Com. v. George, S. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
STEPHEN GEORGE
Appellant No. 198 WDA 2016
Appeal from the Judgment of Sentence May 26, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003167-2014
BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY MOULTON, J.: FILED SEPTEMBER 05, 2017
Stephen George appeals from the May 26, 2015 judgment of sentence
entered in the Allegheny County Court of Common Pleas following his
convictions for possession with intent to deliver (“PWID”), possession of a
controlled substance, and simple assault by physical menace.1 We vacate
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. §§ 780-113(a)(30), (a)(16), and 18 Pa.C.S. § 2701(a)(3),
respectively.
While the sentencing order states George was convicted of simple
assault – bodily injury under 18 Pa.C.S. § 2701(a)(1), this appears to have
been a clerical error. The trial transcript establishes that the trial court
convicted George of simple assault by physical menace under 18 Pa.C.S. §
2701(a)(3). At the non-jury trial, when declaring the verdict, the trial court
stated:
(Footnote Continued Next Page)
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the judgment of sentence and remand with instructions to correct a clerical
error in the sentencing order.
The trial court described the facts as follows:
This matter arises . . . out of [George]’s arrest on
January 7, 2014 following a domestic dispute. At the time
of the arrest he was found to be in possession of 55 stamp
bags of heroin and additional heroin was found in the
residence where he was residing. An Affidavit of Probable
Cause dated January 7, 2014 was sworn to by one of the
arresting officers from the City of Pittsburgh police, Sean
Jozwiak, detailing the facts and circumstances related to
the investigation of the domestic dispute, including his
contact with the victim, Lacy Hass [(“Victim”)]. The
affidavit also described [George]’s arrest outside their
residence at 4805 Dearborn Street where he fled after . . .
attacking [Victim]. The affidavit also detailed [George]’s
arrest and the search incident to the arrest that found
[George] in possession of 55 stamp bags of heroin and two
cell phones. [Victim] then consented to a search of the
residence and an additional 18 stamp bags of heroin
similar to those found on [George] were found in a coin
purse on a mantel in the residence. A handgun was also
found in an armoire in the residence.
A preliminary hearing was held on February 27, 2014 at
which Officer Jozwiak testified that he and other officers
_______________________
(Footnote Continued)
Now on simple assaults, there’s one causing bodily
injury, Count 5. The other one is simple assault by
physical menace.
I don’t think 5 applies, so I find you not guilty on that.
But on Count 6, simple assault by physical menace, I do
think that applies given the fact that there was evidence
that the victim was so shaken up and a little roughed up at
the time. So on Count 6 I find you guilty.
N.T., 3/23/15, at 3.
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were dispatched to a domestic dispute at the K2
convenience store located at the 900 block of Penn Avenue
in Pittsburgh, Pennsylvania. Upon arriving they met
[Victim] at the convenience store and noted that she had
scratches and red marks around her neck and behind her
ear. In addition, Officer Jozwiak testified that he had an
opportunity to observe a videotape of the incident in which
he observed [George] grabbing [Victim] around the neck
by the shirt and trying to force her out of the store. The
officers were informed that [George] left the scene and
was at his residence located at 4805 Dearborn Street and
that a child was there. Several officers responded to that
scene and located [George] outside the residence where
he was taken into custody. Officer Jozwiak also testified
that they transported the victim to her home and after
[George] was taken into custody, the child was located in
the residence and they obtained consent from [Victim] to
search the home. The Commonwealth also presented the
testimony of Officer Steven Schueler at the preliminary
hearing who testified that he arrived at the address of
4805 Dearborn Street and encountered [George] outside
the residence. [George] was placed under arrest and as a
result of a search incident to the arrest was found to have
55 stamp bags of heroin in his left front jacket pocket.
A hearing was held on [George]’s Habeas Corpus Motion
on January 15, 2015 at which time Officer Jozwiak again
testified, however, his testimony was limited to describing
the recovery of a handgun, men’s clothing and some
indicia related to [George] from an armoire in the
Dearborn Street residence during the search after
[George]’s arrest. On January 22, 2015[,] an order was
entered denying the Writ of Habeas Corpus and the case
proceeded to a stipulated non-jury trial on March 10, 2015
at which it was agreed that the Affidavit of Probable Cause,
as well as the testimony from the preliminary hearing,
would be incorporated into the record. After an
appropriate colloquy in which [George] acknowledged that
he understood and agreed to the proceedings, the
Commonwealth introduced the lab report analyzing the
drugs in question, as well as [George]’s certified record
which establish him as a person not to possess.
The Commonwealth also presented the stipulated
expert testimony of Detective Edward Fallert as follows:
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[COMMONWEALTH]: The only other stipulation
would be had we proceeded to trial in this case, we
would have called an expert: namely, Detective
Edward Fallert from the City of Pittsburgh Police who
would have testified that based on the facts in this
case, along with his training and experience, he
believed that [George] possessed the heroin on his
person with the intent to deliver said heroin.
[COURT]: Anything you want to add?
[GEORGE’S COUNSEL]: Your Honor, just a few
things. . . . With respect to the heroin that Detective
Fallert would have testified to that was actually
found in the home on a mantel in a coin purse. With
respect to the controlled substance that was found
on . . . George, I believe that was a de minimis
amount.
[COURT]: How much?
[COMMONWEALTH]: There were 55 stamp bags
found on his person.
Based on the above evidence, [George] was found
guilty of possession and [PWID] and simple assault by
physical menace. [George] was found not guilty of
possession of firearm prohibited, endangering the welfare
of a child and simple assault.
Opinion, 8/2/16, at 2-5 (“1925(a) Op.”) (internal citations and quotation
marks omitted).
On May 26, 2015, the trial court sentenced George to 2 to 4 years’
incarceration and a consecutive 5 years’ probation on the PWID conviction,
and a concurrent 2 years’ probation on the simple assault conviction. The
trial court imposed no further penalty on the conviction for possession of a
controlled substance by a person not to possess.
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On July 9, 2015, George filed a pro se motion requesting appointment
of counsel and, on July 10, 2015, he filed a pro se notice of appeal.
Following appointment of counsel, George filed a petition pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46, seeking
reinstatement of his direct appeal rights and rights to pursue post-sentence
motions nunc pro tunc. On September 10, 2015, the trial court granted
George’s PCRA petition. George timely filed his post-sentence motion, which
the trial court denied on September 28, 2015. On January 19, 2016, George
again filed a petition for PCRA relief seeking reinstatement of his direct
appeal rights due to a mistake by his counsel’s office, which the trial court
granted. On February 8, 2016, George timely filed his notice of appeal.
George raises the following issues on appeal:
I. Was the evidence presented insufficient as a matter of
law to support the guilty verdict for [PWID] in that the
Commonwealth failed to prove that [George], a known
and admitted heroin addict, possessed the 55 stamp
bags found on his person with an intent to deliver?
II. Was the evidence presented insufficient as a matter of
law to support the conviction for Simple Assault insofar
as the only evidence presented to prove that an assault
occurred was the testimony at the preliminary hearing
that a police officer, who did not testify at trial,
observed a surveillance video and scratches on the
victim?
George’s Br. at 5.
We apply the following standard when reviewing a sufficiency of the
evidence claim:
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[W]hether 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.
Commonwealth v. Best, 120 A.3d 329, 341 (Pa.Super. 2015) (quoting
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014)).
George first claims there was insufficient evidence to convict him of
PWID. He claims that the 55 stamp bags found on his person were for
personal use and there was no proof of intent to deliver.
To establish that a defendant is guilty of PWID:
[t]he Commonwealth must prove both the possession of
the controlled substance and the intent to deliver the
controlled substance. It is well settled that all the facts
and circumstances surrounding possession are relevant in
making a determination of whether contraband was
possessed with intent to deliver.
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
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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) (quoting
Commonwealth v. Brown, 904 A.2d 925, 931-32 (Pa.Super. 2006)).
Further, “[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.’” Commonwealth
v. Carpenter, 955 A.2d 411, 414 (Pa.Super. 2008) (quoting
Commonwealth v. Ratsamy, 934 A.2d 1233, 1237-38 (Pa. 2007)).
“Expert opinion testimony is also 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. (quoting Ratsamy, 934 A.2d at 1237-38).
During a search incident to his arrest, George was found with 55
stamp bags of heroin. N.T., 3/10/15, at 19-20. 30 stamp bags were
marked “madmen” and the other 25 were marked “black list?” Aff. Probable
Cause, 1/7/14, at 2. The search of George’s person also revealed two cell
phones. N.T., 3/10/15, at 20. Moreover, the parties stipulated that
Detective Fallert would have testified “that based on the facts in this case,
along with his training and experience, he believed that [George] possessed
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the heroin on his person with the intent to deliver.” Id. at 9. Finally, the
trial court found that “the expert testimony of Detective Fallert, combined
with the quantity of the stamp bags of heroin found [in George]’s possession
and the lack of any use paraphernalia found on [George] or in the residence,
establishes sufficient evidence that [George] possessed the heroin with the
intent to deliver.” 1925(a) Op. at 6. We agree.
Therefore, viewing the evidence in the light most favorable to the
Commonwealth, we conclude there was sufficient evidence to convict George
of PWID. See Commonwealth v. Johnson, 782 A.2d 1040, 1041
(Pa.Super. 2001) (finding sufficient evidence where appellant was in high
drug area; police seized nine baggies containing 1.8 grams of crack cocaine,
$86 in cash, and a beeper; and an expert testified as to appellant’s intent to
distribute).
George next claims there was insufficient evidence to convict him of
simple assault – bodily injury under 18 Pa.C.S. 2701(a)(1). The transcripts,
however, establish the trial court convicted George of simple assault by
physical menace under 18 Pa.C.S. 2701(a)(3), see supra note 1, and not
simple assault – bodily injury. The sentencing order merely reflected a
clerical error. George does not challenge his conviction for simple assault by
physical menace.
Even if George had challenged the simple assault by physical menace
conviction, we would conclude the Commonwealth presented sufficient
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evidence. A person commits simple assault under section 2701(a)(3) when
he “attempts by physical menace to put another in fear of imminent serious
bodily injury.” 18 Pa.C.S. § 2701(a)(3).
We have stated the following regarding the sufficiency of a simple
assault by physical menace conviction:
The elements which must be proven are intentionally
placing another in fear of imminent serious bodily injury
through the use of menacing or frightening activity. Id. at
1151–1155. Intent can be proven by circumstantial
evidence and may be inferred from the defendant’s
conduct under the attendant circumstances. Id. at 1154.
Commonwealth v. Reynolds, 835 A.2d 720, 726 (Pa.Super. 2003)
(quoting Commonwealth v. Repko, 817 A.2d 549, 554 (Pa.Super. 2003)).
The trial court stated:
In this case the victim was observed by police officers
at the scene and found to have scratches and red marks
[a]round her neck and behind her ear. They also observed
a videotape of the incident which showed [George]
grabbing the victim around the neck by the shirt and trying
to force her out the store. [George] was attacking the
victim to the extent that an employee of the store left the
store to stop [George] from attacking the victim at which
time he fled. The victim indicated that she stayed at the
store for a brief time and then fled in fear of [George]
coming back to continue to beat or kill her. Even while
standing with the officers, victim refused to stand near the
convenience store, expressing her fear to the officers that
[George] may return and attempt to beat her. The fact
that the victim did not testify or that the video was not
exhibited at trial does not negate the evidence of the
assault that was admitted. Based on all of the evidence in
this case it is clear that the Commonwealth met its burden
of proving simpl[e] assault by physical menace beyond a
reasonable doubt.
1925(a) Op. at 7-8 (internal citations omitted). We agree.
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Judgment of sentence vacated. Case remanded for the trial court to
correct the sentencing order to reflect Count Six being simple assault by
physical menace under 18 Pa.C.S. § 2701(a)(3). Judgment of sentence is
affirmed in all other respects. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/5/2017
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