J-A15027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JONATHAN DOUGLAS CARPER                    :
                                               :
                       Appellant               :   No. 1007 MDA 2017

             Appeal from the Judgment of Sentence June 13, 2017
    In the Court of Common Pleas of Cumberland County Criminal Division at
                       No(s): CP-21-CR-0002132-2016


BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                                 FILED JULY 10, 2018

        Jonathan Douglas Carper (Appellant) appeals from the judgment of

sentence imposed after a jury convicted him of possession of a controlled

substance and possession with intent to deliver a controlled substance

(PWID).1 Upon review, we affirm.

        The trial court summarized the facts introduced at trial as follows:

        On June 17, 2016, Patrolman Sturm and Corporal Bucher
        encountered [Appellant] in a parking lot in the 100 Block of East
        Louther Street. The parking lot was adjacent to an apartment
        complex in which [Appellant] lived. They recognized [Appellant]
        as a person for whom a warrant had been issued. Upon executing
        the warrant, Corporal Bucher performed a search of [Appellant].
        He discovered what appeared to be heroin packaged in both
        bundles and loose bags. The heroin was hidden in [Appellant’s]
        shoe. Altogether, he seized thirty-three (33) bags of suspected
        heroin, some of which were stamped with the label “Versace.” He
        also seized a cellphone and $89 in cash. Testing later confirmed
____________________________________________


1   35 P.S. §§ 780-113(a)(16), (30).
J-A15027-18


     that the “Versace” bags only contained heroin, whereas the
     unbranded bags contained heroin as well as fentanyl. [Appellant]
     did not have any paraphernalia with which to ingest the heroin.

            At trial, Corporal Bucher testified as an expert in drug law
     enforcement and street-level drug activity. He opined that the
     large amount of heroin contained in bundles as well as loose bags
     possessed without a means of ingestion would indicate possession
     for the purpose of sale rather than for personal use. It is also
     significant that [Appellant] was wearing multiple layers of clothing
     despite the fact that it was nearly [s]ummer.

Trial Court Opinion, 10/19/17, at 1-2 (footnotes omitted).

     On June 13, 2017, the trial court sentenced Appellant to 9 – 23 months

of incarceration.     Appellant filed this timely appeal on June 22, 2017.

Appellant and the trial court have both complied with Pa.R.A.P. 1925.

     Appellant presents a single issue for our review:

     WAS THERE INSUFFICIENT EVIDENCE TO PROVE BEYOND A
     REASONABLE DOUBT THAT [APPELLANT] INTENDED TO DELIVER
     THE HEROIN IN HIS POSSESSION?

Appellant’s Brief at 5.

     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


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

Commonwealth v. Vargas, 108 A.3d 858, 867–68 (Pa. Super. 2014) (en

banc) (citations omitted), appeal denied, 121 A.3d 496 (Pa. 2015).

      Appellant challenges his conviction of PWID under the Controlled

Substance, Drug, Device and Cosmetic Act, which prohibits “the manufacture,

delivery, or possession with intent to manufacture or deliver, a controlled

substance by a person not registered under this act. . . ” 35 P.S. § 780-

113(a)(3).   To prove Appellant guilty of PWID, the Commonwealth had to

establish beyond a reasonable doubt that Appellant possessed a controlled

substance and did so with the intent to deliver it.      Commonwealth v.

Bricker, 882 A.2d 1008, 1015 (Pa. Super. 2005) (citation omitted).         In

determining whether there is sufficient evidence to support a PWID conviction,

all facts and circumstances surrounding the possession are relevant, and the

Commonwealth may establish the essential elements of the crime by

circumstantial evidence. Id. Factors to be considered in determining whether

the drugs were possessed with the intent to deliver include the particular

method of packaging, the form of the drug, and the behavior of the defendant.

Id.




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      Appellant argues that the evidence was insufficient to support his

conviction because he possessed only “a small amount of heroin; only one cell

phone; an insignificant amount of money; and paraphernalia to ingest the

heroin.” Appellant’s Brief at 12-13. Appellant contends that the heroin was

“packaged in a manner consistent with personal use,” and his cash sufficed as

paraphernalia based on Corporal Bucher’s testimony that heroin users snort

heroin through rolled bills. Id. at 13-19. Appellant also notes that there was

no testimony about his behavior at the time he encountered the police – in

particular, Appellant “was not observed taking part in any drug transactions”

– which would support the intent to distribute the heroin. Id.

      In contrast, the Commonwealth asserts that Appellant was in possession

of “a large quantity of heroin with no paraphernalia or means to facilitate

personal use.” Commonwealth Brief at 5. The Commonwealth also argues

that the jury acted properly in their role as fact-finder in crediting the expert

testimony of Corporal Bucher, who testified to his belief that Appellant was

selling heroin. Id. at 4.

      Our review confirms the trial court’s recitation of the facts.         The

Commonwealth presented testimony from three witnesses, while Appellant

elected not to testify or present any defense witnesses.

      Carlisle Borough Patrolman Michael Sturm testified to encountering

Appellant on June 17, 2016, around 8:30 p.m., “standing next to a vehicle

and another gentleman” in a parking lot. N.T., 3/7/17, at 19-20. As detailed


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below from the testimony of his fellow officer, Patrolman Sturm aided in the

recovery of 33 bags of heroin from Appellant. Id. at 59.

      Carlisle Borough Corporal Joshua Bucher was qualified to testify as an

expert in the field of drug law enforcement in Pennsylvania, specifically

Cumberland County and “street-level drug activity in the Borough of Carlisle.”

Id. at 26, 33. Corporal Bucher, like Patrolman Sturm, encountered Appellant

on the evening of June 17, 2016. Corporal Bucher conducted a lawful search

of Appellant, from which he recovered a cell phone and $89 in cash in

Appellant’s pants, and four partial bundles of heroin (a total of 33 bags) in

Appellant’s left shoe. Id. at 35-36, 46. Corporal Bucher analogized a bundle

of heroin, which contains individual bags of heroin, to a carton of cigarettes;

he compared a bag of heroin to a pack of cigarettes. Id. at 36-37. Corporal

Bucher also testified that Appellant was wearing two pairs of shorts. Id. at

37. Significantly – and contrary to Appellant’s argument – Corporal Bucher

opined that Appellant was not in possession of drug paraphernalia. Id. at 38.

He based his conclusion on his view that “on occasion” heroin users will “have

a small straw or even just roll up a bill and use that to snort it,” but “a majority

of the time it’s through a needle.” Id. In this case, Corporal Bucher did not

notice any drug residue on the cash recovered from Appellant, stating, “The

money was all together. None of it looked rolled up when you took it out or

anything like that to indicate that it had been previously rolled to be used to




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snort.” Id. Corporal Bucher stated, “In my opinion, [Appellant] possessed

[the heroin] with the intent to deliver.” Id. at 47. He elaborated:

             Like I said before, there are several factors we look at. The
       quantity. The fact that there were 33 bags comprised of four
       bundles, indicating to me that a bag is being pulled out and sold.
       The two individual baggies, again, they were – you know, he’s
       pulling bags off and selling them.

              A big one, also, is the lack of a means of ingestion. I think
       I said earlier, 90 percent of the heroin users will have a needle on
       them or another way to ingest it by snorting, either a straw or a
       rolled-up dollar bill. Again, like I said, none of these bills appeared
       to have been rolled to be used to snort. There was no way for
       him to actually ingest the heroin on his person.

                                           ...

             The fact that it was in his shoe and the fact that he’s
       standing right next to his residence, if it was going to be used for
       personal use, in my opinion, that would have been kept in his
       residence rather than in his shoe. In my opinion, the reason it
       was in his shoe is because he was selling bags of heroin to people
       as they walked up to him standing outside of his house.

N.T., 3/7/17, at 48.

       Finally, Rhonda Hirschl testified to being employed as a forensic chemist

by the Cumberland County District Attorney’s Office and was qualified as an

expert in forensic and analytical chemistry. Id. at 63. She analyzed the five

bags recovered from Appellant and marked “Versace,” as well as 18 of the 28

unmarked bags recovered from Appellant.2          The 18 unmarked bags tested

____________________________________________


2Ms. Hirschl explained that “we have a computer program that statistically
analyzes how many we would have to analyze to get 95 percent confidence in
our results. Because there were 28, the computer program shows that we



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J-A15027-18


positive for heroin and fentanyl; the five bags tested positive for heroin only.

Id. at 68-69.

       On this record, the jury convicted Appellant of PWID.       Viewing this

evidence in the light most common to the Commonwealth as verdict-winner,

and recognizing that the Commonwealth may sustain its burden of proving

PWID by “wholly circumstantial evidence,” Bricker, supra, we find no merit

to Appellant’s argument that there was insufficient evidence that he possessed

the heroin with the intent to deliver it. Accordingly, we affirm the judgment

of sentence.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/10/2018




____________________________________________


would have to fully test 18 of those, so I tested 18 of the 28 and then five of
the five. That’s just time and money saved when you statistically analyze it
rather than do all 28.” N.T., 3/7/17, at 67-68.

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