Com. v. Campbell, H.

J-S12005-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HOWARD LEE CAMPBELL :
:
Appellant : No. 1003 MDA 2022
Appeal from the Judgment of Sentence Entered March 14, 2022,
in the Court of Common Pleas of York County,
Criminal Division at No(s): CP-67-CR-0002424-2020.
BEFORE: KUNSELMAN, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: MAY 12, 2023
Howard Lee Campbell appeals from the judgment of sentence entered
following his conviction for possessing fentanyl with the intent to deliver.1 He
challenges the sufficiency and weight of the evidence. We affirm.
The trial court summarized the evidence surrounding the controlled drug
purchase operation that gave rise to the case against Campbell:
[I]n February of 2020[, a] confidential informant represented to
Detective Cody Myers that they could purchase heroin from an
individual located in Baltimore. The confidential informant could
not provide a name of the individual, only a phone number. The
confidential informant then met with Detective Craig
Fenstermacher, who directed the informant to broker a deal with
the alleged dealer.
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30).
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Thereafter, the confidential informant called the known
phone number, spoke with a male individual on the other end of
the call, and brokered a deal to purchase roughly $1,300.00 in
what was believed to be heroin. Arrangements were then made
between the parties for the unknown male individual to meet with
the confidential informant at a Turkey Hill convenience store in
York, Pennsylvania. Due to a miscommunication, the individual
first arrived at an incorrect Turkey Hill and required redirection by
the confidential informant to the correct Turkey Hill.
At the correct Turkey Hill, Detective[s Fenstermacher,
Myers, and Vincent] Monte were set up to surveil the parking lot
of the convenience store. During the redirection by the
confidential informant, the suspect noted that he would be arriving
to the correct Turkey Hill in a gray Nissan. Shortly thereafter, a
gray Nissan arrived at the Turkey Hill, drove around the parking
lot as if [the driver was] looking for something, and eventually
parked by the air pump. At this point, the arrest team moved in
to pull the suspect from the vehicle.
The arrest team then searched the car. They found three
cell[ ]phones[. Using another phone, they] made a phone call to
the number that was used by the confidential informant to set up
the buy. One of the three phones found in the car then illuminated
in response to the call. In addition to the cell phones, the arrest
team also located a bag in the backseat of the car which contained
88 capsules of what appeared to be heroin. The capsules were
later tested and proven to be fentanyl.
[Campbell] was then arrested upon completion of the search
of his vehicle. [Campbell] was then taken to the police station
where he proceeded to give a statement to the police. In his
statement, [Campbell] indicated that he was in Baltimore when
two people whom he did not really know offered him $250.00 to
drive to York City. [Campbell] stated that someone was supposed
to give him $1,300.00, and he would then drive the money back
to Baltimore. [Campbell] further indicated that he believed that
the money probably had something to do with drugs, but not that
he was carrying said drugs.
Trial Court Opinion, 9/13/22, at 1–3 (record citations omitted).
Police charged Campbell with possession of fentanyl with intent to
deliver under 35 P.S. § 780-113(a)(30). The case proceeded to trial beginning
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January 31, 2022. On February 2, 2022, the jury returned a guilty verdict.
On March 14, 2022, the trial court sentenced Campbell to 8 to 16 years of
imprisonment followed by 1 year of probation. Campbell filed a post-sentence
motion for a new trial based on the weight of the evidence. The trial court
heard and denied the motion on June 15, 2022. Campbell timely appealed.2
Campbell and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.
Campbell presents two issues for our review:
1. Whether the Commonwealth failed to present sufficient
evidence to show [Campbell] possessed with the intent to
deliver fentanyl, when the evidence failed to show he actually
possessed the drugs?
2. Whether the jury’s verdict of possession with the intent to
deliver a controlled substance was against the weight of the
evidence as the verdict shocked one’s sense of justice wherein
the Commonwealth failed to show that [Campbell] possessed
the drugs?
Campbell’s Brief at 5.
Campbell first argues that the evidence was insufficient to prove that he
possessed fentanyl. He contends there was insufficient evidence that he knew
that the drugs were in his car. He notes that mere presence at the scene of
a crime is not enough to establish guilt beyond a reasonable doubt. See
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2Campbell’s trial counsel withdrew after sentencing. Present counsel entered
an appearance two days later and received an extension of time to file a post-
sentence motion. See Commonwealth v. Moore, 978 A.2d 988, 991 (Pa.
Super. 2009) (recognizing a trial court’s authority to extend the time to file a
post-sentence motion). Campbell filed his notice of appeal on July 5, 2022,
within 30 days of the denial of his timely post-sentence motion.
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Commonwealth v. Goodman, 350 A.2d 810, 811 (Pa. 1976). In the same
vein, Campbell disputes his identity as the man with whom the confidential
informant arranged a drug deal. See Commonwealth v. Crews, 260 A.2d
771, 772 (Pa. 1970) (holding a generic description of a perpetrator to be
insufficient to prove identity); Commonwealth v. Orr, 38 A.3d 868 (Pa.
Super. 2011) (en banc) (finding circumstantial evidence sufficient to
corroborate a victim’s initial identification of the perpetrator, despite inability
to identify the defendant at trial).
The Commonwealth counters that the evidence of possession was
overwhelming. It submits that the totality of the circumstances established
that Campbell constructively possessed the drugs that were in his car when
he was arrested. See Commonwealth v. Hopkins, 67 A.3d 817 (Pa. Super.
2013) (finding sufficient evidence that a car driver constructively possessed a
firearm that was within arms-length of where he was seated).
We follow a well-settled standard in reviewing a claim that the evidence
was not sufficient to sustain a conviction:
In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial and all reasonable
inferences drawn therefrom, viewed in the light most favorable to
the Commonwealth as verdict winner, is sufficient to prove every
element of the offense beyond a reasonable doubt. As an
appellate court, we may not re-weigh the evidence and substitute
our judgment for that of the fact-finder. Any question of doubt is
for the fact-finder unless the evidence is so weak and inconclusive
that as a matter of law no probability of fact can be drawn from
the combined circumstances.
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Commonwealth v. Smith, 288 A.3d 126, 131 (Pa. Super. 2022) (quoting
Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa. Super. 2009)).
Possession with intent to deliver is defined: “The following acts . . . are
hereby prohibited: . . . possession with intent to . . . deliver . . . a controlled
substance . . . .” 35 P.S. § 780-113(a)(30). To secure a conviction, “the
Commonwealth must prove beyond a reasonable doubt that the defendant
possessed a controlled substance and did so with the intent to deliver it.”
Commonwealth v. Bricker, 882 A.2d 1008, 1015 (Pa. Super. 2005) (citing
Commonwealth v. Conaway, 791 A.2d 359, 362 (Pa. Super. 2002)).
When controlled substances are found not on a defendant’s person, the
Commonwealth must prove constructive possession. Id. “Constructive
possession requires proof of the ability to exercise conscious dominion over
the substance, the power to control the contraband, and the intent to exercise
such control.” Id. (citing Commonwealth v. Petteway, 847 A.2d 713, 716
(Pa. Super. 2004)). The Commonwealth can prove constructive possession
based on the totality of the circumstances. Id.Here, the evidence was sufficient to prove that Campbell constructively
possessed the fentanyl in his car. When he arrived in York, Campbell was the
only occupant of the car. The drugs were within reaching distance of his seat.
Although Campbell denied that he knew about the drugs and provided an
alternative explanation, the jury was free to reject his narrative and infer that
Campbell intended to exercise control over the drugs. Notably, the
confidential informant called the same number to talk with the person who
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was delivering the drugs, and the person on the other end of the call described
the gray Nissan he was driving. Notwithstanding the detective’s lack of
positive identification, it was reasonable for the jury to infer that the person
was Campbell, the same person who had arranged to exchange the purported
heroin for $1,300.00 at the Turkey Hill. See N.T., 2/1/22, at 155–160.
Therefore, the evidence was sufficient to establish that Campbell
constructively possessed the drugs in his car.3
Campbell next argues that the trial court abused its discretion in denying
his post-sentence motion for a new trial because the verdict was against the
weight of the evidence. He emphasizes his testimony, consistent with his
statements to police, that “Little James” and another man sat in his car and
arranged to pay him $250 to collect money from Pennsylvania, that they
provided the third cell phone, and that he was unaware that there were drugs
in the bag in his car. Campbell submits that the jury overlooked the lack of
direct evidence that he was the person who arranged the drug deal with the
confidential informant. He concludes that the evidence was so unreliable and
contradictory that the guilty verdict was based on conjecture, not reason.
Appellate review of a challenge to the weight of the evidence is subject
to the following standard:
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3 Campbell’s arguments—and our analysis—focus on Campbell’s identity as
the individual who possessed the fentanyl capsules. The evidence was also
sufficient to establish that the drugs were possessed with the intent to deliver.
See N.T., 2/1/22, at 196–199 (expert testimony of Detective Noel Velez).
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The weight given to trial evidence is a choice for the
factfinder. If the factfinder returns a guilty verdict, and if a
criminal defendant then files a motion for a new trial on the basis
that the verdict was against the weight of the evidence, a trial
court is not to grant relief unless the verdict is so contrary to the
evidence as to shock one’s sense of justice.
When a trial court denies a weight-of-the-evidence motion,
and when an appellant then appeals that ruling to this Court, our
review is limited. It is important to understand we do not reach
the underlying question of whether the verdict was, in fact,
against the weight of the evidence. We do not decide how we
would have ruled on the motion and then simply replace our own
judgment for that of the trial court. Instead, this Court determines
whether the trial court abused its discretion in reaching whatever
decision it made on the motion, whether or not that decision is the
one we might have made in the first instance.
Moreover, when evaluating a trial court’s ruling, we keep in
mind that an abuse of discretion is not merely an error in
judgment. Rather, it involves bias, partiality, prejudice, ill-will,
manifest unreasonableness or a misapplication of the law. By
contrast, a proper exercise of discretion conforms to the law and
is based on the facts of record.
Commonwealth v. Arnold, 284 A.3d 1262, 1277 (Pa. Super. 2022) (quoting
Commonwealth v. West, 937 A.2d 516, 521 (Pa. Super. 2007)).
The trial court denied Campbell’s post-sentence motion at a hearing on
June 15, 2022. It explained the basis for its decision:
Okay. With regard to this matter, we are denying the
motion at this time. The Court was present for the trial. The
Court’s impression of [Campbell] is that he tried to play stupid like
a fox. It is likely that the jury came to the same conclusion.
The drugs were in his car. It is inconceivable that he did not
know that those drugs were in his car[. H]e absolutely had
constructive possession of those drugs, as it was his car and there
was no one else there, constructive possession was proven
beyond a reasonable doubt such that a jury could absolutely find
that that was the case.
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N.T., 6/15/22, at 2–3.
We discern no abuse of discretion. The trial court observed that the jury
could reject Campbell’s self-serving testimony and find that he constructively
possessed the fentanyl in his car. Id.; see also Trial Court Opinion, 9/13/22,
at 5, 8. We agree that based on the trial evidence, the verdict was not based
on conjecture, and the trial court did not abuse its discretion by denying
Campbell’s motion for a new trial.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2023
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