Com. v. Hairston, B. ( 2021 )

J-A05021-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BASHEER HAIRSTON, :
:
Appellant : No. 1770 EDA 2019
Appeal from the Judgment of Sentence Entered May 20, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004763-2018
BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED: MARCH 31, 2021
Appellant Basheer Hairston appeals from the judgment of sentence
imposed following his non-jury trial conviction of possession with intent to
deliver and possession of a controlled substance.1 Specifically, he claims that
the evidence failed to establish that he possessed a controlled substance. We
affirm.
On the evening of January 19, 2018, Officer Cerebe, a member of the
Narcotics Strike Force Unit of the Philadelphia Police Department, and her
partner Officer Rivera,2 were surveilling a street corner from an unmarked
police vehicle. Officer Cerebe observed a white male approach Appellant,
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* Former Justice specially assigned to the Superior Court.
1 See 35 P.S. §§ 780-113(a)(30) and (a)(16), respectively.
2 The record does not include the first names of Officers Cerebe or Rivera.
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Kareen Hairston, and two other males, who were standing outside of a store
on the corner, and engage them in conversation. The white male then walked
away, followed by Appellant. Officer Cerebe later explained what she
observed after the men walked away:
After a short conversation, . . . the [Appellant] removed unknown
items from his jacket pocket. He appeared to be holding
something in his hand. The white male handed [Appellant] a
cigarette. [Appellant] then made a motion, an up and down
motion, . . . over that item that was in his hand. I could not quite
see what the item was. He went like a motion up and down.
Handed that cigarette back [to] the white male in exchange for
US currency.
N.T. Trial, 2/19/19, at 9-10. Appellant then returned to the store.
Officer Cerebe then observed two additional males, Michael Valton and
Carlos Decena, approach the group and engage in a short conversation.
Valton and Decena then walked away. Kareen Hairston followed Valton and
Appellant followed Decena, meeting with him down the sidewalk. Officer
Cerebe described their interaction as follows:
[] Decena handed [Appellant] an unknown amount of US
currency. I then observed [] Decena remove a green cigarette
box from his jacket pocket. He removed two cigarettes from that
cigarette box, . . . and handed them to [Appellant], . . . who again
removed unknown items from his jacket pocket. And appeared,
again, to make an up and down motion. He then handed those
cigarettes back to [] Decena. [] Decena placed them back in the
green cigarette box, put the cigarette box back in his jacket and
then left the area southbound on F Street.
Id. at 12. After Appellant returned to the corner store, Officer Cerebe radioed
the location and description of Appellant to her backup officers.
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Officer Mark Anthony testified that he stopped Decena and saw him toss
a green Newport cigarette box to the ground. Officer Anthony recovered the
cigarette box and found two cigarettes dipped in PCP. See id. at 21-22.
Officer Anthony then attempted to stop Appellant.
Officer Anthony stated that Appellant “took off and he started
reaching for his pocket, he took unknown items and threw them
at a fence and it broke, it was glass. Then he took off running.”
Officer Anthony testified that he returned to the location where he
witnessed Appellant throw the glass object immediately after
effecting arrest. After a foundation was laid to his expertise,
Officer Anthony testified that he could smell the distinct odor of
PCP emanating from the broken glass where Appellant had thrown
the vial against the metal gate and spilled its liquid contents.
Officer Anthony further stated, “It was consistent with what PCP
smells like, the way it[‘]s packaged inside of the jar. So I knew
exactly what I was smelling at that time.” After being asked
if what he was smelling came from inside the jar that Appellant
had thrown, Officer Anthony responded, “Little pieces of glass fell,
you can smell PCP. I’m telling you, the odor is so strong you will
remember it.”
Trial Ct. Op., 8/5/20, at 5 (record citations omitted) (emphasis in original).
Officer Watts3 then arrested Appellant, who had $1,199 in US currency on his
person.
Following a non-jury trial, the trial court found Appellant guilty of
possession with intent to deliver and possession of a controlled substance. 4
On May 20, 2019, Appellant was sentenced to one year of probation.
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3 The record does not contain Officer Watts’ first name.
4 The trial court found Appellant not guilty of conspiracy.
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Appellant timely appealed. On July 11, 2019, the trial court issued an
order directing Appellant to file his Rule 1925(b) concise statement of errors
within twenty-one days. Appellant did not meet the trial court’s deadline, but
filed a counseled statement of errors on March 3, 2020, and filed a revised
statement on May 27, 2020. Despite Appellant’s tardiness, the trial court filed
its Rule 1925(a) opinion on August 5, 2020.5 See Pa.R.A.P. 1925.
Appellant raises one question on appeal.
1. Was not the evidence insufficient to find [Appellant] guilty beyond
a reasonable doubt of the crimes of possession with intent to
deliver and simple possession of a controlled substance in that the
evidence failed to prove that [Appellant] ever actually possessed
or delivered a controlled substance to another person?
Appellant’s Brief at 3.
Appellant claims that the evidence was insufficient to support his
conviction because the Commonwealth failed to prove that he possessed a
controlled substance. See id. at 10. He contends that Officer Anthony’s
observation of the PCP in the bottle was not credible because Officer Anthony
did not collect evidence of the glass shards with PCP on them. See id. at 14-
15. Appellant further argues that the Commonwealth failed to prove that the
PCP dipped cigarettes recovered from Decena came from him. See id. at 10.
Our well-settled standard of review is as follows:
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5 Because Appellant’s counsel eventually filed a Rule 1925(b) concise
statement, and the trial court filed an opinion addressing the issue presented,
remand for failure to file a timely statement of errors is not necessary. See
Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en banc).
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To determine the legal sufficiency of evidence supporting a . . .
verdict of guilty, this Court must view the evidence in the light
most favorable to the Commonwealth, which has won the verdict,
and draw all reasonable inferences in its favor. We then determine
whether the evidence is sufficient to permit a [fact finder] to
determine that each and every element of the crimes charged has
been established beyond a reasonable doubt. It is the function of
the [fact finder] to pass upon the credibility of the witnesses and
to determine the weight to be accorded the evidence produced.
The [fact finder] is free to believe all, part or none of the evidence
introduced at trial. The facts and circumstances established by
the Commonwealth need not be absolutely incompatible with the
defendant’s innocence, but the question of any doubt is for the
[fact finder] unless the evidence be so weak and inconclusive that
as a matter of law no probability of fact can be drawn from the
combined circumstances.
Commonwealth v. Hoffman, 198 A.3d 1112, 1118 (Pa. Super. 2018)
(citation omitted). “Because a determination of evidentiary sufficiency is a
question of law, our standard of review is de novo and our scope of review is
plenary.” Commonwealth v. Williams, 176 A.3d 298, 305 (Pa. Super.
2017) (citation omitted).
In drug possession cases, the Commonwealth must prove that a
defendant knowingly or intentionally possessed a controlled substance. See
35 P.S. §§ 780-113(a)(16), (a)(30). However, it is well settled “the existence
of narcotic drugs does not have to be prove[n] by chemical analysis and may
be prove[n] either by direct or circumstantial evidence.” Commonwealth v.
Williams, 428 A.2d 165, 167 (Pa. Super. 1981). Indeed, this Court has
explained that
the identity of illegal narcotic substances may be established by
circumstantial evidence alone, without any chemical analysis of
the seized contraband. Such a policy indicates that the courts will
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not, in cases involving the sale or use of illegal drugs, constrict
their fact-finding function in regard to the identity of drugs to a
strict scientific analysis, but will rather permit the use of common
sense and reasonable inferences in the determination of the
identity of such substances.
Commonwealth v. Minott, 577 A.2d 928, 932 (Pa. Super. 1990) (citations
omitted); see also Commonwealth v. Leskovic, 307 A.2d 357, 358 (Pa.
Super. 1973) (finding that, even without chemical analysis, there was
sufficient evidence to establish the identity of the controlled substance).
Here, the trial court concluded that there was sufficient evidence to
establish that Appellant possessed a controlled substance based on the
testimony from Officers Cereba and Anthony, and the stipulated testimony of
Officer Watts. The trial court explained that
It is of no moment that the police were unable to recapture the
spilled PCP that Officer Anthony witnessed Appellant throw from
his hand. Officer Anthony testified clearly, unequivocally and
credibly that he saw the glass jar in Appellant’s hand and
personally witnessed Appellant destroying the evidence. Officer
Anthony immediately backtracked Appellant’s path to the location
where he witnessed the evidence destruction. Further, Officer
Anthony testified that in his expert opinion as an officer with
[twenty-seven] years of experience and having come into contact
with PCP “thousands” of times that he smelled the very distinct
stench of PCP. Officer Anthony also testified as a fact witness that
he observed the glass shards from the precise glass bottle he saw
Appellant shatter. Specifically, Officer Anthony stated, “It was
consistent with what PCP smells like, the way it’s packaged inside
of the jar. So I knew exactly what I was smelling at the time.”
Moreover, [] Decena, the buyer who was arrested, was in
possession of the two PCP-dipped cigarettes at the time of his
arrest just as Officer Cerebe described. Based on the evidence
presented, this Court concluded as the trier of fact, that Appellant
threw the bottle of PCP during the pursuit. As such, the evidence
presented at trial was more than merely “sufficient” to find
Appellant guilty of the aforementioned charges.
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Trial Ct. Op. at 9-10 (record citations omitted).
Based on our review of the record, and in viewing the evidence in the
light most favorable to the Commonwealth as verdict winner, we agree with
the trial court that the Commonwealth presented sufficient evidence to
establish that Appellant possessed a controlled substance. See Hoffman,
198 A.3d at 1118. As noted by the trial court, Detective Cerebe observed a
hand-to-hand transaction between Appellant and Decena where Appellant
appeared to dip two cigarettes into something and then give them to Decena.
See N.T. Trial, at 12. When Officer Anthony arrested Decena, he recovered
the two cigarettes that had been dipped in PCP. See id. at 21-22. Officer
Anthony then observed Appellant shatter a glass jar against a fence as he fled.
See id. at 23. Officer Anthony smelled a distinct odor from the substance
that spilled out of the jar, and he identified it as PCP based on his years of
experience as a police officer and having smelled PCP thousands of times.
See id. at 23-24. Finally, the Commonwealth presented evidence that when
Appellant was arrested he had $1,199 in US currency on him. See id. at 26.
Under these circumstances, there was sufficient evidence from which the
finder of fact could infer that Appellant possessed a controlled substance, and
that he intended to deliver that substance. See Minott, 577 A.2d at 932.
Therefore, Appellant is not entitled to relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/21
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