J-S54038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    MARK JOHNSON                               :
                                               :
                      Appellant                :   No. 338 WDA 2017

            Appeal from the Judgment of Sentence February 10, 2017
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0000504-2016


BEFORE:      OTT, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED SEPTEMBER 21, 2017

        Appellant, Mark Johnson, appeals from the judgment of sentence

entered in the Fayette County Court of Common Pleas. He contends there

was insufficient evidence to sustain his conviction for possession with intent

to deliver a controlled substance (“PWID”).1 We affirm.

        The trial court summarized the facts of this case as follows:

           During the trial, the Commonwealth presented the
           testimony of Bryan Kendi, a police corporal for the City of
           Connellsville, Fayette County, and a detective with the
           Bureau of Investigations Fayette County, and an expert
           on controlled drug buys. On July 23, 2015, Officer
           Kendi was working with a confidential informant
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
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          (hereinafter the “CI”) who provided [Appellant’s] name
          prior to the transaction.[2] The CI’s person, including all
          items of his clothing, was thoroughly searched to be sure
          they were free of any contraband prior to the controlled
          buy.      Likewise, everything inside the passenger
          compartment of the vehicle─the dash, the front and back
          seats, under the seats, the glove box, the center console,
          etc.─was carefully searched to ensure no contraband was
          hidden therein.     Officer Kendi was present to hear a
          telephone communication between the CI and a
          person who agreed to sell the CI two twenty dollar
          bags of marijuana, typically about one gram. The sale
          was to take place in the parking lot of the J.C. Penney
          store in the back of the Uniontown Mall in Uniontown,
          Fayette County, Pennsylvania.

             Officer Kendi and his partner, Detective [Brian] Harvey,
          driving an unmarked drug task force vehicle, followed the
          CI as he drove to the mall in his own vehicle. Officer Kendi
          never lost sight of the CI as he drove, nor did the CI make
          any other stops along the route. Upon arriving at the
          parking lot, the police officers took up a surveillance
          position several parking spaces from the CI’s vehicle.
          They had a clear, unobstructed view of the CI’s location.
          Shortly after 1:00 P.M. in the afternoon of July 23, 2015, a
          blue Ford Explorer arrived in the lot and pulled in by the
          CI’s vehicle. [Appellant], who was clearly seen by
          Officer Kendi on the day of the crimes and identified
          by the officer for the jury at the trial, exited the
          passenger side of the Explorer and got into the passenger
          side of the CI’s vehicle.          Officer Kendi observed
          movements inside the CI’s vehicle that were consistent
          with a hand-to-hand buy although he did not actually see
          the transaction itself. After [Appellant] left the CI and re-
          entered the passenger side of the Ford Explorer, said
          vehicle drove off out of the parking lot. The police
          officers then followed the CI back to the undisclosed
____________________________________________


2
  The officer testified that “we do a little research on the target and the
information that I did get was [sic] picture from the driver’s photo ID, not
only to know who we are dealing with but to use that for identification.”
N.T., 2/6/17, at 8.



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        location where the CI turned over to Officer Kendi
        two small baggies of suspected marijuana, after
        which the CI’s persona and vehicle were again searched
        and found to be free of contraband. Also gone was forty
        dollars ($40.00) in task force funds that had been provided
        for the CI to use in making the buy. Officer Kendi later
        transported the suspected marijuana to the State Police
        Crime Lab in Greensburg, Westmoreland County, where it
        was tested and determined with certainty to be two point
        seven (2.7) grams of marijuana.

Trial Ct. Op., 3/7/17, at 1-3 (citations omitted and emphases added).

     At trial, Officer Harvey testified for the Commonwealth. N.T. at 50.

        [The Commonwealth:] . . . You were involved since the
        beginning as well with Mr. Kendi so I will just speed up
        toward the end.      At some point did you go to the
        Uniontown Mall for a controlled buy to monitor?

        A: Yes, sir.

        Q: What vehicle were you in?

        A: I was in Detective Kendi’s vehicle.

        Q: You were in an undercover and unmarked vehicle?

        A: Yes.

        Q: Can you tell the [c]ourt what happened when you guys
        got to the location of the mall?

        A: Yes. We followed the informant to the mall. He parked
        and we parked in a location a short distance away so that
        we could keep him and the vehicle under constant view.

        Q: At that time was there any─was the target vehicle there
        at that time when you first arrived there?

        A: Not when we first arrived, no.

                                *    *      *



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       Q: Sir, can you describe the layout of where your vehicle
       was in connection to any other vehicle there, particularly
       the CI’s vehicle?

       A: We were parked approximately fifty to seventy-five feet
       away. There was no vehicle in between us and the CI’s
       vehicle.

       Q: Okay. And can you tell the Court what happened next?

       A: A short time later, a blue Ford Explorer entered the lot
       from behind us and pulled up next to where the CI was
       and someone got out of the passenger side of the vehicle,
       walked around the front and entered the passenger side of
       the CI’s vehicle.

       Q: Did anything obstruct your view during that time
       frame?

       A: No, sir.

                               *    *    *

       Q: And you were able to observe the target as far as
       getting out of the Explorer, from the time that he exited
       the vehicle until he re-entered it?

       A: Yes.

       Q: Were you able to get a good look at the suspect?

       A: Yes.

                               *    *    *

       Q: And you said that you did the [sic] get the opportunity
       prior to view a photograph of the suspect?

       A: Yes, sir.

       Q: Did the person that you saw match the photograph?

       A: They did, yes.


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J-S54038-17


          Q: Now, sir, the individual that you identified at the time
          or thought was [Appellant], do you see here [sic] him in
          the courtroom today?

          A: Yes, sir.

                                     *    *    *

          [The Commonwealth:] Let the record reflect that the
          witness has identified [Appellant].

Id. at 51-54.

     At    trial,   Douglas   John   Samber,       a   forensic   scientist   with   the

Pennsylvania State Police in Greensburg, testified as an expert for the

Commonwealth. Id. at 44.

          [The Commonwealth:] Do you have an estimate as how
          many times since 2001 that you have tested marijuana to
          determine whether it is─test to see if it is marijuana?

          A: At least one thousand, conservatively speaking.

                                     *    *    *

          To positively identify marijuana, we use three tests. There
          is no instrumentation. The forensic community accepts the
          three methods of confirmatory tests for marijuana. We
          look at it microscopically and there are structures specific
          to marijuana and if it has those structures, then it is
          positive. We do a color test and simple chromatography.

                                     *    *    *

          Q: Sir, what were your conclusions with the [sic] respect
          to the weight and analysis of the item?

          A: The weight of the two items contained two point seven
          zero grams and contained marijuana, a schedule one.

          Q: Okay. Would you say that this opinion was made within
          a reasonable degree of scientific certainty?

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          A: Yes.

Id. at 45, 47-48.

       Following a jury trial, Appellant was found guilty of PWID.            On

February 10, 2017, he was sentenced to nine to twenty-four months’

imprisonment.3 This timely appeal followed. Appellant filed a court-ordered

Pa.R.A.P. 1925(b) statement of errors complained of on appeal.          The trial

court filed a responsive opinion.

       Appellant raises the following issue for our review:     “Whether the

evidence was legally and factually insufficient to prove that [Appellant] was

guilty of possession with the intent to deliver and delivery of a controlled

substance?” Appellant’s Brief at 7. Appellant contends

          [t]he Commonwealth did not present evidence beyond a
          reasonable doubt that Appellant was guilty of the crime
          charged.

              Specifically, Appellant argues that the Commonwealth
          failed to present sufficient evidence through its witnesses
          to establish beyond a reasonable doubt that he was guilty
          of the crime charged.        It is clear that the jury was
          confused in this matter and could not have found the
          Appellant guilty beyond a reasonable doubt.

             The evidence was insufficient to sustain the verdict as
          the Commonwealth failed to prove each and every element
          of the crimes charged. The evidence was insufficient to
          establish that Appellant was guilty beyond a reasonable
          doubt of the crimes charged.
____________________________________________


3
 The sentence in the case sub judice was to run concurrently with a
sentence imposed at No. 906 of 2016. See Sentence, 2/10/16/ at 2.



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J-S54038-17



                                 *    *    *

            Based on the testimony and evidence presented, the
         Commonwealth failed to present sufficient evidence
         regarding the identification of the Appellant.       The
         Commonwealth further failed to establish that [Appellant]
         delivered marijuana to the informant on the day in
         question.

Appellant’s Brief at 12, 16.

      As a prefatory matter, we consider whether Appellant has waived the

sufficiency of the evidence claim.   The issue presented in Appellant’s Rule

1925(b) statement is as follows:     “Whether the evidence was legally and

factually insufficient to prove that [Appellant] was guilty pf possession with

the intent to deliver and delivery of a controlled substance?”     Appellant’s

Pa.R.A.P. 1925(b) Statement, 3/1/17, at 1.

      In Commonwealth v. Garang, 9 A.3d 237 (Pa. Super. 2010), this

Court opined:     “[W]hen challenging the sufficiency of the evidence on

appeal, the [a]ppellant's 1925 statement must specify the element or

elements upon which the evidence was insufficient in order to preserve the

issue for appeal.”    Id. at 244 (citations and quotation marks omitted).

However, our Supreme Court in Commonwealth v. Laboy, 936 A.2d 1058

(Pa. 2007), held that although the appellant’s Rule 1925(b) statement did

not develop a sufficiency of the evidence claim, this Court “should have

afforded the requested sufficiency review” in a “relatively straightforward

drug case.” Id. at 1060. In the instant case, although Appellant’s 1925(b)


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J-S54038-17


statement failed to develop the sufficiency of the evidence claim, we decline

to find waiver on this basis.4 See id.

       Our review is governed by the following principles:

          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 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
____________________________________________


4
  We note that in his brief, Appellant avers that he “challenges the weight
and sufficiency of the evidence to support his conviction . . . .” Appellant’s
Brief at 10. In Commonwealth v. Griffin, 65 A.3d 932 (Pa. Super. 2013),
this Court held the defendant

          did not preserve a weight of the evidence claim through
          inclusion in his court-ordered Rule 1925(b) Statement, and
          thus [the trial court’s] Rule 1925(a) Opinion does not
          address it. As such, we find this allegation waived for
          purposes of appeal.

Id. at 938. Similarly, in the case at bar, Appellant did not raise the weight
of the evidence claim in his Rule 1925(b) statement. Therefore, we find it
waived. See id.; Pa.R.A.P. 1925(b)(4)(vii). Furthermore, Appellant did not
raise the issue of the weight of the evidence in the trial court. See
Pa.R.Crim.P. 607.




                                           -8-
J-S54038-17


          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. Ratsamy, 934 A.2d 1233, 1236 n.2 (Pa. 2007) (citation

omitted).

        In Commonwealth v. Little, 879 A.2d 293 (Pa. Super. 2005), this

Court

          consider[ed] whether the Commonwealth presented
          sufficient evidence to sustain [the defendant’s] conviction
          for possession with intent to deliver.       Section 780-
          113(a)(30) of The Controlled Substance, Drug, Device and
          Cosmetic Act prohibits the following acts:

             [T]he 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).           The Commonwealth
          establishes the offense of possession with intent to deliver
          when it proves beyond a reasonable doubt that the
          defendant possessed a controlled substance with the intent
          to deliver it.

              To determine whether the Commonwealth presented
          sufficient evidence to sustain [the defendant’s] conviction
          for possession with intent to deliver, all of the facts and
          circumstances surrounding the possession are relevant and
          the elements of the crime may be established by
          circumstantial evidence.

Id. at 297 (some citations omitted).




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      In conducting a sufficiency of the evidence review, we view all of the

evidence in the light most favorable to the Commonwealth as verdict winner.

See Ratsamy, 934 A.2d at 1236 n.2. The elements of the crime may be

established by circumstantial evidence. See Little, 879 A.2d at 297.

      Instantly, the Commonwealth’s expert witness, Officer Kendi, testified

that he heard a telephone conversation between the CI and an individual

who agreed to sell the CI marijuana. The expert also testified that he saw

Appellant get into the passenger side of the CI’s vehicle.      He observed

movements inside the CI’s vehicle that were consistent with a hand-to-hand

transaction.   The police officers followed the CI back to an undisclosed

location at which time the CI gave Officer Kendi two bags of suspected

marijuana.

      Officer Harvey also testified to monitoring the controlled buy.     He

identified Appellant as the target who entered the passenger side of the CI’s

vehicle.   The jury also heard expert testimony from the Commonwealth’s

forensic scientist who positively identified the contents of the bags as

marijuana.

      In light of this record, we find the evidence, when viewed in a light

most favorable to the Commonwealth, was sufficient to establish that

Appellant delivered marijuana to the CI. See Ratsamy, 934 A.2d at 1236

n.2. We find there was sufficient evidence to sustain Appellant’s conviction




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for PWID.     See Little, 879 A.2d at 297.   Accordingly, we affirm the

judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/2017




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