J-S46038-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    Appellee              :
                                          :
                    v.                    :
                                          :
ANGEL ORTIZ,                              :
                                          :
                     Appellant            :     No. 2208 EDA 2014

              Appeal from the Judgment of Sentence May 5, 2011
             in the Court of Common Pleas of Philadelphia County
             Criminal Division, at No(s): CP-51-CR-0013131-2009

BEFORE:      BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED JULY 25, 2016

      Angel Ortiz (Appellant) appeals nunc pro tunc from the judgment of

sentence imposed following his conviction for          purchasing/receiving a

controlled    substance   from    an    unauthorized     person,    35   P.S.

§ 780-113(a)(19). Upon review, we affirm.

      On May 5, 2011, following a waiver trial, Appellant was convicted of

the aforementioned offense. Notably for purposes of this appeal, Appellant

was found not guilty of possession of a controlled substance, 35 P.S.

§ 780-113(a)(16).    The matter immediately proceeded to sentencing, and

the trial court sentenced Appellant to a three-year term of probation.

      Appellant filed a notice of appeal on June 6, 2011, but on August 1,

2011, this Court dismissed the appeal for Appellant’s failure to file a

docketing statement pursuant to Pa.R.A.P. 3517.        Appellant subsequently



*Retired Senior Judge assigned to the Superior Court.
J-S46038-16


sought and received reinstatement of his appellate rights nunc pro tunc.

This appeal followed.

      Appellant presents the following issue for our consideration:      “Is the

evidence insufficient as a matter of law to convict Appellant of any aspect of

[purchasing/receiving a controlled substance from an unauthorized person]

when the trial court determined that Appellant was not in possession of a

controlled substance?” Appellant’s Brief at 4.

      Our standard when reviewing the sufficiency of the evidence is
      whether the evidence at trial, and all reasonable inferences
      derived therefrom, when viewed in the light most favorable to
      the Commonwealth as verdict-winner, are sufficient to establish
      all elements of the offense beyond a reasonable doubt. We may
      not weigh the evidence or substitute our judgment for that of the
      fact-finder. Additionally, the evidence at trial need not preclude
      every possibility of innocence, and the fact-finder is free to
      resolve any doubts regarding a defendant’s guilt 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. When evaluating the credibility and weight of the
      evidence, the fact-finder is free to believe all, part or none of the
      evidence. For purposes of our review under these principles, we
      must review the entire record and consider all of the evidence
      introduced.

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)

(citation omitted).

      Section 780-113(a)(19) of The Controlled Substance, Drug, Device

and Cosmetic Act provides:

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

                                         ***



                                      -2-
J-S46038-16



               (19) The intentional purchase or knowing receipt in
               commerce by any person of any controlled
               substance, other drug or device from any person not
               authorized by law to sell, distribute, dispense or
               otherwise deal in such controlled substance, other
               drug or device.

35 P.S. § 780-113(a)(19).

      At trial, the Commonwealth presented the testimony of Police Officers

Mark Wolf and Mark Bates. Officer Wolf testified that on April 14, 2008, he

was working in the area of the 100 block of Wishart Street in Philadelphia

investigating the illegal sales of narcotics.   N.T., 5/5/2011, at 9-10.   He

observed Jonathan Nunez (Nunez) yelling, “Wet, wet, wet,” which is a street

term for PCP. Id. at 10-11. Officer Wolf then observed an unidentified male

approach Nunez.     Id. at 11.     The unidentified male had a very brief

conversation and handed money to Nunez. Id. At that point, Nunez walked

over to a valve that was embedded into the sidewalk, reached into the valve,

pulled out a clear plastic baggie, took out an object or objects, and handed

them to the unidentified male, who then left the area. Id.

      Officer Wolf further testified that several minutes later, Appellant

approached Nunez.     Id. at 11-12.    Appellant and Nunez also had a brief

conversation, and Officer Wolf observed Appellant hand Nunez money. Id.

at 12.   Nunez again went to the valve, retrieved the clear plastic baggie,

took out an object or objects, and handed them to Appellant. Id. Officer

Wolf called back-up officers, who stopped Appellant “seconds” later. Id.



                                      -3-
J-S46038-16


        Officer Bates testified that he was working back-up to Officer Wolf on

the day in question and that he and his sergeant, Sergeant Dutch, were in

uniform on bikes. Id. at 22. As a result of information they received, they

went to the area of A and Wishart Streets, where Appellant was arrested by

Sergeant Dutch in Officer Bates’s presence. Id. Recovered from Appellant’s

hand “was one clear jar with a red lid, containing a dark vegetable matter,

alleged PCP.”1     Id. at 22, 24. Officer Bates testified that he also stopped

Nunez, and Nunez directed him to the vent in the ground where Officer

Bates “recovered a clear baggie with 14 additional glass jars. … [containing]

alleged PCP.”     Id. at 23. Officer Bates also recovered fifteen dollars from

Nunez. Id.

        This   evidence,   viewed   in    the    light   most   favorable   to   the

Commonwealth, is sufficient to establish that Appellant purchased/received a

controlled substance from an unauthorized person.               In arguing to the

contrary, Appellant suggests that the evidence is insufficient as a matter of

law because possession of the controlled substance is an element of the

crime for which he was convicted, and the trial court acquitted Appellant of

possession of a controlled substance, thereby determining that he was not in

possession of a controlled substance.           Appellant’s Brief at 8, 10-11. We

disagree.


1
    The parties do not dispute that the controlled substance at issue is PCP.



                                         -4-
J-S46038-16


      A plain reading of the statutory language defining purchase/receipt of

a controlled substance from an unauthorized person reveals that possession

is not an element of the crime, and Appellant cites no authority in support of

his contention to the contrary. Thus, we agree with the Commonwealth that

“possession of the drugs is not an element of the crime for which he was

convicted,   and   was    not   required   to   prove    [Appellant’s]   guilt.”

Commonwealth’s Brief at 6.

      Moreover, even if possession of the controlled substance were required

to convict Appellant, he would still not be entitled to relief.      First, the

evidence as discussed above is sufficient to establish that Appellant

possessed the PCP at issue.     Second, with respect to his acquittal on the

possession charge, we observe that “[i]t is well-settled that inconsistent

verdicts are permissible in Pennsylvania” and that “this Court will not disturb

guilty verdicts on the basis of apparent inconsistencies as long as there is

sufficient evidence to support the verdict.”2 Moreover, “[a]n acquittal cannot


2
  Appellant relies upon Commonwealth v. Magliocco, 883 A.2d 479 (Pa.
2005), to argue that the general rule permitting inconsistent verdicts is
inapplicable in the present context.      Appellant’s Brief at 9-11.       In
Magliocco, our Supreme Court held that Magliocco’s conviction for ethnic
intimidation could not stand because he was acquitted of terroristic threats,
which was a predicate offense to ethnic intimidation at the time of his
conviction. Id. at 493. We note that our Supreme Court has “reject[ed]
any notion that Magliocco[] … represent[ed an] exception[] to the long-
standing principles that juries may issue inconsistent verdicts and that
reviewing courts may not draw factual inferences in relation to the evidence
from a jury’s decision to acquit a defendant of a certain offense.”
Commonwealth v. Moore, 103 A.3d 1240, 1249 (Pa. 2014). The Moore


                                     -5-
J-S46038-16


be interpreted as a specific finding in relation to some of the evidence.”

Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super. 2015) (internal

quotation marks and citation omitted). As we have already concluded that,

even assuming arguendo that possession was a required element, there is

sufficient evidence to support Appellant’s conviction, Appellant’s acquittal on

the possession offense is of no moment.3

      Appellant has failed to establish that he is entitled to relief.

Accordingly, we affirm his judgment of sentence.

      Judgment of sentence affirmed.



Court emphasized that Magliocco’s holding “was grounded in the
delineation of the elements of ethnic intimidation set forth in the text of that
statute” and that “[i]t was the fact of the jury’s acquittal—not any factual
inference drawn from the acquittal—and the statutory elements that drove
[its] discussion.” Id. at 1248 (internal quotation marks omitted). As the
general rules pertaining to inconsistent verdicts apply herein, and possession
of a controlled substance is not a predicate offense to purchase
purchase/receipt of a controlled substance from an unauthorized person,
Magliocco affords Appellant no relief.
3
  Finally, with respect to Appellant’s acquittal, we observe that the rationale
for the rule permitting inconsistent verdicts “rests in the jury’s sole
prerogative to decide that conviction on some counts will provide sufficient
punishment to acquit on the remaining counts. [A]llowing inconsistent
verdicts in criminal trials runs the risk that an occasional conviction may
have been the result of compromise. But the advantage of leaving the jury
free to exercise its historic power of lenity has been correctly thought to
outweigh that danger.” Commonwealth v. Glendening, 396 A.2d 793,
795 (Pa. Super. 1979). As this matter involved a waiver trial, we also note
that “[p]ursuant to Pa.R.Crim.P. [620], judges have the same powers as
juries when a jury trial is waived. Accordingly, a judge, in a non-jury trial,
has the power to render inconsistent verdicts.” Commownealth v. Cook,
865 A.2d 869, 877 (Pa. Super. 2004).



                                     -6-
J-S46038-16




Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 7/25/2016




                          -7-
