J-S54001-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

JERRON ROGERS,

                          Appellant                   No. 154 EDA 2014


            Appeal from the Judgment of Sentence August 21, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0013284-2012


BEFORE: BOWES, PANELLA, AND FITZGERALD * JJ.

MEMORANDUM BY BOWES, J.:                   FILED SEPTEMBER 28, 2015

       Jerron Rogers appeals from the judgment of sentence of three to six

years incarceration that was imposed by the trial court after it found

Appellant guilty of possession of a controlled substance with intent to deliver

(“PWID”) and conspiracy. We affirm.

       The Commonwealth’s evidence in support of the convictions was as

follows. At approximately 9:00 p.m. on September 18, 2012, Philadelphia

Police Officer Melvin Floyd set up surveillance on the 2000 block of Dickinson

Street. He was in plain clothes and utilized an unmarked police vehicle. At

the time, Officer Floyd had been a member of the Narcotics Strike Force for

ten years and conducted thousands of drug surveillances. Some were in the

same area, which was known for high drug-trafficking.


*
    Former Justice specially assigned to the Superior Court.
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      Using binoculars from about seventy-five feet away, Officer Floyd

began to observe Appellant and his co-defendant David Floyd, who was not

related to the officer.   Appellant and Floyd were leaning on a Buick and

conversing with each other.       Five minutes after Officer Floyd initiated

surveillance, an unnamed man approached Appellant and Floyd, briefly

spoke with them, and handed money to Appellant. Floyd entered the Buick

for one to two minutes, exited the vehicle, and handed a small object to the

man, who immediately left the vicinity. Fifteen minutes later, Officer Floyd

saw a female, Denise Darden, approach Appellant and Floyd, and they

briefly spoke.   Darden handed Appellant money while Floyd entered the

Buick for one or two minutes.        Floyd then handed a small object to

Appellant, who gave it to Darden.          Back up officers stopped Darden

immediately after the transaction, and she unsuccessfully attempted to

discard a yellow-tinted packet containing crack cocaine.

      Officer Floyd concluded, based upon his experience and training, that

he had witnessed drug sales, and his belief was confirmed by the recovery of

drugs from Darden. He ordered the arrest of Appellant and Floyd, and the

latter was immediately apprehended and placed in a cruiser.          Appellant,

however, escaped in the Buick. Floyd was not searched because police were

trying to locate Appellant.   Officer Floyd soon discovered the Buick, which

was parked several blocks away. He waited nearby and watched the Buick.

About thirty to forty minutes after Floyd’s arrest, Appellant left a house close

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to the Buick and was arrested. While Officer Floyd was pursuing Appellant,

another police officer saw Floyd move his head toward the open window of

the cruiser.   A baggie with sixteen yellow-tinted packets of crack cocaine

were located on the sidewalk near the police car. There was saliva on the

bag, indicating that Floyd had hidden it in his mouth. After a bench trial,

Appellant was convicted of PWID and conspiracy and acquitted of possession

of a controlled substance.     This appeal followed imposition of judgment of

sentence.   Appellant raises these averments, which we have reordered for

ease of disposition:

      I. Whether the evidence presented at trial was insufficient to
      sustain Appellant’s convictions?

      II. Whether the acquittal on the charge of Knowing and
      Intentional Possession is Inconsistent with the conviction on
      Possession with Intent to Distribute?

      III. Whether the trial court abused its discretion when it failed to
      order a new trial because the verdict was against the weight of
      the evidence?

Appellant’s brief at 4.

      Initially, we observe:

      In reviewing a challenge to the sufficiency of the evidence, we
      must determine whether, viewing the evidence in the light most
      favorable to the Commonwealth as verdict winner, together with
      all reasonable inferences therefrom, the trier of fact could have
      found that each and every element of the crimes charged was
      established beyond a reasonable doubt.

Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa.Super. 2015).




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       Appellant maintains that the evidence was insufficient to support his

PWID conviction1 since it failed to demonstrate that he delivered or intended

to deliver a controlled substance. Appellant’s brief at 12. We disagree. An

experienced narcotics police officer viewed what appeared to be two street

drug sales. During the first, an unknown male gave Appellant money, and

Floyd retrieved a small object, and gave it to the male.      Then, Darden

approached Appellant and Floyd, Darden handed money to Appellant, Floyd

retrieved something from the car, Floyd handed a small packet to Appellant,

Appellant gave that item to Darden, and Darden was found in possession of

a small packet containing crack cocaine. That drug was in a yellow-tinted

bag. Sixteen yellow-tinted bags containing crack cocaine were found outside

the police car where Floyd was located. The evidence herein was sufficient

to support the factfinder’s determination that Appellant possessed a

controlled substance with intent to deliver. The reasonable inference from

the outlined facts is that Appellant sold Darden the crack cocaine in her

possession.

       Appellant also seeks discharge on the PWID and conspiracy based on

the fact that the guilty verdict on these charges “was inconsistent with

Appellant’s acquittal on the charge of Knowing and Intentional Possession of

____________________________________________


1
  Appellant challenges only his PWID conviction and not the one for
conspiracy. Appellant’s brief at 11.



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a Controlled Substance.    Appellant could not have distributed a controlled

substance if he did not possess it.” Appellant’s brief at 13. It is established

in this Commonwealth that a factfinder is permitted to return inconsistent

verdicts. Commonwealth v. Moore, 103 A.3d 1240 (Pa. 2014). We are

not permitted to view an acquittal as a specific factual finding as to any issue

involved in the case.    Id.   Accordingly, an acquittal on one charge is not

grounds for finding the evidence insufficient as to the crimes for which the

defendant was convicted.       Id.   In light of this precedent, the fact that

Appellant was acquitted of possession of a controlled substance does not

warrant reversal of the PWID and conspiracy counts.

      Appellant additionally seeks a new trial based on his position that the

verdict was against the weight of the evidence.      He avers that the verdict

should shock one’s sense of justice since he was not found in possession of a

large amount of cash, the sixteen packets of crack were outside the car

containing his co-conspirator, it was not surprising that drugs were found on

Darden since she was stopped in a high drug-trafficking area, and no drugs

were found in his car.

      When we review a weight-of-the-evidence challenge, we do not

actually examine the underlying question; instead, we examine the trial

court’s exercise of discretion in resolving the challenge. Commonwealth v.

Leatherby, 116 A.3d 73 (Pa.Super. 2015).             This type of review is

necessitated by the fact that the trial judge heard and saw the evidence

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presented. Id. Simply put, “One of the least assailable reasons for granting

or denying a new trial is the lower court’s conviction that the verdict was or

was not against the weight of the evidence and that a new trial should be

granted in the interest of justice.” Id. at 82. A new trial is warranted in this

context only when the verdict is “so contrary to the evidence that it shocks

one’s sense of justice and the award of a new trial is imperative so that right

may be given another opportunity to prevail.”             Commonwealth v.

Morales, 91 A.3d 80, 91 (Pa. 2014).

      We do observe that, given the fact that Appellant escaped in his car

after police arrived and was out of view for about forty minutes, there is a

logical explanation for the fact that the car did not contain drugs and that a

large amount of cash was not found on his person.         Appellant had ample

opportunity to dispose of any cash or drugs in the residence in which he hid

from police.    Regardless, Officer Floyd saw two narcotics transactions

wherein Floyd and Appellant sold the drugs together.        Additionally, crack

cocaine packaged similarly to the crack found on Darden was discovered

outside the cruiser where Floyd was detained. Hence, we cannot conclude

that the trial court abused its discretion in denying Appellant’s weight claim.




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The trial court’s verdict is not so shocking to one’s sense of justice that a

new trial is imperative so that right may be given another opportunity to

prevail.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/28/2015




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