Com. v. Wyatt, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RONALD J. WYATT
Appellant No. 1313 MDA 2016
Appeal from the Judgment of Sentence February 24, 2016
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001177-2015
BEFORE: BOWES, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 08, 2017
Ronald J. Wyatt appeals from the judgment of sentence, entered in the
Court of Common Pleas of Lebanon County, following his conviction for
multiple drug offenses.1 After careful review, we affirm.
The trial court aptly summarized the facts underlying Wyatt’s arrest as
follows:
At the trial, Detective Michael DiPalo of the Lebanon Count Drug
Task Force testified that he received information that [Wyatt]
would be traveling to Philadelphia via the Pennsylvania Turnpike
to pick up drugs on May 8, 2015. As a result, Detective DiPalo
and other officers conducted surveillance of [Wyatt]’s home and
anticipated route of travel. The officers eventually observed
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1
Wyatt was charged and convicted of three counts of possession with intent
to deliver, 35 P.S. § 780-113(a)(30) (cocaine and marijuana), 35 P.S. §
780-113(a)(16) (methamphetamine), and three counts of possession of a
controlled substance, 35 P.S. § 780-113(a)(32) (cocaine, marijuana, and
methamphetamine).
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[Wyatt] driving a gold-colored van, which was registered to one
of Defendant’s family members, traveling on the Turnpike. After
the van exited the Turnpike, officers from the South Londonderry
Township Police Department followed it as it headed north on
Route 72. When the van was stopped and searched, two cell
phones were found inside. A K-9 unit was summoned and also
conducted a search of the vehicle. The K -9 officer indicated to
the engine compartment of the car. When the hood was opened,
officers found a bag containing two pounds of marijuana,
approximately an ounce of methamphetamine and an ounce of
cocaine. When asked whether he had any other controlled
substances at his residence [Wyatt] admitted that he had some
additional cocaine and a cutting agent there. [Wyatt]
accompanied the detectives to his home and led them to the
cocaine and the cutting agent which were hidden in some paint
cans in the basement.
Another member of the Drug Task Force, Detective Ryan Mong,
also testified at the trial. Detective Mong was qualified as an
expert to testify as to whether drugs were possessed for
personal use or delivery. Detective Mong was assisting Detective
DiPalo with surveillance and made the initial contact with
[Wyatt] after the van was stopped. Detective Mong had [Wyatt]
exit the van so that he could speak with him. After Detective
Mong explained the information they had received, Defendant
consented to a search of the van. Defendant told Detective
Mong that there was a small amount of marijuana in the back of
the van. When the officers opened the hood, [Wyatt] yelled
“bingo, bingo, bingo.” When Mong asked what he meant,
[Wyatt] said “you'll find out.” [Wyatt] told them to open the bag
and then said that he would cooperate so that they could get to
the “big guy.” When he was asked whether he had other drugs
at his home, [Wyatt] offered to take the detectives there to get
them.
Detective Mong opined that [Wyatt] had possessed the
marijuana, cocaine and methamphetamine with the intent to
deliver. In reaching this opinion, he noted that the large
amounts (807 grams - nearly two pounds – of marijuana, 51
grams of cocaine, and 28 grams of methamphetamine). These
items were packed in bulk as they had been picked up from
[Wyatt]'s supplier. Detective Mong explained that dealers
usually purchase drugs in bulk because it is cheaper. In
addition, no items which could be used for ingestion of the drugs
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were found and [Wyatt] had $1,400.00 in currency on his
person.
On cross-examination; Detective Mong acknowledged that
disposable items could be used for the ingestion of controlled
substances. He also explained that the detectives did a “walk-
through” of [Wyatt]'s home and did not search drawers or
cabinets. When asked about the consumption of drugs by an
addict, Detective Mong indicated that a “terrible” addict could
possibly use up to a hundred dollars’ worth of controlled
substance per day. However, he further noted that the amount
of drugs in this case would last a user up to six months,
depending on the frequency of use, and that a typical “user”
would not be expected to have this quantity of drugs. The fact
that he already had cocaine in his home and went out to
purchase more also made it unlikely that the drugs were for
[Wyatt]'s personal use. Detective Mong also acknowledged that
a cutting agent could be used to dilute the potency of a
controlled substance, but that doing so would reduce the “high.”
[Wyatt] testified that he was sixty years of age and had been
doing drugs since he was twelve years old. He indicated that he
had suffered with drug addiction for many years and that he was
using drugs at the time of this incident. He explained that he
had purchased the drugs in Philadelphia because they were
cheaper there. He admitted that he sold marijuana, but that the
cocaine and methamphetamine were for his personal use. He
used the proceeds from the marijuana sales in order to pay for
his cocaine and methamphetamine habit. [Wyatt] claimed that
the marijuana found in the back of the van was for his disabled
son's medical needs. He further explained that he had used the
cutting agent at his home to dilute the cocaine in order to avoid
overdosing, but that he had ruined the cocaine by cutting it too
much. He had those items hidden in the paint cans to keep it
from children in his home. He claimed that the $1,400.00 was
from sources other than drug sales. On cross-examination,
[Wyatt] admitted that he had several clean urine tests around
the time of this incident and Detective DiPalo testified that
[Wyatt] had said nothing about being an addict to the
detectives.
Trial Court Opinion, 7/26/16, at 2-5.
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Wyatt was tried before a jury and convicted of all charges. On
February 24, 2016, he was sentenced to 5 to 10 years’ imprisonment. On
February 29, 2016, Wyatt filed post-sentence motions that were denied.
Wyatt filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b)
concise statement of matters complained of on appeal.
On appeal, Wyatt presents the following issues for our review:
(1) Whether the Wyatt's motion for acquittal should be
granted due to the Commonwealth's failure to present
sufficient evidence at trial to prove the possession with the
intent to deliver cocaine and possession with the intent to
deliver methamphetamine?
(2) Whether the jury’s verdicts were against the weight of the
evidence as it pertains to the possession with the intent to
deliver cocaine charge and possession with the intent to
deliver methamphetamine?
Wyatt first contends that the Commonwealth failed to prove, beyond a
reasonable doubt, that he possessed cocaine and methamphetamine with
the intent to deliver.
In reviewing a challenge to the sufficiency of the evidence, we must
determine whether, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, together with all reasonable inferences
therefrom, the trier of fact could have found that each and every element of
the crimes charged was established beyond a reasonable doubt.
Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000). In
order to convict an accused of possession with intent to deliver under 35
P.S. § 780-113(a)(30), “the Commonwealth must prove that he ‘both
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possessed the controlled substance and had an intent to deliver that
substance.’” Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super.
2011) (citation omitted).
Moreover, “[w]hen 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[.]’” Id. (citation
omitted). “[E]xpert testimony is . . . admissible ‘concerning whether the
facts surrounding the possession of controlled substances are consistent with
an intent to deliver rather than an intent to possess it for personal use.’”
Id. (citation omitted). “[P]ossession with intent to deliver can be inferred
from the quantity of the drugs possessed and other surrounding
circumstances, such as lack of paraphernalia for consumption.”
Commonwealth v. Ratsamy, 934 A.2d 1233, 1237-38 (Pa. 2007).
Wyatt claims that the Commonwealth failed to prove that he
possessed the drugs with the intent to deliver. Specifically, he discredits the
Commonwealth’s expert, Detective Mong, who opined that, based upon the
weight of the controlled substances, they were intended to be delivered.
Wyatt argues that his own testimony (he is an addict who buys drugs in bulk
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because it is cheaper, adds a cutting agent2 to the drugs due to a past
overdose experience, and was buying the drugs because he ruined a batch
by using too much cutting agent) is more reliable than the expert’s
speculation. Finally, Wyatt asserts that officers did not find drug use
paraphernalia in his home because they did not search drawers, closets, or
other areas where an addict might hide paraphernalia.
Instantly, the trial court found that based on the sheer amount of
drugs packed in bulk (almost two pounds of marijuana; 51 grams of cocaine;
and 28 grams of methamphetamine), the absence of any drug-use
paraphernalia in Wyatt’s home or van, $1,400.00 found on Wyatt’s person,
and the presence of a cutting agent, the intent to deliver was proven beyond
a reasonable doubt. We agree and find that there was sufficient evidence to
sustain Wyatt’s conviction of possession with intent to deliver. See
Commonwealth v. Ariondo, 580 A.2d 341 (Pa. Super. 1990) (although
defendant testified that he was heavy drug user and intended cocaine for
personal use, court made its own credibility determination and discounted
defendant’s self-serving testimony where other evidence supported court’s
finding that defendant possessed cocaine with intent to deliver).
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2
A cutting agent is a non-controlled substance which is mixed with a
controlled substance in order to increase its volume and the potential profit
from it.
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In his final claim on appeal, Wyatt asserts that the jury improperly
weighed the testimony of the Commonwealth’s expert in determining that
Wyatt possessed the drugs with the intent to deliver.
The finder of fact is the exclusive judge of the weight of the
evidence as the fact finder is free to believe all, part, or none of
the evidence presented and determines the credibility of the
witnesses. As an appellate court, we cannot substitute our
judgment for that of the finder of fact. Therefore, we will reverse
a jury’s verdict and grant a new trial only where the verdict is so
contrary to the evidence as to shock one's sense of justice[.]
Furthermore,
where the trial court has ruled on the weight claim below,
an appellate court’s role is not to consider 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. Rabold, 920 A.2d 857, 860-61 (Pa. Super. 2007)
(citations omitted).
Wyatt claims that, given his forthcoming testimony regarding the fact
that he is an addict and had the financial resources to buy drugs in bulk, the
court should have regarded him as more credible than the Commonwealth’s
expert, whose opinion was based on conjecture. Again, we emphasize that
the jury, as the trier of fact, was tasked with passing upon the credibility of
the witnesses and determining the weight to be afforded the evidence.
Moreover, the jury was free to believe all, part or none of Wyatt’s testimony.
Accordingly, we cannot conclude that the trial court palpably abused its
discretion in ruling on Wyatt’s weight claim. Rabold, supra.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2017
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