Com. v. Roberson, H. ( 2018 )

J-S49012-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HORATIO OMAR ROBERSON :
:
Appellant : No. 1762 MDA 2017
Appeal from the Judgment of Sentence October 24, 2017
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0001269-2016
BEFORE: SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 30, 2018
Horatio Omar Roberson (“Appellant”) appeals from the judgment of
sentence entered on October 24, 2017, following his conviction by jury of
delivery of a controlled substance.1 After careful review, we affirm.
The trial court set forth the following factual and procedural history:
On or about the afternoon of January 20, 2016, Detective Russell
Schauer was directing a drug investigation in the City of York.
(N.T., September 6, 2017, pp. 16-17). Detective Schauer met
with a confidential informant, who informed the Detective that he
could purchase cocaine from an individual. Id. at 17. Detective
Schauer directed the confidential informant to call the phone
number of this individual and request to make a purchase of some
cocaine. Id. at 17-18. In the presence of the Detective, the
confidential informant contacted this individual at around 1:00
p.m. and ordered the cocaine. Id. at 17-19. Detective Schauer
viewed and listened to the phone conversation in his presence and
was able to hear the voice of the individual that the confidential
informant had called and asked to purchase cocaine from. Id.
____________________________________________
1 35 P.S. § 780-113(a)(1).
____________________________________
* Former Justice specially assigned to the Superior Court.
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Detective Schauer identified the voice as male and heard the
individual on the other end of the phone saying he could get the
cocaine and would meet the confidential informant. Id. After the
conversation, Detective Schauer directed the informant to
consummate the transaction. Id.
Prior to the meeting, and to protect the integrity of the
investigation, Detective Schauer searched the confidential
informant on their person and also searched the confidential
informant’s vehicle to make sure the confidential informant was
not carrying any drugs, cash, or weapons. Id. at 20. Detective
Schauer did not find any of those items on the confidential
informant’s person or in their vehicle. Id. Detective Schauer then
provided the confidential informant $200 of official funds to use
for the purchase of the cocaine. Id.
Following the search, the confidential informant left in their
own vehicle and Detective Schauer followed the informant to West
Jackson at South Beaver Street in York City. Id. at 21. Officer
Michele Miller, also of the York County Drug Task Force, was also
at this location providing surveillance and assisting in the drug
investigation. Id. at 21-22, 46-47. Detective Schauer and Officer
Miller then observed [Appellant] arrive in a silver SUV, identified
as a Nissan Murano, and entered the informant’s vehicle. Id. The
vehicle with the informant and [Appellant] inside then drove to
the McDonald’s on South George Street where [Appellant] got out
of the informant’s vehicle and went inside the McDonald’s. Id. at
21-22. [Appellant] came out of the McDonald’s a few minutes
later, got back inside the informant’s vehicle, and the officers then
followed the vehicle back to West Jackson and South Beaver
Street. Id. [Appellant] exited the vehicle and got back into the
silver Murano. Id. The surveillance team, including Officer Miller,
followed [Appellant] back to a house on the 1400 block of West
Princess Street. Id. Officer Miller observed [Appellant] exit his
vehicle at 1540 West Princess Street. Id. at 49.
After the informant and [Appellant] separated, Detective
Schauer followed the informant to another location where he
made contact with the informant. Id. at 23. The informant turned
over a knotted bag to Detective Schauer, who conducted a field
test that returned a positive result for cocaine. Id. The bag was
later sent to the Pennsylvania State Police Bureau of Forensic
Services Harrisburg Regional Laboratory that issued a report on
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May 13, 2016 stating that the bag contained cocaine. Id. at 25;
(See also Commonwealth’s Exhibit #2).
On January 21, 2016, Detective Schauer observed
[Appellant] walking westbound on West Market Street at Pershing
and took him into custody. Id. at 26. Detective Schauer heard
[Appellant’s] voice and identified it as the voice of the individual
the confidential informant called to order the cocaine. Id. When
Detective Schauer took [Appellant] into custody, he recovered a
ZTE cell phone with a black case from [Appellant’s] person. Id. at
27-28. Detective Schauer recalled that the confidential informant
used the number 267-597-9132 to contact the individual about
the purchase of cocaine. Id. Detective Schauer pulled out his own
phone, called the number that the confidential informant had used
the previous day, and while watching the phone recovered from
[Appellant], he saw his own number appear on [Appellant’s] cell
phone. Id. Based on the observations of Detective Schauer and
Officer Miller, charges for delivery of cocaine were filed against
[Appellant]. Id. at 34.
A two day jury trial took place from September 5, 2017 to
September 6, 2017, where [Appellant] was found guilty of
manufacture, delivery, or possession with intent to manufacture
or deliver. On October 24, 2017, we sentenced [Appellant] to a
term of incarceration of not less than one year minus one day to
not more than two years minus two days in the York County
Prison, followed by a consecutive sentence of two years’
probation. We also approved [Appellant] for Work Release
provided that he complies with the guidelines of the Work Release
Program.
On November 2, 2017, [Appellant], through counsel, filed a
post-sentence motion asking for a judgment of acquittal and a
motion for bail pending appeal. On November 3, 2017, the
Honorable Judge Maria Musti Cook denied [Appellant’s] post-
sentence motion for acquittal and scheduled a hearing for
November 28, 2017 to determine to consider [sic][Appellant’s]
motion for bail pending appeal. On November 15, 2017,
[Appellant], through counsel, filed a Notice of Appeal to the
Superior Court. On November 16, 2017, we issued a concise
statement order. On November 28, 2017, the Honorable Judge
Maria Musti Cook granted [Appellant’s] motion for bail pending
appeal, setting bail at $ 25,000 with supervised conditions and the
requirement that [Appellant] have a home plan before release.
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On November 28, 2017, [Appellant] filed his 1925(b) Statement
of Matters Complained of on Appeal.
Trial Court Opinion, 3/15/18, at 1–5 (footnote omitted). The trial court filed
its Rule 1925(a) opinion on March 15, 2018.
Appellant presents a single question for our review:
I. WHETHER THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE
JURY VERDICT AS TO ALL CHARGES IN THAT THERE WAS NO
INDEPENDENT OR CORROBORATING WITNESS IN
CONJUNCTION WITH TESTIMONY OF THE POLICE THAT
APPELLANT SOLD COCAINE TO A CONFIDENTIAL INFORMANT.
Appellant’s Brief at 4.
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 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 finder 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. Thomas, __ A.3d __, 2018 PA Super 221, *5 (Pa. Super.
filed August 3, 2018) (emphasis added; citation omitted). “As an appellate
court, we do not assess credibility nor do we assign weight to any of the
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testimony of record.” Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa.
Super. 2014). Further, we note, “circumstantial evidence is reviewed by the
same standard as direct evidence—a decision by the trial court will be affirmed
so long as the combination of the evidence links the accused to the crime
beyond a reasonable doubt.” Commonwealth v. Bricker, 882 A.2d 1008,
1014 (Pa. Super. 2005) (quotation omitted).
In support of his appeal, Appellant avers that the Commonwealth failed
to prove that he committed the crime of delivery of a controlled substance
beyond a reasonable doubt. Appellant’s Brief at 8. In order for a defendant
to be liable for delivery of a controlled substance, there must be evidence that
he knowingly made an actual, constructive, or attempted transfer of a
controlled substance to another person without the legal authority to do so.
35 P.S. § 780-102 (b); Commonwealth v. Metzger, 372 A.2d 20, 22 (Pa.
Super. 1977). In the instant case, Appellant alleges that the evidence is
insufficient because the confidential informant (“CI”) was tainted due to the
fact that “the more information and arrests they give the police obviously
benefits the CI,” the CI was not thoroughly searched before making the
controlled buy, the CI was in the car with Appellant for one-half hour before
making the controlled buy, and the buy money was not recovered from
Appellant when he was arrested the following day. Appellant’s Brief at 9.
Appellant further alleges the evidence was not sufficient because no officer or
detective saw the transaction, there was no photographic evidence of the
transaction, there was no evidence on Appellant’s phone arranging the drug
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delivery, Appellant’s fingerprints were not found on the baggie of cocaine, and
neither drugs nor the buy money was found in Appellant’s car when he was
arrested the next day. Id. at 10.
In its 1925(a) opinion, the trial court provided the following analysis of
the circumstantial evidence presented at trial:
Based on the testimony of Detective Schauer and Officer
Miller, we find that the Commonwealth has presented sufficient
circumstantial evidence that the combination of all the facts would
allow the jury to find [Appellant] guilty beyond a reasonable doubt
without having to hear independent or corroborating witness
testimony. The evidence demonstrates that the confidential
informant called [Appellant] who offered to bring the confidential
informant some cocaine. Before the confidential informant met
[Appellant], Detective Schauer searched the informant’s person
and car to make sure they [did not] have drugs or money and the
search yielded none of those items.
The confidential informant and [Appellant] met on Jackson
and Beaver Street and then drove to a parking lot and then the
McDonald’s on South George Street. There was never a time when
the confidential informant and [Appellant] were out of the officers’
sight from the time the confidential informant picked up
[Appellant] to when the confidential informant dropped off
[Appellant]. There is also no evidence that any other individuals
other than [Appellant] and Detective Schauer came in contact with
the confidential informant during this investigation.
When the confidential informant returned to Detective
Schauer after [Appellant] left the area, the informant had a baggie
that contained cocaine. Detective Schauer then performed a
second search of the confidential informant and their vehicle to
search for any additional drugs or money and the search yielded
none of those items when [Appellant] was arrested the next day,
Detective Schauer recovered a cell phone that used the same
number that the confidential informant called the previous day to
order the cocaine. Taking all of these facts together and all
reasonable inferences therefrom, the Commonwealth
demonstrated that (1) [Appellant] offered over the telephone to
provide the informant with cocaine and had cocaine in his
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possession when he met the confidential informant in the
informant’ s vehicle; (2) [Appellant] delivered that cocaine to the
confidential informant by giving it to the informant sometime in
between the meeting point at Jackson and Beaver Streets, the
parking lot, the South George Street McDonald’s, or on the return
to Jackson and Beaver Streets; and (3) the lab report indicated
that the substance in the baggie that the confidential informant
brought back to Detective Schauer was cocaine.
Trial Court Opinion, 3/15/18, at 11–13 (citations omitted).
We agree with the trial court’s analysis. Indeed, it is well established
that the Commonwealth may prove its case using only circumstantial
evidence. Bricker, 882 A.2d at 1014. To the extent Appellant argues the
evidence was not sufficient because, inter alia, no officer or detective
witnessed the transaction or there were no photographs of the same, such a
showing is not required to sustain a conviction. Here, the jury believed the
evidence put forth by the Commonwealth and found Appellant guilty beyond
a reasonable doubt. The testimony provided by the Commonwealth’s
witnesses established the elements of delivery of a controlled substance and
identified Appellant as the person who committed the crime. Following a
review of the record, we find that the facts of this case and evidence
presented, when viewed in the light most favorable to the Commonwealth,
were sufficient to show that Appellant committed the crime of delivery of a
controlled substance.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/2018
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