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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK JOHNSON :
:
Appellant : No. 338 WDA 2017
Appeal from the Judgment of Sentence February 10, 2017
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000504-2016
BEFORE: OTT, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 21, 2017
Appellant, Mark Johnson, appeals from the judgment of sentence
entered in the Fayette County Court of Common Pleas. He contends there
was insufficient evidence to sustain his conviction for possession with intent
to deliver a controlled substance (“PWID”).1 We affirm.
The trial court summarized the facts of this case as follows:
During the trial, the Commonwealth presented the
testimony of Bryan Kendi, a police corporal for the City of
Connellsville, Fayette County, and a detective with the
Bureau of Investigations Fayette County, and an expert
on controlled drug buys. On July 23, 2015, Officer
Kendi was working with a confidential informant
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*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
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(hereinafter the “CI”) who provided [Appellant’s] name
prior to the transaction.[2] The CI’s person, including all
items of his clothing, was thoroughly searched to be sure
they were free of any contraband prior to the controlled
buy. Likewise, everything inside the passenger
compartment of the vehicle─the dash, the front and back
seats, under the seats, the glove box, the center console,
etc.─was carefully searched to ensure no contraband was
hidden therein. Officer Kendi was present to hear a
telephone communication between the CI and a
person who agreed to sell the CI two twenty dollar
bags of marijuana, typically about one gram. The sale
was to take place in the parking lot of the J.C. Penney
store in the back of the Uniontown Mall in Uniontown,
Fayette County, Pennsylvania.
Officer Kendi and his partner, Detective [Brian] Harvey,
driving an unmarked drug task force vehicle, followed the
CI as he drove to the mall in his own vehicle. Officer Kendi
never lost sight of the CI as he drove, nor did the CI make
any other stops along the route. Upon arriving at the
parking lot, the police officers took up a surveillance
position several parking spaces from the CI’s vehicle.
They had a clear, unobstructed view of the CI’s location.
Shortly after 1:00 P.M. in the afternoon of July 23, 2015, a
blue Ford Explorer arrived in the lot and pulled in by the
CI’s vehicle. [Appellant], who was clearly seen by
Officer Kendi on the day of the crimes and identified
by the officer for the jury at the trial, exited the
passenger side of the Explorer and got into the passenger
side of the CI’s vehicle. Officer Kendi observed
movements inside the CI’s vehicle that were consistent
with a hand-to-hand buy although he did not actually see
the transaction itself. After [Appellant] left the CI and re-
entered the passenger side of the Ford Explorer, said
vehicle drove off out of the parking lot. The police
officers then followed the CI back to the undisclosed
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2
The officer testified that “we do a little research on the target and the
information that I did get was [sic] picture from the driver’s photo ID, not
only to know who we are dealing with but to use that for identification.”
N.T., 2/6/17, at 8.
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location where the CI turned over to Officer Kendi
two small baggies of suspected marijuana, after
which the CI’s persona and vehicle were again searched
and found to be free of contraband. Also gone was forty
dollars ($40.00) in task force funds that had been provided
for the CI to use in making the buy. Officer Kendi later
transported the suspected marijuana to the State Police
Crime Lab in Greensburg, Westmoreland County, where it
was tested and determined with certainty to be two point
seven (2.7) grams of marijuana.
Trial Ct. Op., 3/7/17, at 1-3 (citations omitted and emphases added).
At trial, Officer Harvey testified for the Commonwealth. N.T. at 50.
[The Commonwealth:] . . . You were involved since the
beginning as well with Mr. Kendi so I will just speed up
toward the end. At some point did you go to the
Uniontown Mall for a controlled buy to monitor?
A: Yes, sir.
Q: What vehicle were you in?
A: I was in Detective Kendi’s vehicle.
Q: You were in an undercover and unmarked vehicle?
A: Yes.
Q: Can you tell the [c]ourt what happened when you guys
got to the location of the mall?
A: Yes. We followed the informant to the mall. He parked
and we parked in a location a short distance away so that
we could keep him and the vehicle under constant view.
Q: At that time was there any─was the target vehicle there
at that time when you first arrived there?
A: Not when we first arrived, no.
* * *
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Q: Sir, can you describe the layout of where your vehicle
was in connection to any other vehicle there, particularly
the CI’s vehicle?
A: We were parked approximately fifty to seventy-five feet
away. There was no vehicle in between us and the CI’s
vehicle.
Q: Okay. And can you tell the Court what happened next?
A: A short time later, a blue Ford Explorer entered the lot
from behind us and pulled up next to where the CI was
and someone got out of the passenger side of the vehicle,
walked around the front and entered the passenger side of
the CI’s vehicle.
Q: Did anything obstruct your view during that time
frame?
A: No, sir.
* * *
Q: And you were able to observe the target as far as
getting out of the Explorer, from the time that he exited
the vehicle until he re-entered it?
A: Yes.
Q: Were you able to get a good look at the suspect?
A: Yes.
* * *
Q: And you said that you did the [sic] get the opportunity
prior to view a photograph of the suspect?
A: Yes, sir.
Q: Did the person that you saw match the photograph?
A: They did, yes.
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Q: Now, sir, the individual that you identified at the time
or thought was [Appellant], do you see here [sic] him in
the courtroom today?
A: Yes, sir.
* * *
[The Commonwealth:] Let the record reflect that the
witness has identified [Appellant].
Id. at 51-54.
At trial, Douglas John Samber, a forensic scientist with the
Pennsylvania State Police in Greensburg, testified as an expert for the
Commonwealth. Id. at 44.
[The Commonwealth:] Do you have an estimate as how
many times since 2001 that you have tested marijuana to
determine whether it is─test to see if it is marijuana?
A: At least one thousand, conservatively speaking.
* * *
To positively identify marijuana, we use three tests. There
is no instrumentation. The forensic community accepts the
three methods of confirmatory tests for marijuana. We
look at it microscopically and there are structures specific
to marijuana and if it has those structures, then it is
positive. We do a color test and simple chromatography.
* * *
Q: Sir, what were your conclusions with the [sic] respect
to the weight and analysis of the item?
A: The weight of the two items contained two point seven
zero grams and contained marijuana, a schedule one.
Q: Okay. Would you say that this opinion was made within
a reasonable degree of scientific certainty?
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A: Yes.
Id. at 45, 47-48.
Following a jury trial, Appellant was found guilty of PWID. On
February 10, 2017, he was sentenced to nine to twenty-four months’
imprisonment.3 This timely appeal followed. Appellant filed a court-ordered
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The trial
court filed a responsive opinion.
Appellant raises the following issue for our review: “Whether the
evidence was legally and factually insufficient to prove that [Appellant] was
guilty of possession with the intent to deliver and delivery of a controlled
substance?” Appellant’s Brief at 7. Appellant contends
[t]he Commonwealth did not present evidence beyond a
reasonable doubt that Appellant was guilty of the crime
charged.
Specifically, Appellant argues that the Commonwealth
failed to present sufficient evidence through its witnesses
to establish beyond a reasonable doubt that he was guilty
of the crime charged. It is clear that the jury was
confused in this matter and could not have found the
Appellant guilty beyond a reasonable doubt.
The evidence was insufficient to sustain the verdict as
the Commonwealth failed to prove each and every element
of the crimes charged. The evidence was insufficient to
establish that Appellant was guilty beyond a reasonable
doubt of the crimes charged.
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3
The sentence in the case sub judice was to run concurrently with a
sentence imposed at No. 906 of 2016. See Sentence, 2/10/16/ at 2.
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* * *
Based on the testimony and evidence presented, the
Commonwealth failed to present sufficient evidence
regarding the identification of the Appellant. The
Commonwealth further failed to establish that [Appellant]
delivered marijuana to the informant on the day in
question.
Appellant’s Brief at 12, 16.
As a prefatory matter, we consider whether Appellant has waived the
sufficiency of the evidence claim. The issue presented in Appellant’s Rule
1925(b) statement is as follows: “Whether the evidence was legally and
factually insufficient to prove that [Appellant] was guilty pf possession with
the intent to deliver and delivery of a controlled substance?” Appellant’s
Pa.R.A.P. 1925(b) Statement, 3/1/17, at 1.
In Commonwealth v. Garang, 9 A.3d 237 (Pa. Super. 2010), this
Court opined: “[W]hen challenging the sufficiency of the evidence on
appeal, the [a]ppellant's 1925 statement must specify the element or
elements upon which the evidence was insufficient in order to preserve the
issue for appeal.” Id. at 244 (citations and quotation marks omitted).
However, our Supreme Court in Commonwealth v. Laboy, 936 A.2d 1058
(Pa. 2007), held that although the appellant’s Rule 1925(b) statement did
not develop a sufficiency of the evidence claim, this Court “should have
afforded the requested sufficiency review” in a “relatively straightforward
drug case.” Id. at 1060. In the instant case, although Appellant’s 1925(b)
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statement failed to develop the sufficiency of the evidence claim, we decline
to find waiver on this basis.4 See id.
Our review is governed by the following principles:
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
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
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4
We note that in his brief, Appellant avers that he “challenges the weight
and sufficiency of the evidence to support his conviction . . . .” Appellant’s
Brief at 10. In Commonwealth v. Griffin, 65 A.3d 932 (Pa. Super. 2013),
this Court held the defendant
did not preserve a weight of the evidence claim through
inclusion in his court-ordered Rule 1925(b) Statement, and
thus [the trial court’s] Rule 1925(a) Opinion does not
address it. As such, we find this allegation waived for
purposes of appeal.
Id. at 938. Similarly, in the case at bar, Appellant did not raise the weight
of the evidence claim in his Rule 1925(b) statement. Therefore, we find it
waived. See id.; Pa.R.A.P. 1925(b)(4)(vii). Furthermore, Appellant did not
raise the issue of the weight of the evidence in the trial court. See
Pa.R.Crim.P. 607.
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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. Ratsamy, 934 A.2d 1233, 1236 n.2 (Pa. 2007) (citation
omitted).
In Commonwealth v. Little, 879 A.2d 293 (Pa. Super. 2005), this
Court
consider[ed] whether the Commonwealth presented
sufficient evidence to sustain [the defendant’s] conviction
for possession with intent to deliver. Section 780-
113(a)(30) of The Controlled Substance, Drug, Device and
Cosmetic Act prohibits the following acts:
[T]he 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)(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 [the defendant’s] conviction
for possession with intent to deliver, all of the facts and
circumstances surrounding the possession are relevant and
the elements of the crime may be established by
circumstantial evidence.
Id. at 297 (some citations omitted).
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In conducting a sufficiency of the evidence review, we view all of the
evidence in the light most favorable to the Commonwealth as verdict winner.
See Ratsamy, 934 A.2d at 1236 n.2. The elements of the crime may be
established by circumstantial evidence. See Little, 879 A.2d at 297.
Instantly, the Commonwealth’s expert witness, Officer Kendi, testified
that he heard a telephone conversation between the CI and an individual
who agreed to sell the CI marijuana. The expert also testified that he saw
Appellant get into the passenger side of the CI’s vehicle. He observed
movements inside the CI’s vehicle that were consistent with a hand-to-hand
transaction. The police officers followed the CI back to an undisclosed
location at which time the CI gave Officer Kendi two bags of suspected
marijuana.
Officer Harvey also testified to monitoring the controlled buy. He
identified Appellant as the target who entered the passenger side of the CI’s
vehicle. The jury also heard expert testimony from the Commonwealth’s
forensic scientist who positively identified the contents of the bags as
marijuana.
In light of this record, we find the evidence, when viewed in a light
most favorable to the Commonwealth, was sufficient to establish that
Appellant delivered marijuana to the CI. See Ratsamy, 934 A.2d at 1236
n.2. We find there was sufficient evidence to sustain Appellant’s conviction
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for PWID. See Little, 879 A.2d at 297. Accordingly, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2017
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