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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                     v.                   :
                                          :
GEORGE NATHANIEL GREEN,                   :         No. 441 MDA 2014
                                          :
                          Appellant       :


             Appeal from the Judgment of Sentence, April 12, 2013,
               in the Court of Common Pleas of Dauphin County
               Criminal Division at No. CP-22-CR-0003983-2012


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED JANUARY 23, 2015

        Appellant, George Nathaniel Green, appeals his judgment of sentence

entered April 12, 2013, in the Court of Common Pleas of Dauphin County.

Following a jury trial, appellant was convicted of one count of unlawful

delivery of a controlled substance and one count of unlawful possession of

drug paraphernalia.1 Appellant challenges the sufficiency of the evidence on

the above convictions. We affirm.

        The factual history has been summarized by the trial court as follows:

                    At trial, the Commonwealth presented the
             testimony       of    Detective     Donald    Heffner
             (“Det. Heffner”)     and    Officer   Kelly   English
             (“Officer English”) of the Harrisburg Bureau of Police
             (“HB”). The following facts were established: on

* Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30) and § 780-113(a)(32), respectively.
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          July 27, 2012, Det. Heffner was on duty in plain
          clothes and driving an unmarked police vehicle;
          more specifically a black Ford Escape. (Notes of
          Testimony, Trial, Apr. 10, 2013 -- Apr. 12, 2013 at
          37-41).[Footnote 4] At approximately 10:30 a.m.,
          Det. Heffner had been travelling south on
          Sixth Street in Harrisburg City when he saw an
          individual   later    identified     as    Defendant,
          George Green (“Appellant” or “Green”), walking with
          two other males in the area of [sic] H&J’s bar located
          at Sixth and Schuykill Streets. (N.T. at 43-46).
          Based on his professional experience, Det. Heffner
          described the neighborhood as an area known for
          high crime and high drug activity. (N.T. at 47).

               [Footnote 4] Hereinafter “N.T.”

                After seeing Appellant, Det. Heffner turned left
          onto Schuykill Street and left onto Turner Alley and
          proceeded through a vacant lot near where Appellant
          was walking towards a nearby store. (N.T. at 47).
          Det. Heffner stated that, without his prompting,
          Appellant motioned to him to back up into the lot,
          which he did. (N.T. at 47; 107-108). After he
          parked the vehicle, Appellant approached the
          vehicle, greeted the Detective who said “you got any
          good?” to which Appellant responded “yes.” (N.T. at
          49). Det. Heffner explained that “good” is street
          slang for crack cocaine. (Id.) At that point in time,
          Appellant entered the vehicle, sat in the front
          passenger seat and began a conversation about
          buying the illegal drugs. (N.T. 49-50). Det. Heffner
          told him that he had $30 to buy the drugs.
          Appellant then to [sic] opened the zipper on his
          pants and pulled out a plastic bag containing several
          smaller black baggies, moved the larger bag to his
          feet and came up with three small bags of cocaine.
          (N.T. at 49-52; 89; 100-101). Det. Heffner handed
          the $30 to Appellant which consisted of a $20 bill
          and a $10 bill. He had previously recorded the serial
          numbers in a notebook he routinely keeps when
          working undercover. (N.T. at 52-55).




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                 Det. Heffner was able to easily observe
          Appellant during the transaction as the vehicle is not
          large and, due to the bucket seats in the front,
          Green was sitting within 1½ feet from his seat.
          (N.T. at 50-51). Heffner described Appellant as a
          light skinned black male in his 20s, wearing a white
          T-shirt, blue jeans, a blue baseball cap with red on
          it, and facial hair. (N.T. at 52). He also noted that
          appellant was smoking a long cigar with a yellow tip
          and a very pungent odor.           (N.T. at 52-53).
          Detective Heffner was close enough to Appellant to
          observe a tattoo on his left forearm which he
          described as a “1,” a “C” and an “O or 0,” each with
          a space in between them. (N.T. at 51). He also saw
          a tattoo on his left neck that he described as writing
          down the side, but he could not see what the writing
          said. (N.T. at 51-52). Detective Heffner was able to
          positively identify the tattoos described when
          presented with photographic evidence of them during
          trial. (N.T. at 62-64).

                When     the   transaction   was    completed,
          Appellant exited the car and Det. Heffner observed
          him in his rearview mirror heading south on
          Turner Alley. (N.T. at 53; 74). Det. Heffner then
          drove to Sixth and Curtain to perform a field test on
          the substance he had purchased and it tested
          presumptively positive for cocaine. (N.T. at 57-58).
          Subsequent laboratory testing by the Pennsylvania
          State Police (“PSP”) confirmed that the purchase
          made by Det. Heffner was, indeed, crack cocaine.
          (N.T. at 70-72).

                 Since Detective Heffner was on patrol alone,
          he     followed    proper   protocol  by   radioing
          Corporal Gautsch (“Cpl. Gautsch”), who he had seen
          while driving in the area of the crime scene. The
          purpose of the contact was to assemble a team to
          conduct a search and possibly make an arrest. (N.T.
          at 57-58; 60-61). Over the radio and during a
          cellphone conversation, he provided Cpl. Gautsch
          with a physical description of the suspected dealer
          and information on the tattoos. Heffner relayed his
          belief that Appellant was headed back towards Sixth


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          and Schuykill Streets.     (N.T. at 58-60; 75-81).
          Cpl. Gautsch, Det. Heffner and two uniformed
          officers, Officer English and Officer Minnier,
          proceeded to the location of Sixth and Schuykill in
          the area of H&J’s bar. Upon arrival Officer English
          radioed that he had seen an individual matching the
          suspect’s description standing outside H&J’s. (N.T.
          at 75; 81-82).

                Upon entering H&J’s bar, Det. Heffner spotted
          Appellant smoking a cigar and playing pool with a tall
          male dressed in all black. (N.T. at 86-87). The
          other individual saw police and went into the
          bathroom.      (Id.)    Det. Heffner immediately
          recognized Appellant as the individual who had sold
          him the packages of crack cocaine. He recognized
          the clothing, the hat, the cigar with the yellow tip
          and its odor, and he identified the tattoos on
          Appellant’s neck and arm.         (N.T. at 87-88).
          Appellant was immediately arrested, taken into
          custody and searched incident to arrest. (N.T. at 88-
          89).

                Approximately 10 minutes elapsed from the
          time when Det. Heffner conducted the transaction
          with Appellant in the car and the time of the arrest.
          During the intervening timeframe, Appellant was out
          of the police’s visual contact. (N.T. at 84-85). The
          search incident to arrest resulted in the recovery of
          $24, none of which was the “buy” money used by
          Det. Heffner, and a cellphone.         (N.T. 89; 92).
          Additionally, a police search of the bar and bathroom
          as well as his cellphone failed to uncover any other
          evidence, including the “buy” money or more drugs.
          (N.T. at 92-93; 123-124).

                Officer English stated that on the date of the
          incident he had been summoned by Cpl. Gautsch to
          respond to the area of Sixth and Schuykill Streets to
          investigate a drug transaction. (N.T. at 133). He
          was provided a physical description of the suspected
          drug dealer and arrived at that location in under one
          minute.     (N.T. at 134-135).       The description
          provided was that of a light-skinned black male, with


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               facial hair who was wearing a white shirt, blue jeans
               and a blue hat. (N.T. at 134). Officer English
               parked the right side of his K9 unit at the curb facing
               west on Schuykill Street with the bar on his left.
               (N.T. at 135-137). He was the first marked police
               unit on the scene and he immediately saw a person
               walking into the bar that matched the description
               Heffner had provided. (N.T. at 137-138). While he
               secured the perimeter, he did not see anybody leave
               the bar between the time of his arrival and the time
               Appellant was arrested. (N.T. at 138-139).

Trial court opinion, 6/6/14 at 3-6.

        A jury trial was held on April 10, 2013 through April 12, 2013.

Appellant was convicted of one count of unlawful delivery of a controlled

substance and one count of unlawful possession of drug paraphernalia, and

he was sentenced to an aggregate term of imprisonment of 24 months to

60 months. Neither post-sentence motions nor a notice of appeal were filed

after sentencing.       Subsequently, on November 20, 2013, appellant filed a

timely pro se petition pursuant to the Post Conviction Relief Act (“PCRA”).2

PCRA counsel was appointed on December 12, 2013.                   Upon review of

appellant’s claims, PCRA counsel concluded that appellant had been

rendered ineffective assistance of counsel as, despite appellant’s request to

do so, counsel failed to perfect an appeal of his judgment of sentence. On

January 31, 2014, PCRA counsel filed a motion to reinstate appellate rights

under    the    PCRA.      The   trial   court   issued   an   order   directing   the

Commonwealth to respond to appellant’s motion.                 The Commonwealth


2
    42 Pa.C.S.A. §§ 9541-9546.


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timely complied and informed the court it had no objection to appellant’s

direct appeal rights being reinstated nunc pro tunc. On February 25, 2014,

the trial court granted appellant’s motion and provided him 30 days to file a

notice of appeal.

      On March 10, 2014, appellant filed a timely notice of appeal.

Appellant was ordered to file a statement of errors complained of on appeal

and he timely complied.     The trial court filed its Rule 1925(a) opinion on

June 6, 2014. Appellant presents one issue for our consideration: “Whether

the evidence presented at trial was insufficient to convict Appellant of the

crime of Unlawful Delivery of a Controlled Substance and Possession of Drug

Paraphernalia[?]” (Appellant’s brief at 7.)

      In   reviewing   a   sufficiency    challenge,   we   apply   the   following

well-settled principles:

            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.


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            Moreover, in applying the above test, the entire
            record 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. Brown, 23 A.3d 559-560 (Pa.Super. 2011) (en banc),

quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805 (Pa.Super.

2008).

      Appellant argues that other than the testimony of Detective Heffner,

there was no supporting evidence.          (Appellant’s brief at 10.)     More

specifically, appellant contends upon his arrest, he did not have any drugs

on his person or the $30 that Detective Heffner testified he paid him. (Id.

at 11.) Our role, as stated previously, is to view the evidence in a light most

favorable to the verdict winner, drawing all reasonable inferences in its

favor, to determine if the finder-of-fact could reasonably have concluded

that all the elements of the crime were established beyond a reasonable

doubt.   Commonwealth v. Ferino, 640 A.2d 934, 937 (Pa.Super. 1994),

affirmed, 655 A.2d 506 (Pa. 1995).

      Here, the evidence indicated appellant was arrested approximately

ten minutes after the drug transaction.    Detective Heffner (“Heffner”) had

personal knowledge of the transaction since it was he who gave appellant

$30 for three small bags of crack cocaine.         According to Heffner, he

witnessed appellant take a bag out of the zipper area in his pants and

retrieve three smaller bags. The substance in the bags tested positive for



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crack cocaine. Additionally, Heffner was able to get a clear view of appellant

as appellant sat less than 1½ feet across from him in his vehicle. Heffner

observed two tattoos, one of which he was able to decipher the characters

“as a ‘1,’ a ‘C’, and an ‘O’ or ‘0,’ each with a space in between.” At trial,

appellant displayed his right forearm and the left side of his neck for the jury

to see the tattoos, which were consistent with the description that Heffner

gave of the tattoos he saw on the individual who sold him the crack cocaine.

      Heffner’s testimony alone, which was obviously believed by the jury,

was sufficient to support appellant’s convictions.    See Commonwealth v.

King, 959 A.2d 405, 411 (Pa.Super. 2008) (rejecting defendant’s “assertion

that the verdict was infirm because no physical evidence linked him to the

crimes” since two eyewitnesses’ identification testimony, which the jury was

permitted   to    accept,   was   sufficient   to   support   his   conviction);

Commonwealth v. Wilder, 393 A.2d 927, 928 (Pa.Super. 1978) (stating a

positive identification by one witness, a police officer, is sufficient for

conviction). Accordingly, appellant’s judgment of sentence is affirmed.

      The judgment of sentence is affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/23/2015



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