Com. v. Swift, Z.

J-S62023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ZAMAR SWIFT
Appellant No. 508 WDA 2015
Appeal from the Judgment of Sentence March 10, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002110-2014
CP-25-CR-0002113-2014
BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 16, 2015
Appellant Zamar Swift appeals from the judgment of sentence entered
on March 10, 2015 in the Erie County Court of Common Pleas following his
jury trial conviction of two counts each for unlawful delivery of heroin,
possession of heroin, and criminal use of a communication facility.1 We
affirm.
The trial court set forth the following facts:
Trooper James Wicker (now retired) of the Pennsylvania
State Police was conducting undercover drug investigations
during the period of time that [Appellant] was charged.
He had identified [Appellant] as a possible dealer and
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. §§ 780-113(a)(30), 780-113(a)(16), and 18 Pa.C.S. § 7512(a),
respectively.
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made plans to contact him to purchase heroin for a
hundred dollars. With the use of a confidential informant,
a phone call was placed to [Appellant]. That
communication was used to introduce the trooper to
[Appellant]. On April 24, 2013, Trooper Wicker met with
the confidential informant at the Franklin Terrace Housing
Project in the City of Erie. Eventually, the trooper made
contact directly with [Appellant] via cell phone. They
agreed that the trooper would purchase the hundred
dollars of heroin from [Appellant] and set a meeting to
occur at St. Peter’s Cathedral parking lot at 11th and
Sassafras Streets in downtown Erie. At that location, the
trooper called [Appellant] who said he was on his way to
the CVS Pharmacy at 12th and Parade Streets. The
trooper proceeded there, arriving between 1:00 and 1:30
p.m. At that location, he called [Appellant] who responded
that he would be there in approximately ten minutes
driving a white Buick. [Appellant] arrived and proceeded
to sell the trooper a hundred dollars worth of heroin (0.35
grams) in a face-to-face, hand-to-hand transaction.
During that episode, the trooper had a clear view of
[Appellant’s] face.
On June [5], 2013, Trooper Wicker texted [Appellant]
indicating that he wanted to make another one hundred
dollar purchase. Between 1:30 and 2:00 p.m. [Appellant]
and Trooper Wicker met at Franklin Terrace. Once again,
[Appellant] made a hand-to-hand sale of .05 grams of
heroin to Trooper Wicker. In addition to Trooper Wicker’s
testimony, the Commonwealth also presented the
testimony of forensic scientist Ted Williams and Neil Repko
who confirmed that the substances were heroin.
1925(a) Memorandum Opinion, 4/17/2014, at 2-3 (internal citations
omitted).
Although the drug sales occurred in April and June of 2013, Appellant
was not charged until June of 2014. At trial, Trooper Wicker testified he did
not charge Appellant until a year after the transactions because he did not
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want to compromise his identity, as he was working undercover. N.T.,
1/12/2015, at 35. He stated:
What I do usually, I will work a few cases in a particular
area. Once I’ve compiled a few defendants, if you will, a
few cases, then I’ll file all the charges at once. That way,
again my identity is not being compromised and I’m not in
court on a regular basis.
Id. at 35-36.
Trooper Wicker also testified at a pre-trial hearing. He explained why
he did not seek a surveillance video from CVS to confirm the transaction as
follows:
If I went to CVS or anyone else and identified myself as an
undercover and let them know that undercover buys were
being conducted there, they would know my identity. This
was an ongoing investigation that not only involved the
defendant, but other defendants in that particular area []
and the last thing that I wanted to do was compromise my
identity by getting surveillance tapes and whatnot.
N.T., 11/14/2014, at 7. He further testified he had all information he
needed to arrest Appellant for the April 24, 2013 transaction immediately
following the transaction and all information he needed to arrest Appellant
for the June 5, 2013 transaction immediately following that transaction. Id.
at 9. As to why there was a delay in arrest, the trooper testified at the pre-
trial hearing as follows:
Q: Trooper, the reason that you did not arrest [Appellant]
at that time was not because you couldn’t find him;
correct?
A: That is correct. That was not the reason.
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Q: Okay. And you sent the suspected drugs to the lab to
be analyzed; correct?
A: Yes.
Q: And that was for the incident on April 24th as well
June 5th; correct?
A: Yes.
Q: Okay, and those were returned shortly thereafter?
A: Yes.
Q: Okay, so you had the lab results for the June 5, 2013
incident shortly thereafter June 5th?
A: Probably within a few months. It usually takes our lab
two to three months, sometimes a little longer.
Q: Okay, so you weren’t waiting to file charges pending
lab results to come back; correct?
A: That’s correct.
Q: And after June 5, 2013, did you make any additional
buys with [Appellant]?
A No, not with [Appellant].
Q: Did you make any arrests or any subsequent
development of information in regards to those two events
past June 5th?
A: No. I didn’t. I made attempts to do additional buys,
but he had changed his phone number at that point and I
was unable to get a hold of him. I was making attempts to
get his new number, but that was fruitless.
Q: And about how many attempts did you make?
A: I’m going to say several over the course of a couple of
months.
Q: And did you document in your reports as far as the
dates and times that you attempted to make those
contacts?
A: No, I didn’t.
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Q: And do you remember when you eventually filed
charges against [Appellant]?
A: No, I don’t.
Q: Would June 18th of 2014 sound correct?
A: That would be accurate, yes.
Q: Okay, and that would be approximately one year and
13 days after the last transaction had occurred?
A: Yeah, that would be accurate.
Q: And there were no subsequent developments [] in that
one year and 13 days?
A: Not on [Appellant’s] particular case.
N.T., 11/14/2014, at 10-15.
In June of 2014, Appellant was charged at two separate docket
numbers. At CP-25-CR0002110-2014, he was charged with delivery of
heroin, possession with intent to deliver heroin (“PWID”),2 criminal use of a
communication facility, and possession of heroin for the April 24, 2013
transaction. At docket CP-25-CR0002113-2014, he was charged with the
same crimes for the June 5, 2013 transaction. The Commonwealth withdrew
the PWID charges at trial. On January 12, 2015, a jury found Appellant
guilty of delivery, use of a communication facility, and possession.
On March 10, 2015, the trial court sentenced Appellant to an
aggregate term of 48 to 96 months’ imprisonment.3 On March 12, 2015,
____________________________________________
2
35 Pa.C.S. § 780-113(a)(30).
3
At docket CP-25-CR-0002113-2014, the trial court sentenced Appellant to
24 to 48 months’ incarceration for delivery and 12 to 24 months’
(Footnote Continued Next Page)
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Appellant filed a post-sentence motion, which was denied on March 16,
2015. Appellant filed a timely notice of appeal. Both Appellant and the trial
court complied with Pennsylvania Rule of Appellate Procedure 1925.
Appellant raises the following issues on appeal:
1. [Whether t]he evidence in this case was insufficient to
prove that [Appellant] committed the crimes for which he
was convicted when the evidence consisted of nothing
more than the trooper’s testimony regarding his
recollection of the events.
2. [Whether t]he court erred in denying [Appellant’s]
pretrial motion which asserted that the delay of the arrest
in this case prejudiced [Appellant’s] ability to defend
himself.
Appellant’s Brief at 2.
Appellant’s first issue challenges the sufficiency of the evidence.
Appellant claims Trooper Wicker’s testimony was insufficient evidence of the
crimes because: (1) the trooper testified the person who sold him the drugs
had no memorable features, but Appellant had numerous tattoos; (2) the
trooper completed an incident report for another suspect and mistakenly put
Appellant’s name on the report, and (3) there were no photographs of the
transaction. Appellant’s Brief at 6-8.
_______________________
(Footnote Continued)
incarceration for criminal use of a communication facility, concurrent to the
sentence imposed for the delivery conviction. The possession conviction
merged with the delivery conviction for sentencing purposes. The trial court
imposed the same penalties for Appellant’s convictions at CP-25-CR-
0002110-2014, to be served consecutively to the sentence imposed for the
CP-25-CR-0002113-2014 convictions.
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We apply the following standard when reviewing a sufficiency of the
evidence claim: “[W]hether 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.” Commonwealth v. Lehman, 820 A.2d 766, 772
(Pa.Super.2003), affirmed, 870 A.2d 818 (Pa.2005) (quoting
Commonwealth v. DiStefano, 782 A.2d 574 (Pa.Super.2001)). When we
apply this standard, “we may not weigh the evidence and substitute our
judgment for the fact-finder.” Id.“[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence.” Lehman, 820 A.2d at
772 (quoting DiStefano, 782 A.2d at 574). Moreover, “[a]ny 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.” Id. “The
Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
evidence.” Id.
In applying the above test, we must evaluate the entire record and we
must consider all evidence actually received. DiStefano, 782 A.2d at 582
(quoting Commonwealth v. Hennigan, 753 A.2d 245, 253
(Pa.Super.2000)). Further, “the trier of fact while passing upon the
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credibility of witnesses and the weight of the evidence produced, is free to
believe all, part or none of the evidence.” Id.Delivery of a controlled substance is defined as:
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. § 780-1113(a)(30).
Possession of a controlled substance is defined as:
Knowingly 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, 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.
35 P.S. § 780-1113(a)(16).
Criminal use of communication facility is defined as:
A person commits a felony of the third degree if that
person uses a communication facility to commit, cause or
facilitate the commission or the attempt thereof of any
crime which constitutes a felony under this title or under
the act of April 14, 1972 (P.L. 233, No. 64), known as The
Controlled Substance, Drug, Device and Cosmetic Act.
Every instance where the communication facility is utilized
constitutes a separate offense under this section.
18 Pa.C.S. § 7512(a). Further, “communication facility” is defined as “a
public or private instrumentality used or useful in the transmission of signs,
signals, writing, images, sounds, data or intelligence of any nature
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transmitted in whole or in part, including, but not limited to, telephone, wire,
radio, electromagnetic, photoelectronic or photo-optical systems or the
mail.” 18 Pa.C.S. § 7512(c).
As the fact-finder, the jury was free to find the trooper credible. See
DiStefano, 782 A.2d at 582. Trooper Wicker’s testimony established
Appellant met the trooper on two occasions, possessed heroin at the time of
the meetings, and sold the trooper heroin at both meetings. N.T.,
1/12/2015, at 19, 23-25, 29-33. The stipulated lab results confirmed the
substance Appellant provided to the trooper was .35 grams of heroin on April
24, 2013, and .05, plus or minus .01, grams of heroin on June 5, 2013. Id.
at 27, 34. The evidence therefore was sufficient to establish, beyond a
reasonable doubt, that Appellant possessed heroin and delivered heroin.
See 35 P.S. § 780-1113(a)(16), (a)(30). Further, Trooper Wicker testified
he communicated with Appellant via cell phone to determine meeting times
and locations, therefore establishing criminal use of a communication facility.
N.T., 1/12/2015, at 20-21, 29-30; 18 Pa.C.S. § 7512(a). Accordingly,
Appellant’s first claim is meritless.
Appellant next contends that he suffered prejudice because the
Commonwealth delayed in prosecuting the drug transactions. Appellant’s
Brief at 8. The transactions occurred in April and June of 2013, but the
Commonwealth did not file charges until June of 2014. Appellant maintains
he suffered prejudice because he was unable to recall the events of April 24,
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2013 and June 5, 2013, and because possibly exculpatory recordings from
nearby businesses were no longer available. Id. at 8-9.4 We disagree.
Whether Appellant’s due process rights were violated is a question of
law. Our standard of review is de novo and our scope of review is plenary.
Commonwealth v. Moody, 46 A.3d 765 (Pa.Super.2012) (citing In re
Wilson, 879 A.2d 199, 214 (Pa.Super.2005) (en banc )).
To determine whether a pre-arrest delay violated a defendant’s due
process rights under the Fifth Amendment of the United States Constitution
or Article 1, Section 9 of the Pennsylvania Constitution, courts apply the
following two-part test: “(1) the defendant must show actual prejudice from
the delay, and (2) prejudice alone is not sufficient to show a violation of due
process where the delay was due to the government’s continuing
investigation of the crime.” Commonwealth v. Scher, 803 A.2d 1204,
1217 (Pa.2002). The Supreme Court of Pennsylvania has clarified this test,
stating:
[T]o prevail on a due process claim based on pre-arrest
delay, the defendant must first show that the delay caused
him actual prejudice, that is, substantially impaired his or
her ability to defend against the charges. The court must
then examine all of the circumstances to determine the
validity of the Commonwealth’s reasons for the delay.
Only in situations where the evidence shows that the delay
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4
Although Appellant maintains the drugs had been destroyed prior to trial,
the Commonwealth marked the drugs as an exhibit at trial, and Trooper
Wicker identified the drugs. Appellant’s Brief at 9; N.T., 1/12/2015, at 27,
34.
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was the product of intentional, bad faith, or reckless
conduct by the prosecution, however, will we find a
violation of due process.
Id. at 1221-22 (internal footnote deleted).
Here, Appellant failed to establish actual prejudice. Although he
elicited testimony that Trooper Wicker did not request surveillance video
from cameras in the vicinity of the transaction, he failed to establish any
surveillance video existed that would have captured the transaction.
Further, the delay was not intentional or in bad faith, nor was it the result of
reckless conduct by the prosecution. Rather, the delay in prosecution was to
allow Trooper Wicker to remain undercover. Accordingly, Appellant failed to
establish the delay in his arrest violated his due process rights. See Scher,
803 A.2d at 1221-22.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2015
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