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 IN THE COURTOF COMMONPLEASOF DELA WARJ4~J:i:;;~YLVANIA
                                            CRIMINAL           201, IUH z~r
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       COMMONWEALTH OF PENNSYLVANIA                        CP-23-CR-0001689-2014
                        v.
                James Pendleton




"'A.
   Sheldon Kovach, Esquire, for the Commonwealth
 Rhonda Lowe, Esquire, for the Appellant


                                             OPINIQN


 Capuzzi, J.                                                                                  Filed: ~   /cJ.cx./cJ.o\':J


         This is an appeal from this Court's judgment of sentence entered on October 30, 2014.

 Appellant raises the following five issues: (1) This Court erred when it failed to excuse Juror #4

 after being informed that the juror was familiar with one of the individuals involved in the

offense; (2) This Cou11 erred in allowing the Commonwealth to amend the complaint to add a

School Zone Enhancement; (3) The guilty verdicts were against the weight of the evidence; (4)

The evidence presented at trial was insufficient to sustain Appellant's convictions for 35 P.S. §

780-113 §§ A30 (Delivery of a Controlled Substance -Alprazolam); 35 P.S. § 780-113                 §§ Al6

(Possession of a Controlled Substance - Alprazolam and Oxycodone); and 35 P.S. § 780-113 §§

A32 (Possession of Drug Paraphernalia); and (5) This Court abused its discretion when

sentencing Appellant. For the forthcoming reasons, Appellant's issues lack merit and Appellant's

judgment of sentence should be affirmed.




                                            Page 1 of 13
 FACTUAL BASIS

         Officer Francis Devine is a patrolman with the Upper Darby Police Department and has

 been so employed for the past five years. [N.T., 09/17/2014 p. 27]. Within that time, Officer

 Devine has conducted over 100 drug related arrests and has observed numerous hand to hand

 transactions. [N.T., 09/17/2014 p. 27). In the early afternoon of February 9, 2014, at

 approximately 12:SOp.m., Officer Devine was in full uniform in an unmarked police vehicle on

 routine patrol in the area of Long, Shirley, and Walnut Street in Upper Darby, Delaware County.

 [N.T., 09/17/2014 p. 29J.

        While on patrol, Officer Devine observed two men walking down Walnut Street towards

Shirley Avenue. [N.T., 09/17/2014 p. 28). Based upon prior incidents, Officer Devine

immediately recognized one of the individuals as Mr. Redden. [N.T., 09/17/2014 p. 29]. The

other individual, although not known to Officer Devine at the time, was Appellant. The two men

were standing on the corner looking up and down the street, checking over their shoulders. [N.T.,

09/17/2014 p.29).0fficer Devine found this activity to be suspicious and pulled his vehicle over

in order to better observe the two men. [N.T., 09/17/2014 p. 29,30).The men, not noticing

Officer Devine' s vehicle, stopped at the corner of Walnut and Shirley Avenue, one parking spot

from where Officer Devine was parked. [N.T., 09117/2014 p. 28].

        From his vantage point, Officer Devine could clearly see Appellant hand a small glassine

bag to Mr. Redden. [N.T., 09/17/2014 p.30). In return, Mr. Redden handed Appellant U.S.

Currency. [N.T., 09/17/2014 p.30). When the two began to walk up Shirley towards Calvin

Street, Officer Devine witnessed another transfer of an unidentified object from Appellant to Mr.

Redden. [N.T., 09/17/2014 p. 29]. Following the second exchange with Appellant, Mr. Redden

got into the backseat of a vehicle with its hazard lights on, located about twenty-five feet from



                                            Page 2 of 13
 Officer Devine's location, and Appellant continued towards Calvin Street, heading in the

 opposite direction of Mr. Redden. [N.T., 09/17/2014 p. 35].0fficer Devine pursued the vehicle

 and radioed for backup to pursue Appellant. [N.T., 09/17/2014 p.30).

         Officer Devine initiated a traffic stop on the vehicle at Garrett and Walnut Street,

 approximately a block from where he witnessed the transaction. [N.T.i 09/17/2014 p. 30]. When

 the vehicle came to a stop, Officer Devine noticed Mr. Redden who was located in the back seat

 of the vehicle, make furtive movements toward the female in the front passenger seat. [N.T.,

 09/17/2014 p. 3 O]. In addition to Mr. Redden, the two other individuals, later identified as

Michael Rainey and Lauren Taylor, were also making furtive movements in the front of the

 vehicle; adding to his growing suspicion of criminal activity and eventual removal of all

occupants. [N.T., 09/17/2014 p. 30]. At this time, Lieutenant Thomas Sharp, also of the Upper

Darby Police Department, arrived on scene and assisted Officer Devine. [N.T., 09/17/2014 p.

40]. Once Lieutenant Sharp arrived, all parties were removed and pat-downs were conducted on

each of the three occupants of the vehicle for officer safety. [N.T., 09/17/2014 p. 40].

        While the female was exiting the vehicle, Lieutenant Sharp was able to observe a single

white pill with the parking 512 on the floorboard of the passenger side. [N.T., 09/17/2014 p. 42].

In the front of the vehicle on the transmission hump in the center console, Officer Devine

observed the exact same glassine bag that he witnessed in the hand to hand with Appellant just

moments before. [N.T., 09/17/2014 p. 42). The bag contained seven blue pills and two

rectangular green pills. [N.T., 09/17/2014 p. 40-41]. In addition, Lieutenant Sharp and Detective

Devine located five orange and five clear pills wrapped in tissue paper, stashed in a small ashtray

to the left of the steering wheel, approximately the same location that the female in the car was

reaching towards when they were pulled over. [N.T., 09/17/2014 p. 43].



                                            Page 3 of 13
            Officer Michael Taylor of the Upper Darby Police Department, Narcotics          Division, was

     also on patrol at the time of the exchange and received     the call from dispatch to pursue

    Appellant.    [N.T., 09/17/2014 p. 79). Officer Taylor recognized    Appellant   by Officer Devine's

    description   and clothing. [N.T., 09/17/2014 p. 80). Officer Taylor initiated a pedestrian stop

    upon sight of Appellant and immediately noticed Appellant was very nervous. [N.T., 09/17/2014

    p. 81]. For officer safety, particularly   in a high-crime area, Officer Taylor conducted a pat down

    of Appellant's person. [N.T., 09/17/2014 p. 81 ). Officer Taylor quickly noticed a bulge in his

    breast pocket and asked Appellant what was in there. Appellant responded with "some pills", and

    also admitted to not having a prescription for them. [N.T., 09/17/2014 p. 82). Officer Taylor

    removed the tissue paper that contained three white, round pills consistent with being

    Oxycodone. [N.T., 09/17/2014 p. 82]. In addition, $75 dollars of U.S. currency was found on his

    person, which contained two $20 dollar bills. [N.T., 09/17/2014 p.84.J Two cell phones were

    also located on Appellant's person. [N.T., 09/17/2014 p. 84].

           Appellant was arrested and charged with three counts of Delivery of a Controlled

Substance 1, three counts of Possession of a Controlled Substance', and one count of Possession

of Drug Paraphemalia:3•4

PROCEDURAL HISTORY

           A jury trial was held on September 17, 2014. The Commonwealth presented several

witnesses including: Officer Francis Devine, Lieutenant Thomas Sharp, Officer Michael Taylor,


1
   35 Pa.CS. Section 780-113(a)(30}
2
       Pa.C.S. Section 780-113(a}(16)
    4 35
3
  S 35 Pa.CS. Section 780-113(a)(32)
4
  All pills were later submitted to the Pennsylvania State Police Bureau of Forensic Service, Lima Regional
Laboratory and were confirmed by Kristen Victoria Stains, a forensic Lima Regional Laboratory
Technician, to be Oxycodone, a schedule I & II narcotic; Alprazolam,a schedule IV narcotic; and
Amphetamine, a schedule 11 narcotic. [N.T., 09/17/2014 p. 119].


                                                  Page 4 of 13
 and Jonathon Redden. The defense presented testimony from Appellant, James Pendleton.

 Officer Devine, Lieutenant     Sharp, and Officer Taylor testified to the facts as set forth above.

 [N.T., 09/17/2014    p. 64].

           Following the officers' testimony,   the Commonwealth    presented   Mr. Redden. [N.T.,

 09/17/2014 p. JOI]. Mr. Redden testified that he purchased eight Alprazolam pills from

 Appellant in exchange for $40, which he paid in the denomination of two $20 dollar bills. [N.T.,

 09117120 I 4 p. 103, 105]. Mr. Redden testified the pills were contained in a baggie, the same

baggie found in the vehicle Mr. Redden occupied shortly after the exchange. [N.T., 09/17/2014

p. 105].

        After hearing testimony that the driver of the vehicle was Michael Rainey, Juror #4, sent

a note to a court official stating that he knew Michael Rainey. This Court colloquied Juror #4 in

the robing room with both attorneys present. Juror #4 told the court that he and Mr. Rainey went

to Upper Darby High School together in 2002 but he hasn't seen Mr. Redden in six years. [N.T.,

0911712014 p.130]. This Court informed Juror #4 that Mr. Rainey would not be testifying. [N.T.,

09/17/2014 p. 130). This Court asked Juror #4 if knowing Michael Rainey would prevent him

from being a fair and impartial juror in this case; of which Juror #4 firmly stated it would not.

[N.T., 09/17/2014 p. 130]. The Court asked Juror #4 if he would be able to continue in this case

as a juror and set aside any knowledge of Michael Rainey in any way. Juror #4 again told this

Court he could. [N.T., 09/17/2014 p. 131). After the colloquy, counsel for Appellant did not

move to strike Juror #4 and this Court decided he could be fair and impartial; as such, he was not

removed from the panel. [N.T., 9/17/2014 p. 152).

       In addition, Juror #9 also informed this Court that she knew Michael Rainey. [N.T.,

09/17/2014 p. 133]. Juror #9 stated that Michael Rainey was her cousin's brother-in-Jaw and that



                                                Page 5 of 13
she worked with him at a restaurant.          [N.T.,    09/17/2014    p. 134]. Juror #9 stated this may make

her unable to be a fair and impartial juror, and as such, this Court excused her and alternate Juror

#13 became Juror#9.          [N.T., 09/17/2014 p. 156].

           The defense presented testimony from Appellant.              [N.T., 09/17/2014   p. 159]. Appellant

testified contrary to Mr. Redden's claims, claiming he was purchasing the drugs from Mr.

Redden; not selling them. [N.T., 09/17/2014 p. 161]. Appellant testified he purchased three

Oxycodone pills -for his alleged chronic headaches and back pain - from Mr. Redden, in

exchange for $15. Appellant also testified that he gave Mr. Redden an empty glassine baggie and

the U.S. Currency given to him was his $5 change for a $20 bill. (N.T., 09/17/2014 p. 161, 166].5

           After deliberating, the jury found Appellant guilty of Delivery of a Controlled Substance

to wit: Alprazolam; Possession of a Controlled Substance to wit: Alprazolam; Possession of a

Controlled Substance to wit: Oxycodone, and Possession of Drug Paraphernalia.

           The jury found Appellant not guilty of Delivery of a Controlled Substance to wit:

Oxycodone, Delivery of a Controlled Substance to wit: Amphetamine; and Possession of a

Controlled Substance to wit: Amphetamine.

           On October 301h, 2014, this Court sentenced Appellant as follows: Count 1 :Delivery of

Alprazolam: 15 months to 30 months in SCI with three years consecutive state probation; Count

2: Possession of Oxycodone: 6-12 months SCI consecutive to Count 1; Count 3: Possession of

Drug Paraphernalia: 1 year state probation, running consecutive to Count 1 and Count 2.

Appellant was ordered to provide a DNA sample, a $100 cost assessment was imposed, and

Appellant was not RRRI Eligible or boot camp eligible. Appellant was also ordered to forfeit two

cell phones and $75 of US Currency. [N.T., 10/30/2014 p.9-11].



5
    Appellant was the only person apprehended with any money on his person [N.T., 09/17 /2014 p. 49, 84}.

                                                       Page 6 of 13
            On October 31, 2014, counsel for Appellant filed a motion to withdraw, which this Court

 granted.

         On November 07, 2014, Appellant filed prose correspondence, which was docketed on

 November 12, 2014. Due to the time sensitive nature of filing a motion to reconsider, this Court

 treated the correspondence as a pro se motion to reconsider sentence and appointed the Delaware

 County Office of the Public Defender to represent Appellant. On November 17, the Public

 Defender filed a conflict petition. In response, this Court appointed conflict counsel, Ms. Rhonda

Lowe, Esquire.

        Due to confusion with the switch in counsel and miscommunication as to what had been

filed by the Public Defender's office, Ms. Lowe provided this Court with additional information

pertinent to the motion to reconsider and asked this Court to extend the 120 days this Court had

to decide on the motion. This Court found that good cause existed to invoke the extra thirty days

allowed by statute to decide upon the motion. On March 30, 2015, after considering the

information provided, this Court denied the post-sentence motion and this timely appeal

followed.

DISCUSSION

       For efficiency, this Court will address each issue as laid out by Appellant in his 1925   o»
statement: (A) Improper Non-Excusal of Jury Member; (B) Improper School Zone

Enhancement; (C) Guilty Verdicts Against the Weight of the Evidence; (D) Insufficient

Evidence For Conviction; and (E) Abuse of Discretion At Sentencing.




                                            Page 7 of 13
   A. This Court Did Not Abuse its Discretion When Keeping Juror #4 on the Panel.

        The determination as to whether an individual's views would substantially impair her or

his ability to perform the duties of a juror rests in the discretion of the trial court and that such

determination is to be accorded deference. Commonwealth v. Morales 91 A.3d 80, 96-97 (Pa.

2014). "Absent a palpable abuse of that discretion, the court' s determination will not be

reversed." Morales, 91 A.3d at 97.

        Appellant's alleges this Court erred when it did not excuse trial Juror #4 after being

informed that the Juror #4 was familiar with Michael Rainey, the driver of the vehicle.

        This Court did not abuse its discretion when deciding to keep Juror #4 on the panel. Juror

#4 attended high school with Mr. Rainey, stated he hadn't seen him in a significant amount of

time, did not socialize with him and simply brought it to this Court's attention in an abundance

of caution. In addition, Juror #4 said he could be fair and impartial. If Juror #4 answered the

question in the negative, as Juror #9 did, this Court would have excused Juror #4. However,

excusing Juror#4 was not necessary as this Court determined, after speaking with Juror #4, that

he could be fair and impartial. Thus, there was no error of law or abuse of discretion.

   B. The Commonwealth Did Not Elicit Testimony in Regards to a School Zone and This
   Court Did Not Apply a School Zone Enhancement At Sentencing.

       Appellant also alleges this Court erred in allowing the Commonwealth to amend the

complaint to add a School Zone Enhancement, pursuant to the Drug-Free School Zones Act, 18

Pa.C.S. § 6317. This assertion is moot. The Commonwealth never presented any testimony to

this effect nor was the issue submitted to the jury or applied at sentencing. Therefore, the issue is

moot for purposes of appeal.




                                              Page 8 of 13
    C. The Verdict Was Not Against the Weight of the Evidence.

         "A claim alleging the verdict was against the weight of the evidence is addressed to the

discretion of the trial court. Accordingly, an appellate court reviews the exercise of the trial

court's discretion; it does not answer for itself whether the verdict was against the weight of the

evidence. It is well settled that the [jury] is free to believe all, part, or none of the evidence and to

determine the credibility of the witnesses. A weight of the evidence claim is only warranted

where the judge or jury's verdict is so contrary to the evidence that it shocks one's sense of

justice. In determining whether this standard has been met, appellate review is limited to whether

the trial judge's discretion was properly exercised, and relief will only be granted where the facts

and inferences of record disclose a palpable abuse of discretion." Commonwealth v. Landis, 89

A.3d 694, 699 (Pa. Super. 2014).

        "Because the trial judge has had the opportunity to hear and see the evidence presented,

an appellate court will give the gravest consideration to the findings and reasons advanced by the

trial judge when reviewing a trial court's determination that the verdict is against the weight of

the evidence." Landis, 89 A.3d at 699.

        Appellant alleges that the verdict was against the weight of the evidence presented by the

Commonwealth at trial. This Court properly denied this post-sentence motion. The jury was free

to listen to the witnesses and weigh the evidence presented. Despite the conflicting stories from

Appellant and Mr. Redden, the jury weighed the credibility of the witnesses and determined

Appellant to be guilty beyond a reasonable doubt for all three charges herein. There is nothing in

the record to support that the fact-finder's verdict is so contrary to the evidence that it shocks

one's sense of justice.




                                             Page 9 of13
    D. The Evidence Presented at Trial was Sufficient to Convict Appellant.

         "Because evidentiary sufficiency is a question of law, our standard of review is de novo

and our scope of review is plenary." Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013).

        "There is sufficient evidence to sustain a conviction when the evidence admitted at trial,

and all reasonable inferences are drawn therefrom, viewed in the light most favorable to the

Commonwealth as verdict-winner, are sufficient to enable the fact finder to conclude that the

Commonwealth established all of the elements of the offense beyond a reasonable doubt."

Commonwealth v, Martin, 101 A.3d 706, 718 (Pa. 2014). The Commonwealth may sustain [this]

burden by means of wholly circumstantial evidence. Martin, 10 l A.3d at 718.

        "In order to preserve a challenge to the sufficiency of the evidence on appeal, an

appellant's l 925(b) statement must state with specificity the element or elements upon which the

appellant alleges that the evidence was insufficient." Commonwealth v. Garland, 63 A.3d 339,

344 (Pa. Super. 2013). Failure to identify what specific element the Commonwealth failed to

prove at trial in a 1925(b) statement renders an appellant's sufficiency of the evidence claim

waived for appellate review. Id.

        Appellant alleges there was insufficient evidence presented at trial to sustain the

convictions Delivery of a Controlled Substance to wit: Alprazolam, Possession of a Controlled

Substance to wit: Oxycodone and Alprazolam, and Possession of Drug Paraphernalia. However,

Appellant does not allege any particular element of the three convictions as required to preserve

the claim for appeal. Assuming arguendo that Appellant intends to argue that every single

element of all three offenses was insufficient to sustain a conviction, this Court sets forth the its

analysis as follows:




                                             Page 10 of 13
         Pursuant to 35 P.S. Section 780-JJ3(a){30): "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 is

prohibited." Delivery is defined as "the actual, constructive or attempted transfer from one

person to another of a controlled substance ...   whether or not there is an agency

relationship."   35 P.S. Section 780-102.

        Here, Appellant, who is not registered or licensed under the act, was delivering

Alprazolam, a controlled substance, by means of a hand to hand to Mr. Redden. Officer Devine

testified that he was a mere five feet away from Appellant and Mr. Redden when he witnessed

Appellant hand Mr. Redden a clear plastic bag in exchange for U.S. currency. In addition, this

was the exact same bag that Officer Devine located in the vehicle that Mr. Redden got into

immediately after the transaction. Not only did Officer Devine see the transaction occur but Mr.

Redden also told the jury that he purchased the pills from Appellant and gave him two $20 dollar

bills, which were located on Appellant when he was arrested. The evidence presented at trial,

when viewed in the light most favorable to the Commonwealth, was overwhelmingly sufficient

to establish all of the elements of the offense beyond a reasonable doubt.

        In order to establish Possession of a Controlled Substance the Commonwealth must prove

beyond a reasonable doubt: l) the item must be a controlled substance; (2) that the item was

possessed by the defendant; and (3) that the defendant was aware of the item's presence and that

the item was in fact a controlled substance. 35 Pa.C.S. Section 780-l13(a)(l6)

        When Officer Taylor stopped Appellant he had Oxycodone, a controlled substance, on

his person. Appellant admitted he had the pills in his pocket and that he did not have a



                                            Page 11 of 13
 prescription for them. In addition, Appellant possessed Alprazolam when he sold it to Mr.

 Redden, which Mr. Redden testified to and Officer Devine witnessed Appellant hand to Mr.

Redden.

        Pursuant to 35 P .S. Section 780-1 l 3(a)(32), "The following acts and the causing thereof

within the Commonwealth are hereby prohibited: The use of, or possession with intent to use,

drug paraphernalia for the purpose of planting, propagating, cultivating, growing, harvesting,

manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing,

packing, repacking, storing, containing, concealing, injecting, ingesting, inhaling or otherwise

introducing into the human body a controlled substance in violation of this act."

        Officer Taylor located three Oxycodone pills on Appellant. The pills were wrapped in

tissue paper in order to store the controlled substance. Based on credible testimony from Officer

Taylor and Officer Devine, the Commonwealth presented sufficient evidence to prove each

element of Possession of Drug Paraphernalia beyond a reasonable doubt.

   E. This CourtProperly Sentenced Appellant.

        Appellant' s assertion that this Court abused its discretion when it sentenced Appellant is

without merit. An abuse is not merely an en-or of judgment, but if in reaching a conclusion the

law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the

result of partiality, prejudice, bias or ill will direction is abused. Commonwealth v. Hairston, 84

A.3d 657 (Pa. 2014).

       Appellant does not particularly allege how this Court abused its discretion at sentencing.

Appellant's sentence was not illegal nor was it even in the aggravated range. Appellant's

sentence was in the middle of the standard range. This Court told Appellant at sentencing: "I

could easily justify going into the aggravated range based on your past history. But, even in



                                            Page 12 of 13
going to the standard range, I didn't go to the maximum       in the standard range; I went into the

mid-range   because I'm hoping there is some redeeming       value for you." [N.T., 10/30/2014         p.11).

After review, this Court finds no error in Appellant's    sentence.

CONCLUSION

       This Court did not conunit an error of law or abuse its discretion.            Appellant's judgment

of sentence should be affirmed.


                                                            BY H[e>URT:
                                                                  /~
                                                                p "'      &,·---""~     ./. •
                                                         1o1)J· · ·: Capuzzi'; 81(                    J.




                                           Page 13 of 13
