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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MILTON ACEVEDO
Appellant No. 1437 EDA 2013
Appeal from the Judgment of Sentence April 12, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008547-2011
BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 07, 2014
Appellant, Milton Acevedo, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
bench trial convictions for possession of a controlled substance and
1
We
affirm.
The relevant facts and procedural history of this appeal are as follows.
On June 1, 2011, Officers Rosa and Czapor were on patrol when they
observed Appellant sitting on a bicycle on the 100 block of West Somerset
Street. Two men approached Appellant, engaged him in a brief
____________________________________________
1
35 P.S. § 780-113(a)(16), (30).
_____________________________________________
*Former Justice specially assigned to the Superior Court.
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conversation, and handed U.S. currency to Appellant. In exchange,
Appellant handed small objects to the men. Back-up officers stopped the
buyers and recovered identical packets of heroin from each individual.
Officers Rosa and Czapor subsequently approached Appellant, who
attempted to ride off on his bicycle. The officers caught up with Appellant
and arrested him, but they did not recover additional contraband from his
person.
On August 10, 2011, the Commonwealth filed a criminal information
charging Appellant with PWID and possession of a controlled substance.
Following a bench trial, the court found Appellant guilty of both charges. On
April 12, 2013, the court sentenced Appellant to an aggregate term of two
and one-
-sentence motions.
Appellant timely filed a notice of appeal on May 10, 2013. On May 29,
2013, the court ordered Appellant to file a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant
Appellant raises one issue for our review:
WAS THE EVIDENCE INSUFFICIENT TO SUPPORT A
CONVICTION OF POSSESSION OF A CONTROLLED
SUBSTANCE AND POSSESSION WITH INTENT TO DELIVER
A CONTROLLED SUBSTANCE?
When examining a challenge to the sufficiency of the evidence, our
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standard of review is as follows:
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 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
-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. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.
Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).
Appellant contends the officers could not have identified what objects
he gave to the buyers. Although police recovered identical packets of heroin
from the buyers, Appellant suggests this fact alone does not prove that he
sold the heroin to them. Appellant emphasizes he did not possess any
contraband at the time of his arrest, and the amount of U.S. currency
recovered from his person was inconsistent with the amount typically carried
by drug dealers. Appellant also claims he did not flee the scene; rather, he
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merely rode his bicycle away from the officers, who did not identify
themselves as police. Additionally, Appellant complains that the
Commonwealth failed to produce property receipts to document the
narcotics recovered from the buyers, as well as the date and time when the
back-up officers recovered the contraband. Based upon the foregoing,
Appellant concludes the Commonwealth presented insufficient evidence to
support his convictions. We disagree.
The offenses of possession of a controlled substance and PWID are
defined by statute as follows:
§ 780-113. Prohibited acts; penalties
(a) The following acts and the causing thereof within
the Commonwealth are hereby prohibited:
* * *
(16) Knowingly or intentionally possessing a
controlled or counterfeit substance by a person not
registered under this act, or a practitioner not
registered or licensed by the appropriate State board,
unless the substance was obtained directly from, or
pursuant to, a valid prescription order or order of a
practitioner, or except as otherwise authorized by this
act.
* * *
(30) Except as authorized by this act, the
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.
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35 P.S. § 780-113(a)(16), (30).
To establish the offense of PWID, the Commonwealth must prove
beyond a reasonable doubt that the defendant possessed a controlled
substance with the intent to deliver it. Jones, supra at 121.
The trier of fact may infer that the defendant intended to
deliver a controlled substance from an examination of the
facts and circumstances surrounding the case. Factors to
consider in determining whether the 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.
Id. (quoting Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa.Super.
2003), appeal denied, 577 Pa. 712, 847 A.2d 1280 (2004)).
facts and circumstances surrounding the possession are relevant and the
elements of the crime may be established
Commonwealth v. Little, 879 A.2d 293, 297 (Pa.Super. 2005), appeal
denied, 586 Pa. 724, 890 A.2d 1057 (2005).
Jones, supra at 121 (quoting Commonwealth v. Haskins, 677 A.2d 328,
330 (Pa.Super. 1996), appeal denied, 547 Pa. 751, 692 A.2d 563 (1997)).
Constructive possession is the ability to exercise conscious control or
Jones, supra at 121 (quoting Kirkland, supra at 610). The intent to
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exercise conscious dominion can be inferred from the totality of the
circumstances. Id.
Instantly, Officer Rosa testified that he and his partner were on patrol,
in plain-clothes, in an unmarked police vehicle, when they observed
Appellant sitting on his bicycle at approximately 9:00 p.m. Two men
approached Appellant, engaged him in a brief conversation, and handed over
the bundle, removed small objects from it, and handed the objects to the
buyers. (See N.T. Trial, 9/14/12, at 12.) The buyers departed from the
scene, and Officer Rosa radioed descriptions of both men to back-up officers.
The back-up officers stopped the buyers and recovered identical packets of
heroin from their persons. Specifically, each buyer possessed clear, heat-
sealed packets of heroin, with blue inserts, that were stamped with the
Id. at 13).
Meanwhile, Officers Rosa and Czapor circled the block, returned to the
area where Appellant was located, and exited their vehicle. As the officers
exited, Appellant attempted to flee on his bicycle. Appellant covered a
distance of ten feet before the officers apprehended him. The officers did
not recover any heroin from Appellant or in the immediate vicinity, but they
did find $108.00 in U.S. currency on his person.
When viewed in the light most favorable to the Commonwealth as
d ability to
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exercise conscious control or dominion over the contraband recovered from
the buyers. See Jones, supra
as his actions during the cash-for-object transactions, the amount of drugs,
their packaging,
possessed the drugs with intent to deliver. Id. See also Commonwealth
v. Bruce, 717 A.2d 1033 (Pa.Super. 1998), appeal denied, 568 Pa. 643, 794
A.2d 359 (1999) (stating flight is evidence of consciousness of guilt, which
may form basis, along with other proof, from which guilt may be inferred).
Based upon the foregoing
convictions. See 35 P.S. § 780-113(a)(16), (30). Accordingly, we affirm
the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2014
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