Com. v. Carrol, L.

J-S35031-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : LAMONT ANTHONY CARROL, : : Appellant : No. 382 EDA 2015 Appeal from the Judgment of Sentence March 9, 2012 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0012280-2008 BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E. and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.: FILED MAY 11, 2016 Lamont Anthony Carrol (“Carrol”) appeals from the judgment of sentence imposed following his convictions of possession with intent to deliver a controlled substance, possession of a controlled substance, and criminal use of a communication facility.1 We affirm. The trial court aptly summarized the factual and procedural history of this case, which we adopt for the purpose of this appeal. See Trial Court Opinion, 7/6/15, at 1-4.2 Following a jury trial, Carrol was convicted of the above-mentioned crimes. On March 9, 2012, the trial court sentenced Carrol to 45 to 90 months in prison. 1 35 P.S. §§ 780-113(a)(30), (a)(16); 18 Pa.C.S.A. § 7512. 2 Carrol entered a separate negotiated guilty plea for possession of a firearm by a prohibited person. See Trial Court Opinion, 7/6/15, at 1 n.1. However, the firearms charge is not at issue in this case. J-S35031-16 On appeal, Carrol raises the following questions for our review: I. Whether the verdict was contrary to law as to the charge of criminal use of a [communication] facility[?] II. Whether the verdict was contrary to law as to the charge of possession with intent to deliver[?] III. Whether the trial court abused its discretion in not allowing the identity of the confidential informant to be revealed[?] Brief for Appellant at 8 (capitalization omitted). Carrol’s first two claims challenge the sufficiency of the evidence. We apply the following standard of review when considering a challenge to the sufficiency of the evidence: The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial the 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 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 finder 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. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015) (citation omitted). -2- J-S35031-16 In his first claim, Carrol argues that the evidence was insufficient to sustain his conviction of criminal use of a communication facility. Brief for Appellant at 15, 17. Carrol concedes that the Commonwealth satisfied its burden as to the first two elements, because he had used a cell phone in the commission of the crimes and the underlying charge is a felony. Id. at 16. Carrol asserts that his conversation with Officer Jeffrey Galazka (“Officer Galazka”) does not constitute a substantial step toward the commission of the underlying crime. Id. In its Opinion, the trial court addressed Carrol’s claim, set forth the relevant law regarding criminal use of a communication facility, and determined that the Commonwealth presented sufficient evidence to sustain the conviction. See Trial Court Opinion, 7/6/15, at 5-7. We adopt the sound reasoning of the trial court for the purpose of this appeal. See id. In his second claim, Carrol argues that the evidence was insufficient to sustain his conviction of possession with intent to deliver. Brief for Appellant at 17. Carrol claims that his possession of a large number of individual packets containing crack cocaine is not sufficient, without more, to show an intent to deliver. Id. at 18. Carrol asserts that there was insufficient evidence to prove an intent to deliver, even when considering other factors in a totality of the circumstances analysis, such as the four jars found in his house, a lack of other paraphernalia, the use of a confidential informant, and -3- J-S35031-16 inconsistencies between Officer Galazka’s description and Carrol’s physical appearance. Id. at 18-19. In its Opinion, the trial court addressed Carrol’s claim, set forth the relevant law regarding possession with intent to deliver, and determined that the Commonwealth presented sufficient evidence to sustain his conviction. See Trial Court Opinion, 7/6/15, at 7-10.3 We adopt the sound reasoning of the trial court for the purpose of this appeal. See id.; see also Commonwealth v. Daniels, 999 A.2d 590, 595 (Pa. Super. 2010) (stating that “intent to deliver may be inferred from an examination of the facts and circumstances surrounding the case[,]” including the form and packaging of the drug, and the behavior of the defendant); Commonwealth v. Morrow, 650 A.2d 907, 912 (Pa. Super. 1994) (stating that there was sufficient evidence to sustain appellant’s conviction for possession with intent to deliver where appellant sold marijuana to an informant, who subsequently turned the marijuana over to the police). In his third claim, Carrol asserts that the trial court erred in denying his Motion to compel disclosure of the identity of the confidential informant. Brief for Appellant at 19. Carrol argues that he should have had the opportunity to examine and question the confidential informant because the 3 With regard to Carrol’s claim regarding inconsistencies in Officer Galazka’s description of Carrol, this claim goes to the weight of the evidence. The fact-finder was free to weigh the evidence and make a credibility determination, and we will not disturb the fact-finder’s judgment. See Commonwealth v. Hanible, 836 A.2d 36, 40 (Pa. 2003). -4- J-S35031-16 confidential informant was the only disinterested witness, and because the confidential informant was an active participant in the transaction. Id. at 21-22. “Our standard of review of claims that a trial court erred in its disposition of a request for disclosure of an informant’s identity is confined to abuse of discretion.” Commonwealth v. Washington, 63 A.3d 797, 801 (Pa. Super. 2013). “The Commonwealth enjoys a qualified privilege to withhold the identity of a confidential source.” Commonwealth v. Watson, 69 A.3d 605, 607 (Pa. Super. 2013). The trial court has the discretion to require the Commonwealth to reveal the names of confidential informants where a defendant makes a showing that “they are material to the preparation of the defense, and that the request is reasonable.” Pa.R.Crim.P. 573(B)(2)(a). In its Opinion, the trial court addressed Carrol’s claim and determined that Carrol did not demonstrate that the confidential informant’s identity was material to the preparation of his defense. See Trial Court Opinion, 7/6/15, at 11-12. We adopt the sound reasoning of the trial court for the purpose of this appeal. See id. Judgment of sentence affirmed. -5- J-S35031-16 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/11/2016 -6- S:35"0 3/-1 h Circulated 04/22/2016 04:04 PM RECEIVED \' JUL O 6 2015 IN THE COURT OF COMMON PLEAS FOR THE COUNTY OF PHILADELPHIA APPEALS/POST TRIAL COMMONWEALTH OF PENNSYLVANIA TRIAL DIVISION v. CP-51-CR-OO12280-2008 LAMONT CARROL, APPELLANT 382 EDA 2015 OPINION On January 19, 2012, the appellant (Lamont Carrol) was found guilty by a jury. The appellant was convicted of Possession with Intent to Deliver (PWID) (Fl), Criminal Use of a Communication Facility (F3), and Intentional Possession of a Controlled Substance (K+I) (Ml). On March 9, 2012, the court sentenced the.,...,, appellant to 45 to 90 months incarceration on his ·-~~ PWID conviction. The court imposed no further penalty on the appellant's Criminal Use of a Communication Facility conviction. The K+I charge merged with the appellant's PWID conviction for purposes of sentencing. The appellant was also ordered to pay a fine of $800.00. On March 9, 2012, the appellant egtered into--i,##:. a.lJS$_.].egotiated guilty plea for Possession of a - ~ Firearm by a Prohibited Person and was sentenced to two (2) to four (4) years incarceration to run consecutively to the above captioned matter. 1 On June 8, 2012, the appellant filed a timely pro se Post Conviction Relief Act (PCRA) Petition. He later filed two Supplemental Memorandums of Law in support of the PCRA Petition on October 16, 2012 and May 9, 2013 ·-· ~~.:',.:'. and an Amended PCRA Petition on November 12, 2013. On January 12, 2015, the court granted CP-51-CR-0012260-2008 Comm. v. Carrol. Lamont Anthony Opinion the PCRA relief and reinstated his appellate rights. 1111111111111111111111111 7315972731 I The docket number for the Possession of a Firearm by a Prohibj1~PPerson conviction is (CP-51-CR-0002697- 20 I I). -"""w·· 1 On January 21, 2015, the appellanrfiled a Noticeof Appeal to the Superior Court. On February 4, 2015, the Court ordered counsel to file a Statement of Matters Complained of on Appeal pursuant to Pa. R.A.P. l 925(b). On March 17, 2015, the appellant filed his Statement and 2 raised the following issues on appeal: 1. The verdict was insufficient as'a matter of.law as to the charge of criminal use of a communication facility. There was no evidence that correlated the telephone call to any crime to be committed or to have been committed. There was no active conduct by the defendant. There was no evidence he acted intentionally, knowingly and recklessly. 2. The verdict was insufficient as a matter of law as to the charge of possession with intent to deliver. There was nothing to connect the defendant to the controlled buy. There is no doubt that the defendant was .a .•user of drugs and that he had drugs when arrested on his person. The money taken from the defendant at the time of his arrest was not indicative of the defendant being a seller or [sic] drugs. Additionally, nothing was found in the house that would indicate defendant was a seller of drugs. Additionally, the weight of the drugs was suspect. Initially, it was 2.4 grams and then three months later it was 4.6 grams. 3. The Court was in error in not allowing the identity of the confidential informant to be revealed. -~r~· FACTS On August 5, 2008, Philadelphia police officers set up surveillance on the 3000 block of Agate Street. N.T. 1/18/12, p. 36. Their main objective was to investigate the appellant, who was __ .,.;.c:f!,!;'"' ~~r suspected of selling narcotics from a house located at 3093 Agate Street.3 N.T. 1/18/12, p. 38. The investigating officer (Jeffery Galazka) used a confidential informant (CI) to assist him in the investigation. Id. Galazka gave the CI $20 dollars in pre-recorded buy money and instructed the CI to purchase narcotics from the appellant. N.T. 1/18/12, p. 39. Galazka and several other 2 Copied verbatim from the appellant's Statement of Matters Complained on Appeal pursuant to Pa.R.A.P. l 925(b ). 3The Cl had been used between 50-100 times by Officer Galazka and is currently being used by the same officer in other investigations. N.T. l/18/12, p. 37. 2 officers stayed inside of their vehicle and observed t.2;J:I interact with the appellant. N.T. 1/18/12, p. 41. The CI had a brief conversation with the appellant and then handed him the pre- recorded buy money. Id. The appellant walked into 3093 Agate Street, exited several minutes later, and handed the CI small objects. Id. The CI returned to the police vehicle and gave Galazka two orange-tinted Ziploc packets containing crack cocaiae. N.T. 1/18/12, p. 42. The police later ~--? tested and weighed the narcotics at headquarters, and the drugs were determined to be cocaine. N.T. 1/18/12, p. 49, 129. The police then prepared a search warrant for 3093 Agate Street. N.T. 1/18/12, p. 49. On August 8, 2008, the police continued ~,. their- .":.~~~").,. investigation by setting up surveillance of 3093 Agate Street. N.T. 1/18/12, p. 52. On this day, Galazka observed an unidentified man and woman walk on to the 3000 block of Agate Street. N.T. 1/18/12, p. 53. He then saw the appellant exit 3093 Agate and approach the unidentified man and woman. Id. Both the man and woman gave the appellant an unknown amount of money in exchange for small objects, but the police "'" ·~~'"' did not stop or apprehend these individuals. Id. After observing this transaction, Galazka called a phone number that the CI had previously given to him, and he saw the appellant answer the phone. 4 N.T. 1/18/12, p. 38, 54. Galazka called the number because he believed that the appellant was using his phone to ..,... ~~~~· facilitate drug sales. Id. Galazka testified that following conversation occurred: I said, 'Yo Mont, it's Jeff. Can I get rock?' He [the appellant] said, 'Yeah,' and he gave me a brief description of what he was wearing, which I already knew, and then he said, 'Come onto the block.' N.T. 1/18/12, p. 55. Based on Galazka's observations ·. ,. and conversation with the appellant, ~~- ~ . =--- Officer Johnson arrested the appellant. N.T. 1/18/12, p. 56. Johnson recovered from the 4 The officer called this cell phone number: 267-230-0827. appellant's pants a clear plastic sandwich bag containing 42 orange-tinted Ziplock packets of crack cocaine, $129 dollars, a small bag of marijuanaand a cell phone. N.T. 1/18/12, p. 57, 131. According to Galazka, the retail value of the 42 packets of crack cocaine at $10 dollars a piece was $420 dollars. N.T. 1/18/12, p. 60. The crack packets recovered from the appellant was similar those that the CI purchased on August 5, 2012. Moreover, when Galazka called the appellant's cell phone again (after his arrest), it rang:.J'rr-T. 1/18/12, p. 62. When the police later executed a warrant on 3093 Agate Street, they recovered four empty jars from a closet in the living room. N.T. 1/18/12, p. 51-52, 62. Galazka testified that he believed these jars were used to store marijuana and crack cocaine. Id. No drugs or money were recovered from the house. N.T. 1/18/12, p,-90. A chemist weighed the two Ziploc packets of crack cocaine purchased by the CI. N.T. 1/18/12, p. 129-130. These packets weighed 0.123 mg each. Id. He also opined that the 42 packets of crack cocaine recovered from the appellant weighed between 90 milligrams and 180 milligrams each. N.T. 1/18/12, p. 130. According to the chemist, the total weight of the 46 packets-of crack c,2.s:aine was approximately 4.752 grams and the total weight of the marijuana was 1.88 grams.5 N.T. 1/18/12, p. 131. Moreover, the appellant admitted that he "had crack cocaine in my [his] pocket" when he was arrested. N.T. 1/18/12, p. 143, 148. The appellant also conceded that the 42 packets of crack cocaine (at $10 dollar each) had a total value of $420 dollars. N.T. 1/18/12, p. 148._,,...= ~~·." 5 The reference to the 46 packets of crack cocaine includes the 42 recovered from the appellant and the two packets purchased by the Cl. 4 ·1J!..~~ ·~" DISCUSSION 1. The verdict was sufficient as a matterof law as to the charge of CriminalUse of a Communication Facility. In reviewing a challenge to the sufficiency of the evidence, the appellate court "must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to ... the verdict winner." Commonwealth v. Conaway, 791 A.2d 359, 362 (Pa. Super. 2002) (citing Commonwealth v. Simpson, 754 A.2d 1264, 1269 (Pa. Super 2000)). The appellate court __,~,- ''":'i.f.-..?·"' then determines whether the fact finder could have found that "every element of the offenses was proven beyond a reasonable doubt." Id. It is not necessary for the established facts to be "absolutely incompatible with the defendant's innocence." Id. (quoting Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000)). Rather, the question as to whether there is any ~~~·· doubt must be determined by the fact finder, unless the "evidence is so weak and inconclusive that, as a matter oflaw, no probability of fact can be drawn from the combined circumstances." In this appeal, the appellant argues that there is insufficient evidence to charge him with Criminal Use of a Communication Facility. This court disagrees. To support a conviction of Criminal Use of a Communication Facility, the record must show that: (1) the defendant knowingly and intentionally used a communication facility; (2) the defendant knowing, intentionally or recklessly facilitated an underlying felony; and (3) the underlying felony either ·~..;;.µt:!'"'· occurred or was attempted. Commonwealth v. Moss~ 852 A.2d 374, 382 (Pa. Super 2004). Facilitation has been defined as "any use of a communication facility that makes easier the commission of the underlying felony." United States v. Davis, 929 F.2d 554, 559 (10111 Circ.1991 ). Moreover, the charge of Criminal Use of a Communication Facility also includes 5 6 one's attempt to commit an underlying felony through his use of a communications facility. It is -~7 -~?~ . .;.; ..;,. also well settled that a conviction for this crime cannot stand without proof beyond a reasonable doubt that the underlying felony did in fact occur. United States v. Iennaco, 893 F.2d 394, 396 (D.C.Circ.1990). In the case at bar, there is sufficient evidence in the record establishing the first element ... ~~- of Criminal Use of a Communication Facility. The ~~Tdence established that the appellant knowingly and intentionally used a communication facility (a cell phone) to discuss selling narcotics. The evidence also showed that the appellant engaged in a drug-related telephone conversation with Officer Galazka. N.T. 1/18/12, p. 38, 54. Galazka called the appellant, ·-<-- ·-«!'tj[;I./f-~Vl' watched the appellant answer his phone, and then asked the appellant if he could buy crack cocaine. N.T. 1/18/12, p. 54-55. The appellant described what he was wearing and agreed to meet Galazka on the 3000 block of Agate Street. Id. The evidence further established the second element of this offense. Criminal Use of a r~~;;,'f;;,ir-· Communication Facility requires a person to knowingly, intentionally, or recklessly facilitate an underlying felony. The second element was met because the appellant knowingly and intentionally used a cell phone to assist him in selling narcotics. Without question, the appellant's drug-related telephone conversation with Galazka facilitated his attempt to commit ~,.>.· the underlying felony of Possession with Intent to Dcli~~r (PWID). The third element of Criminal Use of a Communication Facility was also established. The third element requires that the underlying felony either occurred or was attempted. In this case, 6 The law of attempt states that attempt requires a substantial step toward the commission of the specific underlying crime. 18 Pa.C.S.A §901(a). The substantial step factor puts emphasis on "what the defendant has done" and not on •'the acts remaining to be done before the actual commission of the crime. Commonwealth v. Zingarelli, 839 A.2d l 064, I 069 (Pa.Super.2003). 6 each of the appellant's actions were substantial steps toward his attempt to commit PWID. For one thing, the appellant discussed selling drugs to Galazka on the phone. N.T. 1/18/12, p. 55. We ·,~1).,;il also know that the appellant actually possessed and delivered drugs because Galazka had seen him conduct two separate drug transactions earlier with the CI and two buyers. N.T. 1/18/12, p. 41, 53. Lastly, when the appellant was arrested, Officer Johnson recovered 42 orange-tinted Ziplock packets of crack cocaine, $129 dollars, a small.bag ·-c,,;;>' of marijuana, and a cell phone from his pants. N.T. 1/18/12, p. 57, 131. With all of this evidence, the jury could infer that the appellant committed the crime of Criminal Use of a Communication Facility. 2. The verdictwas sufficient as a matterof law as to the charge of Possession With Intentto Deliver The appellant next argues that there was insufficient evidence to convict him of PWID. This court disagrees. In order to establish PWID, the Commonwealth must prove beyond a reasonable doubt that the defendant possessed a controlled substance with the intent to deliver the same. Conaway, 791 A.2d 359, 362 (2002). The Commonwealth can establish possession of a controlled substance through either actual possession or constructive possession. Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa. 1983). Actual possession is proven "by showing ... [that the] controlled substance [was] found on the [defendant's] person." Id. If the contraband. were not found on the defendant, the c:~'~' Commonwealth may satisfy its evidentiary burden by proving that the defendant constructively possessed the drug. Id. Constructive possession is defined as one's ability to exercise a conscious dominion over the controlled substance, coupled with his intent to exercise that control. ~.-~ Commonwealth v. Chenet, 373 A.2d 1107_, 1108 (Pa ... Super. 1977). It is well settled that the Commonwealth may use circumstantial evidence to demonstrate a defendant's constructive 7 possession of a controlled substance. Maco lino, 469 A.2d at 13 5-136 ( citing Commonwealth v. Bentley, 419 A.2d 85, 87 (Pa. Super. 1980)). The Commonwealth can also establish intentto deliver by direct evidence or it can be -~~,;,,,;p,· inferred from the totality of the circumstances. Conaway, 791 A.2d at 362-363. Some of the factors courts have considered when determining intent to deliver are the method of packaging, the form of the drug, and the behavior of the defendant. Id. In the case at bar, the Commonwealth presented sufficient evidence to sustain the ,c.,,- ····~~.:'f.~ 13