J-A04040-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARCUS HOLLY                               :
                                               :
                       Appellant               :   No. 1588 EDA 2018

           Appeal from the Judgment of Sentence December 21, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0001270-2016


BEFORE:      LAZARUS, J., KUNSELMAN, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                               FILED MARCH 14, 2019

        Appellant, Marcus Holly, appeals from the judgment of sentence of 11.5

to 23 months of confinement, with immediate parole to house arrest for 23

months, followed by 5 years of probation. The sentence was imposed after

his convictions at a bench trial for possession of a controlled substance and

possession with intent to deliver (PWID).1 Appellant contends, inter alia, that

the evidence was insufficient to sustain his convictions. After careful review,

we are constrained to agree with Appellant and, accordingly, reverse his

judgment of sentence.

        The facts underlying this appeal are as follows.       At a hearing on

Appellant’s motion to suppress the search of the vehicle in which he was

present, the trial court heard the testimony of Officer Michael Tritz, who
____________________________________________


1   35 P.S. §780-113(a)(16) and §780-113(a)(30) respectively.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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conducted a plainclothes narcotics surveillance from a police surveillance

vehicle parked in the 5500 block of Cambridge Street in Philadelphia. See

Notes of Testimony (N.T.), 6/5/17, at 7. Officer Tritz observed Appellant, who

was in the driver’s seat of a silver Chevrolet parked approximately four car

lengths behind the police surveillance vehicle, as he exited the vehicle and

approached the passenger side of a Dodge Stratus that had parked

immediately behind the police surveillance vehicle and was driven by a man

later identified as Ryan Bergstrom.      Id. at 8-9.   Officer Tritz observed

Appellant receive U.S. currency from Bergstrom and, in an overhand pinching

motion, give Bergstrom a small object.    Id. at 9. Officer Tritz testified that

Appellant then returned to the Chevrolet and Bergstrom drove away from the

area. Id. Officer Tritz alerted his backup officers to stop the Dodge Stratus.

      Present in the passenger seat of the Chevrolet was Malik Clover, whom

Officer Tritz had observed approximately one and a half hours earlier when

Clover, who had arrived at the scene in his own car, approached the Chevrolet

after making a narcotics transaction. Id. at 11. Clover entered the passenger

seat of the Chevrolet and shortly thereafter exited, made another narcotics

transaction, and returned once more to the Chevrolet passenger seat.

Appellant remained in the vehicle throughout this period.      After Appellant

exited the Chevrolet, approached the Dodge Stratus, and then returned to the

Chevrolet, Officer Tritz allowed his backup officers time to apprehend

Bergstrom, the driver of the Dodge, and then directed them to apprehend

Appellant and Clover and search the Chevrolet. Id. at 10, 12. Officer Tritz

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stated that he was not at the scene when items were recovered both from

Appellant’s person and from the Chevrolet, but that the information was

provided to him “later on.” Id. at 18. He testified that the backup officers

recovered one small blue oxycodone pill from Bergstrom’s Dodge Stratus. Id.

at 10. He also testified that the backup officers recovered $254 U.S. currency

from Appellant and two bottles from under the cup holder on the rear armrest

of the Chevrolet. Id. at 18. Officer Tritz testified that one bottle contained

97 small round blue pills stamped “A215” and the other bottle was a

prescription for 120 OxyContin2 30 milligram pills in the name of “Barnes,

Keenan”; this bottle contained 14 pills, which were also stamped “A215”. Id.

at 19.    He testified that in the trunk of the Chevrolet, backup officers also

found an envelope containing two large freezer bags and seven clear plastic

containers, all containing a substance that tested as marijuana. Id. Officer

Tritz testified that all of the narcotics were field tested, and submitted to the

chemistry lab for “legitimate, actual analysis.” Id. at 19-20.

        The trial court denied the motion to suppress, finding probable cause to

search the Chevrolet.        Appellant then waived a trial by jury, and without

objection the Commonwealth moved into evidence the nonhearsay testimony

of Officer Tritz as well as 5 chemistry laboratory reports, 10 property receipts,



____________________________________________


2   OxyContin is a brand name for oxycodone.




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and 5 evidence control data sheets.3 Id. at 52-53; Commonwealth Exhibit C-

1.     In offering its evidence, the Commonwealth referred to the various

documents collectively as “C-1 property receipt evidence control data sheet

and seizure analysis for 3227075, 3227079, 3227070, all of which tested

____________________________________________


3   The notes of testimony state:

              [Commonwealth]:         Absent    objection     from
              [Appellant’s counsel], the Commonwealth would just
              seek to mark and move collectively as C-1 property
              receipt evidence control data sheet and seizure
              analysis for 32207075, 3227079, 32270770, all of
              which tested positive for oxycodone. And specifically
              on 3227075 also tested from the trunk of the vehicle
              was positive for Marijuana.

              The property receipt belonging to 3227070 was seized
              from buyer Ryan Bergstrom. The other two were the
              vehicle where [Appellant] was present, the silver
              Chevy HHRT that day.

              And then for completeness of the record,
              Commonwealth would mark and move Property
              Receipt 3227072 and 3227081, all of which was
              United States currency seized from [Appellant]. And
              then lastly 3227073, iPhone seized from [Appellant].

              With those on the                record   absent   objection,
              Commonwealth rests.

              [Court]:      You’re moving to admit all nonhearsay
              evidence?

              [Commonwealth]:         In addition to all nonhearsay
              testimony from Officer Tritz in the motion to suppress.
              Thank you, Your Honor.

N.T. at 52-53.


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positive for oxycodone.” N.T. at 52. However, our examination of the record

reveals that no property receipt #3227075 was submitted with regard to the

oxycodone pills and marijuana, only a chemistry lab report bearing Appellant’s

name, referencing property receipt #3227075, and listing the two bottles of

oxycodone and nine total containers of marijuana analyzed, together with a

corresponding evidence control data sheet also referencing property receipt

#3227075.       The chemistry lab report indicates analysis of 24 of the 97

oxycodone tablets in a bottle, all marked “A215”; analysis of 11 of the 14

oxycodone tablets in an amber prescription bottle with the name “Barnes,

Keenan”, all marked “A215”; and analysis of 9 containers and/or clear plastic

vacuum bags of marijuana. Commonwealth Exhibit C-1.              Property receipt

#3227079 does not relate to evidence of oxycodone or marijuana, but rather

describes the vehicle seized from Malik Clover at the scene. Id. Property

receipt #3227070 describes a “small round blue pill stamped 48/12 on one

side & the letter ’V’ on the other side, alleged Oxycodone 30mg schedule 2”,

which “was recovered from the rear floor of [Bergstrom’s] white Dodge

Stratus.”   Id.   The remaining evidence included in Exhibit C-1 consists of

evidence control data sheets and property receipts for (i) U.S. currency and

three cell phones recovered from Appellant; (ii) crack cocaine, marijuana, and

a cell phone recovered from Malik Clover; and (iii) crack cocaine recovered

from the two individuals with whom Clover was observing making narcotics

transactions.      There   is   no   chemistry   lab   report   included   in   the




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Commonwealth’s evidence to indicate that an analysis of the single pill

recovered from Bergstrom’s vehicle was performed.

       The trial court found Appellant guilty of both possession of a controlled

substance and possession with intent to deliver, citing the fact that none of

the pills found were prescribed to Appellant and concluding that the totality of

circumstances indicated a drug transaction. N.T. at 60. The trial court cited

the decision of our Pennsylvania Supreme Court in Commonwealth v.

Thompson, 985 A.2d 928, 934 (Pa. 2009) (clarifying that police experience

and training is relevant when the testifying officer is able to demonstrate a

nexus between his experience and the search, arrest, or seizure of evidence).

Here, Officer Tritz was personally familiar with narcotics sales activity and

hand-to-hand drug exchanges in the high narcotic traffic area, having made

approximately 1000 narcotics arrests over his thirteen-year career. N.T. at

35.

       Appellant was sentenced on December 21, 2017.          He filed a post-

sentence motion on December 29, 2017 challenging the sufficiency and weight

of the evidence, which was denied by operation of law on May 2, 2018.

        On May 7, 2018, Appellant filed this timely direct appeal,4 in which he

raises the following issues:

       I.     Was the evidence insufficient to sustain the conviction for
              Possession of a Controlled Substance?

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4The trial court did not order a 1925(b) statement, and the trial court did
not issue an opinion, as it had left the bench.

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J-A04040-19


      II.      Was the evidence insufficient to sustain the conviction for
               Possession with the Intent to Deliver?


      III.     Did the lower court abuse its discretion in denying Appellant’s
               motion for a new trial where the verdict was contrary to the weight
               of the evidence?

Appellant’s Brief at 5. Our standard of review when considering a challenge

to the sufficiency of the evidence is well-settled:

             A claim challenging the sufficiency of the evidence presents
             a question of law. We must determine “whether the
             evidence is sufficient to prove every element of the crime
             beyond a reasonable doubt.” We “must view evidence in
             the light most favorable to the Commonwealth as the
             verdict winner, and accept as true all evidence and all
             reasonable inferences therefrom upon which, if believed,
             the fact finder properly could have based its verdict.”

             Our Supreme Court has instructed: [T]he 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. 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.

      In addition, “[t]he Commonwealth may sustain its burden by
      means of wholly circumstantial evidence, and we must evaluate
      the entire trial record and consider all evidence received against
      the defendant.”


Commonwealth v. Orie, 88 A.3d 983, 1013-14 (Pa. Super. 2014) (citation

omitted).


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      Appellant’s first and second issues are dispositive of this appeal.    To

sustain a conviction for the crime of possession of a controlled substance, the

Commonwealth must prove that the appellant knowingly or intentionally

possessed a controlled substance without being properly registered to do so

under the Controlled Substance, Drug, Device and Cosmetic Act. The crime

of possession of a controlled substance with intent to deliver requires the

Commonwealth to prove that the appellant possessed the controlled

substance with the intent to manufacture, distribute, or deliver it. See 35 P.S.

§ 780-113(a)(16) and (30), respectively.

      Appellant argues that the evidence of possession of a controlled

substance is lacking, since the Commonwealth failed to prove that anything

was recovered from the Chevrolet. Appellant’s Brief at 10. He argues further

that the Commonwealth similarly failed to establish that the single blue pill

described in property receipt #3227070 is a controlled substance, since the

Commonwealth’s exhibits do not include a corresponding seizure analysis. We

agree.

         Officer Tritz’s testimony regarding the removal of pills and marijuana

from the Chevrolet is hearsay, and the trial court admitted only nonhearsay

testimony. N.T. at 53. There was no testimony from the backup officers to

establish that narcotics were removed from the vehicle. The Commonwealth’s

assertion that it “admitted the property receipts, seizure analyses, and

evidence control data sheets for the two oxycodone pill bottles and marijuana




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found in [Appellant’s] car, as well as the oxycodone pill found in Mr.

Bergstrom’s car” is simply not accurate. Commonwealth’s Brief at 8.

       Citing our Supreme Court’s decision in Commonwealth v. Lovette,

450 A.2d 975 (Pa. 1982), the Commonwealth further asserts that sufficiency

challenges are not assessed from a diminished record, and even if the trial

court improperly considered hearsay, this is irrelevant to Appellant’s

sufficiency challenge.   In Lovette, the Supreme Court established that “a

claim of insufficiency of the evidence will not be assessed on a diminished

record, but rather on the evidence actually presented to the finder of fact

rendering the questioned verdict.” Id. at 977 (citations omitted). See also

Commonwealth v. Gray, 867 A.2d 560, 567 (Pa. Super. 2005) (we must

consider all evidence that was actually received, without consideration as to

the admissibility of that evidence or whether the evidentiary rulings of the trial

court are correct).

       Here, the evidence presented to the trial court consisted entirely of the

nonhearsay portion of Officer Tritz’s testimony and the contents of Exhibit C-

1 offered by the Commonwealth. Without evidence that Appellant possessed

a controlled substance, whether constructively or on his person, the trial

court’s conclusion otherwise cannot be said to be supported by sufficient

evidence, even in the light most favorable to the Commonwealth. Orie, 88

A.3d at 1013-14.      We are therefore constrained to reverse Appellant’s

judgment of sentence. See Commonwealth v. Green, 536 A.2d 436, 438




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(Pa. Super. 1988) (double jeopardy clause bars retrial when a conviction is

reversed “because of insufficiency of the evidence”).5

       Judgment of sentence reversed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/14/19




____________________________________________


5 In light of this disposition, we need not address the merits of Appellant’s
remaining issues.

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