J-A28029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MAURICE PRINCETON JOHNSON, SR.

                            Appellant                   No. 916 EDA 2014


          Appeal from the Judgment of Sentence of February 4, 2014
            In the Court of Common Pleas of Montgomery County
              Criminal Division at No.: CP-46-CR-0002971-2013


BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                          FILED DECEMBER 22, 2014

       Maurice Princeton Johnson, Sr. appeals from the judgment of sentence

entered February 4, 2014, following his jury conviction of possession with

intent to deliver (“PWID”)—oxycodone, PWID—alprazolam (Xanax), and

possession of drug paraphernalia.1 We affirm.

       The trial court set forth the underlying facts of this case as follows:

       On March 1, 2013, Detective Chad Cassel of the [Ambler]
       Borough Police Department executed a search warrant on a
       residence located at 27 Orange Avenue, Ambler, Montgomery
       County.     Upon entering the home, the detective observed
       [Johnson] in the front living room. As a result of the search,
       Detective Cassel recovered an unlabeled prescription bottle
       containing 33 smaller green pills together with 51 larger white
       pills, which were later confirmed to be Oxycodone, 10 milligrams
       and Oxycodone, 15 milligrams, respectively. This unmarked
       prescription bottle was found inside a jacket that was hanging up
____________________________________________


1
       See 35 P.S. § 780-113(a)(30), (32).
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         in arm’s reach of [Johnson]. The detective also located another
         unmarked pill container containing pink pills on the back porch of
         the residence, underneath a pile of clothes.         It was later
         confirmed that this prescription bottle contained 159 [Xanax]
         pills. Two cell phones, an iPhone and an HTC cellphone, were
         also located, for which search warrants were subsequently
         obtained.

         On November 13, 2013, a Suppression Hearing was held. After
         th[e trial] court stated on the record its findings of fact and
         conclusions of law, suppression was denied.           [Johnson]
         proceeded to a one-day jury trial on November 19, 2013.
         [Johnson] was found guilty of the aforementioned charges.
         Subsequently, on February 4, 2014, with the benefit of a
         presentence investigation and report, th[e trial] court imposed
         the following sentence. On the PWID Oxycodone conviction, th[e
         c]ourt imposed a sentence of 33 months’ to 10 years’
         imprisonment. On the PWID [Xanax] conviction, th[e c]ourt
         imposed a term of 1 ½ to 10 years’ imprisonment.
         Accordingly, [Johnson’s] aggregate sentence is [51] months’ to
         13 years’ imprisonment. A timely post-sentence motion was
         filed, raising a claim regarding the discretionary aspect[s] of
         sentencing. The post-sentence motion was denied on March 6,
         2014. This timely appeal followed.

Trial Court Opinion (“T.C.O.”), 4/21/2014, at 1-2.             Pursuant to the trial

court’s order, Johnson timely filed a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b) on April 8, 2014. The trial court

entered its Pa.R.A.P. 1925(a) opinion on April 21, 2014.

         Johnson raises one question for our review:               “Are [Johnson’s]

convictions for possession of a Schedule II or IV controlled substance with

intent    to   deliver   supported   by   legally-sufficient   evidence   where   the

Commonwealth failed to present any evidence whatsoever of [Johnson’s]

non-licensure to possess the particular Schedule II and IV controlled

substances giving rise to the offences [sic]?” Johnson’s Brief at 4.


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     In analyzing such claims, 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. Critically important, we must draw all
     reasonable inferences from the evidence in favor of the
     Commonwealth as the verdict-winner. 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. Of course, 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.

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (citations

and quotation marks omitted).

     In order to prove the offense of possession with intent to deliver
     a controlled substance, the Commonwealth must prove beyond a
     reasonable doubt both that the defendant possessed the
     controlled substance and had the intent to deliver.         When
     determining whether a defendant had the requisite intent to
     deliver, relevant factors for consideration are the manner in
     which the controlled substance was packaged, the behavior of
     the defendant, the presence of drug paraphernalia, and large
     sums of cash.     Expert opinion testimony is also 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. Carpenter, 955 A.2d 411, 414 (Pa. Super. 2008)

(citations and quotation marks omitted).

     Here, Johnson argues that “an accused’s non-licensure and/or non-

registration [is] an essential element of the offence [sic] of possessing a

controlled substance with intent to deliver” and that “the Commonwealth

failed to present any evidence whatsoever relating to Johnson’s alleged non-



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licensure and non-registration.”   Johnson’s Brief, at 13.   Thus, Johnson

contends that his PWID convictions are legally insufficient and must be

reversed. Id. We disagree.

     In [Commonwealth v.] Sojourner[, 408 A.2d 1108 (Pa.
     Super. 1979)], this Court explained that the Commonwealth has
     the burden of proving every element of a criminal offense
     beyond a reasonable doubt, but the burden of going forward
     with evidence of every aspect of a criminal offense need not rest
     on the Commonwealth from the outset. Sojourner, 408 A.2d at
     1113 (citations omitted). With respect to those factors upon
     which the prosecution must bear the burden of persuasion, the
     prosecution may shift to the defendant the burden of production,
     in other words, the burden of going forward with sufficient
     evidence to justify a reasonable doubt on that issue.
     Sojourner, 408 A.2d at 1113-14 (citations omitted). “If the
     defendant’s evidence does not cross this threshold, the issue
     whether it be malice, extreme emotional disturbance, self-
     defense, or whatever will not be submitted to the jury.” Id. at
     1114 (citation omitted). The Court in Sojourner concluded
     that, before the prosecution must disprove the accused was
     authorized to possess narcotics under the [Controlled Substance,
     Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq.], the
     accused must establish some credible evidence of such
     authorization. Id. (emphasis added).

Commonwealth v. James, 46 A.3d 776, 779-80 (Pa. Super. 2012).

     Johnson fails to identify any evidence of record that he made an

attempt to establish credible evidence of authorization or licensure of the

Oxycodone and Xanax recovered by Detective Cassel. See Johnson’s Brief

at 21-25. At trial, Johnson presented no witnesses or exhibits. See Notes

of Testimony (“N.T.”) Trial, 11/19/2013, at 59-62.   Nowhere did he claim

that he was authorized to possess Oxycodone or Xanax. Id. Thus, Johnson

failed to adduce any evidence that would shift the burden to the


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Commonwealth to disprove that he was authorized to possess narcotics

under the Controlled Substance, Drug, Device and Cosmetic Act.                See

James, 46 A.3d at 779-80. Accordingly, his argument does not merit relief.

See id. at 780 (affirming judgment of sentence for PWID where “Appellant

failed to introduce a prescription, testimony from a prescribing physician, or

the actual pill bottle in an effort to support his claim that he was authorized

to possess the pills pursuant to the burden shift described in Sojourner”).

      Moreover,    the   Commonwealth       adduced    sufficient   circumstantial

evidence for the jury to conclude that Johnson was not licensed to possess

the narcotics at issue. Specifically, Detective Chad Cassel testified that he

recovered from Johnson’s jacket an unmarked, unlabeled pill container in

which he found thirty-three, ten-milligram Oxycodone pills and fifty-one,

fifteen-milligram Oxycodone pills, mixed together.      N.T. Trial, 11/19/2013,

at 16-18, 30. Detective Cassel also recovered an unlabeled bottle containing

159 Xanax pills from Johnson’s back porch.        Id. at 20.   No evidence was

found regarding a prescription.       Id.    Additionally, the Commonwealth

published to the jury evidence of text messages sent by Johnson on March

1, 2013, in which he offered Oxycodone and Xanax for sale in the sizes

recovered by Detective Cassel later that day. Id. at 50-56.

      Furthermore, Detective Erick Echevarria, who was admitted as an

expert in drug trafficking and narcotics, testified:

      Q.     Detective, in your expert opinion regarding drug
      trafficking, what was recovered at [Johnson’s] residence, 27
      Orange Avenue, the Oxycodone pills, Xanax pills, the unmarked

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      pill bottles and different milligrams in the same bottle, do you
      have an opinion that this was possessed for personal use or
      possessed with the intent to deliver it?

      A.    Looking at all the information in this case, the way these
      are packaged, as well as the text messages that I reviewed,
      these pills are without a question in my mind intent to deliver.

Id. at 56.

      The Commonwealth presented Detective Echevarria’s expert opinion,

along with the evidence of unmarked pill containers, text messages, and the

two cell phones, to adduce sufficient evidence of possession with intent to

deliver.   See Carpenter, 955 A.2d at 414. Thus, we agree with the trial

court in concluding that “there was more than sufficient circumstantial

evidence from which the jury concluded that [Johnson] was not licensed to

possess and dispense either Oxycodone and/or [Xanax].”         T.C.O. at 6.

Johnson’s challenge to the sufficiency of the evidence underlying his PWID

conviction lacks merit. See Watley, 81 A.3d at 113.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2014




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