Com. v. Carnrike, J. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JONATHAN LARUE CARNRIKE :
:
Appellant : No. 346 MDA 2018
Appeal from the Judgment of Sentence February 1, 2018
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000092-2017
BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER*, J.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 28, 2018
Appellant, Jonathan Larue Carnrike, appeals from the judgment of
sentence entered following his convictions of crimes stemming from a drug
transaction. We affirm.
We summarize the history of this case as follows. On March 2, 2016,
members of the Bradford County Drug Task Force arranged for a confidential
informant (“CI”) to purchase Oxycodone from Appellant. The CI organized
the time and location of the transaction with Appellant by cellphone text
messages. The police provided the CI with $100 in buy money. The
transaction occurred at a mini-mart, which was under surveillance by the
police. The CI testified that he handed $100 to Appellant and received pills
wrapped in cellophane from Appellant. The CI turned over to police eight 7.5-
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S60012-18
milligram Oxycodone pills, which were white in color, and three 10-milligram
Oxycodone pills, which were pink in color.
On October 12, 2016, Appellant was charged with criminal use of a
communication facility, 18 Pa.C.S. § 7512(a), possession of a controlled
substance, 35 P.S. § 780-113(a)(16), and possession of a controlled
substance with intent to deliver (“PWID”), 35 P.S. § 780-113(a)(30). On
November 15, 2017, a jury convicted Appellant of all three crimes. On
February 1, 2018, Appellant was sentenced to serve an aggregate term of
incarceration of twenty-four to eighty-four months. Appellant filed a timely
post-sentence motion, which the trial court denied. Both Appellant and the
trial court have complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
I. Was the evidence in this case sufficient to sustain a verdict of
guilty where the Commonwealth did not test the narcotic
evidenced in the case but instead relied on the testimony of a
pharmacist to identify pills, where that pharmacist admitted that
he could not testify specifically as to the actual make up of the
pills themselves?
Appellant’s Brief at 4.
Appellant’s sole issue challenges whether there was sufficient evidence
to sustain his narcotics convictions. Appellant’s Brief at 6-10. Essentially,
Appellant contends that the Commonwealth failed to present sufficient
evidence to prove that the pills in the transaction were illegal narcotics. In
particular, Appellant avers that the testimony of the pharmacist, who testified
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as an expert, was insufficient to prove that the pills involved in the transaction
were a controlled substance. Id. at 8-9.
Our standard of review is well established:
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[’s]. 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. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).
In order to uphold a conviction for PWID pursuant to 35 P.S. § 780-
113(a)(30), the Commonwealth must prove beyond a reasonable doubt that
the defendant possessed a controlled substance and did so with the intent to
deliver it. Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super.
2000) (en banc). Regarding the crime of simple possession of narcotics, 35
P.S. § 780-113(a)(16) prohibits “[k]nowingly or intentionally possessing a
controlled or counterfeit substance by a person not registered under this act,
or a practitioner not registered or licensed by the appropriate State board,
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unless the substance was obtained directly from, or pursuant to, a valid
prescription order or order of a practitioner, or except as otherwise authorized
by this act.”
In Pennsylvania, it is well settled that “[t]he existence of narcotic drugs
does not have to be proved by chemical analysis and may be proved either by
direct or circumstantial evidence.” Commonwealth v. Williams, 428 A.2d
165, 167 (Pa. Super. 1981). Indeed, merely circumstantial evidence is
sufficient. See Commonwealth v. Minott, 577 A.2d 928, 932 (Pa. Super.
1990) (noting well-established policy that circumstantial evidence is sufficient
and applying it to extrapolation method employed to ascertain quantity of
narcotics seized); Commonwealth v. Stasiak, 451 A.2d 520, 525 (Pa.
Super. 1982) (rejecting need for chemical analysis of suspected narcotics
where circumstantial evidence, consisting of sealed and labelled bottles
recently stolen from pharmacy, was sufficient); Commonwealth v.
Leskovic, 307 A.2d 357, 358 (Pa. Super. 1973) (rejecting need for chemical
analysis of capsules allegedly provided to the victim where the description
matched that of known barbiturate and urine sample of victim revealed
quantity of barbiturate in bloodstream).
In addition, we are mindful of the following:
The basic distinction between direct and circumstantial evidence
is that in the former instance the witnesses testify directly of their
own knowledge as to the main facts to be proved, while in the
latter case proof is given of facts and circumstances from which
the jury may infer other connected facts which reasonably follow,
according to the common experience of mankind.
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Commonwealth v. Broughton, 390 A.2d 1282, 1284 (Pa. Super. 1978)
(quoting 29 Am.Jur.2d, Evidence § 264 at 312).
The trial court offered the following analysis in reviewing Appellant’s
sufficiency of the evidence claim:
The Commonwealth called a pharmacist[, John Brown,] as
a witness to identify the pills that Appellant sold. The pharmacist
testified that he had been a pharmacist since 1991 after
graduating from Temple University. Prior to that, he was a
pharmacy tech in the US Air Force. He further testified, as a
pharmacist, he is familiar with controlled substances. The
pharmacist was asked by the Commonwealth to look at pictures
of pills which he ran through his drug i/d/ program and with the
marks on the pills, he identified them to a reasonable degree of
scientific certainty as a 10 milligram oxycodone made by KBT
pharmaceuticals and a generic Percocet (oxycodone 7.5 milligram
with 325 milligrams Acetaminophen) made by Rohes
Pharmaceutical. Both are controlled substances.
***
It is “well-established in this Commonwealth that the
identity of the illegal narcotic substances may be established by
circumstantial evidence alone.” Commonwealth v. Minott, 395 Pa.
Super. 552, 562, 577 A.2d 928, 932 (1990). See also
Commonwealth v. Myers, 452 Pa. Super. 299, 309, 681 A.2d
1348, 1353-[13]54 (1996) (vacated on other grounds by 554 Pa.
569 , 722 A.2d 649 ); and Commonwealth v. Rickabaugh, 706
A.2d 826 ([Pa. Super.] 1997). In this case, the police officer with
years of experience and training recognized the substances as
narcotics. The pharmacist recognized the substances as narcotics.
The [CI] had contacted [Appellant] to obtain those specific
narcotics. [Appellant] sold those substances to the [CI]. This
evidence is sufficient for the jury to conclude as they did that the
substances were controlled substances.
Trial Court Opinion, 6/12/18, at 6-7.
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Our review of the record, in the light most favorable to the
Commonwealth as the verdict winner, indicates that the evidence was
sufficient to support every element of the offenses beyond a reasonable doubt.
With regard to the nature of the items sold by Appellant to the CI, Officer
Bruce Hoffman of the Sayre Borough Police Department testified as to his
direct observations of the nature of the items, as informed by his training and
experience. N.T., 11/15/17, at 36. Officer Hoffman indicated that the pills
sold by Appellant were controlled substances. Id. Likewise, pharmacist John
Brown, the owner of Brown’s Pharmacy, testified that the pills in question were
controlled substances. Id. at 100-104. While the persuasiveness of this
testimony may be less compelling than chemical analysis, it nonetheless
constitutes direct evidence. Broughton, 390 A.2d at 1284.
Therefore, we agree with the trial court that the evidence presented was
sufficient to prove that the contraband was a controlled substance. Based on
the foregoing, Appellant’s claim that the evidence was insufficient to support
his convictions fails. Hence, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judge Strassburger joins the Memorandum.
Judge Nichols concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/2018
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