HomeMy WebLinkAboutCP-21-CR-0002876-2009
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGES: (1) UNLAWFUL DELIVERY OR
: MANUFACTURE OR
: POSSESSION WITH INTENT
v. : TO DELIVER A SCHEDULE I
: CONTROLLED SUBSTANCE
: (3) UNLAWFUL POSSESSION
: OF A SCHEDULE I
: CONTROLLED SUBSTANCE
:
AMY N. KOCH : CP-21-CR-2876-2009
OTN: K937981 – 2 :
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., November 30, 2010.
In this criminal case, Defendant was found guilty following a jury trial at Count 1
of Unlawful Possession with Intent To Deliver a Schedule I Controlled Substance, an
ungraded felony, and guilty at Count 3 of Possession of a Schedule I Controlled
1
Substance, an ungraded misdemeanor. From the judgment of sentence imposed for those
23
offenses, Defendant now appeals to the Pennsylvania Superior Court.
The bases for the appeal have been expressed in a statement of matters complained
of on appeal as follows:
Evidentiary Issue:
1. The trial court erred in admitting text messages and transcripts of
text messages over the objection of Defense Counsel, where the text
messages were not authenticated, the author of the text messages could not
be ascertained and the messages were ultimately offered for the truth of the
matter asserted?
1
See Verdicts, dated May 27, 2010; Order of Court, In Re: Jury Trial, May 27, 2010.
2
See Order of Court, In Re: Sentencing, July 20, 2010. At Count 1, Defendant was sentenced by the court
to undergo a period of supervised probation of 23 months. Count 3 was deemed to have merged for
sentencing purposes with the sentence imposed at Count 1.
3
Defendant’s Notice of Appeal, filed October 11, 2010.
Sufficiency of the Evidence Issue:
2. The finder of fact erred in finding that there was sufficient
evidence to prove all requisite elements of Possession with Intent to Deliver
a Controlled Substance and Simple Possession beyond a reasonable doubt,
where the evidence presented was that of text messages whose sender was
unknowable and there was no other evidence that Appellant engaged in
possessing drugs for delivery or simply possessing drugs.
3. The Honorable Trial Court erred in denying Appellant’s post-trial
motion that the verdict was against the weight of the evidence where there
was no testimony regarding Appellant possessing drugs with intent to
deliver and only scant unreliable evidence so that the verdict shocked ones
4
sense of fairness and justice.
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
As the result of a search pursuant to a warrant of Defendant’s residence in North
5
Middleton Township, Cumberland County, Pennsylvania on March 25, 2009, Defendant
was charged with (1) unlawful possession of a controlled substance, marijuana, with
6
intent to deliver, (2) criminal conspiracy to possess with intent to deliver a controlled
78
substance, and (3) unlawful possession of a controlled substance, marijuana. A jury trial
was held on May 26, 2010 through May 27, 2010, with the undersigned judge presiding.
At trial, the Commonwealth called three witnesses: a North Middleton Township
police officer assigned to the Cumberland County Drug Task Force, Richard Grove; a
detective with the North Middleton Township Police Department assigned to the
Cumberland County Drug Task Force, Timothy Lively; and a forensic chemist employed
4
Concise Statement of Matters Complained of on Appeal, filed November 2, 2010.
5
Commonwealth’s Exhibit 3, admitted at Trial, May 26-27, 2010; See Notes of Testimony, 10-11, 15-16,
Trial, May 26-27, 2010 (hereinafter N.T. _____).
6
35 P.S. § 780-113(a)(30) and 18 Pa. C.S.A. §306.
7
18 Pa. C.S.A. §903(a)(1) to 35 P.S. §780-113(a)(30).
8
35 Pa. C.S.A. §780-113(a)(16) and 18 Pa. C.S.A. §306.
2
9
at the Cumberland County Forensic Laboratory, Kristen Clemens. Defendant did not
present any witnesses.
In the Commonwealth’s case-in-chief, North Middleton Township Police Officer
10
Richard Grove testified that he had obtained a search warrant on March 25, 2009, based
11
upon certain evidence recovered as a result of two “trash pulls,” which indicated the
12
presence of unlawful controlled substances at Defendant’s residence. Officer Grove
testified that he and another officer had performed the first trash pull on March 14,
1314
2009, and a second trash pull on March 24, 2009. Officer Grove testified that, as a
result of the second trash pull, he had found baggies containing cocaine residue and
15
marijuana residue. Officer Grove testified that, based upon the evidence recovered from
16
the trash pull, Detective Lively applied for a search warrant for the residence.
Officer Grove testified that the warrant was served in the early evening of March
17
25, 2009. Officer Grove testified that, pursuant to the search, the officers found certain
evidence indicating that at least one occupant of the residence was involved in drug
18
distribution. Officer Grove testified that, in a drawer of a dresser located in the master
19
bedroom, the officers found two baggies containing what appeared to be marijuana,
9
Kristen Clemens was qualified as an expert in forensic chemistry. N.T. 121.
10
N.T. 10, 15-16; Com.’s Ex. 3.
11
As explained by Officer Grove, a “trash pull” is a procedure whereby the officers inspect a suspect’s
trash to corroborate suspicion that illegal drug activity may be occurring at a residence.
12
N.T. 14-15.
13
N.T. 11-12.
14
N.T. 14-15.
15
N.T. 15.
16
N.T. 15.
17
N.T. 17-19.
18
See N.T. 19-21, 26.
19
Com.’s Ex. 17, 18. According to the results of a forensic chemical analysis, one of the bags of
marijuana seized from the drawer, Com.’s Ex. 17, contained 9.90 grams of marijuana. The second bag,
Com.’s Ex. 18, contained 11.57 grams of marijuana. Com.’s Ex. 33.
3
20
alongside approximately $700.00 in cash. Officer Grove testified that, on top of a
212223
dresser was a closed shoebox, which contained, among other things, a “bong,”
24
which the officer testified “appear[ed] and smell[ed] like it [had] been used.” Officer
2526
Grove testified that the box also contained two pipes, a grinder, an open package of
272829
“Philly Blunts,” sandwich bags, smaller zip-lock bags, and what appeared to be to be
30
the “end portion of a joint.”
Officer Grove testified that, upon a search of the basement, the officers found a
31
small bag of marijuana inside a freezer, and a small woven “Longeberger-type basket”
32
that contained a marijuana bud.
On cross-examination, Officer Grove testified that Defendant was not the original
target of the search warrant, because information obtained from a confidential
20
N.T. 20-22.
21
N.T. 30, 37.
22
N.T. 24; Com.’s Ex. 5.
23
N.T. 24; Com.’s Ex. 6.
24
N.T. 25.
25
N.T. 26; Com.’s Ex. 7, 8. The officer testified that both items, identified as Commonwealth’s Exhibit 6
and 7, smelled like burnt marijuana, which indicated to him that the devices had been used to smoke
marijuana.
26
N.T. 27; Com.’s Ex. 9. Officer Grove explained that a grinder is used to separate the seeds and stems
from the leaves of marijuana.
27
N.T. 27-28; Com.’s Ex. 10. Officer Grove testified that, “it is common that people cut [the Philly
blunts] open and dump the tobacco out of them and then put the marijuana back in and smoke it.” N.T.
27.
28
N.T. 28; Com.’s Ex. 11. The officer testified that, based upon his experience on the drug task force,
“[n]ormally drug dealers keep them close by their marijuana so it makes them easier for [the drug dealers]
to sort out the marijuana when people will come buy it.” N.T. 28.
29
N.T. 29. The officer testified that zip-lock bags were each approximately one inch-by-one inch.
30
N.T. 29. Officer Grove testified that the end portion of the joint appeared to be the same color as the
wrapped cigars found within the open package of “Philly blunts” (Com.’s Ex. 10) contained in the shoe
box (Com.’s Ex. 1).
31
N.T. 31; Com. Ex. 14.
32
N.T. 32, 34; Com. Ex. 15.
4
3334
informant indicated that another individual, Defendant’s brother, was dealing cocaine
3536
out of his car and staying with Defendant. Officer Grove testified that it was his
opinion, based upon his experience and skill, that the individuals in the residence had
used marijuana, but that Defendant intended that the larger packages of marijuana found
37
in the master bedroom be for delivery rather than personal use. On redirect
examination, Officer Grove explained the basis for his opinion, and testified that
“typically people who use marijuana don’t buy it in two individual sub-baggies. They
normally . . . [keep it] separate from a large amount of money, and usually marijuana
38
users don’t have large amounts of cash hanging around.”
Detective Timothy Lively testified that, pursuant to the search warrant, he had
39
searched certain rooms in the residence. He testified that, on top of the refrigerator in
40
the kitchen, he had found a marijuana pipe, and an electronic scale that was saturated
41
with marijuana residue. Detective Lively also testified that he searched for cellular
phones, because, based on his experience and training, cellular phones are used to
42
communicate between drug dealers and users. Detective Lively testified that, as a result
of the search, he seized two cellular phones that were in the proximity of the Defendant
43
as evidence of drug trafficking. Detective Lively further testified that he obtained a
33
N.T. 39.
34
N.T. 39, 44, 51.
35
N.T. 40. The Officer testified on cross examination that the Confidential Informant indicated that the
Defendant’s brother said that he had flushed the cocaine down the toilet just before the police entered.
N.T. 43.
36
N.T. 39-40.
37
N.T. 48-49.
38
N.T. 52-53.
39
N.T. 69.
40
N.T. 70; Com.s Ex. 26. According to the detective, the marijuana pipe found on top of the refrigerator
contained burnt marijuana.
41
N.T. 69-70.
42
N.T. 71.
43
N.T. 72; Com.’s Ex. 27, 28, 29.
5
44
search warrant in order to look inside the cell phones to see what information the
45
devices contained related to drug trafficking.
46
Detective Lively testified that, when he seized a certain cell phone that he found
47
on the kitchen table, Defendant made several inquiries about “why her cell phone was
48
being taken.” The detective further testified that, as a result of the search on the phone
49
conducted pursuant to a second search warrant, he read both incoming and outgoing
50
text messages stored in the cell phone, and created a list of text messages which he
51
considered to be drug-related. Detective Lively testified that, although the text
52
messages were contained in the cell phone that Defendant had claimed to be hers, he
was unable to conclusively determine whether Defendant herself had typed all of the
53
outgoing text messages.
The following are certain messages that Detective Lively read at trial that he had
54
extracted from the phone Defendant referred to as belonging to her during the search,
and which he recognized as being drug related based on his experience and training:
55
Date Time From To Message
56
3/15/2009 12:04 Pam I got a nice gram of that gd Julie to get rid of
[Com. Ex. 28]
44
Com.’s Ex. 30.
45
N.T. 72-73.
46
Com.’s Ex. 28.
47
Com.’s Ex. 27.
48
N.T. 80-81.
49
Com.’s Ex. 30.
50
N.T. 81.
51
N.T. 82; Com.’s Ex. 31. The detective testified that the phone contained both drug-related and non-drug
related text messages, but that the text messages he extracted were deemed drug related based upon his
training and experience.
52
N.T. 92; Com.’s Ex. 28.
53
N.T. 83.
54
Com.’s Ex. 28.
55
At trial, Defendant objected to the detective testifying that the message was sent “from Amy Koch”
because, while it was uncontested that the messages were sent from this phone, the defense contended that
someone other than the Defendant was the author of the messages.
6
dude didn't have enuff cash so I had 2 throw
57
in but I can’t keep it 8og.
According to Detective Lively’s testimony, “Julie” is a reference to cocaine, and
“throwing in” likely meant that the author of the text message had to put his or her own
58
money in to purchase the drugs and needed to get rid of the drugs.
Date Time Message From To Message
59
3/17/2009 11:30 [Com. Ex. 28] Matt Can I get that other o from u
Detective Lively testified that, in “drug lingo,” an “O” typically refers to an ounce of
60
drugs.
Date Time Message From To Message
3/18/2009 13:41 [Com. Ex. 28] Tiff Sorry I didn't wait I wanted 2 smoke but call
61
me then if u r cuming out.
Date Time Message From To Message
3/20/2009 21:41 [Com. Ex. 28] Pam Not lookn good on my end can u get a g 4
62
me
Detective Lively testified that “G” means a gram, which, along with ounces, is a unit of
63
measure by which marijuana is sold and delivered.
Date Time Message From To Message
3/20/2009 23:43 [Com. Ex. 28] Pam no go 2 nite he only could split a ball w me
56
To be clear, Com.’s Ex. 28 is the specific cell phone that Detective Lively had recovered from the
kitchen table within Defendant’s residence, and the same phone which Detective Lively testified
Defendant had indicated belonged to her. See N.T. 92. As indicated in note accompanying text, supra, at
n. 54, due to an objection by defense counsel at trial, the Commonwealth refrained from referring to the
message “from Amy Koch” (as expressed in Com.’s Ex. 31), and instead referred to the sender as “the
phone.”
57
Com.’s Ex. 31.
58
N.T. 85.
59
Com.’s Ex. 31.
60
N.T. 86.
61
N.T. 86.
62
Com.’s Ex. 31.
63
N.T. 86.
7
64
but I got a new hook up and its cheap
Detective Lively explained that “this[,] to me[,] is talking about somebody [who] is
trying to get an 8-ball of cocaine, which is 3.33 grams of cocaine, which is to be about
65
the size of the 8- of an 8-ball. That is why they call it an 8-ball.”
Date Time Message From To Message
66
3/20/2009 23:50 [Com. Ex. 28] Brian Call me I nd trees
67
According to Detective Lively’s testimony, the term “trees” means marijuana.
Date Time Message From To Message
3/21/2009 0:21 [Com. Ex. 28] Pam If do happen to cum across any 2 nite let me
68
know this is not that gr8
69
The detective explained that the message meant that “whatever she has isn’t that great.”
At trial, Detective Lively also read certain incoming text messages which
indicated that Defendant was involved in drug transactions:
Date Time From To Message
3/18/2009 10:30 Tam [Com. Ex. 28] was wondering if u could hook me up then
70
after work
Detective Lively testified that the sender’s request to “hook me up . . . after work”
represented an inquiry as to whether the recipient could get the sender some drugs later
71
on in the day.
Date Time From To Message
72
3/18/2009 10:35 Tam [Com. Ex. 28] cool I neED a half r u gonna text me then
64
Com.’s Ex. 31.
65
N.T. 87.
66
Com.’s Ex. 31.
67
N.T. 87.
68
Com.’s Ex. 31.
69
N.T. 87.
70
Com.’s Ex. 31.
71
N.T. 88.
72
Com.’s Ex. 31.
8
At trial, Detective Lively explained that a “half” refers to a half ounce, which is one of
73
the units of measure by which drugs, specifically marijuana, are sold.
Date Time From To Message
74
3/18/2009 14:16 Tam [Com. Ex. 28] cool when did u want me to come out
At trial, Detective Lively testified that this message likely reflected the sender’s inquiry
75
as to what time he or she should meet up with the recipient to pick up the drugs.
Detective Lively further testified that the time stamp and content connected to
certain text messages was indicative of a drug transaction, specifically to the sender and
76
recipient agreeing upon a price for drugs. The detective testified that the following
incoming messages indicated just that type of exchange:
Date Time From To Message
3/21/2009 21:59 Pam [Com. Ex. 28] let me know asap
3/21/2009 22:16 Pam [Com. Ex. 28] sweet how much?
3/21/2009 22:19 Pam [Com. Ex. 28] K
3/21/2009 23:04 Pam [Com. Ex. 28] well?
77
3/21/2009 23:05 Pam [Com. Ex. 28] k
At trial, Detective Lively further explained that a certain exchange indicated a
completed drug transaction:
Date Time From To Message
3/21/2009 23:38 Pam [Com. Ex. 28] hey u
3/21/2009 23:44 Pam [Com. Ex. 28] can u part with any?
78
3/21/2009 23:46 Pam [Com. Ex. 28] tks tree looks good
Detective Lively testified that this exchange represented the sender’s asking if the
recipient had any drugs on hand that he or she could part with, and that the last message
79
specifically indicated that the transaction did occur.
73
N.T. 88.
74
Com.’s Ex. 31.
75
N.T. 88.
76
N.T. 88-89.
77
Com.’s Ex. 31.
78
Com.’s Ex. 31.
9
Detective Lively testified that, based upon his experience and training, many of
80
the items found at Defendant’s residence were indicative of drug dealing. Detective
Lively testified that
things that indicate possession with intent to deliver are more than one bag
of marijuana, scales . . . that have a lot of residue on them because a person
who is selling it is going to take the raw marijuana, put it on the scale, and
every time they put it on the scale, little bits of it will be left on [the scale].
The scale that we seized is saturated with [marijuana residue]. . . . You
would need baggies. More often than not you buy drugs, marijuana in
81
particular, in sandwich bags.
When asked about the relation of the cash and the location of the drugs that the officers
found at the residence, Detective Lively testified that the two similar, large bags of
82
marijuana with the cash beside the drugs were indicative of drug dealing.
On cross-examination, Detective Lively testified that, on at least one occasion, it
appeared that a person other than Defendant used the phone containing the drug-related
83
text messages. Detective Lively further testified that he did not send the phone for
84
fingerprint analysis, because Defendant indicated that she was the owner of the phone.
The detective further testified that the target of the search warrant was Defendant’s
brother, and that he had already pled to possession of paraphernalia in connection with
85
this matter. Detective Lively also testified that he had not contacted the phone numbers
86
connected to the drug-related text messages.
79
N.T. 89; see also N.T. 87.
80
N.T. 95.
81
N.T. 95.
82
N.T. 99-100; Com.’s Ex. 12.
83
N.T. 104. According to Commonwealth’s Exhibit 31, an outgoing text read, in pertinent part, “Let me
know the total, and I’ll give [Defendant] money for you.” N.T. 104.
84
N.T. 104-05.
85
N.T. 110-11.
86
N.T. 105-06, 114.
10
Kristen Clemens, a forensic chemist at the Cumberland County Forensic
Laboratory, testified that she received certain evidence obtained from the search of
87
Defendant’s residence that the officers suspected to be marijuana. Based on her
analysis, Ms. Clemens was able to testify that each item suspected to be marijuana and
88
submitted to her contained T.H.C., which is the active ingredient in marijuana.
89
Defendant did not present any witnesses or exhibits.
After deliberations, the jury found Defendant guilty at Count 1 of unlawful
90
possession of a controlled substance, marijuana, with intent to deliver, an upgraded
felony, not guilty at Count 2 of criminal conspiracy to possess with intent to deliver a
91
controlled substance, and guilty at Count 3 of unlawful possession of a controlled
92
substance, marijuana, an ungraded misdemeanor.
Defendant filed a post-verdict motion pursuant to Pennsylvania Rule of Criminal
93
Procedure 607 that challenged, inter alia, the weight of the evidence. The court ordered
9495
briefs to be filed, held argument on July 6, 2010, and ultimately denied the motion.
The court sentenced Defendant at Count 1 to undergo a period of supervised
96
probation for 23 months. Defendant filed a post-sentence motion that challenged the
sufficiency of the evidence, alleging, inter alia, that the text messages were circumstantial
87
N.T. 118-20.
88
N.T. 120; Com.’s Ex. 33.
89
N.T. 123-25.
90
35 P.S. § 780-113(a)(30) and 18 Pa. C.S.A. §306.
91
18 Pa. C.S.A. §903(a)(1) to 35 P.S. §780-113(a)(30).
92
35 Pa. C.S.A. §780-113(a)(16) and 18 Pa. C.S.A. §306.
93
Post-Trial Motion Pursuant to Pa.R.Crim.P. 607, filed June 4, 2009.
94
See Order of Court, In Re: Defendant’s Post-Trial Motion Pursuant to Pa. R.Crim.P. 607, June 9, 2010.
95
Order of Court, In Re: Defendant’s Post-Trial Motion Pursuant to Pa. R.Crim.P. 607, July 7, 2010.
96
Order of Court, In Re; Sentencing, July 20, 2010. The sentence at Count 3 merged for sentencing
purposes with the sentence imposed at Count 1
11
97
evidence and inherently unreliable. The court ordered briefs to be filed, held argument
98
on September 8, 2010, and subsequently denied the motion.
Defendant now appeals to the Pennsylvania Superior Court from the judgment of
sentence.
DISCUSSION
Admissibility of Text Messages. Defendant argues that the text messages retrieved
from the phone which Defendant indicated belonged to her should not have been
admitted because it was not proven that Defendant was their author.
The admission of evidence is a matter within the sound discretion of the trial
court. See Commonwealth v. McCrae, 574 Pa. 594, 832 A.2d 1026 (2003). Pennsylvania
Rule of Evidence 901(a) provides that authentication is a condition precedent to
admissibility. Testimony of a witness with personal knowledge that a matter is what it is
claimed to be may be sufficient to authenticate or identify the evidence. See Pa. R.E.
901(b)(1). A writing may be authenticated by direct proof and/or by circumstantial
evidence. Pa. R.E. 901(a); see Commonwealth v. Brooks, 352 Pa. Super 394, 398-99, 508
A.2d 316, 318-19 (1986). Proof of “any circumstance which will support a finding that
the writing is genuine will suffice to authenticate the writing.” Id. at 399, 508 A.2d at 319
(citations omitted). While a court makes the preliminary determination of whether the
proponent of evidence has made a prima facie showing of evidence of genuineness
sufficient to warrant submission to fact finders, it is the jury itself that considers the
evidence and weighs it against that offered by the opposing party. See id. at 401, 508
A.2d at 320 (citations omitted).
With regard to the authentication of electronic writings, such as text messages,
little case law exists in the Commonwealth of Pennsylvania. In In re F.P., 2005 PA Super
220, 878 A.2d 91, the Superior Court noted that it saw no justification for constructing
unique rules for admissibility for electronic communications, and that text, emails, and
97
Defendant’s Post-Sentence Motion, filed July 29, 2010.
98
Order of Court, In Re: Post-Sentence Motion of Defendant, September 9, 2010.
12
other electronic messages “can be properly authenticated” under existing rules of law. In
re F.P., 2005 PA Super, at ¶14, 878 A.2d at 95-96 (holding circumstantial evidence was
sufficient to authenticate instant messages).
In the case sub judice, the court believed that sufficient circumstantial evidence
was presented at trial to indicate the authenticity of the drug-related text messages. The
cellular phone was found on the kitchen table within Defendant’s residence, and in close
proximity to Defendant. Detective Lively testified that, when he first seized the AT&T
phone, Defendant made a statement indicating that she was the owner of the phone.
Pursuant to the search warrant obtained with respect to the contents of the cell phone, the
officer compiled a list of text messages contained on the AT&T cell phone. Although
defense counsel cross-examined Detective Lively on the issue of ownership, there was
sufficient circumstantial evidence to authenticate the cellular phone as belonging to
Defendant, and sufficient authenticity of the messages contained therein. The possibility
that a person other than Defendant was the author of the drug-related text messages went,
in the court’s view, to the weight of the evidence rather than admissibility of the
messages.
Defendant further contends that the text messages read into evidence by Detective
99
Lively constituted impermissible hearsay. Of course, hearsay is generally not
admissible under the Pennsylvania Rules of Evidence. Pa. R.E. 802. Hearsay is a
statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted. Pa. R.E. 801(c). However,
where an out-of-court statement is not admitted for the purpose of proving the truth of
what was said, the hearsay rule does not bar admission of that statement. See American
Future Systems, Inc. v. Better Business Bureau, 2005 PA Super 103, ¶27, 872 A.2d 1202,
1213, citing Bachman v. Artinger, 285 Pa. Super 57, 426 A.2d 702, 705 (1981)
(testimony as to an out-of-court written statement is not hearsay if offered to prove that
the statement was made, not that the content of the statement was true).
99
Concise Statement of Matters Complained of on Appeal, filed November 2, 2010.
13
100
The purpose for which the alleged hearsay statements were offered in the instant
case was not to prove the truth of the matter asserted therein—e.g., that the “tree look[ed]
good.” Rather, the statement was introduced to show that it was, in fact, made by another
individual to the user of the phone. In short, the statement was presented to demonstrate
an operative fact evidencing a crime, specifically, verbal activity involving the
distribution or intent to distribute drugs. As such, the statements were not hearsay and
were, therefore, properly admitted.
Sufficiency of the Evidence. On a challenge to the sufficiency of the evidence in a
criminal case, the proper test is, “whether, viewing the evidence in the light most
favorable to the Commonwealth as verdict winner and drawing all proper inferences
favorable to the Commonwealth, the trier of fact could have determined all the elements
of the crime have been established beyond a reasonable doubt.” Commonwealth v. Little,
2005 PA Super 251, ¶¶7-8, 879 A.2d 293, 296-97, appeal denied 586 Pa. 724, 890 A.2d
1057 (2005); Commonwealth v. O’Bryon, 2003 PA Super 139, ¶7, 820 A.2d 1287, 1290,
quoting Commonwealth v. Hagan, 539 Pa. 609, 613, 654 A.2d 541, 543 (1995);
Commonwealth v. Rakowski, 2010 PA Super 3, ¶3, 987 A.2d 1215, 1217. A guilty verdict
is proper if the evidence presented at trial is sufficient to allow the “fact finder to find
every element of the crime charged beyond a reasonable doubt.” Commonwealth v.
Coleman, 2009 PA Super 229, ¶6, 984 A.2d 998, 1000. The standard is equally
applicable to cases where the evidence is circumstantial rather than direct, so long as the
combination of the evidence links the accused to the crime beyond a reasonable doubt.
Commonwealth v. Swerdlow, 431 Pa. Super. 453, 458, 636 A.2d 1173, 1176 (1994).
A challenge to the sufficiency of the evidence does not implicate a weighing of the
evidence. Commonwealth v. Patterson, 2007 PA Super 404, ¶24, 940 A.2d 493, 500,
citing Commonwealth v. Emler, 2006 PA Super 187, ¶7, 903 A.2d 1273, 1276-77. The
trier of fact, while passing upon the credibility of witnesses and the weight to be afforded
to the evidence produced, is “free to believe all, part or none of the evidence.”
100
As previously stated, the alleged hearsay statements were those in the form of text messages sent from
and received by the cellular phone purportedly owned by Defendant.
14
Commonwealth v. Smith, 604 Pa. 126, 145, 985 A.2d 886, 897 (2009); Commonwealth v.
Gibbs, 2009 PA Super 181, ¶11, 981 A.2d 274, 281. Additionally, facts and
circumstances established by the Commonwealth need not preclude every possibility of a
defendant’s innocence. Commonwealth v. Jones, 2008 PA Super 160, ¶3, 954 A.2d 1194,
1196. Unless the evidence presented at trial is “so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from the combined circumstances,” the jury’s
verdict should not be disturbed. Commonwealth v. Davis, 2002 PA Super 167, ¶14, 799
A.2d 860, 866.
When reviewing a challenge to the sufficiency of the evidence with
regards to a Possession with Intent to Deliver conviction, “[t]he
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.
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, 2008 PA Super 205, ¶8, 956 A.2d 1024, 128 citing
Commonwealth v. Brown, 2006 PA Super 177, ¶20, 904 A.2d 925, 931-932 (citations
omitted), appeal denied, 591 Pa. 710, 919 A.2d 954 (2007).
With respect to the charge at Count I, Possession with Intent to Deliver Marijuana,
Section 780-113 of the Controlled Substance, Drug, Device and Cosmetic Act, makes it
unlawful for an individual to intentionally possess with the intent to deliver a controlled
substance. See 35 P.S. §780-113(a)(30). To secure a conviction of an individual for
possession of a controlled substance with the intent to deliver, the Commonwealth must
prove beyond a reasonable doubt that the defendant possessed a controlled substance and
did so with the intent to deliver it. Commonwealth v. Conaway, 2002 PA Super 9, ¶¶14,
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15, 791 A.2d 359, 362. All facts and circumstances surrounding possession are relevant
in making the determination of whether contraband was possessed with intent to deliver.
Commonwealth v. Jackson, 435 Pa. Super. 410, 413, 645 A.2d 1366, 1368 (1994).
Relevant factors in establishing intent, for the purpose of the offense of possession with
intent to deliver, include the quantity of drugs possessed, the manner of packaging, the
behavior of the defendant, the presence of large amounts of cash an the opinion of an
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experienced law enforcement officer. See Commonwealth v. Heater, 2006 PA Super
86, ¶¶11,12, 899 A.2d 1126, 1131-32.
As previously noted, Officer Grove first engaged in two trash pulls, the results of
which indicated the presence of controlled substances at Defendant’s residence. Upon
searching the residence, Officer Grove and Detective Lively found certain evidence,
including scales heavily saturated with marijuana residue, two bags containing large
quantities of marijuana, large sums of cash, and empty sandwich bags, all which the
officers testified were indicative of possession with intent to distribute. Furthermore, the
drug-related text messages contained within the cell phone, of which evidence was
presented to establish Defendant’s ownership, indicated that Defendant was a source of
drug distribution.
The officers also found drug-related paraphernalia and separate smaller amounts
of marijuana, which they testified could indicate personal use. The fact that paraphernalia
and separate marijuana was located, which might have indicated personal use, does not
negate the fact that the officers found large quantities of marijuana and other evidence
indicative of distribution.
The absence of direct evidence demonstrating that Defendant sold or delivered
marijuana does not preclude a finding that she possessed the marijuana with intent to
distribute, when the Commonwealth otherwise presented sufficient evidence to establish
every element of possession with intent to deliver. This court cannot disregard the
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Case law instructs that the opinion of an expert in drug-related transactions is a relevant factor in
determining intent. See, e.g., Commonwealth v. Heater, 2006 PA Super 86, ¶12, 899 A.2d 1126, 1131. In
this case, Detective Lively testified that he had had significant on-the-job training and experience, and
had been with the Cumberland County Drug Task Force for over seven years. N.T. 59-61; see N.T. 94-97.
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opinion of Detective Lively, a seasoned officer with the Cumberland County Drug Task
Force, that the form and quantity of the marijuana, method of packaging, and amount of
cash found all within Defendant’s bedroom was indicative of distribution.
Weight of the Evidence. Defendant’s third argument is grounded in this court’s
refusal to grant her post-sentence motion requesting a new trial based on a challenge to
the weight of the evidence. The grant of a new trial on the ground that the verdict is
against the weight of the evidence is “generally committed to the sound discretion of the
trial court.” Commonwealth v. Larew, 289 Pa. Super 34, 37, 432 A.2d 1037, 1038 (1981).
To warrant a new trial, “it must appear that the jury’s verdict was so contrary to the
evidence as to shock one’s sense of justice and to make the award of a new trial
imperative, so that right may be given another opportunity to prevail.” Commonwealth v.
Barnhart, 290 Pa. Super. 182, 185, 434 A.2d 191, 192 (1981).
The evidence presented at trial established that Defendant was in possession of
marijuana and certain other items found in her bedroom and kitchen, all of which
Detective Lively testified were indicative of distribution of an unlawful controlled
substance. The detective presented testimony that tied Defendant to the cell phone, which
contained messages indicative of drug distribution. While there was a lack of eyewitness
testimony that Defendant had possessed the controlled substances with intent to
distribute, the Commonwealth presented substantial evidence which tended to show that
Defendant took an active role in the illicit enterprise. Furthermore, Defendant presented
no evidence against which to “weigh” the Commonwealth’s evidence in this regard. The
court was thus unable to agree with Defendant’s position that the verdict was shocking to
one’s sense of justice.
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For the foregoing reasons, it is believed the judgment of sentence was properly
entered.
BY THE COURT,
__________________
J. Wesley Oler, Jr., J.
Matthew P. Smith, Esq.
Chief Deputy District Attorney
Michael O. Palermo, Jr., Esq.
Attorney for Defendant
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