Com. v. Poteat, T.

J-S27036-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRANCE POTEAT
Appellant No. 1702 WDA 2013
Appeal from the Judgment of Sentence entered August 20, 2013
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001997-2012
BEFORE: GANTMAN, P.J. , ALLEN, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 07, 2014
Appellant, Terrance Poteat, appeals from the August 20, 2013
judgment of sentence imposing three to six years of incarceration for
possession with intent to de
possession of a controlled substance, delivery of a controlled substance, and
possession of drug paraphernalia.1 We affirm.
which are not in dispute:
On July 19, 2012, a confidential informant met with
Fayette County Drug Task Force Detectives Norman Howard and
Troy Rice. The detectives were working with the informant to
____________________________________________
1
35 P.S. § 780-113(a)(16) (Possession), (30) (Delivery and PWID), and
(32) (Paraphernalia). The trial court imposed three to six years of
incarceration for PWID and no further penalty on the remaining convictions.
J-S27036-14
informant indicated to the detectives that he could purchase
heroin from [Appellant]. He contacted [Appellant] via phone to
for one hundred twenty (120) dollars. After a thorough search
of the inf
sight as he drove to meet [Appellant].
When the informant approached [Appellant], [Appellant]
placed two garbage bags into the informant
backseat and the other in the trunk. The informant drove
[Appellant] to another residence, and [Appellant] entered the
residence where he was inside for several minutes. Upon exiting
the residence, [Appellant] reentered the inform
where the drug exchange occurred. Giving their agreed upon
signal, the informant tapped the roof of his vehicle with his
hand, and the detectives notified standby police officers to stop
the vehicle.
Once the vehicle was stopped, the detectives approached
and asked the informant to exit the vehicle and place his hands
on it with his legs spread. [Appellant] was also approached. At
that time, a Terry[2] frisk was conducted, and Detective Howard
found three (3) bundles of heroin in [Appella
but no money. He was then placed into custody. The informant
was also subjected to a Terry frisk, and one (1) bundle of heroin
was recovered from his person. The one hundred twenty (120)
dollars was not found on him. He was placed under fake arrest
in order to avoid exposing him as a confidential informant. The
detectives proceeded to search the vehicle and found some
personal items belonging to [Appellant] in the trash bags but no
additional drugs, money, or paraphernalia.
[Appellant] was then transported to the Uniontown City
Police Station where he was read his Miranda[3] warnings
before being interviewed by the detectives. He waived his
Miranda
____________________________________________
2
Terry v. Ohio, 392 U.S. 1 (1968).
3
Miranda v. Arizona, 384 U.S. 436 (1966).
-2-
J-S27036-14
stuff not knowing if it was real or not. So I kept it until I had
house it [sic] another. And I kept it until I was able to see if was
[Appellant] was charged with Delivery, [PWID],
Possession, and Possession of Drug Paraphernalia. A jury trial
was held on August 8-9, 2013, and [Appellant] was convicted on
all counts.
Trial Court Opinion, 12/18/13, at 2-3.
Appellant raises two issues in this timely appeal:
1. The Commonwealth failed to prove beyond a reasonable
doubt that [Appellant] possessed the controlled
substance with intent to deliver them [sic] to another
party.
2. The Commonwealth failed to prove beyond a reasonable
doubt that [Appellant] delivered the controlled
substance to another party.
evidence. We conduct our review as follows:
The standard of review for a challenge to the sufficiency of
the evidence is to determine whether, when viewed in a light
most favorable to the verdict winner, the evidence at trial and all
reasonable inferences therefrom is sufficient for the trier of fact
to find that each element of the crimes charged is established
beyond a reasonable doubt. The Commonwealth may sustain its
burden of proving every element beyond a reasonable doubt by
means of wholly circumstantial evidence.
The facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence.
the fact-finder. As an appellate court, we do not assess
credibility nor do we assign weight to any of the testimony of
record. Therefore, we will not disturb the verdict unless the
evidence is so weak and inconclusive that as a matter of law no
-3-
J-S27036-14
probability of fact may be drawn from the combined
circumstances.
Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014)
(citations and quotation marks omitted). As sufficiency of the evidence
presents a question of law, our standard of review is de novo and our scope
of review is plenary. Commonwealth v. Staton, 38 A.3d 785, 789 (Pa.
2012).
Appellant asserts the evidence is insufficient because the
Commonwealth produced no direct evidence in support of his PWID and
convictions were based on mere conjecture or surmise. Id. at 8. This is so,
according to Appellant, because neither of the testifying detectives saw the
actual transaction take place, and because they did not recover the pre-
recorded buy money. Id. at 9-10.
can rest entirely
on circumstantial evidence. Vogelsong, 90 A.3d at 719. In addition, the
detectives observed the confidential informant call Appellant to arrange the
deal and travel to meet Appellant to conduct the deal, which was for one
bundle of heroin. When the informant signaled to the detectives that the
transaction was complete, police arrested both men and found one bundle of
transaction. In summary, the record contains overwhelming evidence of
-4-
J-S27036-14
relief.
was contrary to the weight of the evidence.4 -9.
Appellant included this issue in a timely post-sentence motion in accordance
with Pa.R.Crim.P. 607.5
as it is under his sufficiency of the evidence argument the detectives did not
observe the actual transaction and did not recover the buy money from
Appellant. Our conclusion, likewise, remains the same under a weight of the
____________________________________________
4
The applicable standard of review is as follows:
A verdict is not contrary to the weight of the evidence
because of a conflict in testimony or because the reviewing court
on the same facts might have arrived at a different conclusion
than the factfinder. Rather, a new trial is warranted only when
to the evidence that it shocks
so that right may be given another opportunity to prevail.
Where, as here, the judge who presided at trial ruled on the
weight claim below, an appellate court
the underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited to
whether the trial court palpably abused its discretion in ruling on
the weight claim.
Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003) (citations and
quotation marks omitted), cert. denied, 541 U.S. 1045 (2004). In his brief,
Appellant appears to blur the distinction between challenges to weight and
sufficiency of the evidence.
5
We disapprove of
of questions involved, in violation of Pa.R.A.P. 2116(a).
-5-
J-S27036-14
otion for a
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2014
-6-