Com. v. Melendez, O.

J-S10010-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ORLANDO MELENDEZ :
:
Appellant : No. 2211 EDA 2018
Appeal from the Judgment of Sentence Entered October 19, 2015
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0015173-2013
BEFORE: GANTMAN, P.J.E., STABILE, J., and COLINS*, J.
MEMORANDUM BY COLINS, J.: FILED MARCH 05, 2019
Appellant, Orlando Melendez, appeals from the judgment of sentence of
21-42 months confinement followed by three years of probation, imposed
after his conviction at a bench trial, for delivery or possession with intent to
deliver a controlled substance and possession of a controlled substance.1 After
careful review, we affirm.
Appellant was arrested on September 6, 2013 and was charged with
delivery or possession with intent to deliver a controlled substance and
possession of a controlled substance. Trial Court Docket at 1, 3. At trial, the
Commonwealth introduced the testimony of two police officers from the
Philadelphia Police Department’s Narcotics Strike Force, Officer Duane Watson
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1 35 P.S. § 780-113(a)(30) and § 780-113(a)(16), respectively.
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* Retired Senior Judge assigned to the Superior Court.
J-S10010-19
and Officer Christopher Purnell, and stipulations agreed to by Appellant’s
counsel that showed the following facts.
On the afternoon of September 6, 2013, Officer Watson was conducting
surveillance in an unmarked vehicle on the 800 block of East Thayer Street in
Philadelphia and saw a woman approach Appellant, engage in a brief
conversation with Appellant and give Appellant money in exchange for small
packets that Appellant removed from his pocket. N.T. at 9-10. Officer Watson
gave a description of the woman to back-up officers and an officer stopped
her within five minutes and found on her two clear packets, each of which
contained an off-white powder in a blue glassine insert stamped “Undertaker.”
Id. at 10, 12-13, 19-21. A short time later, Officer Watson saw a man
approach Appellant and engage in a brief conversation with Appellant and saw
Appellant retrieve packets from his pocket and give them to the man in
exchange for money. Id. at 10-11. Officer Watson gave a description of the
man to back-up officers and an officer stopped him within five minutes and
found on him five clear packets, each of which contained an off-white powder
in a blue glassine insert stamped “Undertaker.” Id. at 11, 13, 19-21. The
powder in these seven packets that the police retrieved was chemically tested
and found positive for heroin. Id. at 19-21.
Following these two transactions, Officer Watson saw another man
approach Appellant and walk with him and heard the man say to Appellant
“how many do you need?” N.T. at 11, 17-18. Officer Watson saw Appellant
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enter an alley for approximately 35 seconds and, after Appellant came out of
the alley, saw Appellant give money to the man. Id. at 12, 18-19. Officer
Purnell arrested Appellant, but the man who had been with Appellant fled and
the police were unable to apprehend him. Id. at 12, 22. Officer Purnell found
$13 in Appellant’s pocket and a clear packet with a blue glassine insert
stamped “Undertaker” in Appellant’s sock. Id. at 22-23. The contents of the
blue glassine insert in the clear packet found in Appellant’s sock tested positive
for heroin. Id. at 16-17, 22, 24.
The trial court found Appellant guilty of both charges. On October 19,
2015, following a presentence investigation evaluation, the trial court
sentenced Appellant to 21-42 months confinement followed by three years of
probation for the delivery or possession with intent to deliver a controlled
substance conviction and imposed no further penalty for the possession
conviction. Appellant filed no appeal from that judgment, but filed a petition
pursuant to the Post Conviction Relief Act (“PCRA”)2 on June 7, 2016. On June
26, 2018, the trial court granted that PCRA petition insofar as it sought to
reinstate Appellant’s right to file a direct appeal. On July 16, 2018, Appellant
timely filed this direct appeal.
Appellant presents only one issue for our review:
Was the evidence sufficient as a matter of law to convict Orlando
Melendez of Possession With Intent to Manufacture or Deliver,
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2 42 Pa.C.S. §§ 9541–9546.
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under the Controlled Substance, Drug, Device, and Cosmetic Act,
35 P.S. § 780-113?
Appellant’s Br. at 2.
Our standard of review on this issue is well-settled:
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 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.
Commonwealth v. Brockman, 167 A.3d 29, 38 (Pa. Super. 2017) (quoting
Commonwealth v. Antidormi, 84 A.3d 736 (Pa. Super. 2014)).
Viewed in the light most favorable to the Commonwealth as verdict
winner, the evidence at trial was clearly sufficient for the trial court to find the
essential elements of delivery or possession with intent to deliver a controlled
substance beyond a reasonable doubt. Proof that the defendant physically
transferred or conveyed a controlled substance to another person is sufficient
to sustain a conviction for delivery or possession with intent to deliver a
controlled substance. Commonwealth v. Murphy, 844 A.2d 1228, 1233-34
(Pa. 2004); Commonwealth v. Morrow, 650 A.2d 907, 912 (Pa. Super.
1994); Commonwealth v. Metzger, 372 A.2d 20, 22 (Pa. Super. 1977); see
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also 35 P.S. § 780-102(b). The Commonwealth may also satisfy its burden of
proof by showing that the defendant had both possession of a controlled
substance and an intent to deliver the controlled substance. Brockman, 167
A.3d at 38; Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa. Super. 2008).
The evidence at trial showed both delivery of the controlled substance
heroin and possession of heroin with an intent to deliver. A police officer saw
Appellant give a number of packets that he had on his person to two buyers
in exchange for money, the police retrieved the packets from the buyers, and
the packets tested positive for heroin, and the buyers’ heroin packets had the
same labeling and packaging as the heroin packet found on Appellant. Such
evidence of actual transfer of heroin is sufficient to prove that Appellant
delivered a controlled substance and is therefore guilty of delivery or
possession with intent to deliver a controlled substance. In addition, this
evidence is sufficient to prove possession and intent to deliver, as it showed
that Appellant had heroin in his possession when he made the sales and that
he intended to deliver it, as he in fact did transfer that heroin to the buyers.
See Lee, 956 A.2d at 1026, 1028 (evidence was sufficient where police
observed two transactions during which individuals approached defendant and
engaged in conversation, defendant accepted money from the individuals and
handed small objects to the individuals, a packet containing a small quantity
of crack cocaine was retrieved from the first buyer, and that packet was
packaged the same way as packets found at a location used by defendant in
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the sales); Commonwealth v. Wright, 846 A.2d 730, 737-38 (Pa. Super.
2004) (challenge to the sufficiency of the evidence to show intent to deliver
was frivolous where police observed defendant pulling items from his pocket
and exchanging them for money and a bag that defendant threw from his
pocket contained small baggies of crack cocaine).
Appellant argues that the Commonwealth did not meet its burden of
proof because only one heroin packet and $13 were found on him and the
heroin packet was in a different location than the packets that he gave to the
buyers. We do not agree. Evidence that Appellant had substantial quantities
of drugs or money from which an intent to sell could be inferred was
unnecessary in this case because there was other evidence that he actually
delivered heroin that was in his possession to buyers. Moreover, the small
amount of money on Appellant at the time of his arrest did not negate the
Commonwealth’s proof that he sold heroin to the two individuals in the
transactions that the police officer observed, as there was also evidence that
he gave money to a third person, who was not apprehended by the police,
following the second heroin sale and before his arrest.
Because the sole issue raised by Appellant is without merit, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/5/19
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