Com. v. Koncsler, C.

J-S12033-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES MICHAEL KONCSLER, :
:
Appellant : No. 1548 MDA 2018
Appeal from the Judgment of Sentence Entered August 24, 2018
in the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0002000-2017
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 24, 2019
Charles Michael Koncsler (“Koncsler”) appeals from the judgment of
sentence imposed following his conviction of delivery of a controlled
substance.1 We affirm.
On September 14, 2017, Shenandoah Police Chief George Carado
(“Chief Carado”) contacted a confidential informant (“CI”) to conduct a
controlled purchase of narcotics from Koncsler. Chief Carado supplied the CI
with $20.00 pre-recorded buy money, and watched while the CI approached
Koncsler near the corner of Lloyd and Main Streets in Shenandoah,
Pennsylvania. The CI and Koncsler completed a hand-to-hand exchange, and
the CI returned to Chief Carado with two pills, and $4.00 in change. Chief
Carado arrested Koncsler later that day, and found the $20.00 in pre-recorded
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1 35 P.S. § 780-113(a)(30).
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buy money during a search incident to arrest. Subsequent testing confirmed
that the two pills the CI obtained from Koncsler were Percocet, which contain
10 milligrams of oxycodone.
Following a jury trial, Koncsler was convicted of delivery of a controlled
substance. On August 24, 2018, the trial court sentenced Koncsler to a term
of 12 months, less one day, to 24 months, less one day, to be served on house
arrest with electronic monitoring. Koncsler filed a timely Notice of Appeal and
a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained
of on appeal.2
Koncsler now raises the following question for our review: “Did the
Commonwealth present sufficient evidence to convict [Koncsler] of delivery of
a controlled substance beyond a reasonable doubt?” Brief for Appellant at 4.
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
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2 Koncsler’s first appellate counsel (“Counsel”) filed a brief pursuant to Anders
v. California, 386 U.S. 738, 744 (1967), on January 8, 2019, but failed to
file a separate petition to withdraw as counsel. Accordingly, by a Judgment
Order entered on April 2, 2019, this Court directed Counsel to file an
advocate’s brief or fulfill the requirements set forth in Anders within 30 days.
Counsel filed a separate Petition to Withdraw with this Court, but Counsel’s
Anders Brief failed to satisfy the requirements of Commonwealth v.
Santiago, 978 A.2d 349, 361 (Pa. 2009) (addressing the requisite contents
of an Anders brief). This Court entered an Order on May 17, 2019, directing
Counsel to either comply with the requirements of Santiago, or to file a
proper advocate’s brief with this Court within 30 days. Counsel failed to
comply, and neglected to respond to our Prothonotary’s attempts to contact
him concerning the status of his brief. This Court thereafter remanded the
matter to the trial court for the appointment of new counsel. On July 3, 2019,
the trial court appointed Koncsler new counsel.
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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. 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. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)
(citation omitted).
Koncsler argues that there was insufficient evidence to sustain his
conviction of delivery of a controlled substance. Brief for Appellant at 8-9.
Koncsler claims that the CI, the most critical witness, did not testify at trial.
Id. at 8. Koncsler also contends that because Chief Carado was positioned
a block away from the exchange, he was unable to conclusively identify
Konscler. Id. Additionally, Koncsler asserts that because the arrest was not
made immediately following the delivery, “many things could have happened
[during this time,] including the marked money being passed from the person
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making the alleged delivery to [Koncsler] for a legitimate purpose.” Id. at 9.3
The Controlled Substance, Drug, Device and Cosmetic Act (the “Act”)
prohibits, inter alia, “the manufacture, delivery, or possession with intent to
manufacture or deliver, a controlled substance not registered under this
[A]ct….” 75 P.S. § 780-113(a)(30). The Act defines “delivery” as “the actual,
constructive, or attempted transfer from one person to another of a controlled
substance….” Id. § 780-102. “A defendant actually transfers drugs whenever
he physically conveys drugs to another person.” Commonwealth v.
Murphy, 844 A.2d 1228, 1234 (Pa. 2004).
Here, Chief Carado testified that on September 14, 2017, he contacted
a CI to conduct a controlled purchase of narcotics from Koncsler. See N.T.,
6/6/18, at 25. Chief Carado testified that he had been conducting surveillance
in the area of Lloyd and Main Streets, when he saw Koncsler and contacted
the CI. See id. at 26-27. Chief Carado stated that he met with the CI to
conduct a search of the CI’s person, and to supply the CI with $20.00 in pre-
recorded buy money. See id. Chief Carado parked his unmarked car in a
bank parking lot, about one block away from Koncsler. See id. at 26.
According to Chief Carado, the CI then walked toward Koncsler, spoke with
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3 We observe that Koncsler fails to support his claim with citation to, and
discussion of, relevant case law. See Pa.R.A.P. 2119(a) (providing that
stating that the argument shall include “such discussion and citation of
authorities as are deemed pertinent.”). However, we decline to deem
Koncsler’s sole issue waived.
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him for less than 30 seconds, and completed a hand-to-hand transaction
before returning to Chief Carado’s vehicle. See id. at 27-29; see also id. at
27-28 (wherein Chief Carado testified that he was able to observe the
transaction and identify Koncsler from his vantage point). Chief Carado
testified that the CI gave him two pills, and $4.00 in change. See id. at 29.
After Chief Carado searched the CI again, he and the CI returned to the police
station. See id.
After placing the two pills into evidence, Chief Carado returned to the
area of Lloyd and Main Streets. See id. at 29-30, 32; see also id. at 29
(wherein the two pills recovered from the CI after the controlled buy were
admitted into evidence as Commonwealth’s Exhibit 2). Chief Carado testified
that he saw Koncsler there, and took him into custody for the sale to the CI.
See id. at 32. According to Chief Carado, his search of Koncsler revealed a
metal canister containing one Xanax pill, a prescription bottle of Percocet
(prescribed to Koncsler), and $185.00 in U.S. currency, including the pre-
recorded $20.00 bill that the CI had used during the controlled buy. See id.
at 32-34. Chief Carado testified that he later transported the evidence to the
Pennsylvania State Police Crime Lab in Bethlehem, Pennsylvania, for testing.
See id. at 36-37.
Brendan McCann (“McCann”), a forensic scientist for the Pennsylvania
State Police, testified that the two pills admitted into evidence as
Commonwealth’s Exhibit 2 (the pills recovered from the CI) contained a
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mixture of acetaminophen and oxycodone. See id. at 49, 52; see also id. at
46-48 (wherein the Commonwealth presented McCann’s qualifications, and
the parties stipulated that McCann could testify as an expert in forensic
science, and specifically, drug identification). Additionally, McCann testified
that oxycodone is a controlled substance. See id. at 52; see also id. at 30-
31 (wherein Chief Carado testified that oxycodone is a controlled substance).
Viewing the evidence in the light most favorable to the Commonwealth
as the verdict winner, we conclude that there was sufficient evidence for the
jury to conclude that Koncsler knowingly delivered a controlled substance to
the CI. The trial testimony demonstrates that, while under the supervision of
Chief Carado, the CI approached Konscler, and purchased two pills, using
$20.00 in pre-recorded buy money. Chief Carado was able to observe the
transaction from his position a block away. The record also reflects that the
pills were later identified as Percocet, which contains 10 milligrams of
oxycodone, a controlled substance. Chief Carado’s testimony concerning the
transaction, which was credited by the jury, is sufficient to support the verdict.
See Commonwealth v. Ellison, 2019 PA Super 193, at *5-*7 (filed June 20,
2019) (concluding that there was sufficient evidence to sustain defendant’s
conviction of delivery of a controlled substance, where, under the supervision
of an agent from the Pennsylvania Attorney General’s Office, a CI made
contact with defendant on three separate occasions to purchase cocaine, even
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though the agents did not witness the entirety of the transactions). Thus,
Koncsler is not entitled to relief on his sole claim on appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/24/2019
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