Com. v. Wood, T. ( 2015 )

J. S27002/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
THOMAS WOOD, : No. 2108 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, July 18, 2014,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0012382-2012
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 20, 2015
This is an appeal from the judgment of sentence of July 18, 2014,
following appellant’s conviction of possession with intent to distribute a
controlled substance (“PWID”), 35 Pa.C.S.A. § 780-113(A)(30), and
possession of a controlled substance, 35 Pa.C.S.A. § 780-113(A)(16). We
affirm.
The trial court has summarized the underlying facts of this case as
follows:
On August 14, 2012, Sergeant Paul Perez was
on duty as a Narcotics Strike Force surveillance
officer [i]n the 2300 block of North Colorado Street
in Philadelphia. On the day in question Sergeant
Perez was driving around looking for open-air drug
sales. Sergeant Perez was an experienced narcotics
officer who had made in excess of 50 arrests in that
area and who had observed over a thousand []
open-air drug transaction[s].
*Former Justice specially assigned to the Superior Court.
J. S27002/15
Sergeant Perez set up a plain clothes
surveillance, along with Police Officer Floyd. He
immediately observed Defendant on the east side of
the 2300 block of North Colorado. At approximately
12:40 [pm], Sgt. Perez observed a black male
approach Defendant, engage in a brief conversation,
and hand Defendant an undetermined amount of
United States Currency (USC). Defendant removed
a small item from his left top pocket and handed it to
the unknown male, who left the area. Sgt. Perez put
out the unknown black male’s description over the
police surveillance band, but he was not stopped.
Defendant continued to stay in the area of
2300 North Colorado, and at about 12:50 pm he was
approached by another black male who handed
Defendant currency after a very brief conversation.
Defendant again removed a small item from his left
breast pocket and handed it to the unknown male,
who left the area. Sgt. Perez again put out the
unknown black male’s description over the police
surveillance band, but he also was not located.
At approximately 1:00 pm Defendant was
approached by a black female who greeted and
hugged him, then sat down on the steps next to
Defendant. Sgt. Perez then broadcast Defendant’s
location and description to uniformed officers who
converged on the area and Officer Lutz stopped
Defendant. Officer Lutz recovered 10 blue Ziploc
packets which tested positive for cocaine and $58 in
USC.
Trial court opinion, 12/17/14 at 2-3 (citations to the motion to suppress
notes of testimony omitted).
Following the denial of appellant’s motion to suppress, appellant
proceeded to a non-jury trial. At the conclusion of the non-jury trial on
April 9, 2014, appellant was found guilty of the aforementioned crimes. On
-2-
J. S27002/15
July 18, 2014, appellant was sentenced to 30 to 60 months’ imprisonment
on the PWID conviction followed by a consecutive period of three years’
probation. For sentencing purposes, the possession of a controlled
substance merged with PWID.
Appellant filed a timely appeal on July 21, 2014. On July 31, 2014,
the trial court entered an order directing appellant to file a statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days
of the date of the order. On December 15, 2014, appellant filed his untimely
Rule 1925(b) statement raising one issue; namely, the sufficiency of the
evidence. On December 17, 2014, the trial court filed its Rule 1925(a)
opinion.
Preliminarily, we consider appellant’s Rule 1925(b) statement of errors
complained of on appeal. Clearly, the statement was untimely. According to
the certified record, appellant did not seek an extension of time to file his
Rule 1925(b) statement. The trial court proceeded to write its opinion
addressing what it considered were the apparent issues, i.e., the motion to
suppress and the sufficiency of the evidence. In its opinion, the trial court
notes it was aware of appellant’s Rule 1925(b) statement filed on
December 15, 2014.
This court has held that an attorney’s untimely filing of a Rule 1925(b)
statement in a criminal case, which would result in waiver of all of a
defendant’s claims on appeal, is per se ineffectiveness for which the
-3-
J. S27002/15
defendant is entitled to prompt relief. Commonwealth v. Burton, 973
A.2d 428, 432-433 (Pa.Super. 2009) (en banc). In such cases, “this Court
may decide the appeal on the merits if the trial court had adequate
opportunity to prepare an opinion addressing the issues being raised on
appeal. If the trial court did not have an adequate opportunity to do so,
remand is proper.” Id. at 433. Instantly, the trial court has filed an opinion
discussing appellant’s claim. Therefore, remand is not necessary, and we
proceed to address appellant’s issue. See id.On appeal, appellant frames his issue as follows:
1. Whether the Trial Court’s record of appellant,
Thomas Wood’s case reveals evidence
sufficient to support the conviction for [PWID?]
Appellant’s brief at 5.
With respect to his sufficiency issue, our standard and scope of review
are established.
We must determine whether the evidence admitted
at trial, and all reasonable inferences drawn
therefrom, when viewed in a light most favorable to
the Commonwealth as verdict winner, support the
conviction beyond a reasonable doubt. Where there
is sufficient evidence to enable the trier of fact to
find every element of the crime has been established
beyond a reasonable doubt, the sufficiency of the
evidence claim must fail. The evidence established
at trial need not preclude every possibility of
innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not
within the province of this Court to re-weigh the
evidence and substitute our judgment for that of the
fact-finder. The Commonwealth’s burden may be
met by wholly circumstantial evidence and any doubt
-4-
J. S27002/15
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.
Commonwealth v. Mobley, 14 A.3d 887, 889-890 (Pa.Super. 2011).
Pennsylvania law prohibits “possession with intent to manufacture or
deliver, a controlled substance by a person not registered under this act.”
35 P.S. § 780-113(a)(30). “The 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.” Commonwealth v. Lee,
956 A.2d 1024, 1028 (Pa.Super. 2008), appeal denied, 964 A.2d 894 (Pa.
2009). When determining whether there was intent to deliver, “all facts and
circumstances surrounding the possession are relevant, and the
Commonwealth may establish the essential elements of the crime wholly by
circumstantial evidence.” Commonwealth v. Bricker, 882 A.2d 1008,
1015 (Pa.Super. 2005).
[I]f the quantity of the controlled substance is not
dispositive as to the intent, the court may look to
other factors.
Other factors to consider when determining
whether a defendant intended to deliver a controlled
substance 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
-5-
J. S27002/15
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.
Commonwealth v. Ratsamy, 934 A.2d 1233, 1237-1238 (Pa. 2007),
quoting Commonwealth v. Jackson, 645 A.2d 1366, 1368 (Pa.Super.
1994) (quotation marks omitted).
Here, appellant concedes he possessed a controlled substance in the
form of ten packets of crack cocaine and $58 when he was stopped.
However, appellant argues the evidence was insufficient to convict him of
PWID because none of the alleged buyers were stopped, no expert
testimony was provided establishing either the value of the drugs or an
indication of whether the drugs were for personal use, and no testimony was
given relating to any stash of drugs or the presence of drug paraphernalia
used by drug dealers. (Appellant’s brief at 9.)
Viewing the evidence in the light most favorable to the
Commonwealth, together with all reasonable inferences therefrom, we reject
appellant’s argument that the evidence was insufficient. An experienced
Narcotics Task Force officer, stationed in a high-crime drug neighborhood,
set up a plain clothes surveillance and immediately observed a male
approach appellant, speak briefly, and hand appellant U.S. currency.
Officer Perez saw appellant remove a small item from his left top pocket and
hand it to the unknown male. He watched this same scenario ten minutes
-6-
J. S27002/15
later with another unknown male. Approximately ten minutes later,
appellant was stopped; 10 packets of cocaine and $58 were found on his
person. No drug paraphernalia was found. The reasonable inference drawn
from these facts is appellant was distributing drugs.
In Commonwealth v. Bess, 789 A.2d 757 (Pa.Super. 2002), this
court found sufficient circumstantial evidence to support a conviction of
PWID. Id. at 762. The police arrested the defendant after he sold cocaine
to an undercover officer. Id. at 759-760. When the police searched him,
they found 2.2 grams of cocaine in a single bag and $158 in cash on the
defendant’s person. Id. at 761. They did not find any paraphernalia. Id.The totality of the circumstances was sufficient to support a conviction of
PWID. Id. at 761-762.
In Commonwealth v. Johnson, 782 A.2d 1040 (Pa.Super. 2001),
this court again found sufficient evidence to support a conviction of PWID.
The police arrested the defendant after they found crack cocaine on his
person during a consensual search. Id. at 1041. The police asked to
conduct the search because the defendant was in a high-crime drug area.
Id. The police found 1.8 grams of crack cocaine divided among
nine baggies. Id. The police also found $86 in cash and a beeper. Id.They did not find any paraphernalia in the defendant’s possession. Id.Additionally, a police officer testified as an expert that the possession was
-7-
J. S27002/15
with intent to distribute. Id. The totality of these circumstances was
sufficient to support the conviction. Id.Appellant also contends that the lack of expert testimony rendered the
evidence insufficient. Expert testimony is not necessary to support a
conviction when the facts established at trial proved beyond a reasonable
doubt that defendant was guilty of each and every element of the crime
charged. See Commonwealth v. Harper, 611 A.2d 1211, 1217 (Pa.Super.
1992) (sufficiency question is determined by the evidence on the record, not
supposed “missing” evidence). Here, expert testimony was not necessary
because the Commonwealth had already presented sufficient evidence to
establish appellant’s guilt beyond a reasonable doubt through the eyewitness
testimony of Officer Perez.
Because the evidence was sufficient to sustain appellant’s conviction,
he is not entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/2015
-8-