Com. v. Collins, V.

J-S33020-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VICTOR FULTON COLLINS JR. :
:
Appellant : No. 440 WDA 2023

Appeal from the Judgment of Sentence Entered December 16, 2022
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0001378-2021

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

MEMORANDUM BY McCAFFERY, J.: FILED: DECEMBER 8, 2023

Victor Fulton Collins, Jr. (Appellant) appeals from the judgment of

sentence imposed in the Beaver County Court of Common Pleas following his

jury conviction of possession of controlled substances (fentanyl) and

possession with intent to deliver (PWID) controlled substances (fentanyl).1

Appellant raises five issues on appeal challenging the denial of his pretrial

suppression motion, the weight and sufficiency of the evidence supporting his

convictions, trial court rulings concerning testimony regarding a “hand to hand

transaction” and the Commonwealth’s expert witness, and the court’s denial

of his motion for extraordinary relief based on an inconsistent verdict. For

the reasons below, we affirm.
____________________________________________

* Former Justice specially assigned to the Superior Court.

1 See 35 P.S. §§ 780-113(a)(16), (30).
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In the early morning hours of May 15, 2021, Appellant was arrested

after New Brighton police officers recovered drugs from the floor of the

passenger seat in a car in which he was the passenger. He was subsequently

charged with PWID (fentanyl), possession of controlled substances (fentanyl)

and possession of drug paraphernalia.2

On December 15, 2021, Appellant filed an omnibus pretrial motion

seeking, inter alia, suppression of the evidence recovered from the car stop,

which he argued was not supported by reasonable suspicion. See Appellant’s

Omnibus Pre-Trial Motion, 12/15/21, at 4-5 (unpaginated). The suppression

court3 conducted a hearing on June 8, 2022, at which time the Commonwealth

presented the testimony of New Brighton Police Officer Jeremy Conley.4

Officer Conley testified that on May 15, 2021, he was positioned in his

patrol vehicle in the 500 block of Eighth Avenue in New Brighton, “monitoring”

the 600 block of Seventh Avenue, because the police “had been receiving

complaints about . . . drug trafficking” in that area. N.T., Supp. Hrg., 6/8/22,

____________________________________________

2 See 35 P.S. § 780-113(a)(32).

3 President Judge Richard Mancini conducted the suppression hearing, and
Judge Kim Tesla presided over the subsequent jury trial.

4 We summarize the suppression hearing testimony in detail because Appellant

challenges the suppression court’s ruling, and “[o]ur scope of review from a
suppression ruling is limited to the evidentiary record that was created at the
suppression hearing.” Commonwealth v. Tillery, 249 A.3d 278, 280 (Pa.
Super. 2021) (citations omitted).

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at 11.5 In addition to his duties as a New Brighton police officer, Officer Conley

explained that he was a member of the Attorney General’s drug task force,

and, as such, had been involved in numerous narcotics investigations. See

id. at 10.

During his surveillance, Officer Conley observed Appellant, whom he

recognized “[f]rom prior incidents over [his] eight year career[,]”6 walking

towards another male. N.T., Supp. Hrg., at 12. He stated:

I observed [Appellant] approach . . . another male. They walked
up to each other. I seen a hand-to-hand exchange, and then they
both immediately walked separate ways.

Id. Officer Conley agreed the “hand-to-hand” exchange he observed was

“[p]retty much identical” to those he had seen as a member of the drug task

force. Id.

Officer Conley then drove from his surveillance position to the area

where the transaction occurred and saw Appellant walking “into the dead end

of 7th Street off of Seventh Avenue.” See N.T., Supp. Hrg., at 14-15. As the

officer approached, a vehicle emerged from the dead-end street with Appellant

as the passenger. Id. at 16. Officer Conley drove around the block, pulled

____________________________________________

5 The reference to “March 15, 2021” in the hearing transcript appears to be

a typographical error. See id. at 11 (emphasis added).

6 At one point, the Commonwealth’s attorney asked the officer how he knew

Appellant. See N.T., Supp. Hrg., at 13. Officer Conley answered, “He’s a
known drug trafficker.” Id. Appellant’s counsel immediately objected, and
the suppression court sustained the objection. Therefore, we do not consider
that testimony in our analysis.

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up behind the vehicle, and initiated a traffic stop. Id. As the vehicle was

pulling over, the officer saw Appellant “immediately” make “furtive

movements, bending forward.” Id. at 17.

Officer Conley called for backup, and two additional officers arrived

shortly thereafter. See N.T., Supp. Hrg., at 17. While Officer Conley was

speaking to the driver, who was identified as Jason Walzer, Appellant,

unprompted, “leaned over and said, ‘I was just getting a ride to my dad’s

house.’” Id. at 17-18.

Officer Conley subsequently removed Appellant from the vehicle. See

N.T., Supp. Hrg., at 19. While he was conducting a pat-down search, another

officer “observed on the floorboard where [Appellant’s] feet were a plastic bag

that contained stamp bags.” Id. Officer Conley placed Appellant in handcuffs

and obtained Mr. Walzer’s consent to search the vehicle. See id. at 18-19.

In addition to the stamp bags, the search revealed a scale under the front

passenger seat (where Appellant had been sitting), and glass crack pipe in the

glove compartment, which Mr. Walzer admitted was his.7 See id. at 19, 21-

22. Officer Conley searched Appellant incident to his arrest and recovered,

inter alia, $1,848.00 in cash. Id. at 21. Although his field test of one of the

stamp bags was “positive for the presence of heroin and fentanyl[,]” later lab

____________________________________________

7 Mr. Walzer also had another crack pipe on his person. N.T., Supp. Hrg., at
22.

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results confirmed only the presence of “fluorofentanyl[,] a Schedule I

controlled substance.” Id. at 20-21.

Under cross-examination, Officer Conley acknowledged that he did not

see any items change hands during the initial hand-to-hand street exchange

between Appellant and the other male. See N.T., Supp. Hrg., at 26-27. He

commented, however, that “[d]rugs can be so small that they can be

concealed and exchanged in a handshake.” Id. at 26.

At the conclusion of the hearing, the suppression court took the motion

under advisement, and, on July 19, 2022, entered an order and accompanying

opinion denying Appellant’s motion to suppress.8 See Order, 7/19/22. The

case proceeded to a jury trial commencing on November 14, 2022.

At trial, Officer Conley recounted the events leading to Appellant’s arrest

and provided testimony substantially similar to his testimony at the

suppression hearing. However, his trial testimony included the following

details: (1) the digital scale recovered under the front passenger seat was

not “shoved . . . towards the back[,]” but rather, “right at the front underneath

the seat[;]” (2) the baggie recovered from the passenger floorboard contained

“three different groups of little baggies with a [rubber band] around them. . .

along with numerous empty stamp bags[;]” and (3) the lab report indicated

that one group of baggies, “labeled Mercedes,” contained fluorofentanyl, but

____________________________________________

8 The order and opinion also denied a motion for habeas corpus, which is not

relevant to this appeal.

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another group of baggies contained no controlled substances. See N.T. Jury

Trial, 11/15/22, at 69, 70, 97-98. The Commonwealth also presented a

stipulation regarding the state crime lab report. See id. at 94. The report

indicated that the “net weight” of the drugs recovered was “0.14 grams, plus

or minus 0.1 gram, and one of those bags was confirmed to contain 0.025

grams, plus or minus 0.003 grams fluorofentanyl.” Id. at 96.

The Commonwealth also called Center Township Police Detective Aldo

Legge to testify as an expert witness.9 Detective Legge stated that he is a

29-year veteran officer with the Center Township Police, and has extensive

experience in narcotics investigations through his work with the Beaver

County Drug Task Force, the High Intensity Drug Trafficking Area (HIDTA)

task force, and the FBI Transactional Organized Crime Task Force. See N.T.,

11/15/22, at 184-85. He estimated that he had been conducting narcotics

investigations “[a]lmost the entirety of [his] career [or] at least 25 years.”

Id. at 185-86. Detective Legge described his training and continuing

education in that field. See id. at 186-87, 189. He stated that he had testified

as an expert in drug trafficking on one prior occasion, in August of 2022. See

id. at 189.

____________________________________________

9 In addition, the Commonwealth presented testimony from the two New
Brighton police officers who responded to the scene to assist Officer Conley ─
Officers Jonathon Pisano and Donald Dobson. See N.T., 11/15/22, at 149-
72.

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In cross-examining Detective Legge regarding his qualifications,

Appellant’s counsel focused on the fact that he had only been an expert on

one prior occasion and he offered his opinion in that case on behalf of the

Commonwealth. See N.T., 11/15/22, at 191-93. Thereafter, the trial court

accepted Detective Legge as an “expert witness in the area of drug

trafficking.” Id. at 193. Appellant made no objection. See id.

The trial court summarized Detective Legge’s expert testimony as

follows:

Detective Legge testified that when conducting investigations into
potential narcotic distribution schemes, drug task forces look for
certain paraphernalia, such as plastic bags, envelopes, paper
wrapping, duct tape, packing tape, certain kinds of packages, and
small scales for weighing drugs. Detective Legge concluded that
[Appellant] possessed the fentanyl, digital scale, and plastic
stamp bags with the intent to sell fentanyl. He stated that drug
dealers use digital scales like the one found in this case to package
specific amounts of the narcotics they intend to sell. He also
shared his professional knowledge that drug dealers often
package their product in plastic stamp bags, much like the ones
found on the floor in the front of the passenger’s seat in this case.

Detective Legge . . . noted that stamp bags used for the sale
of narcotics typically have a brand on them to denote the potency
of the drugs contained in the bag, like the stamp bags marked
with the Mercedes logo found near [Appellant]. According to the
detective, one stamp bag’s worth of narcotics would be worth
somewhere between $7-10. He also [opined] that the
denominations of the currency found on [Appellant’s] person
indicated his involvement in distributing controlled substances.
Detective Legge . . . testified that it is unusual for a personal drug
user to have over $1,000 in cash on their person. Further, a drug
user would typically have some sort of paraphernalia that they
would use to introduce the substance into their body, such as a
syringe in the case of heroin or fentanyl.

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On cross-examination, [Appellant’s c]ounsel brought out
several alleged errors in Detective Legge’s report[, including the
fact that the] report . . . stated the wrong numerical amount as
the net weight of the seven stamp bags with the Mercedes logo
that were tested at the laboratory. According to the laboratory
report, the net weight of those seven stamp bags was 0.14 grams,
but Detective Legge’s report stated that the net weight of the
stamp bags was 0.175 grams. Detective Legge acknowledged this
mistake, but he still held to his conclusion that the net weight
stated in the lab report demonstrates an intent to deliver the
narcotics.

[Appellant’s c]ounsel observed that, given this net weight of
the contents of the baggies with the Mercedes logo on them,
combined with the fact contained in Detective Legge’s expert
report that one gram of fentanyl is worth at least $150, the total
value of the fentanyl contained in the baggies found . . . in the
vehicle at [Appellant’s] feet . . . was worth between $21-35. Since
the laboratory only confirmed that one bag weighing 0.02 grams
contained fentanyl, [Appellant’s c]ounsel concluded that this bag
contained about $3-5 worth of fentanyl. Finally, [Appellant’s
c]ounsel questioned Detective Legge’s opinions deriving from the
fact that [Appellant] had small denominations of currency on his
person, since law enforcement might find either large or small bills
suspicious. . . . [Appellant’s c]ounsel also brought out the fact that
the digital scale found [under the passenger seat] was not sent to
the laboratory for testing.

Trial Ct. Op., 5/11/23, at 8-9 (record citations omitted; some paragraph

breaks added).

On November 17, 2022, the jury returned a verdict of guilty on the

charges of PWID and possession of controlled substances, but not guilty on

the charge of possession of drug paraphernalia. Appellant’s sentencing

hearing was conducted on December 16, 2022. At that time, Appellant’s

counsel presented an oral motion for extraordinary relief seeking an arrest of

judgment, judgment of acquittal, or a new trial. See N.T. Sentencing H’rg,

12/16/22, at 9-10. Counsel argued the drug evidence should have been

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suppressed and the jury’s verdict was inconsistent. See id. at 10-20. The

trial court denied the motion and proceeded to sentence Appellant to a term

of 33 to 120 months’ incarceration followed by five years’ probation for PWID;

his remaining conviction merged for sentencing purposes. See id. at 20, 63-

64.

Appellant filed a timely post-sentence motion, challenging the

sufficiency and weight of the evidence, and arguing the verdict was

inconsistent. See Appellant’s Motion for Post-Sentence Relief, 12/23/22, at

1-2 (unpaginated). Appellant also requested transcription of the trial

transcript, and permission to filed supplemental post-sentence motions after

review. See id. at 2. The trial court later granted Appellant until February

16, 2023, to file supplemental post-sentence motions. See Order, 1/26/23,

at 1 (unpaginated). Appellant filed a supplemental motion on that date,

challenging the trial court’s rulings permitting Officer Conley to testify

regarding the “‘hand to hand’ interaction that he observed on the date in

question[,]” and permitting Detective Legge to testify as an expert witness.

See Appellant’s Supplemental Motion for Post-Sentence Relief, 2/16/23, at 2

(unpaginated). The trial court conducted oral argument on March 10, 2023,

and denied Appellant’s motions on March 21st. This timely appeal follows.10

Appellant presents the following six issues for our review:

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10 Appellant complied with the trial court’s directive to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.

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[1] Whether the trial court erred in denying . . . Appellant’s pre-
trial motion to suppress on July 19, 2022[?] . . .

[2] Whether the trial court erred in permitting [Officer Conley] to
testify at trial as to the “hand to hand” interaction that he
observed on the date in question[?] . . .

[3] Whether the trial court erred in permitting the Commonwealth
to present [its] last witness in [its] case-in-chief as an expert[?] .
..

[4] Whether the trial court erred in not granting extraordinary
relief [because] the jury verdict should have been set aside for
being inconsistent, in that, the jury acquitted Appellant of the
possession of drug paraphernalia count[?]

[5] Whether the Commonwealth presented sufficient evidence to
prove the elements of the underlying drug offenses[?]

[6] Whether the jury’s verdict was against the weight of the
evidence presented by the Commonwealth at trial[?]

Appellant’s Brief at 3-4 (some capitalization omitted).

In his first issue, Appellant contends Officer Conley had no reasonable

basis to conduct the vehicle stop, and, therefore, the suppression court erred

when it denied his motion to suppress the evidence recovered as a result of

that stop. See Appellant’s Brief at 11. He argues that although the officer’s

purported basis for the stop was a hand-to-hand narcotics exchange, Officer

Conley conceded “he was unable to see any object ‘change hands’ between

the two people.” Id. at 12. Relying on several decisions of this Court,

Appellant insists that Officer Conley was “operating on a hunch[,]” which was

insufficient to establish the requisite reasonable suspicion that Appellant was

engaged in the sale of narcotics necessary to support the vehicle stop. See

id. at 13-16.

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Our review of a pretrial order denying a motion to suppress is guided by

the following:

Our standard of review . . . requires us to consider only the
Commonwealth’s evidence and so much of the defense’s evidence
as remains uncontradicted when read in the context of the record
as a whole. Where the record supports the suppression court’s
factual findings, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
However, . . . where the appeal turns on allegations of legal error,
the suppression court’s conclusions of law are not binding as it is
this Court’s duty to determine if the suppression court properly
applied the law to the facts. As such, the legal conclusions of the
lower courts are subject to our plenary review.

Commonwealth v. Dunkins, 263 A.3d 247, 252 (Pa. 2021), cert. denied

sub nom. Dunkins v. Pennsylvania, 142 S. Ct. 1679 (U.S. 2022).

Moreover, our scope of review is limited to the evidence presented at the

suppression hearing. See Tillery, 249 A.3d at 280.

To justify an investigatory stop of a vehicle, police officers must possess

reasonable suspicion of criminal activity. Commonwealth v. Knupp, 290

A.3d 759, 767 (Pa. Super. 2023). See also Commonwealth v. Adams, 205

A.3d 1195, 1201 (Pa. 2019) (“[A] traffic stop is an investigative detention that

itself requires reasonable suspicion or probable cause.”). “

In reviewing whether reasonable suspicion . . . exists, we must .
. . examine the totality of the circumstances to determine whether
there exists a particularized and objective basis for suspecting an
individual [ ] of criminal activity. Even innocent factors, viewed
together, may arouse suspicion that criminal activity is afoot.

Knupp, 290 A.3d 767 (citations & quotation marks omitted). As our Supreme

Court has explained:

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[A]n investigative detention is constitutionally permissible if an
officer identifies specific and articulable facts that led the officer
to believe that criminal activity was afoot, considered in light of
the officer’s training and experience. [I]n determining whether
the officer acted reasonably . . ., due weight must be given, not
to his inchoate and unparticularized suspicion or hunch, but to the
specific reasonable inferences which he is entitled to draw
from the facts in light of his experience.

Adams, 205 A.3d at 1205 (citations & quotation marks omitted; emphasis

added).

Here, based on the totality of the circumstances, the suppression court

concluded Officer Conley possessed the requisite reasonable suspicion to stop

the vehicle in which Appellant was a passenger and briefly detain him. See

Supp. Ct. Op. at 8. The court opined:

[W]here an experienced narcotics officer, who was monitoring a
specific block late at night due to reports of drug activity, observes
a man, known to him[11] . . . , walk up to another male and conduct
a hand-to-hand exchange[, after which,] both individuals
immediately part ways, under the totality of the circumstances,
[the officer] had sufficient reasonable suspicion supported by
articulable facts to briefly detain [Appellant], regardless of the fact
that the officer could not identify the object that was exchanged
between the individuals.

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11 We note the suppression court stated that Appellant was known to Officer

Conley “to distribute narcotics[.]” See Supp. Ct. Op. at 8. However, as noted
supra, the trial court sustained an objection to this testimony during the
suppression hearing. See N.T., Supp. H’rg, at 13-14. Thus, we do not
consider that fact in our analysis.

Nevertheless, Appellant did not object when Officer Conley testified that
he recognized Appellant “[f]rom prior incidents over [his] eight year career[,]”
and that Appellant was “known to [him.]” N.T., Supp. H’rg, at 12.
Accordingly, the fact that Officer Conley knew Appellant based upon past
police interactions is a relevant factor in our analysis.

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Id. at 8.

Upon review, we detect no basis to disturb the suppression court’s

ruling. First, Officer Conley, as a member of the Attorney General’s drug task

force, was very experienced in narcotics transactions, and particularly “hand-

to-hand” exchanges. See N.T., Supp. H’rg, at 10-11. He explained that he

was monitoring the 600 block of Seventh Avenue ─ where he witnessed

Appellant’s interaction with the other male ─ because the police department

“had been receiving complaints about . . . drug trafficking” in that very area.

Id. at 11. Officer Conley observed Appellant ─ whom he knew from “prior

incidents” with police ─ approach another man, conduct a “hand-to-hand

exchange, and then . . . both immediately walk[ ] separate ways.” Id. at 12.

Although he did not see any objects change hands, Officer Conley agreed that

the exchange he witnessed was “[p]retty much identical” to the hand-to-hand

exchanges he observed as a member of the drug task force. Id. at 12, 26-

27. He also explained that “[d]rugs can be so small that they can be concealed

and exchanged in a handshake.” Id. at 26.

We conclude this Court’s decision in Commonwealth v. Clemens, 66

A.3d 373 (Pa. Super. 2013), is instructive. In that case, a police officer was

on routine patrol in a “very high in crime and very violent” neighborhood,

which the officer had patrolled for five years. Id. at 375 (record citation &

quotation marks omitted). The officer testified he was “personally aware of .

. . nonstop open-air narcotics sales” in the area. Id. (record citation &

quotation marks omitted). While driving down a block at mid-morning, the

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officer observed the defendant engage in a “hand-to-hand transaction with an

unknown male.” Id. at 376 (record citation omitted). Similar to the case

before us, the officer acknowledged he “did not observe money or objects pass

between the two individuals, [but] testified that ─ based upon his training and

years of experience ─ he was of the conviction that he had just witnessed a

narcotics transaction.” Id. After the exchange, the defendant looked “directly

at the marked police vehicle” and ran to the porch of a nearby house, and

pretended like he was reading a newspaper. Id. (record citation omitted).

The officer approached and asked the defendant if he lived at that address

and if he had any identification. See id. The defendant responded no to both

questions. See id. The officer then asked the defendant to stand up so he

could pat him down for safety reason, and, when he stood up and spread his

legs, a baggie of suspected narcotics fell from his pants. Id. at 376-77.

The defendant was arrested and later filed a suppression motion,

asserting, inter alia, the officer had no reasonable suspicion to conduct an

investigatory detention. Clemens, 66 A.3d at 377. The trial court denied the

motion, and a panel of this Court affirmed on appeal. See id. at 377, 380-

81. The Clemens panel emphasized the following facts: (1) although he did

not see any items or money exchanged, the officer testified that “based upon

his experience and training, he witnessed [the defendant] engage in a hand-

to-hand narcotics transaction[;]” (2) the officer was “extremely familiar” with

the area ─ which was “home to nonstop open-air narcotics sales” ─ and

“extremely experienced in narcotics investigations[;]” and (3) after the

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defendant saw the marked vehicle, he “suspiciously ran onto the porch” of a

nearby residence and “pretended to read a newspaper.” Id. at 380 (quotation

marks omitted). The Court concluded:

Given these “specific and articulable facts,” we agree that
“an objectively reasonable police officer would have reasonably
suspected” that [the defendant] had sold narcotics to the
unidentified man. As such, we agree that the investigatory
detention was properly supported by reasonable suspicion.

Id.

The facts in the present case are very similar to those in Clemens.

Officer Conley, who was experienced in narcotics investigations, observed

what he believed to be a hand-to-hand exchange between Appellant ─ whom

he knew from prior encounters with police ─ and an unidentified male in an

area where he was conducting surveillance based upon specific complaints of

drug trafficking. Although Appellant did not see Officer Conley, like the

defendant in Clemens, he did proceed immediately to a dead-end street and

enter a vehicle parked therein. We conclude that, under the totality of the

circumstances, Officer Conley had the requisite reasonable suspicion to

conduct an investigatory detention of Appellant and did so by conducting a

traffic stop.

Moreover, the cases upon which Appellant relies do not compel a

different result. In Commonwealth v. Carter, 779 A.2d 591 (Pa. Super.

2001), an officer was on “general patrol” in his marked vehicle in a high drug

and crime area of Pittsburgh. See id. at 592. Mid-afternoon, the officer

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observed the defendant walk towards a parked pick-up truck and being

conversing with the occupants. Id. The defendant placed his left hand in his

jacket and began to remove it when he looked in the direction of the officer

and “mouthed the word ‘popo’ (meaning police).” Id. The officer pulled in

front of the truck and recognized one of the occupants as a known drug user.

Id. At that point, the defendant began to walk away, and the officer asked to

speak with him. Id. During the conversation, the officer told the defendant

to put his hand in his pocket, but then “went for his side arm and asked [the

defendant] to show his hands.” Id. The defendant displayed a baggie of

drugs and began to flee. See id. He was subsequently apprehended and

arrested. Id.

The defendant filed a pretrial motion to suppress, which the trial court

granted. See Carter, 779 A.2d at 592. On appeal by the Commonwealth, a

panel of this Court affirmed. See id. at 595. Relevant herein, the panel

concluded that the officer’s observations “could not have given rise to a

reasonable suspicion that [the defendant] was engaged in criminal activity.”

Id. at 594. The panel explained that while the officer saw the defendant put

his hand in his pocket as he spoke to the occupants of a car in a “notoriously

drug infested area of the city[,]” he did not see the exchange of any items, or

observe any furtive movement. Id. at 594-95. Thus, the Carter Court

determined that while the officer may have had an “educated hunch” that a

drug deal was imminent, the facts presented were “insufficient to create a

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reasonable suspicion that [the defendant] was engaged in the sale of illegal

narcotics on the date in question.” Id. at 595.

Appellant insists that, in the present case, Officer Conley was similarly

“operating on a hunch[.]” See Appellant’s Brief at 14-15. We disagree. Here,

Officer Conley was conducting surveillance based upon specific “complaints

about . . . drug trafficking” in the area where the hand-to-hand interaction

occurred. See N.T., Supp. H’rg, at 11. He saw Appellant, whom he recognized

from “prior incidents” with police, walk up to another man and engage in what

he described as a “hand-to-hand exchange” after which both men immediately

walked “separate ways”. See id. at 12. Officer Conley agreed that the

transaction he witnessed was “[p]retty much identical” to the hand-to hand

narcotics exchanges he observed during his work with the drug task force.

Id. Moreover, while he acknowledged he did not see any items change hands,

he noted that “[d]rugs can be so small that they can be concealed and

exchanged in a handshake.” Id. at 26. Accordingly, Officer Conley’s

experience, particularly with the type of interaction he witnessed,

distinguishes this case from the facts in Carter.

Appellant also relies upon this Court’s unpublished decision in

Commonwealth v. Almanzar, 1463 EDA 2019 (unpub. memo. at 14) (Pa.

Super. 2020),12 in which a panel of this Court concluded officers did not

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12Unpublished, non-precedential decisions of this Court “filed after May 1,
2019 . . . may be cited for their persuasive value.” Pa.R.A.P. 126(b)(1)-(2).

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possess probable cause to stop and search the defendant’s vehicle after

observing him and his co-defendant “conduct[ ] one, daytime, trunk-to-trunk

transfer of a bag.” Acting on “complaints about several Hispanic men entering

and exiting [a] property while carrying packages[,]” officers conducted

surveillance at the property on May 22, 2017. Id. at 1-2. Although they

observed several men exiting and entering the property and various vehicles,

exchanging unidentified items, the officers did not observe either the

defendant or his co-defendant that day. Id. at 2-3.

When they conducted additional surveillance two days later, on May

24th, officers witnessed the defendant arrive in his vehicle and back up to a

Jeep, so that the trunks of the two vehicles were facing each other. See

Almanzar, 1463 EDA 2019 (unpub. memo. at 3). The Jeep was one of the

vehicles involved in the transactions on May 22nd. See id. at 2. At that time,

the co-defendant “retrieved a large, green bag from the trunk of the Jeep and

transferred in into the trunk” of the defendant’s vehicle. Id. at 3. When the

defendant drove off, officers stopped him and searched his trunk, where they

found “1,150 bundles of heroin inside the green bag.” Id.

After his arrest, the defendant filed a motion to suppress the evidence

recovered from the warrantless vehicle search. Almanzar, 1463 EDA 2019

(unpub. memo. at 4). The trial court granted the motion, finding the evidence

was insufficient to establish probable cause for the vehicle stop. Id. at 6.

Despite the fact that the investigating officer stated he “had seen drug dealers

park in a trunk-to-trunk’ formation to transfer contraband” in the past, and

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that the defendant’s vehicle had been involved in a “prior drug

investigation[,]”13 the trial court concluded:

Applying a totality of the circumstances test, the [c]ourt did not
find that the single, midday transfer of a bag, whose contents
were unknown, from the trunk of one car to another between two
unidentified individuals provided officers with probable cause to
search the vehicle Appellee was driving.

Id. at 14 (citation omitted & emphasis added). The trial court further

recognized that during surveillance two days prior, officers “observed separate

encounters that involved no money, but only the transfer of a box of diaper

and an object[, which lacked] specificity to determine whether drugs were

actually being moved[.]” Id. at 13-14 (citation & quotation marks omitted).

As noted supra, a panel of this Court affirmed on appeal.

Appellant maintains that, like the officers in Almanzar, Officer Conley

“did not observe any items of contraband being exchanged, nor could he

articulate any facts that would demonstrate criminal activity was afoot[;

rather,] the activities of [ ] Appellant were ordinary or innocuous.” Appellant’s

Brief at 15. For the reasons discussed above, we disagree. Moreover, we

emphasize that the Almanzar Court considered whether the facts supported

a finding of probable cause, not reasonable suspicion. It is well-settled that

“[r]easonable suspicion is a less stringent standard than probable cause

necessary to effectuate a warrantless arrest[.]” Commonwealth v. Brown,

996 A.2d 473, 477 (Pa. 2010) (emphasis added). See also Commonwealth
____________________________________________

13 Almanzar, 1463 EDA 2019 (unpub. memo. at 13).

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v. Jackson, 302 A.3d 737, 748 (Pa. 2023) (“[R]easonable suspicion requires

more than a mere hunch but considerably less than proof of wrongdoing by a

preponderance of the evidence, and obviously less than is necessary for

probable cause.”) (citations & quotation marks omitted). Thus, for that reason

alone, Almanzar is distinguishable. Accordingly, we conclude Appellant’s first

claim fails.

We address Appellant’s remaining issues together. In his second claim,

Appellant argues the trial court erred when it permitted Officer Conley to

testify regarding the “hand to hand” exchange he witnessed which precipitated

the vehicle stop.14 See Appellant’s Brief at 17. Appellant maintains there was

no “foundation” for the testimony since Officer Conely admitted he did not see

any items exchanged between the two men. See id. at 18. Moreover,

although the court sustained his objection and issued a cautionary instruction,

Appellant insists the jury was prejudiced by the testimony because they

submitted a question to the court concerning how they were to consider the

“hand-to-hand” interaction in their deliberations. See id.

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14 “[T]he admissibility of evidence is a matter solely within the discretion of

the trial court[, and t]his Court will reverse an evidentiary ruling only where
a clear abuse of discretion occurs.” Commonwealth v. Woeber, 174 A.3d
1096, 1100 (Pa. Super. 2017) (citation omitted).

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Third, Appellant insists his conviction should be set aside due to the

jury’s inconsistent verdict.15 See Appellant’s Brief at 20. Because the jury

acquitted him of the possession of drug paraphernalia charge, that was based

on the scale recovered from under his seat, Appellant argues the jury could

not have convicted him of PWID, when the Commonwealth’s expert considered

his possession of the scale as critical evidence of his intent to deliver the drugs.

See id.

In his fourth claim, Appellant contends “the Commonwealth did not lay

a proper foundation to establish” Detective Legge was an expert witness.16

Appellant’s Brief at 19. He emphasizes it was only the second time the

detective was recognized as an expert, and that he “clearly had a bias in favor

of the Commonwealth.” Id. Moreover, Appellant argues Detective Legge’s

opinions should not have been admitted because the “phraseology” he used

in his expert report does not comply with Pa.R.E. 702. Id. at 20.

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15 “It is well-settled that inconsistent verdicts are permissible” and “this Court

will not disturb guilty verdicts on the basis of apparent inconsistencies as long
as there is evidence to support the verdict.” Commonwealth v. Burton, 234
A.3d 824, 829 (citations omitted).

16 “[T]he admission of expert testimony is a matter of discretion for the trial

court, and will not be disturbed absent an abuse of discretion.”
Commonwealth v. Powell, 171 A.3d 294, 305 (Pa. Super. 2017) (citation
omitted). Furthermore, “the standard for qualifying an expert is a liberal one:
the witness need only have a reasonable pretension to specialized knowledge
on a subject for which expert testimony is admissible.” Id. at 306 (citation &
quotation marks omitted).

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Appellant’s final two claims challenge the sufficiency and weight of the

evidence support his convictions. See Appellant’s Brief at 21-25. Regarding

the sufficiency of the evidence,17 Appellant contends the evidence does not

support a finding that he was “the sole possessor and potential trafficker of”

the drugs found in the vehicle. See id. at 22. He emphasizes the vehicle was

owned by the driver, Walzer, who was within “arms length” of where the drugs

were recovered, and who was in possession of two crack pipes which could

have been adapted to ingest the fentanyl. See id. Furthermore, Appellant

emphasizes the following: (1) the digital scale was not submitted for drug

analysis or fingerprint testing; (2) Detective Legge did not consider the fact

that Appellant could have used the cash he carried to ingest the fentanyl; and

(3) the small amount of fentanyl recovered was more consistent with personal

use than distribution, and had a street value of only $3 to $5 per bag. See

id. at 23.

Finally, with regard to the weight of the evidence,18 Appellant insists the

“verdict should shock one’s sense of justice” because the jury concluded that
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17 A challenge to the sufficiency of the evidence requires this Court to
“determine whether the evidence admitted at trial, and all reasonable
inferences drawn therefrom, when viewed in a light most favorable to the
Commonwealth as verdict winner, support the conviction beyond a reasonable
doubt.” Commonwealth v. Williams, 302 A.3d 117, 120 (Pa. Super. 2023)
(citation omitted).

18 A challenge to the weight of the evidence must first be presented to the
trial court, “and if that court rejects the challenge, on appeal, we review its
rejection of the claim for abuse of discretion.” Commonwealth v. Lynch,
(Footnote Continued Next Page)

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Appellant “did not possess the primary piece of evidence (the digital scale)

the Commonwealth argued proved intent to deliver,” and, accordingly, must

have improperly considered the “hand-to-hand” interaction testimony.

Appellant’s Brief at 24-25.

Upon our review of the record, the parties’ briefs, and the relevant

statutory and case law, we conclude the trial court thoroughly addressed and

properly disposed of Appellant’s remaining five claims in its May 11, 2023,

opinion. See Trial Ct. Op., 5/11/23, at 10-27 (trial court opining that (1) it

properly sustained the objection to Officer Conley’s testimony that “hand to

hand” interaction was an “exchange” and issued a cautionary instruction to

the jury that it may presume was followed;19 (2) jury’s purported inconsistent

acquittal on the charge of possession of drug paraphernalia did not undermine

the guilty verdict on charge of PWID since “even without the digital scale, the

____________________________________________

242 A.3d 339, 353 (Pa. Super. 2020). Here, Appellant properly preserved his
weight of the evidence challenge in a timely filed post-sentence motion. See
Pa.R.Crim.P. 607(A)(1)-(3) (weight of the evidence claim must be raised
before the trial court before sentencing, at sentencing, or in a post-sentence
motion); Appellant’s Motion for Post-Sentence Relief at 1-2.

19 We note the trial court, alternatively, concluded Appellant “waived his
objection” to the officer’s testimony regarding the “hand-to-hand exchange”
because he did not object the first time the officer referenced a hand-to-hand
exchange. See Trial Ct. Op. at 19. We do not agree. The first two times the
officer referenced a “hand-to-hand exchange” he was explaining, in general,
that he had observed these types of drug sales in his work with the drug task
force. See N.T., 11/15/22, at 35. However, shortly after the officer stated
he witnessed Appellant engage in such an exchange, Appellant objected. See
id. at 39. Thus, we would not determine the objection was waived.

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evidence [was] sufficient to support [the] conviction[;]” (3) it did not err in

permitting Detective Legge to testify as expert based on his experience, and

Appellant did not object when court qualified the detective as an expert

witness; (4) the evidence was sufficient to support Appellant’s convictions of

PWID and possession of fentanyl since the Commonwealth established (a)

Appellant had constructive possession of the drugs recovered from the

passenger floorboard when he was seen making furtive movements in that

area as the vehicle was stopped, and (b) “the packaging of the drugs and

large sum of cash[ on Appellant], together with the expert witness and

absence of personal use paraphernalia, sufficiently established an intent to

deliver[;]” and (5) “the jury’s verdict did not shock the conscience”

considering the evidence regarding Appellant’s furtive movements, the

packaging of the drugs recovered from the vehicle, the large sum of cash

recovered from Appellant, and the lack of personal use paraphernalia for

fentanyl).

Accordingly, for the remainder of Appellant’s claims, we rest on the

court’s well-reasoned bases, and direct that a copy of the trial court’s May 11,

2023, opinion be filed along with this memorandum, and attached to any

future filings in this case.

Judgment of sentence affirmed.

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DATE: 12/8/2023

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