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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
THOMAS WOOD,                              :           No. 2108 EDA 2014
                                          :
                         Appellant        :


             Appeal from the Judgment of Sentence, July 18, 2014,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0012382-2012


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                        FILED MAY 20, 2015

      This is an appeal from the judgment of sentence of July 18, 2014,

following appellant’s conviction of possession with intent to distribute a

controlled   substance   (“PWID”),   35   Pa.C.S.A.    §   780-113(A)(30),   and

possession of a controlled substance, 35 Pa.C.S.A. § 780-113(A)(16). We

affirm.

      The trial court has summarized the underlying facts of this case as

follows:

                    On August 14, 2012, Sergeant Paul Perez was
             on duty as a Narcotics Strike Force surveillance
             officer [i]n the 2300 block of North Colorado Street
             in Philadelphia. On the day in question Sergeant
             Perez was driving around looking for open-air drug
             sales. Sergeant Perez was an experienced narcotics
             officer who had made in excess of 50 arrests in that
             area and who had observed over a thousand []
             open-air drug transaction[s].


*Former Justice specially assigned to the Superior Court.
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                 Sergeant Perez set up a plain clothes
           surveillance, along with Police Officer Floyd.     He
           immediately observed Defendant on the east side of
           the 2300 block of North Colorado. At approximately
           12:40 [pm], Sgt. Perez observed a black male
           approach Defendant, engage in a brief conversation,
           and hand Defendant an undetermined amount of
           United States Currency (USC). Defendant removed
           a small item from his left top pocket and handed it to
           the unknown male, who left the area. Sgt. Perez put
           out the unknown black male’s description over the
           police surveillance band, but he was not stopped.

                 Defendant continued to stay in the area of
           2300 North Colorado, and at about 12:50 pm he was
           approached by another black male who handed
           Defendant currency after a very brief conversation.
           Defendant again removed a small item from his left
           breast pocket and handed it to the unknown male,
           who left the area. Sgt. Perez again put out the
           unknown black male’s description over the police
           surveillance band, but he also was not located.

                  At approximately 1:00 pm Defendant was
           approached by a black female who greeted and
           hugged him, then sat down on the steps next to
           Defendant. Sgt. Perez then broadcast Defendant’s
           location and description to uniformed officers who
           converged on the area and Officer Lutz stopped
           Defendant. Officer Lutz recovered 10 blue Ziploc
           packets which tested positive for cocaine and $58 in
           USC.

Trial court opinion, 12/17/14 at 2-3 (citations to the motion to suppress

notes of testimony omitted).

     Following the denial of appellant’s motion to suppress, appellant

proceeded to a non-jury trial.   At the conclusion of the non-jury trial on

April 9, 2014, appellant was found guilty of the aforementioned crimes. On



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July 18, 2014, appellant was sentenced to 30 to 60 months’ imprisonment

on the PWID conviction followed by a consecutive period of three years’

probation.     For sentencing purposes, the possession of a controlled

substance merged with PWID.

     Appellant filed a timely appeal on July 21, 2014. On July 31, 2014,

the trial court entered an order directing appellant to file a statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days

of the date of the order. On December 15, 2014, appellant filed his untimely

Rule 1925(b) statement raising one issue; namely, the sufficiency of the

evidence.    On December 17, 2014, the trial court filed its Rule 1925(a)

opinion.

     Preliminarily, we consider appellant’s Rule 1925(b) statement of errors

complained of on appeal. Clearly, the statement was untimely. According to

the certified record, appellant did not seek an extension of time to file his

Rule 1925(b) statement.     The trial court proceeded to write its opinion

addressing what it considered were the apparent issues, i.e., the motion to

suppress and the sufficiency of the evidence. In its opinion, the trial court

notes it was aware of appellant’s Rule 1925(b) statement filed on

December 15, 2014.

     This court has held that an attorney’s untimely filing of a Rule 1925(b)

statement in a criminal case, which would result in waiver of all of a

defendant’s claims on appeal, is per se ineffectiveness for which the



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defendant is entitled to prompt relief.     Commonwealth v. Burton, 973

A.2d 428, 432-433 (Pa.Super. 2009) (en banc). In such cases, “this Court

may decide the appeal on the merits if the trial court had adequate

opportunity to prepare an opinion addressing the issues being raised on

appeal.   If the trial court did not have an adequate opportunity to do so,

remand is proper.” Id. at 433. Instantly, the trial court has filed an opinion

discussing appellant’s claim.   Therefore, remand is not necessary, and we

proceed to address appellant’s issue. See id.

      On appeal, appellant frames his issue as follows:

            1.     Whether the Trial Court’s record of appellant,
                   Thomas      Wood’s     case  reveals     evidence
                   sufficient to support the conviction for [PWID?]

Appellant’s brief at 5.

      With respect to his sufficiency issue, our standard and scope of review

are established.

            We must determine whether the evidence admitted
            at trial, and all reasonable inferences drawn
            therefrom, when viewed in a light most favorable to
            the Commonwealth as verdict winner, support the
            conviction beyond a reasonable doubt. Where there
            is sufficient evidence to enable the trier of fact to
            find every element of the crime has been established
            beyond a reasonable doubt, the sufficiency of the
            evidence claim must fail. The evidence established
            at trial need not preclude every possibility of
            innocence and the fact-finder is free to believe all,
            part, or none of the evidence presented. It is not
            within the province of this Court to re-weigh the
            evidence and substitute our judgment for that of the
            fact-finder. The Commonwealth’s burden may be
            met by wholly circumstantial evidence and any doubt


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           about the defendant’s guilt is to be resolved by the
           fact finder unless the evidence is so weak and
           inconclusive that, as a matter of law, no probability
           of fact can be drawn from the combined
           circumstances.

Commonwealth v. Mobley, 14 A.3d 887, 889-890 (Pa.Super. 2011).

     Pennsylvania law prohibits “possession with intent to manufacture or

deliver, a controlled substance by a person not registered under this act.”

35 P.S. § 780-113(a)(30).      “The 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.” Commonwealth v. Lee,

956 A.2d 1024, 1028 (Pa.Super. 2008), appeal denied, 964 A.2d 894 (Pa.

2009). When determining whether there was intent to deliver, “all facts and

circumstances   surrounding    the   possession   are   relevant,   and   the

Commonwealth may establish the essential elements of the crime wholly by

circumstantial evidence.”   Commonwealth v. Bricker, 882 A.2d 1008,

1015 (Pa.Super. 2005).

           [I]f the quantity of the controlled substance is not
           dispositive as to the intent, the court may look to
           other factors.

                 Other factors to consider when determining
           whether a defendant intended to deliver a controlled
           substance include the manner in which the controlled
           substance was packaged, the behavior of the
           defendant, the presence of drug paraphernalia, and
           [large] sums of cash found in possession of the


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            defendant.    The final factor to be considered is
            expert testimony.       Expert opinion testimony is
            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.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1237-1238 (Pa. 2007),

quoting Commonwealth v. Jackson, 645 A.2d 1366, 1368 (Pa.Super.

1994) (quotation marks omitted).

      Here, appellant concedes he possessed a controlled substance in the

form of ten packets of crack cocaine and $58 when he was stopped.

However, appellant argues the evidence was insufficient to convict him of

PWID because none of the alleged buyers were stopped, no expert

testimony was provided establishing either the value of the drugs or an

indication of whether the drugs were for personal use, and no testimony was

given relating to any stash of drugs or the presence of drug paraphernalia

used by drug dealers. (Appellant’s brief at 9.)

      Viewing   the   evidence   in   the   light   most   favorable   to   the

Commonwealth, together with all reasonable inferences therefrom, we reject

appellant’s argument that the evidence was insufficient.      An experienced

Narcotics Task Force officer, stationed in a high-crime drug neighborhood,

set up a plain clothes surveillance and immediately observed a male

approach appellant, speak briefly, and hand appellant U.S. currency.

Officer Perez saw appellant remove a small item from his left top pocket and

hand it to the unknown male. He watched this same scenario ten minutes


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later with another unknown male.           Approximately ten minutes later,

appellant was stopped; 10 packets of cocaine and $58 were found on his

person. No drug paraphernalia was found. The reasonable inference drawn

from these facts is appellant was distributing drugs.

      In Commonwealth v. Bess, 789 A.2d 757 (Pa.Super. 2002), this

court found sufficient circumstantial evidence to support a conviction of

PWID. Id. at 762. The police arrested the defendant after he sold cocaine

to an undercover officer. Id. at 759-760. When the police searched him,

they found 2.2 grams of cocaine in a single bag and $158 in cash on the

defendant’s person. Id. at 761. They did not find any paraphernalia. Id.

The totality of the circumstances was sufficient to support a conviction of

PWID. Id. at 761-762.

      In Commonwealth v. Johnson, 782 A.2d 1040 (Pa.Super. 2001),

this court again found sufficient evidence to support a conviction of PWID.

The police arrested the defendant after they found crack cocaine on his

person during a consensual search.       Id. at 1041.   The police asked to

conduct the search because the defendant was in a high-crime drug area.

Id.    The police found 1.8 grams of crack cocaine divided among

nine baggies.   Id.   The police also found $86 in cash and a beeper.    Id.

They did not find any paraphernalia in the defendant’s possession.       Id.

Additionally, a police officer testified as an expert that the possession was




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with intent to distribute.      Id.    The totality of these circumstances was

sufficient to support the conviction. Id.

      Appellant also contends that the lack of expert testimony rendered the

evidence insufficient.     Expert testimony is not necessary to support a

conviction when the facts established at trial proved beyond a reasonable

doubt that defendant was guilty of each and every element of the crime

charged. See Commonwealth v. Harper, 611 A.2d 1211, 1217 (Pa.Super.

1992) (sufficiency question is determined by the evidence on the record, not

supposed “missing” evidence).         Here, expert testimony was not necessary

because the Commonwealth had already presented sufficient evidence to

establish appellant’s guilt beyond a reasonable doubt through the eyewitness

testimony of Officer Perez.

      Because the evidence was sufficient to sustain appellant’s conviction,

he is not entitled to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/20/2015




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