J-A15027-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JONATHAN DOUGLAS CARPER :
:
Appellant : No. 1007 MDA 2017
Appeal from the Judgment of Sentence June 13, 2017
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0002132-2016
BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED JULY 10, 2018
Jonathan Douglas Carper (Appellant) appeals from the judgment of
sentence imposed after a jury convicted him of possession of a controlled
substance and possession with intent to deliver a controlled substance
(PWID).1 Upon review, we affirm.
The trial court summarized the facts introduced at trial as follows:
On June 17, 2016, Patrolman Sturm and Corporal Bucher
encountered [Appellant] in a parking lot in the 100 Block of East
Louther Street. The parking lot was adjacent to an apartment
complex in which [Appellant] lived. They recognized [Appellant]
as a person for whom a warrant had been issued. Upon executing
the warrant, Corporal Bucher performed a search of [Appellant].
He discovered what appeared to be heroin packaged in both
bundles and loose bags. The heroin was hidden in [Appellant’s]
shoe. Altogether, he seized thirty-three (33) bags of suspected
heroin, some of which were stamped with the label “Versace.” He
also seized a cellphone and $89 in cash. Testing later confirmed
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1 35 P.S. §§ 780-113(a)(16), (30).
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that the “Versace” bags only contained heroin, whereas the
unbranded bags contained heroin as well as fentanyl. [Appellant]
did not have any paraphernalia with which to ingest the heroin.
At trial, Corporal Bucher testified as an expert in drug law
enforcement and street-level drug activity. He opined that the
large amount of heroin contained in bundles as well as loose bags
possessed without a means of ingestion would indicate possession
for the purpose of sale rather than for personal use. It is also
significant that [Appellant] was wearing multiple layers of clothing
despite the fact that it was nearly [s]ummer.
Trial Court Opinion, 10/19/17, at 1-2 (footnotes omitted).
On June 13, 2017, the trial court sentenced Appellant to 9 – 23 months
of incarceration. Appellant filed this timely appeal on June 22, 2017.
Appellant and the trial court have both complied with Pa.R.A.P. 1925.
Appellant presents a single issue for our review:
WAS THERE INSUFFICIENT EVIDENCE TO PROVE BEYOND A
REASONABLE DOUBT THAT [APPELLANT] INTENDED TO DELIVER
THE HEROIN IN HIS POSSESSION?
Appellant’s Brief at 5.
We review Appellant's sufficiency of the evidence claim under the
following standard:
The standard we apply in reviewing the sufficiency of the 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
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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. Vargas, 108 A.3d 858, 867–68 (Pa. Super. 2014) (en
banc) (citations omitted), appeal denied, 121 A.3d 496 (Pa. 2015).
Appellant challenges his conviction of PWID under the Controlled
Substance, Drug, Device and Cosmetic Act, which prohibits “the manufacture,
delivery, or possession with intent to manufacture or deliver, a controlled
substance by a person not registered under this act. . . ” 35 P.S. § 780-
113(a)(3). To prove Appellant guilty of PWID, the Commonwealth had to
establish beyond a reasonable doubt that Appellant possessed a controlled
substance and did so with the intent to deliver it. Commonwealth v.
Bricker, 882 A.2d 1008, 1015 (Pa. Super. 2005) (citation omitted). In
determining whether there is sufficient evidence to support a PWID conviction,
all facts and circumstances surrounding the possession are relevant, and the
Commonwealth may establish the essential elements of the crime by
circumstantial evidence. Id. Factors to be considered in determining whether
the drugs were possessed with the intent to deliver include the particular
method of packaging, the form of the drug, and the behavior of the defendant.
Id.
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Appellant argues that the evidence was insufficient to support his
conviction because he possessed only “a small amount of heroin; only one cell
phone; an insignificant amount of money; and paraphernalia to ingest the
heroin.” Appellant’s Brief at 12-13. Appellant contends that the heroin was
“packaged in a manner consistent with personal use,” and his cash sufficed as
paraphernalia based on Corporal Bucher’s testimony that heroin users snort
heroin through rolled bills. Id. at 13-19. Appellant also notes that there was
no testimony about his behavior at the time he encountered the police – in
particular, Appellant “was not observed taking part in any drug transactions”
– which would support the intent to distribute the heroin. Id.
In contrast, the Commonwealth asserts that Appellant was in possession
of “a large quantity of heroin with no paraphernalia or means to facilitate
personal use.” Commonwealth Brief at 5. The Commonwealth also argues
that the jury acted properly in their role as fact-finder in crediting the expert
testimony of Corporal Bucher, who testified to his belief that Appellant was
selling heroin. Id. at 4.
Our review confirms the trial court’s recitation of the facts. The
Commonwealth presented testimony from three witnesses, while Appellant
elected not to testify or present any defense witnesses.
Carlisle Borough Patrolman Michael Sturm testified to encountering
Appellant on June 17, 2016, around 8:30 p.m., “standing next to a vehicle
and another gentleman” in a parking lot. N.T., 3/7/17, at 19-20. As detailed
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below from the testimony of his fellow officer, Patrolman Sturm aided in the
recovery of 33 bags of heroin from Appellant. Id. at 59.
Carlisle Borough Corporal Joshua Bucher was qualified to testify as an
expert in the field of drug law enforcement in Pennsylvania, specifically
Cumberland County and “street-level drug activity in the Borough of Carlisle.”
Id. at 26, 33. Corporal Bucher, like Patrolman Sturm, encountered Appellant
on the evening of June 17, 2016. Corporal Bucher conducted a lawful search
of Appellant, from which he recovered a cell phone and $89 in cash in
Appellant’s pants, and four partial bundles of heroin (a total of 33 bags) in
Appellant’s left shoe. Id. at 35-36, 46. Corporal Bucher analogized a bundle
of heroin, which contains individual bags of heroin, to a carton of cigarettes;
he compared a bag of heroin to a pack of cigarettes. Id. at 36-37. Corporal
Bucher also testified that Appellant was wearing two pairs of shorts. Id. at
37. Significantly – and contrary to Appellant’s argument – Corporal Bucher
opined that Appellant was not in possession of drug paraphernalia. Id. at 38.
He based his conclusion on his view that “on occasion” heroin users will “have
a small straw or even just roll up a bill and use that to snort it,” but “a majority
of the time it’s through a needle.” Id. In this case, Corporal Bucher did not
notice any drug residue on the cash recovered from Appellant, stating, “The
money was all together. None of it looked rolled up when you took it out or
anything like that to indicate that it had been previously rolled to be used to
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snort.” Id. Corporal Bucher stated, “In my opinion, [Appellant] possessed
[the heroin] with the intent to deliver.” Id. at 47. He elaborated:
Like I said before, there are several factors we look at. The
quantity. The fact that there were 33 bags comprised of four
bundles, indicating to me that a bag is being pulled out and sold.
The two individual baggies, again, they were – you know, he’s
pulling bags off and selling them.
A big one, also, is the lack of a means of ingestion. I think
I said earlier, 90 percent of the heroin users will have a needle on
them or another way to ingest it by snorting, either a straw or a
rolled-up dollar bill. Again, like I said, none of these bills appeared
to have been rolled to be used to snort. There was no way for
him to actually ingest the heroin on his person.
...
The fact that it was in his shoe and the fact that he’s
standing right next to his residence, if it was going to be used for
personal use, in my opinion, that would have been kept in his
residence rather than in his shoe. In my opinion, the reason it
was in his shoe is because he was selling bags of heroin to people
as they walked up to him standing outside of his house.
N.T., 3/7/17, at 48.
Finally, Rhonda Hirschl testified to being employed as a forensic chemist
by the Cumberland County District Attorney’s Office and was qualified as an
expert in forensic and analytical chemistry. Id. at 63. She analyzed the five
bags recovered from Appellant and marked “Versace,” as well as 18 of the 28
unmarked bags recovered from Appellant.2 The 18 unmarked bags tested
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2Ms. Hirschl explained that “we have a computer program that statistically
analyzes how many we would have to analyze to get 95 percent confidence in
our results. Because there were 28, the computer program shows that we
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positive for heroin and fentanyl; the five bags tested positive for heroin only.
Id. at 68-69.
On this record, the jury convicted Appellant of PWID. Viewing this
evidence in the light most common to the Commonwealth as verdict-winner,
and recognizing that the Commonwealth may sustain its burden of proving
PWID by “wholly circumstantial evidence,” Bricker, supra, we find no merit
to Appellant’s argument that there was insufficient evidence that he possessed
the heroin with the intent to deliver it. Accordingly, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/10/2018
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would have to fully test 18 of those, so I tested 18 of the 28 and then five of
the five. That’s just time and money saved when you statistically analyze it
rather than do all 28.” N.T., 3/7/17, at 67-68.
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