J-S26020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GRAYLING SANDERS

                            Appellant                 No. 2159 EDA 2015


      Appeal from the Judgment of Sentence Entered December 11, 2014
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0004906-2014


BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                                FILED JUNE 20, 2016

        Appellant, Grayling Sanders, appeals from the trial court’s December

11, 2014 judgment of sentence imposing nine to eighteen months of

incarceration for possession with intent to deliver a controlled substance

(“PWID”), 35 Pa.C.S.A § 780-113(a)(30).1 We affirm.

        The trial court summarized the pertinent facts:

              On April 9, 2014, Police Officer Robert Killman conducted
        surveillance of suspected narcotics sales on the 2800 block of C
        Street in Philadelphia, PA for about an hour, beginning around
        10:00 p.m. Set upon the roof of an abandoned building, Officer
        Killman had an unobstructed view of [Appellant], who stood
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The trial court found Appellant guilty of knowing possession of a controlled
substance (35 Pa.C.S.A. § 780-113(a)(16)), but imposed no further penalty
for that conviction.
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      about a half block away from him, wearing a black hat, black
      hoodie, and black pants.

             Officer Killman observed three individuals approach
      [Appellant] one after another, each engaging in brief
      conversation and a hand-to-hand transaction with [Appellant]
      before leaving the area. Officer Killman sent flash information
      regarding each suspected buyer to backup officers immediately
      following the departure of each suspect. Officer Vandermay
      stopped and arrested the first buyer on the 2700 block of B
      Street and recovered five clear Ziploc packets which were
      stamped with a red devil and contained crack cocaine. Officer
      Hunter stopped the second buyer in a gold Toyota on the 2400
      block of Kensington Avenue, recovering one clear Ziploc packet
      stamped ‘Edge,’ containing heroin. Officer Walsh stopped and
      arrested the third buyer on the 2800 block of Ormes Street and
      recovered two clear Ziploc packets stamped ‘Edge,’ containing
      heroin. After the third hand-to-hand transaction, [Appellant] left
      the area for approximately ten minutes before returning with a
      plastic food container.

             Upon [Appellant’s] return to the surveillance area, Officer
      Crown arrested him on the 300 block of Somerset Street and
      recovered ten dollars. [Appellant] was wearing a blue jacket,
      black hat, black hoodie, black pants, and black boots at the time
      of his arrest.

Trial Court Opinion, 8/6/2015, at 1-2.

      At the conclusion of an October 7, 2014 bench trial, the trial court

found Appellant guilty of PWID and knowing possession of a controlled

substance.    The trial court imposed the aforementioned sentence on

December 11, 2014. Appellant filed a post-sentence motion on December

17, 2014, which the trial court denied on January 12, 2015. Appellant filed

this timely appeal on February 2, 2015. He challenges the sufficiency and

weight of the evidence in support of his convictions.




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     We review a challenge to the sufficiency of the evidence according to

the following standard:

           When evaluating a sufficiency claim, our standard is
     whether, viewing all the evidence and reasonable inferences in
     the light most favorable to the Commonwealth, the factfinder
     reasonably could have determined that each element of the
     crime was established beyond a reasonable doubt. This Court
     considers all the evidence admitted, without regard to any claim
     that some of the evidence was wrongly allowed. We do not
     weigh the evidence or make credibility determinations.
     Moreover, any doubts concerning a defendant's guilt were to be
     resolved by the factfinder unless the evidence was so weak and
     inconclusive that no probability of fact could be drawn from that
     evidence.

Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010), appeal

denied, 29 A.3d 796 (Pa. 2011).

     The Controlled Substances Act defines Appellant’s offenses as follows:

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

                                   [***]

           (16) Knowingly or intentionally possessing a controlled or
     counterfeit substance by a person not registered under this act,
     or a practitioner not registered or licensed by the appropriate
     State board, unless the substance was obtained directly from, or
     pursuant to, a valid prescription order or order of a practitioner,
     or except as otherwise authorized by this act.

                                   [***]

           (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.

35 Pa.C.S.A. § 780-113(a)(16), (30).

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      Appellant argues that Officer Killman incorrectly identified Appellant as

the perpetrator. He offers three factual bases for this assertion: Appellant

wore a blue jacket at the time of his arrest; one of the buyers had cocaine

rather than heroin, and the cocaine packaging was dissimilar to the heroin

packaging; and the officers found only $10.00 on Appellant’s person when

they arrested him, even though the street value of the cocaine and heroin

was approximately $55.00.

      None of the alleged factual discrepancies warrants relief on a

sufficiency of the evidence argument. At trial, Officer Killman unequivocally

identified Appellant as the perpetrator. N.T. Trial, 10/17/14, at 9, 14, 20.

Indeed, the following exchange occurred during defense counsel’s cross

examination of Officer Killman:

            Q.    Were you certain this was the right guy?

            A.    Yes.

Id. at 20. The trial court was entitled to credit Officer Killman’s testimony,

and Officer Killman’s testimony is sufficient to identify Appellant as the

perpetrator. The dissimilarity among the drugs and packaging, Appellant’s

possession of only $10.00 at his arrest, and the blue jacket are relevant to

the weight, rather than sufficiency, of the evidence. Appellant’s challenge to

the sufficiency of the evidence fails.

      We next consider Appellant’s challenge to the weight of the evidence.

            A motion for a new trial alleging that the verdict was
      against the weight of the evidence is addressed to the discretion


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      of the trial court. [. . .] The finder of fact is free to believe all,
      part or none of the evidence and to determine the credibility of
      the witnesses. The trial court will award a new trial only when
      the jury’s verdict is so contrary to the evidence as to shock one’s
      sense of justice.

Commonwealth v. Keaton, 729 A.2d 529, 540-41 (Pa. 1999) (citations

omitted), cert. denied, 528 U.S. 1163 (2000).

             Appellate review of a weight claim is a review of the
      exercise of discretion, not of the underlying question of whether
      the verdict is against the weight of the evidence. 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. One of the least assailable reasons
      for granting or denying a new trial is the lower court’s conviction
      that the verdict was or was not against the weight of the
      evidence and that a new trial should be granted in the interest of
      justice.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000).

      Appellant believes the trial court’s verdict was against the weight of

the evidence because he was not wearing all black, as Officer Killman

observed, but had on a blue jacket when he was arrested. Also, he had only

$10.00 on his person despite selling drugs with a street value of $55.00 and

one of the buyers had cocaine whereas the other two had heroin.            As the

trial court noted, Appellant was out of Officer Killman’s view for ten minutes

before he returned to the scene and was arrested.         It is possible that he

spent money during that time or put the blue jacket on over his black

hoodie. All of Appellant’s clothing—the hoodie, a black hat, and black pants,

matched Officer Killman’s description.      Furthermore, the record does not


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foreclose the possibility that Appellant was selling packets of cocaine and

packets of heroin. We conclude the trial court acted well within its discretion

in denying Appellant’s motion for a new trial. Appellant’s argument fails.

      In summary, we have concluded that Appellant’s sufficiency and

weight of the evidence arguments lack merit.         We therefore affirm the

judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2016




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