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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ALPESHKUMAR PATEL, :
: No. 561 MDA 2014
Appellant : No. 562 MDA 2014
Appeal from the Judgment of Sentence Entered February 27, 2014,
In the Court of Common Pleas of Berks County,
Criminal Division, at Nos. CP-06-CR-0005270-2012
and CP-06-CR-0005274-2012.
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 25, 2014
Appellant, Alpeshkumar Patel, appeals from the judgment of sentence
entered on February 27, 2014, in the Berks County Court of Common Pleas.
We affirm.
In its Pa.R.A.P. 1925(a) opinion, the trial court set forth the relevant
facts of this matter as follows:
Detective Douglas Weaver, at that time operating in an
undercover capacity, was assigned to assist Detective Joseph
Walsh with an investigation into possible drug sales occurring at
E-Z Shoppe, a convenience store located at 44 East Lancaster
Avenue in the Borough of Shillington. NOTES OF TESTIMONY
(N.T.) DEC. 30, 2013 at 29-30. On September 28, 2012,
Detective Weaver entered the store and approached the counter.
Id. at 30. Appellant and Nilesh Patel, a coworker of Appellant,
were behind the counter at that time. Id. Detective Weaver
testified that he engaged in a transaction for Giggle, a
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counterfeit controlled substance commonly advertised as a
scented potpourri:
A: I asked [Appellant] if I could have two Giggle.
And he looked to his left at the other Indian male
that was seated on a chair behind the counter. And
the male that was seated nodded his head up and
down.
And at that point [Appellant] reached underneath the
counter, opened up a gray plastic bag, and removed
from that bag a two gram envelope containing two
grams of Giggle and placed it on the counter.
Id. at 31, 33. There was also some verbal communication
between the store’s employees during this initial transaction:
Q: And you described an interaction between the
defendant, Mr. Patel, and another Indian male.
W[ere] there any words said in that interaction?
A: The interaction between the two, the defendant
said something that I didn’t understand clearly to the
other individual who was seated there. And the other
individual responded in a language that was English
that I could understand.
Q: Okay. And what did that individual say?
A: He said it was all right.
Id. at 32. After Appellant placed the Giggle on the counter,
Detective Weaver requested another counterfeit controlled
substance called Cloud 9:
Q: And after [Appellant] had placed the Giggle on
the counter, what happened next?
A: I asked him if I could have a ten of Cloud 9.
Q: And what happened when you asked that
question?
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A: Once again he looked at the second Indian male
that was seated and made eye contact with him. And
the second Indian male shook his head up and down
and said okay. He then went to the same location,
got the same bag, opened it up and put a ten gram
envelope or packet of Cloud 9 on the counter.
Id. at 33-34. Detective Weaver paid a total of $84.80—$20 for
the Giggle and $60 for the Cloud 9, plus tax. Id. at 35. After the
transaction, but while the envelopes of Giggle and Cloud 9 were
still sitting on the counter, another patron entered the store and
walked towards the counter. Id. at 36-37. Detective Weaver
testified that Nilesh Patel “told me to put them in my pocket
because someone was coming in.” Id. at 37. Detective Weaver
conducted two or three additional purchases of synthetic
marijuana in the subsequent week or so. Id. at 38. During each
of these additional transactions, Appellant was the one to sell the
controlled substances, which were concealed behind the counter.
Id. at 38-39. No cash register was used and no receipt was
furnished. Id. at 39.
Detective Walsh and several other officers executed a
search warrant of the store on October 11, 2012. Id. at 53-54.
The officers seized eleven items, including a black plastic bag
(containing a white plastic bag containing four bags of Cloud 9),
United States currency, clear plastic baggies, a scale, and
several glass pipes. Id. at 57-58. The glass pipes would have
been in plain view to customers; the packing materials, scales,
and Cloud 9 were behind the counter in drawers. Id. at 61.
The Commonwealth also presented testimony from
Detective Anthony DeFazio, an expert in the field of narcotics
investigation, who concluded that Appellant possessed the
counterfeit controlled substances with the intent to deliver. Id. at
79. Detective DeFazio testified that his conclusion was based on
the storage of the contraband, the scales, the buy money, the
packaging material, the glass pipes, and the concealment of the
contraband within the store. Id. at 80-82.
Trial Court Opinion, 6/24/14, at 2-3 (footnotes omitted).
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On December 23, 2013, following a jury trial, Appellant was found
guilty of delivery of a controlled substance, possession with intent to deliver
a controlled substance (“PWID”), conspiracy to commit PWID, possession of
a controlled substance, and conspiracy to commit possession of a controlled
substance.1 On February 27, 2014, the trial court sentenced Appellant to an
aggregate term of two to four years of incarceration. Appellant filed a timely
appeal.
On appeal, Appellant raises one issue for our consideration:
Whether there was insufficient evidence to support the jury’s
verdict as the Commonwealth failed to establish Appellant
knowingly possessed synthetic marijuana where Appellant
believed the item to be tobacco?
Appellant’s Brief at 8.
When examining a challenge to the sufficiency of the evidence:
The standard we apply . . . 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 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
1
The synthetic marijuana was chemically tested, and those tests revealed it
contained the following Schedule I controlled substances: JWH 018 (35 P.S.
§ 780-104(1)(vii)(2)(B)); JWH 210 (35 P.S. § 780-104(1)(vii)(2)(H)); JWH
250 (35 P.S. § 780-104(1)(vii)(6)(B)); and XLR-11 (35 P.S. § 780-
104(1)(vii)(12)). N.T., Trial, 12/30/13, at 148 (Commonwealth’s Exhibit 6).
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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. Orr, 38 A.3d 868, 873 (Pa. Super. 2011) (quoting
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011)).
As noted above, Appellant was convicted of delivery of a controlled
substance, PWID, conspiracy to commit PWID, possession of a controlled
substance, and conspiracy to commit possession of a controlled substance.
The Crimes Code definitions of these offenses are set forth below:
Possession of a controlled substance:
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.
35 P.S. § 780-113 (a)(16).
PWID:
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.
35 P.S. § 780-113 (a)(30).
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Conspiracy:
Definition of conspiracy.--A person is guilty of conspiracy with
another person or persons to commit a crime if with the intent of
promoting or facilitating its commission he:
(1) agrees with such other person or persons that
they or one or more of them will engage in conduct
which constitutes such crime or an attempt or
solicitation to commit such crime[.]
18 Pa.C.S. 903 (a)(1).2 Appellant’s narrow argument is that he did not know
he possessed, or conspired to possess, synthetic marijuana. Appellant’s
Brief at 10. Thus, he claims that the Commonwealth failed to establish the
necessary mens rea. We disagree.
The trial court cogently addressed Appellant’s challenge as follows:
The Commonwealth introduced ample evidence to
establish that Appellant knowingly possessed synthetic
marijuana. When an undercover officer requested Giggle, a
synthetic marijuana product, Appellant looked to a coworker,
Nilesh Patel, for permission. Appellant again sought the
coworker’s permission when the undercover officer requested
Cloud 9, another synthetic marijuana product. The synthetic
marijuana was significantly more expensive than ordinary
tobacco. Additionally, the undercover officer was told to put the
products in his pocket when another customer began
approaching the counter. During this and subsequent controlled
buys by the undercover officer, no cash register was used and no
receipt was furnished. The synthetic marijuana was always
hidden from view behind the counter and within plastic bags.
Execution of a search warrant also revealed clear plastic baggies,
a scale, and several glass pipes. Finally, an expert witness in the
2
Clearly, criminal conspiracy alone is not a possessory offense. Our focus
here is on the objects of the conspiracy, which in the case at bar, are the
aforementioned underlying crimes of possession and PWID.
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field of narcotics investigations concluded that Appellant
possessed the synthetic marijuana with the intent to sell.
In light of this testimony, the Commonwealth clearly
presented sufficient evidence for a reasonable jury to conclude
that Appellant knowingly possessed synthetic marijuana. As
discussed supra, courts must substantially defer to the jury as
fact-finder. We are not entitled to reconsider the evidence or
determine whether the pertinent witnesses were credible.
Accordingly, Appellant’s sufficiency of the evidence claim lacks
merit.
Trial Court Opinion, 6/24/14, at 5 (footnote omitted).
Examining the evidence in its totality and in a light favorable to the
Commonwealth, we agree with the trial court that the evidence was
sufficient for the jury to reasonably find that Appellant was well aware of the
illicit nature of the synthetic marijuana. Accordingly, Appellant’s sufficiency
of the evidence argument is meritless.
For the reasons set forth above, we conclude that Appellant is entitled
to no relief. Therefore, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2014
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