Com. v. Robertson, K.

J-A14034-22


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KASHIF ROBERTSON                           :
                                               :
                       Appellant               :   No. 1161 MDA 2021

         Appeal from the Judgment of Sentence Entered August 25, 2021
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0002292-2019


BEFORE:       BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                 FILED: AUGUST 16, 2022

        Kashif Robertson appeals from the August 25, 2021 modified, aggregate

judgment of sentence of 2½ to 5 years’ imprisonment, followed by 5 years’

probation, imposed after a jury found him guilty of two counts each of

possession with intent to distribute a controlled substance (“PWID”) and

possession of a controlled substance, and one count of possession of drug

paraphernalia.1 After careful review, we affirm the judgment of sentence.

        The suppression court summarized the factual background of this case

as follows:

              [O]n February 2, 2019, [Appellant] was pulled over
              for a traffic stop by Officer Chad McGowan of the
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32), respectively.
J-A14034-22


           Harrisburg Police Department for illegal window tint.
           During the traffic stop, Officer McGowan asked
           [Appellant] if he was active with probation or parole.
           [Appellant] responded in the negative. When Officer
           McGowan returned to his vehicle, he informed Adult
           Probation Officers [(hereinafter “PO”)] [Daniel]
           Kinsinger and [Bruce] Cutter that [Appellant]
           indicated that he was not active with probation or
           parole. [POs] Kinsinger and Cutter knew [Appellant]
           to be on probation. Officer McGowan returned to
           [Appellant’s] vehicle, returned his documents, and
           told [Appellant] that he was free to leave.

           Before [Appellant] left, [POs] Kinsinger and Cutter
           approached the vehicle to make contact with
           [Appellant]. [PO] Cutter opened [Appellant’s] door
           and asked him to step out of the vehicle after
           informing [Appellant] that he was in violation of his
           conditions of probation. Once out of the vehicle, [POs]
           Kinsinger and Cutter performed a search of
           [Appellant]’s vehicle. Inside, they found a purple
           Crown Royal bag containing cash totaling $8,000 and
           an empty cigarette container in the center console
           area that contained loose marijuana.

           A search of the [Appellant] showed that he was
           carrying cash totaling $4,598.00 in both his pants
           pocket and his wallet.         The [POs] then took
           [Appellant] to the front of Officer McGowan’s vehicle.
           At this time, Officer McGowan smelled an odor of
           marijuana coming from [Appellant’s] person. [PO]
           Kinsinger conducted a second search of [Appellant’s]
           person and felt a hard lump in [Appellant’s] groin
           area. At this time, [Appellant] was detained and
           placed in handcuffs. As handcuffs were being placed
           on [Appellant], [Appellant] attempted to break free
           and run. The officers were able to detain [Appellant].
           After [Appellant] was secured, [PO] Kinsinger found
           six baggies of cocaine and one baggie of marijuana in
           [Appellant’s] groin area.

Suppression court opinion, 2/10/21 at 1-2.




                                    -2-
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      The trial court summarized the relevant testimony presented at trial as

follows:

           Amber Gegg (hereinafter, Ms. Gegg) of the
           Pennsylvania State Police Harrisburg Regional
           Laboratory offered expert testimony as a drug
           analyst. Ms. Gegg analyzed the narcotics that were
           sent to her regarding Appellant. Through testing, Ms.
           Gegg was able to identify the white substances found
           in the plastic baggies as cocaine and marijuana. The
           powder and crack cocaine weighed approximately 26
           grams.

           Detective John Goshert (hereinafter, “Detective
           Goshert”)     of  the   Dauphin     County     Criminal
           Investigation Division offered expert testimony as an
           expert in the field of street level drug trafficking.
           Detective Goshert testified about the difference
           between powder cocaine and crack cocaine. Detective
           Goshert testified that crack cocaine is cocaine base.
           Crack cocaine, or cocaine base, is a smokable form of
           cocaine that holds its shape. Powder cocaine is
           cocaine that is in a powder form that is either
           dissolved by a heat source in water in order to be
           injected or smoked or snorted in its powder. One can
           differentiate between crack cocaine and powder
           cocaine by looking at the physical consistency of it.
           Detective Goshert testified that the Pennsylvania
           State Police Laboratory does not differentiate between
           crack cocaine and powder cocaine on their reports.
           Detective Goshert further testified that Appellant did
           not have any taxable income from the date Appellant
           was pulled over by Officer McGowan and prior.

           Appellant testified that he was in the process of
           returning drugs that he picked up that day from a
           dealer when he was pulled over by Officer McGowan.
           Appellant stated that he tested the drugs and he was
           not satisfied with the quality. He further testified that
           he had a large amount of cash in his vehicle because
           he worked as a barber and the money was to pay
           taxes.


                                     -3-
J-A14034-22



Trial court opinion, 11/1/21 at 3-4 (citations to notes of testimony omitted).

        On August 1, 2019, Appellant filed an omnibus pretrial suppression

motion challenging the legality of the traffic stop; the scope and duration of

the traffic stop; the actions of the probation officers at the scene of the arrest;

and the legality of the initial pat-down of his person.         Appellant filed a

supplemental motion on October 29, 2019.              Following a hearing, the

suppression court denied Appellant’s suppression motion on August 11, 2020.

On October 7, 2020, Appellant filed a “Petition for Disqualification (Recusal)

of Judge [Deborah E. Curcillo],” which was ultimately denied on October 15,

2020.

        Thereafter, on March 10, 2021, Appellant proceeded to a jury trial and

was found guilty of two counts each of PWID and possession of a controlled

substance and one count of possession of drug paraphernalia. On May 26,

2021, the trial court sentenced Appellant to an aggregate term of 4 to 8 years’

imprisonment, followed by 5 years’ probation. On June 7, 2021, Appellant

filed a post-sentence motion to modify his sentence. Following a hearing on

August 25, 2021, the trial court modified Appellant’s judgment of sentence

and resentenced him to 2½ to 5 years’ imprisonment, followed by 5 years’




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J-A14034-22


probation. This timely appeal followed on September 2, 2021.2 Appellant and

the trial court have complied with Pa.R.A.P. 1925.

       Appellant raises the following issues for our review:

              1.     Did the [suppression] court err when it found
                     reasonable      suspicion    existed      to    stop
                     [Appellant’s] vehicle for a suspected window tint
                     violation, where the seizing officer failed to point
                     to “specific and articulable facts” which led him
                     to suspect criminal activity was afoot for a
                     violation of the inspection manual?

              2.     Did the [suppression] court err when it denied
                     [Appellant’s] OPTM for the Commonwealth’s
                     failure to establish a reasonable suspicion for
                     Dauphin County Adult Probation to seize him
                     after Harrisburg City Police advised him that he
                     was free to leave without an oral or written
                     warning?

              3.     Did the [suppression] court err when it denied
                     [Appellant’s] OPTM by finding that the duration
                     of the traffic stop was proper as the focus of the
                     stop was the suspected window tint violation,
                     and any inquiry as to [Appellant’s] status on
                     supervision or conversations with probation and
                     parole following the officer’s initial encounter as
                     well as the duration of the search unnecessarily
                     prolonged the traffic stop?

              4.     Did the [suppression] court err when it denied
                     [Appellant’s] OPTM for suppression of the
                     evidence when it found that probation and
                     parole did not act like “stalking horses” for the
                     police   by    circumventing      the    warrant
____________________________________________


2We note that although Appellant purports to appeal from the March 10, 2021
guilty verdict, “[i]n a criminal action, appeal properly lies from the judgment
of sentence made final by the denial of post-sentence motions.” See
Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa.Super. 2001)
(en banc), appeal denied, 800 A.2d 932 (Pa. 2002).

                                           -5-
J-A14034-22


               requirement based on reasonable suspicion,
               instead of the heightened standard of probable
               cause, as the search was nothing more than a
               ruse for a police investigation[?]

          5.   Did the [suppression] court err when it denied
               [Appellant’s] OPTM when it found that probation
               and parole did not exceed the scope of Terry
               when the protective search of [Appellant] went
               beyond what was necessary to determine if he
               was armed[?]

          6.   Did the [suppression] court err when it denied
               [Appellant’s] OPTM when it found that the
               second search of [Appellant] by probation
               shaking out his pants did not exceed the scope
               of Terry or the plain feel doctrine[?]

          7.   Did the trial court err when it did not recuse
               itself from this matter due to the appearance of
               impartiality, bias, prejudice or ill will, where the
               court denied [Appellant’s] right to a full
               suppression hearing and continuously allowed
               the Commonwealth to make untimely filings
               pertaining to the suppression matter and wholly
               adopted the Commonwealth’s findings of fact
               and legal conclusions[?]

          8.   Did the Commonwealth present sufficient
               evidence    that   [Appellant]     possessed    a
               controlled substance, specifically crack cocaine,
               and that he did so with the intent to deliver it
               when the only scientific proof presented from
               the laboratory was a report that identified the
               substance as cocaine, not cocaine base[?]

          9.   Did the trial court abuse its discretion in denying
               counsel’s post-sentence motion where the guilty
               verdict for Count 2 — [PWID] (crack cocaine)
               was against the weight of the evidence as the
               Commonwealth failed to present scientific
               evidence in the form of a laboratory report that
               confirmed that the substance that was tested
               was cocaine base[?]

                                   -6-
J-A14034-22



Appellant’s brief at 1-2.


I. Suppression Motion

      Appellant’s first six claims relate to the denial of his suppression motion.

Our standard of review in addressing a challenge to a denial of a suppression

motion is well settled.

            [Our] standard of review in addressing a challenge to
            the denial of a suppression motion is limited to
            determining whether the suppression court’s factual
            findings are supported by the record and whether the
            legal conclusions drawn from those facts are correct.
            Because the Commonwealth prevailed before the
            suppression court, we may consider only the evidence
            of the Commonwealth and so much of the evidence
            for the defense as remains uncontradicted when read
            in the context of the record as a whole. Where the
            suppression court’s factual findings are supported by
            the record, [the appellate court is] bound by [those]
            findings and may reverse only if the court’s legal
            conclusions are erroneous.

Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation

omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).

      “Both the Fourth Amendment of the United States Constitution and

Article 1, Section 8 of the Pennsylvania Constitution guarantee an individual’s

freedom from unreasonable searches and seizures.”           Commonwealth v.

Bostick, 958 A.2d 543, 550 (Pa.Super. 2008) (citation and internal quotation

marks omitted), appeal denied, 987 A.2d 158 (Pa. 2009). “To secure the

right of citizens to be free from such intrusions, courts in Pennsylvania require

law enforcement officers to demonstrate ascending levels of suspicion to


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J-A14034-22


justify their interactions with citizens to the extent those interactions

compromise individual liberty.” Commonwealth v. Reppert, 814 A.2d 1196,

1201 (Pa.Super. 2002) (citation omitted).

      This court has recognized three types of interactions between members

of the public and the police:

            The first of these is a “mere encounter” (or request
            for information) which need not be supported by any
            level of suspicion, but carries no official compulsion to
            stop or to respond. The second, an “investigative
            detention” must be supported by a reasonable
            suspicion; it subjects a suspect to a stop and a period
            of detention, but does not involve such coercive
            conditions as to constitute the functional equivalent of
            an arrest. Finally, an arrest or “custodial detention”
            must be supported by probable cause.

Commonwealth v. Way, 238 A.3d 515, 518 (Pa.Super. 2020) (citation

omitted). Thus, pursuant to the Fourth Amendment, a person may not be

lawfully seized, either by means of an investigative detention or a custodial

detention, unless the police possess the requisite level of suspicion.

      Appellant contends that the suppression court erred in concluding that

Officer McGowan possessed the requisite suspicion to stop his vehicle for a

violation of the Motor Vehicle Code (“MVC”). Appellant’s brief at 26-32.

      The level of suspicion that a police officer must possess before initiating

a traffic stop is codified in 75 Pa.C.S.A. § 6308(b), which provides as follows:

            (b)   Authority of police officer.--Whenever a
                  police officer is engaged in a systematic
                  program of checking vehicles or drivers or has
                  reasonable suspicion that a violation of this title
                  is occurring or has occurred, he may stop a

                                      -8-
J-A14034-22


                  vehicle, upon request or signal, for the purpose
                  of checking the vehicle’s registration, proof of
                  financial responsibility, vehicle identification
                  number or engine number or the driver’s
                  license, or to secure such other information as
                  the officer may reasonably believe to be
                  necessary to enforce the provisions of this title.

75 Pa.C.S.A. § 6308(b).

      This court has long recognized that “mere reasonable suspicion will not

justify a vehicle stop when the driver’s detention cannot serve an investigatory

purpose relevant to the suspected violation.” Commonwealth v. Feczko,

10 A.3d 1285, 1291 (Pa.Super. 2010) (en banc) (citation omitted), appeal

denied, 25 A.3d 327 (Pa. 2011).        Rather, police officers are required to

possess probable cause to stop a vehicle based on observed violation of the

MVC or otherwise non-investigable offense. Id.

      “Pennsylvania law makes clear that a police officer has probable cause

to stop a motor vehicle if the officer observes a traffic code violation, even if

it is a minor offense.”   Commonwealth v. Harris, 176 A.3d 1009, 1019

(Pa.Super. 2017) (citation omitted).

            Probable cause is made out when the facts and
            circumstances which are within the knowledge of the
            officer at the time of the arrest, and of which he has
            reasonably trustworthy information, are sufficient to
            warrant a man of reasonable caution in the belief that
            the suspect has committed or is committing a crime.
            The question we ask is not whether the officer’s belief
            was correct or more likely true than false. Rather, we
            require only a probability, and not a prima facie
            showing, of criminal activity. In determining whether
            probable cause exists, we apply a totality of the
            circumstances test.

                                       -9-
J-A14034-22



Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (internal

quotation marks and citations omitted).

       Instantly, the suppression court found that Officer McGowan’s testimony

at the suppression hearing established that he possessed the requisite

probable cause to stop Appellant’s vehicle for illegal window tint in

contravention of 75 Pa.C.S.A. § 4107(b)(2).3 See suppression court opinion,

2/10/21 at 2-3. We agree with this assessment.

       The record reflects that Officer McGowan testified that in the late

afternoon hours of February 2, 2019, he was on patrol with members of the

Street Crimes Unit when he observed Appellant’s vehicle make a right-hand

turn and began traveling east on the 400 block of Muench Street. Notes of



____________________________________________


3 Section 4107(b)(2), Operating a Vehicle With Unsafe Equipment,
provides as follows:

              (b) Other violations.--It is unlawful for any person to
              do any of the following:

              ....

              (2) Operate, or cause or permit another person to
              operate, on any highway in this Commonwealth any
              vehicle or combination which is not equipped as
              required under this part or under department
              regulations or when the driver is in violation of
              department regulations or the vehicle or combination
              is otherwise in an unsafe condition or in violation of
              department regulations.

75 Pa.C.S.A. § 4107(b)(2).

                                          - 10 -
J-A14034-22


testimony, 2/25/20 at 4-5, 11. Officer McGowan observed that Appellant’s

“front driver’s window was covered with an illegal aftermarket window tint.”

Id. at 5, 12. At this point, Officer McGowan activated his lights and sirens to

conduct a traffic stop, but Appellant did not immediately pull over to the side

of the road. Id. at 5-6. After pulling over, Officer McGowan observed that

Appellant was physically shaking and nervous and exhibited labored

breathing. Id. at 8. Officer McGowan testified that a subsequent test of the

window tint revealed that it registered 17% light transmission, which is well

below the 70% allowed by law.         Id. at 15.    Based on the foregoing, we

conclude the suppression court properly determined that Officer McGowan

possessed the requisite probable cause to stop Appellant’s vehicle for a

violation of Section 4107(b)(2).

      Appellant next argues that his suppression motion should have been

granted because the duration of the traffic stop was improper and Officer

McGowan’s inquiry as to his probation status unnecessarily prolonged the

stop. Appellant’s brief at 43-52. We disagree.

      The United States Supreme Court has long recognized that “[a]n

officer’s inquiries into matters unrelated to the justification for the traffic stop

. . . do not convert the encounter into something other than a lawful seizure,

so long as those inquiries do not measurably extend the duration of the stop.”

Arizona v. Johnson, 555 U.S. 323, 333 (2009). In Commonwealth v. Ellis,

662 A.2d 1043 (Pa. 1995), our Supreme Court held that an additional ten to


                                      - 11 -
J-A14034-22


fifteen minutes of detention did not constitute an impermissible extension of

a traffic stop. Id. at 1049.

      Here, the record reflects that the initial traffic stop in question was

considerably less than fifteen minutes in length. Officer McGowan testified at

the suppression hearing that although he didn’t “feel comfortable putting a

time limit on [the traffic stop],” he did not “feel like it was very long” and

certainly not greater than fifteen minutes. Notes of testimony, 2/25/20 at 10.

Moreover, Officer McGowan’s inquiry of Appellant with respect to his probation

status consisted of a single question, which clearly did not impermissibly

extend the traffic stop. See id. at 8; Ellis, 662 A.2d at 1049. Accordingly,

we find that Appellant’s claim must fail.

      Appellant next argues that the evidence seized as a result of the traffic

stop should have been suppressed because PO Kinsinger and Cutter “act[ed]

like stalking horses for the police[.]” Appellant’s brief at 53-66.

      As discussed more fully infra, the record reflects that POs Kinsinger and

Cutter did not act as police officers in this matter but were merely carrying

out their respective duties as probation officers after being informed by Officer

McGowan that Appellant had lied about his probation status. See notes of

testimony, 2/25/20 at 8-9. It is well settled in this Commonwealth that “[a]

probation officer does not act as a stalking horse if he initiates the search in

the performance of his duties as a probation officer.” Commonwealth v.

Parker, 152 A.3d 309, 321 n.6 (Pa.Super. 2016) (citation omitted); see also


                                     - 12 -
J-A14034-22


Commonwealth v. Altadonna, 817 A.2d 1145, 1152–1153 (Pa.Super.

2003).

        The crux of Appellant’s remaining suppression claims is that his

continued interaction with POs Cutter and Kinsinger transitioned the traffic

stop into an unlawful investigative detention. Appellant’s brief at 33-42, 67-

71.     In support of this contention, Appellant avers that POs Cutter and

Kinsinger lacked reasonable suspicion to seize him; their protective search

exceeded of the scope of Terry4; and that they violated the plain feel doctrine.

Id.

        Preliminarily, we recognize that in Rodriguez v. United States, 575

U.S. 348 (2015), the United States Supreme Court examined the permissible

scope of an officer’s investigation during a traffic stop. The Rodriguez Court

reasoned:

              A seizure for a traffic violation justifies a police
              investigation of that violation.      A relatively brief
              encounter, a routine traffic stop is more analogous to
              a so-called Terry stop ... than to a formal arrest. Like
              a Terry stop, the tolerable duration of police inquiries
              in the traffic-stop context is determined by the
              seizure’s mission — to address the traffic violation
              that warranted the stop and attend to related safety
              concerns. Because addressing the infraction is the
              purpose of the stop, it may last no longer than is
              necessary to effectuate th[at] purpose. Authority for
              the seizure thus ends when tasks tied to the traffic
              infraction are — or reasonably should have been —
              completed.


____________________________________________


4   Terry v. Ohio, 392 U.S. 1 (1968).

                                          - 13 -
J-A14034-22


Rodriguez, 575 U.S. at 354 (citations and internal quotation marks omitted).

      Because Appellant’s claims challenge the ability of POs Kinsinger and

Cutter to conduct a search of his vehicle and person, we observe the following.

“[P]robationers and parolees have limited Fourth Amendment rights because

of a diminished expectation of privacy.” Parker, 152 A.3d at 316 (citation

omitted).

            [POs] need not have probable cause to search a
            [probationer] or his property; instead, reasonable
            suspicion is sufficient to authorize a search.

            A search will be deemed reasonable if the totality of
            the evidence demonstrates: (1) that the [PO] had a
            reasonable suspicion that the [probationer] had
            committed a [probation] violation, and (2) that the
            search was reasonably related to the [PO’s] duty.

Commonwealth v. Wright, 255 A.3d 542, 549–550 (Pa.Super. 2021)

(citations and internal quotation marks omitted), appeal denied, 268 A.3d

374 (Pa. 2021).

      Pursuant to 42 Pa.C.S.A. § 9912(a)(1)(i), “[a] personal search of an

offender may be conducted by [a PO] . . . if there is a reasonable suspicion to

believe that the offender possesses contraband or other evidence of violations

of the conditions of supervision[.]” Id. Subsection 9912(d)(6) sets forth the

following factors the court may consider in determining whether reasonable

suspicion exists:

            (i)     The observations of officers.

            (ii)    Information provided by others.


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J-A14034-22


            (iii)   The activities of the offender.

            (iv)    Information provided by the offender.

            (v)     The experience of the officers with the offender.

            (vi)    The   experience     of     officers   in     similar
                    circumstances.

            (vii) The prior criminal and supervisory history of the
                  offender.

            (viii) The need to verify compliance                with   the
                   conditions of supervision.

42 Pa.C.S.A. § 9912(d)(6).

     In Parker, a panel of this Court observed that,

            [i]n     establishing   reasonable     suspicion,   the
            fundamental inquiry is an objective one, namely,
            whether the facts available to the officer at the
            moment of the intrusion warrant a person of
            reasonable caution in the belief that the action taken
            was appropriate. This assessment, like that applicable
            to the determination of probable cause, requires an
            evaluation of the totality of the circumstances, with a
            lesser showing needed to demonstrate reasonable
            suspicion in terms of both quantity or content and
            reliability.

            The threshold question in cases such as this is
            whether the probation officer had a reasonable
            suspicion of criminal activity or a violation
            of probation prior to the search.

Parker, 152 A.3d at 318 (citations, brackets, and internal quotation marks

omitted).

     Here, our review of the record supports the suppression court’s

conclusion that Appellant was not subjected to an unlawful investigative


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detention when POs Kinsinger and Cutter interacted with Appellant after

Officer McGowan returned to the vehicle and informed Appellant that he

planned to issue him a warning and that he would be free to leave. Viewing

the totality of the circumstances, we conclude that POs Kinsinger and Cutter

possessed the requisite reasonable suspicion to justify a second investigatory

detention to search Appellant’s vehicle and person.

      Specifically, the suppression court opined as follows:

            In the instant case, [POs] Kinsinger and Cutter knew
            [Appellant] was on probation at the time of the traffic
            stop. [Notes of testimony, 2/25/20 at 27.] Officer
            McGowan informed them that [Appellant] stated he
            was not on probation. [Id.] At this point, [POs]
            Kinsinger and Cutter know that [Appellant] is lying
            about his probation status. They also know that
            [Appellant] has been pulled over for a traffic stop due
            to illegal window tint. Using this information, [POs]
            Kinsinger and Cutter decide that they have reasonable
            suspicion to search [Appellant] and his property. [Id.
            at 30-31.] Thus, the probation officers had the
            requisite reasonable suspicion to search [Appellant’s]
            vehicle and his person. We find [Appellant’s]
            arguments are without merit.

Suppression court opinion, 2/10/21 at 5 (citation formatting corrected).

      Following our careful review, we agree with the suppression court’s

assessment and adopt these well-reasoned conclusions as our own.


II. Motion to Recuse

      Appellant next argues that Judge Deborah E. Curcillo was biased against

him and erred by denying his motion that she recuse herself. Appellant’s brief

at 71. Appellant’s claim is premised on his belief that Judge Curcillo “denied


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J-A14034-22



[his] right to a full suppression hearing and continuously allowed the

Commonwealth to make untimely filings pertaining to the suppression matter

and wholly adopted the Commonwealth’s findings of fact and legal

conclusions.” Id. This claim is meritless.

            Our standard of review of a trial court’s determination
            not to recuse from hearing a case is exceptionally
            deferential. We recognize that our trial judges are
            honorable, fair and competent, and although we
            employ an abuse of discretion standard, we do so
            recognizing that the judge himself is best qualified to
            gauge his ability to preside impartially.

Commonwealth v. Harris, 979 A.2d 387, 391–392 (Pa.Super. 2009)

(citations and internal quotation marks omitted).

      “It is the burden of the party requesting recusal to produce evidence

establishing bias, prejudice or unfairness which raises a substantial doubt as

to the jurist’s ability to preside impartially.” Commonwealth v. White, 910

A.2d 648, 657 (Pa. 2006) (citation omitted).

      Here, our independent review of the multiple transcripts in this matter

does not reveal a scintilla of evidence to support Appellant’s contention that

Judge Curcillo “displayed a deep-seated favoritism to the Commonwealth,

which made a fair judgment impossible.” Appellant’s brief at 74. Nor does

the record support Appellant’s contention that he was denied his right to a full

suppression hearing.    The record reveals that trial court conducted a full

hearing on February 25, 2020 and only denied Appellant’s suppression motion

following its comprehensive review of the evidence presented in both parties’



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briefs and at the hearing itself. Accordingly, Appellant’s claim that the trial

court erred in denying his recusal motion must fail.


III. Sufficiency of the Evidence

      Appellant next argues that there was insufficient evidence to sustain his

convictions for possession of a controlled substance and PWID. Appellant’s

brief at 77.

               In reviewing the sufficiency of the evidence, we must
               determine whether the evidence admitted at trial and
               all reasonable inferences drawn therefrom, viewed in
               the light most favorable to the Commonwealth as
               verdict winner, is sufficient to prove every element of
               the offense beyond a reasonable doubt.           As an
               appellate court, we may not re-weigh the evidence
               and substitute our judgment for that of the fact-
               finder. Any question of doubt is for 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.

Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009) (citations

omitted), appeal denied, 4 A.3d 1054 (Pa. 2010).

      To sustain a conviction for the crime of possession of a controlled

substance, the Commonwealth must prove that appellant “knowingly or

intentionally possess[ed] a controlled or counterfeit substance” without being

properly registered to do so under the act. 35 P.S. § 780–113(a)(16). The

crime of PWID requires the Commonwealth to prove an additional element:

that Appellant possessed the controlled substance with the intent to

manufacture, distribute, or deliver it. 35 P.S. § 780–113(a)(30).


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      Here, the crux of Appellant’s claim is that the Commonwealth failed to

prove that he possessed crack cocaine, because “the only scientific proof

presented from the laboratory was a report that identified the substance as

cocaine, not cocaine base.” Appellant’s brief at 77. Viewing the evidence in

the light most favorable to the Commonwealth as the verdict winner, we find

that this claim is entirely devoid of merit.

      The record establishes that during the traffic stop, Appellant was found

in possession of 6 clear plastic baggies containing approximately 26 grams of

powder and crack cocaine, as well as $12,000 in cash. Notes of testimony,

3/10/21 at 38. Officer McGowan testified that he identified the crack cocaine

and powder cocaine by observing the differences in the physical consistencies

of each substance. Id. at 42-44.

      At trial, the Commonwealth presented the testimony of Dauphin County

Detective John Goshert, who testified as an expert in the field of street level

drug tracking. Id. at 170. Detective Goshert testified at great length about

the differences between the powder cocaine and crack cocaine, which is also

known as cocaine base, that was found in the six baggies recovered from

Appellant. Id. at 173-176.

      The record further reflects that Amber Gegg, an expert in the field of

drug analysis with the Pennsylvania State Police Laboratory, testified that the

white substances recovered from Appellant tested positive for cocaine. Id. at

105-106, 114-117. The evidence presented at trial also established that the


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Pennsylvania State Police Laboratory does not differentiate between crack

cocaine and powder cocaine on its reports. Id. at 192.

      Based on the foregoing, we find that the Commonwealth presented

sufficient evidence for the jury to conclude that Appellant knowingly or

intentionally possessed crack cocaine with the intent to distribute it.

Accordingly, Appellant’s sufficiency claim must fail.


III. Weight of the Evidence

      In his final claim, Appellant argues that the verdict was against the

weight of the evidence because “the Commonwealth failed to present scientific

evidence in the form of a laboratory report that confirmed that the substance

that was tested was cocaine base.” Appellant’s brief at 78. We disagree.

      “An allegation that the verdict is against the weight of the evidence is

addressed to the discretion of the trial court.” Commonwealth v. Galvin,

985 A.2d 783, 793 (Pa. 2009) (citation omitted), cert. denied, 559 U.S. 1051

(2010). “[A] true weight of the evidence challenge concedes that sufficient

evidence exists to sustain the verdict but questions which evidence is to be

believed.” Commonwealth v. Miller, 172 A.3d 632, 643 (Pa.Super. 2017)

(citation omitted), appeal denied, 183 A.3d 970 (Pa. 2018).

            [W]here the trial court has ruled on the weight claim
            below, an appellate court’s role is not to consider the
            underlying question of whether the verdict is against
            the weight of the evidence. Rather, appellate review
            is limited to whether the trial court palpably abused
            its discretion in ruling on the weight claim.


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Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa.Super. 2012) (citation

omitted).

            Because the trial judge has had the opportunity to
            hear and see the evidence presented, an appellate
            court will give the gravest consideration to the
            findings and reasons advanced by the trial judge when
            reviewing a trial court’s determination that the verdict
            is against the weight of the evidence. One of the least
            assailable reasons for granting or denying a new trial
            is the lower court’s conviction that the verdict was or
            was not against the weight of the evidence and that a
            new trial should be granted in the interest of justice.

            This does not mean that the exercise of discretion by
            the trial court in granting or denying a motion for a
            new trial based on a challenge to the weight of the
            evidence is unfettered. In describing the limits of a
            trial court’s discretion, we have explained[,] [t]he
            term “discretion” imports the exercise of judgment,
            wisdom and skill so as to reach a dispassionate
            conclusion within the framework of the law, and is not
            exercised for the purpose of giving effect to the will of
            the judge. Discretion must be exercised on the
            foundation of reason, as opposed to prejudice,
            personal motivations, caprice or arbitrary actions.
            Discretion is abused where the course pursued
            represents not merely an error of judgment, but
            where the judgment is manifestly unreasonable or
            where the law is not applied or where the record
            shows that the action is a result of partiality,
            prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations and

emphasis omitted).

      Upon review, we find that the trial court properly exercised its discretion

in concluding that the jury’s verdict was not against the weight of the

evidence. See trial court opinion, 11/1/21 at 10-11. “[T]he trier of fact while


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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. Andrulewicz, 911 A.2d 162, 165 (Pa.Super. 2006)

(citation omitted), appeal denied, 926 A.2d 972 (Pa. 2007).

      Here, the jury clearly found the testimony of the three primary

Commonwealth witnesses on this issue – Officer McGowan, Ms. Gegg, and

Detective Goshert – credible, and elected not to believe Appellant’s version of

the events. Appellant essentially asks us to reassess their credibility. We are

precluded from reweighing the evidence and substituting our judgment for

that of the fact-finder. Clay, 64 A.3d at 1055. Accordingly, Appellant’s weight

claim must fail.

      For all the foregoing reasons, we affirm the trial court’s August 25, 2021

judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/16/2022




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