Com. v. Johnson, M.

J-A28029-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MAURICE PRINCETON JOHNSON, SR.
Appellant No. 916 EDA 2014
Appeal from the Judgment of Sentence of February 4, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0002971-2013
BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.
MEMORANDUM BY WECHT, J.: FILED DECEMBER 22, 2014
Maurice Princeton Johnson, Sr. appeals from the judgment of sentence
entered February 4, 2014, following his jury conviction of possession with
intent to deliver (“PWID”)—oxycodone, PWID—alprazolam (Xanax), and
possession of drug paraphernalia.1 We affirm.
The trial court set forth the underlying facts of this case as follows:
On March 1, 2013, Detective Chad Cassel of the [Ambler]
Borough Police Department executed a search warrant on a
residence located at 27 Orange Avenue, Ambler, Montgomery
County. Upon entering the home, the detective observed
[Johnson] in the front living room. As a result of the search,
Detective Cassel recovered an unlabeled prescription bottle
containing 33 smaller green pills together with 51 larger white
pills, which were later confirmed to be Oxycodone, 10 milligrams
and Oxycodone, 15 milligrams, respectively. This unmarked
prescription bottle was found inside a jacket that was hanging up
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1
See 35 P.S. § 780-113(a)(30), (32).
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in arm’s reach of [Johnson]. The detective also located another
unmarked pill container containing pink pills on the back porch of
the residence, underneath a pile of clothes. It was later
confirmed that this prescription bottle contained 159 [Xanax]
pills. Two cell phones, an iPhone and an HTC cellphone, were
also located, for which search warrants were subsequently
obtained.
On November 13, 2013, a Suppression Hearing was held. After
th[e trial] court stated on the record its findings of fact and
conclusions of law, suppression was denied. [Johnson]
proceeded to a one-day jury trial on November 19, 2013.
[Johnson] was found guilty of the aforementioned charges.
Subsequently, on February 4, 2014, with the benefit of a
presentence investigation and report, th[e trial] court imposed
the following sentence. On the PWID Oxycodone conviction, th[e
c]ourt imposed a sentence of 33 months’ to 10 years’
imprisonment. On the PWID [Xanax] conviction, th[e c]ourt
imposed a term of 1 ½ to 10 years’ imprisonment.
Accordingly, [Johnson’s] aggregate sentence is [51] months’ to
13 years’ imprisonment. A timely post-sentence motion was
filed, raising a claim regarding the discretionary aspect[s] of
sentencing. The post-sentence motion was denied on March 6,
2014. This timely appeal followed.
Trial Court Opinion (“T.C.O.”), 4/21/2014, at 1-2. Pursuant to the trial
court’s order, Johnson timely filed a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b) on April 8, 2014. The trial court
entered its Pa.R.A.P. 1925(a) opinion on April 21, 2014.
Johnson raises one question for our review: “Are [Johnson’s]
convictions for possession of a Schedule II or IV controlled substance with
intent to deliver supported by legally-sufficient evidence where the
Commonwealth failed to present any evidence whatsoever of [Johnson’s]
non-licensure to possess the particular Schedule II and IV controlled
substances giving rise to the offences [sic]?” Johnson’s Brief at 4.
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In analyzing such claims, 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. Critically important, we must draw all
reasonable inferences from the evidence in favor of the
Commonwealth as the verdict-winner. 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. Of course, 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.
Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (citations
and quotation marks omitted).
In order to prove the offense of possession with intent to deliver
a controlled substance, the Commonwealth must prove beyond a
reasonable doubt both that the defendant possessed the
controlled substance and had the intent to deliver. When
determining whether a defendant had the requisite intent to
deliver, relevant factors for consideration are the manner in
which the controlled substance was packaged, the behavior of
the defendant, the presence of drug paraphernalia, and large
sums of cash. Expert opinion testimony is also admissible
concerning whether the facts surrounding the possession of
controlled substances are consistent with an intent to deliver
rather than with an intent to possess it for personal use.
Commonwealth v. Carpenter, 955 A.2d 411, 414 (Pa. Super. 2008)
(citations and quotation marks omitted).
Here, Johnson argues that “an accused’s non-licensure and/or non-
registration [is] an essential element of the offence [sic] of possessing a
controlled substance with intent to deliver” and that “the Commonwealth
failed to present any evidence whatsoever relating to Johnson’s alleged non-
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licensure and non-registration.” Johnson’s Brief, at 13. Thus, Johnson
contends that his PWID convictions are legally insufficient and must be
reversed. Id. We disagree.
In [Commonwealth v.] Sojourner[, 408 A.2d 1108 (Pa.
Super. 1979)], this Court explained that the Commonwealth has
the burden of proving every element of a criminal offense
beyond a reasonable doubt, but the burden of going forward
with evidence of every aspect of a criminal offense need not rest
on the Commonwealth from the outset. Sojourner, 408 A.2d at
1113 (citations omitted). With respect to those factors upon
which the prosecution must bear the burden of persuasion, the
prosecution may shift to the defendant the burden of production,
in other words, the burden of going forward with sufficient
evidence to justify a reasonable doubt on that issue.
Sojourner, 408 A.2d at 1113-14 (citations omitted). “If the
defendant’s evidence does not cross this threshold, the issue
whether it be malice, extreme emotional disturbance, self-
defense, or whatever will not be submitted to the jury.” Id. at
1114 (citation omitted). The Court in Sojourner concluded
that, before the prosecution must disprove the accused was
authorized to possess narcotics under the [Controlled Substance,
Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq.], the
accused must establish some credible evidence of such
authorization. Id. (emphasis added).
Commonwealth v. James, 46 A.3d 776, 779-80 (Pa. Super. 2012).
Johnson fails to identify any evidence of record that he made an
attempt to establish credible evidence of authorization or licensure of the
Oxycodone and Xanax recovered by Detective Cassel. See Johnson’s Brief
at 21-25. At trial, Johnson presented no witnesses or exhibits. See Notes
of Testimony (“N.T.”) Trial, 11/19/2013, at 59-62. Nowhere did he claim
that he was authorized to possess Oxycodone or Xanax. Id. Thus, Johnson
failed to adduce any evidence that would shift the burden to the
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Commonwealth to disprove that he was authorized to possess narcotics
under the Controlled Substance, Drug, Device and Cosmetic Act. See
James, 46 A.3d at 779-80. Accordingly, his argument does not merit relief.
See id. at 780 (affirming judgment of sentence for PWID where “Appellant
failed to introduce a prescription, testimony from a prescribing physician, or
the actual pill bottle in an effort to support his claim that he was authorized
to possess the pills pursuant to the burden shift described in Sojourner”).
Moreover, the Commonwealth adduced sufficient circumstantial
evidence for the jury to conclude that Johnson was not licensed to possess
the narcotics at issue. Specifically, Detective Chad Cassel testified that he
recovered from Johnson’s jacket an unmarked, unlabeled pill container in
which he found thirty-three, ten-milligram Oxycodone pills and fifty-one,
fifteen-milligram Oxycodone pills, mixed together. N.T. Trial, 11/19/2013,
at 16-18, 30. Detective Cassel also recovered an unlabeled bottle containing
159 Xanax pills from Johnson’s back porch. Id. at 20. No evidence was
found regarding a prescription. Id. Additionally, the Commonwealth
published to the jury evidence of text messages sent by Johnson on March
1, 2013, in which he offered Oxycodone and Xanax for sale in the sizes
recovered by Detective Cassel later that day. Id. at 50-56.
Furthermore, Detective Erick Echevarria, who was admitted as an
expert in drug trafficking and narcotics, testified:
Q. Detective, in your expert opinion regarding drug
trafficking, what was recovered at [Johnson’s] residence, 27
Orange Avenue, the Oxycodone pills, Xanax pills, the unmarked
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pill bottles and different milligrams in the same bottle, do you
have an opinion that this was possessed for personal use or
possessed with the intent to deliver it?
A. Looking at all the information in this case, the way these
are packaged, as well as the text messages that I reviewed,
these pills are without a question in my mind intent to deliver.
Id. at 56.
The Commonwealth presented Detective Echevarria’s expert opinion,
along with the evidence of unmarked pill containers, text messages, and the
two cell phones, to adduce sufficient evidence of possession with intent to
deliver. See Carpenter, 955 A.2d at 414. Thus, we agree with the trial
court in concluding that “there was more than sufficient circumstantial
evidence from which the jury concluded that [Johnson] was not licensed to
possess and dispense either Oxycodone and/or [Xanax].” T.C.O. at 6.
Johnson’s challenge to the sufficiency of the evidence underlying his PWID
conviction lacks merit. See Watley, 81 A.3d at 113.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2014
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