Opinion
883 EDA 2023
01-11-2024
COMMONWEALTH OF PENNSYLVANIA v. MARQUIS LLOYD Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered February 24, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002214-2022
Benjamin D. Kohler, Esq.
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J. [*]
MEMORANDUM
COLINS, J.
Appellant, Marquis Lloyd, appeals the judgment of sentence imposed by the Philadelphia Court of Common Pleas after the lower court found him guilty of possession of a controlled substance with intent to deliver and knowing or intentional possession of a controlled substance. He challenges the sufficiency and weight of the evidence supporting his convictions. Upon review, we affirm.
35 P.S. §§ 780-113(a)(30) and 780-113(a)(16), respectively.
At 3:40 p.m. on March 2, 2022, Police Officer Matthew Kaiser was on duty in the 1900 block of East Atlantic Street in Philadelphia, an area that the officer described at trial as "a heavy open-air narcotic area." N.T. 10/25/22, 7-9, 11. Officer Kaiser and his partner, Officer Bullock, had set up a plain clothes surveillance operation. Id. at 10. Officer Kaiser saw Appellant standing on the corner of Jasper and Atlantic Streets yelling, "hard," to passersby. Id. Based on his eight years' experience as a Philadelphia police officer, which included "[p]robably four or five hundred" narcotics arrests, Officer Kaiser "kn[e]w the word [']hard['] mean[t] crack cocaine." Id. at 8-10.
At 4:01 p.m., Officer Kaiser saw a man, later identified as George Wolf, approach Appellant and engage in a brief conversation with him. N.T. 10/25/22, 10. The two men then walked eastbound on Atlantic Street and went behind a white work van and out of Officer Kaiser's view until they reappeared after "a few moments." Id. Officer Kaiser then saw Appellant walk back to the corner of Jasper and Atlantic Streets while Wolf left the area. Id. at 10-11. Officer Edward Thompson thereafter stopped Wolf near the 3500 block of Frankford Avenue and recovered two purple flip-top containers of crack cocaine from him. Id. at 11, 28, 32-33.
At 5:00 p.m., Officer Kaiser saw another man, later identified as Ismael Serrano, approach Appellant and engage him in a brief conservation, before Appellant and Serrano then disappeared from the officer's view behind the same white work van "for a few moments." N.T. 10/25/22, 11. When the men returned to Officer Kaiser's view, Appellant returned to the corner of Jasper and Atlantic Streets, and Serrano left the area. Id. Officer Thompson stopped Serrano near the 3400 block of George Street and recovered seven purple flip-top containers of crack cocaine from him. Id. at 11, 28, 33.
Following the recovery of the drugs from Serrano, Officer Kaiser instructed backup officers to stop Appellant. Another officer named Fortella arrested Appellant and recovered $78 from his person. N.T. 10/25/22, 11-12. Officer Kaiser then instructed Officer Thompson to check the immediate area of the white work van where Appellant had approached with Wolf and Serrano during the surveillance. Id. at 12. There, Officer Thompson recovered a Grass Roots labeled bottle that contained 45 purple flip-top containers of crack cocaine and 45 green flip-top containers of a powdery substance that the officers believed was heroin. Id. at 12, 29, 33-34. Officer Kaiser testified at trial that he did not see anyone behind the white work van before he started his surveillance and could not see anyone behind the van during the surveillance. Id. at 12.
While the trial testimony surmised that the green flip-top containers held heroin, N.T. 10/25/22, 12, chemical testing revealed that they contained "fentanyl Schedule II [and] tramadol Schedule IV." See Commonwealth Exhibit C-5; see also N.T. 10/25/22, 34.
On October 25, 2022, Appellant waived a jury and proceeded to be tried by the lower court. N.T. 10/25/22, 3-6. The Commonwealth presented the testimony of Officer Kaiser and Officer Thompson and marked and moved into the evidentiary record four property receipts and some chemical testing reports. After hearing all the evidence, the court found Appellant guilty of the above-referenced offenses. N.T. 10/25/22, 42. On February 23, 2023, the court sentenced Appellant to eleven and one-half to twenty-three months' imprisonment, to be followed by five years' probation, for possession of a controlled substance with intent to deliver. Sentencing Order, 2/24/23, 1; N.T. 2/24/23, 53. Knowing or intentional possession of a controlled substance merged for sentencing purposes. Sentencing Order, 2/24/23, 1-2. Appellant timely filed a notice of appeal. Notice of Appeal, 3/24/23, 1.
The property receipts referenced included the following reference numbers and contents: (1) No. 3554546 - "2 purple flip-top containers containing a white chunky substance alleged crack-cocaine;" (2) No. 3554547 - "7 purple flip-top containers each containing a white chunky substance alleged crack cocaine;" (3) No. 3554549 - "1 Black container with black lid labeled 'Grassroots' which contained 45 purple flip-top containers each containing a white chunky substance alleged crack-cocaine, and 45 green flip-top containers each containing an off-white powder substance;" and (4) No. 3554548 - "$78.00 [United States currency] consisting of" two twenty-dollar bills, three ten-dollar bills, one five-dollar bill, and three one-dollar bills. Commonwealth Exhibits C-1 through C-4; see also N.T. 10/25/22, 18-22, 27-29. The chemical testing reports provided that: (1) the seven purple-tinted containers referenced on property receipt No. 3554547 weighed "0.027+/-0.004 gram" and that one of the containers was tested and determined to contain "cocaine base Schedule II;" (2) the two purple-tinted containers referenced on property receipt No. 3554546 weighed "0.015+/-0.004 gram" and that one of the containers was tested and determined to contain "cocaine base Schedule II;" (3) the 45 purple containers referenced on property receipt No. 3554549 weighed "0.029+/-0.004 gram" and one of the containers was tested and determined to contain "cocaine base Schedule II;" (4) one of the green flip-top containers referenced on property receipt No. 3554549 weighed "0.030+/-0.004 gram," was tested, and determined to contain "fentanyl Schedule II [and] tramadol Schedule IV;" and (5) the other forty-four green flip-top containers referenced on property receipt No. 3554549 weighed "1.869+/-0.082 grams" and nineteen of the containers were tested and determined to contain "fentanyl Schedule II [and] tramadol Schedule IV." Commonwealth Exhibit C-5; see also N.T. 10/25/22, 32-34.
Appellant presents the following questions for our review:
I. Was the evidence sufficient as a matter of law to prove beyond a reasonable doubt that [Appellant] possessed a controlled substance with the intent to deliver, where the Commonwealth's witness did not see any hand-to-hand transactions?
II. Was the verdict against the weight of the evidence where the Commonwealth relied primarily on a police officer's suppositions and assumptions?Appellant's Brief at 6 (answers of the lower court omitted).
As a preliminary matter, we note that Appellant filed an untimely court-ordered concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court issued an order setting an initial deadline for a Rule 1925(b) statement of April 20, 2023. Rule 1925 Order, 3/30/23, 1. Newly appointed counsel for Appellant thereafter sought an extension of the deadline. Motion for Extension of Time, 4/18/23, 1. The trial court granted the request, setting a new deadline of May 22, 2023. Order, 4/20/23, 1. Appellant filed his Rule 1925(b) statement on May 27, 2023. Rule 1925(b) Statement, 5/27/23, 1. Nonetheless, as the trial court did not deem the statement untimely and addressed the issues raised therein, we proceed as if the statement had been timely filed. See Pa.R.A.P. 1925(c)(3) ("If an appellant represented by counsel in a criminal case was ordered to file and serve a Statement and … untimely filed or served a Statement, such that the appellate court is convinced that counsel has been per se ineffective, and the trial court did not file an opinion, the appellate court may remand for appointment of new counsel, the filing or service of a Statement nunc pro tunc, and the preparation and filing of an opinion by the judge."); Commonwealth v. Andrews, 213 A.3d 1004, 1010 (Pa. Super. 2019) (declining to find waiver or remand for a Rule 1925(a) opinion where "the trial court did not comment on the untimely filing of [the defendant's] Rule 1925(b) statement and, in fact, it addressed all of the issues raised therein").
In his first issue, Appellant claims that the evidence was insufficient to prove his possession of the recovered drugs because the police witnesses did not see any hand-to-hand transactions between him and either Wolf or Serrano. Appellant's Brief at 12-15. He asserts that Officer Kaiser's belief that his use of the word, "hard," was a reference to slang for crack cocaine "was not persuasive evidence" where that officer was not qualified as an expert. Id. at 13. He also points to the testimony that "there were several other males during [t]he course of the surveillance out there" and the absence of testimony establishing that there was no one else behind the van where the larger stash was found at the same time he "and the other men went there." Id. at 13-14. He lastly alleges that the seventy-eight dollars recovered from him "did not link him to illegal narcotics." Id. at 14. He argues that the evidence was insufficient because it merely showed his proximity to contraband at a time when other people were near the contraband. Id. at 14-15.
As to our standard of review for this claims, we have noted:
We assess the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict-winner. We must determine whether there is sufficient evidence to enable the
fact-finder to have found 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 factfinder. 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.Commonwealth v. Bowens, 265 A.3d 730, 740-41 (Pa. Super. 2021) (en banc) (citation omitted). Additionally, "the trier of fact has the authority to determine the weight of the evidence and credibility of the witnesses and is free to believe all, part, or none of the evidence." Commonwealth v. Whitmire, 300 A.3d 484, 490 (Pa. Super. 2023).
Appellant disputes that the evidence proved his possession of controlled substances. In narcotics possession cases, possession could be proved by actual, constructive, or joint constructive possession of contraband. Commonwealth v. Thompson, 428 A.2d 223, 224 (Pa. Super. 1981). In cases, such as this one, where the contraband is not discovered on the defendant's person, the Commonwealth could prove that the defendant had constructive possession of the contraband. Constructive possession means the defendant had an ability to exercise conscious dominion over the contraband, i.e., that he had the power to control the contraband and the intent to exercise that control. See Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa. Super. 2014) (en banc). "The power and intent to control the contraband does not need to be exclusive to the defendant[,]" and "constructive possession may be found in one or more actors where the item [at] issue is in an area of joint control and equal access." Id. (internal citation and quotations omitted). However, if another person has equal access to the location of the contraband, "presence alone in conjunction with such access will not prove conscious dominion over the contraband." Id. (internal citation and quotations omitted).
The evidence supporting Appellant's possession of controlled substances in this case include: (1) his yelling of the word, "hard," which Officer Kaiser testified was slang for crack cocaine; (2) his separate brief conversations and approaches to the white work van with Wolf and Serrano; (3) the subsequent recovery of similarly packaged containers of crack cocaine from Wolf and Serrano; (4) the presence of a large stash of drugs near the white work van which contained supplies of crack cocaine packaged like the contraband recovered from Wolf and Serrano; and (5) the recovery of $78 from Appellant's person. Even if there were other individuals present on the same street as Appellant, the reasonable inferences to be gleaned from this circumstantial evidence is that Appellant was advertising the availability of crack cocaine and then completed two sales of crack cocaine to Wolf and Serrano from the stash later recovered from near the van. See, e.g., Commonwealth v. Davenport, 452 A.2d 1058, 1061-62 (Pa. Super. 1982) (a conspirator's use of the slang "boy" for heroin in the presence of Davenport, who engaged in the exchange of money and packages of such "boy" between his conspirator, an undercover police officer, and a police informant, "was supportive of 'an inference of knowledge' attributable to [Davenport] that an illegal transaction would and did take place").
The most overwhelming factor for concluding Appellant's constructive possession of the larger drug stash and the small quantities inferred to be sold to Wolf and Serrano was Appellant's yelling of "hard" to seemingly advertise the availability of crack cocaine, which the trier of fact could reasonably conclude that he then sold. See N.T. 10/25/22, 10. Appellant suggests that we should disregard the importance of this evidence because "the policeman was not qualified as an expert, and his opinion was not persuasive evidence." Appellant's Brief at 13. That argument improperly conflates the admissibility of Officer Kaiser's testimony about his knowledge of the use of the word "hard" as slang for crack cocaine (which was not an issue that was raised below) and the sufficiency of the evidence. We do conduct sufficiency review based on a diminished record. Rather, we review sufficiency of the evidence claims based on the entirety of the evidence received, without consideration of its admissibility. See Commonwealth v. Gray, 867 A.2d 560, 567 (Pa. Super. 2005) ("[i]n evaluating the sufficiency of the evidence, we do not review a diminished record. Rather, the law if clear that we are required to consider all evidence that was actually received, without consideration as to the admissibility of that evidence or whether the trial court's evidentiary rulings are correct.") (citations omitted).
To the extent that Appellant challenges the admissibility of Officer Kaiser's testimony about his knowledge of the use of the word "hard" as slang for crack cocaine, he waived that issue by, inter alia, not preserving an objection to that testimony at trial. See Commonwealth v. Rodriguez, 174 A.3d 1130, 1145 (Pa. Super. 2017) ("The absence of a contemporaneous objection below constitutes a waiver of the claim on appeal.") (quotations and citation omitted); Pa.R.A.P. 302(a) ("Issues not raised in the trial court are waived and cannot be raised for the first time on appeal."). Viewing the officer's testimony in the light most favorable to the Commonwealth - as we must view it on sufficiency review - it demonstrated that Appellant's yelling of the word "hard" was meant as a form of advertising and gave rise to the reasonable inference that Appellant was the person who sold the purple flip-top containers of crack cocaine to Wolf and Serrano from the large stash recovered from near the work van. The use of this slang before the encounters with Wolf and Serrano allowed the trier of fact to differentiate Appellant from being a person who was merely in the proximity of the recovered stash by the van. From this evidence, it was reasonable for the trial court to infer that Appellant exercised dominion and control over the drug stash. Appellant's sufficiency claim, thus, fails.
In his second claim, Appellant challenges the weight of the evidence, essentially repeating his sufficiency arguments that there was a lack of evidence connecting him to the drug stash recovered from near the work van. Appellant's Brief at 15-16. He waived any such claim for our purposes by not preserving it before the trial court.
A claim challenging the weight of the evidence "shall be raised with the trial judge in a motion for a new trial: (1) orally, on the record, at any time before sentencing; (2) by written motion at any time before sentencing; or (3) in a post-sentence motion." Pa.R.Crim.P. 607(A)(1)-(3). The failure to preserve a weight claim pursuant to Rule 607 will result in waiver even if the trial court addresses it in its opinion for this Court. See Commonwealth v. Thompson, 93 A.3d 478, 491 (Pa. Super. 2014) ("Failure to properly preserve the claim will result in waiver, even if the trial court addresses the issue in its opinion.") (citations omitted). Here, Appellant never raised any oral weight claim after the reading of the trial court's verdict or at sentencing, and never filed any written motions, pre- or post-sentencing, raising a challenge to the weight of the evidence. Appellant thus waived any weight claim for direct review. See Pa.R.Crim.P. 607 Cmt. (stating "[t]he purpose of [Rule 607] is to make clear that a challenge to the weight of the evidence must be raised with the trial judge or it will be waived"); Pa.R.A.P. 302(a).
The trial court did not engage in any substantive review of the weight of the evidence in its opinion.
In the absence of a preserved weight claim below, we cannot review the weight of the trial evidence on a cold record because an appellate weight claim is a review of a trial court's exercise of discretion in ruling on the claim in the first instance. See Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) ("An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court."); id. at 753 ("Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence.").
In light of the foregoing, we deem Appellant's sufficiency challenge meritless and his weight challenge waived. Accordingly, we affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
[*]Retired Senior Judge assigned to the Superior Court.