J-S28034-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEREMY MARK KIRSCH, :
:
Appellant : No. 1526 WDA 2016
Appeal from the Judgment of Sentence September 13, 2016
in the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000693-2016
BEFORE: OLSON, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 10, 2017
Jeremy Mark Kirsch (Appellant) appeals from the judgment of
sentence imposed following his convictions for operating a
methamphetamine laboratory; possession of a controlled substance with
intent to deliver; illegal dumping of methamphetamine waste; possession of
phenylpropanolamine, phenyl acetone, methylamine, ammonium sulfate,
ammonium nitrate, phenyl acetic acid or a precursor substance with intent to
unlawfully manufacture a controlled substance; risking catastrophe;
possession of a controlled substance; possession of paraphernalia;
possession of ephedrine, pseudoephedrine or phenylpropanolamine, or any
of their salts, optical isomers or salts of optical isomers with the intent to
manufacture methamphetamine; and recklessly engendering another
person. We affirm.
*Retired Senior Judge assigned to the Superior Court.
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This case stems from Appellant’s operation of a
methamphetamine laboratory from his residence located at
11780 Middle Road, Lot 4, East Springfield Twp., Erie County. On
January 26, 2016, Pennsylvania State Police troopers served a
search warrant at Appellant’s residence and uncovered a
sophisticated surveillance system, methamphetamine, and
various items used to manufacture and sell methamphetamine.
These items were located inside Appellant’s mobile home,
detached shed, and the trunk of a car located on the property.
Troopers also recovered methamphetamine from an individual
who had just purchased the drugs from Appellant.
On July 20, 2016, following a two-day jury trial, Appellant
was found guilty of the aforementioned offenses. On September
13, 2016, Appellant was sentenced to an aggregate term of 24
months to [eight] years of imprisonment. Appellant filed a timely
Motion to Reconsider Sentence, which [the trial court] denied on
September 23, 2016. On October 4, 2016, Appellant filed a
timely Notice of Appeal. In response to this Court’s directive,
Appellant filed a Concise Statement of Matters Complained of on
Appeal on November 1, 2016[.]
Trial Court Opinion, 12/2/2016, at 1-2.
On appeal, Appellant challenges the sufficiency of the evidence with
respect to three of his convictions: operating a methamphetamine
laboratory, possession of a controlled substance with intent to deliver, and
risking catastrophe. Appellant’s Brief at 3.
It is well-settled that
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
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mathematical certainty. 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.
… Significantly, we may not substitute our judgment for that of
the fact finder; thus, so long as the evidence adduced, accepted
in the light most favorable to the Commonwealth, demonstrates
the respective elements of a defendant’s crimes beyond a
reasonable doubt, the appellant’s convictions will be upheld.
Commonwealth v. Tukhi, 149 A.3d 881, 886–87 (Pa. Super. 2016)
(internal citations omitted). Credibility of witnesses and the weight of the
evidence produced is within the province of the trier of fact, who is free to
believe all, part, or none of the evidence. Commonwealth v. Scott, 146
A.3d 775, 777 (Pa. Super. 2016).
Appellant contends that the evidence is insufficient to support his
convictions for operating a methamphetamine laboratory and possession
with intent to deliver because no methamphetamine was seized during the
search of his home, vehicle, and shed, and the Commonwealth failed to
establish that Appellant possessed any items recovered during that search.
Appellant’s Brief at 8-9. Further, Appellant argues that the Commonwealth
put forth no evidence to prove that he recklessly created a risk of
catastrophe by dangerous means. Id. at 9-10.
The trial court addressed these claims as follows.
To convict an individual of operating a methamphetamine
laboratory, the Commonwealth must establish:
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A person commits the offense of operating a
methamphetamine laboratory if the person
knowingly causes a chemical reaction involving
ephedrine, pseudoephedrine or phenyl-
propanolamine, or any other precursor or reagent
substance under section 13.1, for the purpose of
manufacturing methamphetamine or preparing a
precursor or reagent substance for the manufacture
of methamphetamine.
35 P.S. § 780-113.4(a)(footnote omitted).
Regarding possession with intent to deliver, the evidence
must establish:
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. § 870-113(a)(30). The Commonwealth establishes the
offense of possession with intent to deliver when it proves
beyond a reasonable doubt that the defendant possessed a
controlled substance with the intent to deliver it. To determine
whether the Commonwealth presented sufficient evidence to
sustain Appellant’s conviction for this offense, all of the facts and
circumstances surround[ing] the possession are relevant and the
elements of the crime may be established by circumstantial
evidence. Furthermore, this offense can be inferred from the
quantity of the drugs possessed along with the other
surrounding circumstances.
Possession is defined as the ability to exercise dominion
and control over an area or object, and the possession may be
actual or constructive. Constructive possession requires proof of
the ability to exercise conscious dominion over the substance,
the power to control the contraband and the intent to exercise
such control. [A]n intent to maintain a conscious dominion may
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be inferred from the totality of the circumstances … [and]
circumstantial evidence may be used to establish a defendant’s
possession of drugs or contraband. The fact that the contraband
is located in an area usually accessible only to the defendant
may lead to an inference that he placed it there or knew of its
presence. Furthermore, our Supreme Court has recognized that
[c]onstructive possession may be found in one or more actors
where the item in issue is in an area of joint control and equal
access.
Delivery is defined by the [Controlled Substance, Drug,
Device, and Cosmetic] 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. Section 780-113(a)(30) does not
require that a party make a profit, it simply prohibits delivery.
Finally, to establish risking a catastrophe, the
Commonwealth must establish:
(a) Risking catastrophe.-A person is guilty of a felony
of the third degree if he recklessly creates a risk of
catastrophe in the employment of fire, explosives, or
other dangerous means listed in subsection (a)2 of
this section.
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2
(a) Causing catastrophe.- - . A person who
causes a catastrophe by explosion, fire, flood,
avalanche, collapse of building, release of
poison gas, radioactive material or other
harmful or destructive force or substance, or
by any other means of causing potentially
widespread injury or damage, including selling,
dealing in or otherwise providing licenses or
permits to transport hazardous materials in
violation of 75 Pa.C.S. Ch. 83 (relating to
hazardous transportation), materials commits
a felony of the first degree if he does so
intentionally or knowingly, or a felony of the
second degree if he does so recklessly
18 Pa.C.S.[] § 3302.
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Here, the evidence adduced at trial established that the
items found within Appellant’s residence, detached shed, and the
trunk of a vehicle located on his property3 included paraphernalia
necessary to manufacture methamphetamine. Troopers also
recovered several baggies which were indicative of packaging
used for the sale of drugs. The recovered items used to
manufacture methamphetamine included evidence of
pseudoephedrine, starter fluid, Coleman cans and Prestone
starting fluid cans, Liquid Fire liquid drain opener, salt
containers, ammonium, ammonium nitrate, lithium batteries,
numerous plastic bottles consistent with one-pot
[methamphetamine] manufacturing, electric grinders, vinyl
tubing, coffee filters and pots, funnels, and a hot plate.
Pennsylvania State Police Trooper Donald Claypoole, a member
of the Clandestine Lab Response Team, testified that the
recovered items were indicative of precursors necessary to
manufactur[e] methamphetamine. Furthermore, Brett Bailor, an
expert witness in the field of forensic science and chemistry,
testified at length on how the seized items, included those he
tested, were used in the manufacturing process for
methamphetarnine; furthermore, he opined to a reasonable
degree [of] scientific certainty that the recovered items were
indicative of a methamphetamine lab. Moreover, information
from the pseudoephedrine tracking database showed Appellant’s
history of 32 purchases of pseudoephedrine, totaling
approximately 1,258 pills, between February 9, 2015 and
January 21, 2016.
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3
During surveillance, the vehicle never left the property.
The evidence at trial further established Appellant resided
at the property, and that prior to the search, he had sold
methamphetamine to Kenneth Ryan [for $100]. Ryan also
informed police that he previously provided Appellant cold pills in
exchange for methamphetamine. Finally, the Commonwealth
established the dangerous nature of manufacturing
methamphetamine in a trailer park, essentially placing other
inhabitants and property at risk of injury. Trooper Shawn Massey
testified that during surveillance, he was overcome by the
chemical smell emanating from Appellant’s property wherein he
suffered from nausea and lightheadedness. Other troopers
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testified that when they opened the vehicle’s trunk, a cloud of
fumes came blasting up into their faces.
Based on the above, the evidence, as well as all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as the verdict winner, was
sufficient to sustain the jury’s verdict at the challenged counts.
Trial Court Opinion, 12/2/2016, at 3-6 (some citations omitted).
In addition to the aforementioned testimony, the Commonwealth
presented at trial a cable bill addressed to Appellant at the address
searched.1 N.T., 7/19/2016, at 40. A set of keys fitting the trunk of the
vehicle was recovered during the search of the residence. Id. at 47-48.
Trooper Massey testified that, on the evening that he observed a “very
distinct chemical smell” emanating from the property, he also watched as
Appellant entered the shed and closed the door behind him. N.T.,
7/20/2016, at 40. Id. Thus, the totality of the evidence presented by the
Commonwealth was sufficient to establish that Appellant (1) constructively
possessed the components necessary to operate a methamphetamine
laboratory on his property, (2) intended to create in that laboratory
methamphetamine with the intent to deliver, (3) had actually delivered
methamphetamine to another person on the property at the time of the
search, and (4) recklessly created a risk of catastrophe to surrounding
1
At trial, Appellant stipulated that during his arrest he gave the address
where the search warrant was executed, 11780 Middle Road, Lot 4, East
Springfield Twp., Erie County, as his address. N.T., 7/20/2016, at 11-12.
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residents by creating and storing the product and its individual components
on his property, which was located in a mobile home park.
It is well-established that “the evidence at trial need not preclude
every possibility of innocence, and the fact-finder is free to resolve any
doubts regarding a defendant’s guilt 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.” Commonwealth v. Hughes, 908 A.2d
924, 928 (Pa. Super. 2006). Here, the evidence was more than sufficient to
support the jury’s verdict. Accordingly, Appellant’s claim fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2017
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