J-S52022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JERMAIN JACKSON,

                            Appellant                No. 2549 EDA 2013


           Appeal from the Judgment of Sentence entered May 3, 2013
              in the Court of Common Pleas of Philadelphia County,
              Criminal Division, at No(s): CP-51-CR-0010177-2010


BEFORE:       GANTMAN, P.J., ALLEN, and FITZGERALD*, JJ.

MEMORANDUM BY ALLEN, J.:                            FILED AUGUST 20, 2014



imposed after he was convicted of possession with intent to deliver (PWID).1

We affirm.

        The trial court

follows:

              On May 15, 2010 at approximately 9:00 p.m., Police
        Officers Maurice Rhoades and Melvin Floyd were on duty as
        members of the Narcotics Strike Force Field Unit. The officers
        set up surveillance in an unmarked car at the well-lit 1400 block
        of North 17th Street in the City and County of Philadelphia.

              Officers saw Appellant on the street, engaged in a brief

____________________________________________


1
    35 P.S. § 780-113(a)(30).


*Former Justice specially assigned to the Superior Court.
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     black male approached Appellant, spoke with him for less than a
     minute, and handed him money. Appellant went to a nearby
     wall, took a black plastic bag from the ground, and removed
     small objects from inside the bag. Appellant handed the objects
     to the man, who then walked away. Officer Floyd relayed his
     observations over the surveillance band to backup officers, but
     police officers were not able to locate that man.

            Approximately ten (10) minutes later, a car pulled up
     driven by a second unidentified black male. The man spoke
     briefly to Appellant and handed him an unknown amount of
     money. Appellant once again went to the black plastic bag by
     the wall and took objects from inside the bag, and handed them
     to the man along with a small, black-capped jar about two
     inches tall. The man put the small objects in his mouth and

     spoke briefly with Appellant and Stanson before driving away.
     Police officers did not stop the man.

           At approximately 9:25 p.m., Appellant retrieved the black
     bag and entered a gray Dodge vehicle, with Stanson driving.
     Officer Rhoades put out the description and license plate number
     of the car over the radio. Officer Christopher Purnell, also of the
     Narcotics Strike Force, was in a marked car about two or three
     blocks away from 1400 N. 17th Street. Officer Purnell spotted
     the Dodge vehicle. When the vehicle made a left onto the 1600
     block of Thompson Street, he activated his lights and sirens and
     pulled Appellant over.

            Appellant opened the door, threw something out, and
     closed the door again. Officer Purnell removed Appellant from
     the car. Stanson was taken out of the car by another officer and
     later released. Officer Purnell recovered a black plastic bag from
     beneath the vehicle. Inside was a clear sandwich bag with
     twenty-eight (28) white pills later identified as Percocet, five (5)
     green pills later identified as oxycodone, and a single jar with a
     black top and purple syrup inside, later identified as codeine.

            Officer Rhoades returned to Thompson Street and
     identified Appellant as the man he had observed engaging in
     narcotics transactions. Appellant was searched and from his
     pants pocket was recovered $216 United States Currency

     bills, two (2) $10 bills, one (1) $5 bill and one (1) $1 bill.

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Trial Court Opinion, 12/23/13, at 2-4 (footnotes and citations to notes

of testimony omitted).      Appellant was subsequently arrested and

charged, and a jury trial commenced on January 17, 2013. The jury

found Appellant guilty of PWID.

      Following a hearing on May 2, 2013, the trial court sentenced

Appellant to three and a half (3½) to eight (8) years in prison.

Appellant filed a post-sentence motion on May 3, 2013, which was

denied by operation of law on September 3, 2013. This timely appeal

followed.   Both Appellant and the trial court have complied with

Pa.R.A.P. 1925.


      Appellant raises the following issue for our review:

         WAS THE EVIDENCE SUBMITTED BY THE COMMONWEALTH
         AT TRIAL INSUFFICIENT AS A MATTER OF LAW TO SUPPORT

         POSSESSION OF A CONTROLLED SUBSTANCE WITH THE
         INTENT TO DELIVER WHEN THE EVIDENCE FAILED TO
         ESTABLISH THAT APPELLANT EITHER DELIVERED, OR
         INTENDED TO DELIVER, THE CONTROLLED SUBSTANCES IN
         QUESTION?


         MOTION FOR MISTRIAL MADE IN RESPONSE TO PREJUDICIAL
         COMMENTS    PRESENTED   TO    THE  JURY    BY   THE
         COMMONWEALTH DURING ITS CLOSING ARGUMENT?



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

establish that he was guilty of possession with intent to deliver in violation of

35 P.S. § 780-113(a)(30) which provides:

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      (a)    The following acts and the causing thereof within the
             Commonwealth are hereby prohibited: ...

             (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, or a practitioner not
                  registered or licensed by the appropriate State
                  board, or knowingly creating, delivering or
                  possessing with intent to deliver, a counterfeit
                  controlled substance.



             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. Devine, 26 A.3d 1139, 1145 (Pa. Super. 2011).

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

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

controlled   substance.    35   P.S.   780-113(a)(30);   Commonwealth       v.

Bostick


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the facts and circumstances surrounding possession are relevant in making a



Commonwealth v. Brown, 904 A.2d 925, 931 (Pa. Super. 2006), appeal

denied                                    Pennsylvania, the intent to deliver

may be inferred from possession of a large quantity of controlled substance.

It follows that possession of a small amount of a controlled substance

supports the conclusion that there is an absence of intent to deliver.

Bostick

of a controlled substance, it is not clear whether the substance is being used

for personal consumption or distribution, it then becomes necessary to

                        Id

that drugs were possessed with the intent to deliver include the particular

method of packaging, the form of the drug, and the behavior of the

              Commonealth v. Aguado, 760 A.2d 1181, 1186 (Pa. Super.

2000).

      Here, the trial court found the evidence sufficient to support



      Officers observed Appellant take small objects from a black
      plastic bag on the ground near a wall on 17th Street, and
      exchange those objects for money in two separate transactions.
      They observed an unidentified man exchange currency with
      Appellant for pills and a small jar, which he consumed within
      their view. Officers observed Appellant take the black plastic
      bag from the ground and get into the passenger side of a gray
      Dodge vehicle.




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     vehicle, a gray Dodge, and its license plate number over the
     surveillance radio, Officer Purnell spotted the vehicle traveling
     southbound on 17th Street and pulled the driver over. Officer
     Purnell observed the passenger door open, a black bag thrown
     from the door, and the door close again. After placing Appellant
       who matched the description given over the surveillance radio
        in custody, Officer Purnell recovered a black plastic bag from
     beneath the car. Appellant maintained possession and control of
     the black plastic bag, from the time it was on the ground and he
     took small objects from it, to the time he got into the passenger
     side of the car after picking up the bag, to the time he threw it
     from the car. The bag contained Percocet, codeine syrup, and
     oxycodone.      Officer Rhoades observed him make several
     narcotics transactions, exchanging small objects in exchange for
     money.
     entirely in small bills, consistent with narcotics trafficking.

          Thus, the evidence was sufficient to convict Appellant of
     PWID.

Trial Court Opinion, 12/23/13, at 5-6.

     Viewing the evidence in the light most favorable to the Commonwealth

as verdict winner, we agree with the trial court that the evidence was

sufficient for the jury to determine that Appellant possessed controlled

substances with intent to deliver.     Officer Rhoades testified that he saw

Appellant engage in multiple hand-to-hand exchanges for cash of small

items retrieved from a black plastic bag. N.T., 1/17/13, at 49-52. Officer

Rhoades observed one of the individuals receive a small jar with a black cap

from Appellant in exchange for cash, and the officer observed the buyer

drink the contents of the jar.   Id.     When Appellant left the scene of the

aforementioned transactions in a gray Dodge vehicle, Officer Rhoades

relayed a description of his vehicle over the police radio, and approximately

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Id. at 53, 105-

Appellant discarded the black bag which was found to contain twenty-eight

Percocet pills, five oxycodone pills and a jar of codeine with a black cap,

identical in size, shape and color to the one Appellant had earlier sold to the

unknown male who had drank its contents on the street. Id. at 55-57, 107.

Additionally, $216 cash was retrieved from Appellant.       Id. at 108.   This



conviction.   See Aguado, supra (finding evidence sufficient to support

PWID conviction where police officer witnessed appellant accept cash from

an unidentified male in exchange for small objects that the appellant

retrieved from a brown paper bag, and appellant discarded that paper bag

upon the officers' approach, and subsequent investigation revealed that the

paper bag contained ten individual vials containing crack cocaine, and that

the appellant possessed $93.00 in cash).

      Appellant next argues that the trial court erred when it denied his

motion for mistrial made in response to prejudicial comments made by the



14-19.   Our standard of review for a claim of prosecutorial misconduct is

limited to whether the trial court abused its discretion. Commonwealth v.

Harris, 884 A.2d 920, 927 (Pa. Super. 2005) (citation omitted), appeal

denied, 928 A.2d 1289 (Pa. 2007).          In considering such a claim, our


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attention is focused on whether the defendant was deprived of a fair trial,

not a perfect one. Id.


            [I]n reviewing prosecutorial remarks to determine their
      prejudicial quality, comments cannot be viewed in isolation but,
      rather, must be considered in the context in which they were
      made. Our review of prosecutorial remarks and an allegation of
      prosecutorial misconduct requires us to evaluate whether a
      defendant received a fair trial, not a perfect trial.

                                        ***

            It is well settled that a prosecutor has considerable latitude
      during closing arguments and his arguments are fair if they are
      supported by the evidence or use inferences that can reasonably
      be derived from the evidence. Further, prosecutorial misconduct
      does not take place unless the unavoidable effect of the
      comments at issue was to prejudice the jurors by forming in
      their minds a fixed bias and hostility toward the defendant, thus
      impeding their ability to weigh the evidence objectively and
      render a true verdict. Prosecutorial misconduct is evaluated
      under a harmless error standard.

             In determining whether the prosecutor engaged in
      misconduct, we must keep in mind that comments made by a
      prosecutor must be examined within the context of defense
      counsel's conduct. It is well settled that the prosecutor may
      fairly respond to points made in the defense closing. Moreover,
      prosecutorial misconduct will not be found where comments
      were based on the evidence or proper inferences therefrom or
      were only oratorical flair.


Commonwealth v. Judy, 978 A.2d 1015, 1019 1020 (Pa. Super. 2009)

(internal citations omitted).

      Appellant   objects   to   the   following   comments    made    by    the

Commonwealth during its closing argument:




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      here and advocate for his client and say whatever he can to do


      whatever he wants, unlike the police officers in this case, who
      took the stand, raised their hand and swore to tell the truth.

      And every time they get on that stand, they put their badge on
      the line, their career, their reputation, their families, not just
      that. When they get up there and they swear to tell the truth,
      they risk perjury. They risk criminal charges, incarceration, if
      they do not tell the truth. They got up there and they swore to


N.T., 1/18/13, at 48-49.



                       objected,   asserting   that   the    Commonwealth     had

attempted to convey to the jury that police officers were more credible than

other witnesses due to their profession, and sought a mistrial or, in the

alternative, a curative instruction.    Id. at 53-56.       The trial court denied



instruction, and instructed the jury as follows:

      There was a reference made in closing argument by the assistant
      district attorney. And I want to clarify something with respect to
      credibility of witnesses. I want to instruct you   and you heard

      you again at this point.

      I will instruct you that you should neither believe nor disbelieve
      al
      in law enforcement. All witnesses called by the assistant district
      attorney and by the defendant, if any, are to have their
      credibility to truthfulness and accuracy evaluated by the same
      standards.




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      Law enforcement officers are people just like the rest of us. And
      their credibility should be determined for using the same
      standards you would use for anyone else. No one gets a free
      ticket to be believed because of their job, whether it be a law
      enforcement officer, a doctor, a lawyer, or any other profession.

      because of what that person may or may not do for a living.

Id. at 57-58.

                                                              sion to issue the

curative instruction rather than declare a mistrial. See Commonwealth v.

Melendez Rodriguez



prejudice resultin

of law enforcement officers was effectively cured by the trial court's

immediate and comprehensive cautionary instruction.        We find no error in

                                                         deprived of a fair and

impartial trial and conclude that the trial court did not err in denying his

motion for mistrial. See Commonwealth v. Collins, 70 A.3d 1245, 1253



when an incident is of such a nature that its unavoidable effect is to deprive

appellant of a fair trial [;] [t]he trial court is permitted to rectify an event



(citations omitted).

      For the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2014




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