Com. v. Thomas, D. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DERRICK LEWIS THOMAS
Appellant No. 581 MDA 2016
Appeal from the Judgment of Sentence February 18, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002118-2015
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED MARCH 24, 2017
Derrick Lewis Thomas appeals from the judgment of sentence, entered
in the Court of Common Pleas of Dauphin County, following his conviction of
manufacture, delivery, or possession with intent to manufacture or deliver,1
and possession of drug paraphernalia.2 We affirm.
On January 16, 2015, a confidential informant (CI) engaged in a
controlled buy of $190.00 worth of crack cocaine from an individual known
as “Howie.” The controlled buy occurred in the area of the Family Dollar
Store on South 13th Street in Harrisburg, and it involved two vehicles, a blue
pick-up truck and a silver Dodge Durango. The CI was approached by a
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1
35 P.S. § 780-113(a)(30).
2
35 P.S. § 780-113(a)(32).
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man who exited the rear passenger side of the Durango and gave the CI
$190.00 worth of crack cocaine in exchange for marked money. The man
then got into the blue pick-up truck. Both the Durango and the pick-up
truck were stopped.
Officer Timothy Brooks and his partner approached the Durango, and
Thomas was identified as the front-seat passenger. Officer Brooks asked
Thomas to get out of the car; in doing so, Thomas placed a plastic grocery
bag that had been on his lap onto the floor of the car. The officers arrested
Thomas. The bag contained 102 grams of cocaine, bags used for
distributing drugs, and a digital scale. Though unemployed, Thomas had
$1,560 in cash on his person.
Thomas filed a motion to suppress, which the court denied. Following
trial, the Honorable Richard A. Lewis presiding, a jury convicted Thomas of
the aforementioned charges. The court sentenced Thomas to 90 to 180
months’ incarceration. On appeal, Thomas raises the following issues:
1. Whether the trial court erred by not granting [Thomas’]
suppression motion as it was evident that the informant
arranged a drug deal with “Howie” who was a back seat
passenger in a silver Dodge Durango, the silver Durango
or the driver was not a target of the investigation, and
other than the fact that the silver Durango was the
transportation to bring “Howie” to the meeting location,
there was not sufficient probable cause to stop said vehicle
as it was not implic[ated] in a crime.
2. Whether the trial court erred by not granting [Thomas’]
post sentence motion as it relates to the sufficiency of the
evidence as there existed [g]laring contradictions as to
what was found in the car, where it was found and what
color the alleged [bag] containing cocaine was.
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3. Whether the trial court erred by not granting [Thomas’]
post sentence motion as it relates to the weight of the
evidence as there existed [g]laring contradictions as to
what was found in the car, where it was found and what
color the alleged ba[g] containing cocaine was, and to not
grant a new trial would so offend the senses based on a
sworn officer swearing that the cocaine at issue was found
in a dark color bag in the back seat of the suspect vehicle
and not in a light colored plastic bag in the front of the
vehicle.
Appellant’s Brief, at 6.
Thomas first contends that the suppression court erred in denying his
motion to suppress because the officers did not have probable cause to stop
the silver Durango. He argues that the officers “saw no illegal activity on the
part of the silver Durango, the front seat passenger or the driver[,] yet still
ordered the car to be stopped.” Appellant’s Brief, at 17. Essentially,
Thomas claims that since the person who delivered the drugs to the CI “was
a rear seat passenger” in the silver Durango, there was no probable cause to
stop the vehicle. Id. We disagree.
Our standard of review of an order denying a motion to suppress is
well established:
We are limited to determining whether the lower court’s factual
findings are supported by the record and whether the legal
conclusions drawn therefrom are correct. We may consider the
evidence of the witnesses offered by the Commonwealth, as
verdict winner, and only so much of the evidence presented by
[the] defense that is not contradicted when examined in the
context of the record as a whole. We are bound by facts
supported by the record and may reverse only if the legal
conclusions reached by the court were erroneous.
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Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa. Super. 2006). See
also Commonwealth v. Feczko, 10 A.3d 1285 (Pa. Super. 2010) (en
banc).
At the suppression hearing, Officer Brooks testified as follows:
Q: Did you approach the vehicle?
A: Yes. We were alerted to a vehicle that was parked in the
Asia Mall parking lot?
Q: Did you approach the vehicle?
A: I did approach it after vice said that it was a good
deal [successful controlled buy] and I guess they moved
in on the individual that sold the controlled substance.
We moved to a vehicle that was involved in the incident.
***
Q: So you approached an SUV that was involved—that you
knew to be involved in the transaction?
A: Yes.
Q: Did you approach the driver’s side or passenger’s side?
A: I pulled my marked unit and positioned myself on the
passenger side. My partner Office Pupo and I exited, drew our
firearms and ordered everyone’s hands up. Vice units, I believe,
moved in from the driver’s side. . . . [The defendant] was the
passenger in the vehicle.
Q: He was the back passenger or the front passenger?
A: Front passenger.
Q: So the driver’s area passenger?
A: Yes.
Q: Did he comply when you initially requested he lift his
hands?
A: Yes, he put his hands directly up and we opened the
passenger side door.
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Q: Did you immediately observe any contraband on the
defendant’s person or in the defendant’s area?
A: Yes, he had a bag and it appeared to be containing cocaine
on his lap.
Q: Was it a smaller or large amount of crack cocaine?
A: It appeared to be a large amount.
***
Q: What was it packaged in?
A: I am not sure. It was like some type of plastic bag. I just
know that when he threw his hands up, the plastic bag was
there. He had to remove the bag to get out of the vehicle. He
sat it down and he was able to exit the vehicle and we took him
into custody.
Q: Did you retrieve any other contraband from the
defendant’s person?
A: I didn’t personally. I witnessed Officer Pupo do a quick pat
down of the person. [There] was a large bulge in his jeans
pocket. She removed that item and handed it at the time [to]
Detective Gautsch and it was a large sum of U.S. currency.
N.T. Suppression Hearing, 11/19/15, at 37-40 (emphasis added).
Whether probable cause exists to stop and search an individual
depends on whether “the facts and circumstances which are within the
knowledge of the officer at the time of the arrest, and of which [an officer]
has reasonably trustworthy information, are sufficient to warrant a man of
reasonable caution in the belief that the suspect has committed or is
committing a crime.” Commonwealth v. Rodriguez, 585 A.2d 988, 990
(Pa. 1991). Probable cause requires only a probability, and not a prima facie
showing, that an officer’s belief is correct. Commonwealth v. Thompson,
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985 A.2d 928, 931 (Pa. 2009). Courts apply a totality of the circumstances
test to determine whether probable cause exists. Id.Here, officers observed “Howie,” the seller, get out of the silver
Durango and, after the transaction was over, get into another car. Based on
their observation of this illegal drug transaction, the officers had information
sufficient to warrant a suspicion that whoever was in the silver Durango was
involved in the drug transaction as well. Indeed, the officers did not stop
the silver Durango until after receiving confirmation that the controlled buy
was successful. See N.T. Suppression Hearing, supra at 37. We agree with
the Commonwealth that there was a “very clear lineal tie between” the silver
Durango, “Howie,” the seller, and the confirmed drug transaction. Id. at
73.
Based on the totality of the circumstances summarized above, the
officers had sufficient probable cause to stop the silver Durango. See
Rodriguez, supra; Thomas, supra. Accordingly, we find no error.
Thomas next contends that the evidence was insufficient to sustain his
convictions. When reviewing the sufficiency of evidence, our standard of
review is whether, whether viewing all the evidence admitted at trial in the
light most favorable to the Commonwealth, as verdict winner, there is
sufficient evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. Commonwealth v. McClendon, 874
A.2d 1223, 1228-29 (Pa. Super. 2005).
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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.
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. Furthermore, when
reviewing a sufficiency claim, our Court is required to give the
prosecution the benefit of all reasonable inferences to be drawn
from the evidence.
Id. (quoting Commonwealth v. Robinson, 817 A.2d 1153, 1158 (Pa.
Super. 2003)). See also Commonwealth v. Davido, 868 A.2d 431, 435
(Pa. 2005).
In order to be convicted under 35 P.S. § 780-113(a)(30) of PWID, the
Commonwealth must prove that Thomas “both possessed the controlled
substance and had an intent to deliver that substance.” Commonwealth v.
Parsons, 570 A.2d 1328, 1334 (Pa. Super. 1990), citing 35 P.S. § 780-
113(a)(3). When examining whether a controlled substance was possessed
with intent to deliver, the court must consider all of the facts and
circumstances surrounding the possession of the substance.
Commonwealth v. Torres, 617 A.2d 812, 814 (Pa. Super. 1992).
Additionally, the Commonwealth may establish the elements of a crime
entirely by circumstantial evidence. Id. Thus, possession with intent to
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deliver can be inferred from the quantity of the drugs possessed and other
surrounding circumstances, such as lack of paraphernalia for consumption.
Id.Here, the Commonwealth established that when Officer Brooks asked
Thomas to exit the vehicle, Thomas removed a plastic bag from his lap and
placed it on the floor in front of him in the front passenger seat. The bag
contained 102.07 grams of cocaine, empty plastic sandwich bags (used for
packaging cocaine), and a digital scale. Additionally, officers found $1,560
in U.S. currency on Thomas’ person. Further, the Commonwealth presented
the testimony of expert witness Detective John Goshert, a former police
officer with the Harrisburg Police Department, who spent 24 years in the
Organized Crime and Vice Control Unit and had been involved in thousands
of drug investigations. Detective Goshert testified that in his opinion the
above-mentioned facts indicated that Thomas possessed the cocaine with
intent to deliver, rather than for his own personal use. N.T. Trial, 2/10-
11/16, at 174-195.
Viewing this evidence in the light most favorable to the
Commonwealth, as verdict winner, the trier of fact could find that Thomas
possessed the cocaine with intent to deliver in violation of section 780-
115(a)(30).
Thomas was also convicted of possession of drug paraphernalia under
35 P.S. § 780-113(a)(32), which provides that the following activities are
prohibited:
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(32) The use of, or possession with intent to use, drug
paraphernalia for the purpose of planting, propagating,
cultivating, growing, harvesting, manufacturing, compounding,
converting, producing, processing, preparing, testing, analyzing,
packing, repacking, storing, containing, concealing, ingesting,
inhaling or otherwise introducing into the human body a
controlled substance in violation of this act.
The term drug paraphernalia is defined in 35 P.S. § 780-102(b)(9) to
include among other items:
(9) Capsules, balloons, envelopes and other containers used,
intended for use or designed for use in packaging small
quantities of controlled substances.
Thus, it is clear that ordinary packaging materials, such as small plastic
sandwich bags, can be drug paraphernalia. Here, the Commonwealth
established through Detective Goshert’s expert testimony that the small
plastic sandwich bags and the digital scale were “sales-related”
paraphernalia. N.T. Trial, supra at 190-94. See also 35 P.S. § 780-102
(providing guidance as to factors to be considered when determining
whether item is drug paraphernalia). Viewing the evidence in the light most
favorable to the Commonwealth, as verdict winner, we conclude the
Commonwealth presented sufficient evidence to find Thomas guilty of
possession of drug paraphernalia in violation of section 780-113(a)(32).
Torres, supra.
In his final issue, Thomas claims the verdict is against the weight of
the evidence. The factors to be considered by an appellate court when
addressing a weight of the evidence challenge are as follows:
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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 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. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations
omitted).
A motion for a new trial based on a claim that the verdict is against
the weight of the evidence is addressed to the discretion of the trial court.
The court should not grant a new trial because of a mere conflict in the
testimony, or because the judge on the same facts would have arrived at a
different conclusion. “Rather, 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
justice.” Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013).
Here, there was conflicting testimony from the officers as to the color
and location of the plastic bag containing the cocaine. Thomas asks this
Court to re-weigh the evidence and assess the credibility of the witnesses
presented at trial, a task that is beyond our scope of review. It was within
the jury’s province to make credibility determinations regarding the
conflicting testimony. Champney, supra; see also Commonwealth v.
Widmer, 744 A.2d 745, 751-52 (Pa. 2000). The trial court reviewed this
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weight claim and determined that the verdict was not so contrary to the
evidence as to shock its conscience. Thus, the court properly denied this
claim. We find no abuse of discretion. Champney, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2017
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