(D) Whether the consideration tendered in
exchange for the noncontrolled substance
substantially exceeds the reasonable value of
the substance, considering the actual chemical
composition of the substance and, where applicable,
the price at which over-the-counter substances of like
chemical composition sell.
(E) Whether the consideration tendered in
exchange for the noncontrolled substance
approximates or exceeds the price at which the
substance would sell upon illegal delivery were it
actually the specific controlled substance it physically
resembles.
35 P.S. § 780-113(a)(35)(ii) (emphasis added).
The first three factors of 35 P.S. § 780-113(a)(35)(ii) pertain to the
substance and packaging of the counterfeit substances. The substance must
be similar in size, shape, color, and marking to the controlled substance, and
in a container similar to the kind used to carry the controlled substance.
Commonwealth v. Dancy, 650 A.2d 448, 451 (Pa. Super. 1994). The last
two factors pertain to the price of the counterfeit substance—whether the
consideration exceeds the reasonable value of the counterfeit substance and
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approximates the value of the controlled substance that the purchaser
believed she was purchasing. Id.
At trial, the Commonwealth produced evidence that addressed only the
first three factors of 35 P.S. § 780-113(a)(35)(ii). Officer Rucker’s testimony
regarding the three transactions noted above showed that the counterfeit
substances that Appellant sold to Officer Rucker were similar in appearance,
including form and packaging, to “pancakes and syrup” or “lean.” Officer
Rucker stated that she had made 200 drug purchases in her capacity as an
undercover officer, and had encountered “pancakes and syrup.” N.T. Trial at
16. She indicated that it was typically packaged in small clear vials with
colored liquid. Id. at 17, 60. She noted that liquid could be purple or a variety
of other colors. Id. at 17. Officer Rucker further testified that she had
purchased “pancakes and syrup” as well as “lean” in the same forms, including
packaging, that Appellant had sold her the counterfeit substances. Id. at 60.
However, the Commonwealth presented no evidence regarding the last
two factors. The Commonwealth never presented evidence about the type of
substance that the officer actually purchased. The parties stipulated only that
the laboratory results revealed that the vials and jars at issue did not contain
any controlled substances. Id. at 64. The parties did not stipulate to the type
of substance in the vials and jars. Additionally, Officer Rucker admitted during
cross-examination that the bottles “could have [contained] anything. . . . [W]e
can’t field test.” Id. at 50. Without evidence of the type of substance that
Appellant sold to the officer, the Commonwealth could not establish “the
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reasonable value of the substance” as required by subsection D. See 35 P.S.
§ 780-113(a)(35)(ii)(D).
Moreover, Officer Rucker never testified about the prevailing market
price of “pancakes and syrup” or “lean.” She simply testified about the amount
of money she paid Appellant in each of the three transactions, and that she
had thought she was purchasing controlled substances. See id. at 22, 29, 32,
34, 42-43.
Therefore, even considering all of the evidence admitted at trial in the
light most favorable to the Commonwealth as verdict winner, we conclude that
the Commonwealth failed to present evidence regarding “[w]hether the
consideration tendered in exchange for the noncontrolled substance
substantially exceeds the reasonable value of the substance” and “[w]hether
the consideration tendered in exchange for the noncontrolled substance
approximates or exceeds the price at which the substance would sell upon
illegal delivery were it actually the specific controlled substance it physically
resembles.” 35 P.S. § 780-113(a)(35)(ii)(D)-(E).
Consequently, we conclude that there is insufficient evidence to sustain
Appellant’s convictions for Sale of a Noncontrolled Substance Representing as
a Controlled Substance. Accordingly, we reverse his convictions.
Judgment of Sentence reversed. Jurisdiction relinquished.
Judge Colins joins the memorandum.
Judge Ott files a dissenting memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/19
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