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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
CHARLES FRAZIER, :
:
Appellant : No. 519 WDA 2016
Appeal from the Judgment of Sentence March 11, 2016
in the Court of Common Pleas of Erie County,
Criminal Division at No(s): CP-25-CR-0002474-2015
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED: January 11, 2017
Charles Frazier (Appellant) appeals from the judgment of sentence
entered March 11, 2016, following his convictions for possession of a small
amount of marijuana and possession of drug paraphernalia. We affirm.
The trial court aptly summarized the relevant factual history as
follows.
On July 3, 2015, Officer Joshua Allison and Corporal Kevin
Fries were patrolling at approximately 2:20 a.m. in a marked car
and full uniform when they observed a car fail[] to come to a
complete stop at a stop sign. The officers conducted a traffic
stop and illuminated the car with spotlights. While stopped
behind the vehicle, the officers could tell the front passenger[,
later identified as Appellant,] was ducking down multiple times.
The officers approached the car and when the windows rolled
down they could smell the distinct odor of marijuana. [Following
a search of the vehicle,] Officer Allison found a baggie of
marijuana under the front passenger seat where Appellant was
seated. The area was not accessible to anyone else in the car.
Appellant was arrested and transported to the police barracks to
*Retired Senior Judge assigned to the Superior Court.
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be processed. Once there, Appellant indicated he smoked
marijuana, which was recorded on the intake questionnaire.
During trial, Appellant moved for judgment of acquittal,
arguing there was insufficient evidence to support the guilty
verdict, as the Commonwealth did not introduce chemical
evidence regarding the identity of the substance found. [On
January 14, 2016, Appellant was found guilty after a trial by jury
of possession of a small amount of marijuana and possession of
drug paraphernalia.] On January 25, 2016, Appellant filed a
motion for post-trial relief, renewing the []sufficiency argument[,
which was denied]. Appellant was sentenced on March 11, 2016
to a total term of 13 months of probation and $600.00 in fines.
On April 11, 2016, Appellant filed a notice of appeal.
Appellant filed a concise statement of [errors] complained of on
appeal on May 3, 2016[.]
Trial Court Opinion, 5/10/2016, at 1-2 (citations and unnecessary
capitalization omitted).
Appellant raises one issue for our review: whether the evidence was
sufficient to convict him of possession of a small amount of marijuana and
possession of paraphernalia where the Commonwealth “failed to produce a
drug analysis lab report of the alleged controlled substance.” Appellant’s
Brief at 2. We address this claim mindful of our well-settled standard of
review.
The standard we apply in reviewing the sufficiency of 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
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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. Helsel, 53 A.3d 906, 917-18 (Pa. Super. 2012)
(quoting Commonwealth v. Bricker, 41 A.3d 872, 877 (Pa. Super. 2012)
(citations omitted)).
To sustain a conviction for possession of a small amount of marijuana,
the Commonwealth was required to prove that Appellant knowingly or
intentionally possessed an amount of marijuana less than 30 grams. 35 P.S.
§ 780–113(a)(31). To sustain a conviction for possession of drug
paraphernalia, the Commonwealth was required to prove that Appellant
possessed drug paraphernalia for the purpose of, inter alia, “storing,
containing, concealing, injecting, ingesting, inhaling or otherwise introducing
into the human body a controlled substance.” 35 P.S. § 780-113(a)(32).
Appellant does not challenge the sufficiency of the evidence as it
relates to possession; rather, he contends that the Commonwealth failed to
meet its burden because it never established through chemical analysis the
identity of the substance he possessed. Appellant’s Brief at 5-8.
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Appellant’s argument is meritless. It is “well-established in this
Commonwealth that the identity of illegal narcotic substances may be
established by circumstantial evidence alone, without any chemical analysis
of the seized contraband.” Commonwealth v. Minott, 577 A.2d 928, 932
(Pa .Super. 1990); see also Commonwealth v. Stasiak, 451 A.2d 520
(Pa. Super. 1982); Commonwealth v. Williams, 428 A.2d 165 (Pa. Super.
1981). See generally Commonwealth v. Boyd, 763 A.2d 421, 424 (Pa.
Super. 2000) (collecting cases) (recognizing “the Commonwealth may rely
on circumstantial evidence to prove the identity of the fluid or material”).
Acknowledging the above, the trial court addressed Appellant’s
argument as follows.
Officer Joshua Allison and Officer Kevin Fries each testified
at trial [that] the substance found under Appellant’s seat was
marijuana.
Officer Allison has been a police officer since 2009. He
worked in Florida for 4 years before moving back to
Pennsylvania. Officer Allison has extensive experience dealing
with marijuana and has been involved in over 100 cases, ranging
from small amounts to locating the largest outdoor marijuana
grow in Pasco County, Florida. He is familiar with the smell of
burnt marijuana and unburnt marijuana as well as how it is
packaged at different levels of distribution and paraphernalia
used to smoke it. Unlike narcotics that have a white powdery
appearance and can be difficult to identify, Officer Allison
testified marijuana has a distinct look and smell that is unique.
In his 6 years of experience, Officer Allison has never had a case
or heard of a case where suspected marijuana was determined
not to be marijuana after chemical testing.
In this case, Officer Allison smelled the odor of burnt
marijuana as soon as the driver rolled down his window. Officer
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Allison found a baggie of the green organic material during the
search under Appellant’s seat. As soon as he saw the substance,
he knew exactly what it was based on “the way it looked, the
way it was packaged, and [the] obvious odor of marijuana”
which is “very distinct and there’s only one thing that smells like
marijuana.” [Officer Allison testified that n]othing about the
[recovered] substance caused any doubts as to its identity.
Corporal Kevin Fries has been a police officer with the City
of Erie Police Department for over 16 years and during this time
he had been involved in hundreds of drug cases. Based on his
training and experience, Corporal Fries is very familiar with the
distinct odor associated with marijuana. [In this case, h]e
smelled a mix of burnt and unburnt marijuana coming from the
vehicle as he approached the passenger side. He testified that
he dealt with [marijuana] “all the time on the street” in the
course of his patrols. Therefore, he knew the substance
recovered from under Appellant’s seat was marijuana by its look
and smell as soon as he saw it.
Appellant argues the testimony of the officers in this case
is not sufficient to prove the substance was marijuana as neither
[officer was a member] of the vice unit. However, the unit to
which an officer is assigned does not mean he does not have
adequate training and experience to identify marijuana. Officer
Allison has 6 years of experience; Corporal Fries has over 16
years of experience. Each has extensive training and experience
related to drugs generally and marijuana specifically. The fact
that neither officer was assigned to the vice unit does not negate
that experience. At most, this fact would affect the officers’
credibility, a factor for the jurors to consider.
The fact there was no chemical analysis of the substance
[recovered] was also a factor for the jury to consider. The
officers were questioned extensively about the decision not to
test the substance as well as their interpretation of the
[Pennsylvania State Police] Bureau of Forensic Services Policy,
which guided their decision. The officers explained that a small
amount of suspected marijuana, less than 30 grams, was not
routinely sent to the Pennsylvania State Police Lab for testing if
it could be identified by sensory indicators because of the high
expense, the time it took to test the drugs and the backlog faced
by the lab. Even if this decision was made based on [a]
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misunderstanding of the Policy or the Policy was misconstrued
during testimony, the outcome is the same. The drugs were not
tested. The jury was fully aware of this fact, as well as the
rationale of the officers’ decision, in evaluating the evidence
presented at trial.
The Commonwealth also introduced an intake
questionnaire that recorded Appellants’ responses to a series of
questions that indicated he [used] marijuana. Not only is this
circumstantial evidence [that] the substance found was
Appellant’s but also that the substance was in fact marijuana.
Based on this evidence, the jury found the Commonwealth
proved beyond a reasonable doubt [that] the substance
possessed by Appellant was a controlled substance. It was
within the province of the jury to pass upon the credibility of
[the] witnesses and determine the weight to be accorded the
evidence adduced. Giving the Commonwealth all reasonable
inferences, sufficient evidence [was] presented at trial for the
jury to find the officers credible, despite the lack of chemical
testing.
Hence, a review of the record and consideration of the
jury’s verdict confirms the Commonwealth met its burden of
proof with respect to the crime of possession of a small amount
of marijuana. As the paraphernalia charged [was] related to the
baggie in which the marijuana was found and Appellant is not
challenging the sufficiency of the evidence as to possession, the
fact [that] the substance was marijuana was proven beyond a
reasonable doubt establishes every element of the crime of
possession of paraphernalia[.]
Trial Court Opinion, 5/10/2016, at 3-5 (citations and references to notes of
testimony omitted).
We agree with the trial court that the evidence presented was
sufficient to convict Appellant of possession of a small amount of marijuana
and possession of drug paraphernalia. Minott, 577 A.2d at 932.
Accordingly, based on the foregoing, Appellant’s claim that the evidence was
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insufficient to support his convictions fails. Thus, we affirm Appellant’s
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2017
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