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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LEWIS ALLEN,
Appellant No. 3201 EDA 2015
Appeal from the Judgment of Sentence September 17, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014063-2014
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 17, 2016
Appellant Lewis Allen appeals from the judgment of sentence entered
in the Court of Common Pleas of Philadelphia County on September 17,
2015, following a bench trial and conviction of Possession of a Controlled
Substance (heroin) and Possession with Intent to Deliver a Controlled
Substance (heroin) (“PWID”). 1 Following a review of the record, we affirm.
The trial court set forth the relevant facts and procedural history
herein as follows:
Officer Ryan Pownall testified that on October 3, 2014, at
8:11 PM, his tour of duty took him to the 4700 block of Marple
Street in the city and county of Philadelphia. N.T. 6/30/15 7:
11-13. From his marked vehicle, he observed a white female
approach the Appellant. N.T. 6/30/15 9:9-12. After a brief
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35 P.S. §§ 780-113(a)(16) and (a)(30), respectively.
*Former Justice specially assigned to the Superior Court.
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conversation, she attempted to hand the Appellant currency and
he attempted to take it. N.T. 6/30/15 10:2-3. However, the
white female and the Appellant spotted Officer Pownall and
retracted their hands. N.T. 6/30/15 10:4-7.
Officer Pownall noted that he had approximately seven
years of experience as a Philadelphia police officer in the 15 th
district and knew the vicinity of the 4700 block of Marple Street
to be a high narcotics and high crime area. N.T. 6/30/15 16:6-
19. Based on his experience, and on his observations, he
believed that the white female and the Appellant were engaging
in a narcotics transaction. N.T. 6/30/15 18:9-10.
Accordingly, Officer Pownall exited his car and approached
the white female and the Appellant. The Appellant ran away.
N.T. 6/30/15 10:13. Officer Pownall chased after the Appellant
and yelled at Appellant to stop. N.T. 6/30/15:12-16. After
running two blocks, Appellant reached into his right pants pocket
and tossed out packets. N.T. 6/30/15 10:22-25. Officer Pownall
ran past the packets, tackled, and arrested the Appellant. N.T.
6/30/15 11:5-7. After arresting the Appellant, Officer Pownall
walked back six or seven feet to where the Appellant tossed the
packets. N.T. 6/30/15 12:20-22. There, he recovered fourteen
clear baggies with blue inserts. N.T. 6/30/15 16:2. These
baggies were later confirmed to be packets of heroin. N.T.
6/30/15 29:11-13. Officer Pownall also recovered $457.00 from
the Appellant’s person. N.T. 6/30/15 12:25-13:4. Despite the
efforts of Officer Pownall and his partner, they were unable to
locate the white female. N.T. 6/30/15 15:4-9.
At the conclusion of the bench trial, the Court found the
Appellant guilty of [PWID] and Intentional Possession of a
Controlled Substance. On September 17, 2015, this Court
sentenced Appellant to 2 ½ to 5 years of incarceration, to be
followed by 5 years of reporting probation to be supervised by
the state. On October 16, 2015, Appellant filed a Notice of
Appeal to the Superior Court. On December 28, 2015, Appellant
submitted a Statement of Matters Complained of on Appeal.
Trial Court Opinion, filed 2/5/16, at 1-2.
In his brief, Appellant presents the following Statement of Question
Involved:
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Was the evidence insufficient to support the charge of
possession with intent to deliver because the evidence failed to
establish that Appellant intended to deliver drugs as the
evidence showed simply that Appellant was observed appearing
to accept currency and without more there was no evidence
presented indicating that the packets he possessed were
possessed for purposes of distributing them?
Brief for Appellant at 3.2
The well-settled standard of review this Court applies to sufficiency of
the evidence claims requires us to consider:
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 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. Brooks, 7 A.3d 852, 856-57 (Pa.Super. 2010)
(citations omitted).
The Crimes Code defines PWID as follows:
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Appellant does not challenge his Possession of a Controlled Substance
conviction.
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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).
To obtain a conviction for possession of narcotics with the intent to
deliver, the Commonwealth must prove beyond a reasonable doubt both that
the defendant possessed a controlled substance and that did so with the
intent to deliver the same. Commonwealth v. Aguado, 760 A.2d 1181,
1185 (Pa.Super. 2000) (en banc). All the facts and circumstances
surrounding possession are relevant in determining whether one possessed
contraband with an intent to deliver it, and the Commonwealth may
establish the essential elements of the crime wholly by circumstantial
evidence. Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa.Super. 2008),
appeal denied, 964 A.2d 894 (Pa. 2009); Commonwealth v. Bricker, 882
A.2d 1008, 1015 (Pa.Super. 2005).
In addition, our Supreme Court has explained that where the quantity
of the controlled substance is not dispositive as to one’s intent to deliver it, a
court may look to other factors, including:
the manner in which the controlled substance was packaged, the
behavior of the defendant, the presence of drug paraphernalia,
and [large] sums of cash found in possession of the defendant.
The final factor to be considered is expert testimony. Expert
opinion testimony is admissible concerning whether the facts
surrounding the possession of controlled substances are
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consistent with an intent to deliver rather than with an intent to
possess it for personal use.
Commonwealth v. Ratsamy, 934 A.2d 1233, 1237–38 (Pa. 2007) (citation
and quotation marks omitted).
Instructive herein is this Court’s analysis set forth in In re Evans, 717
A.2d 542 (Pa.Super. 1998). Therein, police observed Evans, a juvenile, and
two other men standing on a street in a high crime area. Id. at 543. When
Evans noticed the officers, he appeared startled and quickly turned away
while holding the waistband of his pants. Id. After the officers exited their
vehicle, Evans threw an object to the ground. Id. Police recovered the
object, a clear plastic bag containing nine, individually wrapped pieces of
crack cocaine and weighing a total of 1.03 grams. Id. at 543–44.
Thereafter, the trial court adjudicated Evans delinquent, and he appealed
challenging, inter alia, the sufficiency of the evidence to support his
adjudication of delinquency for PWID. Id. at 544. This Court affirmed and in
doing so found it had been reasonable for the trial court to infer Evans’
intent to deliver as he had been detained in a high crime area in possession
of nine individually wrapped packets of crack cocaine and did not possess
paraphernalia for personal use. Id. at 546.
Herein, Appellant does not dispute that he possessed fourteen,
individually wrapped packets of heroin but rather maintains the evidence
was insufficient to prove he possessed the requisite intent to deliver the
drugs. Appellant asserts there was no testimony he ever exchanged the
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contraband with the unidentified woman and that the “de minimus” amount
of heroin he carried was consistent with an amount a user typically would
possess and use in a day or two. Brief for Appellant at 8, 10, 13-15.3 Yet,
while Appellant points out that the Commonwealth presented no evidence
that Officer Pownall knew Appellant to be a drug dealer, he also stresses no
evidence was offered that he used drugs. Id. at 17.
Appellant further argues his behavior does not support his conviction,
states no drug paraphernalia was found on his person, and reasons that it is
debatable whether the $457.00 he possessed qualifies as a large sum of
money. Id. at 15-17. He also notes the drugs were not bundled together.
Brief for Appellant at 8. Finally, Appellant contends the lack of any expert
testimony to establish Appellant possessed the heroin with an intent to
deliver it factors heavily in his favor. Id. at 17-18.
Appellant essentially suggests this Court should view the record in the
light most favorable to him and posits that the verdict was based on
circumstantial evidence so weak that it cannot support a PWID conviction.
In doing so, Appellant disregards this Court’s standard of review. See
Brooks, 7 A.3d at 856. Applying that standard and after viewing the
evidence in the light most favorable to the Commonwealth as the verdict
winner, together with all reasonable inferences therefrom, we conclude the
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The record does not reveal the total gram weight of the heroin or what
amount was contained in each individual packet.
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Commonwealth presented sufficient evidence to support Appellant’s PWID
conviction.
As in In re Evans, supra, Appellant’s behavior observed by Officer
Pownall suggested an intent to deliver. At trial, Officer Pownall testified the
notoriously high-crime area in which he encountered Appellant and the
unidentified woman at night was known for drug activity. N.T., 6/30/15, at
16-17, 22. When the pair observed Officer Pownall, who was dressed in full
uniform, the woman withdrew the handful of money she was about to give
Appellant and, along with Appellant, fled. Officer Pownall pursued Appellant
and watched him discard the fourteen individually packaged portions of
heroin after he pulled them from his right pants pocket. Id. at 10-11.
When conducting a search pursuant to Appellant’s arrest, Officer
Pownall discovered Appellant had a considerably large amount of cash,
$457.00, on his person, although he did not recover any drug-use
paraphernalia. Id. at 13. While Appellant argues the lack of drug
paraphernalia weighs in his favor, this absence has been viewed as
suggesting the opposite. See Commonwealth v. Ratsamy, 934 A.2d
1233, 1238 (Pa. 2007) (stating “possession with intent to deliver can be
inferred from the quantity of the drugs possessed and other surrounding
circumstances, such as lack of paraphernalia for consumption”); see also
Commonwealth v. Torres, 617 A.2d 812, 814 (Pa.Super. 1992) (absence
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of paraphernalia for consumption of cocaine provides inference of intent to
deliver).
Furthermore, Officer Pownall testified each heroin packet was of the
same size, shape and color and packaged in a clear baggie with a blue insert
N.T., 6/30/15 at 27. Although Appellant finds support in the fact the
individual packages were not bundled together, to the contrary, “it is
reasonable to infer that the individual wrappings facilitated their
distribution.” In re Evans, 717 A.2d at 546. In addition, upon seeing
police, Appellant attempted to run away. Appellant’s flight and that of the
unidentified woman, who never was found, may be deemed as indicative of
his consciousness of guilt. Commonwealth v. Hudson, 955 A.2d 1031
(Pa.Super. 2008).
Moreover, contrary to Appellant’s claims, expert testimony is not
necessary to support a conviction when the facts established at trial proved
beyond a reasonable doubt that defendant was guilty of each and every
element of the crime charged. See Commonwealth v. Harper, 611 A.2d
1211, 1217 (Pa.Super. 1992) (sufficiency question is determined by the
evidence on the record, not supposed “missing” evidence). In light of the
foregoing, expert testimony was unnecessary in the instant matter because
the Commonwealth presented sufficient evidence to establish appellant's
guilt beyond a reasonable doubt through the eyewitness testimony of Officer
Pownall.
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Based on the foregoing, there was sufficient evidence presented at
trial for the trial court to convict Appellant of PWID (heroin). As such,
Appellant’s claim lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2016
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