J-S16019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 ELIJAH GIBBS                           :
                                        :
                   Appellant            :   No. 1022 MDA 2018

        Appeal from the Judgment of Sentence Entered May 9, 2018
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0004724-2017


BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                          FILED APRIL 09, 2019

     Elijah Gibbs (Appellant) appeals from the judgment of sentence imposed

after the trial court convicted him of possession with intent to deliver a

controlled substance (PWID), 35 P.S. § 780-113(a)(30). We affirm.

     The record reflects that during the summer of 2017, Harrisburg Bureau

of Police Detective Nicholas Ishman, with the assistance law enforcement

colleagues and a confidential informant (CI), investigated the sale of crack

cocaine. The CI purchased crack cocaine from Appellant on three occasions;

thereafter, Detective Ishman applied for and received a warrant to search a

residence identified as 1935 Whitehall Street. The search yielded “a large

amount of cocaine, a handgun, drug paraphernalia, and I.D. card with

[Appellant’s name]; an Access card with [Appellant’s name]; a photo with
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[Appellant]; and [$1,300.00 in] U.S. currency.”        N.T., 3/14/18, at 64-65.

Appellant was arrested and appeared for a bench trial on March 14, 2018.

        The trial court rendered its guilty verdict following trial on March 14,

2018.     On May 9, 2018, the trial court sentenced Appellant to 54 to 108

months of incarceration. Appellant filed a timely post-sentence motion which

the trial court denied on May 22, 2018. Appellant filed a notice of appeal on

June 20, 2018.       Both Appellant and the trial court have complied with

Pennsylvania Rule of Appellate Procedure 1925.

        On appeal, Appellant presents two issues for our review:

        WHETHER THE EVIDENCE AT TRIAL WAS INSUFFICIENT TO
        PROVE BEYOND A REASONABLE DOUBT THAT THE APPELLANT
        WAS GUILTY OF UNLAWFULLY POSSESSING A CONTROLLED
        SUBSTANCE WITH INTENT TO DELIVER?

        WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT’S
        POST-SENTENCE MOTION WHERE THE VERDICT WAS AGAINST
        THE WEIGHT OF THE EVIDENCE SO AS TO SHOCK THE SENSE OF
        JUSTICE WHERE THE COMMONWEALTH FAILED TO PROVE
        BEYOND A REASONABLE DOUBT THAT THE APPELLANT DID
        POSSESS A CONTROLLED SUBSTANCE?

Appellant’s Brief at 4.

        In his first issue, Appellant argues that the evidence was insufficient to

support his conviction because “the Commonwealth failed to prove that

Appellant had any connection to the 1935 Whitehall Street address in 2017.”

Appellant’s Brief at 14. Appellant asserts that “there were multiple people

living at the address . . . who also had access to the room [where the crack




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cocaine was recovered] . . . and could have placed contraband in the room as

well.” Id. at 16.

      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. Roberts, 133 A.3d 759, 767 (Pa. Super. 2016).

      Instantly, the trial court convicted Appellant of PWID pursuant to 35 P.S.

§ 780-113(a)(30), which prohibits “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)(30). A delivery means “the

actual, constructive, or attempted transfer from one person to another of a

controlled substance, other drug, device or cosmetic whether or not there is

an agency relationship.” 35 P.S. § 780–102.

      To sustain a conviction for PWID, “the Commonwealth must prove both

the possession of the controlled substance and the intent to deliver the



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controlled substance.” Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa.

Super. 2008) (citations omitted). It is well settled that “[i]n narcotics

possession cases, the Commonwealth may meet its burden by showing actual,

constructive,   or   joint   constructive   possession   of   the   contraband.”

Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa. Super. 2014) (en banc)

(quotation and quotation marks omitted). In this case, the crack cocaine was

not recovered from Appellant’s person, such that the Commonwealth had to

establish Appellant’s constructive possession. Roberts, 133 A.3d at 767.

      Upon review, we are not persuaded by Appellant’s sufficiency argument.

Viewing the evidence in the light most favorable to the Commonwealth as the

verdict winner, and recognizing the trial court’s province as fact-finder, we

discern no error in the trial court’s determination that “it is clear that

[Appellant] possessed the controlled substance with intent to deliver.” Trial

Court Opinion, 10/17/18, at 6. The trial court acknowledged:

             [Appellant] took the stand and testified that he never
      possessed or sold any of the drugs in question. He stated that the
      only reason for him entering and exiting the house at 1935
      Whitehall was because he kept many of his possessions there. He
      testified that he did not live there but went back and forth; he was
      staying at his girlfriend’s house or other friends’ houses as he did
      not have a permanent residence.

Id. at 5. However, the trial court rejected Appellant’s testimony, and credited

the testimony presented by the Commonwealth, reasoning:

      The testimony established that on three different dates
      [Appellant] engaged with the CI to set up a drug transaction in
      the area of 20th and Market Streets in Harrisburg. On these
      occasions, an exchange took place on David Alley, whereby the CI

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      would meet [Appellant] with $75.00/$80.00 and would return
      from the alley with a corner tie of crack cocaine.         Video
      surveillance was conducted by several law enforcement officers.
      The videos showed occasions where [Appellant] was leaving and
      returning to the Whitehall Street residence, showed [Appellant]
      walking on 20th Street, turning onto David Alley, and making a
      hand-to-hand exchange with the CI on David Alley. The items
      found in the home [Appellant] was seen entering and exiting
      establish a purpose to deliver. Four bags of crack cocaine,
      $1,300.00 in cash, a scale, and packaging materials are not
      consistent with mere personal use, and expert testimony revealed
      that the crack cocaine was possessed with intent to deliver.
      Clearly this is not a case where the evidence is so weak and
      inconclusive such as to warrant relief. On the contrary, the
      Commonwealth has plainly satisfied the elements of 35 P.S. §
      780-113(a)(30).

Id. at 6. The trial court’s rationale is supported by both the record and law.

Thus, we find no merit to Appellant’s first issue challenging the sufficiency of

the evidence.

      In his second issue, Appellant argues that the trial court erred in denying

his post-sentence motion challenging the verdict based on the weight of the

evidence.   Appellant’s Brief at 16.     Similar to his sufficiency argument,

Appellant asserts, “In this case, the verdict was so contrary to the weight of

the evidence as to shock one’s sense of justice, specifically where there was

no evidence Appellant resided at 1935 Whitehall Street.”         Id. at 16-17.

Appellant states that the three controlled buys “are red herrings,” and “took

place within a month of the search warrant being executed. However, all of

the items found in the alleged residence of Appellant were over a year old.”

Id. at 17-18. This argument does not warrant relief.

      We have explained:

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           The essence of appellate review for a weight claim
           appears to lie in ensuring that the trial court’s decision
           has record support. Where the record adequately
           supports the trial court, the trial court has acted within
           the limits of its discretion.

                                     ***

           A motion for a new trial based on a claim that the
           verdict is against the weight of the evidence is
           addressed to the discretion of the trial court. A new
           trial should not be granted because of a mere conflict
           in the testimony or because the judge on the same
           facts could have arrived at a different conclusion.
           Rather, the role of the trial judge is to determine that
           notwithstanding all the facts, certain facts are so
           clearly of greater weight that to ignore them or to give
           them equal weight with all the facts is to deny justice.

                                     ***

           An appellate court’s standard of review when
           presented with a weight of the evidence claim is
           distinct from the standard of review applied by the
           trial court. 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.

     Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1054–55
     (2013) (citations and quotation omitted). In order for an appellant
     to prevail on a challenge to the weight of the evidence, “the
     evidence must be so tenuous, vague and uncertain that the verdict
     shocks the conscience of the court.” Commonwealth v.
     Sullivan, 820 A.2d 795, 806 (Pa.Super.2003) (citation omitted).

Roberts, 133 A.3d at 769–70.

     Consistent with the foregoing, we find no error in the trial court’s

determination that Appellant’s weight claim is “devoid of merit.” Trial Court

Opinion, 10/17/18, at 7. The trial court detailed the evidence presented at


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trial, noted that it sat as the finder of fact, and “found the testimony of the

Commonwealth’s witnesses to be credible with respect to both possession and

intent to deliver,” and that “nothing in the verdict . . . shocks one’s sense of

justice.” Id. Accordingly, Appellant’s weight claim lacks merit

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/09/2019




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