Com. v. Brockman, J. , 167 A.3d 29 ( 2017 )

J-S40003-17
2017 Pa. Super. 208
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JULIUS BROCKMAN :
:
Appellant : No. 2435 EDA 2016
Appeal from the Judgment of Sentence June 13, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002709-2015
BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED July 5, 2017
Appellant Julius Brockman appeals the judgment of sentence entered
in the Court of Common Pleas of Philadelphia County on June 13, 2016, at
which time he was sentenced to an aggregate term of four (4) years to eight
(8) years in prison following a stipulated bench trial. We affirm.
The trial court aptly set forth the relevant procedural history and facts
herein as follows:
PROCEDURAL HISTORY
The Commonwealth charged Appellant with violating
sections 6105, 6106, and 6108 of the Uniform Firearms Act (18
Pa. C.S.A. §§ 6105, 6106, and 6108), possessing with intent to
deliver a controlled substance (35 P.S. § 780-113(a)(30)), and
knowingly or intentionally possessing a controlled substance (35
P.S. § 780-113(a)(16)). On April 11, 2016, Appellant brought a
pretrial motion to suppress physical evidence, which this [c]ourt
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S40003-17
denied. A bench trial followed and this [c]ourt found Appellant
guilty of the above-referenced crimes.
On June 13, 2016, this [c]ourt sentenced Appellant to
three (3) to six (6) years' incarceration for violating section 6106
of the Uniform Firearms Act, one (1) to two (2) years'
consecutive incarceration for violating section 6105 of the
Uniform Firearms Act, and three (3) years' probation for
violating section 6108 of the Uniform Firearms Act. This [c]ourt
imposed no further sentence for Appellant's remaining
convictions and his aggregate sentence therefore is four (4) to
eight (8) years' incarceration followed by three (3) years'
probation.
On June 22, 2016, Appellant filed a post-sentence motion
for reconsideration of sentence, which this [c]ourt denied on
June 30, 2016. On July 28, 2016, Appellant filed a Notice of
Appeal to the Pennsylvania Superior Court, and on October 18,
2016, Appellant filed a Statement of Matters Complained of on
Appeal pursuant to Pa. R.A.P. No. 1925(b).
MATERIAL FACTS
Appellant brought a motion to suppress a firearm and
crack cocaine that he discarded onto a public street in
Philadelphia, Pennsylvania. At the suppression hearing, the
Commonwealth presented the testimony of Philadelphia Police
Detective Michael Rocks (Detective Rocks), and Philadelphia
Police Officer Alexander McChord (Officer McChord).
Detective Rocks testified that he was assigned to
investigate a shooting that occurred on December 12, 2014,
around the 2500 block of North 30th Street in the city and
county of Philadelphia, Pennsylvania. Pursuant to his
investigation, Detective Rocks received information from another
police officer, Officer Calabrese, who spoke to the shooting
victim at the hospital. Officer Calabrese advised Detective Rocks
that the victim stated "he couldn't believe Ju Ju shot Him." The
victim also provided Officer Calabrese a physical description of
"Ju Ju" (e.g., height and weight), which Officer Calabrese
relayed to Detective Rocks. Thereafter, Detective Rocks
"reviewed numerous photographs" from files relating to previous
pedestrian stops in the shooting area. Based on the suspect's
nickname, physical description, and the neighborhood of the
shooting, Detective Rocks ultimately developed Appellant as the
suspected shooter.1 (Id. at pgs. 5-10, 16-18).2
-2-
J-S40003-17
On December 23, 2014, after already developing Appellant
as a suspect, Detective Rocks received a phone call at Central
Detectives from a female identifying herself as the victim's
girlfriend. The girlfriend advised that "the male that shot her
boyfriend was standing on the 2600 block of North 30th Street
... wearing a grey jacket and jeans."3 The girlfriend did not
identify the alleged shooter by name but provided Detective
Rocks a "clothing description." Detective Rocks subsequently
called Officer McChord and his partner (Officer D'Amico), who
were uniformed patrol officers in the area, and "asked them to
go to that location to see if they observed the male who matched
that description[.]" In addition to relaying the girlfriend's
"clothing description" of the person she identified as the shooter,
Detective Rocks informed Officer McChord that his suspect's
name in the shooting was Julius Brockman (i.e., Appellant).
Although Appellant was still only a suspect and no arrest warrant
had been issued for him, Detective Rocks requested that if the
officers saw Appellant at the described location, "to stop him and
bring him to Central Detectives for investigation." (Id. at pgs.
10-12).
Officer McChord already knew Appellant "from seeing him
in the neighborhood" and because his partner "arrested him
earlier that year." Upon arriving at the above-referenced
location, Officer McChord, who was the front seat passenger in
the patrol car, recognized Appellant walking down the block with
another male. Officer D'Amico pulled the patrol car beside
Appellant and Officer McChord then "opened up the door and
told [Appellant] to stop." (Id. at pgs. 20-25).
Officer McChord testified that he "told [Appellant] to stop
right there" in a "normal manner" - i.e., Officer McChord neither
yelled stop nor said it with a "soft voice." Moreover, Officer
McChord kept his firearm holstered and no lights or sirens were
activated on the patrol vehicle. Officer McChord testified that his
"whole point" of stopping Appellant was not to arrest him but
"for investigation purposes." (Id. at pgs. 23-24).
As soon as Officer McChord told Appellant to stop,
Appellant "immediately reached for his front right side of his
waistband holding on to something and then fled." Officer
McChord believed Appellant was clutching a firearm in his
waistband because he had seen individuals clutch firearms in
such manner between fifteen (15) and twenty (20) occasions. In
Officer McChord's experience, when someone keeps an
unholstered firearm in his/her waistband, he/she must grasp the
-3-
J-S40003-17
weapon while running or it will fall out of his/her waistband. (Id.
at pgs. 24-29).
As Appellant fled the officers, Officer McChord observed
him remove from his waistband a black handgun and a "clear
bag," both of which Appellant dropped in front of a black SUV
parked on the street. Although Officer McChord eventually lost
sight of Appellant when the latter ran down a side street, his
partner (Officer D'Amico) arrested Appellant the very next day
pursuant to an arrest warrant. (Id. at pgs. 24-29).
Before trial, Appellant moved to suppress the firearm and
"clear bag" that he discarded while fleeing from the officers.
Appellant claimed Officer McChord had initially ordered him to
stop without reasonable suspicion that Appellant was engaging in
criminal activity at that time. Appellant therefore claimed that
the discarded items were fruits of a "forced abandonment"
precipitated by an unlawful seizure. (Id. at pgs. 32-35, 42-43).
This [c]ourt denied Appellant's motion and thereafter
conducted a stipulated bench trial. Appellant stipulated that
Officer McChord would testify at trial that he recovered the "clear
bag" that Appellant discarded, and that the bag contained thirty-
five (35) "clear plastic Ziploc packets" of crack cocaine. Officer
McChord also would testify that the firearm Appellant had
discarded was placed on a property receipt and was "test fired
and ... found to be operable." Appellant further stipulated that
the Commonwealth's expert, "Officer Keys," would testify that he
"reviewed the file" and heard the testimony, and expertly opines
that the crack cocaine Appellant discarded "was possessed with
the intent to deliver." In addition to the stipulated testimony, the
Commonwealth submitted a Certificate of Nonlicensure and a
criminal "extract indicating [Appellant] is ineligible to possess a
firearm in Pennsylvania." (Id. at pgs. 50-51).
Based on the above evidence, this [c]ourt found Appellant
guilty of unlawfully possessing a firearm (18 Pa. C.S.A. § 6105),
carrying a firearm without a license (18 Pa. C.S.A. § 6106),
unlawfully carrying a firearm on the public streets of Philadelphia
(18 Pa. C.S.A. § 6108), possessing with intent to deliver a
controlled substance (35 P.S. § 780-113(a)(30)), and knowingly
or intentionally possessing a controlled substance (35 P.S. §
780-113(a)(16)). (Id. at pg. 52). For Appellant's firearms
convictions, this [c]ourt sentenced him to an aggregate term of
four (4) to eight (8) years' incarceration, followed by three (3)
years' probation. This [c]ourt imposed no sentence for
Appellant’s narcotics convictions. (N.T., 6/13/16, pgs. 19-20.
____
-4-
J-S40003-17
1
Detective Rocks testified that Appellant had a tattoo on his body
that stated, "Ju Ju." However, the Commonwealth subsequently
stipulated that if Appellant testified, he would exhibit to the
[c]ourt that he had no tattoo bearing the name Ju Ju. (Id. at
pgs. 18, 29).
2
Detective Rocks testified that the victim was "uncooperative" in
the investigation and refused to give a statement about the
incident, notwithstanding the detective's several attempts to
interview him. Because the victim refused to cooperate,
Detective Rocks did not show him photographs of Appellant for
purposes of identification. (Id. at pgs. 19-20).
3
Detective Rocks testified that he believes this female obtained
his phone number from his work card that he left at the hospital
with the victim. Although Detective Rocks never met this female
in person or formally interviewed her at the police station, she
had called him "several times" between the day of the shooting
and December 23rd. (Id. at pgs. 13-14).
Trial Court Opinion, filed 12/13/16, at 1-5 (emphasis in original).
In his brief, Appellant presents the following Statement of the
Questions Involved:
A. Did the lower court abuse its discretion when it denied
Appellant’s motion to suppress, where Appellant was forced to
abandon the contraband based on an illegal seizure?
B. Did the Commonwealth fail to prove that the crack cocaine
was possessed with the intent to distribute, as the
Commonwealth relied on a single conclusory sentence from an
expert?
Brief for Appellant at 4.
We begin our consideration of Appellant’s first issue with our well-
settled standard of review:
-5-
J-S40003-17
Our standard of review in addressing a challenge to a trial
court's denial of a suppression motion is limited to determining
whether the factual findings are supported by the record and
whether the legal conclusions drawn from those facts are
correct.
[W]e may consider only the evidence of the prosecution
and so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
whole. Where the record supports the findings of the suppression
court, we are bound by those facts and may reverse only if the
court erred in reaching its legal conclusions based upon the
facts. Commonwealth v. Williams, 2008 Pa. Super. 6, 941 A.2d
14, 26–27 (Pa. Super. 2008) (en banc ) (citations, quotations,
and quotation marks omitted). Moreover, it is within the lower
court's province to pass on the credibility of witnesses and
determine the weight to be given to their testimony. See
Commonwealth v. Clemens, 2013 Pa. Super. 85, 66 A.3d 373,
378 (Pa. Super. 2013). Commonwealth v. Roberts, 133 A.3d
759, 771 (Pa. Super. 2016), appeal denied, 145 A.3d 725 (Pa.
2016). Furthermore, our Supreme Court in In the Interest of
L.J., 622 Pa. 126, 79 A.3d 1073, 1085 (2013), clarified that the
scope of review of orders granting or denying motions to
suppress is limited to the evidence presented at the suppression
hearing.
Commonwealth v. McCoy, 154 A.3d 813, 815–16 (Pa.Super. 2017).
Appellant initially contends the suppression court erred in denying his
motion to suppress the firearm and crack cocaine secreted under the black
SUV because officers had neither reasonable suspicion nor probable cause to
stop him and he was forced to abandon the contraband as a result of the
illegal stop. Specifically, Appellant maintains:
Officer McChord commanded Appellant to stop and submit
to an investigative detention. But he did so based on an
anonymous and uncorroborated tip. The claimed girlfriend of the
victim told Detective Rocks that the shooter was at a particular
location and was wearing particular clothes. But Appellant was
stopped at another location and there is no proof offered that he
was wearing the same-or even similar-clothing. Indeed, the
-6-
J-S40003-17
record does not indicate whether Appellant matched the initial
description offered of a short, black male. Perhaps the only
certainty is that Appellant does not have a “Ju Ju” tattoo, as
Detective Rocks claimed. (N.T. 4/11/16, pp. 30-31). Given the
fact that the caller was never conclusively identified and that the
Commonwealth failed to prove that Appellant matched the
descriptive information given, Officer McCord did not have
authority to stop Appellant.
“A criminal defendant has no standing to contest the
search and seizure of items he has voluntarily abandoned.”
Commonwealth v. Welch, 120 A.3d 1047 (Pa.Super. 2015). But
Pennsylvania law recognizes the concept of “forced
abandonment” [] which holds that “when contraband is
discarded by a person fleeing from a police officer who possesses
neither probable cause to arrest nor reasonable suspicion to
conduct a Terry [1] stop, the contraband is the fruit of an illegal
seizure.” Id.
Though Appellant discarded the contraband as he fled, he
was forced to do so by Officer McChord’s illegal seizure. Thus,
the evidence should have been suppressed and the lower court’s
failure to do so was an abuse of discretion. As such, Appellant
respectfully requests this Court to vacate his judgments of
sentence and remand to the lower court with instruction to
prohibit the Commonwealth from presenting the contraband in
its case against Appellant.
___
Terry v. Ohio, 392 U.S. 1 (1968).
Brief for Appellant at 12-13.
Our disposition of this claim depends upon the nature of Appellant’s
encounter with police. In McCoy, this Court recently reiterated the three
types of encounters between law enforcement officials and private citizens:
A “mere encounter” need not be supported by any level of
suspicion but carries no official compulsion to stop or respond.
An “investigative detention” must be supported by reasonable
suspicion and subjects the suspect to a stop and a period of
detention, but it does not have the coercive conditions that
would constitute an arrest. The courts determine whether
reasonable suspicion exists by examining the totality of the
-7-
J-S40003-17
circumstances. An arrest, or “custodial detention,” must be
supported by probable cause.
McCoy, 154 A.3d at 816 (citing In re J.G., 145 A.3d 1179, 1185 (Pa.Super.
2016)).
“To have reasonable suspicion, police officers need not
personally observe the illegal or suspicious conduct, but may rely
upon the information of third parties, including tips from
citizens.” Commonwealth v. Swartz, 787 A.2d 1021, 1024
(Pa.Super. 2001) (en banc) (citation omitted). “Indeed,
identified citizens who report their observations of criminal
activity to police are assumed to be trustworthy, in the absence
of special circumstances, since a known informant places himself
at risk of prosecution for filing a false claim if the tip is untrue,
whereas an unknown informant faces no such risk.”
Commonwealth v. Barber, 889 A.2d 587, 593 (Pa.Super.
2005). Similarly, “Pennsylvania law ... permits a vehicle stop
based upon a radio bulletin if evidence is offered at the
suppression hearing to establish reasonable suspicion.” Id. at
594.
[F]or a stop to be valid, someone in the police
department must possess sufficient information to give
rise to reasonable suspicion. The officer with the
reasonable suspicion, usually the dispatcher, need not
convey all of this background information to the officer
who actually effectuates the stop. Thus, the police may
justify the search by presenting sufficient evidence at
the suppression hearing that someone in the chain of
command had reasonable suspicion before the stop,
even if the arresting officer did not.
Id. (citation omitted).
Commonwealth v. Anthony, 977 A.2d 1182, 1187 (Pa.Super. 2009).
In light of the foregoing and following our review, we find the record
belies the facts as set forth by Appellant and disagree with his claim that
officers lacked reasonable suspicion to detain him initially. Accordingly, we
-8-
J-S40003-17
reject Appellant’s argument that he abandoned the contraband only after he
had been seized absent reasonable suspicion or probable cause.
At the suppression hearing, Detective Michael Rocks testified that
during the course of his investigation of a shooting which had taken place on
December 12, 2014, in the 2500 block of North 30 th Street, he developed
Appellant as a suspect after receiving information from Officer Calabrese
obtained from the victim concerning the nickname of the alleged shooter.1
N.T., 4/11/16, at 6-8. The victim had indicated to Officer Calabrese that he
could not believe “Ju Ju” had shot him and that the shooter was a short,
black male. Id. at 8-9. Based upon the nickname and description the victim
provided along with information regarding the area in which the shooting
had occurred, Detective Rocks suspected Appellant was the perpetrator,
although no arrest warrant was issued. Id. at 9, 17-18. Appellant’s claims
to the contrary, Detective Rocks did not unequivocally state that Appellant
had a tattoo of “Ju Ju” but rather said that “if his memory serv[ed] him
correctly, [he] believe[d] [Appellant] has that tattooed on him somewhere
also, Ju Ju.” Id. at 18.
The record also belies Appellant’s assertion that officers relied on an
uncorroborated, anonymous tip in effecting the stop. On December 23,
2014, a female who identified herself by name and as the victim’s girlfriend
____________________________________________
1
Officer Calabrese’s first name does not appear in the record.
-9-
J-S40003-17
informed Detective Rocks the man who had shot her boyfriend was standing
in the 2600 block of North 30th Street and was wearing a gray jacket and
jeans. Detective Rocks then supplied that information to Officer McChord
and informed him the suspected shooter’s name was Julius Brockman. Id.
at 10-11, 13. Detective Rocks directed Officers McChord and D’Amico “to
stop [Appellant] and bring him to Central Detectives for investigation” were
they to see him. Id. at 10, 12.2 Although he never had interviewed the
victim’s girlfriend in person, Detective Rocks had had contact with her
“several times” between December 12th, the day of the shooting, and
December 23, when she provided the aforementioned information to him.
Id. at 13-14. In fact, she obtained the Detective’s contact information from
the professional card which he had left at the hospital with the victim. Id. at
14.
Officer McChord stated he knew Appellant from previously “seeing him
in the neighborhood” and was aware Officer D’Amico, his partner, had
arrested Appellant earlier that year. Id. at 22. When Officer McChord saw
Appellant on December 23, 2014, and told him to stop, he did not intend to
arrest him. Officer McChord did not draw his weapon or activate the lights
and sirens of the patrol vehicle. Id. at 23-24. In response to Officer
McChord’s words, Appellant immediately placed his right hand into the front
____________________________________________
2
Officer D’Amico’s first name does not appear in the record.
- 10 -
J-S40003-17
side of his waistband and fled on foot. At that point, Officer McChord saw
him pull out a black handgun and a clear bag and drop the items underneath
“the front part” of a parked, black SUV. Id. at 24.
After articulating its factual findings, the suppression court denied
Appellant’s suppression motion and stated its reasons for doing so as
follows:
My conclusions of law are that in order for there to be
reasonable suspicion to stop [Appellant], the Commonwealth
needs to establish that there was some basis for a belief that
[Appellant] did, in fact, match a description for the suspect in
that shooting.
The basis for that belief was the information, verbal
information, that was relayed from the shooting victim to Officer
Calabrese and Officer Calabrese then relating the nickname Ju Ju
and the sketch, the very brief description of the height and racial
color, as well as location.
Detective Rocks established, through whatever means he
established, that he believed that [Appellant] did fit this
description. However, there was no arrest warrant issued.
Detective Rocks did not do anything with that information it
seems until he then gets the call from the woman who identifies
herself as [Appellant’s], rather as the victim’s girlfriend. And
Detective Rocks was familiar with this woman having already
spoken to her. So she is not merely an anonymous tip at this
point, and she gives him information that the person who he’s
developed as a suspect is, indeed, at a specific location.
For Detective Rocks to have simply ignored that
information and not acted on it would have been a dereliction of
his duty to investigate his suspect. I don’t think that the police
are required under Taggart[3] or under any other case law to turn
a blind eye toward good information that they receive, and this
was good information. It was not a flash anonymous tip
situation, as it is in Taggart. This is called police investigation,
and good police investigation. So, certainly, Detective Rocks
____________________________________________
3
The suppression court did not supply a full citation for Taggart.
- 11 -
J-S40003-17
acted appropriately by having the officers in the 22nd see if they
could locate the fellow that was described as [Appellant].
And Officer McChord, therefore, is doing just that. Had he
had five police cars drive up on [Appellant], block [Appellant]
and at point of gun, you know, that would have been a different
situation. That is not the situation here. He told [Appellant] to
stop. [Appellant] made the choice then to flee, clutching his
waistband.
And, certainly, Officer McChord, at that point, had good
reason to chase [Appellant] at the point where [Appellant]
discarded his gun and baggie. He did so based upon flight from
the police. Certainly, at that point, they had reasonable
suspicion that a crime was being committed, quite frankly, in
their presence. So for all of those reasons, the motion is denied.
N.T., 4/11/16, at 40-43.
The facts of record support the suppression court’s determination that
officers initially had reasonable suspicion to stop Appellant. Accordingly,
Appellant is not entitled to suppression of the contraband he discarded
during his flight. See Mccoy, supra, at 819 (citing Commonwealth v.
Cook, 558 Pa. 50, 735 A.2d 673, 675 (1999) (finding where police officers
demonstrate reasonable suspicion to stop suspect, officers may lawfully
recover contraband suspect abandoned during flight)).
Appellant next maintains the Commonwealth failed to present
sufficient evidence for the trial court to conclude that he possessed crack
cocaine with the intent to deliver because “[t]he Commonwealth’s sole
evidence at trial was that Appellant possessed 35 packets of crack cocaine
and that an ‘expert’ concluded that, ‘in his expert opinion, the [crack
cocaine] was possessed with the intent to deliver’” Brief for Appellant at 15
(citing N.T., 4/11/16, at 51). Appellant opines that a “single conclusion
- 12 -
J-S40003-17
cannot substitute for the surrounding circumstances and how those
circumstances would lead a proper expert could [sic] use those
circumstances to reach a conclusion that the drugs were possessed with an
intent to deliver.” Id.
When considering this claim which presents us with a question of law,
we are guided by a well-established standard of review:
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. 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.
This standard is equally applicable to cases where the
evidence is circumstantial rather than direct so long as the
combination of the evidence links the accused to the crime
beyond a reasonable doubt. Although a conviction must be based
on more than mere suspicion or conjecture, the Commonwealth
need not establish guilt to a mathematical certainty.
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.Super. 2014)
(quotations and citations omitted).
- 13 -
J-S40003-17
To sustain a conviction for Possession with Intent to Deliver, “the
Commonwealth must prove both the possession of the controlled substance
and the intent to deliver the controlled substance.” Commonwealth v. Lee,
956 A.2d 1024, 1028 (Pa.Super. 2008) (citations omitted). “In narcotics
possession cases, the Commonwealth may meet its burden by showing
actual, constructive, or joint constructive possession of the contraband.”
Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa.Super. 2014) (en banc)
(citation and quotation marks omitted).
In the matter sub judice, police did not discover the crack cocaine on
Appellant's person; however, Appellant does not challenge the element of
possession. Rather, he maintains the Commonwealth failed to prove he
intended to deliver the crack cocaine. When determining whether an
individual in possession of drugs intended to deliver them, the starting point
is the quantity possessed.
In Pennsylvania, the intent to deliver may be inferred
from possession of a large quantity of controlled
substance. It follows that possession of a small amount
of a controlled substance supports the conclusion that
there is an absence of intent to deliver. Notably, if,
when considering only the quantity of a controlled
substance, it is not clear whether the substance is
being used for personal consumption or distribution, it
then becomes necessary to analyze other factors.
Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa.Super. 2008) (citation
and quotation marks omitted). See also Commonwealth v. Ratsamy, 594
Pa. 176, 182, 934 A.2d 1233, 1237 (2007) (stating “if the quantity of the
- 14 -
J-S40003-17
controlled substance is not dispositive as to the intent, the court may look to
other factors.”). The list of additional factors includes:
the manner in which the controlled substance was packaged, the
behavior of the defendant, the presence of drug paraphernalia,
and [the] sums of cash found in possession of the defendant.
The final factor to be considered is expert testimony. Expert
opinion testimony is 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.
Id. at 183, 934 A.2d at 1237–38 (quotation and internal quotation marks
omitted).
Contrary to Appellant’s assertions, the evidence presented herein was
not limited to a “single conclusion” of an expert that Appellant possessed the
crack cocaine with the intent to deliver. Rather, the evidence also showed
that Appellant possessed the drugs, as officers observed him discard the
same under the SUV, that Appellant abandoned the contraband while fleeing
police, and that the crack cocaine was packaged in separate quantities
comprised of almost three dozen packets. Specifically, Appellant stipulated
that Officer McChord would testify at trial that when he recovered the clear
bag Appellant discarded, he discovered it contained thirty-five “clear plastic
Ziploc packets” of crack cocaine each of which was marked with a black and
yellow “Batman symbol.” N.T., 4/11/16, at 50. Appellant also stipulated
- 15 -
J-S40003-17
that Officer Keys,4 the Commonwealth’s expert, would testify the total
weight of the contraband was 3.943 grams and opine beyond a reasonable
doubt that following his review of the file and his listening to the testimony,
Appellant possessed the crack cocaine with the intent to deliver. Id. at 51-
52.
Furthermore, we note the record does not reveal that Appellant
possessed any personal-use paraphernalia, a circumstance this Court has
deemed relevant. See Commonwealth v. Bess, 789 A.2d 757, 762
(Pa.Super. 2002) (finding that in addition to other factors, the fact
defendant did not have any drug paraphernalia associated with the personal
use of cocaine was relevant to establish he possessed drugs with the intent
to deliver). As such, we find the presence of the aforementioned factors
along with Officer Keys’ expert opinion provided a sufficient basis for the
verdict of the trial court, sitting as the finder of fact. Therefore, taken
together, we do not find that the evidence was “so weak and inconclusive
that as a matter of law no probability of fact may be drawn from the
combined circumstances.” Ratsamy, at 181 n. 2, 934 A.2d at 1236 n. 2.
Therefore, no relief is due.
Judgment of Sentence Affirmed.
Judge Dubow joins the Opinion.
____________________________________________
4
Officer Keys’ first name does not appear in the record.
- 16 -
J-S40003-17
Judge Ott concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/5/2017
- 17 -