J-S26001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DELLNORA PIPPEN,
Appellant No. 1445 EDA 2015
Appeal from the Judgment of Sentence of April 29, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012049-2014
BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 04, 2016
Appellant, Dellnora Pippen, appeals from the judgment of sentence
entered on April 29, 2015. We affirm.
The following evidence was presented during Appellant’s bench trial.
On October 7, 2014, the Philadelphia Police were investigating a house
located at 823 East Woodlawn Street, in Philadelphia for possible drug
crimes; amongst the officers present that day were Officers Nathan London
and Pellum Coaxum. As Officer Coaxum testified, at approximately 3:50
p.m. that day:
myself and my partner . . . met with a confidential
informant [(hereinafter “CI”)]. I searched the [CI] for
[United States] currency and contraband before and after
being sent to the location, 823 East Woodlawn, with
negative results. I supplied that [CI] with [$20.00]
pre-recorded buy money and directed that [CI] to [the
house at 823 East Woodlawn Street].
*Retired Senior Judge assigned to the Superior Court.
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N.T. Trial, 4/29/15, at 9 and 20.
Officer London testified that, from his vantage point, he observed
Appellant sitting on the porch of 823 East Woodlawn Street. As Officer
London testified, he witnessed “the [CI] and [Appellant] engage[] in a brief
conversation, at which time they both proceeded inside 823 East Woodlawn
Street.” Id. at 9. According to Officer London, the CI was inside the
residence for “approximately two to three minutes,” after which time the CI
“exit[ed] the location and [] return[ed] back to Officer Coaxum.” Id. at
9-10. The CI then “turned over [to Officer Coaxum] two green-tinted
packets, each containing an off-white chunky substance,” which later tested
positive for cocaine. Id. at 20 and Commonwealth’s Exhibit 1.
As Officer Coaxum testified:
on that same day [between] the time of 4:00 and 5:00
p.m., I met with that same [CI] who I searched again for
[United States] currency and contraband with negative
results. I supplied that [CI] with [$20.00] pre-recorded buy
money and directed that [CI] back to 823 East Woodlawn
Street.
Id. at 20-21.
Officer London testified that he witnessed the CI approach Appellant,
who was again sitting on the porch of 823 East Woodlawn Street. Id. at 10.
According to Officer London:
[the CI] approached . . . and once again engaged in a
conversation with [Appellant]. [Appellant,] on both
occasions, was wearing a black leather jacket and blue
jeans.
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After a brief conversation, they both proceeded inside the
location. The [CI] exited. [Appellant] also returned back to
the porch area where she was sitting and the CI returned
back to Officer Coaxum.
Id. at 11.
Once again, the CI “turn[ed] over two green-tinted packets [to Officer
Coaxum], [which were] identical in shape, size[,] and content [to] the
previous” packets. Id. at 21. The substance in the packets also tested
positive for cocaine. Commonwealth’s Exhibit 1.
The police obtained a search warrant for 823 East Woodlawn Street
and they executed the warrant on October 8, 2014. Id. at 10-11.
Moreover, as Officer London testified, “right before the warrant was served .
. . a black male [] arrived at the location.” Id. at 11. The male was later
identified as Jimmy Bryant and a search of Mr. Bryant’s person revealed that
he possessed $804.00. Id. at 11-12. The police did not arrest Mr. Bryant.
Appellant’s Brief at 7.
Officer London testified that, when the police executed the warrant,
they saw Appellant “in the living room area . . . wearing the same [] clothing
that she was wearing on the previous day, black leather jacket and blue
jeans.” Id. at 11. As Officer London testified, after arresting Appellant:
I observed Officer Barber recover from the kitchen inside a
kitchen drawer, two green, six blue and one clear packet,
each containing an off-white chunky substance, alleged
crack cocaine.
I [also] observed Officer Francis recover from the kitchen
area, on top of the cabinets, there was a plate. On that
plate was found to contain one blue and four clear packets
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containing a weedy-seed substance, alleged marijuana,
along with one clear baggie containing a bulk amount of a
weedy-seed substance, alleged marijuana.
...
Officer Barber also recovered from a jacket in the basement
. . . a total of $400[.00] United States currency. I observed
Officer McClain recover from the basement area one digital
scale, one clear baggie containing numerous green, new
and unused packets, alleged drug paraphernalia. I
conducted NIK Test-G on the items that were purchased.
They tested positive for cocaine base. Also, NIK Test-E on
items that were confiscated and they tested positive for
marijuana. . . .
Id. at 11-12.
Officer London testified that Appellant did not own the house at 823
East Woodlawn Street – rather, Appellant “said it was her mother’s house.”
Id. at 16. Officer London also testified that Appellant did not have keys to
the house and “there was no proof of residence for [Appellant] in that
house.” Id. at 15 and 16. However, Officer London testified that Appellant
was able to freely enter and exit 823 East Woodlawn Street on October 7,
2014, and that she was present in the house on October 8, 2014. Id. at 17.
As to the interaction between Appellant and the CI on October 7,
2014, Officer London testified that he: “never heard any conversation
between [Appellant] and the CI;” “never saw any money or objects
exchanged between [Appellant] and the CI;” did not go inside of 823 East
Woodlawn Street on October 7, 2014; and, had “no idea who was inside that
house on October 7[, 2014].” Id. at 14-15. Nevertheless, Officer London
testified that, on October 7, 2014, he did not “observe anybody else interact
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with the CI other than [Appellant]” and that he did not “observe anybody
inside of the house coming in and out of the house other than [Appellant].”
Id. at 13.
Finally, with respect to the events of October 8, 2014 (when the police
executed the warrant), Officer London testified that: all of the narcotics
were found in the kitchen; “[n]one of the narcotics were in plain view;”
Appellant “did not run or resist arrest in any way;” no money, drugs, or
paraphernalia was found on Appellant’s person; he never saw Appellant in
the basement of the house; he had “no idea” whether any of the clothes
found in the basement belonged to Appellant; and, the police never
recovered the pre-recorded buy money that was used to purchase the
narcotics. Id. at 15-16 and 18.
The CI did not testify at Appellant’s trial.
The trial court found Appellant guilty of possession of a controlled
substance with the intent to deliver (hereinafter “PWID”) and possession of a
controlled substance.1 On April 29, 2015, the trial court sentenced Appellant
to serve 42 months on probation for PWID. Appellant filed a timely notice of
appeal and now claims:
Was not the evidence insufficient to convict [A]ppellant
beyond a reasonable doubt of [PWID] and possession of a
controlled substance where the evidence established only
that [A]ppellant and a police informant conversed after
____________________________________________
1
35 P.S. § 780-113(a)(30) and (16), respectively.
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which both entered a house for a brief time, and after the
[CI] left the house, the [CI] turned over drugs to police?
Appellant’s Brief at 3.
We review Appellant’s sufficiency of the evidence challenges under the
following standard:
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 [that of] 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
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. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en
banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806
(Pa. Super. 2008).
As our Supreme Court has explained:
The offense of delivery of a controlled substance is provided
for in section 780-113(a)(30) of [t]he Controlled Substance,
Drug, Device and Cosmetic Act, (the “Act”). According to
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that section, the offense occurs in the following
circumstances:
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). The term delivery, as used in
this section, is defined by the Act as “the actual,
constructive, or attempted transfer from one person to
another of a controlled substance, other drug, device or
cosmetic whether or not there is an agency relationship.”
35 P.S. § 780-102. Thus, for a defendant to be liable as a
principal for the delivery of a controlled substance there
must be evidence that he knowingly made an actual,
constructive, or attempted transfer of a controlled
substance to another person without the legal authority to
do so.
A defendant actually transfers drugs whenever he physically
conveys drugs to another person. Similarly, . . . a
defendant constructively transfers drugs when he directs
another person to convey drugs under his control to a third
person or entity.
It is well-established, however, that a defendant, who was
not a principal actor in committing the crime, may
nevertheless be liable for the crime if he was an accomplice
of a principal actor. See 18 Pa.C.S.A. § 306; see also
Commonwealth v. Bradley, 392 A.2d 688, 690 (Pa.
1978) (the actor and his accomplice share equal
responsibility for commission of a criminal act). A person is
deemed an accomplice of a principal if “with the intent of
promoting or facilitating the commission of the offense, he:
(i) solicit[ed the principal] to commit it; or (ii) aid[ed] or
agree[d] or attempt [ed] to aid such other person in
planning or committing it.” 18 Pa.C.S.A. § 306;
Commonwealth v. Spotz, 716 A.2d 580, 585 (Pa. 1998).
Accordingly, two prongs must be satisfied for a defendant to
be found guilty as an “accomplice.” First, there must be
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evidence that the defendant intended to aid or promote the
underlying offense. Second, there must be evidence that
the defendant actively participated in the crime by soliciting,
aiding, or agreeing to aid the principal. While these two
requirements may be established by circumstantial
evidence, a defendant cannot be an accomplice simply
based on evidence that he knew about the crime or was
present at the crime scene. There must be some additional
evidence that the defendant intended to aid in the
commission of the underlying crime, and then did or
attempted to do so. With regard to the amount of aid, it
need not be substantial so long as it was offered to the
principal to assist him in committing or attempting to
commit the crime.
Commonwealth v. Murphy, 844 A.2d 1228, 1233-1234 (Pa. 2004)
(internal footnotes omitted) (some internal citations omitted).
According to Appellant, the evidence was insufficient to support her
convictions because her convictions were based upon impermissible
speculation and conjecture. Appellant writes:
The circumstantial evidence of guilt presented by the
Commonwealth in [Appellant’s] case consisted of only three
facts. First, police observed the [CI] approach [Appellant].
Second, [Appellant] and the [CI] went into the house.
Third, the [CI] left and later turned over drugs to police
purportedly bought with pre-recorded buy money. This
circumstantial evidence is insufficient on its face. The police
did not hear any conversation between the two parties. The
police, who observed the house no more than one hour and
[15] minutes[] during the span of a day[] had no idea who
else was inside the property. In fact, a male with a total of
$804.00 was at the property when police executed the
search warrant. Lastly, the pre-recorded buy money was
never recovered.
...
To deliver illegal drugs, one first must be in possession of
them. There is no evidence that [Appellant] was ever in
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possession of controlled substances. She was not in
personal possession of controlled substances when arrested.
The drugs found in the house were secreted in the kitchen
of her mother’s house. There was no evidence that
[Appellant] resided at the property. . . . To sustain
[Appellant’s] conviction[s] on such conjecture and
speculation would be improper.
Appellant’s Brief at 12-13.
We disagree with Appellant and conclude that, in this case, the
evidence is not “so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined circumstances.”
Brown, 23 A.3d at 559-560. As the trial court explained:
Here, the evidence established that police officers observed
[Appellant], on two separate occasions, meet with a [CI],
engage in a brief conversation on the porch of 823 East
Woodlawn Street, walk into the house, and [either remain
inside of the house or] shortly thereafter return with the
[CI] outside to the porch. On both of these occasions, the
[CI] was searched for [United States] currency and
contraband with negative results prior to going [inside] the
house. On both of these occasions[,] the [CI] returned
from the house to Officer Coaxum with two [] green-tinted
packets each containing crack cocaine.
When the search warrant was executed at 823 East
Woodlawn Street, [Appellant] was found sitting in the living
room with the same black leather jacket and blue jeans she
had on from the day before when the [CI] had been to the
house. Right before the warrant was executed, Jimmy
Bryant arrived at the house with a total of [$804.00] on his
person. He was never observed at any other time during
the officers’ surveillance. As a result of the search of the
house, officers recovered two [] green, six [] blue[,] and
one [] clear packet, each containing crack cocaine, one []
blue and four [] clear packets containing marijuana, and
one [] clear baggie containing a bulk amount of marijuana.
Also recovered from the house was a jacket with [$400.00]
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in it, one [] digital scale, [and] one [] clear baggie
containing numerous green, new and unused packets.
Trial Court Opinion, 8/3/15, at 9 (internal citations and emphasis omitted).
After viewing the above evidence in the light most favorable to the
Commonwealth – and giving the Commonwealth every reasonable inference
from the above evidence – we conclude that the evidence is sufficient to
prove that Appellant either directly sold the cocaine to the CI or, at a
minimum, served as an accomplice who intentionally promoted the sale of
cocaine to the CI by aiding an unknown individual in the house.
Certainly, the evidence demonstrates that, on October 7, 2014, the CI
twice arrived at 823 East Woodlawn Street with the express intent of
purchasing narcotics. After speaking with Appellant on the porch both
times, Appellant twice chaperoned the CI into the house and, “approximately
two to three minutes” later, the CI emerged from the house with cocaine
that the CI did not possess prior to entering the house. Moreover, during
the second controlled purchase, Appellant not only chaperoned the CI into
the house to purchase narcotics, but Appellant also chaperoned the CI out
of the house following the cocaine purchase. Given our standard of review –
and given the substantial evidence of narcotics distribution found in the
house on the very next day – it strains the imagination to accept Appellant’s
argument that she was not the one who either sold the cocaine to the CI or
aided a hidden individual in the house to sell the cocaine, “with the intent of
promoting or facilitating the” sale of cocaine. See Murphy, 844 A.2d at
1233.
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In reaching this assessment of the facts, we note under our standard
of review that the Commonwealth owes no obligation to dispel every
possibility of innocence. Instead, the Commonwealth meets its burden of
proof where it overcomes reasonable doubt as to the establishment of each
element of an offense through the introduction of either direct or
circumstantial evidence. Appellant in this case simply asks this Court to be
willfully blind to her role as either the seller of the cocaine or as the doorman
to the dopehouse. We will not do so.
The evidence in this case was thus sufficient to establish that Appellant
committed the offense of PWID, and the lesser-included offense of simple
possession of a controlled substance. Appellant’s claim to the contrary fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/2016
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Com. v. Pippen, D.
Combined Opinion