J-S65022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHNNY MCCANTS,
Appellant No. 2875 EDA 2014
Appeal from the Judgment of Sentence September 12, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002750-2013
BEFORE: BENDER, P.J.E., SHOGAN, and JENKINS, JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 16, 2015
Appellant, Johnny McCants, appeals from the judgment of sentence
entered following his convictions of possession of a controlled substance with
intent to deliver (“PWID”) and simple possession of a controlled substance.
We affirm.
The trial court summarized the underlying facts of this case as follows:
On January 23, 2013, shortly after 5:00 p.m., Philadelphia
Police Officer Maurice Rhoads, assigned to the Narcotics Fi[e]ld
Unit, along with Sergeant Stephen Holts, and Officer Louis Hardy
went to the area of 62nd and Arch Streets to conduct a drug
investigation based on information received from a confidential
informant (hereinafter “[the] CI “).1 During the meeting, in
Officer Rhoad’s presence, Officer Rhoads had the CI call a certain
telephone number and engage the male who answered in a drug
related conversation. Thereafter, the CI agreed to meet the
purported seller at 62nd and Arch Streets. (N.T. 11). The CI was
searched by Officer Rhoads to make sure he was not in
possession of contraband. The CI was given $20.00, the serial
J-S65022-15
number of which had been recorded, and directed to purchase
drugs with the “buy” money. Id.
1
All references to the record refer to the transcript
of Appellant’s trial recorded on July 8, 2014.
Upon arrival, Officer Rhoads observed Appellant approach
the CI and engage in a brief conversation. Appellant then
handed the CI small objects in exchange for the CI’s $20.00 in
“buy” money. (N.T. 11-12). Following the transaction, the CI
met with Officer Holts as Officer Rhoads followed Appellant as he
walked eastbound on Arch Street. (N.T. 12). Officer Rhoads
observed Appellant stop on the driver’s side of a white Mercury
Cougar before entering a property located at 61 N. 62 nd Street.
(N.T. 12).
After observing Appellant enter the aforementioned
location, Officer Rhoads began a surveillance of the residence.
(N.T. 12-13). The officers then had the CI again telephone the
phone number he had earlier dialed to initiate another purchase
of drugs. (N.T. 13). The male on the other end of the line told
the CI to meet him at 62nd and Arch Streets. Id. Officer Rhoads
instructed Officer Hardy follow the CI to that location so that he
could continue his surveillance of 61 N. 62nd Street. (N.T. 12-
13). While watching the property, Officer Rhoads saw Appellant
leave the property and walk westbound on Arch Street. Officer
Rhoads contacted Officer Hardy to advise him that Appellant was
walking in the direction of 6200 block of Arch Street. (N.T. 14-
15).
A few minutes later, Officer Hardy informed Officer Rhoads
that a transaction had occurred and that after the transaction,
the CI met up with Officer Holts. Officer Hardy also related to
Officer Rhoads that Appellant was walking back toward him.
(N.T. 15). Shortly thereafter Officer Rhoads saw Appellant, who
stopped at the white Mercury and remove a white plastic [item]
from its trunk, reenter 61 N. Arch Street. Id.
During the second surveillance, Officer Hardy observed the
CI, who was searched prior to the transaction, hand Appellant
$20.00 in pre-recorded “buy” money and, in exchange, receive a
small object. (N.T. 40). The CI remained in Officer Hardy’s
vision the entire time. (N.T. 40).
-2-
J-S65022-15
Immediately after consummating the transaction with
Appellant, the CI met with Sergeant Holts and handed him two
green packets containing a white chunky substance. (N.T. 51).
Testing of the substance in the packets revealed it to be crack
cocaine. Id.
Officer Rhoads thereafter prepared an Affidavit of Probable
Cause and then obtained search warrants for the white Mercury
and the residence located at 61 N. 62nd Street. On January 24,
2013, prior to executing those warrants, Officer Rhoads again
began a surveillance of 61 N. 62nd Street. (N.T. 16). While so
engaged, Officer Rhoads observed Appellant and another male
exit the residence and enter the white Mercury, which then was
driven eastbound on Arch Street. Id. Officer Rhoads followed
the car to the 6100 block of Ludlow Street where, Officer
Rhoads, with the assistance of other officers, stopped the vehicle
and ordered Appellant and the other male to exit the vehicle
after it was parked. As Appellant did so, he was observed
discarding a green packet containing crack cocaine. (N.T. 16-17,
24). That packet was identical to the four packets surrendered
by the CI to police after his two transactions with Appellant.
(N.T. 17). Officer Rhoads executed the warrant and searched
the car, which yielded no evidence. (N.T. 18). From Appellant,
police recovered $51.00, a cell phone, and a Pennsylvania
Identification Card. (N.T. 22-23).2
2
The telephone number used by the CI was not the
number for the phone seized from Appellant and the
$51.00 confiscated from him did not contain the
“buy” money. (N.T. 24-25, 26).
After completing the search of the car, Officer Rhoads went
to 61 N. 62nd Street to execute the search warrant for that
property. The search yielded two clear packets of marijuana
from inside a gym bag situated in the dining room, two green
packets of marijuana and numerous unused packets of different
colors from a second floor middle bedroom, and a digital scale
from the kitchen. (N.T. 19, 23). Police also recovered a letter
containing Appellant’s name and the address of 61 N. 62nd Street
from on top of a coffee table in the living room. (N.T. 22).
Trial Court Opinion, 1/20/15, at 2-4.
-3-
J-S65022-15
Appellant was charged with one count each of PWID, criminal use of a
communication facility, simple possession of a controlled substance, and
possession of drug paraphernalia. On July 8, 2014, at the conclusion of a
nonjury trial, Appellant was convicted of the crimes of PWID and possession
of a controlled substance. On September 12, 2014, the trial court sentenced
Appellant to serve a term of incarceration of eleven and one-half to twenty-
three months to be followed by four years of probation for the conviction of
PWID. Appellant, acting pro se, filed a timely notice of appeal, and present
counsel was appointed to represent Appellant. Both Appellant and the trial
court have complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
A. DID THE TRIAL COURT ERR WHEN IT FOUND THAT THERE
WAS SUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE
DOUBT THAT [APPELLANT] WAS GUILTY OF THE CRIMINAL
OFFENSE OF POSSESSION WITH INTENT TO DELIVER A
CONTROLLED SUBSTANCE?
Appellant’s Brief at 2.
Appellant argues that the Commonwealth failed to prove the crime
PWID beyond a reasonable doubt. Essentially, Appellant contends that the
Commonwealth relied strictly on circumstantial evidence that was not
sufficient to prove the elements of the crime.
When reviewing a challenge to the sufficiency of the evidence, we
evaluate the record in the light most favorable to the Commonwealth as
verdict winner, giving the prosecution the benefit of all reasonable inferences
-4-
J-S65022-15
to be drawn from the evidence. Commonwealth v. Duncan, 932 A.2d
226, 231 (Pa. Super. 2007) (citation omitted). “Evidence will be deemed
sufficient to support the verdict when it establishes each material element of
the crime charged and the commission thereof by the accused, beyond a
reasonable doubt.” Id. (quoting Commonwealth v. Brewer, 876 A.2d
1029, 1032 (Pa. Super. 2005)). However, the Commonwealth need not
establish guilt to a mathematical certainty, and it may sustain its burden by
means of wholly circumstantial evidence. Id. In addition, this Court may
not substitute its judgment for that of the factfinder, and where the record
contains support for the convictions, they may not be disturbed. Id. Lastly,
we note that the finder of fact is free to believe some, all, or none of the
evidence presented. Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa.
Super. 2006).
In order to uphold a conviction for possession of narcotics with the
intent to deliver pursuant to 35 P.S. § 780-113(a)(30), 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. Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000) (en
banc). The intent to deliver may be inferred from an examination of the
facts and circumstances surrounding the case. Commonwealth v.
Conaway, 791 A.2d 359, 362-363 (Pa. Super. 2002). Factors that may be
relevant in establishing that drugs were possessed with the intent to deliver
-5-
J-S65022-15
include the particular method of packaging, the form of the drug, and the
behavior of the defendant. Aguado, 760 A.2d at 1185. Moreover, we have
held that circumstantial evidence is reviewed by the same standard as direct
evidence–that is, that a decision by the trial court will be affirmed “so long
as the combination of the evidence links the accused to the crime beyond a
reasonable doubt.” Commonwealth v. Johnson, 818 A.2d 514, 516 (Pa.
Super. 2003) (citations omitted).
In addressing Appellant’s challenge to the sufficiency of the evidence
to sustain his guilty verdict, the trial court offered the following analysis:
Drawing all inferences in favor of the Commonwealth as
the law requires, it is clear that the evidence was sufficient to
sustain the verdict finding Appellant guilty of the charge of
PWID. Before twice sending the CI to meet Appellant, police
observed the CI arrange a drug transaction telephonically.
Following the call, police saw the CI, who was searched and
determined not to be in possession of contraband, meet with
Appellant and engage in transactions with him that entailed the
exchange of U.S. currency for small items. Immediately, the CI
returned to police and surrendered two green packets of crack
cocaine. When arrested, Appellant discarded a green packet of
crack cocaine that was identical to the four packets surrendered
by the CI.
Although the police were unable to see exactly what was
exchanged between the CI and Appellant, circumstantially, the
evidence proved beyond a reasonable doubt that Appellant
possessed cocaine at the beginning of the transaction and
delivered it to the CI in exchange for money given that when the
CI returned to police, having earlier been searched and
determined not to be in possession of narcotics, he delivered
cocaine to the police. See [Commonwealth v.] Daniels, 999
A.2d [590,] 595 [(Pa. Super. 2010)] (evidence was sufficient to
support defendant’s conviction for PWID where police saw a man
approach defendant while defendant was sitting in parked car
and engage in a hand-to–hand exchange of money for small
-6-
J-S65022-15
objects; a stop and search of the man yielded a blue-tinted
packet of heroin, which was similar to five blue heat-sealed
packets of heroin found in defendant’s possession);
Commonwealth v. Aguado, 760 A.2d 1181 (Pa. Super. 2000)
(finding evidence sufficient to support PWID conviction where
police officer witnessed appellant accept cash from an
unidentified male in exchange for small objects after which
appellant was found in possession of vials of cocaine). Thus, the
evidence was clearly sufficient to support the PWID charge.
Appellant’s assertion that he should not have been
convicted of delivering cocaine because the search of the
residence yielded only marijuana, does not render the evidence
insufficient to support the PWID. Police observed Appellant
engage in two transactions with the CI during which the CI
received cocaine from Appellant that the CI surrendered to
police.
Trial Court Opinion, 1/20/15, at 6-7.
Upon thorough review of the certified record, we agree that the
circumstantial facts are sufficient for the trial court sitting as the finder of
fact to conclude beyond a reasonable doubt that Appellant possessed a
controlled substance with the intent to deliver it. Accordingly, the evidence
is sufficient to prove that Appellant committed the crime of PWID.
Therefore, Appellant’s contrary argument lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2015
-7-