Com. v. Douglas, D. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DENZELL DOUGLAS :
:
Appellant : No. 1601 EDA 2022
Appeal from the Judgment of Sentence Entered January 31, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003409-2019
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 2, 2023
Denzell Douglas appeals from the judgment of sentence entered
following his convictions for knowing and intentional possession of a controlled
substance and possession with intent to deliver (“PWID”).1 Douglas challenges
the weight of the evidence. We affirm.
The Commonwealth presented evidence of the following at Douglas’
bench trial. On February 1, 2019, while conducting narcotics surveillance,
Officer Erick Crawford observed Douglas on the 4200 block of Ormond Street
in Philadelphia. N.T., Trial, 11/15/21, at 20-21. During that day between the
hours of 9:30 a.m. and 11:45 a.m., Officer Crawford observed Douglas
approach the driver’s side of three separate vehicles. Id. at 21-24. Each time
Douglas approached the driver’s side of the vehicle, Officer Crawford saw a
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1 35 P.S. §§ 780-113(a)(16) and (a)(30), respectively.
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person extend their hand out of the window with money and saw Douglas take
the money. See id. at 21, 22, 24. Officer Crawford observed Douglas hand
over small items to the driver of the vehicle, after receiving money from the
individuals in the first two vehicles. Id. at 22, 23. However, after receiving
money from the driver of the third vehicle, Douglas “walked around to the
rear of the car and then sat in the front passenger seat.” Id. at 24-25. The
vehicle drove away from the area and Officer Crawford had backup units follow
the vehicle. Id. at 24, 25. Backup officers saw Douglas exit the vehicle and
start walking back to the 4200 block of Ormond Street. Id. at 25. Officers
later stopped the vehicle and recovered “six clear Ziploc packets of all blue
[glassine] inserts in addition to just three blue [glassine] inserts, no clear
packets” from the driver of the vehicle. Id. All the packets were stamped
“2019.” Id.
On February 6, Officer Crawford called a number ending in 6134 and
placed an “order for $70 worth of heroin and $30 worth of crack cocaine.” Id.
at 26. Officer Crawford received the number from an anonymous source in the
same area where he observed Douglas on February 1. Id. at 32. When he
called the number, a male voice answered and agreed to provide the narcotics
for the price of $100. Id. at 27. The male also told Officer Crawford to drive
to the Texas Chicken and Burgers parking lot. Id. Officer Crawford drove to
the location and Douglas approached the passenger side window of the
vehicle. Id. at 28. Douglas handed Officer Crawford one bundle of heroin and
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one clear baggie with packets of crack cocaine. Id.2 The heroin packets “were
all clear Ziploc packets with blue [glassine] inserts, all stamped 2019[.]” Id.
Officer Crawford then left the area. Id. at 29.
A second officer, Officer Walter Bartle, observed the transaction
between Douglas and Officer Crawford from his vehicle stationed in the same
parking lot.3 Id. at 47, 49. Officer Bartle saw Douglas approach the
passenger’s side of Officer Crawford’s vehicle and “with a hand motion went
into the passenger’s window in Officer Crawford’s vehicle.” Id. at 50. Officer
Bartle videorecorded the entire transaction. However, the Commonwealth did
not introduce the video as evidence due to its failure to timely pass the video
to defense counsel. Id. at 4, 47.
Police did not arrest Douglas following his encounter with Officer
Crawford. Officer Crawford testified that the police arrested Douglas on
February 22, while Officer Bartle testified that the police arrested him on
February 11. Id. at 44, 51, 52-53. Upon arrest, officers did not recover
prerecorded buy money, a cell phone, or narcotics from Douglas. Id. at 44.
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2 A bundle of heroin amounts to 14 packets. See N.T., Trial, at 28.
3Officer Bartle testified that he observed Officer Crawford and Douglas in the
Texas Chicken and Burgers parking lot on February 26, 2019. See N.T., Trial,
at 46. However, the Criminal Complaint states that the drug transaction
occurred on February 11, similar to the testimony of Officer Crawford. See
Criminal Complaint, dated 2/22/19.
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Douglas testified in his defense, claiming that on February 6 he was at
his friend’s house which was near the area of Ormond Street but that he did
not have any contact with officers or sell drugs that day. Id. at 58-61.
At the close of trial, the court concluded that the evidence showed that
Douglas engaged in the drug transaction with Officer Crawford and found him
guilty of PWID. The court made a negative inference based on the
Commonwealth’s late passing of the video. Id. at 71. The court nonetheless
credited the officers’ identification of Douglas. Id. It stated, “I don’t have any
doubt [that is] reasonable it was you in the parking lot of that chicken burger
place.” Id. at 73-74. The court found Douglas guilty of the above-referenced
offenses and sentenced him to 11½ to 23 months’ incarceration followed by 3
years of reporting probation. Douglas filed a post-sentence motion challenging
the weight of the evidence, which the court denied. This appeal followed.
Douglas raises a single issue: “Did the lower court err and abuse its
discretion when it denied [Douglas’] post-sentence motion for a new trial
where the verdict was so against the weight of the evidence presented at trial
as to shock the conscience?” Douglas’ Br. at 3 (answer omitted).
Douglas claims that the trial court abused its discretion by denying his
weight of the evidence claim. He maintains that the court erroneously relied
on the testimony regarding the transaction with Officer Crawford that occurred
in the parking lot. Douglas argues that the testimony “was so rife with
uncertainty and contradiction that its use as the sole basis for [Douglas’]
conviction shocks one’s sense of justice.” Id. at 14-15. He claims that the
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evidence “supports the conclusion that [Douglas] was misidentified as the man
who sold narcotics to Officer Crawford.” Id. at 15.
Douglas also notes that Officers Bartle and Crawford gave contradictory
testimony about the timing and circumstances of his arrest and points out that
officers did not recover anything from his person on the day of his arrest and
the Commonwealth failed to introduce the video of the drug transaction.
Douglas states that the Commonwealth’s failure to provide the video
“undercuts” the officers’ testimony that Douglas sold narcotics to Officer
Crawford. Id. at 17. Douglas argues that police could have done more to
confirm the identity of the seller but instead relied on the contradictory
memories of Officers Crawford and Bartle. Douglas also claims that his trial
testimony supports his conclusion that this is a case of misidentification.
We review the grant or denial of a challenge to the weight of the
evidence for an abuse of discretion. See Commonwealth v. Clay, 64 A.3d
1049, 1055 (Pa. 2013). “The weight of the evidence is exclusively for the
finder of fact, who is free to believe all, none or some of the evidence and to
determine the credibility of the witnesses.” Commonwealth v. Clemens,
242 A.3d 659, 667 (Pa.Super. 2020) (citation omitted). A trial court should
grant a new trial based on a weight challenge “when the jury’s verdict is so
contrary to the evidence as to shock one’s sense of justice and the award of
a new trial is imperative so that right may be given another opportunity to
prevail.” Clay, 64 A.3d at 1055 (citation omitted).
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Here, the trial court concluded that the verdict was not against the
weight of the evidence. It found the testimony of Officers Crawford and Bartle
to be credible and that “[Douglas’] testimony was not credible.” See Rule
1925(a) Opinion, filed 9/20/22, at 8.
Indeed, the Commonwealth presented more than merely
sufficient evidence to support [Douglas’] conviction for
possession with intent to deliver and knowingly and
intentionally possessing a controlled substance. During the
very detailed testimony provided by each Officer, they
described extensive opportunity to view [Douglas] on 2
separate occasions. First, Officers Bartle and Crawford
observed [Douglas] in the alley engaging in multiple
exchanges. Next, Officers Bartle and Crawford again made
observations of [Douglas] engaging in various exchanges in
the parking lot. Given the fact that these Officers were
conducting surveillance and trained to do so, this [c]ourt
found it highly unreasonable to conclude that they were both
mistaken about having witnessed [Douglas] in several
exchanges on January 31, 2019, as well as several more
exchanges on February 6, 2019 after having delivered
narcotics to Officer Crawford. These Officers are trained law
enforcement professionals who were on an investigative
assignment for the purpose of identifying the sale of
narcotics. Thus, the officers had to be intentionally
fabricating their observations if there were a shred of truth
to the testimony offered by [Douglas].
Consequently, this [c]ourt could not conclude fabrication on
the part of the officers because in addition to no motive to
fabricate, the officers corroborated each other’s testimony,
and [Douglas] admits to being present each day described
by the officers. Moreover, [Douglas] never denies wearing
the clothing described by the officers as they observed the
numerous exchanges in both the alley and the parking lot.
It simply defies logic that someone looking like [Douglas],
wearing the same clothing as [Douglas], and in the same
area as [Douglas] but it was not [Douglas]. Moreover,
Officer Crawford called the telephone number generated
during the investigation and placed an order for narcotics
which was in fact delivered by [Douglas]. It should be noted
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that what was delivered was precisely what Officer Crawford
ordered - $70 heroin and $30 cocaine. Thus, there was no
doubt which was remotely reasonable that it was not
[Douglas] who sold narcotics to Officer Crawford on
February 6, 2019 in the parking lot of Texas Chicken and
Burger.
Id. at 8-9 (emphasis in original).
We discern no abuse of discretion in the trial court’s determination. As
the court explained, the officers had multiple opportunities to view Douglas
and identify him as the same individual that met with Officer Crawford in the
parking lot. As factfinder, the court was “free to believe all, none or some of
the evidence and to determine the credibility of the witnesses.” Clemens, 242
A.3d at 667 (citation omitted). Even considering the Commonwealth’s failure
to pass the recording of Officer Crawford’s and Douglas’ interaction, the court
had the opportunity to see and hear the evidence and give it the appropriate
weight. We therefore affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/2/2023
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