J-S19037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                v.                             :
                                               :
    RODNEY HOLMAN                              :
                                               :
                       Appellant               :
                                               :      No. 501 EDA 2017


            Appeal from the Judgment of Sentence January 18, 2017
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0001743-2013


BEFORE:      SHOGAN, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                                 FILED JUNE 21, 2018

        Appellant, Rodney Holman, appeals from the judgment of sentence

imposed on January 18, 2017, following his non-jury conviction of one count

each of possession with intent to deliver a controlled substance (PWID) and

possession of a controlled substance.1 On appeal, Appellant challenges the

sufficiency and weight of the evidence. For the reasons discussed below, we

affirm the judgment of sentence.

        We take the underlying facts and procedural history in this matter from

the trial court’s June 29, 2017 opinion.

              On March 20, 2012, [Philadelphia Police] Officer [Bradford]
        Mitchell, [Philadelphia Police] Officer [Gary] Francis, and a
        confidential informant (CI) arranged a controlled purchase of
        crack cocaine from [Appellant] at 919 East Woodlawn Street in
____________________________________________


1   35 P.S. §§ 780-113(a)(30) and (16), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        Philadelphia. Officer Mitchell searched the CI with negative results
        for any drugs or money, then provided him with recorded buy
        money, and followed him to the location. Officer Mitchell observed
        the CI approach the Appellant sitting on the porch and have a
        conversation. Then Officer Mitchell saw the Appellant enter the
        house and exit a few seconds later. The Appellant handed
        something to the CI; the CI gave Appellant the buy money, and
        then left to meet Officer Francis at a pre-determined location. The
        CI turned over two clear vials, each containing crack cocaine,
        which were placed on a property receipt, and he was searched
        again with negative results for any other drugs or money.

              The following day, March 21, 2012, Officer Mitchell, Officer
        Francis, and the same CI conducted the same pre-arranged
        controlled purchase of crack cocaine from the Appellant at the
        same location.       Officer Mitchell again observed a short
        conversation between the CI and the Appellant, whereupon the
        Appellant entered the house, exiting a few seconds later[,] then
        exchanging something with the CI for the buy money. The CI
        again turned over two clear vials containing crack cocaine and was
        searched, resulting in no recovery of any other drugs or money.

(Trial Court Opinion, 6/29/17, at 2-3) (record citations omitted).

        A bench trial took place on November 3, 2016. On November 18, 2016,

the trial court found Appellant guilty of the aforementioned charges, but not

guilty of possession of drug paraphernalia.2 On January 18, 2017, the trial

court sentenced Appellant to an aggregate term of incarceration of not less

than one nor more than two years to be followed by three years of reporting

probation. Appellant did not file a post-sentence motion. The instant, timely

appeal followed. On March 2, 2017, the trial court directed Appellant to file a

1925(b) statement within twenty-one days of the date of that order. See



____________________________________________


2   35 P.S. §§ 780-113(a)(32).

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Pa.R.A.P. 1925(b). Appellant filed a Rule 1925(b) statement on June 2, 2017.

See id. On June 29, 2017, the trial court issued an opinion addressing the

issues Appellant raised on the merits. See Pa.R.A.P. 1925(a) (see also Trial

Ct. Op., at 3-11).

       On appeal, Appellant raises the following questions for our review:

            1.    Whether the evidence was sufficient to find beyond a
       reasonable doubt that Appellant was guilty of [PWID?]

            2.    Whether the verdict finding Appellant guilty of [PWID]
       was against the weight of the evidence[?]

(Appellant’s Brief, at 4).

       In his first issue, Appellant claims the evidence was insufficient to

sustain his conviction for PWID.3 (See id. at 8-10). We disagree.4

       Our standard of review for sufficiency of the evidence claims is well

settled:

             We must 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.
____________________________________________


3 Appellant does not challenge the sufficiency of the evidence underlying his
conviction for possession of a controlled substance. (See Appellant’s Brief, at
8-10).

4  As noted by the trial court in its opinion, (see Trial Ct. Op., at 2), Appellant
filed his Rule 1925(b) statement more than twenty-one days after entry of its
order, and thus it was untimely. While we could find waiver based on the
untimeliness of the Rule 1925(b) statement, we decline to do so, because the
trial court addressed Appellant’s issues. See Commonwealth v. Rodriguez,
81 A.3d 103, 104 n.2 (Pa. Super. 2013), appeal denied, 91 A.3d 1238 (Pa.
2014) (declining to find waiver because trial court had addressed issues raised
in untimely Rule 1925(b) statement).

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      Where there is sufficient evidence to enable the trier of fact to find
      every element of the crime has been established beyond a
      reasonable doubt, the sufficiency of the evidence claim must fail.

            The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute our
      judgment for that of the fact-finder. The Commonwealth’s burden
      may be met by wholly circumstantial evidence and any doubt
      about the defendant’s guilt is to be resolved by the fact finder
      unless the evidence is so weak and inconclusive that, as a matter
      of law, no probability of fact can be drawn from the combined
      circumstances.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citation

omitted) (emphasis added).

      Appellant challenges the sufficiency of the evidence with respect to his

conviction for PWID.     Initially, we note that, while claiming to view the

evidence in the light most favorable to the Commonwealth, most of Appellant’s

argument is a discussion of evidence he believes the Commonwealth should

have presented but did not.       (See Appellant’s Brief, at 8-10).      Further,

Appellant overlooks the fact that this Court does not re-weigh the evidence,

nor do we engage in credibility determinations.          (See id.).    Moreover,

Appellant’s argument, other than citations to cases discussing the standard of

review, is devoid of legal support. Appellant cites to a single case to support

his claim that the evidence was insufficient to sustain his convictions, and that

case is a non-precedential, unpublished memorandum. (See id. at 10). We

remind Appellant that “an unpublished memorandum of this Court carries no

precedential weight, apart from the parties involved in that particular case.”

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Midwest Financial Acceptance Corp. v. Lopez, 78 A.3d 614, 627 n.2 (Pa.

Super. 2013) (citation omitted). Thus, we could find waiver, but decline to do

so.

      We review a challenge to the sufficiency of the evidence underlying a

conviction for PWID under the following standards. For the evidence to be

sufficient to sustain a conviction for PWID, the Commonwealth must prove

both that Appellant possessed the controlled substance and that he intended

to deliver the controlled substance. See Commonwealth v. Bostick, 958

A.2d 543, 560 (Pa. Super. 2008), appeal denied, 987 A.2d 158 (Pa. 2009).

All the facts and circumstances surrounding the possession are relevant to this

inquiry. See id. In particular, relevant factors include, but are not limited to,

“the particular method of packaging, the form of the drug, and the behavior

of the defendant.” Commonwealth v. Goodwin, 928 A.2d 287, 292 (Pa.

Super. 2007) (citations omitted). Further, we can infer the intent to deliver

from the possession of a large quantity of the controlled substance.        See

Bostick, supra at 560.

      Because the police did not find drugs on Appellant’s person, the

Commonwealth was required to establish that he constructively possessed

them. This Court has stated that:

      [c]onstructive possession requires proof of the ability to exercise
      conscious dominion over the substance, the power to control the
      contraband, and the intent to exercise such control. Constructive
      possession may be established by the totality of the
      circumstances. We have held that circumstantial evidence is
      reviewed by the same standard as direct evidence — a decision

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      by the trial court will be affirmed so long as the combination of
      the evidence links the accused to the crime beyond a reasonable
      doubt.

Commonwealth v. Bricker, 882 A.2d 1008, 1014 (Pa. Super. 2005)

(citations and quotation marks omitted).

      Here,   viewing   the   record   in   the   light   most   favorable   to   the

Commonwealth, the evidence shows that the police arranged for a controlled

purchase of drugs from Appellant though a CI. (See N.T. Trial, 11/03/16, at

11-12). The purchase took place at Appellant’s residence, 919 East Woodlawn

Street, Philadelphia (See id. at 10-11, 16). Prior to the controlled buy, Officer

Mitchell searched the CI and did not find any drugs or money on his person.

(See id. at 12). Officer Mitchell provided the CI with buy money. (See id. at

13). He watched the CI walk up to Appellant, who was sitting on the porch,

and engage in conversation with him. (See id. at 13). Appellant then entered

his home, came back out, and handed something to the CI. (See id.). The

CI gave Appellant the money. (See id.). The CI turned over two vials of

crack cocaine to the police; a search of the CI for any other drugs or money

was, again, negative. (See id.). The police repeated the process the next

day with identical results. (See id. at 14). This evidence was more than

sufficient to sustain Appellant’s conviction. See Commonwealth v. Lee, 956

A.2d 1024, 1028 (Pa. Super. 2008), appeal denied, 964 A.2d 894 (Pa. 2009)

(holding evidence sufficient to sustain verdict for PWID where police observed

defendant engage in two hand-to-hand drug transactions in which money was


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exchanged for items later revealed to be packets of crack cocaine).

Appellant’s challenge to the sufficiency of the evidence underlying his

conviction for PWID lacks merit.

      In his final claim, Appellant challenges the weight of the evidence.

However, Appellant has not preserved this claim for our review.

      We have long held that this Court cannot consider, in the first instance,

a claim that the verdict is against the weight of the evidence.              See

Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa. Super. 2003). Here,

Appellant did not file a post-sentence motion.        Thus, Appellant did not

preserve the issue for our review.    See Commonwealth v. Burkett, 830

A.2d 1034, 1036 (Pa. Super. 2003).

      Moreover, even if we were to address the merits of the weight of the

evidence claim, it would fail.

      Our scope and standard of review of a weight of the evidence claim is

as follows:

            The finder of fact is the exclusive judge of the weight of the
      evidence as the fact finder is free to believe all, part, or none of
      the evidence presented and determines the credibility of the
      witnesses.

             As an appellate court, we cannot substitute our judgment
      for that of the finder of fact. Therefore, we will reverse a jury’s
      verdict and grant a new trial only where the verdict is so contrary
      to the evidence as to shock one’s sense of justice. A verdict is
      said to be contrary to the evidence such that it shocks one’s sense
      of justice when the figure of Justice totters on her pedestal, or
      when the jury’s verdict, at the time of its rendition, causes the
      trial judge to lose his breath, temporarily, and causes him to


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      almost fall from the bench, then it is truly shocking to the judicial
      conscience.

             Furthermore, where the trial court has ruled on the weight
      claim below, an appellate court’s role is not to consider the
      underlying question of whether the verdict is against the weight
      of the evidence. Rather, appellate review is limited to whether
      the trial court palpably abused its discretion in ruling on the weight
      claim.

Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en

banc) (citation and quotation marks omitted). “Thus, the trial court’s denial

of a motion for a new trial based on a weight of the evidence claim is the least

assailable of its rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-80

(Pa. 2008), cert. denied, 556 U.S. 1106 (2009) (citation omitted).

      In its Rule 1925(a) opinion, the trial court stated that it found Officer

Mitchell’s testimony credible and there was nothing that “reasonably

controverted” the Commonwealth’s evidence.           (Trial Ct. Op., at 7).     It

concluded, “The [trial c]ourt’s conscience was in no way shocked by the

verdicts, which were not at all contrary to the weight of the evidence.” (Id.).

“[I]t is for the fact-finder to make credibility determinations, and the finder of

fact may believe all, part, or none of a witness’s testimony.” Commonwealth

v. Lee, supra at 1029 (citation omitted). This Court cannot substitute our

judgment for that of the trier of fact. See Commonwealth v. Lyons, 79

A.3d 1053, 1067 (Pa. 2013), cert. denied, 134 S.Ct. 1792 (2014). This issue

does not merit relief.




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     Appellant’s issues either are waived or lack merit. Thus, we affirm the

judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/21/18




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