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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WYOKIN COOK                                :
                                               :
                       Appellant               :   No. 797 EDA 2018

            Appeal from the Judgment of Sentence January 23, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0003163-2017


BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                            FILED NOVEMBER 13, 2019

        Appellant, Wyokin Cook, appeals from the judgment of sentence entered

on January 23, 2018, following his non-jury trial convictions for possession

with intent to deliver a controlled substance (“PWID”),1 possession of a

controlled substance,2 and use or possession of drug paraphernalia.3         We

affirm.

        On March 10, 2017, the Delaware County Narcotics Task Force executed

a search warrant at Appellant’s residence. Police Criminal Complaint, 3/10/17,

at 4. At that time, Appellant was asleep on the couch with a marijuana blunt

on his chest.        N.T. Trial, 1/23/18, at 23-24.     Subsequently, the police

____________________________________________


1   35 P.S. §780-113(a)(30).

2   35 P.S. §780-113(a)(16).

3   35 P.S. §780-113(a)(32).
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conducted a “cursory search of the entire interior of [the] property,” and

discovered the following: 15 individual sandwich bags containing a total of

51.13 grams of marijuana, additional sandwich bags, two digital scales, and

approximately $140.00 in cash. Police Criminal Complaint, 3/10/17, at 4; N.T.

Trial, 1/23/18, at 9-24.

       A non-jury trial was conducted on January 23, 2018.            Trial Court

Opinion, 6/20/19, at 1.        At trial, Detective Steven Banner testified as the

Commonwealth’s expert witness. N.T. Trial, 1/23/18, at 9-24. During his

testimony, Detective Banner opined that Appellant possessed the 51.13 grams

of marijuana with the intent to deliver. Id. at 23-24. In contrast, Appellant

testified that he merely possessed the marijuana for personal use. Id. at 41.

Upon hearing the evidence presented at trial, the court found Appellant guilty

of the above-mentioned charges and sentenced him to “time served to 23

months” for PWID and “one[-]year probation concurrent” for use or possession

of drug paraphernalia. Trial Court Opinion, 6/20/19, at 1. This timely appeal

followed.4

       Appellant raises the following issue on appeal:

       Whether the evidence is insufficient to sustain [Appellant’s]
       conviction for [PWID] since the Commonwealth failed to prove,


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4 Appellant filed a notice of appeal on February 21, 2018. On March 14, 2018,
the trial court entered an order directing Appellant to file a concise statement
of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)(1).
Appellant timely complied. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on June 20, 2019.

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      beyond a reasonable doubt, that Appellant possessed the
      marijuana at issue with the intent to distribute it?

Appellant’s Brief at 5.

      Our standard of review regarding the sufficiency of the evidence is as

follows:

      The standard we apply in reviewing the sufficiency of 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 that of
      the fact-finder. In addition, we note that the facts and
      circumstances established by the Commonwealth may 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 trier
      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. Lambert, 795 A.2d 1010, 1014–1015 (Pa. Super. 2002)

(citations omitted).

      In this case, Appellant does not dispute that he possessed the marijuana

in question. N.T. Trial, 1/23/18, at 41. Instead, Appellant argues that the

Commonwealth failed to prove that he intended to distribute the marijuana.

Id. at 11. Specifically, Appellant asserts that the Commonwealth’s failure to

show that he “was in an area known for drug-related activity, or that he


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actually possessed materials or exhibited behavior indicative [of] drug

dealing” renders the evidence presented at trial insufficient to support his

conviction.    Id., citing Commonwealth v. Kirkland, 831 A.2d 607 (Pa.

Super. 2003).    We disagree.

      The offense of PWID under 35 P.S. §780-113(a)(30) provides, in

relevant part:

      (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.

35 P.S. §780-113(a)(30).        Thus, to sustain a conviction for PWID, “the

Commonwealth must prove that [the] appellant ‘both possessed the controlled

substance and had an intent to deliver that substance.’” Commonwealth v.

Torres, 617 A.2d 812, 814 (Pa. Super. 1992), quoting Commonwealth v.

Parsons, 570 A.2d 1328, 1334 (Pa. Super. 1990).

      To determine “whether a controlled substance was possessed with intent

to deliver, the court must consider all of the facts and circumstances

surrounding the possession of the substance.” Torres, 617 A.2d at 814. In

cases involving “a large quantity of controlled substances,” the “intent to

deliver may be inferred from [mere] possession.”         Commonwealth v.



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Jackson, 645 A.2d 1366, 1368 (Pa. Super. 1994). If, however, there is only

a small amount of a controlled substance, such that “it is not clear whether

the substance is being used for personal consumption or distribution, it then

becomes necessary to analyze other factors.” Id. In such a case, a key factor

is expert testimony. See Commonwealth v. Ratsamy, 934 A.2d 1233, 1236

(Pa. 2007); Kirkland, 831 A.2d at 612 (holding that the evidence was

insufficient to support the appellant’s conviction of PWID because the

Commonwealth failed to present expert testimony to prove that he possessed

the controlled substance with the intent to distribute).     Additional factors

include “the manner in which the controlled substance was packaged, the

behavior of the defendant, the presence of drug paraphernalia, and large sums

of cash found in possession of the defendant.” Jackson, 645 A.2d at 1368.

      Herein, the evidence, when viewed in the light most favorable to the

Commonwealth, establishes that Appellant intended to distribute the

marijuana. Indeed, unlike in Kirkland, the Commonwealth utilized the expert

testimony of Detective Banner to demonstrate that Appellant intended to

distribute the marijuana in question. N.T. Trial, 1/23/18, at 9-24.

      At trial, Detective Banner opined that Appellant did, in fact, possess the

marijuana with the intent to deliver. Id. at 17. He based this opinion on a

variety of factors.   First, he explained that, while the quantity of drugs

appeared small, 51.13 grams of marijuana is “above the personal use




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standard.”5    Id. at 17.      Thus, in contrast to Appellant’s assertion that he

bought the drugs “in bulk,” Banner opined that Appellant’s possession of a

“month-and-a-half supply of weed” was typical of a drug seller, not a drug

user.    Id. at 20 and 43.        Secondly, Detective Banner explained that the

marijuana’s packaging proved Appellant’s intent to deliver. Id. at 17. Per

Detective Banner, just like a consumer would not “go to Wa-[W]a and buy a

gallon of milk by eight pints,” an individual drug user would not “buy individual

bags of marijuana.” Id. Lastly, Detective Banner opined that the discovery

of the digital scale supported his conclusion that Appellant possessed the

requisite intent. According to Detective Banner, only an “actual seller” would

“weigh their marijuana.”         Id. at 20.      Users simply “eyeball [it].”   Id.

Therefore, when viewed in the light most favorable to the Commonwealth, the

evidence presented at trial demonstrated that Appellant intended to deliver

the marijuana and, as such, there was sufficient evidence to convict Appellant.

        Judgment of sentence affirmed.




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5Per Detective Banner, “the Commonwealth looks at 30 grams [of marijuana]
as personal use.” N.T. Trial, 1/23/18, at 17.

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     Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2019




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