Com. v. Alvarado, B. ( 2015 )

J-S02027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRUCE ALVARADO
Appellant No. 488 EDA 2014
Appeal from the Judgment of Sentence January 24, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000702-2013
BEFORE: MUNDY, OLSON and WECHT, JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 06, 2015
Appellant, Bruce Alvarado, appeals from the judgment of sentence
entered on January 24, 2014. We affirm.
The trial court has ably summarized the underlying facts of this case.
As the trial court explained:
On January 1, 2013, Detective Perez and Officer Floyd set
up a narcotics surveillance on the 2800 block of Lee Street
in the City of Philadelphia. At approximately 5:20 p.m.,
Detective Perez observed [Appellant] standing on the
northwest corner of Lee Street and Somerset Street along
with another Hispanic male, later identified as Christopher
Keylez.[1] A white male, later identified as Andrew Cook,
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1
As the Commonwealth declares: “[t]he notes of testimony from trial
identify the cohort as ‘Christopher Ke[y]lez,’ but the trial court’s docket
identifies the co-defendant’s criminal matter as Commonwealth v.
Cristopher Quiles, CP-51-CR-0004687-2013.” Commonwealth’s Brief at 2
n.1. Nevertheless, with respect to the co-defendant’s last name, this
(Footnote Continued Next Page)
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approached them, engaged in a brief conversation, and then
handed Keylez [United States] currency. In response,
Keylez crossed the street to a vacant lot for approximately
one minute and returned to hand Cook a small item. Cook
then departed from the area and Detective Perez radioed
his description and direction of travel to backup officers. . . .
Cook was stopped by Officer Ashburn, who recovered one
yellow tinted packet of powder cocaine.
...
At approximately 5:55 p.m., Detective Perez observed
another white male, later identified as Francis Mandarin,
approach [Appellant] and Keylez, engage in a brief
conversation, and then hand Keylez [United States]
currency. In response, Keylez crossed the street to a
vacant lot for approximately one minute and returned to
hand Mandarin a small item with a fist over hand motion.
Mandarin then departed [] the area in a white Buick and
Detective Perez radioed [Mandarin’s] description, the
vehicle description, and the direction of travel to backup
officers. . . . Mandarin was stopped by Officer Crawford,
who recovered one peach packet of crack cocaine.
...
At approximately 6:25 p.m., Detective Perez observed a
third white male, later identified as Charles Gorman,
approach [Appellant] and Keylez, engage in a brief
conversation, and then hand [Appellant] [United States]
currency. In response, [Appellant] handed Gorman a small
item with a fist over hand motion. Gorman then departed []
the area in a Toyota Rav4 [automobile] and Detective Perez
radioed [Gorman’s] description, the vehicle description, and
the direction of travel to backup officers. The detective also
radioed a description of [Appellant] and [Keylez] to the
backup officers. . . . Gorman was stopped by Officer
Kenner, who recovered five clear packets of heroin with blue
glassine inserts stamped “China White.”
_______________________
(Footnote Continued)
memorandum will retain the spelling that is memorialized in the trial court’s
opinion and in the notes of testimony.
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...
[During Appellant’s trial, it was stipulated that “Officer
Criselli . . . stopped and arrested [Appellant] as [Appellant]
began to run into [Appellant’s house at] 2810 Lee Street.”
N.T. Trial, 10/30/13, at 20.] Officer Criselli [] recovered
[$150.00 in United States] currency from [Appellant’s]
person. [However, the police did not recover any controlled
substances from Appellant’s person]. Keylez was stopped
and arrested by Officer Walsh[,] who recovered [$250.00 in
United States] currency from [Keylez’s] person.
Trial Court Opinion, 5/13/14, at 2-4.
Following Appellant’s October 30, 2013 bench trial, the trial court
found Appellant guilty of possession of a controlled substance with the intent
to deliver (hereinafter “PWID”) and possession of a controlled substance.2
On January 24, 2014, the trial court sentenced Appellant to serve a term of
one-and-a-half to four years in prison for PWID.3
Appellant filed a timely notice of appeal and now raises the following
claim to this Court:
Was not the evidence insufficient to convict [Appellant] of
[PWID] and simple possession of a controlled substance
where the officer’s observations and circumstantial evidence
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2
35 P.S. § 780-113(a)(30) and (16), respectively.
3
Appellant was originally sentenced on October 30, 2013. However,
Appellant filed a timely post-sentence motion and, on January 24, 2014, the
trial court vacated Appellant’s judgment of sentence. Trial Court Order,
1/24/14, at 1. The trial court then re-sentenced Appellant to serve a term of
one-and-a-half to four years in prison for PWID, with credit for 379 days of
time served. Id.
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did not establish, beyond a reasonable doubt that
[Appellant] committed the illegal acts?
Appellant’s Brief at 3.
We review Appellant’s sufficiency of the evidence claim under the
following standard:
The standard we apply in reviewing the sufficiency of the
evidence is 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. In
applying the above test, we may not weigh the evidence
and substitute our judgment for [that of] 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.
Moreover, in applying the above test, the entire record must
be evaluated and all evidence actually received must be
considered. Finally, 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. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en
banc) (internal quotations and citations omitted).
Appellant claims that the evidence was insufficient to support his PWID
and simple possession convictions because “there was [not] enough []
circumstantial evidence to conclude beyond a reasonable doubt that the
drugs recovered from Mr. Gorman were sold to him by [Appellant]. . . .
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[Therefore, Appellant’s convictions are based upon] conjecture and
speculation.” Appellant’s Brief at 10 and 14. In other words, Appellant
claims that the evidence is insufficient to support his convictions because
“the evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined circumstances.”
Brown, 23 A.3d at 559-560 (internal quotations and citations omitted).
Appellant’s claim fails.
An individual is guilty of possession of a controlled substance if he
knowingly and intentionally possesses a controlled substance. 35 P.S.
§ 780-113(a)(16). Further, “[i]n order to convict an accused of PWID under
35 P.S. § 780-113(a)(30), the Commonwealth must prove that he both
possessed the controlled substance and had an intent to deliver that
substance.” Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super.
2011) (internal quotations and citations omitted).
Within Appellant’s brief to this Court, Appellant bases his argument
upon our Supreme Court’s opinion in Commonwealth v. Banks, 658 A.2d
752 (Pa. 1995). There, our Supreme Court held that the police did not have
probable cause to conclude that the defendant had sold contraband, where
the police observed: a single exchange on a street corner, where the
defendant handed an unidentified object to an unidentified female in
exchange for an undetermined amount of money, and the defendant fled
upon seeing the police. Appellant’s Brief at 12; Banks, 658 A.2d at 752.
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According to Appellant, since the Supreme Court concluded that the police
did not possess probable cause in Banks, “by definition” the evidence is
insufficient to support Appellant’s convictions in the case at bar. Appellant’s
Brief at 12-13.
Appellant’s reliance upon Banks fails because, in Banks, the police
merely observed a single street transaction and the police never stopped the
unidentified female – thus, the police were never able to determine what the
defendant sold to the female. Banks, 658 A.2d at 753. By contrast, in the
case at bar, the quantity and quality of the Commonwealth’s evidence is far
greater than was found in Banks. Specifically, in this case, the
Commonwealth presented evidence that: Appellant was lingering on a
street corner that was being used for drug distribution, with an individual
who was distributing cocaine; during the course of one hour, the police
observed Appellant and Keylez engage in three hand-to-hand street
transactions with passing individuals; the three hand-to-hand transactions
occurred in roughly the same manner (the individual approached Appellant
and Keylez on the corner, the individual engaged in a brief conversation with
Appellant and Keylez, the individual handed Appellant or Keylez money,
following the monetary exchange, either Appellant or Keylez handed the
individual “a small item” in a “fist over hand motion,” and, following the brief
transaction, the individual departed); each of the individuals was later
stopped by the police and the police recovered cocaine from the two who
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transacted with Keylez and a different drug – heroin – from the one who
transacted with Appellant; when police appeared on scene, Appellant
attempted to flee; and, a search of Appellant’s person revealed that
Appellant possessed $150.00.
Viewing this evidence in the light most favorable to the
Commonwealth, we conclude that the evidence is sufficient to prove that
Appellant possessed the heroin that was later recovered from Charles
Gorman and that, when Appellant possessed the heroin, Appellant possessed
the heroin with the intent to deliver. Appellant’s claim on appeal fails.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2015
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