Com. v. Ross, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DWAYNE JUWAN ROSS
Appellant : No. 1753 MDA 2018
Appeal from the Judgment of Sentence Entered September 28, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0006567-2017
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 02, 2019
Appellant, Dwayne Juwan Ross, appeals from the judgment of sentence
entered in the Court of Common Pleas of Lancaster County, after a jury found
him guilty of one count of Possession with Intent to Deliver a Controlled
Substance ("PWID") based on cocaine and other items recovered from his
vehicle during a traffic stop. Herein, Appellant contends the Commonwealth
failed to prove his intent to deliver with sufficient evidence. We affirm.
The trial court sets forth the procedural history and the facts pertinent
to a challenge to the sufficiency of the evidence, as follows:
Defendant [hereinafter "Appellant"] was charged with allegedly
having committed the offense of [PWID (cocaine), 35 P.S. § 780-
113(a)(30)]. Trial in the instant matter commenced on August 1,
2018, before [the trial court] and a jury. On August 2, 2018, the
jury returned a guilty verdict against Appellant. The court directed
that sentencing be deferred pending the completion of a pre -
sentence investigation report.
Former Justice specially assigned to the Superior Court.
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Following completion of the pre -sentence investigation report,
Appellant appeared before [the trial court] for sentencing on
September 28, 2018. At such time, Appellant was sentenced to a
period of incarceration of not less tha[n] thirty-one months nor
more than six years in the state correctional system and ordered
to pay the costs of prosecution.
[The underlying facts, adduced at trial, established] Officer Sam
Goss of the East Lampeter Township Police Department testified
that he was running a speed detail in a marked police cruiser . . .
. N.T., 8/1/18, at 3. At approximately 2:00 p.m. on that date, a
gray or silver Toyota Prius, which had NLancaster Cab
. . .
Company["] written on the side of the car, was traveling east at
55 miles per hour in a 35 mile per hour zone. N.T, at 63-64.
Officer Goss initiated a traffic stop of the Toyota Prius
. . . . . . .
N.T. at 64.
Officer Goss detected the odor of burnt marijuana emanating
. . .
from the vehicle[, and of the three individuals inside, he] identified
the driver . as [Appellant]. N.T. at 64. [The officer] observed
. .
remnants of marijuana in the laps and on the shirts of the rear
passengers of Appellant's vehicle and identified a baggie with
marijuana sticking out of the floorboards of the left passenger
seat. N.T. at 65.
Officer Goss requested that Appellant step out of the vehicle and
subsequently obtained consent to search the vehicle. N.T. at 66.
[He] placed both passengers under arrest[, and a subsequent
search uncovered a small bag of marijuana on one person and a
pipe and marijuana located by the other person's feet in the
vehicle]. N.T. at 66-67.
[Officer] Goss searched the vehicle and found an opened zippered
pouch that had a clear plastic bag containing suspected cocaine in
the center console of the vehicle. N.T. at 66-67. [Officer] Goss
also found a zipper wallet with Appellant's Lancaster County
business cards in the center console. N.T. at 69. [Officer] Goss
took Appellant into custody and turned him over to Detective Scott
Eelman so that he could continue his search of Appellant's vehicle.
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[Officer] Goss found another quantity of suspected cocaine in a
knotted clear plastic sandwich bag in the map pocket of the
driver's side compartment. N.T. at 71. [Officer] Goss also
. . .
retrieved one -hundred eighty-one dollars in cash stuffed in the
sun visor, along with thirty-nine dollars in Appellant's wallet. N.T.
at 79. [Officer] Goss testified that, when he found the dollar bills,
they were folded and shoved in the sun visor. N.T. at 128.
[Officer] Goss subsequently charged Appellant with the offense of
Possession with Intent to Deliver cocaine. N.T. at 74. [Detective
Eelman testified and corroborated Officer Goss' account. N.T. 83-
87.].
[Pennsylvania State Police Laboratory analysis of the suspected
cocaine] determined the substance in one bag weighed 24.443
grams and contained cocaine, a Schedule II substance. The other
substance in the other bag weighed approximately 1.22 grams
. . .
and contained cocaine, a schedule II controlled substance. N.T.
at 129-130.
Anthony Lombardo, a police officer with Manheim Township Police
Department, has been assigned to the Lancaster County Drug
Task Force since 2008. N.T. at 101. He testified that, when
. . .
he reviews a case to determine whether a person is possessing a
controlled substance with the intent to deliver such substance, he
considers all the attendant factors, such as: the quantity of drugs;
the presence of any currency; the amount of currency; the
presence of a cellular telephone; the presence of any packing
materials; and, the presence of any use paraphernalia. N.T. at
106-107. Officer Lombardo testified that use paraphernalia for
cocaine includes . .small mirrors, cut-up straws, rolled -up dollar
.
bills with residue used to ingest the drug typically through the
nose. N.T. at 107.
[Officer Lombardo] testified that cocaine is typically sold on the
street by the gram or half gram and that a gram of cocaine costs
one -hundred dollars in Lancaster. N.T. at 108. A mid -level dealer
would purchase an ounce of cocaine from another dealer, which is
twenty-eight grams, at a cost of one -thousand to one -thousand
two -hundred dollars. N.T. at 108-109. Selling a gram for one
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hundred dollars would then net a profit for the mid -level dealer.
N.T. at 109.
The 24.43 grams of cocaine that was seized from Appellant's
vehicle was a little over three grams shy of an ounce. N.T. at 109.
Officer Lombardo also examined . the envelope containing 1.22
. .
grams compressed powder cocaine. N.T. at 109. Upon review of
the lab report and considering the amount of drugs, Officer
Lombardo's opinion was that these drugs were possessed with
intent to deliver and he memorialized his opinion in an expert
report, which was marked as Commonwealth Exhibit 6. N.T. at
109-110.
Officer Lombardo explained that the amount was just under an
ounce of cocaine, which is not typical for a user of cocaine in this
area. N.T. at 111. The amount of cocaine found in this case would
cost approximately nine -hundred dollars. N.T. at 111. The
. . .
amount of cocaine found [in the present matter] is more common
with what Officer Lombardo typically finds with a mid -level cocaine
dealer. N.T. at 111. Additionally, there was no use paraphernalia.
. .N.T. at 111.
.
Officer Lombardo testified that cocaine users typically buy smaller
amounts, which are used quickly after purchase. N.T. at 111-112.
[He opined that a] user typically uses what is purchased within
ten to fifteen minutes of their purchase. N.T. at 112. Officer
Lombardo also testified that he has never seen a user that had a
bulk amount of twenty-four grams and then have a separate bag
with just one gram. N.T. at 112. There would be no purpose for
this, other than breaking down the larger amount into gram sizes
for distribution[, he opined]. N.T. at 112. [The absence of
packaging paraphernalia, often found in the possession of dealers,
did not change Officer Lombardo's opinion that Appellant
possessed this amount of cocaine with the intent to deliver]. N.T.
at 113.
Officer Lombardo testified that finding two cell phones, one for
personal use and one for work is very common for drug dealers.
N.T. at 112. Officer Lombardo also placed significance in the fact
that there were different amounts of money located in different
places on Appellant's person and in Appellant's vehicle. N.T.
. . .
at 112. .Again, this is because dealing drugs is a fast -paced
. .
covert operation so money is typically stashed in several locations
to be hidden from plain view. N.T. at 112-113.
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Trial Court Opinion, 12/21/18, at 1-2, 4-8.
Appellant presents one question for this Court's consideration:
Whether the Honorable Trial Court erred in holding, pursuant to
the 1925(a) Opinion in support of the sentencing order, that
Appellant did not satisfy his burden to establish that evidence was
insufficient as a matter of law with respect to the criminal element
of intent to sustain his conviction for possession with intent to
deliver a controlled substance?
Appellant's brief, at 6.
We review Appellant's sufficiency of the evidence claim under the
following standard:
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 [that of] 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 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. Brown, 23 A.3d 544, 559-560 (Pa.Super. 2011)
(en banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800,
805-806 (Pa.Super. 2008).
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"To sustain a conviction for [PWID], the Commonwealth must establish
the defendant knowingly or intentionally possessed a controlled substance
without being properly registered to do so, with the intent to manufacture,
distribute, or deliver it. See 35 P.S. § 780-113(a)(30); Commonwealth v.
Brown, 48 A.3d 426, 430 (Pa.Super. 2012)." Commonwealth v. Dix, 207
A.3d 383 (Pa.Super. 2019). Appellant argues that the Commonwealth failed
to present sufficient evidence of one element of the PWID charge, namely,
intent to deliver.
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 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
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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).
Commonwealth v. Brockman, 167 A.3d 29, 39 (Pa.Super. 2017).
Appellant maintains the Commonwealth failed to present sufficient
evidence of intent because he complied with the traffic stop, acted
"normal[ly]" during his interaction with Officer Goss, and possessed no
weapons, unused packaging materials, scales, or owe sheets, all of which are
associated with an intent to deliver. Appellant's brief at 12. He also denies
the significance of the large amount of cash and two cell phones found in his
possession, as he claims he possessed these items within the scope of his
employment as a cab driver.
Viewing the evidence in a light most favorable to the Commonwealth as
verdict winner, however, we conclude the evidence proved the intent element
of the PWID offense beyond a reasonable doubt. Here, the jury learned that
Appellant possessed 24 grams of cocaine, an amount that is approximately 24
to 48 times greater in weight than what a local user would typically purchase,
but is essentially equal to what a mid -level dealer would purchase from a large
dealer. On this point, Detective Lombardo testified that never in his nearly
ten years of drug task force service had he encountered someone who had
purchased this amount for personal use.
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Detective Lombardo also testified that the lack of unused packaging or
paraphernalia in this matter was of little significance considering Appellant
was in his car with the equivalent of a mid -level dealer's starting supply,
suggesting he had recently purchased the cocaine. N.T. at 112. Finally, the
detective explained also that Appellant's possession of multiple cell phones
and of separate stores of cash was consistent with the intent to deliver.'
Accordingly, we conclude that the large amount of cocaine in Appellant's
possession, combined with the additional factors discussed, was sufficient to
support an inference of intent to deliver. See Commonwealth v. Roberts,
133 A.3d 759, 768-69 (Pa.Super. 2016) (holding intent to deliver inferable
from possession of two bags containing approximately 42 grams and 36 grams
of cocaine, no small baggies, two cell phones, and no money, which
collectively suggested defendant had just "re -upped" supply for sale).
Appellant's challenge to the sufficiency of the evidence, therefore, fails.
Judgment of sentence affirmed.
' Appellant's argument essentially asks us to reweigh the evidence in a light
most favorable to him and ascribe a legitimate business purpose to the phones
and cash in his possession. While such a purpose may be theoretically
possible, the fact -finder clearly rejected this possibility, and it is well -settled
that we may not substitute our judgment for that of the fact -finder. See
Brockman, supra.
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Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 8/2/2019
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