Com. v. Thomas, R.

J-S16002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT THOMAS, JR.
Appellant No. 1208 WDA 2015
Appeal from the Judgment of Sentence July 9, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011012-2012
BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY MOULTON, J.: FILED JUNE 20, 2017
Robert Thomas, Jr. appeals from the July 9, 2015 judgment of
sentence entered in the Allegheny County Court of Common Pleas following
his bench trial convictions for delivery of a controlled substance, possession
with intent to deliver a controlled substance (“PWID”), intentional possession
of a controlled substance, and false identification to a law enforcement
officer.1 We affirm.
The well-reasoned opinion of the Honorable Randal B. Todd set forth
the factual and procedural history underlying this appeal, which we adopt
and incorporate herein. See Trial Ct. Op., 7/13/16, at 1-6 (“1925(a) Op.”).
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30) (delivery and PWID) and (a)(16), and 18
Pa.C.S. § 4914(a), respectively.
J-S16002-17
Thomas raises two issues on appeal:
1. Did the lower court err in failing to grant the motion
to suppress evidence seized from Mr. Thomas insofar
as the police lacked probable cause to arrest him,
and no reasonable suspicion to believe that he was
armed? Was the subsequent warrantless search and
seizure of his person, as well as police interrogation,
unlawful under the Fourth Amendment to the United
States Constitution and Article 1, Section 8, of the
Pennsylvania [Constitution]? And was not all
evidence seized thereafter “fruit of the poisonous
tree” and inadmissible as a matter of law?
2. Was the evidence presented insufficient as a matter
of law to support the convictions for PWID and
Possession of a Controlled Substance because the
Commonwealth failed to prove beyond a reasonable
doubt that the drugs found in possession of another
man had come from Mr. Thomas?
Thomas’s Br. at 6.
First, Thomas argues that the trial court erred in denying his motion to
suppress. In reviewing the denial of a suppression motion, we must
determine
whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. Because the
Commonwealth prevailed before the suppression court, we
may consider only the evidence of the Commonwealth and
so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings
and may reverse only if the court’s legal conclusions are
erroneous. Where, as here, the appeal of the
determination of the suppression court turns on allegations
of legal error, the suppression court’s legal conclusions are
not binding on an appellate court, whose duty it is to
determine if the suppression court properly applied the law
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J-S16002-17
to the facts. Thus, the conclusions of law of the courts
below are subject to our plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal
quotations and citations omitted).
Thomas argues that when he was seized and placed under arrest, the
police lacked probable cause to arrest him. According to Thomas, Officer
William Mudron’s testimony failed to establish he had probable cause
because, although he explained his training and experience, he did not
explain “how that training and experience specifically applies to [the arrest
made here.]” Thomas’s Br. at 20. Further, Thomas contends that the
totality of the circumstances did not give Officer Mudron probable cause
because Officer Mudron only observed, from 75 to 100 feet away, a man
approach a parked car with two men inside and an exchange of money for
an object. We disagree.
In its opinion, the trial court applied the relevant law and properly
determined that the evidence should not be suppressed. See 1925(a) Op.
at 6-8. The trial court found that: the facts of this case are similar to those
in Commonwealth v. Thompson, 985 A.2d 928 (Pa. 2009); Officer
Mudron explained the nexus between his training and experience and
Thomas’s arrest; and probable cause supported the arrest. The record
supports the trial court’s findings of fact and credibility determinations. See
Commonwealth v. Krisko, 884 A.2d 296, 299 (Pa.Super. 2005) (“[I]t is
exclusively the province of the suppression court to determine the credibility
of the witnesses and weight to be accorded their testimony.”). After
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J-S16002-17
reviewing the briefs, the record, and the relevant law, we conclude that the
trial court did not err and affirm based on the trial court’s reasoning. See
1925(a) Op. at 6-8.
Next, Thomas argues that the Commonwealth’s evidence was
insufficient to support convictions for PWID and possession of a controlled
substance. This Court’s standard for reviewing sufficiency of the evidence
claims is as follows:
We must determine whether the evidence admitted at
trial, and all reasonable inferences drawn therefrom, when
viewed in a light most favorable to the Commonwealth as
verdict winner, support the conviction beyond a reasonable
doubt. Where there is sufficient evidence to enable the
trier of fact to find every element of the crime has been
established beyond a reasonable doubt, the sufficiency of
the evidence claim must fail.
The evidence established at trial need not preclude
every possibility of innocence and the fact-finder is free to
believe all, part, or none of the evidence presented. It is
not within the province of this Court to re-weigh the
evidence and substitute our judgment for that of the fact-
finder. The Commonwealth’s burden may be met by
wholly circumstantial evidence and any doubt about the
defendant's guilt is to be resolved by the fact[-]finder
unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the
combined circumstances.
Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)
(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).
Thomas asserts that the Commonwealth failed to prove his possession
of the drugs beyond a reasonable doubt because police recovered the
packets of heroin from another person. According to Thomas, Officer
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Mudron only saw, from 75 to 100 feet away, the exchange of cash for an
item and, therefore, Officer Mudron’s testimony failed to prove beyond a
reasonable doubt that Thomas had possessed the drugs and passed them to
the man who approached the vehicle. We disagree.
Section 780-113(a)(16) of the Controlled Substance, Drug, Device,
and Cosmetic Act (“Act”) 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, 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. § 780-113(a)(16). Section 780-113(a)(30) of the Act prohibits the
“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[.]” Id. § (a)(30). “The
Commonwealth establishes the offense of [PWID] when it proves beyond a
reasonable doubt that the defendant possessed a controlled substance with
the intent to deliver it.” Commonwealth v. Little, 879 A.2d 293, 297
(Pa.Super. 2005). “[A]ll of the facts and circumstances surrounding the
possession are relevant and the elements of the crime may be established
by circumstantial evidence.” Id.In its opinion, the trial court addressed Thomas’s claims and properly
determined that the evidence was sufficient to support Thomas’s convictions
for PWID and possession of a controlled substance. 1925(a) Op. at 8-10.
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The evidence presented by the Commonwealth showed that Officer Mudron,
an experienced officer with training in narcotics, was patrolling a high drug-
trafficking area when he saw Thomas exchange white packets with another
person for cash, which Thomas then placed in his left pants pocket. Police
recovered four white packets, later determined to be heroin, from the
buyer’s mouth, and found $40 in Thomas’s left pants pocket, which Officer
Mudron testified was consistent with the average price in that area of $10
per packet of heroin. After reviewing the briefs, the record, and the relevant
law, we affirm based on the trial court’s reasoning. Id. at 8-10.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/20/2017
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Circulated 05/22/2017 01:48 PM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA, )
)
vs. ) NO. CC201211012
)
ROBERT THOMAS, JR, )
)
Defendant. )
TODD,J.
July 13, 2016
OPINION
This is an appeal by Defendant, Robert Thomas, after he was found guilty on July 9,
2015 after a non-jury trial of Possession with Intent to Deliver a Controlled Substance in
violation of 35 Pa.C.S. § 780-113(a)(30); Possession of a Controlled Substance in violation of 35
Pa.C.S. § 780-l 13(a)(l6); and False Identification to Law Enforcement in violation of 18 Pa.C.S.
§ 4914. Defendant was sentenced on July 9, 2015 to 2 to 4 years incarceration and 5 years
probation He was sentenced to one year probation for False Identification to Law Enforcement.
On August 10, 2015 Defendant filed a Notice of Appeal. On August 13, 2015 an order was
entered for Defendant to file a Concise Statement of Matters Complained of on Appeal pursuant
to Pa.R.A.P. 1925(b). On November 23, 2015 Defendant filed his Concise Statement of Matters
Complained of on Appeal setting forth the following:
"A. The court erred in failing to grant the motion to suppress evidence seized
from Mr. Thomas' person insofar as the police lacked probable cause to
arrest him, and no reasonable suspicion to believe that he was armed; and
therefore, the subsequent warrantless search of his person and
interrogation were unlawful pursuant to the Fourth Amendment and
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Article 1, Section 8 of the Pennsylvania Constitution; and any evidence
obtained pursuant to the unlawful arrest and search constituted the "fruit of
the poisonous tree". In addition, the police lacked probable cause to seize
the vehicle at the scene and order a passenger to pit out the contents of his
mouth; and any evidence obtained pursuant to the unlawful seizures.
B. The evidence was insufficient to support the convictions of Possession
with Intent to Deliver a Controlled Substance and Possession of a
Controlled Substance insofar as the Commonwealth failed to prove
beyond a reasonable doubt that the drugs found in the possession of
another male who was in the vehicle nearby, were in the possession of Mr.
Thomas, and/or that Mr. Thomas gave the drugs to the other male in the
vehicle stopped by the police. The police were more than 100 yards away
when Mr. Thomas allegedly approached a vehicle, could not have seen
any exchange of items between Mr. Thomas and a passenger of the
vehicle, or at least could not have seen whether and what items were
exchanged. No fingerprints of DNA were offered into evidence to link the
drugs found on the passenger of the vehicle to Mr. Thomas. In addition,
the Commonwealth did not establish any credentials of the officer who
testified with regard to the cost of the heroin at the time, or offer any basis
for the officer's testimony that he identified the square packets he claimed
he saw in Mr. Thomas' hand as heroin."
BACKGROUND
This matter arises out of Defendant's arrest on August 14, 2012 after he was observed by
undercover police officers selling drugs. Defendant filed a motion to suppress on the basis that
the police lacked probable cause to arrest him. At the suppression hearing the Commonwealth
presented the testimony of Officer William Mudron who testified that on August 14, 2012 he
was working with other officers in an Impact Squad in plain clothes and in an unmarked vehicle.
At approximately 5:25 p.m. he was on patrol in the 200 block of Hammond Street in the City of
Pittsburgh. Officer Mudron described the area as:
"That area's known as a high drug trafficking area. We made numerous arrests in
that location prior to and conducted search warrants on residences in that block,
that particular block. At that time we set up in an alleyway to do surveillance on a
vehicle that was sitting there." (T., p. 5)
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Officer Mudron testified that he has made numerous drug arrests in the past and that he
had specialized training in drug investigations, having gone through "Top Gun," which he
described as "the best training you can get in PA in reference to narcotics." (T., p. 9)
Officer Mudron testified that the officers were in the alley when they observed a vehicle
parked along Hammond Street for approximately five to seven minutes. As he was watching the
vehicle a black male, later identified as Defendant, began walking towards the officers' vehicle,
which was similar in color to the parked vehicle which was under surveillance. Defendant at
first walked towards the unmarked police vehicle and then continued towards the vehicle parked
on Hammond Street. Officer Mudron testified:
"There was two males [in the vehicle] facing up Hammond. He walked to the
passenger's side, which was out in the roadway. At that time he reached out of his
right pocket, handed the passenger four square baggies, which were white. To us
we know it to be heroin. At that time he gathered cash, an unknown amount of
cash at that time from the passenger and placed that cash into his left pocket. He
began walking away from that passenger window back up Hammond." (T., p. 6)
Officer Mudron testified that upon observing the transaction they immediately pulled their police
vehicle out of the alley and Officer Mudron then confronted Defendant and arrested him. Officer
Mudron testified:
"I immediately placed Mr. Thomas into handcuffs, explained to him, you know,
he was going to be under arrest. We watched him just do the deal." (T., p. 7)
While Defendant was being placed under arrest, the other officers approached the passenger of
the vehicle and determined that the passenger had white stamp bags of heroin in his mouth. The
passenger spit the stamp bags out, which were recovered by the police. (T., pp. 7-8)
In a search incident to the Defendant's arrest, Defendant was found in possession of $771
in currency from his right pocket, an iPhone 4 and in his left pocket were two additional twenty
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dollar bills. Officer Mudron testified that $40.00 was consistent with the amount of what four
bags of heroin would cost. (T., p. 9) Officer Mudron testified:
"At that particular time in the Sharadan (sic) area, bags of heroin were selling for
approximately $10 apiece. The money recovered from the defendant's left pocket
was $40. The amount of heroin recovered was four bags, which would be
consistent with how much it would cost to buy a bag or four bags of heroin at that
time in 2012." (T. pp. 9-10)
Officer Mudron also testified that upon Defendant's arrest he gave a false name, using the
name of another individual who Officer Mudron had previously arrested and, therefore, knew
that Defendant had given a false name. (T., p., 10) Defendant eventually gave his correct name
and date of birth. It was stipulated that the items recovered and tested were, in fact, heroin. (T.,
p. 10)
On cross-examination Officer Mudron testified that the police vehicle was approximately
75 to 100 feet away from the parked vehicle when he observed the transaction between
Defendant and the occupant of the vehicle. (T., p. 15) Officer Mudron reiterated that despite the
distance he was definitely able to observe the transaction including the small packages of white
material in that Defendant handed to the passenger in the vehicle. Officer Mudron testified as
follows:
"Q. What are you having us believe? That he turned his and - -
A. He reached into his right pocket, pulled it out of his right pocket and
handed it like he would hand a dollar bill to somebody. He didn't at any time
reach into his pocket with a fist. he would have never been able to reach into his
pocket. He handed it like a dollar bill to the passenger of the vehicle, and the
passenger then exchanged the money with him.
Q. My question to you is, where is it that you would have seen it? Was it in
his hand or in the hand of the passenger?
A. It was in the defendant's hand.
Q. Okay. Is this when he's extending his hand out toward the passenger?
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A. That's correct. Before it ever meets the window.
Q. Okay. You see four packets? Is that what you're telling us?
A. I saw white square packets. I couldn't see four.
Q. You didn't know what they were, did you?
A. I knew they were consistent with heroin.
Q. I know what you thought and suspected, that they were consistent with
something, but you didn't know what they were, did you? In all honesty, you put
in your report you didn't know?
A. Yeah, believing it was heroin.
Q. Believing, but you didn't know?
A. All the things coming together, I believed it to be a heroin drug deal.
Q. All the things coming together? What's that? A black male meeting a
white male?
A. No. The totality of the circumstances." (T., pp. 22-23)
At the conclusion of the hearing, Defendant argued that Officer's Mudron's testimony was
not credible because from his observation point approximately 75 to 100 away from the parked
vehicle, he could not have observed stamp bags in Defendant's hand or identify what was being
handed to the occupant of the vehicle and, therefore, there was no probable cause to arrest
Defendant. After consideration of all the evidence the motion to suppress was denied on the
basis that the credible evidence and the totality of the circumstances, including Officer Mudron's
training and experience, supported a finding that there was probable cause to arrest Defendant.
(T., p.
Subsequent to the denial of the suppression motion a stipulated non-jury trial was held.
After an appropriate colloquy in which Defendant acknowledged his right to a jury trial the
5
testimony from the suppression hearing was incorporated into the non-jury trial record. (T., pp.
36-41) Defendant's prior criminal record was also admitted into evidence. Defendant was
found guilty and sentenced as set forth above. Defendant filed the instant appeal.
DISCUSSION:
In his concise statement Defendant first raises the claim that it was error to deny his
motion to suppress because there was no probable cause to arrest him. The facts in this case are
very similar to the facts in Commonwealth v. Thompson, 985 A.2d 928 (2009) in which the
Supreme Court addressed the issue of a police officer's experience in determining whether or not
probable cause existed to arrest after observing a suspected on street drug transaction. The Court
in Thompson stated that facts as follows:
"On January 21, 2005, in the evening, Philadelphia Police Officer Orlando Ortiz
was on duty in the 2400 block of Leithgow Street. Officer Ortiz knew the
neighborhood as a high crime area in which narcotics, and specifically heroin,
regularly were sold. The area was designated by the Philadelphia Police
Department as an "Operation Safe Streets" neighborhood. Officer Ortiz, a nine-
year veteran of the police force, and his partner, Officer Correa, were in
plainclothes and driving an unmarked vehicle. Officer Ortiz saw a car parked by
the sidewalk and observed Appellant standing in the street by the driver's side
door. Officer Ortiz watched Appellant hand the male driver some money and saw
the driver give Appellant a small object in return. Based on what he saw on the
street and what he knew, including the fact that he had made several hundred
narcotics arrests of this very type, Officer Ortiz believed the men were engaged in
a drug transaction. Officer Ortiz stopped Appellant and recovered from his pocket
a packet of heroin. Officer Correa approached the driver and ultimately recovered
two packets of heroin from his hand and an additional 14 packets from his person.
Commonwealth v. Thompson, 985 A.2d 928, 930 (2009)
The Court referenced the weJl recognized standards related to finding probable, stating:
The parties agree that police were required to have probable cause in order to
stop, seize, and search Appellant in the manner they did. Thus, we apply the well-
established legal standard that governs this matter. Probable cause is made out
when "the facts and circumstances which are within the knowledge of the officer
at the time of the arrest, and of which he has reasonably trustworthy information,
are sufficient to warrant a man of reasonable caution in the belief that the suspect
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has committed or is committing a crime." Commonwealth v. Rodriguez, 526 Pa.
268, 585 A.2d 988, 990 (1991). The question we ask is not whether the officer's
belief was "correct or more likely true than false." Texas v. Brown, 460 U.S. 730,
742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). Rather, we require only a
"probability, and not a prima facie showing, of criminal activity." Illinois v.
Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (citation
omitted) (emphasis supplied). In determining whether probable cause exists, we
apply a totality of the circumstances test. Commonwealth v. Clark, 558 Pa. 157,
735 A.2d 1248, 1252 (1999) (relying on Gates, supra). Commonwealth v.
Thompson, 985 A.2d 928, 931 (2009)
After examining various cases dealing with the issue of the factors to be considered in
determining whether or not probable cause existed to arrest related to a suspected on street drug
transaction, including its 2008 decision in the Commonwealth v, Dunlap, 941 A.2d 671 (2008)
cert. denied, --- U.S.---, 129 S.Ct. 448, the Court concluded that:
Upon review of the various Dunlap expressions, we recognize the logic and
soundness of Justice Saylor's concurring opinion and so hold that "a police
officer's experience may fairly be regarded as a relevant factor in determining
probable cause." 941 A.2d at 679 (Saylor, J., concurring). We caution, however,
that an officer's testimony in this regard shall not simply reference "training and
experience abstract from an explanation of their specific application to the
circumstances at hand." Id. at 681 (Saylor, J., concurring). As the Dunlap
majority itself observed, "a court cannot simply conclude that probable cause
existed based upon nothing more than the number of years an officer has spent on
the force. Rather, the officer must demonstrate a nexus between his experience
and the search, arrest, or seizure of evidence." Dunlap, 941 A.2d at 676. Indeed, a
factor becomes relevant only because it has some connection to the issue at hand.
The very foundation of the Gates totality test is the recognition that all relevant
factors go into the probable cause mix. Commonwealth v. Thompson, 985 A.2d
928, 935 (2009)
After considering all of the appropriate facts and circumstances the Court concluded that
probable cause did exist for the arrest, stating:
Because we have determined that a police officer's experience may be fairly
regarded as a relevant factor in determining probable cause, and due to the
presence of additional factors in support of Officer Ortiz's conclusion that he was
witnessing a drug transaction, we find no error in the Superior Court's conclusion
that probable cause was present in this case. We do not base our decision solely
on Officer Ortiz's experience and the connection he articulated between that
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experience and what he observed. We also rely on the fact that the transaction at
issue occurred in the nighttime hours, on the street, in a neighborhood that the
police department selected for the "Operation Safe Streets" program. We
conclude that the Superior Court properly upheld the denial of suppression in this
case and properly affirmed the judgment of sentence. Commonwealth v.
Thompson, 985 A.2d 928, 936-37 (2009)
In this case, Officer Mudron, testified that he had two and half years experience on the
Impact Squad, which is referred to as Unit 99, and that the majority of the work is related to
narcotics investigations. He had also undergone training at "Top Gun," which he described as
the "best training you can get in PA in reference to narcotics." He made numerous prior drug
arrests and the area where Defendant was arrested was known to him as a "high drug trafficking
area" in which he had made numerous arrests and he had conducted searches for drugs activity
on the same block of Hammond Street where the vehicle in question was under surveillance. He
observed Defendant approach the vehicle that had been sitting parked on Hammond Street for
several minutes and watched as Defendant took small white packages from his right pocket, hand
them to the passenger and receive cash in exchange before walking away from the vehicle.
Despite Defendant's argument to the contrary, Officer's Mudron's testimony concerning his
observations of the transaction was credible. His testimony established a nexus between his
experience as a trained narcotics officer, the location of the transaction and Defendant's
involvement in the transaction, as described, to lead to the conclusion that probable cause existed
to arrest Defendant.
Defendant next contends that the evidence was insufficient to support the conviction of
Possession With Intent to Deliver or Possession of Controlled Substance because the
Commonwealth failed to prove that the drugs found in the possession of the passenger were in
the possession of Defendant or that Defendant gave the drugs to the passenger in the vehicle.
When reviewing a sufficiency of the evidence claim the evidence must be viewed in the light
8
most favorable to the Commonwealth, as verdict winner, to determine if there is sufficient
evidence to enable a fact-finder to find every element of the crime charged beyond a reasonable
doubt. Commonwealth v. McNair, 603 A.2d 1014 (1992). It is exclusively within the province of
the fact-finder to believe none, some or all of the evidence presented. Commonwealth v. Henry,
569 A.2d 929, 939 (1990); Commonwealth v. Jackson, 485 A.2d 1102 (1984). If the fact finder
reasonably could have determined from the evidence presented that all of the necessary elements
of the crime were established, then that evidence will be deemed sufficient to support the verdict.
Commonwealth v. Wood, 637 A.2d 1335, 1343 (1994) Commonwealth v. Hopkins, 747 A.2d
910, 914 (Pa. Super. 2000)
Defendant argues that Officer Mudron was more than 100 yards away and could not have
seen what the items were that were exchanged between Defendant and the passenger of the
vehicle. Initially, it is noted that, in fact, Officer Mudron testified that he was only 75 to 100 feet
away, not a 100 yards, and had a clear view of the exchange and noted that there were small
white packets that were being exchanged between Defendant and the passenger. He also
testified that he saw the passenger hand money to the Defendant. Immediately upon the
exchange of the funds the police apprehended Defendant, as well as the passenger, and four
stamp bags of confirmed heroin were recovered from the passenger's mouth. Officer Mudron
credibly testified that $40.00 was recovered from Defendant's left pocket, the same pocket in
which he saw the cash being placed during the transaction that he had just witnessed. He also
testified that this was was consistent with the price of the four stamp bags of heroin recovered
from the passenger. This evidence is clearly sufficient to establish that Defendant was in
possession of the heroin and sold it to the passenger in the vehicle. The fact that there were no
drugs or drug paraphernalia found on Defendant at the time of the arrest does not negate the fact
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that the evidence, and all reasonable inferences therefrom, indicates that Defendant had both
possessed and sold the heroin to the passenger in the vehicle. In addition, the fact that there were
no fingerprints or DNA evidence offered to link the drugs found on the passenger to Defendant is
irrelevant. It is recognized that the mere absence of DNA on tested items is not conclusive
evidence that a Defendant may not have been involved in the crime. As noted in
Commonwealth v. Conway 14 A.3d 101, (Pa. Super. 2011), reargument denied (Mar. 16, 2011),
appeal denied, 29 A.3d 795 (2011) "In DNA, as in other areas, an absence of evidence is not
evidence of absence."
Finally, as to Defendant's contention that the Commonwealth did not establish any
credentials of the officer who testified with regard to the cost of the heroin, this assertion is
contradicted by the evidence. Officer Mudron testified concerning his experience in narcotics
investigations and arrests as set forth in detail above and it was Officer Mudron who testified as
to the cost of the heroin. Therefore, based on all the evidence it is clear that the Commonwealth
met its burden of proving the charges of Possession With Intent to Deliver and Possession of a
Controlled Substance.
TODD, J.
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