J-S10010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ORLANDO MELENDEZ                           :
                                               :
                       Appellant               :   No. 2211 EDA 2018

        Appeal from the Judgment of Sentence Entered October 19, 2015
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0015173-2013


BEFORE:      GANTMAN, P.J.E., STABILE, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                               FILED MARCH 05, 2019

        Appellant, Orlando Melendez, appeals from the judgment of sentence of

21-42 months confinement followed by three years of probation, imposed

after his conviction at a bench trial, for delivery or possession with intent to

deliver a controlled substance and possession of a controlled substance.1 After

careful review, we affirm.

        Appellant was arrested on September 6, 2013 and was charged with

delivery or possession with intent to deliver a controlled substance and

possession of a controlled substance. Trial Court Docket at 1, 3. At trial, the

Commonwealth introduced the testimony of two police officers from the

Philadelphia Police Department’s Narcotics Strike Force, Officer Duane Watson

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


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* Retired Senior Judge assigned to the Superior Court.
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and Officer Christopher Purnell, and stipulations agreed to by Appellant’s

counsel that showed the following facts.

     On the afternoon of September 6, 2013, Officer Watson was conducting

surveillance in an unmarked vehicle on the 800 block of East Thayer Street in

Philadelphia and saw a woman approach Appellant, engage in a brief

conversation with Appellant and give Appellant money in exchange for small

packets that Appellant removed from his pocket. N.T. at 9-10. Officer Watson

gave a description of the woman to back-up officers and an officer stopped

her within five minutes and found on her two clear packets, each of which

contained an off-white powder in a blue glassine insert stamped “Undertaker.”

Id. at 10, 12-13, 19-21.    A short time later, Officer Watson saw a man

approach Appellant and engage in a brief conversation with Appellant and saw

Appellant retrieve packets from his pocket and give them to the man in

exchange for money. Id. at 10-11. Officer Watson gave a description of the

man to back-up officers and an officer stopped him within five minutes and

found on him five clear packets, each of which contained an off-white powder

in a blue glassine insert stamped “Undertaker.” Id. at 11, 13, 19-21. The

powder in these seven packets that the police retrieved was chemically tested

and found positive for heroin. Id. at 19-21.

     Following these two transactions, Officer Watson saw another man

approach Appellant and walk with him and heard the man say to Appellant

“how many do you need?” N.T. at 11, 17-18. Officer Watson saw Appellant


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enter an alley for approximately 35 seconds and, after Appellant came out of

the alley, saw Appellant give money to the man. Id. at 12, 18-19. Officer

Purnell arrested Appellant, but the man who had been with Appellant fled and

the police were unable to apprehend him. Id. at 12, 22. Officer Purnell found

$13 in Appellant’s pocket and a clear packet with a blue glassine insert

stamped “Undertaker” in Appellant’s sock. Id. at 22-23. The contents of the

blue glassine insert in the clear packet found in Appellant’s sock tested positive

for heroin. Id. at 16-17, 22, 24.

       The trial court found Appellant guilty of both charges. On October 19,

2015, following a presentence investigation evaluation, the trial court

sentenced Appellant to 21-42 months confinement followed by three years of

probation for the delivery or possession with intent to deliver a controlled

substance conviction and imposed no further penalty for the possession

conviction. Appellant filed no appeal from that judgment, but filed a petition

pursuant to the Post Conviction Relief Act (“PCRA”)2 on June 7, 2016. On June

26, 2018, the trial court granted that PCRA petition insofar as it sought to

reinstate Appellant’s right to file a direct appeal. On July 16, 2018, Appellant

timely filed this direct appeal.

       Appellant presents only one issue for our review:

       Was the evidence sufficient as a matter of law to convict Orlando
       Melendez of Possession With Intent to Manufacture or Deliver,


____________________________________________


2   42 Pa.C.S. §§ 9541–9546.

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      under the Controlled Substance, Drug, Device, and Cosmetic Act,
      35 P.S. § 780-113?

Appellant’s Br. at 2.

      Our standard of review on this issue is well-settled:

      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.

Commonwealth v. Brockman, 167 A.3d 29, 38 (Pa. Super. 2017) (quoting

Commonwealth v. Antidormi, 84 A.3d 736 (Pa. Super. 2014)).

      Viewed in the light most favorable to the Commonwealth as verdict

winner, the evidence at trial was clearly sufficient for the trial court to find the

essential elements of delivery or possession with intent to deliver a controlled

substance beyond a reasonable doubt. Proof that the defendant physically

transferred or conveyed a controlled substance to another person is sufficient

to sustain a conviction for delivery or possession with intent to deliver a

controlled substance. Commonwealth v. Murphy, 844 A.2d 1228, 1233-34

(Pa. 2004); Commonwealth v. Morrow, 650 A.2d 907, 912 (Pa. Super.

1994); Commonwealth v. Metzger, 372 A.2d 20, 22 (Pa. Super. 1977); see


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also 35 P.S. § 780-102(b). The Commonwealth may also satisfy its burden of

proof by showing that the defendant had both possession of a controlled

substance and an intent to deliver the controlled substance. Brockman, 167

A.3d at 38; Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa. Super. 2008).

      The evidence at trial showed both delivery of the controlled substance

heroin and possession of heroin with an intent to deliver. A police officer saw

Appellant give a number of packets that he had on his person to two buyers

in exchange for money, the police retrieved the packets from the buyers, and

the packets tested positive for heroin, and the buyers’ heroin packets had the

same labeling and packaging as the heroin packet found on Appellant. Such

evidence of actual transfer of heroin is sufficient to prove that Appellant

delivered a controlled substance and is therefore guilty of delivery or

possession with intent to deliver a controlled substance.     In addition, this

evidence is sufficient to prove possession and intent to deliver, as it showed

that Appellant had heroin in his possession when he made the sales and that

he intended to deliver it, as he in fact did transfer that heroin to the buyers.

See Lee, 956 A.2d at 1026, 1028 (evidence was sufficient where police

observed two transactions during which individuals approached defendant and

engaged in conversation, defendant accepted money from the individuals and

handed small objects to the individuals, a packet containing a small quantity

of crack cocaine was retrieved from the first buyer, and that packet was

packaged the same way as packets found at a location used by defendant in


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the sales); Commonwealth v. Wright, 846 A.2d 730, 737-38 (Pa. Super.

2004) (challenge to the sufficiency of the evidence to show intent to deliver

was frivolous where police observed defendant pulling items from his pocket

and exchanging them for money and a bag that defendant threw from his

pocket contained small baggies of crack cocaine).

      Appellant argues that the Commonwealth did not meet its burden of

proof because only one heroin packet and $13 were found on him and the

heroin packet was in a different location than the packets that he gave to the

buyers. We do not agree. Evidence that Appellant had substantial quantities

of drugs or money from which an intent to sell could be inferred was

unnecessary in this case because there was other evidence that he actually

delivered heroin that was in his possession to buyers. Moreover, the small

amount of money on Appellant at the time of his arrest did not negate the

Commonwealth’s proof that he sold heroin to the two individuals in the

transactions that the police officer observed, as there was also evidence that

he gave money to a third person, who was not apprehended by the police,

following the second heroin sale and before his arrest.

      Because the sole issue raised by Appellant is without merit, we affirm.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/19




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