J-S55007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 EDWARD GOSA,                           :
                                        :
                   Appellant            :   No. 267 EDA 2018

         Appeal from the Judgment of Sentence December 5, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0001499-2017


BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                        FILED OCTOBER 22, 2018

     Appellant, Edward Gosa, appeals from the judgment of sentence entered

on December 5, 2017. We affirm.

     The trial court ably summarized the underlying facts of this case:

       In February [] 2017, Detective Michael Honicker of the
       Delaware County District Attorney’s Investigation Division
       (CID) began investigation of Appellant and his residence
       located at 923 Lamokin Street, Chester, Delaware County,
       Pennsylvania for the distribution of cocaine. During the
       investigation[,] Detective Honicker conducted surveillance
       outside the residence and saw [Appellant] at the residence.
       In addition to the surveillance of the residence, Detective
       Honicker and a confidential informant conducted a controlled
       buy at Appellant’s residence.      During the surveillance,
       Detective Honicker had observed Appellant enter and exit the
       residence. Additionally during the surveillance, Detective
       Honicker became aware that Appellant was also known as
       “Bahir.”

       Based upon the surveillance of the residence, Detective
       Honicker applied for a search warrant of Appellant’s
       residence. On February 23, 2017, Detective Honicker
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       executed the search warrant. . . . The search warrant was
       executed with several members of CID; however, no one was
       located at the residence at the time. During the execution of
       the search warrant, in the front upstairs bedroom, the officers
       discovered mail, a Hawaiian Punch box with a security
       envelope inside on a dresser containing seven [] bags of
       cocaine, new and unused packaging material and a straw with
       a scoop. Detective Honicker testified that he immediately
       recognized that it was cocaine in the seven [] bags. The
       police also discovered a small bag of marijuana in this
       bedroom.      There was no other contraband found in
       Appellant’s residence.

       Appellant and the Commonwealth entered into a stipulation
       which was read into the record during the bench trial. The
       stipulation . . . stated that all the bags recovered from the
       residence were appropriately maintained in custody and
       control, that the seven bags contained cocaine containing a
       total of 1.79 grams and that the other bag contained 2.74
       grams of marijuana.

       Detective Honicker testified that the mail that was found was
       addressed to Appellant.        The police discovered mail
       addressed to “Bahir” with an address on Henry Avenue in
       Philadelphia, [Pennsylvania]. There was also mail addressed
       to “Bahir” with the 923 Lamokin Street address. Detective
       Honicker was not aware that Appellant had a son and did not
       know that the son was known as Bahir. Detective Honicker
       testified that he knew Appellant’s street name was “Bahir.”
       This mail was found throughout the residence not just in one
       room or in the bedroom with the cocaine and paraphernalia
       that had been discovered. During the execution of the search
       warrant[,] Appellant’s resume was found in the dining room.
       A review of the resume shows that Appellant listed his
       address as 923 Lamokin Street, Chester, Delaware County,
       Pennsylvania.

       While searching the dining room, the police observed a .22
       caliber rifle in open or plain view by the window. This rifle
       was submitted to ballistics and it was determined the rifle
       was operable.

       Detective Honicker was qualified as an expert in the area of
       narcotics investigations, manufacturing, sales distribution,

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        packaging[,] and deliver[y]. . . . Detective Honicker testified
        that in his [33] years as a narcotics agent[,] he had seen the
        bags that were found in Appellant’s residence before and in
        his experience they were [$20.00] bags. The smaller bags,
        with an apple on them are normally used for packaging
        cocaine. The seven filled or used bags with the apples are
        the same as the unused bags that were discovered.
        Detective Honicker testified that the apple bags were
        normally used for packing cocaine.

        [Detective Honicker testified that, in his] experience[,]
        persons who use cocaine would not buy their cocaine in all of
        the small bags that Appellant had in his possession as it is
        not economical. Detective Honicker explained that it was
        cheaper and easier to buy the almost [two grams] of cocaine
        [that Appellant had] in bulk or in a larger bag. Detective
        Honicker further [testified] that[,] while it is unusual to not
        buy in bulk[,] it is not unheard of. However, Detective
        Honicker was clear that a user of cocaine would definitely not
        have the new and unused [apple] bags . . . unless that person
        was selling [contraband].

        Detective Honicker testified that the straw with a scoop . . .
        is a scoop that could be used to fill the small cocaine bags.
        Detective Honicker testified that the scoop spoon was used
        in lieu of a scale and was not used for snorting cocaine.

        Based on his experience, training[,] and the evidence
        collected in this case, Detective Honicker rendered an opinion
        that the cocaine seized from Appellant’s bedroom was not
        possessed for his personal use but rather [was] possessed
        with the intent to distribute. Detective Honicker testified that
        the cocaine could have been used for personal use; however,
        the straw and the new and unused bags led him to the
        conclusion that Appellant was selling the cocaine. . . .

Trial Court Opinion, 2/27/18, at 3-6 (internal citations and some internal

capitalization omitted).

      At the conclusion of the bench trial, the trial court found Appellant guilty

of possession of a controlled substance with the intent to deliver (“PWID”) and



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persons not to possess a firearm.1             On December 5, 2017, the trial court

sentenced Appellant to serve an aggregate term of 16 to 32 months in prison

for his convictions.

        Appellant filed a timely notice of appeal and now raises one claim to this

Court:

          Whether the evidence of record in this case was sufficient to
          prove [Appellant] guilty of [PWID] where the Commonwealth
          failed to establish beyond a reasonable doubt that the seven
          packets found in his bedroom were for sale as opposed to his
          own personal use[?]

Appellant’s Brief at 7 (some internal capitalization omitted).

        We review Appellant’s sufficiency of the evidence claim under the

following standard:

          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 [that of] 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. 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
____________________________________________


1   35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 6105(a)(1), respectively.

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         and the weight of the evidence produced, is free to believe
         all, part or none of the evidence.

Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en

banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806 (Pa.

Super. 2008).

      Appellant claims that the evidence was insufficient to support his PWID

conviction because the amount of cocaine recovered was consistent with

personal use. Appellant’s Brief at 11. This claim fails.

      To establish the offense of possession with intent to deliver a controlled

substance, the Commonwealth must prove beyond a reasonable doubt that

the defendant both possessed a controlled substance and had the intent to

deliver it.   Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa. Super.

2003).   In determining whether the defendant had the intent to deliver a

controlled substance, courts may consider several relevant factors, including

“the manner in which the controlled substance was packaged, the behavior of

the defendant, the presence of drug paraphernalia, and large sums of cash.”

Commonwealth v. Ratsamy, 934 A.2d 1233, 1237-1238 (Pa. 2007).

Expert opinion testimony may also be admitted to establish “whether the facts

surrounding the possession of controlled substances are consistent with [the]

intent to deliver rather than with [the] intent to possess [them] for personal

use.” Id. “The expert testimony of a witness qualified in the field of drug

distribution, coupled with the presence of drug paraphernalia, is sufficient to




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establish intent to deliver.” Commonwealth v. Carpenter, 955 A.2d 411,

414 (Pa. Super. 2008).

      In the case at bar, while it is true that the total amount of cocaine was

consistent with personal use, several other factors demonstrated that

Appellant possessed the cocaine with the intent to distribute. This evidence

includes, first, Detective Honicker’s testimony that, during his investigation,

he “did controlled buys of cocaine” from Appellant’s residence.       N.T. Trial,

10/11/17, at 28. Further, when the police executed the search warrant on

Appellant’s residence, the police recovered a box that contained: cocaine that

was divided into seven separate baggies; “new and unused bags for packaging

cocaine;” and, a straw converted into a scoop. Id. at 31-35. With respect to

this evidence, Detective Honicker testified that: the seven baggies of cocaine

were equally divided into “$20 bags;” normally, “if [a person is] going to buy

cocaine for personal use, [that person is] not going to buy it in” seven separate

bags because “[y]ou can get all this in one bag for less money than it would

cost you for each of these bags;” the unused baggies had an “apple on the

front” and “apple bags” are normally used for packaging cocaine; “you are not

going to have new unused bags if you are a user;” the presence of the scoop

indicted that Appellant did not have a scale and was using the scoop to

“approximat[e] how much to fill a bag” with cocaine; and, the police did not

recover any paraphernalia that Appellant could have used to ingest the

cocaine. Id. at 53-58. Finally, Detective Honicker testified that, in his expert


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opinion after viewing the evidence in its totality, Appellant possessed the

cocaine with the intent to deliver. Id. at 75-76.

      Viewed in the light most favorable to the Commonwealth, the above

evidence is sufficient to support the trial court’s factual finding that Appellant

possessed the cocaine with the intent to deliver. See Ratsamy, 934 A.2d at

1237-1238. Therefore, Appellant’s sufficiency of the evidence claim fails.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/18




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