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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JERRON ROGERS,
Appellant No. 154 EDA 2014
Appeal from the Judgment of Sentence August 21, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013284-2012
BEFORE: BOWES, PANELLA, AND FITZGERALD * JJ.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 28, 2015
Jerron Rogers appeals from the judgment of sentence of three to six
years incarceration that was imposed by the trial court after it found
Appellant guilty of possession of a controlled substance with intent to deliver
(“PWID”) and conspiracy. We affirm.
The Commonwealth’s evidence in support of the convictions was as
follows. At approximately 9:00 p.m. on September 18, 2012, Philadelphia
Police Officer Melvin Floyd set up surveillance on the 2000 block of Dickinson
Street. He was in plain clothes and utilized an unmarked police vehicle. At
the time, Officer Floyd had been a member of the Narcotics Strike Force for
ten years and conducted thousands of drug surveillances. Some were in the
same area, which was known for high drug-trafficking.
*
Former Justice specially assigned to the Superior Court.
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Using binoculars from about seventy-five feet away, Officer Floyd
began to observe Appellant and his co-defendant David Floyd, who was not
related to the officer. Appellant and Floyd were leaning on a Buick and
conversing with each other. Five minutes after Officer Floyd initiated
surveillance, an unnamed man approached Appellant and Floyd, briefly
spoke with them, and handed money to Appellant. Floyd entered the Buick
for one to two minutes, exited the vehicle, and handed a small object to the
man, who immediately left the vicinity. Fifteen minutes later, Officer Floyd
saw a female, Denise Darden, approach Appellant and Floyd, and they
briefly spoke. Darden handed Appellant money while Floyd entered the
Buick for one or two minutes. Floyd then handed a small object to
Appellant, who gave it to Darden. Back up officers stopped Darden
immediately after the transaction, and she unsuccessfully attempted to
discard a yellow-tinted packet containing crack cocaine.
Officer Floyd concluded, based upon his experience and training, that
he had witnessed drug sales, and his belief was confirmed by the recovery of
drugs from Darden. He ordered the arrest of Appellant and Floyd, and the
latter was immediately apprehended and placed in a cruiser. Appellant,
however, escaped in the Buick. Floyd was not searched because police were
trying to locate Appellant. Officer Floyd soon discovered the Buick, which
was parked several blocks away. He waited nearby and watched the Buick.
About thirty to forty minutes after Floyd’s arrest, Appellant left a house close
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to the Buick and was arrested. While Officer Floyd was pursuing Appellant,
another police officer saw Floyd move his head toward the open window of
the cruiser. A baggie with sixteen yellow-tinted packets of crack cocaine
were located on the sidewalk near the police car. There was saliva on the
bag, indicating that Floyd had hidden it in his mouth. After a bench trial,
Appellant was convicted of PWID and conspiracy and acquitted of possession
of a controlled substance. This appeal followed imposition of judgment of
sentence. Appellant raises these averments, which we have reordered for
ease of disposition:
I. Whether the evidence presented at trial was insufficient to
sustain Appellant’s convictions?
II. Whether the acquittal on the charge of Knowing and
Intentional Possession is Inconsistent with the conviction on
Possession with Intent to Distribute?
III. Whether the trial court abused its discretion when it failed to
order a new trial because the verdict was against the weight of
the evidence?
Appellant’s brief at 4.
Initially, we observe:
In reviewing a challenge to the sufficiency of the evidence, we
must determine whether, viewing the evidence in the light most
favorable to the Commonwealth as verdict winner, together with
all reasonable inferences therefrom, the trier of fact could have
found that each and every element of the crimes charged was
established beyond a reasonable doubt.
Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa.Super. 2015).
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Appellant maintains that the evidence was insufficient to support his
PWID conviction1 since it failed to demonstrate that he delivered or intended
to deliver a controlled substance. Appellant’s brief at 12. We disagree. An
experienced narcotics police officer viewed what appeared to be two street
drug sales. During the first, an unknown male gave Appellant money, and
Floyd retrieved a small object, and gave it to the male. Then, Darden
approached Appellant and Floyd, Darden handed money to Appellant, Floyd
retrieved something from the car, Floyd handed a small packet to Appellant,
Appellant gave that item to Darden, and Darden was found in possession of
a small packet containing crack cocaine. That drug was in a yellow-tinted
bag. Sixteen yellow-tinted bags containing crack cocaine were found outside
the police car where Floyd was located. The evidence herein was sufficient
to support the factfinder’s determination that Appellant possessed a
controlled substance with intent to deliver. The reasonable inference from
the outlined facts is that Appellant sold Darden the crack cocaine in her
possession.
Appellant also seeks discharge on the PWID and conspiracy based on
the fact that the guilty verdict on these charges “was inconsistent with
Appellant’s acquittal on the charge of Knowing and Intentional Possession of
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1
Appellant challenges only his PWID conviction and not the one for
conspiracy. Appellant’s brief at 11.
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a Controlled Substance. Appellant could not have distributed a controlled
substance if he did not possess it.” Appellant’s brief at 13. It is established
in this Commonwealth that a factfinder is permitted to return inconsistent
verdicts. Commonwealth v. Moore, 103 A.3d 1240 (Pa. 2014). We are
not permitted to view an acquittal as a specific factual finding as to any issue
involved in the case. Id. Accordingly, an acquittal on one charge is not
grounds for finding the evidence insufficient as to the crimes for which the
defendant was convicted. Id. In light of this precedent, the fact that
Appellant was acquitted of possession of a controlled substance does not
warrant reversal of the PWID and conspiracy counts.
Appellant additionally seeks a new trial based on his position that the
verdict was against the weight of the evidence. He avers that the verdict
should shock one’s sense of justice since he was not found in possession of a
large amount of cash, the sixteen packets of crack were outside the car
containing his co-conspirator, it was not surprising that drugs were found on
Darden since she was stopped in a high drug-trafficking area, and no drugs
were found in his car.
When we review a weight-of-the-evidence challenge, we do not
actually examine the underlying question; instead, we examine the trial
court’s exercise of discretion in resolving the challenge. Commonwealth v.
Leatherby, 116 A.3d 73 (Pa.Super. 2015). This type of review is
necessitated by the fact that the trial judge heard and saw the evidence
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presented. Id. Simply put, “One of the least assailable reasons for granting
or denying a new trial is the lower court’s conviction that the verdict was or
was not against the weight of the evidence and that a new trial should be
granted in the interest of justice.” Id. at 82. A new trial is warranted in this
context only when the verdict is “so contrary to the evidence that it shocks
one’s sense of justice and the award of a new trial is imperative so that right
may be given another opportunity to prevail.” Commonwealth v.
Morales, 91 A.3d 80, 91 (Pa. 2014).
We do observe that, given the fact that Appellant escaped in his car
after police arrived and was out of view for about forty minutes, there is a
logical explanation for the fact that the car did not contain drugs and that a
large amount of cash was not found on his person. Appellant had ample
opportunity to dispose of any cash or drugs in the residence in which he hid
from police. Regardless, Officer Floyd saw two narcotics transactions
wherein Floyd and Appellant sold the drugs together. Additionally, crack
cocaine packaged similarly to the crack found on Darden was discovered
outside the cruiser where Floyd was detained. Hence, we cannot conclude
that the trial court abused its discretion in denying Appellant’s weight claim.
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The trial court’s verdict is not so shocking to one’s sense of justice that a
new trial is imperative so that right may be given another opportunity to
prevail.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2015
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