J-S10040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                                                :
               v.                               :
                                                :
                                                :
    ADDAN PAYNE,                                :
                                                :
                      Appellant                 :    No. 1347 EDA 2016

             Appeal from the Judgment of Sentence March 9, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0006665-2015


BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                                     FILED MAY 08, 2018

        Appellant Addan Payne appeals from the judgment of sentence

imposed following his convictions for possession with intent to deliver a

controlled substance (PWID), conspiracy to commit PWID, and possession of

a controlled substance.1          Appellant claims that there was insufficient

evidence supporting his PWID conviction and that the trial court improperly

shifted the burden onto Appellant when finding him guilty.             We affirm the

convictions for      PWID, conspiracy          to   commit   PWID,   and   possession.

However, we vacate the judgment of sentence and remand for resentencing




____________________________________________


1 35 P.S. § 780-113(a)(30), 18 Pa.C.S. § 903, and 35 P.S. § 780-
113(a)(16), respectively.
J-S10040-18



as the convictions for possession and PWID should have merged for

sentencing purposes.

      On December 16, 2015, the Honorable Vincent Melchiorre presided

over Appellant’s bench trial.    During the trial, the Commonwealth called

Officer Keya Mason to testify.   Officer Mason testified that she has nineteen

years of experience in drug cases and the last two of those years she has

been with the Narcotics Enforcement Team (NET Team). N.T., 12/16/15, at

10. She testified that on the evening of April 3, 2015, she was part of the

NET Team conducting surveillance in the area of the 4200 block of Odgen

Street.   Id. at 9-10.   Officer Mason stated that she observed Appellant

wearing a gray-hooded jacket, red pants, and red sneakers.           Id. at 11.

Officer Mason continued that Appellant was accompanied by a female, later

identified as Shirley Stevens, who was wearing a blue jean jacket, green

cargo pants, and a white scarf. Id.

      Officer Mason testified that she was located approximately one city

block away, had a clear and unobstructed view, and was using binoculars.

Id. at 12, 21.   She further testified that streetlights illuminated the area

where Appellant was located. Id. at 44-45. During her surveillance, Officer

Mason observed a black male, later identified as Albert Tomlin, riding a

motorized scooter. Id. at 14. Tomlin rode up to the middle of the street

where Stevens approached him, they had a brief conversation, and Tomlin

gave Stevens an unknown amount of U.S. currency.          Id.   Stevens then

walked over to Appellant and gave him the money.        Id. at 15.    Appellant

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proceeded to walk into an alleyway for approximately thirty seconds and

when he returned, he handed small items to Stevens.           Id.    Stevens then

went back to Tomlin and gave him the small items. Id. at 16. Tomlin then

left.   Id.   Officer Mason relayed this information to backup officers who

stopped Tomlin and recovered two green-tinted heat-sealed Ziploc packets

of crack cocaine. Id. at 16-17.

        Officer Mason continued her surveillance and observed a white pick-up

truck arrive at the location where Appellant and Stevens were. Id. at 17.

Officer Mason testified that, this time, Appellant approached the passenger

in the pick-up truck, later identified as Patrick Kim. Id. Kim extended his

hand out the window and gave Appellant U.S. currency.               Id.   Appellant

walked into the same alleyway and upon returning, handed small items to

Kim.     Id. at 19.    Officer Mason relayed this information to her backup

officers, who stopped the vehicle and recovered from the driver, Kelly

Wilson, three clear heat-sealed Ziploc packets containing crack cocaine. Id.

        Officer Mason testified that after these two transactions, he notified his

backup officers to arrest Appellant.      Id. at 20.   Officer Nicholas Martella

arrested Appellant and recovered $348 from different pockets.             Id.   The

backup officers also searched the alleyway where Appellant had twice

entered but could not find anything. Id. No narcotics were recovered from

the Appellant. Id. at 43.

        The Commonwealth also called Officer Daniel Mammola and Officer

Patrick DiDomenico to testify.      Officer Mammola testified that he was the

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officer that stopped Tomlin and retrieved from him two green-tinted heat-

sealed Ziploc packets of crack cocaine.             Id. a 50.    Officer DiDomenico

testified that he arrested Wilson and Kim. Id. at 54. He testified that, from

Wilson’s    hand,    he   recovered     three    clear   heat-sealed   Ziploc   packets

containing crack cocaine. Id. The officer did not testify that he recovered

drugs from Kim. Officer Martella, who was also called to testify, stated that

he conducted field testing, a NIK-G test, on the drugs. Id. at 61.

       Judge Melchiorre convicted Appellant as charged. On March 9, 2016,

the trial court2 sentenced Appellant to two to four years’ incarceration for

PWID and a concurrent two to four years’ incarceration for conspiracy to

commit PWID.        The trial court further imposed a consecutive two years’

probation for Appellant’s conviction for possession of a controlled substance.

       On March 16, 2016, Appellant filed his post-sentence motion for

reconsideration, claiming that his sentence was excessive. See Motion for

Reconsideration, 3/16/16. The docket indicates that Appellant filed a motion

to withdraw his post-sentence motion for reconsideration, which the trial

court granted on April 18, 2016. See Docket at 8.

       On April 27, 2016, Appellant filed a timely notice of appeal. Appellant

complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise


____________________________________________


2A different judge presided over Appellant’s sentencing as the trial judge
was absent from the bench at the time of the sentencing hearing.




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statement of errors complained of on appeal.

       On August 23, 2017, the sentencing judge filed a letter3 in which she

stated that she did not preside over the waiver trial.     See Sentencing Ct.

Op., 8/23/17. She indicated that Appellant complained of errors that

occurred during the trial, and not the sentencing phase.        Id.   Thus, she

explained, it would be inappropriate for her to write the Pa.R.A.P. 1925(a)

opinion. Id. The sentencing judge further stated that she had “requested a

written explanation of Judge Melchiorre’s ruling [but that he] ha[d] not

obliged th[e] [c]ourt’s request.” 4 Id.

       Appellant raises the following issues on appeal:

       1. The trial court erred in finding Appellant guilty of all charges
          because the evidence was insufficient to prove Appellant ever
          possessed a controlled substance with the intent to deliver.
          The Commonwealth’s witness was not able to state what
          passed between Appellant and supposed customers, no drugs
          were recovered from Appellant, and the drugs taken from
          supposed buyers did not match each-other.             Therefore,
          Appellant challenges the sufficiency of the evidence.


____________________________________________


3 While the document is titled “Opinion,” the sentencing judge stated it did
not constitute the Pa.R.A.P. 1925(a) opinion. See Sentencing Ct. Op.,
8/23/17.

4 This Court may consider this appeal although the trial judge did not file its
Pa.R.A.P. 1925(a) opinion. See Commonwealth v. Hood, 872 A.2d 175,
178 (Pa. Super. 2005) (noting that while the purpose of a Rule 1925(a)
opinion is “to provide the appellate court with a statement of reasons for the
order . . . to permit effective and meaningful review,” failure to file a Rule
1925(a) opinion is not necessarily fatal to our review).




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J-S10040-18


       2. Did the court improperly burden shift when finding the
          Appell[ant] guilty?

Appellant’s Brief at vi (full capitalization omitted).5

       As a prefatory matter, we note that while Appellant purports to raise a

sufficiency claim, he is essentially challenging the weight of the evidence. In

Appellant’s first issue, he argues that the evidence was insufficient to

support his PWID conviction. He claims that because no evidence was found

on his person, the Commonwealth was required to prove constructive

possession. Appellant contends that the Commonwealth did not meet this

burden because the Commonwealth’s witness, Officer Mason, “could not

testify that she heard any drug related conversations, could not see what

was passed, was making her observations from a distance that was at least

a ‘city block’ at eight o’clock in the evening” without the use of binoculars,

the alleged buyers were found in possession of drugs with different

packaging,6 no drugs were located in the alleyway, and Appellant was not in

____________________________________________


5 While Appellant’s first issue purports to challenge all of his convictions, the
argument section of his brief only addresses the PWID conviction. See
Appellant’s Brief at 1-4. Because Appellant includes no argument as to why
there is insufficient evidence to support his conspiracy conviction, we find
this claim waived. See Commonwealth v. Spotz, 18 A.3d 244, 327 (Pa.
2011) (finding appellant’s issue waived where he did not set forth “reasoned
and developed arguments supported with citations to relevant legal
authority”).

6 Appellant argues that the items seized from the alleged buyers “did not
match each-other” and that the buyers were not “found to be in possession
of drugs of the same sort of packaging.” Appellant’s Brief at 1, 4.
(Footnote Continued Next Page)


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possession of a suspicious amount of money.                Appellant’s Brief at 4.

Therefore, Appellant argues, “[w]here the Commonwealth rests its claim of

proof of criminal charges upon such unreliable testimony, a guilty verdict

shocks one’s sense of justice, and should be set aside.” Id.

      Appellant is essentially challenging the credibility of Officer Mason’s

observations and testimony. A challenge to the credibility of a witness goes

to the weight of the evidence, not the sufficiency. See Commonwealth v.

Gibbs, 981 A.2d 274, 281-82 (Pa. Super. 2009) (“An argument that the

finder of fact should have credited one witness’ testimony over that of

another witness goes to the weight of the evidence[.]” (citation omitted));

see also Commonwealth v. Wilson, 825 A.2d 710, 713-14 (Pa. Super.

2003) (providing that a review of the sufficiency of the evidence does not

include an assessment of the credibility of testimony; such a claim goes to

the weight of the evidence). Therefore, Appellant is challenging the weight

of the evidence, not the sufficiency.          Appellant, however, has waived any

challenge to the weight of the evidence for failure to include it in his

Pa.R.A.P. 1925(b) statement. See Commonwealth v. Lord, 719 A.2d 306,




(Footnote Continued) _______________________


     We note that Appellant did not develop his argument regarding the
mismatched packaging. A review of the trial transcript indicates that the
drug packaging recovered from Tomlin was green, while the drug packaging
recovered from Wilson was clear. See N.T., 12/16/15, at 17, 19.



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309 (Pa. 1998) (“Any issues not raised in a 1925(b) statement will be

deemed waived.”); see also Pa.R.A.P. 1925(b)(4)(vii).

      To the extent that Appellant has properly raised a sufficiency claim, we

find it meritless.   We apply the following standard when reviewing a

sufficiency claim:

         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
         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 finder 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. Roberts, 133 A.3d 759, 767 (Pa. Super. 2016) (citing

Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa. Super. 2010)).

      A defendant is guilty of PWID when the Commonwealth proves beyond

a reasonable doubt “that the defendant possessed a controlled substance

with the intent to deliver it.” Commonwealth v. Kirkland, 831 A.2d 607,

611 (Pa. Super. 2003) (citation omitted).       “It is well settled that ‘[i]n


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narcotics possession cases, the Commonwealth may meet its burden by

showing actual, constructive, or joint constructive possession of the

contraband.’” Roberts, 133 A.3d at 767 (citation omitted).

     Initially, we note that when no narcotics are found on a defendant, the

Commonwealth must prove constructive possession. Id. at 767; Kirkland,

831 A.2d at 610. “Constructive possession is an inference arising from a set

of facts that possession of the contraband was more likely than not.”

Roberts, 133 A.3d at 768 (citation omitted).        It has been defined as

“conscious dominion,” which in turn has been defined as “the power to

control the contraband and the intent to exercise that control.” Id. (citation

omitted).   “To aid application, we have held that constructive possession

may be established by the totality of the circumstances.”        Id. (citation

omitted).

     Regarding the intent to deliver, “[t]he 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.” Kirkland, 831 A.2d at

611 (citation omitted). “[T]he Commonwealth may establish the essential

elements of the crime wholly by circumstantial evidence.” Commonwealth

v. Ratsamy, 934 A.2d 1233, 1237 (Pa. 2007) (citing Commonwealth v.

Drummond, 775 A.2d 849, 853-54 (Pa. Super. 2001)).             While a large

quantity is often indicative of intent to deliver, Roberts, 133 A.3d at 768,

“the amount of the controlled substance is not ‘crucial to establish an


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inference of possession with intent to deliver,’” Ratsamy, 934 A.2d 1237

(citation omitted).    Other factors we may consider are the method of

packaging, the form of the drug, behavior of the defendant, presence of

drug paraphernalia, sums of cash found on the defendant, and expert

testimony. See Roberts, 133 A.3d at 768; Kirkland, 831 A.2d at 611.

      In the instant case, no narcotics were found on Appellant at the time

of his arrest.   N.T., 12/16/15, at 43.      However, we reject Appellant’s

argument that the Commonwealth did not meet its burden beyond a

reasonable doubt.     A review of the facts and circumstances of the instant

case shows that Officer Mason, an officer with nineteen years of experience,

was observing Appellant.     Id. at 10.   Officer Mason had an unobstructed

view of Appellant, who was standing in an area lit by streetlights. Id. at 12,

44-45. Officer Mason testified at trial that she saw a scooter approach. Id.

at 14.   She testified that she saw an individual give currency to Stevens,

who walked towards Appellant and gave him the currency.        Id. at 14-15.

Appellant walked into an alleyway and returned with small items that he

gave to Stevens. Id. at 15. Stevens then walked towards the scooter and

gave the small items to the individual. Id. at 16.

      Officer Mason further testified that she subsequently saw another

vehicle approach, this time a white pick-up truck.     Id. at 17.    She saw

Appellant approach the vehicle and receive currency from the passenger,




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Kim.   Id.    Appellant again walked into the alleyway and, upon returning,

gave small items to the passenger. Id. at 19.

       Further, when the backup officers stopped the scooter and the pick-up

truck, the officers recovered two green-tinted heat-sealed Ziploc packets and

three clear heat-sealed packets, respectively.         Id. at 16-17, 19.     Field

testing revealed the packets contained crack cocaine.        Id. at 61.    Finally,

upon arresting Appellant, the officers recovered $348 in cash. Id. at 20.

       Therefore, we conclude there was sufficient circumstantial evidence to

establish that Appellant had possession and control over the narcotics found

on Tomlin and Wilson.       See Roberts, 133 A.3d at 768.         Based on the

totality of the circumstances, the evidence was sufficient to support

Appellant’s   convictions   for   PWID,   conspiracy   to   commit   PWID,    and

possession. See Ratsamy, 934 A.2d 1237.

       In Appellant’s next issue, he cites to several cases for different

propositions, including, Commonwealth v. Wagaman, 627 A.2d 735, 736

(Pa. Super. 1993) (discussing the Commonwealth’s burden of proof);

Commonwealth v. Garrett, 222 A.2d 902 (Pa. 1966) (holding that mere

presence at the scene of the crime is insufficient to establish guilt); and

Commonwealth v. Bonomo, 151 A.2d 441 (Pa. 1959) (discussing the

presumption of innocence). Appellant argued the following in his brief:

         [W]hen the trial court ruled[,] it explicitly stated one of the
         reasons for a finding of guilt was the lack of defense on
         the part of trial counsel:


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                  [T]here’s been no defense of misidentification.
                  There’s no defense that the transaction
                  between the young lady, as stated, accepting
                  money from a scooter, taking the money to
                  [Appellant], [Appellant] going to the alleyway -
                  - I heard hundreds of these cases, and that’s
                  the way it goes.

Appellant’s Brief at 6 (emphasis in original) (citing N.T., 12/6/15, at 70).

        The Commonwealth disagrees with Appellant’s interpretation of the

trial   court’s   statements.    See   Commonwealth’s      Brief   at   11.    The

Commonwealth argues that the trial court, sitting as the fact-finder, was

merely answering Appellant’s closing argument that there was no indication

that Appellant was the person involved in the transactions.              Id.   The

Commonwealth further argues that the trial court was summarizing the

testimony rather than shifting the burden. Id. We agree.

        During closing arguments, both Appellant and the Commonwealth

made arguments that the trial court addressed when providing his rationale

for finding Appellant guilty.        For example, during Appellant’s closing

argument, trial counsel stated: “So there’s no indication beyond a

reasonable doubt that my client is the person who is involved in these

transactions.” N.T., 12/16/15, at 64. Similarly, during the Commonwealth’s

closing argument, counsel for the Commonwealth stated: “And you can’t

take [trial counsel’s] statements out of context and really trying to impeach

the officer by taking it out of context. The only thing the officer really got

impeached on was the [color of] the sneakers[.]” Id. at 68-69.




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     The trial court stated the following after the completion of closing

arguments by counsel:

     Well, [trial counsel] trying to impeach is doing her job as
     counsel, and poking holes is part of her job. I understand that.

     The officer’s much, much, much younger than I am, and I have
     trouble seeing the color of money from here to there a block
     away in the dark. That can -- may be a stretch, but I think the
     police testified to that because, in their business, they
     understand what it is. Whether they could see it or not, they
     assume what it is.

     And I wish more officers -- they would say, “I assume that’s
     what it was,” because that’s what happened, rather than . . .

     A city block is probably a lot further than three courtrooms.

     But given that, I have to take the totality of the circumstances.
     And there’s been no defense of misidentification. There’s no
     defense that the transaction between the young lady, as stated,
     accepting money from a scooter, taking the money to
     [Appellant], [Appellant] going to the alleyway -- I heard
     hundreds of these cases, and that’s the way it goes.

     Open air-sales, drive-up sales are not -- well, they are and are
     not stupid people, don’t want the drugs on them, so they put
     them somewhere else.

     Given the totality of the circumstances and the clear testimony
     of the officers, I find [Appellant] guilty.

N.T., 12/16/15, at 69-71.

     In reviewing the trial court’s statements, we conclude that the court

was discussing the findings supporting its verdict, in addition to addressing

some of the points argued by both counsel during their closing arguments.

     Lastly, we review the legality of the sentence imposed in this case.

While Appellant has not raised an issue regarding the legality of his

sentence, “[i]t is well settled that this Court may address the legality of a

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sentence sua sponte.” Commonwealth v. McCamey, 154 A.3d 352, 357

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

       The trial court sentenced Appellant, in relevant part, to two to four

years’ incarceration for PWID and a consecutive two years’ probation for

possession of a controlled substance.7 See Sentencing Order, 3/9/16. This

Court has previously held that whether two sentences merge involves the

legality of a defendant’s sentence.            See Commonwealth v. Jenkins, 96

A.3d 1055, 1056 (Pa. Super. 2014). Thus, our standard of review is de novo

and our scope of review plenary. Id. (citation omitted).

       The Pennsylvania Sentencing Code provides:

       No crimes shall merge for sentencing purposes unless the crimes
       arise from a single criminal act and all of the statutory elements
       of one offense are included in the statutory elements of the
       other offense. Where crimes merge for sentencing purposes, the
       court may sentence the defendant only on the higher graded
       offense.

42 Pa.C.S. § 9765.

       Therefore, two convictions merge for sentencing purposes when: “(1)

the crimes arise from a single criminal act; and (2) all of the statutory

elements of one of the offenses are included within the statutory elements of

the other.” Jenkins, 96 A.3d at 1056; 42 Pa.C.S. § 9765.


____________________________________________


7 The trial court also sentenced Appellant to two to four years’ incarceration
for conspiracy to commit PWID, to run concurrently with the sentence
imposed for PWID.



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      Here, although Appellant was involved in two separate transactions, a

review of the record reveals that the PWID count encompassed both

transactions.   Moreover, the separate possession count encompassed both

transactions.   No additional contraband was recovered from Appellant’s

person or the alleyway. Thus, the crimes arise from a single criminal act.

See 42 Pa.C.S. § 9765.

      Next, we must determine whether PWID under section 780-113(a)(30)

encompasses all of the elements of possession under section (a)(16).

      Section 780-113(a)(16), regarding possession, 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[.]” 35 P.S. § 780-113(a)(16).

      Section 780-113(a)(30), regarding PWID, prohibits “the manufacture,

delivery, or possession with intent to manufacture or deliver, a controlled

substance by a person not registered under this act.”        35 P.S. § 780-

113(a)(30).     A delivery means “the actual, constructive, or attempted

transfer from one person to another of a controlled substance, other drug,

device or cosmetic whether or not there is an agency relationship.” 35 P.S.

§ 780-102.

       A review of sections 780-113(a)(16) and 780-113(a)(30) reveals that

possession is a lesser included offense of PWID.    See Commonwealth v.

Rippy, 732 A.2d 1216, 1223 (Pa. Super. 1999) (overruled on other


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grounds) (citation omitted).          Moreover, this Court has noted, the act of

“[d]elivery necessarily includes possession with the intent to deliver and

possession    with   the     intent    to    deliver    clearly   includes   possession.”

Commonwealth v. Edwards, 449 A.2d 38, 39 (Pa. Super. 1982).

      Thus, we are constrained to conclude that the PWID and possession

convictions should have merged for purposes of sentencing.                   Because our

review upsets the trial court’s overall sentencing scheme, we vacate the

judgment of sentence and remand for resentencing. See Commonwealth

v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006) (“If our disposition upsets the

overall sentencing scheme of the trial court, we must remand so that the

court can restructure its sentence plan.” (citation omitted)).

      Judgment of sentence vacated.                  Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/18




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