J-S15006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

HAKIM MALIK,

                            Appellant                   No. 52 EDA 2015


      Appeal from the Judgment of Sentence Entered December 12, 2014
             In the Court of Common Pleas of Philadelphia County
                          Criminal Division at No(s):
                           CP-51-CR-0000834-2013


BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED FEBRUARY 29, 2016

        Appellant, Hakim Malik, appeals from the judgment of sentence of an

aggregate term of four to eight years’ incarceration, imposed after a jury

convicted him of possession with intent to deliver a controlled substance

(PWID) and possession of a controlled substance. Appellant argues that the

trial court erred by allowing the Commonwealth to introduce an expert

witness to opine about Appellant’s intent to deliver the drugs he possessed.

We affirm.

        The trial court summarized the facts of Appellant’s case, as follows:

              On August 25, 2012, at 12:30[]pm, Philadelphia Police
        Officer Edgar Melendez conducted surveillance at 1208 West
        Rockland Street. Officer Melendez was in an unmarked vehicle
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     approximately 25 to 30 feet away from the property, and he had
     a clear unobstructed view of the property from his vehicle. Upon
     arriving at that location, Officer Melendez observed [Appellant],
     who was wearing a gray t-shirt and black shorts, standing in
     front of 1208 West Rockland Street.

            Five minutes later, a male wearing a tan hat and red [t]-
     shirt, later identified as James Wilkerson, walked past the police
     vehicle and toward [Appellant].       Officer Melendez observed
     Wilkerson engage in a hand-to-hand transaction with [Appellant]
     whereby Wilkerson passed U.S. currency to [Appellant]. Upon
     receiving the money, [Appellant] and Wilkerson engaged in a
     brief conversation. [Appellant] placed the money into a wallet in
     his back shorts pocket and then walked down a small breezeway
     between the houses located at 1206 West Rockland Street and
     1208 West Rockland Street; Wilkerson remained on the
     sidewalk. Although Officer Melendez could not see down the
     breezeway, he noted that [Appellant] was absent for one
     minute.       When he returned, Officer Melendez observed
     [Appellant] make a closed-fist to open-palm transaction whereby
     he placed a small object in Wilkerson's hand. Wilkerson then
     immediately left the area. [Appellant] walked back through the
     breezeway, returned one minute later on a bicycle, and then
     travelled east toward 11th Street on his bicycle.

           Officer Melendez relayed "flash" information of [Appellant]
     and Wilkerson to backup officers. Within minutes, Officer Daniel
     Adams observed Wilkerson travelling on the 4800 block of
     Camac Street as an individual that matched the "flash"
     information. Officer Adams identified himself as a police officer
     to Wilkerson, who[,] in response[,] stopped walking and dropped
     a small item to the ground. Officer Adams recovered the item,
     which was a small blue plastic packet containing crack cocaine.

           Also within minutes of receiving the same "flash"
     information, Officer Mark Johnson observed [Appellant] travelling
     east on Rockland Street on a bicycle.             Officer Johnson
     approached [Appellant] and identified himself as a police officer.
     In response, [Appellant] got off the bicycle and discarded a small
     black plastic film case on the ground. Officer Johnson recovered
     the black plastic film case about three to four feet from
     [Appellant]. Inside the case, Officer Johnson recovered eight
     blue alprazolam pills.      Incident to arrest, Officer Johnson
     recovered $50 from Defendant's back shorts pocket in
     denominations of three $10 bills and four $5 bills.

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           Officer Melendez directed Officer Tyrik Armstead to
     investigate the breezeway between 1206 West Rockland and
     1208 West Rockland Street. Officer Armstead walked through
     the breezeway and observed a wooden shed at the back of 1206
     West Rockland. Officer Armstead recovered two clear sandwich
     bags from behind a wooden pillar that supported the shed. One
     bag contained 25 clear plastic baggies containing crack cocaine
     and a tan pill bottle that was missing a label and contained two
     codeine and acetaminophen pills. The other bag contained 69
     clear plastic baggies containing heroin that were packed in
     bundles held by rubber bands: four bundles each contained 14
     baggies and one bundle contained 13 baggies.

           At trial, Officer Kevin Keys testified as an expert witness
     on the manufacturing, sales, packaging, and distribution of
     narcotics in Philadelphia.1 The trial court limited Officer Keys’
     testimony to whether the possession of codeine and
     acetaminophen pills, alprazolam, and heroin was consistent with
     the intent to deliver. Because there was testimony related to an
     observed sale of crack cocaine, the trial court prohibited Officer
     Keys’ from rendering any opinion regarding whether the crack
     cocaine was possessed with the intent to deliver. The trial court
     also instructed the jury that it could consider Officer Keys’
     testimony only as it related to the possession of codeine and
     acetaminophen pills, alprazolam, and heroin.

            Officer Keys testified that it was his expert opinion that[,]
     whoever possessed the heroin[,] possessed it with the intent to
     deliver based upon, inter alia, the large number of heroin
     packets, the form of the bundles and the purchasing habits of
     heroin addicts. He also testified that[,] whoever possessed the
     pills[,] possessed them with the intent to deliver based upon,
     inter alia, that the pills were part of a larger narcotics stash and
     the type of containers (a black film case and a pill bottle missing
     the label). Because the heroin and pills were secreted in a stash
     location, Officer Keys testified that it would be extremely unlikely
     that, based on buying patterns of drug users in Philadelphia, the
     heroin and pills were possessed for personal use.

                           __________________

        1
          Officer Keys was qualified as a narcotics expert based
        upon his 26 years of experience as a police officer. For the
        last 20 years, he was assigned to conduct narcotics
        investigations, including undercover buys and surveillance

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         of street corner drug sales. He also received various
         narcotics training with the F.B.I., A.T.F., and the National
         Guard, including training in drug testing and identification.
         Officer   Keys     completed    educational     courses    in
         pharmaceuticals and buyer behaviors, and he has been
         qualified as an expert more than 1500 times in drugs
         cases.

Trial Court Opinion (TCO), 6/10/15, at 1-4 (citations to the record omitted).

      At the close of Appellant’s trial, the jury convicted him of PWID and

possession of a controlled substance.      On December 12, 2014, the court

sentenced Appellant to a term of 4 to 8 years’ incarceration, followed by 5

years’ probation, for his offense of PWID.          Appellant’s conviction for

possessing a controlled substance merged for sentencing purposes.

      Appellant filed a timely notice of appeal, and also timely complied with

the trial court’s order to file a Pa.R.A.P. 1925(b) statement. The court filed a

Rule 1925(a) opinion on June 10, 2015. Herein, Appellant raises one issue

for our review: “Did not the trial court err by allowing expert testimony by a

police officer opining that the heroin, codeine, and alprazolam were

possessed with intent to deliver in light of testimony of an actual delivery of

cocaine?” Appellant’s Brief at 3.

             Our standard of review in cases involving the admission of
      expert testimony is broad: “Generally speaking, the admission of
      expert testimony is a matter left largely to the discretion of the
      trial court, and its rulings thereon will not be reversed absent an
      abuse of discretion.” Commonwealth v. Brown, 408 Pa.Super.
      246, 596 A.2d 840, 842 (1991), appeal denied, 532 Pa. 660,
      616 A.2d 982 (1992) (quoting Palmer v. Lapp, 392 Pa.Super.
      21, 572 A.2d 12, 15–16 (1990)). An expert's testimony is
      admissible when it is based on facts of record and will not cause
      confusion or prejudice. Brown, supra.



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              In PWID cases, regarding evidence of a defendant's “intent
        to deliver,” this Court has said that expert testimony is
        admissible to prove whether the amount of drugs recovered in
        the defendant's possession was consistent with an intent to
        deliver or an intent to posses[s] for personal use.
        Commonwealth v. Ariondo, 397 Pa. Super. 364, 580 A.2d 341
        (1990), appeal denied, 527 Pa. 628, 592 A.2d 1296 (1991).
        Nevertheless, expert testimony is inadmissible if the jury can
        easily comprehend that the drugs recovered were possessed
        with the intent to deliver without the assistance of an expert.
        [Commonwealth v.] Carter, [589 A.2d 1133,] 1135 [(Pa.
        Super. 1991), appeal denied, 597 A.2d 1151 (Pa. 1991)]. When
        the expert's testimony corroborates a drug transaction, which is
        obvious to an average layperson, it invites the trier of fact to
        abdicate its responsibility and defer to the assessment of the
        expert. Id.

Commonwealth v. Watson, 945 A.2d 174, 176 (Pa. Super. 2008).

        Here, Appellant first stresses that Officer Melendez testified that he

observed Appellant engage in a drug transaction with Wilkerson, whereby

Appellant provided Wilkerson with crack cocaine.      Appellant then contends

that,

        [i]f the jury believed the testimony about a transaction involving
        one drug, they could infer, based upon their experience with the
        ordinary affairs of life, that the pharmacopeia of illegal drugs
        found in the stash location were possessed with intent to deliver.
        Common experience would dictate that if the cocaine packaged
        for distribution and matching that seized from the buyer in an
        observed transaction was in the same stash as other drugs
        packaged for distribution, then the other drugs were possessed
        for delivery purposes. Thus, the subject was not one requiring
        an expert’s interpretation of the evidence. Thus, it was error to
        allow expert testimony that all the other drugs found in
        [A]ppellant’s stash after the arrest were possessed with intent to
        deliver even though no expert testimony was allowed as to the
        specific drug involved in the transaction.

Appellant’s Brief at 9-10.



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      Appellant’s argument is unconvincing. It is true that Officer Melendez

testified that he observed Appellant selling Wilkerson crack cocaine;

however, the trial court properly ruled that Officer Keys could not offer

cumulative, expert testimony about Appellant’s obvious intent to deliver that

controlled substance. Further, we disagree with Appellant that from Officer

Melendez’s testimony regarding Appellant’s sale of crack cocaine, the jury

could have easily concluded that Appellant possessed the alprazolam,

codeine, and heroin with the intent to deliver.     Instead, a lay juror could

have inferred that Appellant possessed the alprazolam and codeine for his

personal use, based on the seemingly small quantities of those pills.

Additionally, a juror could have believed that Appellant’s storing the pills

together in small bottles, rather than in separate packets as he stored the

crack cocaine, meant they were not ‘packaged’ for sale, as Appellant

contends.

      Officer Keys’ expert testimony aided the jury in understanding the

implications of these facts.      For instance, regarding the packaging of the

pills, Officer Keys, explained:

      [Officer Keys:] 90 percent of the time, when it comes to the
      illegal sales of pills, when buyers get the pills, they get them
      loose, but when they’re in some form of container, it’s generally
      associated with a distributor.

      …

      And then the reason for the containers with a distributor is
      because each pill has a dollar amount. And so in regard to the
      [alprazolam] pills, the pill could either be $3 or $5, but the point
      is, is that the container is consistent with a distributor because

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      when they’re making transactions, if they had the container on
      them, they won’t lose anything, such as, if they were loose in
      their pocket.

      …

      The other reason for the container is that it could be stashed at a
      location or it could be secreted on their person. The other
      reason for the container is that if the police come up, then you
      can discard the container and everything will be in the container
      and no residual packets would be in your pocket, such as what
      happened in this particular case that they were discarded.

N.T. Trial, 10/15/14, at 192-93. Officer Keys also stated that the fact that

the pills were in different containers, one of which was included in the stash

found near the shed, indicated that Appellant intended to sell those pills.

Id. at 193.

      Officer Keys’ testimony also assisted the jury in assessing whether

Appellant possessed the heroin with the intent to deliver.             As the

Commonwealth points out, “Officer Keys’[] expert opinion that [Appellant]

possessed heroin with the intent to deliver was based on a number of factors

– such as the typical quantity of heroin consumed by users in Philadelphia,

the cost of heroin, the typical packaging of heroin and painkillers for sale,

and the practices of dealers with respect to intermingling different types of

drugs – that were outside the knowledge of an ordinary layperson and

helpful to understanding the evidence and determining the critical fact of

[Appellant’s] intent.”   Commonwealth’s Brief at 9; see also N.T. Trial at

183-87 (Officer Keys’ explaining his basis for opining that the heroin was

possessed with the intent to deliver).



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     In sum, we disagree with Appellant that the jury could have easily

understood that the alprazolam, codeine, and heroin were possessed with

the intent to deliver simply based on Officer Melendez’s testimony that he

observed Appellant’s selling crack cocaine.   Thus, the trial court did not

abuse its discretion in permitting the Commonwealth to present Officer Keys’

expert testimony to assist the jury in assessing the evidence and

determining if Appellant possessed those drugs with the intent to deliver.

Accordingly, we affirm Appellant’s judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/29/2016




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