J-S51019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

OMAR ALI ROLLIE

                            Appellant                No. 2837 EDA 2014


           Appeal from the Judgment of Sentence September 5, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0004832-2013


                                          *****

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

OMAR ALI ROLLIE

                            Appellant                No. 2885 EDA 2014


           Appeal from the Judgment of Sentence September 5, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0005439-2013


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED AUGUST 24, 2015




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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         Omar Ali Rollie appeals from the judgment of sentence imposed in the

Court of Common Pleas of Delaware County after a jury found him guilty of

three counts of attempted murder,1 three counts of aggravated assault,2

three counts of terroristic threats,3 three counts of recklessly endangering

another person,4 one count of possession of a controlled substance with the

intent    to   deliver   (“PWID”),5    and     one   count   of   possession   of   drug

paraphernalia.6 Upon careful review, we affirm.

         On July 23, 2013, Abdul Nix, Nasire Muhammad, and Ismaile Tasiu

were standing in a parking lot after leaving a store. Tasiu was talking to the

owner of the store, and Nix and Muhammad were about to get into their

rental car when another car drove up next to theirs. As summarized by the

trial court:

         After five or ten minutes of Nix waiting for Tasiu, the car
         approached the rental car and made suspicious moves, including
         speeding up and positioning so the front of the car was facing
         toward the rental car. Mr. Omar Rollie then exited this second
         car, walked toward Nix, and asked why they were looking at
         him. Nix responded that they were not looking at him and were
____________________________________________


1
    18 Pa.C.S. §§ 901(a), 2502(a).
2
    18 Pa.C.S. § 2702(a)(3).
3
    18 Pa.C.S. § 2706(a)(1).
4
    18 Pa.C.S. § 2705.
5
    35 P.S. § 780-113(a)(30).
6
    35 P.S. § 780-113(a)(32).



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     just standing; however, Rollie continued to walk toward them
     and asked the question again. Nix then responded a second
     time and started explaining to Rollie that they were just picking
     up a part. Rollie then said that “I got something for you,” turned
     around, went to the back of his car, opened the trunk, took out
     an object covered in a sheet, laid aside an umbrella, and
     unwrapped the sheet to reveal a “long rifle.” At this point, Nix
     and [Muhammad] were in the car while Tasiu was running
     toward the car and got in as Nix was backing up.

     Rollie was pointing the rifle “directly at [the rental] car.” Rollie
     was in front of his own car and between 15 and 20 feet away
     from the back of Nix’s car. Nix observed Rollie aiming at him
     and pulling the trigger twice as Nix was backing up. Nix did not
     see either bullet hit the car. In court, Nix identified Omar Rollie
     as the man with an AK47 who pointed it at the rental car and
     shot twice. Tasiu, owner of the construction company, affirmed
     that Rollie had aimed at the rental car and shot twice. Once
     away from the scene, Nix dialed 911.

     Officer Anthony Peticci, one of the officers who responded to the
     911 call, found “31 baggies of yellow tinted small zip-lock
     baggies” in Rollie’s left back pocket after he ordered Rollie down
     on the ground and handcuffed him. Officer Peticci believed these
     zip-lock baggies to contain marijuana and marijuana was
     confirmed after field testing.

     Officer James Fiore was also a responding officer with Officer
     Peticci. Officer Fiore observed a “camera bag” inside the open
     door of Rollie’s running car. Officer Fiore found marijuana in a
     freezer bag and in a sandwich bag; empty, yellow, tinted zip-
     lock containers; a digital scale; and cocaine in sandwich bags.
     Officer Fiore noted that the digital scale was “commonly used” to
     weigh various narcotics and the “one-by-one inch [yellow] zip-
     lock containers” that were found were “commonly used to
     package marijuana for sale.”

     Detective Christopher Sponaugle also testified at trial as a
     qualified expert.   Detective Sponaugle was assigned to the
     Narcotics Unit with the Delaware County Criminal Investigation
     Division. His expert opinion was that the drugs were possessed
     with the intent to deliver.    He based this opinion on the
     packaging and quantity of the bags. The detective noted that
     the 31 marijuana bags are considered “nicks on the street,”
     which sell for $5.00 each. This shows that Rollie would have to


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      buy each individual pack for a total of $155. This means Rollie
      would have paid $155 for about an ounce of marijuana, which
      was divided among 31 “nick” bags, instead of paying the usual
      $80 rate for an ounce not individually packaged. The detective
      noted that it would make no sense for a user to buy 31
      individual bags for simple consumption. The same thought
      process was applied to the seven grams of marijuana “quarters”
      that would cost more to buy individually than in bulk. Detective
      Sponaugle also stated that the unused small zip-lock bags and
      the scale were for a seller, as a buyer would never carry those
      around.

Trial Court Opinion, 3/25/15, at 2-4 (internal citations omitted).

      On June 26, 2014, after a three-day jury trial, Rollie was convicted of

attempted murder, PWID, possession of drug paraphernalia, and other

related offenses.   On September 5, 2014, the court sentenced him to an

aggregate term of 25 to 52 years’ incarceration and 9 years’ probation. On

October 3, 2014, Rollie filed a timely notice of appeal challenging the

sufficiency of the evidence with regard to his attempted murder, PWID, and

possession of drug paraphernalia convictions.

      With respect to Rollie’s challenges to the sufficiency of the evidence:

      As a general matter, our standard of review of sufficiency claims
      requires that we evaluate the record in the light most favorable
      to the verdict winner giving the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence. Evidence
      will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. Any doubt about the defendant’s guilt is
      to be resolved by the fact finder unless the evidence is so weak
      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.




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Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa. Super. 2013)

(internal citations and quotation marks omitted).

      Section 2502 of the Crimes Code defines murder as follows:

      § 2502. Murder.

      (a) Murder of the first degree.—A criminal homicide
      constitutes murder of the first degree when it is committed by an
      intentional killing.

18 Pa.C.S. §2502(a).

      Section 901 of the Crimes Code defines criminal attempt as follows:

      § 901. Criminal Attempt.

      (a) Definition of attempt.—A person commits an attempt
      when, with intent to commit a specific crime, he does any act
      which constitutes a substantial step toward the commission of
      that crime.

18 Pa.C.S. § 901(a).

      First, Rollie claims the evidence was insufficient to prove beyond a

reasonable doubt that he possessed the specific intent to kill because he

failed to strike any of the victims or their car when he opened fire in the

direction of the victims’ car.   However, the trial court concluded that the

Commonwealth presented sufficient evidence to prove beyond a reasonable

doubt that Rollie acted with malice and possessed the specific intent that

supports his conviction for attempted murder.       “Specific intent and malice

may be established through circumstantial evidence, such as the use of a

deadly weapon on a vital part of the victim’s body.”       Commonwealth v.

Arrington, 86 A.3d 831, 840 (Pa. 2014); see also Commonwealth v.



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Rogers, 615 A.2d 55 (Pa. Super. 1992) (malice established where

defendant fired weapon into occupied vehicle).

      The   trial   court   summarized   the   evidence   presented    by   the

Commonwealth at trial as follows:

      Testimony supported that Rollie had suspiciously parked his car
      facing the group. He asked intimidating questions of why they
      were looking at him and threatened that he had something for
      them. He then took the time to go to the back of his car, open
      the trunk, unwrap the AK47, put aside the wrap and an
      umbrella, walk to the front of his car, aim at the vehicle with
      three people inside, and fire his weapon twice at the vehicle.
      Thus, the fact-finder had sufficient direct evidence to satisfy the
      sufficient evidence standard. Alternatively, the totality of the
      circumstances supports an inference from the fact-finder that
      Rollie had the necessary intent for attempted murder.

Trial Court Opinion, 3/25/15, at 8-9.

      We agree with the trial court that the evidence, viewed in the light

most favorable to the Commonwealth, was sufficient to sustain the verdict.

Lynch, supra.

      Rollie also claims the evidence was insufficient to sustain his conviction

for PWID and possession of drug paraphernalia because the car Rollie was

driving belonged to another individual not involved in this matter, and

therefore, the drugs might not have belonged to Rollie.

      The Controlled Substance, Drug, Device and Cosmetic Act prohibits

PWID and possession of drug paraphernalia as follows:

      § 780-113. Prohibited acts; penalties

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

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              (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.
                                        ...

              (32) The use of, or possession with intent to use, drug
              paraphernalia for the purpose of planting, propagating,
              cultivating,    growing,      harvesting,      manufacturing,
              compounding,       converting,      producing,    processing,
              preparing, testing, analyzing, packing, repacking, storing,
              containing, concealing, injecting, ingesting, inhaling, or
              otherwise introducing into the human body a controlled
              substance in violation of this act.

35 P.S. § 780-113(a)(30), (32).

      In order to sustain Rollie’s convictions for PWID, the Commonwealth

must establish that he possessed a controlled substance with the intent to

deliver it.   Commonwealth v. Kirkland, 831 A.2d 607, 609 (Pa. Super.

2003). “The trier of fact may infer that the defendant intended to deliver a

controlled substance from an examination of the facts and circumstances

surrounding the case.”        Id.   When the substance is not found on the

defendant’s person, the Commonwealth must prove that the defendant had

constructive possession of the substance, or “exercise[d] a conscious

dominion over the illegal substance[.]”         Commonwealth v. Valette, 613

A.2d 548, 550 (Pa. 1992). “An intent to maintain a conscious dominion may

be   inferred   from    the   totality   of   the    circumstances.”     Id.,    citing

Commonwealth           v.   Macolino,     469       A.2d   132,   134   (Pa.    1983).




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“[C]ircumstantial   evidence   may   be   used   to   establish   a   defendant’s

possession of drugs or contraband.” Valette, 613 A.2d at 550.

      In this case, the drugs in question were found in the vehicle Rollie was

driving.   Although the vehicle was not registered to Rollie, he was its sole

occupant, indicating his control over the vehicle. See Commonwealth v.

Micking, 17 A.3d 924, 926 (Pa. Super. 2011) (finding that because

appellant was sole occupant of car and possessed key to unlock glove

compartment, he had control over contraband in vehicle).          The car Rollie

was driving contained marijuana, cocaine, baggies, and a digital scale.

There were 31 yellow tinted baggies of marijuana found on Rollie’s person,

and some of the baggies found in the vehicle were also tinted yellow.

Detective Sponaugle testified to Rollie’s intent to deliver by explaining that

the separation of marijuana into small baggies is consistent with intent to

deliver. The recovery of the digital scale, which is commonly used to weigh

drugs for the purpose of bagging and selling, and the baggies found on

Rollie’s person and car, is sufficient to sustain the verdicts for PWID and

possession of drug paraphernalia.

      Accordingly, we agree with the trial court that the evidence was

sufficient to sustain the verdicts for attempted murder, PWID, and

possession of drug paraphernalia.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2015




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