J-S43004-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                                 IN THE SUPERIOR COURT OF
                                                                   PENNSYLVANIA
                            Appellee

                       v.

MILTON ACEVEDO

                            Appellant                           No. 1437 EDA 2013


             Appeal from the Judgment of Sentence April 12, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0008547-2011


BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                                   FILED AUGUST 07, 2014

        Appellant, Milton Acevedo, appeals from the judgment of sentence

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

bench trial convictions for possession of a controlled substance and
                                                                                       1
                                                                                            We

affirm.

        The relevant facts and procedural history of this appeal are as follows.

On June 1, 2011, Officers Rosa and Czapor were on patrol when they

observed Appellant sitting on a bicycle on the 100 block of West Somerset

Street.      Two    men     approached          Appellant,    engaged   him   in   a       brief

____________________________________________


1
    35 P.S. § 780-113(a)(16), (30).

_____________________________________________

*Former Justice specially assigned to the Superior Court.
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conversation, and handed U.S. currency to Appellant.             In exchange,

Appellant handed small objects to the men.         Back-up officers stopped the

buyers and recovered identical packets of heroin from each individual.

Officers   Rosa   and   Czapor   subsequently   approached     Appellant,   who

attempted to ride off on his bicycle. The officers caught up with Appellant

and arrested him, but they did not recover additional contraband from his

person.

      On August 10, 2011, the Commonwealth filed a criminal information

charging Appellant with PWID and possession of a controlled substance.

Following a bench trial, the court found Appellant guilty of both charges. On

April 12, 2013, the court sentenced Appellant to an aggregate term of two

and one-

                                            -sentence motions.

      Appellant timely filed a notice of appeal on May 10, 2013. On May 29,

2013, the court ordered Appellant to file a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b).               Appellant



      Appellant raises one issue for our review:

           WAS THE EVIDENCE INSUFFICIENT TO SUPPORT A
           CONVICTION OF POSSESSION OF A CONTROLLED
           SUBSTANCE AND POSSESSION WITH INTENT TO DELIVER
           A CONTROLLED SUBSTANCE?



      When examining a challenge to the sufficiency of the evidence, our

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standard of review is as follows:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at
         trial in the light most favorable to the verdict winner, there
         is sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. In
         applying [the above] test, we may not weigh the evidence
         and substitute our judgment for 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
                                                          -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. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal

denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.

Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).

      Appellant contends the officers could not have identified what objects

he gave to the buyers. Although police recovered identical packets of heroin

from the buyers, Appellant suggests this fact alone does not prove that he

sold the heroin to them.      Appellant emphasizes he did not possess any

contraband at the time of his arrest, and the amount of U.S. currency

recovered from his person was inconsistent with the amount typically carried

by drug dealers. Appellant also claims he did not flee the scene; rather, he

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merely rode his bicycle away from the officers, who did not identify

themselves    as   police.   Additionally,   Appellant   complains   that   the

Commonwealth failed to produce property receipts to document the

narcotics recovered from the buyers, as well as the date and time when the

back-up officers recovered the contraband.       Based upon the foregoing,

Appellant concludes the Commonwealth presented insufficient evidence to

support his convictions. We disagree.

      The offenses of possession of a controlled substance and PWID are

defined by statute as follows:

         § 780-113. Prohibited acts; penalties

            (a) The following acts and the causing thereof within
         the Commonwealth are hereby prohibited:

                                 *      *    *

                   (16) Knowingly 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
             pursuant to, a valid prescription order or order of a
             practitioner, or except as otherwise authorized by this
             act.

                                 *      *    *

                   (30) 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 licensed by the appropriate State
             board, or knowingly creating, delivering or possessing
             with intent to deliver, a counterfeit controlled
             substance.

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35 P.S. § 780-113(a)(16), (30).

     To establish the offense of PWID, the Commonwealth must prove

beyond a reasonable doubt that the defendant possessed a controlled

substance with the intent to deliver it. Jones, supra at 121.

        The trier of fact may infer that the defendant intended to
        deliver a controlled substance from an examination of the
        facts and circumstances surrounding the case. Factors to
        consider in determining whether the drugs were possessed
        with the intent to deliver include the particular method of
        packaging, the form of the drug, and the behavior of the
        defendant.

Id. (quoting Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa.Super.

2003), appeal denied, 577 Pa. 712, 847 A.2d 1280 (2004)).

facts and circumstances surrounding the possession are relevant and the

elements of the crime may be established

Commonwealth v. Little, 879 A.2d 293, 297 (Pa.Super. 2005), appeal

denied, 586 Pa. 724, 890 A.2d 1057 (2005).




Jones, supra at 121 (quoting Commonwealth v. Haskins, 677 A.2d 328,

330 (Pa.Super. 1996), appeal denied, 547 Pa. 751, 692 A.2d 563 (1997)).

Constructive possession is the ability to exercise conscious control or



Jones, supra at 121 (quoting Kirkland, supra at 610).           The intent to




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exercise conscious dominion can be inferred from the totality of the

circumstances. Id.

     Instantly, Officer Rosa testified that he and his partner were on patrol,

in plain-clothes, in an unmarked police vehicle, when they observed

Appellant sitting on his bicycle at approximately 9:00 p.m.        Two men

approached Appellant, engaged him in a brief conversation, and handed over



the bundle, removed small objects from it, and handed the objects to the

buyers.   (See N.T. Trial, 9/14/12, at 12.)   The buyers departed from the

scene, and Officer Rosa radioed descriptions of both men to back-up officers.

The back-up officers stopped the buyers and recovered identical packets of

heroin from their persons.    Specifically, each buyer possessed clear, heat-

sealed packets of heroin, with blue inserts, that were stamped with the

                     Id. at 13).

     Meanwhile, Officers Rosa and Czapor circled the block, returned to the

area where Appellant was located, and exited their vehicle. As the officers

exited, Appellant attempted to flee on his bicycle.     Appellant covered a

distance of ten feet before the officers apprehended him.    The officers did

not recover any heroin from Appellant or in the immediate vicinity, but they

did find $108.00 in U.S. currency on his person.

     When viewed in the light most favorable to the Commonwealth as

                                                                  d ability to


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exercise conscious control or dominion over the contraband recovered from

the buyers. See Jones, supra

as his actions during the cash-for-object transactions, the amount of drugs,

their packaging,



possessed the drugs with intent to deliver. Id. See also Commonwealth

v. Bruce, 717 A.2d 1033 (Pa.Super. 1998), appeal denied, 568 Pa. 643, 794

A.2d 359 (1999) (stating flight is evidence of consciousness of guilt, which

may form basis, along with other proof, from which guilt may be inferred).

Based   upon    the   foregoing

convictions.   See 35 P.S. § 780-113(a)(16), (30).   Accordingly, we affirm

the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2014




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