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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                     :
                              :
                              :
JASON ACEVEDO,                :
                              :
                  Appellant   :               No. 1769 EDA 2013

              Appeal from the Judgment of Sentence May 29, 2013
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0002302-2013

BEFORE: GANTMAN, P.J., JENKINS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED JANUARY 07, 2015

        Appellant, Jason Acevedo, appeals from the judgment of sentence

entered in the Philadelphia Court of Common Pleas, following his bench

convictions for possession of a controlled substance1 and possession with

intent to deliver a controlled substance2 (“PWID”).              He challenges the

sufficiency of the evidence for his PWID conviction. We affirm.

        We   state   the   facts   as   set   forth   by   the   trial   court:   “The

Commonwealth’s only witness was one of the arresting police officers who

described being on routine patrol with two other officers at about 7:00 . . .

*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(16).
2
    35 P.S. § 780-113(a)(30).
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p.m. on October 12, 2012, when they encountered [Appellant].”           Trial Ct.

Op., 9/16/13, at 1. At trial, the officer testified to the following:

            . . . On that date and time, we were travelling,
            myself, Officer Boyes and Officer Vandermay were
            travelling eastbound on the 500 block of Cambria
            when I observed [Appellant] near a vacant lot. I
            observed him bend down and retrieve a small item
            and walk approximately five feet to two individuals
            that were standing there . . . . [Appellant] made a
            shaking motion from what appeared to be a small
            box into his hand. At that time he walked towards
            two individuals. He looked up and saw us coming
            down the street and, with his right hand, threw the
            items to the ground, what appeared to be a small
            box to the ground. . . .

               I stopped the two individuals for investigation,
            and Officer Vandermay, in my presence, recovered a
            small box containing eight clear ziplock packets with
            a white chunky substance with a picture of a Playboy
            symbol on one side and two small ziplock packets of
            a white chunky substance laying on the sidewalk. At
            the time Officer Vandermay recovered them items.
            [The two individuals] were released due to
            investigation, and Officer Boyes approximately a
            block away stopped [Appellant] and recovered . . .
            cocaine, crack cocaine. . . .

         No drugs were found on [Appellant’s] person from who[m]
         they recovered $13.00. On cross examination the officer
         described the lighting as very well, that it was one of the
         other officers who placed the recovered items on the
         property receipt, and demonstrated on a map where
         everyone was when he observed [Appellant] through the
         rear passenger window of his vehicle from about 20 feet
         away. . . . The [Commonwealth] then submitted the lab
         report by stipulation, which showed that the packets
         recovered contained 20 milligrams of cocaine base and 117
         milligrams of cocaine, and rested. The only evidence
         adduced by [Appellant] was to have the same officer
         confirm that at the preliminary hearing he testified that
         “When I observed [Appellant] in a well lit area go to a


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          vacant lot and retrieve what appeared to be a small
          box[.]”

Id. at 1-3 (citations omitted). Appellant was convicted of the above crimes

on May 29, 2013, and the court sentenced him to one-and-a-half to three

years’ imprisonment.      Appellant appealed and timely filed a court-ordered

Pa.R.A.P. 1925(b) statement.

      Appellant raises the following issue in his brief:

          Was not the evidence insufficient to support [Appellant’s]
          conviction for possession of a controlled substance with the
          intent to deliver, insofar as there was no delivery of any
          controlled substance nor evidence of an intent to deliver?

Appellant’s Brief at 3.   Appellant concedes that while walking towards two

other people, he dropped something and ran when the police arrived.         He

maintains that because the two men had no money and only stood there,

there is no evidence they were or conducted themselves as potential buyers.

Appellant argues the amount of money found on him, $13, and the amount

of cocaine found, ten packets weighing in total 137 milligrams, is insufficient

evidence to support his conviction for PWID.         We hold Appellant is not

entitled to relief.

      The standard of review for a challenge to the sufficiency of evidence is

de novo, as it is a question of law. Commonwealth v. Sanford, 863 A.2d,

428, 431 (Pa. 2004).

          The critical inquiry on review of the sufficiency of the
          evidence to support a criminal conviction . . . does not
          require a court to ask itself whether it believes that the
          evidence at the trial established guilt beyond a reasonable


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        doubt. Instead, it must determine simply whether the
        evidence believed by the fact-finder was sufficient to
        support the verdict.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36 (Pa. 2007)

(citations and quotation marks omitted). “When reviewing the sufficiency of

the evidence, an appellate court must determine whether the evidence and

all reasonable inferences deducible from that, viewed in the light most

favorable to the Commonwealth as verdict winner, are sufficient to establish

all of the elements of the offense beyond a reasonable doubt.” Id. at 1237.

     PWID is defined as follows:

        Except as authorized by this act, the manufacture,
        delivery, or possession with intent to manufacture or
        deliver, a controlled substance by a person not registered
        under this act, or a practitioner not registered or licenses
        by the appropriate State board, or knowingly creating,
        delivering or possessing with intent to deliver, a
        counterfeit controlled substance.

35 P.S. § 780-113(a)(30). “In order to uphold a conviction for possession of

narcotics with the intent to deliver, the Commonwealth must prove beyond a

reasonable doubt that the defendant possessed a controlled substance and

did so with the intent to deliver it.” Commonwealth v. Aguado, 760 A.2d

1181, 1185 (Pa. Super. 2000) (en banc).

     In determining the sufficiency of evidence for PWID, the court looks at

the following factors: the quantity of the drugs, “the manner in which the

controlled substance was packaged, the behavior of the defendant, the

presence of drug paraphernalia, and large [ ] sums of cash found in



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possession of the defendant.      The final factor to be considered is expert

testimony.”    Ratsamy, 934 A.2d at 1237-38 (citations omitted).      Another

factor is lack of drug paraphernalia for personal consumption. Id. at 1238.

      In Commonwealth v. Bagley, 442 A.2d 287 (Pa. Super. 1982), a

trial court issued a search warrant to search for drugs and drug

paraphernalia in the defendant’s car.        Id. at 288.   Police followed the

defendant’s vehicle, and observed the vehicle decrease speed, a small white

package the size of a cigarette box being thrown out the window, and the

vehicle quickly accelerate.      Id.   The police retrieved the package and

stopped the defendant.     Id.     The package contained eleven baggies of

heroin, weighing in total 15.3 grams. Id. The purity of the drugs ranged

from four percent to eighteen percent.       Id.   A jury found the defendant

guilty of, inter alia, PWID, but the trial court granted the defendant’s motion

to arrest judgment of PWID. Id. at 288-89. The Commonwealth appealed.

Id. at 289.

      This Court noted the purity of the drugs did not create an inference

that the heroin was possessed with the intent to deliver. Id. at 292 (holding

“[t]he higher the purity of the heroin seized, the reasoning goes, the more

likely that the possessor is a trafficker, since heroin users rarely receive

uncut heroin.”). The Court further reasoned that the Commonwealth failed

to show that the defendant’s activity prior to his arrest supported the

inference that he possessed heroin with the intent to deliver.     Id. at 291.



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Thus, the Bagley Court affirmed the order granting an arrest of judgment

on the PWID conviction because the Commonwealth failed to produce

evidence that the quantity of the drugs was for possession with intent to

deliver and not personal use.    Id. at 291; see also Commonwealth v.

Pagan, 461 A.2d 321, 322-23 (Pa. Super. 1983) (possession of “small

amount” of marijuana, 19.9 grams, and lack of additional paraphernalia to

indicate preparation of sale or delivery was insufficient to support conviction

of PWID).

      In Commonwealth v. Jackson, 645 A.2d 1366 (Pa. Super. 1994),

police observed the defendant, who was holding a brown paper bag,

speaking with another man. Id. at 1367. The “defendant moved his right

hand from his mouth to his side,” and upon seeing the police, put his hand

back to his mouth and walked away. Id. When the officers followed, the

defendant ran and threw away the bag. Id. When the police apprehended

him, he had seventeen individual bags of fentanyl in his mouth, weighing a

total of 1.17 grams and $10. Id. The police also found seven syringes in

the brown bag.     Id.   The court convicted him of, inter alia, PWID, but

subsequently, the trial court granted the defendant’s motion for arrest of

judgment because there was reasonable doubt as to whether the drugs were

for delivery or personal use. Id. On appeal, this Court affirmed because the

small amount of drugs found, the paraphernalia that suggested personal

use, the small amount of money, and the fact that the defendant did not



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transfer anything to the other man reflected personal use rather than an

intent to deliver. Id. at 1369-70.

     In Commonwealth v. Smagala, 557 A.2d 347 (Pa. Super. 1989), a

police officer searched a garage the defendant had rented. Id. at 348. The

search produced .8 grams of cocaine, a razor blade, a rolled up $20 bill,

bicarbonate soda, test tubes, a glass pipe with residue, wire mesh screens,

hundreds of burnt matches, used tissues, four “tally sheets” with names and

numerical amounts written on them, two bundles of used glassine baggies,

$834, and a loaded handgun in the defendant’s car. Id. at 352. At trial, the

court convicted the defendant of PWID. Id.

     On appeal, this Court reversed the conviction based on expert

testimony:

        Expert testimony at trial indicated that test tubes and
        bicarbonate of soda are used to convert cocaine in the
        powder form into cocaine in the rock form, crack. The
        cocaine rock is then smoked in a glass pipe inside of which
        is a wire mesh screen. Instantly, the garage work bench
        was covered with hundreds of burnt matches and the
        [defendant] possessed all the necessary tools to [17]
        create and smoke crack. Those facts are consistent with
        personal use of cocaine. Also, a rolled up twenty dollar bill
        and a razor blade were found on the person.             The
        Commonwealth’s expert testified that the razor blade was
        used to divide the cocaine into lines and then the rolled
        currency was used to inhale those lines of cocaine through
        the users nostrils. Also, numerous used tissues were
        found on top of the work bench where the glass pipe was
        located. Again, those facts are consistent with personal
        use.    The totality of the evidence leads us to the
        unavoidable conclusion that the [defendant] intended
        either to smoke the cocaine or inhale it.



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Id. at 352.

     In In re Evans, 717 A.2d 542 (Pa. Super. 1998), police officers

observed the defendant and two other men standing on the street in a high

crime area.     Id. at 543.   When the defendant noticed the officers, he

appeared startled, reached towards his waistband, and turned quickly. Id.

After the officers exited their vehicle, the defendant threw an object to the

ground.   Id.   The police recovered the object and found nine individually

wrapped pieces of crack cocaine, weighing a total of 1.03 grams.         Id. at

543-44.   The trial court convicted defendant of PWID.     Id. at 544.     This

Court affirmed, finding it reasonable to infer intent to deliver when the

defendant is in a high crime area, possesses nine individually wrapped

packets of crack cocaine, and did not possess paraphernalia for personal

use. Id. at 546.

     Instantly, the facts of this case are more consistent with In re Evans

than Bagley, Pagan, Jackson, and Smagala. Here, the police observed

Appellant in an empty lot, walk towards two individuals, pick up a box,

shake out two baggies from the box, walk closer toward the individuals, and

upon noticing the police, flee and discard the drugs. Like the defendant in

Evans, and unlike the defendants in Jackson and Smagala, Appellant did

not possess drug paraphernalia consistent with personal use.      See In re

Evans, 717 A.2d at 546; Jackson, 645 A.2d at 1369-70; Smagala, 557

A.2d at 352. Similar to the defendant in Evans, who, after observing police,



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discarded nine individually wrapped packets of crack cocaine, Appellant,

after he observed the police, discarded ten individually wrapped baggies of

cocaine. See In re Evans, 717 A.2d at 546.

     Unlike the defendant in Bagley and Jackson, Appellant’s behavior

suggested an intent to deliver.     See Jackson, 645 A.2d at 1369-70;

Bagley, 442 A.2d at 291. In Bagley, the defendant was in his vehicle and

exhibited no conduct that he was travelling to potential buyers.    Bagley,

442 A.2d at 290. Here, Appellant picked up a box containing drugs in an

empty lot, and walked towards two men. In Jackson, “[t]he police officers

could not see anything in [the defendant’s] . . . , nor did they see anything

pass between [him] and the man to whom he was speaking.” Jackson, 645

A.2d at 1370. Instantly, police observed Appellant in an empty lot, pick up a

box, walk towards two individuals, and shake two objects into his hand.

     Accordingly, we agree with the trial court that Appellant’s actions,

coupled with the packaging of the drugs and the lack of personal use

paraphernalia, supported a conviction of PWID. In sum, we hold the record

sufficiently establishes all the elements of PWID and affirm the judgment of

sentence. See Ratsamy, 934 A.2d at 1237.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/7/2015




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