J-S49012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HORATIO OMAR ROBERSON                      :
                                               :
                       Appellant               :   No. 1762 MDA 2017

            Appeal from the Judgment of Sentence October 24, 2017
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0001269-2016


BEFORE:      SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:                             FILED OCTOBER 30, 2018

        Horatio Omar Roberson (“Appellant”) appeals from the judgment of

sentence entered on October 24, 2017, following his conviction by jury of

delivery of a controlled substance.1 After careful review, we affirm.

        The trial court set forth the following factual and procedural history:

        On or about the afternoon of January 20, 2016, Detective Russell
        Schauer was directing a drug investigation in the City of York.
        (N.T., September 6, 2017, pp. 16-17). Detective Schauer met
        with a confidential informant, who informed the Detective that he
        could purchase cocaine from an individual. Id. at 17. Detective
        Schauer directed the confidential informant to call the phone
        number of this individual and request to make a purchase of some
        cocaine. Id. at 17-18. In the presence of the Detective, the
        confidential informant contacted this individual at around 1:00
        p.m. and ordered the cocaine. Id. at 17-19. Detective Schauer
        viewed and listened to the phone conversation in his presence and
        was able to hear the voice of the individual that the confidential
        informant had called and asked to purchase cocaine from. Id.

____________________________________________


1   35 P.S. § 780-113(a)(1).
____________________________________
* Former Justice specially assigned to the Superior Court.
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     Detective Schauer identified the voice as male and heard         the
     individual on the other end of the phone saying he could get     the
     cocaine and would meet the confidential informant. Id. After     the
     conversation, Detective Schauer directed the informant            to
     consummate the transaction. Id.

           Prior to the meeting, and to protect the integrity of the
     investigation, Detective Schauer searched the confidential
     informant on their person and also searched the confidential
     informant’s vehicle to make sure the confidential informant was
     not carrying any drugs, cash, or weapons. Id. at 20. Detective
     Schauer did not find any of those items on the confidential
     informant’s person or in their vehicle. Id. Detective Schauer then
     provided the confidential informant $200 of official funds to use
     for the purchase of the cocaine. Id.

            Following the search, the confidential informant left in their
     own vehicle and Detective Schauer followed the informant to West
     Jackson at South Beaver Street in York City. Id. at 21. Officer
     Michele Miller, also of the York County Drug Task Force, was also
     at this location providing surveillance and assisting in the drug
     investigation. Id. at 21-22, 46-47. Detective Schauer and Officer
     Miller then observed [Appellant] arrive in a silver SUV, identified
     as a Nissan Murano, and entered the informant’s vehicle. Id. The
     vehicle with the informant and [Appellant] inside then drove to
     the McDonald’s on South George Street where [Appellant] got out
     of the informant’s vehicle and went inside the McDonald’s. Id. at
     21-22. [Appellant] came out of the McDonald’s a few minutes
     later, got back inside the informant’s vehicle, and the officers then
     followed the vehicle back to West Jackson and South Beaver
     Street. Id. [Appellant] exited the vehicle and got back into the
     silver Murano. Id. The surveillance team, including Officer Miller,
     followed [Appellant] back to a house on the 1400 block of West
     Princess Street. Id. Officer Miller observed [Appellant] exit his
     vehicle at 1540 West Princess Street. Id. at 49.

            After the informant and [Appellant] separated, Detective
     Schauer followed the informant to another location where he
     made contact with the informant. Id. at 23. The informant turned
     over a knotted bag to Detective Schauer, who conducted a field
     test that returned a positive result for cocaine. Id. The bag was
     later sent to the Pennsylvania State Police Bureau of Forensic
     Services Harrisburg Regional Laboratory that issued a report on


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     May 13, 2016 stating that the bag contained cocaine. Id. at 25;
     (See also Commonwealth’s Exhibit #2).

           On January 21, 2016, Detective Schauer observed
     [Appellant] walking westbound on West Market Street at Pershing
     and took him into custody. Id. at 26. Detective Schauer heard
     [Appellant’s] voice and identified it as the voice of the individual
     the confidential informant called to order the cocaine. Id. When
     Detective Schauer took [Appellant] into custody, he recovered a
     ZTE cell phone with a black case from [Appellant’s] person. Id. at
     27-28. Detective Schauer recalled that the confidential informant
     used the number 267-597-9132 to contact the individual about
     the purchase of cocaine. Id. Detective Schauer pulled out his own
     phone, called the number that the confidential informant had used
     the previous day, and while watching the phone recovered from
     [Appellant], he saw his own number appear on [Appellant’s] cell
     phone. Id. Based on the observations of Detective Schauer and
     Officer Miller, charges for delivery of cocaine were filed against
     [Appellant]. Id. at 34.

           A two day jury trial took place from September 5, 2017 to
     September 6, 2017, where [Appellant] was found guilty of
     manufacture, delivery, or possession with intent to manufacture
     or deliver. On October 24, 2017, we sentenced [Appellant] to a
     term of incarceration of not less than one year minus one day to
     not more than two years minus two days in the York County
     Prison, followed by a consecutive sentence of two years’
     probation.   We also approved [Appellant] for Work Release
     provided that he complies with the guidelines of the Work Release
     Program.

           On November 2, 2017, [Appellant], through counsel, filed a
     post-sentence motion asking for a judgment of acquittal and a
     motion for bail pending appeal. On November 3, 2017, the
     Honorable Judge Maria Musti Cook denied [Appellant’s] post-
     sentence motion for acquittal and scheduled a hearing for
     November 28, 2017 to determine to consider [sic][Appellant’s]
     motion for bail pending appeal.         On November 15, 2017,
     [Appellant], through counsel, filed a Notice of Appeal to the
     Superior Court. On November 16, 2017, we issued a concise
     statement order. On November 28, 2017, the Honorable Judge
     Maria Musti Cook granted [Appellant’s] motion for bail pending
     appeal, setting bail at $ 25,000 with supervised conditions and the
     requirement that [Appellant] have a home plan before release.

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      On November 28, 2017, [Appellant] filed his 1925(b) Statement
      of Matters Complained of on Appeal.

Trial Court Opinion, 3/15/18, at 1–5 (footnote omitted). The trial court filed

its Rule 1925(a) opinion on March 15, 2018.

      Appellant presents a single question for our review:

      I. WHETHER THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE
         JURY VERDICT AS TO ALL CHARGES IN THAT THERE WAS NO
         INDEPENDENT    OR    CORROBORATING     WITNESS    IN
         CONJUNCTION WITH TESTIMONY OF THE POLICE THAT
         APPELLANT SOLD COCAINE TO A CONFIDENTIAL INFORMANT.

Appellant’s Brief at 4.

      The standard we apply in reviewing the sufficiency of the 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 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 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 finder 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. Thomas, __ A.3d __, 2018 PA Super 221, *5 (Pa. Super.

filed August 3, 2018) (emphasis added; citation omitted). “As an appellate

court, we do not assess credibility nor do we assign weight to any of the



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testimony of record.” Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa.

Super. 2014). Further, we note, “circumstantial evidence is reviewed by the

same standard as direct evidence—a decision by the trial court will be affirmed

so long as the combination of the evidence links the accused to the crime

beyond a reasonable doubt.” Commonwealth v. Bricker, 882 A.2d 1008,

1014 (Pa. Super. 2005) (quotation omitted).

      In support of his appeal, Appellant avers that the Commonwealth failed

to prove that he committed the crime of delivery of a controlled substance

beyond a reasonable doubt. Appellant’s Brief at 8. In order for a defendant

to be liable for delivery of a controlled substance, there must be evidence that

he knowingly made an actual, constructive, or attempted transfer of a

controlled substance to another person without the legal authority to do so.

35 P.S. § 780-102 (b); Commonwealth v. Metzger, 372 A.2d 20, 22 (Pa.

Super. 1977).    In the instant case, Appellant alleges that the evidence is

insufficient because the confidential informant (“CI”) was tainted due to the

fact that “the more information and arrests they give the police obviously

benefits the CI,” the CI was not thoroughly searched before making the

controlled buy, the CI was in the car with Appellant for one-half hour before

making the controlled buy, and the buy money was not recovered from

Appellant when he was arrested the following day.       Appellant’s Brief at 9.

Appellant further alleges the evidence was not sufficient because no officer or

detective saw the transaction, there was no photographic evidence of the

transaction, there was no evidence on Appellant’s phone arranging the drug

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delivery, Appellant’s fingerprints were not found on the baggie of cocaine, and

neither drugs nor the buy money was found in Appellant’s car when he was

arrested the next day. Id. at 10.

      In its 1925(a) opinion, the trial court provided the following analysis of

the circumstantial evidence presented at trial:

             Based on the testimony of Detective Schauer and Officer
      Miller, we find that the Commonwealth has presented sufficient
      circumstantial evidence that the combination of all the facts would
      allow the jury to find [Appellant] guilty beyond a reasonable doubt
      without having to hear independent or corroborating witness
      testimony. The evidence demonstrates that the confidential
      informant called [Appellant] who offered to bring the confidential
      informant some cocaine. Before the confidential informant met
      [Appellant], Detective Schauer searched the informant’s person
      and car to make sure they [did not] have drugs or money and the
      search yielded none of those items.
            The confidential informant and [Appellant] met on Jackson
      and Beaver Street and then drove to a parking lot and then the
      McDonald’s on South George Street. There was never a time when
      the confidential informant and [Appellant] were out of the officers’
      sight from the time the confidential informant picked up
      [Appellant] to when the confidential informant dropped off
      [Appellant]. There is also no evidence that any other individuals
      other than [Appellant] and Detective Schauer came in contact with
      the confidential informant during this investigation.
            When the confidential informant returned to Detective
      Schauer after [Appellant] left the area, the informant had a baggie
      that contained cocaine. Detective Schauer then performed a
      second search of the confidential informant and their vehicle to
      search for any additional drugs or money and the search yielded
      none of those items when [Appellant] was arrested the next day,
      Detective Schauer recovered a cell phone that used the same
      number that the confidential informant called the previous day to
      order the cocaine. Taking all of these facts together and all
      reasonable     inferences     therefrom,      the   Commonwealth
      demonstrated that (1) [Appellant] offered over the telephone to
      provide the informant with cocaine and had cocaine in his


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     possession when he met the confidential informant in the
     informant’ s vehicle; (2) [Appellant] delivered that cocaine to the
     confidential informant by giving it to the informant sometime in
     between the meeting point at Jackson and Beaver Streets, the
     parking lot, the South George Street McDonald’s, or on the return
     to Jackson and Beaver Streets; and (3) the lab report indicated
     that the substance in the baggie that the confidential informant
     brought back to Detective Schauer was cocaine.

Trial Court Opinion, 3/15/18, at 11–13 (citations omitted).

     We agree with the trial court’s analysis. Indeed, it is well established

that the Commonwealth may prove its case using only circumstantial

evidence. Bricker, 882 A.2d at 1014. To the extent Appellant argues the

evidence was not sufficient because, inter alia, no officer or detective

witnessed the transaction or there were no photographs of the same, such a

showing is not required to sustain a conviction. Here, the jury believed the

evidence put forth by the Commonwealth and found Appellant guilty beyond

a reasonable doubt.     The testimony provided by the Commonwealth’s

witnesses established the elements of delivery of a controlled substance and

identified Appellant as the person who committed the crime.       Following a

review of the record, we find that the facts of this case and evidence

presented, when viewed in the light most favorable to the Commonwealth,

were sufficient to show that Appellant committed the crime of delivery of a

controlled substance.




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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2018




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