Opinion
J-S07024-13 No. 1070 EDA 2012
07-17-2013
COMMONWEALTH OF PENNSYLVANIA Appellee v. DANIEL HARRISON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence of March 15, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0006926-2010
BEFORE: OLSON, J., WECHT, J., and COLVILLE, J. MEMORANDUM BY WECHT, J.:
Retired Senior Judge assigned to the Superior Court.
Daniel Harrison ("Appellant") appeals his March 15, 2012 judgment of sentence. We affirm.
The learned trial court has aptly summarized the factual history of this case:
On April 30, 2010, at 6:55pm, the police set up surveillance in the area of Hollywood and Jefferson Streets. Officer Passalacqua saw a black male, later identified as the Appellant, exit a row house at 1438 N. Hollywood St. and stand on the corner of Hollywood and Jefferson Streets. William Adams walked up to the Appellant while pushing a bicycle. Adams briefly conversed with the Appellant and handed him money. The Appellant then re-entered 1438. Approximately two minutes later, the Appellant reemerged and met Adams at the sidewalk. The Appellant handed Adams one blue-tinted packet of crack cocaine. Officer Passalacqua radioed for backup officers to stopTrial Court Opinion ("T.C.O."), 8/22/2012, at 2-4 (citations to notes of testimony and some footnotes omitted).
Adams, providing them with his description and direction of travel. Plainclothes officers Kapusniak and Kelly followed Adams. Officer Taylor stopped Adams and recovered one plastic blue-tinted packet of cocaine. 7
7 The packet contained one hundred forty-five milligrams of cocaine.
While Officer Taylor was stopping Adams, Officer Passalacqua continued his surveillance. He observed Cornell Mickie walk up to 1438 N. Hollywood and knock on the door. The Appellant answered the door. The two spoke briefly, and Mickie handed the Appellant a "wad of money." 9 In response, the Appellant told Mickie to go up to the corner because he needed a minute. The Appellant went back inside 1438, and Mickie walked to the corner of Jefferson and Hollywood Streets. After approximately fifteen minutes, the Appellant opened the front door and called Mickie over to him. The Appellant handed Mickie several objects. Mickie examined them and walked away.
9 The "wad of money" was folded and about two inches thick.
Officer Passalacqua then radioed his back up team to stop Mickie. Officers Kapusniak and Kelly contacted uniformed Officer Washington, provided him with a description of Mickie, and requested he stop Mickie. When Officer Washington stopped Mickie, Washington recovered four clear plastic baggies of crack cocaine and a one hundred dollar bill from him. 10 Shortly, thereafter, Officer Passalacqua observed the Appellant leave 1438. At this point, Officer Passalacqua requested a search warrant for 1438 N. Hollywood Street.
10 The cocaine weighed 55 grams.
On May 1, 2010, Officers Passalacqua and Miles again set up surveillance on the 1400 block of Hollywood Street. At approximately 7:40pm, they saw the Appellant exit 1438. They observed the Appellant walk over to Marvin McFarland who was standing at the corner of Jefferson and Hollywood. The Appellant handed him a clear plastic sandwich baggie which McFarland placed in his pants pocket. The two walked into a bar at 29th and Oxford Streets. At approximately 8:10pm, the two left the bar and walked toward Hollywood Street. Officers Kapusniak and Kelly then directed the backup team to stop the Appellant and McFarland. Officer Taylor stopped and recovered
from McFarland one clear plastic sandwich baggie containing .97 grams of marijuana. Officer Washington recovered $287 and a set of keys from the Appellant.
At 8:25pm, officers executed a search warrant at 1438. The officers used the keys they confiscated from the Appellant to enter 1438 North Hollywood. In 1438, Officers confiscated two "Polo" style shirts, one blue and one with white and green stripes, 14 and a Pennsylvania ID in the name of Daniel Harrison from the second floor front bedroom. Officers also confiscated one clear plastic sandwich baggie containing crack cocaine from the same second floor front bedroom. 15 In addition, officers found a similar clear plastic sandwich baggie containing crack cocaine in the second floor middle bedroom. 16 Finally, officers found a clear plastic sandwich baggie containing numerous new and unused clear plastic packets and a box of sandwich bags in the middle bedroom.
14 The polo shirts matched the ones the Appellant wore while conducting the drug transactions.
15 The baggie contained one clear plastic blue-tinted packet with crack cocaine inside.
16 The baggie contained a purple-tinted packet with crack cocaine inside.
Appellant was charged with possession with intent to deliver ("PWID"). Following a jury trial, Appellant was convicted of that charge. On March 15, 2012, Appellant was sentenced to sixty-five to one hundred thirty months in prison. On March 28, 2012, Appellant filed his notice of appeal.
The trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed his concise statement late. While an untimely concise statement may result in waiver, instantly, the trial court received the concise statement prior to issuing its opinion. Therefore, the purpose of the concise statement, putting the trial court on notice of the issues to be addressed, was served. See generally Commonwealth v. Williams, 753 A.2d 856, 860 n.4 (Pa. Super. 2000); Commonwealth v. Overby, 744 A.2d 797, 798 (Pa. Super. 2000). The trial court and the parties have addressed the merits. No one requests waiver. Therefore, we decline to find waiver.
Appellant raises one issue on appeal: "Was the evidence presented at trial insufficient to sustain Appellant's conviction of [PWID]?" Appellant's Brief at 4.
When reviewing a claim challenging the sufficiency of the evidence:
our applicable standard of review is whether the evidence admitted at trial, and all reasonable inferences drawn from that evidence, when viewed in the light most favorable to the Commonwealth as verdict winner, was sufficient to enable the factfinder to conclude that the Commonwealth established all of the elements of the offense beyond a reasonable doubt. Additionally, when examining sufficiency issues, we bear in mind that: the Commonwealth's burden may be sustained by means of wholly circumstantial evidence; the entire trial record is evaluated and all evidence received against the defendant considered; and the trier of fact is free to believe all, part, or none of the evidence when evaluating witness credibility.Commonwealth v. Crabill, 926 A.2d 488, 490-91 (Pa. Super. 2007) (internal citations and quotation marks omitted).
Our General Assembly has defined PWID as follows:
[T]he 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).
[T]o sustain a conviction [for PWID] the Commonwealth must prove beyond a reasonable doubt only that, on a specific occasion, the defendant possessed a controlled substance he was not licensed to possess, and that he did so under circumstances demonstrating an intent to deliver that substance. Intent may be inferred from an examination of the facts and circumstances surrounding the case. Factors which may be relevant in establishing that drugs were possessed with the intent to deliver include the particular method of packaging, the form of the drug, and the behavior of the defendant.Commonwealth v. Griffin, 804 A.2d 1, 15 (Pa. Super. 2002).
Appellant argues that the police recovered only two packets of drugs from his home, not a large quantity. Appellant emphasizes that only a small amount of cash was recovered when he was stopped. Appellant argues that the Commonwealth did not offer expert testimony to explain the paraphernalia found in Appellant's home or how it would relate to a finding of intent to deliver. Appellant contends that the transactions the police observed were not consistent with drug sales. Appellant argues that the packets found on Adams and McFarland could have come from someone else, and demonstrate merely that Appellant and they use the same dealer. Appellant also argues that, based upon the amount of crack cocaine found on Mickie, Appellant would have had much more cash had he sold Mickie those drugs. Based upon all of these circumstances, Appellant contends that the Commonwealth's evidence was insufficient to prove PWID beyond a reasonable doubt. Appellant's Brief at 11-16.
The Commonwealth responds that Officer Passalacqua observed the actual transactions, and that Adams, Mickie, and McFarland were found to be in possession of drugs after those transactions. The Commonwealth contends that this evidence alone is sufficient to sustain a PWID conviction. However, because the search of Appellant's home recovered additional drugs and paraphernalia used to package drugs, the Commonwealth maintains that the evidence was more than sufficient. Commonwealth's Brief at 5-9.
Officer Passalacqua testified that he saw Appellant hand Adams a blue tinted packet of crack cocaine after Adams gave Appellant money. Notes of Testimony ("N.T."), 10/26/2011, at 214. The officer also observed Appellant hand Mickie several objects after Mickie gave Appellant money. Id. at 219. The next evening, Officer Passalacqua observed Appellant hand McFarland a sandwich baggie. Id. at 225. The police entered Appellant's home pursuant to the search warrant and recovered a blue tinted package of crack cocaine, a purple tinted package of crack cocaine, a box of sandwich baggies, and new and unused clear plastic packets. Id. at 228-29. Officer Passalacqua testified that the plastic packets were used to package narcotics. Id. at 229, 243, 245-48, 314. Police also recovered an ink stamper, which is used to stamp packages of narcotics. Id. at 318. Officer Passalacqua testified that he did not find any paraphernalia for using drugs, such as rolling papers, pipes, or lighters. Id. at 263-65. Appellant's observed sales provided sufficient evidence of his intent to sell drugs and this conclusion was further supported by the paraphernalia found in the house.
Appellant contends certain testimony undermines the sufficiency of the evidence. Officer Washington testified that the fifty-five grams of crack cocaine recovered from Mickie would have a street value of approximately $5500. N.T., 10/27/2011, at 109. Appellant argues that, because he did not have that much money when he was arrested, he could not have sold those drugs to Mickie. With these arguments, Appellant essentially is asking us to re-weigh the evidence. However, his stated and preserved challenge to this Court is to the sufficiency of the evidence, not the weight. We must draw all inferences in favor of the Commonwealth as verdict winner. Having done so, we readily are satisfied that Appellant's two points do not change the outcome.
The totality of the evidence, viewed in the light most favorable to the Commonwealth, is sufficient to support Appellant's conviction for PWID.
Judgment of sentence affirmed. Jurisdiction relinquished.
Colville, J. concurs in the result. Judgment Entered. _________________
Prothonotary