J-S16030-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MATTHEW JASON HAILEY                       :
                                               :
                       Appellant               :   No. 1655 EDA 2019

              Appeal from the Judgment Entered January 28, 2019
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0008422-2017


BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                          FILED AUGUST 14, 2020

        Matthew Hailey appeals from the judgment of sentence1 imposed on

January 28, 2019, following his jury trial conviction of possession with intent

to deliver (“PWID”) methamphetamine.2 Specifically, he claims that the

evidence was not sufficient to support his PWID conviction, the verdict was

against the weight of the evidence, and the trial court erred when it did not

declare a mistrial after alleged prosecutorial misconduct. We affirm.

        The following facts were adduced at trial. At 4:49 a.m. on
        November 21, 2017, Officer Daniel Rose of the Montgomery
        Township Police Department was in his patrol car in the parking
        lot of the Rodeway Inn located at 969 Bethlehem Pike,
        Montgomeryville, Montgomery County. Officer Rose observed a
____________________________________________


1Although Hailey purported to appeal from the trial court’s order denying his
motion for a new trial, an appeal is properly taken from the judgment of
sentence entered, not an order denying post-sentence motions. We have
amended the caption accordingly.

2   35 P.S. § 780-113(a)(30).
J-S16030-20


     black Audi sedan exit from State Route 309 northbound and turn
     into the parking lot of the motel. The vehicle passed the officer
     and continued towards the rear of the parking lot. The light over
     the sedan’s license plate was out and it appeared that a piece of
     paper was covering the license plate. Officer Rose followed the
     vehicle.

     Officer Rose observed the vehicle park in the rear of the parking
     lot. [Hailey] exited the vehicle from the front passenger seat,
     began walking, then stopped and turned around upon noticing
     Officer Rose in a marked police car. [Hailey] then got back in the
     car he had just exited. The driver then pulled around to the front
     of the motel where [Hailey] again exited the vehicle and headed
     toward the front desk. At this point the officer turned on his
     emergency lights, instructed the vehicle to stop and called
     [Hailey] back to the vehicle.

     The driver of the vehicle, later determined to be Lacey Williams,
     initially provided false information regarding her identity. Williams
     refused to grant permission for Officer Rose to search her vehicle.
     When questioning [Hailey] about what he and Williams were doing
     at the motel, [Hailey] “began to ask why [Williams] wouldn’t let
     us search the car.” He told Officer Rose that there must be
     something in the vehicle and then stated that he thought there
     was “meth” in the vehicle. Officer Rose observed [Hailey] light a
     cigarette with a butane lighter, which Officer Rose testified is
     commonly used to smoke methamphetamine based upon his
     training and experience. [Hailey] also told Officer Rose that he
     worked as a painter.

     Officer Rose then observed two individuals come out of one of the
     motel rooms and walk toward Williams’ vehicle. Williams told
     Officer Rose that she and [Hailey] were meeting up with these two
     people at the motel. [Hailey], however, stated that he did not
     know the other two people, was not there to meet with them and
     that he was going to a motel room “to get lucky.”

     Officer Pete Byrne and Officer Tony Shearer arrived in the parking
     lot to assist Officer Rose. [Hailey] re-entered the front passenger
     seat of Williams’ vehicle. [Hailey] told Officer Byrne, like he had
     told Officer Rose, that he was a painter. He also remarked to
     Officer Byrne that he thought there might be methamphetamine
     in the sedan.

     After discovering that Williams had an active warrant, the officers
     arrested Williams and impounded her vehicle. [Hailey] was

                                     -2-
J-S16030-20


     released and was not searched or charged at that time. Officer
     Rose allowed [Hailey] to retrieve his phone from the center
     console of Williams’ vehicle before he left. Although [Hailey] did
     not ask to retrieve any other items, Officer Rose observed [Hailey]
     reach into the back of the vehicle. Officer Rose then ordered
     [Hailey] out of the car.

     Williams’ vehicle was taken to the Montgomery Township Police
     Department impound lot. While Williams was being processed and
     after a trained canine had alerted to the presence of narcotics in
     her vehicle, Williams changed her mind and consented to a search
     of her vehicle. Officer John Rushin searched Williams’s vehicle
     later that same day, November 21, 2017. Officer Rushin located a
     closed black headphone case in an open shelving area on the dash
     between the two front seats of the vehicle. Within the case was
     U.S. currency and a black box. Within the black box were two bags
     of a substance which appeared to be methamphetamine and a
     digital scale. The parties stipulated that one bag contained 27.22
     grams of methamphetamine and the other bag contained 2.91
     grams of methamphetamine. The digital scale was one commonly
     used in narcotics trafficking. Also contained in the headphone case
     were unused plastic baggies of a type commonly used for
     packaging controlled substances.

     Officer Rushin also located a backpack on the floor in the rear of
     Williams’ car behind the passenger’s seat. Officer Rushin found a
     notebook in the backpack with [Hailey’s] name and address, as
     well as a log Defendant kept of his recent work hours. Officer
     Rushin also found unused narcotics packaging material, some of
     it identical to that in the headphone case. Some of the packaging
     materials were stuffed into a Sherwin Williams paint supply bag.
     A label for another painting supply company was found on the
     bottom of the backpack. The backpack contained two digital scales
     commonly used for narcotics trafficking which appeared to have
     methamphetamine residue.

     Lacey Williams testified she sold methamphetamine as her main
     source of income since 2015. She went to the Rodeway Inn on the
     morning of November 21, 2017 because she had no water or
     electricity at her residence and because she planned to sell
     methamphetamine at the motel. Williams testified that [Hailey]
     was with her in the car when she arrived at the motel. [Hailey]
     was involved in an earlier argument with his girlfriend and asked
     Williams to pick him up from his girlfriend’s apartment. Williams
     testified [Hailey] placed a backpack in the back seat of her car

                                    -3-
J-S16030-20


      when she picked him up before going to the motel to sell
      methamphetamine.

      Williams    testified  that   she     purchased   an    ounce     of
      methamphetamine earlier that morning or the night before and
      had sold an “eightball” to [Hailey]. They discussed [Hailey] selling
      some portion of that methamphetamine to a friend of his. Williams
      gave [Hailey] some of the unused bags found in his backpack to
      sell methamphetamine. She stated that the larger bag of
      methamphetamine that was recovered by police in the headphone
      case was the remainder of the amount she had purchased, and
      the smaller bag was the remainder of the eightball she sold earlier
      to [Hailey]. Williams and [Hailey] had smoked part of the eightball
      that morning and continued to smoke methamphetamine during
      the drive to the Rodeway Inn. She did not recall if [Hailey] had
      paid her the money for the eightball, but she regularly sold on
      credit and stated that she would have been willing to sell to
      [Hailey] on credit.

Trial Court Opinion, 9/23/19, at 2-5 (record citations omitted).

      After a two-day trial, a jury convicted Hailey of one count of PWID

methamphetamine. The trial court sentenced Hailey to three to six years of

incarceration. Hailey filed a timely post-sentence motion, which the trial court

denied on May 20, 2019. This timely appeal followed.

      Hailey raises two issues for our review.

      1. Did the trial judge err as a matter of law by allowing a verdict
         to stand that was against the weight and sufficiency of the
         evidence in terms of the issue that [Hailey] never possessed
         with the intent to deliver a controlled substance either
         constructively or by actually possessing it?

      2. Did the trial court err by allowing the prosecutor, in his opening
         and closing arguments, to blatantly bolster the credibility of
         Lacey Williams by commenting to the jury on the truthfulness
         of her testimony based on the prosecutor’s personal
         knowledge, and abuse its discretion in denial of a mistrial for
         such prosecutorial misconduct?

Hailey’s Br. at unnumbered page 4.


                                      -4-
J-S16030-20



      Although stated as a single question, Hailey’s first question raises two

distinct issues: a challenge to the sufficiency of the evidence and a challenge

to the weight of the evidence. Hence, we will deal with each issue in turn.

      Hailey challenges the sufficiency of the evidence introduced at trial to

support his conviction of PWID methamphetamine. He claims that the

evidence was insufficient to prove that he possessed the methamphetamine

and that he intended to sell it. See id. at unnumbered pages 10-11. We

disagree.

      Our standard of review concerning challenges to the sufficiency of the

evidence is to determine whether the evidence at trial and all reasonable

inferences therefrom, when viewed in a light most favorable to the

Commonwealth as verdict winner, are sufficient for the trier of fact to find

each element of the crime beyond a reasonable doubt. See Commonwealth

v. Brown, 52 A.3d 320, 323 (Pa.Super. 2012).

      “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.” Id. (citation omitted). Notably,

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.” Id. (citation omitted). Further, the Commonwealth may

establish the elements of the crime by wholly circumstantial evidence. See id.

      Hailey was convicted of violating section 780-113(a)(30) of the

Controlled Substance, Drug, Device, and Cosmetic Act, which prohibits, inter

                                      -5-
J-S16030-20



alia, the possession with intent to deliver a controlled substance. See 35 P.S.

§ 780-113(a)(30). In order to prove a violation of this section, the

Commonwealth must establish two things, first that the defendant possessed

the drugs in question, and second that the defendant intended to deliver them.

To sustain its burden, the Commonwealth may establish either actual physical

possession or constructive possession. See Commonwealth v. Jones, 874

A.2d 108, 121 (Pa.Super. 2005). “Constructive possession is the ability to

exercise conscious control or dominion over the illegal substance and the

intent to exercise that control,” and the prosecution may prove it by the

totality of the circumstances. Id. Finally, “[t]he amount of the controlled

substance is not crucial to establish an inference of possession with intent to

deliver, if . . . other facts are present.” Commonwealth v. Watley, 81 A.3d

108, 114 (Pa.Super. 2013) (citation and internal quotation marks omitted).

      In the instant case, viewing the evidence in a light most favorable to the

Commonwealth, as we are required to do by our standard of review, the

evidence   at   trial   was   sufficient   to   prove   that   Hailey   possessed

methamphetamine with the intent to deliver it. The evidence introduced at

trial demonstrated that Hailey was a passenger in Williams’ vehicle. When he

spoke with Officers Byrne and Rose, he told both officers that he believed

there was methamphetamine in the vehicle. When officers searched the

vehicle, they found two distinct quantities of methamphetamine—27.22 grams

that Williams admitted was hers, and a smaller quantity of methamphetamine,

2.91 grams—both in the front passenger area of the vehicle. Williams testified

                                       -6-
J-S16030-20



that she had sold that smaller amount to Hailey, and that he intended to sell

some of it to another friend. Officers additionally found a backpack in the rear

of the vehicle containing several of Hailey’s personal items as well as two

digital scales with methamphetamine residue, and unused baggies. Williams

testified that Hailey had placed the backpack in the car, and that she had

provided him with the baggies. Based on the evidence, the jury reasonably

inferred that Hailey possessed methamphetamine and intended to sell it.

Hailey’s challenge to the sufficiency of the evidence to support his conviction

does not merit relief.

      Second, Hailey claims that the guilty verdict was against the weight of

the evidence. He contends that the only evidence proving that he possessed

the methamphetamine, or intended to sell it, came from the testimony of

Williams, and argues that her testimony lacked credibility because she was

charged with providing false information to law enforcement. See Hailey’s Br.

at unnumbered page 11. Hailey’s argument is unpersuasive.

      A defendant must make a weight challenge to the trial court in the first

instance; we review the trial court’s rejection of such a claim for abuse of

discretion. Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003)

(citation omitted). “A weight of the evidence claim concedes that the evidence

is sufficient to sustain the verdict, but seeks a new trial on the ground that

the evidence was so one-sided or so weighted in favor of acquittal that a guilty

verdict shocks one’s sense of justice.” Commonwealth v. Lyons, 79 A.3d

1053, 1067 (Pa. 2013) (citations omitted). “[C]redibility determinations are

                                     -7-
J-S16030-20



made by the fact finder and . . . challenges thereto go to the weight . . . of

the evidence.” Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super.

1997).

      After considering Hailey’s weight claim, the trial court concluded that

“the jury’s verdict, including their decision to credit the testimony of Williams,

was not contrary to the weight of the evidence and did not shock the court’s

sense of justice.” Trial Ct. Op., at 9. The jury was free to believe all, part, or

none of Williams’ testimony against Hailey, and it was exclusively within the

jury’s province to weigh these matters. Thus, we conclude that the trial court

did not abuse its discretion when it found that Hailey’s conviction is not so

contrary to the evidence as to shock one’s sense of justice. Hence, Hailey’s

weight claim is meritless.

      In his final issue, Hailey claims that the trial court erred and permitted

prosecutorial misconduct when the prosecutor bolstered the credibility of

Williams in his opening and closing statements. This issue is waived.

      “If   the   defendant   thinks   the   prosecutor   has   done   something

objectionable, he may object, the trial court rules, and the ruling—not the

underlying conduct—is what is reviewed on appeal. Where, as here, no

objection was raised, there is no claim of ‘prosecutorial misconduct’ as such

available.” Commonwealth v. Tedford, 960 A.2d 1, 29 (Pa. 2008). In

addition, “[i]ssues not raised in the lower court are waived and cannot be

raised for the first time on appeal.” Pa.R.A.P. 302(a).




                                       -8-
J-S16030-20



       Our review of the notes of testimony of the trial revealed no instances

where Hailey objected to any statements made by the prosecutor during either

the Commonwealth’s opening statement or closing argument. Nor does it

reveal where Hailey sought a mistrial because of such statement.3

Accordingly, there is no ruling of the trial court concerning the allegedly

objectionable statements. Thus, we conclude Hailey has waived this issue for

failure to raise it before the trial court. Accordingly, we conclude that Hailey’s

issues are meritless or waived, and we affirm his judgment of sentence.

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/20




____________________________________________


3 Hailey’s brief does not specify where in the notes of testimony the alleged
prosecutorial misconduct is contained, nor does he cite to where in the record
he moved for a mistrial. See Pa.R.A.P. 2119(c) (requiring reference to place
in record where matter referred to appears). This Court will not play the role
of advocate and argue an appellant’s case for him.

                                           -9-
