Com. v. Alrasheedi, E. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
EID ALRASHEEDI
Appellant : No. 938 MDA 2018
Appeal from the Judgement of Sentence May 9, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0005997-2017
BEFORE: BOWES, J., NICHOLS, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 24, 2019
Appellant, Eid Alrasheedi, appeals from the judgment of sentence
entered in the Court of Common Pleas of Lancaster County, which, sitting as
finder of fact in his bench trial, found him guilty on one count of Possession
with Intent to Deliver Heroin (“PWID”), 35 P.S. § 780-113(a)(30), and one
count of possession of drug paraphernalia, 35 P.S. § 780-113(a)(32).
Sentenced to 204 days to 23 months’ incarceration on the PWID conviction,
with one year of concurrent probation for possession, Appellant challenges the
sufficiency of evidence offered to prove he possessed the heroin in question.
We affirm.
At Appellant’s criminal trial, the Commonwealth presented the
testimony of Officers J. Hatfield and Jason Hagy to prove the charge of PWID.
Specifically, Officer Hatfield, a police officer with 13 years of narcotics
investigations experience while serving the City of Lancaster, testified he was
* Former Justice specially assigned to the Superior Court.
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driving a marked patrol vehicle through a high-crime area, known for heroin
trafficking and daily overdoses, at approximately 10:55 p.m. or 11:00 p.m.
At this time, with the aid of streetlights and activation of the patrol car’s high-
beams, Officer Hatfield clearly observed a male on a bike and Appellant
extending their hands toward one another, with one palm down and one palm
up, as in the act of making a hand-to-hand exchange. N.T. 5/9/18, at 7-10.
The positioning of hands was different than a handshake. N.T. at 11. When
the male on the bike made eye contact with Officer Hatfield, however, he rode
his bike across the street and away from the area. N.T. at 10. No one else
was on the block at the time. N.T. at 11.
Appellant, meanwhile, went across the street and ducked behind the
sidewalk side of a white pickup truck with a large floor model flat-screen TV
in the back. N.T. at 11. Officer Hatfield remained in the patrol car, and he
observed Appellant “peeking out like this, [demonstrating], like looking to see
where I - what I was doing, if I was going to keep moving. And I actually
observed him when he poked his head out the one time and engaged in a
mere encounter with him.” N.T. at 12.
Officer Hatfield addressed Appellant with, “Hey, Bud, do you live in this
area?” Appellant answered “yeah,” to which Officer Hatfield asked, “Where in
this area do you live?” Appellant would not give an exact address, but kept
saying “back here,” without turning toward the houses behind him or using
his hands to point that way. N.T. at 13. It occurred to Officer Hatfield at this
time that Appellant would not pull his hands out from behind the pick-up truck.
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N.T. at 13. Officer Hatfield also noticed Appellant spit onto the ground and
periodically look down into the storm drain or gutter, “as if he was, like,
keeping an eye on something.” N.T. at 14, 23.
As soon as Officer Hatfield opened the driver’s side door, Appellant ran
to one of the residences and started pounding on the front door “real hard,
screaming for them to let him in.” N.T. at 13-14. Officer Hatfield called for
back-up units and asked Appellant to have a seat on the steps of the
residence. N.T. at 14. As Officer Hatfield now looked towards the pick-up
truck from the sidewalk side, he could see a clear sandwich bag lying in the
gutter next to a spot of saliva on the sidewalk. N.T. at 15. The bag contained
two bundles of heroin. N.T. at 15. Less than a foot away, moreover, was a
third bundle of heroin. N.T. at 15. It was Officer Hatfield’s experience that it
would be uncommon for someone to just leave three bundles of heroin in the
gutter in this neighborhood, as the bags “wouldn’t have lasted very long down
there.” N.T. at 18.
At that point, Officer Hatfield arrested Appellant for suspicion of PWID
and possession. N.T. at 16. A search incident to arrest disclosed a game
cigarette wrap commonly used for smoking marijuana, $67 in U.S. currency,
no paraphernalia for personal heroin use, and two cell phones. N.T. at 16.
Officer Jason Hagy provided expert testimony that a typical heroin use
arrested for personal possession has around three baggies of heroin. N.T. at
46. Astreet-level heroin dealer, on the other hand, typically has “five bundles,
six bundles, sometimes ten bundles; and if they’re in the middle of selling,
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you know, two-plus bundles[,]” Hagy testified. N.T. at 50. Each bundle
contains ten to 15 baggies. N.T. at 48.
In the present case, the three bundles recovered contained a total of 28
baggies of heroin, which had a street value of around $280 to $300. N.T. at
50. In Officer Hagy’s experience, heroin users in Lancaster County do not
typically buy heroin in bundles, unless several addicts pool their money. N.T.
at 50. “A bundle of heroin — I wouldn’t be surprised for a user to buy a bundle
of heroin but not multiple bundles of heroin at one time. I would say that’s
rare[,]” he opined. N.T. at 52.
Officer Hagy also drew a distinction between Lancaster City heroin users
and heroin street-dealers with respect to cell phone possession. In the
officer’s experience, it is “rare” for a heroin user to possess multiple cell
phones. “Sometimes they don’t even have a phone. I would be surprised if
they have multiple phones[,]|” the officer testified. N.T. at 52. In contrast, it
is “extremely common” for heroin dealers to have multiple phones, the officer
explained. In this scenario, one phone has a data plan assigned to the
person’s name, while the other is a prepaid phone with a number connected
to no one, “so that when you give this number out to random people, you
know, if they were to get arrested or law enforcement were to get ahold of
this phone number, they can’t just run it through some sort of a database and
it comes back to a name.” N.T. at 52. The dealer can then easily change his
number and disperse it to those with whom he is dealing. N.T. at 53.
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Officer Hagy viewed the evidence in the present case against his
experiences and concluded that Appellant possessed the heroin bundles with
the intent to deliver. Specifically, Appellant’s possession of two cell phones,
the packaging of the heroin, his statements during his prison call expressing
frustration with Officer Hatfield’s presence when they were waiting for a
customer, see N.T. at 55, and the lack of heroin use paraphernalia on his
person all supported the officer’s opinion, he testified. N.T. at 52-57.
As noted above, Appellant’s non-jury trial resulted in convictions on both
counts. Appellant was convicted at a non-jury trial on May 9, 2018, and
received sentence on that same date. He filed a notice of appeal on June 7,
2018.1
1 Upon review of Appellant’s docketing statement and the trial court docket,
no judgment of sentence appeared to have been imposed yet, and neither the
notice of appeal nor the docketing statement had a copy of the sentencing
order attached. Accordingly, by order of June 18, 2018, this Court directed
Appellant to show cause why the appeal should not be quashed as
interlocutory. See Pa.R.A.P. 341(b); Commonwealth v. Harper, 890 A.2d
1078 (Pa. Super. 2006) (in criminal case, final order is judgment of sentence).
Appellant’s counsel filed a response on June 20, 2018, indicating that he did
not represent Appellant at trial and mistakenly believed that Appellant had
already been sentenced. Counsel stated that he contacted the trial court, and
a sentencing date had been scheduled; therefore, he would be withdrawing
the instant appeal.
However, on July 10, 2018, counsel filed an amended response, indicating
that Appellant had been sentenced on May 9, 2018, the date of his conviction,
but the sentencing order had not been docketed. The omission having been
rectified by the trial court, counsel attached a copy of the updated trial court
docket showing that sentence was imposed on May 9, 2018. This Court has
independently verified the entry of the May 9, 2018 judgment of sentence on
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In his appeal, Appellant raises the following issue for our review:
Was the evidence presented by the Commonwealth insufficient to
prove beyond a reasonable doubt that Mr. Alrasheedi was guilty
of possession with intent to deliver heroin where there was no
direct evidence that Mr. Alrasheedi possessed any drugs?
Appellant’s brief, at 4.
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). The standard
and scope of review applicable to a challenge to the sufficiency of the evidence
is well-settled:
[O]jur standard of review is de novo and our scope of review is
plenary. In assessing Appellant's sufficiency challenge, we must
determine whether viewing all the evidence admitted at trial in
the light most favorable to the Commonwealth, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. The evidence need not
preclude every possibility of innocence and the fact-finder is free
to believe all, part, or none of the evidence presented.
Commonwealth v. Hutchison, 164 A.3d 494, 497 (Pa. Super. 2017)
(internal citations, quotation marks, and brackets 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. Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014)
(citation omitted). In conducting this review, the appellate court may not
the trial court docket, such that we conclude this appeal is properly before this
Court.
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weigh the evidence and substitute its judgment for the fact-finder. Id.
(citation omitted).
Moreover, “[i]t is the function of the [fact finder] to evaluate evidence
adduced at trial to reach a determination as to the facts, and where the verdict
is based on substantial, if conflicting, evidence, it is conclusive on appeal.”
Commonwealth v. Reynolds, 835 A.2d 720, 726 (Pa.Super. 2003) (citation
omitted). Therefore, we will not disturb the verdict “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.” Commonwealth v. Bruce, 916
A.2d 657, 661 (Pa.Super. 2007) (citation omitted).
As noted, the finder of fact found Appellant guilty of PWID. The Crimes
Code has defined the offense of PWID, in relevant part, as follows:
(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:
*K OK OK
(30) Except as authorized by this act, the manufacture, delivery,
or possession with intent to manufacture or deliver, a controlled
substance 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).
To establish the offense of PWID, the Commonwealth must prove
beyond a reasonable doubt that Appellant both possessed a controlled
substance and had the intent to deliver it. Commonwealth v. Kirkland, 831
A.2d 607, 611 (Pa.Super. 2003). “In determining whether there is sufficient
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evidence to support a PWID conviction, all facts and circumstances
surrounding the possession are relevant, and the Commonwealth may
establish the essential elements of the crime wholly by circumstantial
evidence.” Commonwealth v. Bricker, 882 A.2d 1008, 1015 (citation
omitted). “Possession can be proven by showing actual possession, i.e., a
controlled substance found on the [appellant's] person, or by showing that the
[appellant] constructively possessed the drug.” Commonwealth v.
Macolino, 469 A.2d 132, 134 (Pa. 1983).
It is well-settled that when an individual is found guilty of possessing
contraband which was not found on his person, as in the case at bar, the
Commonwealth is required to prove that he had constructive possession or
joint constructive possession of the contraband. See Bricker, 882 A.2d at
1014. Constructive possession is a legal fiction; it is an inference from a set
of facts that the defendant more likely than not had control of contraband that
was not found on his person. Commonwealth v. Mudrick, 507 A.2d 1212,
1213 (Pa. 1986). The Pennsylvania Supreme Court defines constructive
possession as “conscious dominion” which is “the power to control the
[contraband] and the intent to exercise that control.” Commonwealth v.
Johnson, 26 A.3d 1078, 1093 (Pa. 2011) (citation and quotation omitted).
Constructive possession is inferred from the totality of the circumstances, and
circumstantial evidence may be used to establish constructive possession. Id.
at 1094.
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Here, Appellant contends the Commonwealth failed to prove
constructive possession beyond a reasonable doubt. We disagree.
In the instant case, the trial court, sitting as the fact-finder, found
credible Officer Hatfield’s testimony describing how Appellant constructively
possessed the baggies of heroin lying on the ground where he alone had stood
just seconds before. Specifically, Officer Hatfield testified that Appellant and
another male in a neighborhood known for heroin trafficking instantly stopped
what appeared to be a hand-to-hand exchange between them when one of
them spotted the officer driving nearby in a patrol car. The men separated,
with Appellant walking behind a pickup truck and acting furtively when asked
by the officer if he lived in the neighborhood.
The officer noticed Appellant curiously kept his hands down and
gestured with his head rather than his hands, and then repeatedly looked
down to the ground. When the officer began to open his door, Appellant ran
to a residence, pounded on the door and screamed for someone to let him
inside. Shortly afterward, Officer Hatfield noticed baggies of heroin lying
where Appellant had just stood. A search incident to his arrest uncovered two
cell phones on his person, and Appellant’s subsequent prison phone call
consisted of a conversation discussing what happened to the “six bundles” and
expressing frustrations with the police presence keeping customers away.
Considering the totality of this evidence in the light most favorable to
the Commonwealth as verdict winner, we conclude enough circumstances
existed to infer beyond a reasonable doubt that Appellant constructively
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possessed the heroin bundles that lay at his feet. See Commonwealth v.
Hutchinson, 947 A.2d 800, 806-07 (Pa.Super. 2008) (finding sufficient
evidence of constructive possession where defendant observed counting
money in park at night, reaching in beams of pavilion where cocaine was
secreted, and fleeing when he noticed officers approaching). Accordingly,
Appellant’s sufficiency challenge fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Est
Prothonotary
Date: 06/24/2019
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