J-S16005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

STEPHEN GEORGE

                            Appellant                  No. 198 WDA 2016


               Appeal from the Judgment of Sentence May 26, 2015
                In the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0003167-2014


BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY MOULTON, J.:                       FILED SEPTEMBER 05, 2017

       Stephen George appeals from the May 26, 2015 judgment of sentence

entered in the Allegheny County Court of Common Pleas following his

convictions for possession with intent to deliver (“PWID”), possession of a

controlled substance, and simple assault by physical menace.1      We vacate


____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
        35 P.S. §§ 780-113(a)(30), (a)(16), and 18 Pa.C.S. § 2701(a)(3),
respectively.

      While the sentencing order states George was convicted of simple
assault – bodily injury under 18 Pa.C.S. § 2701(a)(1), this appears to have
been a clerical error. The trial transcript establishes that the trial court
convicted George of simple assault by physical menace under 18 Pa.C.S. §
2701(a)(3). At the non-jury trial, when declaring the verdict, the trial court
stated:

(Footnote Continued Next Page)
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the judgment of sentence and remand with instructions to correct a clerical

error in the sentencing order.

      The trial court described the facts as follows:

              This matter arises . . . out of [George]’s arrest on
          January 7, 2014 following a domestic dispute. At the time
          of the arrest he was found to be in possession of 55 stamp
          bags of heroin and additional heroin was found in the
          residence where he was residing. An Affidavit of Probable
          Cause dated January 7, 2014 was sworn to by one of the
          arresting officers from the City of Pittsburgh police, Sean
          Jozwiak, detailing the facts and circumstances related to
          the investigation of the domestic dispute, including his
          contact with the victim, Lacy Hass [(“Victim”)].        The
          affidavit also described [George]’s arrest outside their
          residence at 4805 Dearborn Street where he fled after . . .
          attacking [Victim]. The affidavit also detailed [George]’s
          arrest and the search incident to the arrest that found
          [George] in possession of 55 stamp bags of heroin and two
          cell phones. [Victim] then consented to a search of the
          residence and an additional 18 stamp bags of heroin
          similar to those found on [George] were found in a coin
          purse on a mantel in the residence. A handgun was also
          found in an armoire in the residence.

            A preliminary hearing was held on February 27, 2014 at
          which Officer Jozwiak testified that he and other officers
                       _______________________
(Footnote Continued)

             Now on simple assaults, there’s one causing bodily
          injury, Count 5. The other one is simple assault by
          physical menace.

             I don’t think 5 applies, so I find you not guilty on that.

             But on Count 6, simple assault by physical menace, I do
          think that applies given the fact that there was evidence
          that the victim was so shaken up and a little roughed up at
          the time. So on Count 6 I find you guilty.

N.T., 3/23/15, at 3.



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       were dispatched to a domestic dispute at the K2
       convenience store located at the 900 block of Penn Avenue
       in Pittsburgh, Pennsylvania. Upon arriving they met
       [Victim] at the convenience store and noted that she had
       scratches and red marks around her neck and behind her
       ear. In addition, Officer Jozwiak testified that he had an
       opportunity to observe a videotape of the incident in which
       he observed [George] grabbing [Victim] around the neck
       by the shirt and trying to force her out of the store. The
       officers were informed that [George] left the scene and
       was at his residence located at 4805 Dearborn Street and
       that a child was there. Several officers responded to that
       scene and located [George] outside the residence where
       he was taken into custody. Officer Jozwiak also testified
       that they transported the victim to her home and after
       [George] was taken into custody, the child was located in
       the residence and they obtained consent from [Victim] to
       search the home. The Commonwealth also presented the
       testimony of Officer Steven Schueler at the preliminary
       hearing who testified that he arrived at the address of
       4805 Dearborn Street and encountered [George] outside
       the residence. [George] was placed under arrest and as a
       result of a search incident to the arrest was found to have
       55 stamp bags of heroin in his left front jacket pocket.

          A hearing was held on [George]’s Habeas Corpus Motion
       on January 15, 2015 at which time Officer Jozwiak again
       testified, however, his testimony was limited to describing
       the recovery of a handgun, men’s clothing and some
       indicia related to [George] from an armoire in the
       Dearborn Street residence during the search after
       [George]’s arrest. On January 22, 2015[,] an order was
       entered denying the Writ of Habeas Corpus and the case
       proceeded to a stipulated non-jury trial on March 10, 2015
       at which it was agreed that the Affidavit of Probable Cause,
       as well as the testimony from the preliminary hearing,
       would be incorporated into the record.             After an
       appropriate colloquy in which [George] acknowledged that
       he understood and agreed to the proceedings, the
       Commonwealth introduced the lab report analyzing the
       drugs in question, as well as [George]’s certified record
       which establish him as a person not to possess.

          The Commonwealth also presented the stipulated
       expert testimony of Detective Edward Fallert as follows:

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           [COMMONWEALTH]:         The only other stipulation
           would be had we proceeded to trial in this case, we
           would have called an expert: namely, Detective
           Edward Fallert from the City of Pittsburgh Police who
           would have testified that based on the facts in this
           case, along with his training and experience, he
           believed that [George] possessed the heroin on his
           person with the intent to deliver said heroin.

           [COURT]:    Anything you want to add?

           [GEORGE’S COUNSEL]: Your Honor, just a few
           things. . . . With respect to the heroin that Detective
           Fallert would have testified to that was actually
           found in the home on a mantel in a coin purse. With
           respect to the controlled substance that was found
           on . . . George, I believe that was a de minimis
           amount.

           [COURT]:    How much?

           [COMMONWEALTH]:         There were 55 stamp bags
           found on his person.

           Based on the above evidence, [George] was found
        guilty of possession and [PWID] and simple assault by
        physical menace.      [George] was found not guilty of
        possession of firearm prohibited, endangering the welfare
        of a child and simple assault.

Opinion, 8/2/16, at 2-5 (“1925(a) Op.”) (internal citations and quotation

marks omitted).

     On May 26, 2015, the trial court sentenced George to 2 to 4 years’

incarceration and a consecutive 5 years’ probation on the PWID conviction,

and a concurrent 2 years’ probation on the simple assault conviction. The

trial court imposed no further penalty on the conviction for possession of a

controlled substance by a person not to possess.




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      On July 9, 2015, George filed a pro se motion requesting appointment

of counsel and, on July 10, 2015, he filed a pro se notice of appeal.

Following appointment of counsel, George filed a petition pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46, seeking

reinstatement of his direct appeal rights and rights to pursue post-sentence

motions nunc pro tunc.    On September 10, 2015, the trial court granted

George’s PCRA petition. George timely filed his post-sentence motion, which

the trial court denied on September 28, 2015. On January 19, 2016, George

again filed a petition for PCRA relief seeking reinstatement of his direct

appeal rights due to a mistake by his counsel’s office, which the trial court

granted. On February 8, 2016, George timely filed his notice of appeal.

      George raises the following issues on appeal:

         I. Was the evidence presented insufficient as a matter of
            law to support the guilty verdict for [PWID] in that the
            Commonwealth failed to prove that [George], a known
            and admitted heroin addict, possessed the 55 stamp
            bags found on his person with an intent to deliver?

         II. Was the evidence presented insufficient as a matter of
             law to support the conviction for Simple Assault insofar
             as the only evidence presented to prove that an assault
             occurred was the testimony at the preliminary hearing
             that a police officer, who did not testify at trial,
             observed a surveillance video and scratches on the
             victim?

George’s Br. at 5.

      We apply the following standard when reviewing a sufficiency of the

evidence claim:



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         [W]hether 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. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the [finder] 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. Best, 120 A.3d 329, 341 (Pa.Super. 2015) (quoting

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014)).

      George first claims there was insufficient evidence to convict him of

PWID.   He claims that the 55 stamp bags found on his person were for

personal use and there was no proof of intent to deliver.

      To establish that a defendant is guilty of PWID:

         [t]he Commonwealth must prove both the possession of
         the controlled substance and the intent to deliver the
         controlled substance. It is well settled that all the facts
         and circumstances surrounding possession are relevant in
         making a determination of whether contraband was
         possessed with intent to deliver.

         In Pennsylvania, the intent to deliver may be inferred from
         possession of a large quantity of controlled substance. It
         follows that possession of a small amount of a controlled


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          substance supports the conclusion that there is an absence
          of intent to deliver.

          Notably, “if, when considering only the quantity of a
          controlled substance, it is not clear whether the substance
          is being used for personal consumption or distribution, it
          then becomes necessary to analyze other factors.”

Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa.Super. 2008) (quoting

Commonwealth v. Brown, 904 A.2d 925, 931-32 (Pa.Super. 2006)).

Further, “[w]hen determining whether a defendant had the requisite intent

to deliver, relevant factors for consideration are ‘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.   Carpenter,     955   A.2d   411,    414   (Pa.Super.   2008)       (quoting

Commonwealth v. Ratsamy, 934 A.2d 1233, 1237-38 (Pa. 2007)).

“Expert opinion testimony is also admissible ‘concerning whether the facts

surrounding the possession of controlled substances are consistent with an

intent to deliver rather than with an intent to possess it for personal use.’”

Id. (quoting Ratsamy, 934 A.2d at 1237-38).

      During a search incident to his arrest, George was found with 55

stamp bags of heroin.      N.T., 3/10/15, at 19-20.    30 stamp bags were

marked “madmen” and the other 25 were marked “black list?” Aff. Probable

Cause, 1/7/14, at 2. The search of George’s person also revealed two cell

phones.    N.T., 3/10/15, at 20.      Moreover, the parties stipulated that

Detective Fallert would have testified “that based on the facts in this case,

along with his training and experience, he believed that [George] possessed

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the heroin on his person with the intent to deliver.” Id. at 9. Finally, the

trial court found that “the expert testimony of Detective Fallert, combined

with the quantity of the stamp bags of heroin found [in George]’s possession

and the lack of any use paraphernalia found on [George] or in the residence,

establishes sufficient evidence that [George] possessed the heroin with the

intent to deliver.” 1925(a) Op. at 6. We agree.

      Therefore, viewing the evidence in the light most favorable to the

Commonwealth, we conclude there was sufficient evidence to convict George

of PWID.       See Commonwealth v. Johnson, 782 A.2d 1040, 1041

(Pa.Super. 2001) (finding sufficient evidence where appellant was in high

drug area; police seized nine baggies containing 1.8 grams of crack cocaine,

$86 in cash, and a beeper; and an expert testified as to appellant’s intent to

distribute).

      George next claims there was insufficient evidence to convict him of

simple assault – bodily injury under 18 Pa.C.S. 2701(a)(1). The transcripts,

however, establish the trial court convicted George of simple assault by

physical menace under 18 Pa.C.S. 2701(a)(3), see supra note 1, and not

simple assault – bodily injury.   The sentencing order merely reflected a

clerical error. George does not challenge his conviction for simple assault by

physical menace.

      Even if George had challenged the simple assault by physical menace

conviction, we would conclude the Commonwealth presented sufficient


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evidence. A person commits simple assault under section 2701(a)(3) when

he “attempts by physical menace to put another in fear of imminent serious

bodily injury.” 18 Pa.C.S. § 2701(a)(3).

     We have stated the following regarding the sufficiency of a simple

assault by physical menace conviction:

        The elements which must be proven are intentionally
        placing another in fear of imminent serious bodily injury
        through the use of menacing or frightening activity. Id. at
        1151–1155.     Intent can be proven by circumstantial
        evidence and may be inferred from the defendant’s
        conduct under the attendant circumstances. Id. at 1154.

Commonwealth v. Reynolds, 835 A.2d 720, 726 (Pa.Super. 2003)

(quoting Commonwealth v. Repko, 817 A.2d 549, 554 (Pa.Super. 2003)).

     The trial court stated:

           In this case the victim was observed by police officers
        at the scene and found to have scratches and red marks
        [a]round her neck and behind her ear. They also observed
        a videotape of the incident which showed [George]
        grabbing the victim around the neck by the shirt and trying
        to force her out the store. [George] was attacking the
        victim to the extent that an employee of the store left the
        store to stop [George] from attacking the victim at which
        time he fled. The victim indicated that she stayed at the
        store for a brief time and then fled in fear of [George]
        coming back to continue to beat or kill her. Even while
        standing with the officers, victim refused to stand near the
        convenience store, expressing her fear to the officers that
        [George] may return and attempt to beat her. The fact
        that the victim did not testify or that the video was not
        exhibited at trial does not negate the evidence of the
        assault that was admitted. Based on all of the evidence in
        this case it is clear that the Commonwealth met its burden
        of proving simpl[e] assault by physical menace beyond a
        reasonable doubt.

1925(a) Op. at 7-8 (internal citations omitted). We agree.

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      Judgment of sentence vacated. Case remanded for the trial court to

correct the sentencing order to reflect Count Six being simple assault by

physical menace under 18 Pa.C.S. § 2701(a)(3). Judgment of sentence is

affirmed in all other respects. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/5/2017




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