J-S18020-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NAFIS ANTUAN FAISON
Appellant No. 1194 MDA 2015
Appeal from the Judgment of Sentence April 22, 2015
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000147-2014
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NAFIS ANTUAN FAISON
Appellant No. 1442 MDA 2015
Appeal from the Judgment of Sentence April 27, 2015
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001495-2014
BEFORE: BOWES, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED MAY 09, 2016
Nafis Antuan Faison appeals from the judgments of sentence imposed
by the Court of Common Pleas of Lycoming County following two separate
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*
Retired Senior Judge assigned to the Superior Court.
J-S18020-16
trials for drug related offenses.1 After careful review of both, we affirm as
follows:
Case at 1194 MDA 2015
Evidence introduced at trial established that on four occasions between
July 7, 2009, and August 21, 2009, a confidential informant (CI) purchased
heroin from Faison in Williamsport, Pennsylvania. Before each purchase, she
would call Faison on his cell phone to arrange the exchange.
Although the transactions occurred in the summer of 2009, Faison was
not arrested until December 12, 2013. He was released on bail on July 14,
2014.
On February 23, 2015, a jury convicted Faison of eight counts of
possession with intent to deliver (PWID),2 four counts of possession,3 and
four counts of criminal use of a communication facility4
On April 22, 2015, the trial court imposed an aggregate sentence of
twenty-eight months’ to eight years’ incarceration, but noted that because
Faison was RRRI eligible, the sentence was reduced to 21 months. By
amended order dated June 25, 2015, the court stated that the underlying
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1
On September 28, 2015, this Court consolidated the appeals sua sponte.
See Pa.R.A.P. 513.
2
35 P.S. § 780-113(a)(30).
3
35 P.S. § 780-113(a)(16).
4
18 Pa.C.S. § 7512(a).
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sentence would remain the same, but it was correcting a miscalculation in
the computation of the RRRI eligibility, which should be one year, eleven
months and ten days rather than 21 months.
This timely appeal follows, in which Faison asserts that the
Commonwealth failed to present sufficient evidence to prove beyond a
reasonable doubt that on four separate occasions he committed the offenses
set forth above.
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable
to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. 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.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. The facts and circumstances established
by the Commonwealth need not be absolutely incompatible with
the defendant’s innocence. Any doubt about the defendant’s
guilt is to be resolved by the fact finder unless the evidence is so
weak and inconclusive that, as a matter of law, no probability of
fact can be drawn from the combined circumstances.
Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)
(citation omitted).
Faison asserts that the Commonwealth failed to establish beyond a
reasonable doubt that he was guilty of possession and PWID, which are
defined, in relevant part, as follows:
§780-113 Prohibited Acts
...
(a)(16) Knowingly or intentionally possessing a controlled
substance . . , by a person not registered under this act[.]
...
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(a)(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[.]
35 P.S. § 780-113(a)(16),(30).
“In drug possession cases, the Commonwealth must prove that a
defendant had knowing or intentional possession of controlled substance.”
Commonwealth v. Valette, 613 A.2d 548, 549-50 (Pa. 1992).
“To convict a person of PWID, 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. Bricker, 882 A.2d
1008, 1015 (Pa. 2005). “In determining whether there is sufficient evidence
to support a PWID conviction, all facts and circumstances surrounding the
possession are relevant, and the Commonwealth may establish the essential
elements of the crime wholly by circumstantial evidence.” Id. “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.” Commonwealth v. Kirkland, 831 A.2d
607, 611 (Pa. Super. 2003).
Faison also challenges his conviction for criminal use of a
communication facility, which is defined in the Crimes Code, as follows:
§ 7512. Criminal use of communication facility
(a) Offense defined. – A person commits a felony of the
third degree if that person uses a communications facility
to commit, cause or facilitate the commission or the
attempt thereof of any crime which constitutes a felony
under this title or the act of April 14, 1972 (P.L. 233, No.
64), known as The Controlled Substance, Drug, Device and
Cosmetic Act. Every instance where the communication
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facility is utilized constitutes a separate offense under this
section.
18 Pa.C.S. § 7512(a).
Where the record establishes that defendant engaged in telephone
conversations with a CI and those telephone conversations facilitated a
controlled buy between the defendant and the CI, the evidence is sufficient
to sustain a conviction for criminal use of communication facility.
Commonwealth v. Moss, 852 A.2d 384 (Pa. Super. 2004).
Here, the CI testified that on four occasions, while in the presence of a
state trooper, she called Faison on his cell phone and arranged to meet him
to purchase heroin. Each time she would pick Faison up at a designated
spot and drive a few blocks where the exchange would occur in the CI’s
vehicle. Faison would then exit the CI’s vehicle and she would call a trooper
to inform him that the transaction was completed. Troopers would then
escort the CI’s vehicle to the barracks where the CI would hand over the
heroin.
Although no state troopers actually witnessed the exchange of money
for heroin, they were in the general area of the transactions and kept the
CI’s vehicle under surveillance.
At trial, the parties stipulated that laboratory analysis of packets
obtained on four dates contained the following amounts of heroin: .21
grams; .84 grams; .31 grams; and .39 grams.
The jury heard testimony that the CI pled guilty to theft by deception,
forgery and theft by unlawful taking in 2008. The CI also testified that
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during the time when she was making the controlled heroin buys, she was
on probation and using crack cocaine. She further testified that the troopers
would pay her in cash after she returned to the barracks with the heroin she
purchased from Faison. Nevertheless, it is clear that the jury found the CI
credible with respect to the offenses charged. It is well settled that “the
determination of the credibility of a witness is within the exclusive province
of the jury.” Commonwealth v. Crawford, 718 A.2d 768, 772 (Pa. 1998).
The CI’s testimony, which was corroborated by several state troopers,
was sufficient to establish that on four occasions, Faison sold heroin to the
CI after using his cell phone to arrange the sales.
Accordingly, no relief is due on his challenges to the sufficiency of the
evidence supporting his convictions.5
Case at 1442 MDA 2015
On August 6, 2014, police saw Faison, while released on bail, leave an
apartment where a confidential informant recently purchased crack cocaine.
Corporal Jeffrey Paulhamus of the Williamsport Bureau of Police stopped
Faison in a nearby parking lot. A pat down revealed that Faison had
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5
In his summary of the argument, Faison states: “The trial court erred
when the court denied [Faison’s] motion for a mistrial since the
Commonwealth failed to disclose the criminal record of the confidential
informant until the morning of trial.” Appellant’s Brief, at 15. Faison has not
included this issue in his statement of questions involved or in the argument
section of his brief. Accordingly, the issue is waived. See Giant Markets,
Inc. v. Sigma Marketing Systems, Inc., 459 A.2d 765, 771 n.2 (Pa.
Super. 1983).
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$503.00 in cash, mostly in $20.00 bills. Corporal Paulhamus took Faison to
City Hall where he subjected Faison to an additional search that revealed a
plastic sandwich bag containing 6.89 grams of cocaine tied to the top button
of Faison’s pants.
Faison was charged with PWID cocaine, possession of cocaine and
possession of drug paraphernalia.6 On April 20, 2015, a jury found Faison
guilty of these offenses. On April 27, 2015, the court sentenced Faison to
twenty-two to forty-four months’ incarceration followed by five years’
probation.
This timely appeal followed, in which Faison raises the following issues
for our review:
1. Did the trial court err when it denied [Faison’s] motion to
suppress when officers lacked reasonable suspicion or
probable cause to lawfully detain or arrest [Faison], thereby
violating his rights against unreasonable searches and
seizures guaranteed by both Article 1, § 8 of the Pennsylvania
Constitution and the Fourth Amendment to the United States
Constitution?
2. Did the Commonwealth fail to present sufficient evidence at
trial to prove beyond a reasonable doubt that [Faison]
violated 35 P.S. § 780-113(a)(30), the manufacture, delivery,
or possession with intent to deliver a controlled substance,
when it failed to present sufficient evidence that [Faison] had
the intent to deliver?
Appellant’s Brief, at 11.
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6
35 Pa.C.S. 780-113(a)(32).
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Faison challenges the trial court’s denial of his motion to suppress.
Our standard for reviewing an order denying a motion to suppress is as
follows:
We are limited to determining whether the lower court’s factual
findings are supported by the record and whether the legal
conclusions drawn therefrom are correct. We may consider the
evidence of the witnesses offered by the Commonwealth, as
verdict winner, and only so much of the evidence presented by
defense that is not contradicted when examined in the context of
the record as a whole. We are bound by facts supported by the
record and may reverse only if the legal conclusions reached by
the court were erroneous.
Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa. Super. 2006).
Here, the trial court concluded that Faison was “initially subject to an
investigative detention, not a custodial one.” Trial Court Opinion, 10/1/15,
at 2. “An ‘investigative detention’ must be supported by a reasonable
suspicion; it subjects a suspect to a stop and a period of detention, but does
not involve such coercive conditions as to constitute the functional
equivalent of an arrest.” Commonwealth v. Ellis, 662 A.2d 1043, 1047
(Pa. 1995) (citations omitted).
Reasonable suspicion is a less stringent standard than probable
cause necessary to effectuate a warrantless arrest, and depends
on the information possessed by police and its degree of
reliability in the totality of the circumstances. In order to justify
the seizure, a police officer must be able to point to specific and
articulable facts leading him to suspect criminal activity is afoot.
In assessing the totality of the circumstances, courts must also
afford due weight to the specific, reasonable inferences drawn
from the facts in light of the officer's experience and
acknowledge that innocent facts, when considered collectively,
may permit the investigative detention. The determination of
whether an officer had reasonable suspicion that criminality was
afoot so as to justify an investigatory detention is an objective
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one, which must be considered in light of the totality of the
circumstances.
Commonwealth v. Holmes, 14 A.3d 89, 95-96 (Pa. 2011) (quotations and
citations omitted).
With respect to the existence of reasonable suspicion, the trial court
noted:
Here, police reasonably suspected that [Faison] was engaged in
the sale of controlled substances. [Detective Alberto] Diaz
observed a [woman] exit the apartment less than two minutes
after entering it. After the [woman] exited, [Randell] Peterson
stepped out of the apartment and looked around. Diaz testified
that it looked like a drug deal occurred. [Faison] was in the
apartment during the suspected drug deal. Later, a CI bought
cocaine inside the apartment. [Faison] was also in the
apartment during this deal.
After the CI deal, Diaz observed Peterson and [Faison] converse
outside of the apartment. This shows an association between
Peterson and [Faison]. Diaz later observed what he suspected
was [Faison] handing currency to Peterson. The sale of cocaine
to the CI, the presence of [Faison] during the sale, the
movement of various people in and out of the apartment,
[Faison’s] conversations with Peterson, and [Faison] handing
money to Peterson provided the police with reasonable suspicion
that [Faison] was engaged in the sale of drugs.
Trial Court Opinion, 1/14/15, at 4-5.
Based on the totality of the circumstances, see Holmes, supra, we
cannot say that that trial court’s conclusions were erroneous. See Hughes,
supra. Accordingly, the trial court properly determined that police had
reasonable suspicion to detain Faison.
Faison also asserts that the Commonwealth failed to establish beyond
a reasonable doubt that he was guilty of PWID.
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The trial court summarized the evidence supporting the PWID
conviction as follows:
[Officer Justin] Snyder, [Corporal Jeffrey] Paulhamus, and
[Detective John Ferster] testified that [Faison] did not appear to
be under the influence of drugs when they came into contact
with him on August 6, 2014. Officer [Jeremy] Brown qualified as
an expert in the field of possession and distribution of illegal
narcotics. In Brown’s opinion, the cocaine was intended for
delivery. The following circumstances led him to that opinion.
[Faison] had a burner application on his phone. Seven grams of
cocaine is a large quantity of cocaine, and drug users usually
have smaller amounts. The cocaine was worth $300 to $400
and could have been worth more if it was divided and sold in
smaller amounts. [Faison] did not have personal use drug
paraphernalia. He did have bills, which are commonly used as
drug paraphernalia for cocaine, but none of the bills looked as if
they had been used to ingest cocaine. Users put drugs in their
pockets, but cocaine was found in [Faison’s] crotch. Users are
broke, but [Faison] had $503.00.
Trial Court Opinion, 8/14/15, at 6.
In light of this evidence, the Commonwealth established that Faison
possessed cocaine with the intent to deliver. See Bricker, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/2016
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