J-S18020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

NAFIS ANTUAN FAISON

                            Appellant                No. 1194 MDA 2015


             Appeal from the Judgment of Sentence April 22, 2015
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0000147-2014


COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

NAFIS ANTUAN FAISON

                            Appellant                No. 1442 MDA 2015


             Appeal from the Judgment of Sentence April 27, 2015
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0001495-2014


BEFORE: BOWES, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                                 FILED MAY 09, 2016

        Nafis Antuan Faison appeals from the judgments of sentence imposed

by the Court of Common Pleas of Lycoming County following two separate


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S18020-16



trials for drug related offenses.1 After careful review of both, we affirm as

follows:

                              Case at 1194 MDA 2015

        Evidence introduced at trial established that on four occasions between

July 7, 2009, and August 21, 2009, a confidential informant (CI) purchased

heroin from Faison in Williamsport, Pennsylvania. Before each purchase, she

would call Faison on his cell phone to arrange the exchange.

        Although the transactions occurred in the summer of 2009, Faison was

not arrested until December 12, 2013. He was released on bail on July 14,

2014.

        On February 23, 2015, a jury convicted Faison of eight counts of

possession with intent to deliver (PWID),2 four counts of possession,3 and

four counts of criminal use of a communication facility4

        On April 22, 2015, the trial court imposed an aggregate sentence of

twenty-eight months’ to eight years’ incarceration, but noted that because

Faison was RRRI eligible, the sentence was reduced to 21 months.            By

amended order dated June 25, 2015, the court stated that the underlying

____________________________________________


1
 On September 28, 2015, this Court consolidated the appeals sua sponte.
See Pa.R.A.P. 513.
2
    35 P.S. § 780-113(a)(30).
3
    35 P.S. § 780-113(a)(16).
4
    18 Pa.C.S. § 7512(a).


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sentence would remain the same, but it was correcting a miscalculation in

the computation of the RRRI eligibility, which should be one year, eleven

months and ten days rather than 21 months.

      This   timely   appeal   follows,    in   which   Faison   asserts   that   the

Commonwealth failed to present sufficient evidence to prove beyond a

reasonable doubt that on four separate occasions he committed the offenses

set forth above.

      As a general matter, our standard of review of sufficiency claims
      requires that we evaluate the record in the light most favorable
      to the verdict winner giving the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence. Evidence
      will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. The facts and circumstances established
      by the Commonwealth need not be absolutely incompatible with
      the defendant’s innocence. Any doubt 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. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)

(citation omitted).

      Faison asserts that the Commonwealth failed to establish beyond a

reasonable doubt that he was guilty of possession and PWID, which are

defined, in relevant part, as follows:

      §780-113 Prohibited Acts
                                            ...

      (a)(16)     Knowingly or intentionally possessing a controlled
      substance . . , by a person not registered under this act[.]

                                          ...
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     (a)(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[.]

35 P.S. § 780-113(a)(16),(30).

     “In drug possession cases, the Commonwealth must prove that a

defendant had knowing or intentional possession of controlled substance.”

Commonwealth v. Valette, 613 A.2d 548, 549-50 (Pa. 1992).

     “To convict a person of PWID, the Commonwealth must prove beyond

a reasonable doubt that the defendant possessed a controlled substance and

did so with the intent to deliver it.” Commonwealth v. Bricker, 882 A.2d

1008, 1015 (Pa. 2005). “In determining whether there is sufficient evidence

to support a PWID conviction, all facts and circumstances surrounding the

possession are relevant, and the Commonwealth may establish the essential

elements of the crime wholly by circumstantial evidence.” Id. “Factors to

consider in determining whether the drugs were possessed with the intent to

deliver include the particular method of packaging, the form of the drug, and

the behavior of the defendant.” Commonwealth v. Kirkland, 831 A.2d

607, 611 (Pa. Super. 2003).

     Faison   also   challenges   his    conviction   for   criminal   use   of   a

communication facility, which is defined in the Crimes Code, as follows:

     § 7512. Criminal use of communication facility

     (a)    Offense defined. – A person commits a felony of the
           third degree if that person uses a communications facility
           to commit, cause or facilitate the commission or the
           attempt thereof of any crime which constitutes a felony
           under this title or the act of April 14, 1972 (P.L. 233, No.
           64), known as The Controlled Substance, Drug, Device and
           Cosmetic Act. Every instance where the communication
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               facility is utilized constitutes a separate offense under this
               section.

18 Pa.C.S. § 7512(a).

      Where the record establishes that defendant engaged in telephone

conversations with a CI and those telephone conversations facilitated a

controlled buy between the defendant and the CI, the evidence is sufficient

to   sustain    a   conviction   for   criminal   use   of   communication   facility.

Commonwealth v. Moss, 852 A.2d 384 (Pa. Super. 2004).

      Here, the CI testified that on four occasions, while in the presence of a

state trooper, she called Faison on his cell phone and arranged to meet him

to purchase heroin.      Each time she would pick Faison up at a designated

spot and drive a few blocks where the exchange would occur in the CI’s

vehicle. Faison would then exit the CI’s vehicle and she would call a trooper

to inform him that the transaction was completed.              Troopers would then

escort the CI’s vehicle to the barracks where the CI would hand over the

heroin.

      Although no state troopers actually witnessed the exchange of money

for heroin, they were in the general area of the transactions and kept the

CI’s vehicle under surveillance.

      At trial, the parties stipulated that laboratory analysis of packets

obtained on four dates contained the following amounts of heroin:                 .21

grams; .84 grams; .31 grams; and .39 grams.

      The jury heard testimony that the CI pled guilty to theft by deception,

forgery and theft by unlawful taking in 2008.            The CI also testified that


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J-S18020-16



during the time when she was making the controlled heroin buys, she was

on probation and using crack cocaine. She further testified that the troopers

would pay her in cash after she returned to the barracks with the heroin she

purchased from Faison. Nevertheless, it is clear that the jury found the CI

credible with respect to the offenses charged.        It is well settled that “the

determination of the credibility of a witness is within the exclusive province

of the jury.” Commonwealth v. Crawford, 718 A.2d 768, 772 (Pa. 1998).

       The CI’s testimony, which was corroborated by several state troopers,

was sufficient to establish that on four occasions, Faison sold heroin to the

CI after using his cell phone to arrange the sales.

       Accordingly, no relief is due on his challenges to the sufficiency of the

evidence supporting his convictions.5

                              Case at 1442 MDA 2015

       On August 6, 2014, police saw Faison, while released on bail, leave an

apartment where a confidential informant recently purchased crack cocaine.

Corporal Jeffrey Paulhamus of the Williamsport Bureau of Police stopped

Faison in a nearby parking lot.            A pat down revealed that Faison had

____________________________________________


5
  In his summary of the argument, Faison states: “The trial court erred
when the court denied [Faison’s] motion for a mistrial since the
Commonwealth failed to disclose the criminal record of the confidential
informant until the morning of trial.” Appellant’s Brief, at 15. Faison has not
included this issue in his statement of questions involved or in the argument
section of his brief. Accordingly, the issue is waived. See Giant Markets,
Inc. v. Sigma Marketing Systems, Inc., 459 A.2d 765, 771 n.2 (Pa.
Super. 1983).


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$503.00 in cash, mostly in $20.00 bills. Corporal Paulhamus took Faison to

City Hall where he subjected Faison to an additional search that revealed a

plastic sandwich bag containing 6.89 grams of cocaine tied to the top button

of Faison’s pants.

        Faison was charged with PWID cocaine, possession of cocaine and

possession of drug paraphernalia.6 On April 20, 2015, a jury found Faison

guilty of these offenses. On April 27, 2015, the court sentenced Faison to

twenty-two to forty-four months’ incarceration followed by five years’

probation.

        This timely appeal followed, in which Faison raises the following issues

for our review:

        1. Did the trial court err when it denied [Faison’s] motion to
           suppress when officers lacked reasonable suspicion or
           probable cause to lawfully detain or arrest [Faison], thereby
           violating his rights against unreasonable searches and
           seizures guaranteed by both Article 1, § 8 of the Pennsylvania
           Constitution and the Fourth Amendment to the United States
           Constitution?

        2. Did the Commonwealth fail to present sufficient evidence at
           trial to prove beyond a reasonable doubt that [Faison]
           violated 35 P.S. § 780-113(a)(30), the manufacture, delivery,
           or possession with intent to deliver a controlled substance,
           when it failed to present sufficient evidence that [Faison] had
           the intent to deliver?

Appellant’s Brief, at 11.




____________________________________________


6
    35 Pa.C.S. 780-113(a)(32).


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        Faison challenges the trial court’s denial of his motion to suppress.

Our standard for reviewing an order denying a motion to suppress is as

follows:

        We are limited to determining whether the lower court’s factual
        findings are supported by the record and whether the legal
        conclusions drawn therefrom are correct. We may consider the
        evidence of the witnesses offered by the Commonwealth, as
        verdict winner, and only so much of the evidence presented by
        defense that is not contradicted when examined in the context of
        the record as a whole. We are bound by facts supported by the
        record and may reverse only if the legal conclusions reached by
        the court were erroneous.

Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa. Super. 2006).

        Here, the trial court concluded that Faison was “initially subject to an

investigative detention, not a custodial one.” Trial Court Opinion, 10/1/15,

at 2.      “An ‘investigative detention’ must be supported by a reasonable

suspicion; it subjects a suspect to a stop and a period of detention, but does

not involve such coercive conditions as to constitute the functional

equivalent of an arrest.”     Commonwealth v. Ellis, 662 A.2d 1043, 1047

(Pa. 1995) (citations omitted).

        Reasonable suspicion is a less stringent standard than probable
        cause necessary to effectuate a warrantless arrest, and depends
        on the information possessed by police and its degree of
        reliability in the totality of the circumstances. In order to justify
        the seizure, a police officer must be able to point to specific and
        articulable facts leading him to suspect criminal activity is afoot.
        In assessing the totality of the circumstances, courts must also
        afford due weight to the specific, reasonable inferences drawn
        from the facts in light of the officer's experience and
        acknowledge that innocent facts, when considered collectively,
        may permit the investigative detention. The determination of
        whether an officer had reasonable suspicion that criminality was
        afoot so as to justify an investigatory detention is an objective

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      one, which must be considered in light of the totality of the
      circumstances.

Commonwealth v. Holmes, 14 A.3d 89, 95-96 (Pa. 2011) (quotations and

citations omitted).

      With respect to the existence of reasonable suspicion, the trial court

noted:

      Here, police reasonably suspected that [Faison] was engaged in
      the sale of controlled substances.     [Detective Alberto] Diaz
      observed a [woman] exit the apartment less than two minutes
      after entering it. After the [woman] exited, [Randell] Peterson
      stepped out of the apartment and looked around. Diaz testified
      that it looked like a drug deal occurred. [Faison] was in the
      apartment during the suspected drug deal. Later, a CI bought
      cocaine inside the apartment.       [Faison] was also in the
      apartment during this deal.

      After the CI deal, Diaz observed Peterson and [Faison] converse
      outside of the apartment. This shows an association between
      Peterson and [Faison]. Diaz later observed what he suspected
      was [Faison] handing currency to Peterson. The sale of cocaine
      to the CI, the presence of [Faison] during the sale, the
      movement of various people in and out of the apartment,
      [Faison’s] conversations with Peterson, and [Faison] handing
      money to Peterson provided the police with reasonable suspicion
      that [Faison] was engaged in the sale of drugs.

Trial Court Opinion, 1/14/15, at 4-5.

      Based on the totality of the circumstances, see Holmes, supra, we

cannot say that that trial court’s conclusions were erroneous. See Hughes,

supra.   Accordingly, the trial court properly determined that police had

reasonable suspicion to detain Faison.

      Faison also asserts that the Commonwealth failed to establish beyond

a reasonable doubt that he was guilty of PWID.



                                    -9-
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      The trial court summarized the evidence supporting the PWID

conviction as follows:

      [Officer Justin] Snyder, [Corporal Jeffrey] Paulhamus, and
      [Detective John Ferster] testified that [Faison] did not appear to
      be under the influence of drugs when they came into contact
      with him on August 6, 2014. Officer [Jeremy] Brown qualified as
      an expert in the field of possession and distribution of illegal
      narcotics. In Brown’s opinion, the cocaine was intended for
      delivery. The following circumstances led him to that opinion.
      [Faison] had a burner application on his phone. Seven grams of
      cocaine is a large quantity of cocaine, and drug users usually
      have smaller amounts. The cocaine was worth $300 to $400
      and could have been worth more if it was divided and sold in
      smaller amounts. [Faison] did not have personal use drug
      paraphernalia. He did have bills, which are commonly used as
      drug paraphernalia for cocaine, but none of the bills looked as if
      they had been used to ingest cocaine. Users put drugs in their
      pockets, but cocaine was found in [Faison’s] crotch. Users are
      broke, but [Faison] had $503.00.

Trial Court Opinion, 8/14/15, at 6.

      In light of this evidence, the Commonwealth established that Faison

possessed cocaine with the intent to deliver. See Bricker, supra.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/2016




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