Com. v. Cook, W. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WYOKIN COOK :
:
Appellant : No. 797 EDA 2018
Appeal from the Judgment of Sentence January 23, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0003163-2017
BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 13, 2019
Appellant, Wyokin Cook, appeals from the judgment of sentence entered
on January 23, 2018, following his non-jury trial convictions for possession
with intent to deliver a controlled substance (“PWID”),1 possession of a
controlled substance,2 and use or possession of drug paraphernalia.3 We
affirm.
On March 10, 2017, the Delaware County Narcotics Task Force executed
a search warrant at Appellant’s residence. Police Criminal Complaint, 3/10/17,
at 4. At that time, Appellant was asleep on the couch with a marijuana blunt
on his chest. N.T. Trial, 1/23/18, at 23-24. Subsequently, the police
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1 35 P.S. §780-113(a)(30).
2 35 P.S. §780-113(a)(16).
3 35 P.S. §780-113(a)(32).
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conducted a “cursory search of the entire interior of [the] property,” and
discovered the following: 15 individual sandwich bags containing a total of
51.13 grams of marijuana, additional sandwich bags, two digital scales, and
approximately $140.00 in cash. Police Criminal Complaint, 3/10/17, at 4; N.T.
Trial, 1/23/18, at 9-24.
A non-jury trial was conducted on January 23, 2018. Trial Court
Opinion, 6/20/19, at 1. At trial, Detective Steven Banner testified as the
Commonwealth’s expert witness. N.T. Trial, 1/23/18, at 9-24. During his
testimony, Detective Banner opined that Appellant possessed the 51.13 grams
of marijuana with the intent to deliver. Id. at 23-24. In contrast, Appellant
testified that he merely possessed the marijuana for personal use. Id. at 41.
Upon hearing the evidence presented at trial, the court found Appellant guilty
of the above-mentioned charges and sentenced him to “time served to 23
months” for PWID and “one[-]year probation concurrent” for use or possession
of drug paraphernalia. Trial Court Opinion, 6/20/19, at 1. This timely appeal
followed.4
Appellant raises the following issue on appeal:
Whether the evidence is insufficient to sustain [Appellant’s]
conviction for [PWID] since the Commonwealth failed to prove,
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4 Appellant filed a notice of appeal on February 21, 2018. On March 14, 2018,
the trial court entered an order directing Appellant to file a concise statement
of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)(1).
Appellant timely complied. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on June 20, 2019.
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beyond a reasonable doubt, that Appellant possessed the
marijuana at issue with the intent to distribute it?
Appellant’s Brief at 5.
Our standard of review regarding the sufficiency of the evidence is as
follows:
The standard we apply in reviewing the sufficiency of 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 that of
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth may 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 trier
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. Lambert, 795 A.2d 1010, 1014–1015 (Pa. Super. 2002)
(citations omitted).
In this case, Appellant does not dispute that he possessed the marijuana
in question. N.T. Trial, 1/23/18, at 41. Instead, Appellant argues that the
Commonwealth failed to prove that he intended to distribute the marijuana.
Id. at 11. Specifically, Appellant asserts that the Commonwealth’s failure to
show that he “was in an area known for drug-related activity, or that he
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actually possessed materials or exhibited behavior indicative [of] drug
dealing” renders the evidence presented at trial insufficient to support his
conviction. Id., citing Commonwealth v. Kirkland, 831 A.2d 607 (Pa.
Super. 2003). We disagree.
The offense of PWID under 35 P.S. §780-113(a)(30) provides, in
relevant 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.
35 P.S. §780-113(a)(30). Thus, to sustain a conviction for PWID, “the
Commonwealth must prove that [the] appellant ‘both possessed the controlled
substance and had an intent to deliver that substance.’” Commonwealth v.
Torres, 617 A.2d 812, 814 (Pa. Super. 1992), quoting Commonwealth v.
Parsons, 570 A.2d 1328, 1334 (Pa. Super. 1990).
To determine “whether a controlled substance was possessed with intent
to deliver, the court must consider all of the facts and circumstances
surrounding the possession of the substance.” Torres, 617 A.2d at 814. In
cases involving “a large quantity of controlled substances,” the “intent to
deliver may be inferred from [mere] possession.” Commonwealth v.
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Jackson, 645 A.2d 1366, 1368 (Pa. Super. 1994). If, however, there is only
a small amount of a controlled substance, such that “it is not clear whether
the substance is being used for personal consumption or distribution, it then
becomes necessary to analyze other factors.” Id. In such a case, a key factor
is expert testimony. See Commonwealth v. Ratsamy, 934 A.2d 1233, 1236
(Pa. 2007); Kirkland, 831 A.2d at 612 (holding that the evidence was
insufficient to support the appellant’s conviction of PWID because the
Commonwealth failed to present expert testimony to prove that he possessed
the controlled substance with the intent to distribute). Additional factors
include “the manner in which the controlled substance was packaged, the
behavior of the defendant, the presence of drug paraphernalia, and large sums
of cash found in possession of the defendant.” Jackson, 645 A.2d at 1368.
Herein, the evidence, when viewed in the light most favorable to the
Commonwealth, establishes that Appellant intended to distribute the
marijuana. Indeed, unlike in Kirkland, the Commonwealth utilized the expert
testimony of Detective Banner to demonstrate that Appellant intended to
distribute the marijuana in question. N.T. Trial, 1/23/18, at 9-24.
At trial, Detective Banner opined that Appellant did, in fact, possess the
marijuana with the intent to deliver. Id. at 17. He based this opinion on a
variety of factors. First, he explained that, while the quantity of drugs
appeared small, 51.13 grams of marijuana is “above the personal use
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standard.”5 Id. at 17. Thus, in contrast to Appellant’s assertion that he
bought the drugs “in bulk,” Banner opined that Appellant’s possession of a
“month-and-a-half supply of weed” was typical of a drug seller, not a drug
user. Id. at 20 and 43. Secondly, Detective Banner explained that the
marijuana’s packaging proved Appellant’s intent to deliver. Id. at 17. Per
Detective Banner, just like a consumer would not “go to Wa-[W]a and buy a
gallon of milk by eight pints,” an individual drug user would not “buy individual
bags of marijuana.” Id. Lastly, Detective Banner opined that the discovery
of the digital scale supported his conclusion that Appellant possessed the
requisite intent. According to Detective Banner, only an “actual seller” would
“weigh their marijuana.” Id. at 20. Users simply “eyeball [it].” Id.
Therefore, when viewed in the light most favorable to the Commonwealth, the
evidence presented at trial demonstrated that Appellant intended to deliver
the marijuana and, as such, there was sufficient evidence to convict Appellant.
Judgment of sentence affirmed.
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5Per Detective Banner, “the Commonwealth looks at 30 grams [of marijuana]
as personal use.” N.T. Trial, 1/23/18, at 17.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2019
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