Com. v. Gosa, E. ( 2018 )

J-S55007-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD GOSA, :
:
Appellant : No. 267 EDA 2018
Appeal from the Judgment of Sentence December 5, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001499-2017
BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 22, 2018
Appellant, Edward Gosa, appeals from the judgment of sentence entered
on December 5, 2017. We affirm.
The trial court ably summarized the underlying facts of this case:
In February [] 2017, Detective Michael Honicker of the
Delaware County District Attorney’s Investigation Division
(CID) began investigation of Appellant and his residence
located at 923 Lamokin Street, Chester, Delaware County,
Pennsylvania for the distribution of cocaine. During the
investigation[,] Detective Honicker conducted surveillance
outside the residence and saw [Appellant] at the residence.
In addition to the surveillance of the residence, Detective
Honicker and a confidential informant conducted a controlled
buy at Appellant’s residence. During the surveillance,
Detective Honicker had observed Appellant enter and exit the
residence. Additionally during the surveillance, Detective
Honicker became aware that Appellant was also known as
“Bahir.”
Based upon the surveillance of the residence, Detective
Honicker applied for a search warrant of Appellant’s
residence. On February 23, 2017, Detective Honicker
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executed the search warrant. . . . The search warrant was
executed with several members of CID; however, no one was
located at the residence at the time. During the execution of
the search warrant, in the front upstairs bedroom, the officers
discovered mail, a Hawaiian Punch box with a security
envelope inside on a dresser containing seven [] bags of
cocaine, new and unused packaging material and a straw with
a scoop. Detective Honicker testified that he immediately
recognized that it was cocaine in the seven [] bags. The
police also discovered a small bag of marijuana in this
bedroom. There was no other contraband found in
Appellant’s residence.
Appellant and the Commonwealth entered into a stipulation
which was read into the record during the bench trial. The
stipulation . . . stated that all the bags recovered from the
residence were appropriately maintained in custody and
control, that the seven bags contained cocaine containing a
total of 1.79 grams and that the other bag contained 2.74
grams of marijuana.
Detective Honicker testified that the mail that was found was
addressed to Appellant. The police discovered mail
addressed to “Bahir” with an address on Henry Avenue in
Philadelphia, [Pennsylvania]. There was also mail addressed
to “Bahir” with the 923 Lamokin Street address. Detective
Honicker was not aware that Appellant had a son and did not
know that the son was known as Bahir. Detective Honicker
testified that he knew Appellant’s street name was “Bahir.”
This mail was found throughout the residence not just in one
room or in the bedroom with the cocaine and paraphernalia
that had been discovered. During the execution of the search
warrant[,] Appellant’s resume was found in the dining room.
A review of the resume shows that Appellant listed his
address as 923 Lamokin Street, Chester, Delaware County,
Pennsylvania.
While searching the dining room, the police observed a .22
caliber rifle in open or plain view by the window. This rifle
was submitted to ballistics and it was determined the rifle
was operable.
Detective Honicker was qualified as an expert in the area of
narcotics investigations, manufacturing, sales distribution,
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packaging[,] and deliver[y]. . . . Detective Honicker testified
that in his [33] years as a narcotics agent[,] he had seen the
bags that were found in Appellant’s residence before and in
his experience they were [$20.00] bags. The smaller bags,
with an apple on them are normally used for packaging
cocaine. The seven filled or used bags with the apples are
the same as the unused bags that were discovered.
Detective Honicker testified that the apple bags were
normally used for packing cocaine.
[Detective Honicker testified that, in his] experience[,]
persons who use cocaine would not buy their cocaine in all of
the small bags that Appellant had in his possession as it is
not economical. Detective Honicker explained that it was
cheaper and easier to buy the almost [two grams] of cocaine
[that Appellant had] in bulk or in a larger bag. Detective
Honicker further [testified] that[,] while it is unusual to not
buy in bulk[,] it is not unheard of. However, Detective
Honicker was clear that a user of cocaine would definitely not
have the new and unused [apple] bags . . . unless that person
was selling [contraband].
Detective Honicker testified that the straw with a scoop . . .
is a scoop that could be used to fill the small cocaine bags.
Detective Honicker testified that the scoop spoon was used
in lieu of a scale and was not used for snorting cocaine.
Based on his experience, training[,] and the evidence
collected in this case, Detective Honicker rendered an opinion
that the cocaine seized from Appellant’s bedroom was not
possessed for his personal use but rather [was] possessed
with the intent to distribute. Detective Honicker testified that
the cocaine could have been used for personal use; however,
the straw and the new and unused bags led him to the
conclusion that Appellant was selling the cocaine. . . .
Trial Court Opinion, 2/27/18, at 3-6 (internal citations and some internal
capitalization omitted).
At the conclusion of the bench trial, the trial court found Appellant guilty
of possession of a controlled substance with the intent to deliver (“PWID”) and
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persons not to possess a firearm.1 On December 5, 2017, the trial court
sentenced Appellant to serve an aggregate term of 16 to 32 months in prison
for his convictions.
Appellant filed a timely notice of appeal and now raises one claim to this
Court:
Whether the evidence of record in this case was sufficient to
prove [Appellant] guilty of [PWID] where the Commonwealth
failed to establish beyond a reasonable doubt that the seven
packets found in his bedroom were for sale as opposed to his
own personal use[?]
Appellant’s Brief at 7 (some internal capitalization omitted).
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
____________________________________________
1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 6105(a)(1), respectively.
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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).
Appellant claims that the evidence was insufficient to support his PWID
conviction because the amount of cocaine recovered was consistent with
personal use. Appellant’s Brief at 11. This claim fails.
To establish the offense of possession with intent to deliver a controlled
substance, the Commonwealth must prove beyond a reasonable doubt that
the defendant both possessed a controlled substance and had the intent to
deliver it. Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa. Super.
2003). In determining whether the defendant had the intent to deliver a
controlled substance, courts may consider several relevant factors, including
“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. Ratsamy, 934 A.2d 1233, 1237-1238 (Pa. 2007).
Expert opinion testimony may also be admitted to establish “whether the facts
surrounding the possession of controlled substances are consistent with [the]
intent to deliver rather than with [the] intent to possess [them] for personal
use.” Id. “The expert testimony of a witness qualified in the field of drug
distribution, coupled with the presence of drug paraphernalia, is sufficient to
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establish intent to deliver.” Commonwealth v. Carpenter, 955 A.2d 411,
414 (Pa. Super. 2008).
In the case at bar, while it is true that the total amount of cocaine was
consistent with personal use, several other factors demonstrated that
Appellant possessed the cocaine with the intent to distribute. This evidence
includes, first, Detective Honicker’s testimony that, during his investigation,
he “did controlled buys of cocaine” from Appellant’s residence. N.T. Trial,
10/11/17, at 28. Further, when the police executed the search warrant on
Appellant’s residence, the police recovered a box that contained: cocaine that
was divided into seven separate baggies; “new and unused bags for packaging
cocaine;” and, a straw converted into a scoop. Id. at 31-35. With respect to
this evidence, Detective Honicker testified that: the seven baggies of cocaine
were equally divided into “$20 bags;” normally, “if [a person is] going to buy
cocaine for personal use, [that person is] not going to buy it in” seven separate
bags because “[y]ou can get all this in one bag for less money than it would
cost you for each of these bags;” the unused baggies had an “apple on the
front” and “apple bags” are normally used for packaging cocaine; “you are not
going to have new unused bags if you are a user;” the presence of the scoop
indicted that Appellant did not have a scale and was using the scoop to
“approximat[e] how much to fill a bag” with cocaine; and, the police did not
recover any paraphernalia that Appellant could have used to ingest the
cocaine. Id. at 53-58. Finally, Detective Honicker testified that, in his expert
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opinion after viewing the evidence in its totality, Appellant possessed the
cocaine with the intent to deliver. Id. at 75-76.
Viewed in the light most favorable to the Commonwealth, the above
evidence is sufficient to support the trial court’s factual finding that Appellant
possessed the cocaine with the intent to deliver. See Ratsamy, 934 A.2d at
1237-1238. Therefore, Appellant’s sufficiency of the evidence claim fails.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/18
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