J-S83033-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    Appellee             :
                                         :
                    v.                   :
                                         :
CHARLES FRAZIER,                         :
                                         :
                    Appellant            :     No. 519 WDA 2016

           Appeal from the Judgment of Sentence March 11, 2016
               in the Court of Common Pleas of Erie County,
            Criminal Division at No(s): CP-25-CR-0002474-2015

BEFORE:    FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED: January 11, 2017

      Charles Frazier (Appellant) appeals from the judgment of sentence

entered March 11, 2016, following his convictions for possession of a small

amount of marijuana and possession of drug paraphernalia. We affirm.

      The trial court aptly summarized the relevant factual history as

follows.

             On July 3, 2015, Officer Joshua Allison and Corporal Kevin
      Fries were patrolling at approximately 2:20 a.m. in a marked car
      and full uniform when they observed a car fail[] to come to a
      complete stop at a stop sign. The officers conducted a traffic
      stop and illuminated the car with spotlights. While stopped
      behind the vehicle, the officers could tell the front passenger[,
      later identified as Appellant,] was ducking down multiple times.
      The officers approached the car and when the windows rolled
      down they could smell the distinct odor of marijuana. [Following
      a search of the vehicle,] Officer Allison found a baggie of
      marijuana under the front passenger seat where Appellant was
      seated. The area was not accessible to anyone else in the car.
      Appellant was arrested and transported to the police barracks to



*Retired Senior Judge assigned to the Superior Court.
J-S83033-16


        be processed.    Once there, Appellant indicated he smoked
        marijuana, which was recorded on the intake questionnaire.

               During trial, Appellant moved for judgment of acquittal,
        arguing there was insufficient evidence to support the guilty
        verdict, as the Commonwealth did not introduce chemical
        evidence regarding the identity of the substance found. [On
        January 14, 2016, Appellant was found guilty after a trial by jury
        of possession of a small amount of marijuana and possession of
        drug paraphernalia.] On January 25, 2016, Appellant filed a
        motion for post-trial relief, renewing the []sufficiency argument[,
        which was denied]. Appellant was sentenced on March 11, 2016
        to a total term of 13 months of probation and $600.00 in fines.

              On April 11, 2016, Appellant filed a notice of appeal.
        Appellant filed a concise statement of [errors] complained of on
        appeal on May 3, 2016[.]

Trial   Court    Opinion,   5/10/2016,    at   1-2   (citations   and   unnecessary

capitalization omitted).

        Appellant raises one issue for our review: whether the evidence was

sufficient to convict him of possession of a small amount of marijuana and

possession of paraphernalia where the Commonwealth “failed to produce a

drug analysis lab report of the alleged controlled substance.” Appellant’s

Brief at 2.     We address this claim mindful of our well-settled standard of

review.

        The standard we apply in reviewing the sufficiency of 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



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

Commonwealth v. Helsel, 53 A.3d 906, 917-18 (Pa. Super. 2012)

(quoting Commonwealth v. Bricker, 41 A.3d 872, 877 (Pa. Super. 2012)

(citations omitted)).

      To sustain a conviction for possession of a small amount of marijuana,

the Commonwealth was required to prove that Appellant knowingly or

intentionally possessed an amount of marijuana less than 30 grams. 35 P.S.

§ 780–113(a)(31).       To   sustain a conviction for    possession of drug

paraphernalia, the Commonwealth was required to prove that Appellant

possessed drug paraphernalia for the purpose of, inter alia, “storing,

containing, concealing, injecting, ingesting, inhaling or otherwise introducing

into the human body a controlled substance.” 35 P.S. § 780-113(a)(32).

      Appellant does not challenge the sufficiency of the evidence as it

relates to possession; rather, he contends that the Commonwealth failed to

meet its burden because it never established through chemical analysis the

identity of the substance he possessed. Appellant’s Brief at 5-8.




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      Appellant’s argument is meritless. It is “well-established in this

Commonwealth that the identity of illegal narcotic substances may be

established by circumstantial evidence alone, without any chemical analysis

of the seized contraband.” Commonwealth v. Minott, 577 A.2d 928, 932

(Pa .Super. 1990); see also Commonwealth v. Stasiak, 451 A.2d 520

(Pa. Super. 1982); Commonwealth v. Williams, 428 A.2d 165 (Pa. Super.

1981). See generally Commonwealth v. Boyd, 763 A.2d 421, 424 (Pa.

Super. 2000) (collecting cases) (recognizing “the Commonwealth may rely

on circumstantial evidence to prove the identity of the fluid or material”).

      Acknowledging the above, the trial court addressed Appellant’s

argument as follows.

             Officer Joshua Allison and Officer Kevin Fries each testified
      at trial [that] the substance found under Appellant’s seat was
      marijuana.

             Officer Allison has been a police officer since 2009. He
      worked in Florida for 4 years before moving back to
      Pennsylvania. Officer Allison has extensive experience dealing
      with marijuana and has been involved in over 100 cases, ranging
      from small amounts to locating the largest outdoor marijuana
      grow in Pasco County, Florida. He is familiar with the smell of
      burnt marijuana and unburnt marijuana as well as how it is
      packaged at different levels of distribution and paraphernalia
      used to smoke it. Unlike narcotics that have a white powdery
      appearance and can be difficult to identify, Officer Allison
      testified marijuana has a distinct look and smell that is unique.
      In his 6 years of experience, Officer Allison has never had a case
      or heard of a case where suspected marijuana was determined
      not to be marijuana after chemical testing.

            In this case, Officer Allison smelled the odor of burnt
      marijuana as soon as the driver rolled down his window. Officer



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     Allison found a baggie of the green organic material during the
     search under Appellant’s seat. As soon as he saw the substance,
     he knew exactly what it was based on “the way it looked, the
     way it was packaged, and [the] obvious odor of marijuana”
     which is “very distinct and there’s only one thing that smells like
     marijuana.” [Officer Allison testified that n]othing about the
     [recovered] substance caused any doubts as to its identity.

            Corporal Kevin Fries has been a police officer with the City
     of Erie Police Department for over 16 years and during this time
     he had been involved in hundreds of drug cases. Based on his
     training and experience, Corporal Fries is very familiar with the
     distinct odor associated with marijuana. [In this case, h]e
     smelled a mix of burnt and unburnt marijuana coming from the
     vehicle as he approached the passenger side. He testified that
     he dealt with [marijuana] “all the time on the street” in the
     course of his patrols.      Therefore, he knew the substance
     recovered from under Appellant’s seat was marijuana by its look
     and smell as soon as he saw it.

            Appellant argues the testimony of the officers in this case
     is not sufficient to prove the substance was marijuana as neither
     [officer was a member] of the vice unit. However, the unit to
     which an officer is assigned does not mean he does not have
     adequate training and experience to identify marijuana. Officer
     Allison has 6 years of experience; Corporal Fries has over 16
     years of experience. Each has extensive training and experience
     related to drugs generally and marijuana specifically. The fact
     that neither officer was assigned to the vice unit does not negate
     that experience. At most, this fact would affect the officers’
     credibility, a factor for the jurors to consider.

            The fact there was no chemical analysis of the substance
     [recovered] was also a factor for the jury to consider. The
     officers were questioned extensively about the decision not to
     test the substance as well as their interpretation of the
     [Pennsylvania State Police] Bureau of Forensic Services Policy,
     which guided their decision. The officers explained that a small
     amount of suspected marijuana, less than 30 grams, was not
     routinely sent to the Pennsylvania State Police Lab for testing if
     it could be identified by sensory indicators because of the high
     expense, the time it took to test the drugs and the backlog faced
     by the lab. Even if this decision was made based on [a]



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     misunderstanding of the Policy or the Policy was misconstrued
     during testimony, the outcome is the same. The drugs were not
     tested. The jury was fully aware of this fact, as well as the
     rationale of the officers’ decision, in evaluating the evidence
     presented at trial.

           The    Commonwealth        also   introduced   an     intake
     questionnaire that recorded Appellants’ responses to a series of
     questions that indicated he [used] marijuana. Not only is this
     circumstantial evidence [that] the substance found was
     Appellant’s but also that the substance was in fact marijuana.

           Based on this evidence, the jury found the Commonwealth
     proved beyond a reasonable doubt [that] the substance
     possessed by Appellant was a controlled substance. It was
     within the province of the jury to pass upon the credibility of
     [the] witnesses and determine the weight to be accorded the
     evidence adduced. Giving the Commonwealth all reasonable
     inferences, sufficient evidence [was] presented at trial for the
     jury to find the officers credible, despite the lack of chemical
     testing.

           Hence, a review of the record and consideration of the
     jury’s verdict confirms the Commonwealth met its burden of
     proof with respect to the crime of possession of a small amount
     of marijuana. As the paraphernalia charged [was] related to the
     baggie in which the marijuana was found and Appellant is not
     challenging the sufficiency of the evidence as to possession, the
     fact [that] the substance was marijuana was proven beyond a
     reasonable doubt establishes every element of the crime of
     possession of paraphernalia[.]

Trial Court Opinion, 5/10/2016, at 3-5 (citations and references to notes of

testimony omitted).

     We agree with the trial court that the evidence presented was

sufficient to convict Appellant of possession of a small amount of marijuana

and possession of drug paraphernalia.         Minott, 577 A.2d at 932.

Accordingly, based on the foregoing, Appellant’s claim that the evidence was



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insufficient to support his convictions fails.   Thus, we affirm Appellant’s

judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 1/11/2017




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