Com. v. Rollie, O. ( 2015 )

J-S51019-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
OMAR ALI ROLLIE
Appellant No. 2837 EDA 2014
Appeal from the Judgment of Sentence September 5, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004832-2013
*****
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
OMAR ALI ROLLIE
Appellant No. 2885 EDA 2014
Appeal from the Judgment of Sentence September 5, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0005439-2013
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 24, 2015
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S51019-15
Omar Ali Rollie appeals from the judgment of sentence imposed in the
Court of Common Pleas of Delaware County after a jury found him guilty of
three counts of attempted murder,1 three counts of aggravated assault,2
three counts of terroristic threats,3 three counts of recklessly endangering
another person,4 one count of possession of a controlled substance with the
intent to deliver (“PWID”),5 and one count of possession of drug
paraphernalia.6 Upon careful review, we affirm.
On July 23, 2013, Abdul Nix, Nasire Muhammad, and Ismaile Tasiu
were standing in a parking lot after leaving a store. Tasiu was talking to the
owner of the store, and Nix and Muhammad were about to get into their
rental car when another car drove up next to theirs. As summarized by the
trial court:
After five or ten minutes of Nix waiting for Tasiu, the car
approached the rental car and made suspicious moves, including
speeding up and positioning so the front of the car was facing
toward the rental car. Mr. Omar Rollie then exited this second
car, walked toward Nix, and asked why they were looking at
him. Nix responded that they were not looking at him and were
____________________________________________
1
18 Pa.C.S. §§ 901(a), 2502(a).
2
18 Pa.C.S. § 2702(a)(3).
3
18 Pa.C.S. § 2706(a)(1).
4
18 Pa.C.S. § 2705.
5
35 P.S. § 780-113(a)(30).
6
35 P.S. § 780-113(a)(32).
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just standing; however, Rollie continued to walk toward them
and asked the question again. Nix then responded a second
time and started explaining to Rollie that they were just picking
up a part. Rollie then said that “I got something for you,” turned
around, went to the back of his car, opened the trunk, took out
an object covered in a sheet, laid aside an umbrella, and
unwrapped the sheet to reveal a “long rifle.” At this point, Nix
and [Muhammad] were in the car while Tasiu was running
toward the car and got in as Nix was backing up.
Rollie was pointing the rifle “directly at [the rental] car.” Rollie
was in front of his own car and between 15 and 20 feet away
from the back of Nix’s car. Nix observed Rollie aiming at him
and pulling the trigger twice as Nix was backing up. Nix did not
see either bullet hit the car. In court, Nix identified Omar Rollie
as the man with an AK47 who pointed it at the rental car and
shot twice. Tasiu, owner of the construction company, affirmed
that Rollie had aimed at the rental car and shot twice. Once
away from the scene, Nix dialed 911.
Officer Anthony Peticci, one of the officers who responded to the
911 call, found “31 baggies of yellow tinted small zip-lock
baggies” in Rollie’s left back pocket after he ordered Rollie down
on the ground and handcuffed him. Officer Peticci believed these
zip-lock baggies to contain marijuana and marijuana was
confirmed after field testing.
Officer James Fiore was also a responding officer with Officer
Peticci. Officer Fiore observed a “camera bag” inside the open
door of Rollie’s running car. Officer Fiore found marijuana in a
freezer bag and in a sandwich bag; empty, yellow, tinted zip-
lock containers; a digital scale; and cocaine in sandwich bags.
Officer Fiore noted that the digital scale was “commonly used” to
weigh various narcotics and the “one-by-one inch [yellow] zip-
lock containers” that were found were “commonly used to
package marijuana for sale.”
Detective Christopher Sponaugle also testified at trial as a
qualified expert. Detective Sponaugle was assigned to the
Narcotics Unit with the Delaware County Criminal Investigation
Division. His expert opinion was that the drugs were possessed
with the intent to deliver. He based this opinion on the
packaging and quantity of the bags. The detective noted that
the 31 marijuana bags are considered “nicks on the street,”
which sell for $5.00 each. This shows that Rollie would have to
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buy each individual pack for a total of $155. This means Rollie
would have paid $155 for about an ounce of marijuana, which
was divided among 31 “nick” bags, instead of paying the usual
$80 rate for an ounce not individually packaged. The detective
noted that it would make no sense for a user to buy 31
individual bags for simple consumption. The same thought
process was applied to the seven grams of marijuana “quarters”
that would cost more to buy individually than in bulk. Detective
Sponaugle also stated that the unused small zip-lock bags and
the scale were for a seller, as a buyer would never carry those
around.
Trial Court Opinion, 3/25/15, at 2-4 (internal citations omitted).
On June 26, 2014, after a three-day jury trial, Rollie was convicted of
attempted murder, PWID, possession of drug paraphernalia, and other
related offenses. On September 5, 2014, the court sentenced him to an
aggregate term of 25 to 52 years’ incarceration and 9 years’ probation. On
October 3, 2014, Rollie filed a timely notice of appeal challenging the
sufficiency of the evidence with regard to his attempted murder, PWID, and
possession of drug paraphernalia convictions.
With respect to Rollie’s challenges to the sufficiency of the evidence:
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable
to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant’s guilt is
to be resolved by 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. Lynch, 72 A.3d 706, 707-08 (Pa. Super. 2013)
(internal citations and quotation marks omitted).
Section 2502 of the Crimes Code defines murder as follows:
§ 2502. Murder.
(a) Murder of the first degree.—A criminal homicide
constitutes murder of the first degree when it is committed by an
intentional killing.
18 Pa.C.S. §2502(a).
Section 901 of the Crimes Code defines criminal attempt as follows:
§ 901. Criminal Attempt.
(a) Definition of attempt.—A person commits an attempt
when, with intent to commit a specific crime, he does any act
which constitutes a substantial step toward the commission of
that crime.
18 Pa.C.S. § 901(a).
First, Rollie claims the evidence was insufficient to prove beyond a
reasonable doubt that he possessed the specific intent to kill because he
failed to strike any of the victims or their car when he opened fire in the
direction of the victims’ car. However, the trial court concluded that the
Commonwealth presented sufficient evidence to prove beyond a reasonable
doubt that Rollie acted with malice and possessed the specific intent that
supports his conviction for attempted murder. “Specific intent and malice
may be established through circumstantial evidence, such as the use of a
deadly weapon on a vital part of the victim’s body.” Commonwealth v.
Arrington, 86 A.3d 831, 840 (Pa. 2014); see also Commonwealth v.
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Rogers, 615 A.2d 55 (Pa. Super. 1992) (malice established where
defendant fired weapon into occupied vehicle).
The trial court summarized the evidence presented by the
Commonwealth at trial as follows:
Testimony supported that Rollie had suspiciously parked his car
facing the group. He asked intimidating questions of why they
were looking at him and threatened that he had something for
them. He then took the time to go to the back of his car, open
the trunk, unwrap the AK47, put aside the wrap and an
umbrella, walk to the front of his car, aim at the vehicle with
three people inside, and fire his weapon twice at the vehicle.
Thus, the fact-finder had sufficient direct evidence to satisfy the
sufficient evidence standard. Alternatively, the totality of the
circumstances supports an inference from the fact-finder that
Rollie had the necessary intent for attempted murder.
Trial Court Opinion, 3/25/15, at 8-9.
We agree with the trial court that the evidence, viewed in the light
most favorable to the Commonwealth, was sufficient to sustain the verdict.
Lynch, supra.
Rollie also claims the evidence was insufficient to sustain his conviction
for PWID and possession of drug paraphernalia because the car Rollie was
driving belonged to another individual not involved in this matter, and
therefore, the drugs might not have belonged to Rollie.
The Controlled Substance, Drug, Device and Cosmetic Act prohibits
PWID and possession of drug paraphernalia as follows:
§ 780-113. Prohibited acts; penalties
(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:
...
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(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.
...
(32) The use of, or possession with intent to use, drug
paraphernalia for the purpose of planting, propagating,
cultivating, growing, harvesting, manufacturing,
compounding, converting, producing, processing,
preparing, testing, analyzing, packing, repacking, storing,
containing, concealing, injecting, ingesting, inhaling, or
otherwise introducing into the human body a controlled
substance in violation of this act.
35 P.S. § 780-113(a)(30), (32).
In order to sustain Rollie’s convictions for PWID, the Commonwealth
must establish that he possessed a controlled substance with the intent to
deliver it. Commonwealth v. Kirkland, 831 A.2d 607, 609 (Pa. Super.
2003). “The trier of fact may infer that the defendant intended to deliver a
controlled substance from an examination of the facts and circumstances
surrounding the case.” Id. When the substance is not found on the
defendant’s person, the Commonwealth must prove that the defendant had
constructive possession of the substance, or “exercise[d] a conscious
dominion over the illegal substance[.]” Commonwealth v. Valette, 613
A.2d 548, 550 (Pa. 1992). “An intent to maintain a conscious dominion may
be inferred from the totality of the circumstances.” Id., citing
Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa. 1983).
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“[C]ircumstantial evidence may be used to establish a defendant’s
possession of drugs or contraband.” Valette, 613 A.2d at 550.
In this case, the drugs in question were found in the vehicle Rollie was
driving. Although the vehicle was not registered to Rollie, he was its sole
occupant, indicating his control over the vehicle. See Commonwealth v.
Micking, 17 A.3d 924, 926 (Pa. Super. 2011) (finding that because
appellant was sole occupant of car and possessed key to unlock glove
compartment, he had control over contraband in vehicle). The car Rollie
was driving contained marijuana, cocaine, baggies, and a digital scale.
There were 31 yellow tinted baggies of marijuana found on Rollie’s person,
and some of the baggies found in the vehicle were also tinted yellow.
Detective Sponaugle testified to Rollie’s intent to deliver by explaining that
the separation of marijuana into small baggies is consistent with intent to
deliver. The recovery of the digital scale, which is commonly used to weigh
drugs for the purpose of bagging and selling, and the baggies found on
Rollie’s person and car, is sufficient to sustain the verdicts for PWID and
possession of drug paraphernalia.
Accordingly, we agree with the trial court that the evidence was
sufficient to sustain the verdicts for attempted murder, PWID, and
possession of drug paraphernalia.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2015
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