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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DIANE MASON,
Appellant No. 1936 EDA 2013
Appeal from the Judgment of Sentence June 25, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001208-2012
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 21, 2016
Appellant, Diane Mason, appeals from the judgment of sentence
entered June 25, 2013, in the Court of Common Pleas of Philadelphia
County. We affirm.
The trial court summarized the facts of this case as follows:
On January 12th of 2012, at around 7:15 p.m., Officer
Barry Stewart was conducting surveillance for illegal sales of
narcotics in the area of the 900 block of North 43rd Street.
Officer Steward observed [Appellant] at that location with an
unidentified man. At approximately about [sic] 7:30 p.m., an
unidentified woman approached [Appellant] and the unidentified
man and they had a brief conversation. The unidentified woman
gave United States currency to [Appellant]. [Appellant] walked
eastbound on Otter Street out of view for approximately about
[sic] a minute while the unidentified man and woman stayed on
location. [Appellant] returned and gave unknown object to the
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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unidentified woman in a hand-to-hand motion. The woman then
walked southbound on 43rd Street. Immediately after this
transaction, [Appellant] gave the unidentified male Unites States
currency. The unidentified woman could not be located by
backup officers.
At approximately 7:45 p.m., a black male, later identified
as Arthur Stanford approached [Appellant] and the unidentified
male. Mr. Stanford had a brief conversation with the two
individuals and then he handed Unites States currency to
[Appellant]. [Appellant] walked eastbound on Otter Street and
was out of view for about a minute. [Appellant returned and
gave Mr. Stanford unknown objects in a hand-to-hand motion.
Mr. Stanford then walked northbound on 43rd Street.
Pursuant to Officer Stewart’s description, Officer Tamika
Allen stopped a Mr. Stanford at 900 North Belmont Avenue.
Officer Allen observed Mr. Stanford discard items from his right
hand which Officer Allen recovered. The items were three light
orange packets containing crack cocaine.
After the transaction with Mr. Stanford, [Appellant] and
the unidentified man walked southbound on 43rd Street out of
view. At about 8:30 p.m., [Appellant] returned and was
arrested.
Trial Court Opinion, 1/7/16, at 2-4.
The trial court summarized the procedural history of this case as
follows:
On January 12, 2012, [Appellant] was arrested and
charged with Possession of a Controlled Substance with the
Intent to Distribute (35 Pa. Stat. Ann. § 780-113(A)(30))
(“PWID”) and Knowing and Intentional Possession of a Controlled
Substance (35 Pa. Stat. Ann. § 780-113(A)(16))(“K & I”). On
September 4, 2012, after a trial, this [c]ourt, sitting without a
jury, convicted [Appellant] of both charges. Sentencing was
deferred for the completion of a presentence and mental health
report.
On November 14, 2012, [Appellant] filed a Motion for
Extraordinary Relief. On December 5, 2012, [Appellant] filed a
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Motion for New Trial Based Upon After Discovered Evidence.
This [c]ourt held multiple hearings on these Motions. On
January 25, 2013, this [c]ourt denied [Appellant’s] Motion for
Extraordinary Relief. On April 26, 2013, this [c]ourt denied
[Appellant’s] Motion for a New Trial. That same day, this [c]ourt
sentenced [Appellant] to two to four years of incarceration and a
consecutive term of two years of probation on the PWID charge.
On May 3, 2013, [Appellant] filed a Post Sentence Motion.
This [c]ourt granted a hearing on [Appellant’s] Motion and on
[June] 25, 2013, after a hearing, this [c]ourt vacated
[Appellant’s] original sentence and sentenced her to eleven and
a half to twenty three months of incarceration and a consecutive
term of five years of probation on the PWID charge.
On July 9, 2013, [Appellant] filed a Notice of Appeal. On
July 15, 2013, this [c]ourt ordered [Appellant] to submit a
Statement of Matters Complained of on Appeal pursuant to
Pa.R.A.P. 1925(b). As the notes of testimony were not ready,
this Court granted [Appellant] an extension of time to file a
Statement. [Appellant] never filed a Statement. On April 1,
2014, the record was transmitted to the Superior Court without
an opinion as the Honorable Judge Powell was no longer sitting
as a judge of the Court of Common Pleas. On June 23, 2014,
the Superior Court remanded the case for the filing of a
Statement and Supplemental Opinion. In its Order, the Superior
Court recognized that Judge Powell was no longer sitting and
directed the case to be reassigned. The case was never
reassigned.
On December 1, 2015, the Superior Court inquired with
this Court regarding the status of the case . . . . Once this Court
was aware that the case had not been reassigned, on December
2, 2015, this [c]ourt ordered [Appellant] to submit a statement.
On December 23, 2015, [Appellant] submitted a timely
Statement.
Trial Court Opinion, 1/7/16, at 1-2. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a).
Appellant presents the following issue for our review:
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Was not the evidence insufficient to find [Appellant] guilty
beyond a reasonable doubt of the crimes of possession with
intent to deliver and simple possession of a controlled substance
in that the evidence failed to prove that [Appellant] ever actually
possessed or delivered a controlled substance to another
person?
Appellant’s Brief at 3.
Appellant argues that the evidence was insufficient to find her guilty
beyond a reasonable doubt of the crimes of PWID and possession.
Appellant’s Brief at 9. Specifically, Appellant asserts that the evidence failed
to prove that she actually possessed or delivered a controlled substance.
Id. Appellant maintains that “[n]o money was seized from [Appellant], no
drugs were seized from [Appellant] and no stash of drugs was recovered by
the police or by [Appellant] or by her alleged unknown companion.” Id.
Despite acknowledging that when the police stopped one of the alleged
“buyers” he discarded three packets of crack cocaine, Appellant contends
that “[t]here was no direct evidence that [Appellant] delivered cocaine to
any individual and the circumstantial evidence supporting such an inference
was so speculative that it cannot support a conviction for possession with
intent to deliver.” Id.
Our standard of review for sufficiency of the evidence claims is well-
settled:
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,
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we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually 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. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011).
To sustain a conviction for PWID, “the Commonwealth must prove
both the possession of the controlled substance and the intent to deliver the
controlled substance.” Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa.
Super. 2008). “The intent to deliver may be inferred from an examination of
the facts and circumstances surrounding the case.” Commonwealth v.
Conaway, 791 A.2d 359, 362-363 (Pa. Super. 2002). “Factors to consider
whether the defendant possessed the drugs with the intent to deliver include
the particular method of packaging, the form of the drug, and the behavior
of the defendant.” Id. at 363.
Regarding the crime of simple possession of narcotics, 35 P.S. § 780-
113(a)(16) prohibits
[k]nowingly or intentionally possessing a controlled or
counterfeit substance by a person not registered under this act,
or a practitioner not registered or licensed by the appropriate
State board, unless the substance was obtained directly from, or
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pursuant to, a valid prescription order or order of a practitioner,
or except as otherwise authorized by this act.
If the contraband is not found on the defendant’s person, the
Commonwealth must prove that the defendant had constructive possession
of the contraband. Commonwealth v. Estepp, 17 A.3d 939, 944 (Pa.
Super. 2011).
Constructive possession is an inference arising from a set of
facts that possession of the contraband was more likely than not.
We have defined constructive possession as “conscious
dominion.” We subsequently defined “conscious dominion” as
the power to control the contraband and the intent to exercise
that control. To aid application, we have held that constructive
possession may be established by the totality of the
circumstances.
Commonwealth v. Muniz, 5 A.3d 345, 348-349 (Pa. Super. 2010).
In addressing Appellant’s issue, the trial court provided the following
analysis:
Officer Stewart observed [Appellant] engage in two hand-to-
hand transactions in which United States currency was
exchanged for small objects. After arresting the second buyer,
Mr. Stanford, police recovered from him three light orange
packets containing crack cocaine. Officer Stewart positively
identified [Appellant] as the individual making the hand-to-hand
sale to Mr. Stanford. Although [Appellant] did not have cash on
her when she was arrested, this is explained by the fact that
Officer Steward observed [Appellant] give the unidentified man,
who was never found, the proceeds of each sale. This evidence
is sufficient to support the finding that [Appellant] possessed and
delivered the crack cocaine.
Trial Court Opinion, 1/7/16, at 6.
We agree. The record supports the trial court’s analysis. Thus, when
viewed in the light most favorable to the Commonwealth as the verdict
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winner, the evidence and all reasonable inferences derived therefrom are
sufficient to establish all elements of the crimes beyond a reasonable doubt.
Commonwealth v. Johnson, 100 A.3d 207, 209 (Pa. Super. 2014).
Accordingly, Appellant’s claim fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2016
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