Com. v. Leach, J.

J-S10036-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMAR LEACH :
:
Appellant : No. 2297 EDA 2022
Appeal from the Judgment of Sentence Entered September 2, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0007041-2021
BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY STABILE, J.: FILED JUNE 30, 2023
Appellant Jamar Leach appeals from the September 2, 2022 judgment
of sentence entered in the Court of Common Pleas of Philadelphia County
(“trial court”), following his bench conviction for possession with intent to
deliver (“PWID”) a controlled substance (marijuana) and possession of a
controlled substance (marijuana).1 Upon review, we affirm.
The facts and procedural history of this case are undisputed. In
connection with illicit drug activity, Appellant was charged with, inter alia, the
foregoing crimes.2 The case ultimately proceeded to a non-jury trial, at which
both parties presented testimony. The Commonwealth presented the
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1 35 P.S. § 780-113(a)(30) and (16).
2 Although Appellant also was charged with resisting arrest (18 Pa.C.S.A.
§ 5104) and aggravated assault—attempts to cause or causes bodily injury to
designated individuals (18 Pa.C.S.A. § 2702(a)(3)), the Commonwealth nolle
prossed these two counts prior to trial. See N.T., Trial, 9/2/22, at 14.
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testimony of Philadelphia Police Officer Matthew Preston. Appellant and his
fiancé, Jalisa Haines, testified for the defense. The court summarized the trial
as follows:
On March 6, 2021, at approximately 9:45 am, Officer Preston
began surveilling the area of 1500 Pratt Street for illegal drug
activity. At approximately 10:22 am, Officer Preston observed
what he described as an illegal drug transaction. Officer Preston
stated that a black male, wearing a blue jacket and tan pants
(hereinafter “Buyer #1”), approached Appellant. Appellant
handed a small packet to Buyer #1. Buyer #1 opened the packet,
smelled its contents, and then handed an undetermined amount
of money to Appellant. Officer Preston then asked backup officers
to stop Buyer #1. Officer Tillman stopped Buyer #1 on the 5200
block of North Penn Street and recovered from him one (1) Ziplock
packet labeled “gas house,” which contained marijuana.
At approximately 10:30 am, a black male, wearing a black and
gray sweatshirt (hereinafter “Buyer #2”), approached Appellant,
who was standing in the doorway of a business located at 1538
Pratt Street. According to Officer Preston, the two men engaged
in a brief conversation. Buyer #2 then handed money to Appellant
in exchange for a small packet. After this transaction, Buyer #2
got into a red Kia and drove away. Officer Preston asked backup
officers to stop Buyer #2. Backup officers stopped Buyer #2 at
5700 Frankford Avenue. From Buyer #2, uniformed officers
recovered a Ziplock packet labeled “gas house,” which contained
marijuana.
[The parties stipulated to the seizure analysis and the fact that
the green leafy substance inside each Ziplock recovered from the
first two buyers was in fact marijuana.]
A few minutes later, Officer Preston observed a third drug
transaction. He testified that a white male, wearing a jacket with
a fur collar (hereinafter “Buyer #3”), approached Appellant, who
was still in the doorway of 1538 Pratte Street. Appellant and
Buyer #3 had a brief conversation after which Appellant handed
Buyer #3 a small packet in exchange for money. Buyer #3 was
stopped by police near 5200 N. Penn Street. From Buyer #3,
police recovered a single Suboxone packet, which Officer Preston
believed was blue and white in color.
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[At trial, the Commonwealth predicated the PWID and simple
possession charges only upon marijuana, and not any other illicit
substances, such as Suboxone, recovered on the March 6, 2021.]
Officer Preston thereafter instructed police to arrest Appellant.
Appellant was inside a check cashing store when officers
approached him. Officer Baha went inside the store to arrest
Appellant. Officer Mullen and Lieutenant Bennet followed. Just as
Officer Mullen opened the door, Appellant burst through the
entrance thereby knocking Officer Mullen to the ground.
Lieutenant Bennet was directly behind Officer Mullen. He grabbed
Appellant and subdued him. Recovered from Appellant were 13
Ziplock packets-identical to those sold to Buyer #1 and Buyer #2
along with 27 Suboxone packets and $1,390. [While Buyer #3
was arrested, Buyer #1 and Buyer #2 were not arrested, but
rather issued summary citations for possessing a small amount of
marijuana. According to Officer Preston, there were
approximately “16 exhibits of marijuana for a grand total of
approximately two to three grams.” N.T., Trial, 9/2/22, at 30.]
For the defense, Ms. Haines, Appellant’s fiancé, testified that she
gave Appellant approximately $1,380 toward rent. Appellant
claimed he went inside the check cashing store to get a money
order to make the rental payment. Appellant denied selling drugs
to anyone on the date of his arrest. Alternatively, he stated on
direct examination that he had a prescription for the Suboxone
and that he merely gave a packet of marijuana to a friend,
reiterating that he did not sell the marijuana.
Trial Court Opinion, 10/24/22, at 2-3 (record citations and footnotes omitted).
Following the bench trial, on September 2, 2022, the trial court found
Appellant guilty of PWID and possession of a controlled substance. On that
same day, the trial court sentenced Appellant to two years’ probation for
PWID. The court did not impose a penalty for the possession conviction.
Appellant did not file any post-sentence motions. He timely appealed. The
trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal. Appellant complied, challenging only the sufficiency
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of the evidence underlying his convictions for PWID and possession of a
controlled substance. In response, the trial court issued a Pa.R.A.P. 1925(a)
opinion.
On appeal, Appellant presents a single issue for our review.
[I.] Whether the evidence introduced at trial and all reasonable
inferences derived from the evidentiary record, viewed in the light
most favorable to the Commonwealth as verdict winner, is
sufficient to establish all elements of [PWID], in violation of 35
[P.S.] § 780-113 [(a)(30)], beyond a reasonable doubt[.]
Appellant’s Brief at 6.3 In support of his claim, Appellant points out that
because he possessed less than 30 grams of marijuana,4 he should have been
convicted of possession of a small amount of marijuana for personal use under
35 P.S. § 780-113(a)(31) instead of PWID.
A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
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
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3 Conceding his guilt, Appellant withdraws his claim that the evidence was
insufficient to support his conviction for possession of a controlled substance.
See Appellant’s Brief at 11, 15.
4 The Commonwealth does not dispute Appellant’s contention that less than
30 grams of marijuana were at issue here. See Commonwealth’s Brief at 7
(noting that the amount of marijuana here “was under 30 grams”).
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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. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), appeal
denied, 95 A.3d 275 (Pa. 2014).
Section 780-113 of the Controlled Substance, Drug, Device and
Cosmetic Act provides in pertinent part:
(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:
....
(30) Except as authorized by this act, the
manufacture, delivery, or possession with intent to
manufacture or deliver, a controlled substance by a
person not registered under this act, or a practitioner
not registered or licensed by the appropriate State
board, or knowingly creating, delivering or possessing
with intent to deliver, a counterfeit controlled
substance.
(31) Notwithstanding other subsections of this
section, (i) the possession of a small amount of
marihuana only for personal use; (ii) the possession
of a small amount of marihuana with the intent
to distribute it but not to sell it; or (iii) the
distribution of a small amount of marihuana but not
for sale.
For purposes of this subsection, thirty (30) grams of
marihuana or eight (8) grams of hashish shall be
considered a small amount of marihuana.
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35 P.S. § 780-113(a)(30), (31) (emphasis added).
Based on our review of the record, as detailed above, we agree with the
trial court’s conclusion that, viewed in a light most favorable to the
Commonwealth, the evidence establishes that the Commonwealth proved
beyond a reasonable doubt that Appellant was guilty of PWID. As the trial
court reasoned:
In the instant case, the Commonwealth offered credible evidence
that Appellant not only possessed marijuana but had the requisite
intent to deliver, distribute and/or sell it to others. Officer Preston
observed two hand-to-hand transactions where Appellant gave a
packet of marijuana to separate individuals in exchange for
money. Shortly after the observed transactions each buyer was
stopped and recovered were packets of marijuana which were
consistent in content and appearance with those recovered from
Appellant following his arrest.
Appellant’s own testimony supports his conviction for PWID.
Appellant testified that he did not possess a valid medical
marijuana card. Moreover, Appellant testified that while he did
not “sell” marijuana—a claim this court did not believe—he
admitted to sharing the illegally possessed drugs with another
person.
Trial Court Opinion, 10/24/22, at 6. The record is clear that Appellant lacked
legal authority to sell marijuana. Although the amount of marijuana here was
less than 30 grams, the record supports the trial court’s finding that Appellant
sold marijuana for money to two separate buyers on March 6, 2021.5 Because
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5We are bound by the trial court’s weight and credibility determinations, and
we may not substitute our judgment for that of the factfinder. See
Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. 2004);
Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995) (“an appellate
(Footnote Continued Next Page)
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Appellant sold marijuana, the Commonwealth duly charged him with, and
secured his conviction for, PWID under subsection (a)(30), rather than
possession of a small amount of marijuana for personal use under subsection
(a)(31). Indeed, given the circumstances of this case, subsection (a)(31) is
inapplicable, as it does not contemplate sale of marijuana. Accordingly, we
agree with the trial court’s conclusion that, viewed in a light most favorable
to the Commonwealth, the evidence establishes that the Commonwealth
proved beyond a reasonable doubt that Appellant committed PWID. Appellant
obtains no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2023
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court is barred from substituting its judgment for that of the finder of fact.”);
Commonwealth v. Forbes, 867 A.2d 1268, 1273 (Pa. Super. 2005) (stating
that “[t]he weight of the evidence is exclusively for the finder of fact[,] who
is free to believe all, part, or none of the evidence and to determine the
credibility of witnesses. An appellate court cannot substitute its judgment for
that for the finder of fact.”).
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