J-S45021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

CHARLES INGRAM

                            Appellant                     No. 1371 EDA 2013


           Appeal from the Judgment of Sentence of December 6, 2012
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0009938-2011


BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                                 FILED AUGUST 08, 2014



judgment of sentence. We affirm.

       The trial court summarized the factual and procedural history as

follows:

       Following a non-jury trial on February 28, 2012, [Ingram] was
       convicted of Manufacture, Delivery, or Possession With Intent to
       Manufacture or Deliver [a controlled substance,] 35 [P.S.]
       § 780-
       was granted and [Ingram] was found guilty of only the 16
       packets of cocaine discarded from his person.        This court
       sentenced [Ingram] to a term of incarceration of one and one
       half (1 1/2) to six (6) years.

                                        *      *   *


____________________________________________


*
       Former Justice specially assigned to the Superior Court.
J-S45021-14


     The evidence admitted at trial established that on April 16, 2011,
     at 7:00 a.m., Philadelphia Police Officers Gerald Passalacqua and
     John McCarron set up a narcotics surveillance operation on the
     2500 block of North Bouvier Street in the City and County of
     Philadelphia. Officer Passalacqua has spent his entire police
     career in the narcotics unit, which at the time of this arrest was
     19 years. He testified to being familiar with the manner in which
     crack cocaine is packaged and has seen it thousands of times on
                                                                      e
     location was near the corner of Cumberland Street and Bouvier
     Street, approximately 150 feet from [Ingram] and 40 feet from

     observations were as follows: A young male was standing on
     the northeast corner. An unidentified African American male in
     blue clothing and an unidentified African American female in a
     black leather jacket approached the young man for a brief
     conversation.    Following the conversation the male handed
     [Ingram] money. [Ingram] took it and walked north on Bouvier
     Street. [Ingram] entered a breezeway and walked back to a row
     house with an attached fence.         [Ingram] bent down and
     retrieved . . . a clear plastic baggie. He removed small items
     and returned the baggie. Then [Ingram] walked to Bouvier and
     dropped two clear packets of an off-white chunky substance on
     the top of the steps of 2531 North Bouvier Street. [Ingram]
     walked back to the male and female on the corner of Bouvier
     and Cumberland Streets. The male walked up the steps of 2531
     Bouvier Street and retrieved the two packets; he and the female
     departed afterwards.

     Officer Passalacqua continued his observations of the
     intersection: [Ingram] was approached by an unidentified
     African American female in a black leather jacket and bright
     yellow clothing. The two had a brief conversation. Afterwards,
     the female handed money to [Ingram].         The female and
     [Ingram] walked north on the 2500 block of North Bouvier
     Street. The female remained on the street as [Ingram] entered
     the breezeway at 2439 North Bouvier Street and went to the
     rear of the property. [Ingram] bent down next to the fence and
     picked up a clear plastic bag.      At this point, the female

     the cops,
     North Bouvier Street toward Cumberland Street. Then [Ingram]




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J-S45021-14


       Officer Passalacqua radioed for his back-up officer, John
       McCarron, to stop [Ingram]. Officer McCarron drove his marked
       police cruiser and turned onto the 2400 block [of] North Bouvier
       Street as [Ingram] fled on foot. Officer McCarron gave chase.
       Officer Passalacqua went to the location where he observed the
       clear plastic baggie and recovered 33 clear plastic packets
       containing an off-white chunky substance.

       Officer McCarron pursued [Ingram] on foot through an [alley.]
       During the chase, Officer McCarron observed [Ingram] throw
                                                            flee another
       two or three houses and then stopped; Officer McCarron took
       him into custody. Following the apprehension, Officer McCarron
       returned to the location of the blue items and recovered 16 blue-
       tinted packets containing an off-white chunky substance, which
       field-tested positive for cocaine base.[1] Officer McCarron also
       recovered thirty dollars in United Stated currency consisting of a
       twenty and ten dollar bills.

                                                    -3 (citations to notes of

testimony omitted).

       On December 14, 2012, Ingram filed a pro se motion for a new trial.

On April 16, 2013, the motion was denied by operation of law. On May 7,

2013, Ingram filed a counseled notice of appeal.       The trial court ordered

Ingram to file a concise statement of errors complained of on appeal
____________________________________________


1
      On September 20, 2012, Ingram filed a Motion for Extraordinary
Relief/Arrest of Judgment. That motion is not part of the original record.
However, the parties and the court discussed the motion prior to the
sentencing hearing on December 6, 2012. Ingram sought to have the trial
court state whether it found Ingram guilty of PWID based upon the thirty-
three packets found in the breezeway by Officer Passalacqua, the sixteen
packets Ingram discarded that were found by Officer McCarron, or both.

whether a mandatory minimum based upon the weight of the drugs would
apply. The trial court ruled that the PWID conviction was based upon the
sixteen packets alone. Id. at 5.



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pursuant to Pa.R.A.P. 1925(b). Ingram filed his concise statement. The trial

court issued its opinion, and the matter is now ripe for our consideration.

                                                                        ce was

sufficient to convict [Ingram] of possession with the intent to deliver sixteen



      Our standard of review for a sufficiency of the evidence challenge is

well-settled:

      In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

      Ingram challenges only the sufficiency of the evidence for his PWID

conviction. That statute states:

      (a) The following acts and the causing thereof within the
      Commonwealth are hereby prohibited:

                                   *    *    *

         (30) Except as authorized by this act, the manufacture,
         delivery, or possession with intent to manufacture or
         deliver, a controlled substance by a person not registered
         under this act, or a practitioner not registered or licensed
         by the appropriate State board, or knowingly creating,
         delivering or possessing with intent to deliver, a
         counterfeit controlled substance.

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35 P.S. § 780-113.

     In order to convict an accused of PWID under 35 P.S. § 780

     possessed the controlled substance and had an intent to deliver
                        Commonwealth v. Kirkland, 831 A.2d 607,
     611 (Pa. Super. 2003). Pennsylvania courts interpreting § 780
     113(a)(30), as it applies to PWID, have concluded that the
     Commonwealth must establish mens rea as to the possession
     element.     Commonwealth v. Mohamud, 15 A.3d 80 (Pa.
     Super. 2010). When determining whether a defendant had the
     requisite intent to deliver, relevant factors for consideration are

     the   behavior   of   the   defendant,   the
                                           presence of drug
                                           Commonwealth v.
     Ratsamy, 934 A.2d 1233, 1237 38 (Pa. 2007). Additionally,

     the facts surrounding the possession of controlled substances
     are consistent with an intent to deliver rather than with an intent
                                      Id. at 1238.

Koch, 39 A.3d at 1001 (citations modified).

     Ingram does not dispute his possession of the drugs, only the intent to

deliver. Ingram argues that the evidence was insufficient for three reasons.

First, Ingram states that the police did not observe Ingram hand drugs to

either of the first two people in contact with In

African[-]American male in blue clothing and [the] unidentified African[-]

American female in a black leather j

police did not stop the African-American man to see if he had drugs in his

possession. Lastly, Ingram asserts that there was no expert testimony that

would support the contention that any drugs were possessed with the intent

                                 -13.



                                        -5-
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      The trial court stated that it found the evidence sufficient due to



found that Ingram     interactions that were observed by Officer Passalacqua

were consistent with the sale and distribution of drugs, namely the exchange

of small items for cash.   The court also found that the sixteen individual

packets were the type commonly used for drug sales. T.C.O. at 4.

      At trial, Officer Passalacqua testified that he saw Ingram accept money

from the African-American man, then walk into a breezeway, take two small

items out of a bag, and leave them on the steps for the man to take. Notes

                 N.T. , 2/28/2012, at 13-14.       Officer Passalacqua also

observed a similar transaction between Ingram and a second African-

American woman. The woman gave money to Ingram and Ingram walked to

the same breezeway. However, before the transaction could be completed,

the woman spotted Officer Passalacqua and walked away. Id. at 15. When

Officer McCarron arrived in his marked police car, Ingram fled. Id. at 16.



in the narcotics unit, the way the crack cocaine was packaged was consistent

with packaging for sale. Id. at 18, 28. Officer Passalacqua was qualified as

an expert for part of his testimony. Id. at 28.

      Officer McCarron confirmed that Ingram fled when he arrived on the

scene.   Officer McCarron chased Ingram and saw him throw away

         Id. at 30.   After Ingram was taken into custody, Office McCarron

returned to the spot where Ingram discarded the items and recovered

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J-S45021-14



sixteen blue-tinted plastic packets that contained crack cocaine.        Officer

McCarron also recovered one twenty-dollar bill and one ten-dollar bill from

Ingram. Id. at 31. Officer McCarron testified that he was unable to stop the

African-American man and woman from the first transaction because they

went into a house before he could detain them. Id. at 33.

        Officer Passalacqua testified that, in each transaction, Ingram received

one bill.    Id. at 13, 15. The African-American man received two packets.

Id. at 14. Officer Passalacqua also testified that the packets would sell for

$5 or $10. Id. at 28.

        While Officer McCarron was not able to stop the African-American

man, there still was sufficient evidence to demonstrate that Ingram had the

intention to deliver. Ingram discarded sixteen packets of crack cocaine that

were consistent with the packaging used in the sale of the drug. Ingram fled

when approached by the police officers. Officer Passalacqua observed two

transactions that were consistent with selling drugs, even if the exchange

was not hand-to-hand. No paraphernalia indicating personal use was found

at the scene. Finally, Officer Passalaqcua valued the packets at $5 to $10

each.       Ingram had a twenty-dollar bill, which was consistent with the

African-American man handing Ingram one bill and receiving two packets,

and a ten-dollar bill, which was consistent with Ingram receiving one bill

from the African-American woman before she spotted Officer Passalacqua

and left the area.




                                      -7-
J-S45021-14



        In a similar case, we found sufficient evidence for a jury to convict on

PWID when the defendant was in constructive possession of twenty-two

packets of cocaine, it was an area known for drug sales, the defendant was

observed counting money and reaching into a location where drugs were

later    found,   and    the   defendant    fled   when    police   approached.

Commonwealth v. Hutchinson, 947 A.2d 800, 806-07 (Pa. Super. 2008).

Here, in addition to the circumstances that are similar to Hutchinson, there

are the transactions observed by Officer Passalacqua.



          s packaging, and viewing the evidence in the light most favorable to

the Commonwealth, the evidence sufficed to support the PWID conviction.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2014




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