J-S73011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

JAMIE DUNCAN MCCABE,

                        Appellant                     No. 1096 MDA 2014


        Appeal from the Judgment of Sentence December 19, 2013
            In the Court of Common Pleas of Schuylkill County
           Criminal Division at No(s): CP-54-CR-0000038-2013


BEFORE: BOWES, WECHT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                        FILED DECEMBER 04, 2014

     Jamie Duncan McCabe appeals from the judgment of sentence of two

years and three months to four and one-half years incarceration imposed by

the trial court after a jury found him guilty of possession with intent to

deliver (“PWID”) heroin. We affirm.

     The trial court recounted the following facts.

            On December 12, 2012, Pottsville Bureau of Police
     executed a traffic stop of a blue Chevrolet being operated by
     Appellant, [Jamie] McCabe, since it was known that Appellant
     had a suspended operator’s license. Corporal Dennis Wiederhold
     (Wiederhold) testified that the Appellant and a passenger, Laura
     Kech (“Kech”), were questioned about where they had been.
     Appellant stated that they had been to Schuylkill Haven to visit a
     relative. Kech initially indicated they were in Schuylkill Haven,
     but upon further questioning, stated that they were coming from
     Reading. Kech, the owner of the vehicle, denied that there was
     any contraband and consented to a search of the vehicle.

          Appellant and other occupants of the vehicle, James
     Culbert, Sammy Jo Rohrbach and Kech were asked to exit the
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      vehicle. A search of the vehicle turned up a black zippered bag
      in the center console which contained numerous packets of
      suspected heroin, cocaine and methamphetamine.

            The occupants were then detained pending further
      investigation. The Appellant was searched by Wiederhold who
      found packets of heroin that fell out of Appellant’s clothing.

            In addition to the testimony of Wiederhold[,] who initiated
      the traffic stop and searched the Appellant, one of the occupants
      in the car, Kech, testified. Her testimony revealed that she
      allowed the Appellant to use her vehicle for the trip to Reading.
      Kech told the jury that Appellant exited the vehicle in the City of
      Reading to meet his “connect” and returned with the black
      zippered bag containing the drugs. Appellant then gave each of
      them some heroin and put the bag into the center console.

             The heroin, cocaine and methamphetamine were received
      and tested by the Bethlehem Regional Crime Lab forensic
      scientist Lisa Shutkufski and tested positive for the respective
      controlled substances which had been labeled and were
      identified by the Commonwealth expert witness in forensic
      chemical analysis and identification of controlled substances.
      None of the people in the vehicle were licensed or registered
      under the Act to possess or deliver controlled substances.
      James Culbert testified on behalf of the Appellant that he went to
      Reading with him to get drugs to use and he was working with
      the police to get Appellant help. Lastly, in his defense, the
      Appellant testified that he went to Reading and bought twenty-
      five (25) bags of drugs because he is an addict.

Trial Court Opinion, 8/27/14, at 2-3 (internal citations omitted).

      The jury found Appellant guilty of PWID heroin and possession of

heroin, but could not reach a verdict as to the charge of PWID cocaine, and

possession of cocaine and methamphetamine.           The court imposed the

aforementioned sentence.     Appellant filed an untimely appeal, which this

Court quashed.     Thereafter, Appellant sought post-conviction relief and

requested the reinstatement of his direct appeal rights nunc pro tunc. The

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court reinstated Appellant’s appeal rights, and this appeal followed.

Appellant’s sole issue on appeal is a challenge to the sufficiency of the

evidence.

      In conducting a sufficiency of the evidence review, we view all of the

evidence admitted, even improperly admitted evidence. Commonwealth v.

Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc). We consider such

evidence in a light most favorable to the Commonwealth as the verdict

winner, drawing all reasonable inferences from the evidence in favor of the

Commonwealth.       Id.   When evidence exists to allow the fact-finder to

determine beyond a reasonable doubt each element of the crimes charged,

the sufficiency claim will fail. Id.

      The evidence “need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”

Id.   In addition, the Commonwealth can prove its case by circumstantial

evidence.    Where “the evidence is so weak and inconclusive that, as a

matter of law, no probability of fact can be drawn from the combined

circumstances[,]” a defendant is entitled to relief.      This Court is not

permitted “to re-weigh the evidence and substitute our judgment for that of

the fact-finder.” Id.

      Appellant’s argument hinges on his view that because the jury

deadlocked on the non-heroin related charges, and he testified that he only

possessed the heroin for personal use, that there was insufficient evidence


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that he intended to deliver the heroin.     He also calls into question the

testimony of Corporal Wiederhold. Specifically, Corporal Wiederhold initially

testified that he stopped Appellant because he knew Appellant did not have

a valid driver’s license.   He did not mention the fact that he was being

supplied information by a CI, James Culbert.     However, after the defense

testimony of James Culbert, who set forth that he was the CI and provided

information to Corporal Wiederhold regarding the transportation of the

drugs, Corporal Wiederhold admitted that Culbert’s testimony was accurate

and that he received text messages from Culbert to help facilitate the stop.

      The Commonwealth rejoins that Corporal Wiederhold testified as an

expert that Appellant possessed the heroin with intent to distribute. It notes

that Corporal Wiederhold based this conclusion on the fact that Appellant did

not have drug paraphernalia on his person, the heroin was packaged for

individual sale, and that there are cheaper methods of buying the amount of

heroin in Appellant’s possession if he intended it for personal use.      The

Commonwealth adds that Laura Kech testified that Appellant provided her

with heroin and that James Culbert also indicated that Appellant would get

drugs for him.

      Since Appellant’s argument would require this Court to reject the jury’s

credibility findings, and view his own testimony as conclusive of his intent,

his argument is without merit.    See Commonwealth v. Galloway, 434

A.2d 1220, 1222 (Pa. 1981) (“it is the function of the factfinder to pass upon


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the credibility of witnesses.”).   Here, the evidence is not so weak and

inconclusive that no probability of fact that Appellant intended to deliver

heroin can be reached. The Commonwealth presented expert testimony that

Appellant intended to deliver the heroin. Laura Kech testified that Appellant

provided her with heroin.     Corporal Wiederhold set forth that Appellant

admitted to giving Ms. Kech heroin in exchange for allowing him to use her

car to travel to Reading to purchase drugs. Similarly, James Culbert stated

that Appellant would give him drugs in exchange for money.       Viewing the

evidence in a light most favorable to the Commonwealth, it is evident that

sufficient evidence existed to find that Appellant possessed the heroin with

intent to deliver.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/2014




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