J-A07004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSE SAMBANA                               :
                                               :
                       Appellant               :   No. 817 EDA 2018

             Appeal from the Judgment of Sentence March 2, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0006230-2017


BEFORE:      OLSON, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                            FILED DECEMBER 03, 2019

        Appellant, Jose Sambana, appeals from the judgment of sentence

entered on March 2, 2018 in the Criminal Division of the Court of Common

Pleas of Philadelphia County following his bench trial convictions for

possession of heroin and fentanyl with the intent to deliver (PWID) 1 and

knowing and intentional possession of controlled substances (K&I). 2         We

affirm.

        On January 11, 2017, Appellant was arrested and charged with PWID,

K&I, and driving with a suspended license.         After a preliminary hearing at

which the offense of driving with a suspended license was dismissed for lack




____________________________________________


1   35 P.S. § 780-113(a)(30).

2   35 P.S. § 780-113(a)(16).
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A07004-19



of evidence, the Commonwealth filed an information charging Appellant with

PWID and K&I.

      Appellant filed a motion to suppress physical evidence recovered during

searches of his person and vehicle, including 39 packets of heroin and fentanyl

and United States currency. On January 10, 2018, the trial court convened a

hearing to consider Appellant’s motion to suppress. After the court denied

suppression, Appellant waived his right to a jury and proceeded to trial. The

court found Appellant guilty of PWID and K&I. On May 2, 2018, the court

imposed a sentence of two to seven years’ incarceration on Appellant’s PWID

conviction.   This timely appeal followed.     After Appellant filed his concise

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

court issued its opinion.

      Appellant raises two issues on appeal:

      [Whether the trial court erred in denying Appellant’s motion to
      suppress where officers lacked reasonable suspicion to believe
      Appellant was armed and dangerous or exceeded the scope of a
      protective frisk by removing a tray covering a vehicle console and
      searching the area beneath it?]

      [Whether the trial court erred in denying Appellant’s motion to
      suppress where officers lacked probable cause and a warrant to
      search underneath the console area of Appellant’s vehicle and to
      open a bag of Jolly Ranchers candy?]

Appellant’s Brief at 3.

      Appellant raises two claims in support of his contention that the trial

court violated his constitutional rights in denying his motion to suppress. First,

Appellant claims that police officers lacked reasonable suspicion to conduct a

                                      -2-
J-A07004-19


protective search of his vehicle or exceeded the permissible scope of an

initially valid search. Second, Appellant argues that police officers lacked both

a warrant and probable cause to justify the retrieval and search of a bag of

Jolly Rancher candy recovered from a void located underneath the console

area of Appellant’s vehicle. We disagree.

      We review orders denying a motion to suppress under the following

standard of review:

      Our standard of review in addressing a challenge to the denial of
      a suppression motion is limited to determining whether the
      suppression court's factual findings are supported by the record
      and whether the legal conclusions drawn from those facts are
      correct.    Because the Commonwealth prevailed before the
      suppression court, we may consider only the evidence of the
      Commonwealth and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record as
      a whole. Where the suppression court's factual findings are
      supported by the record, we are bound by these findings and may
      reverse only if the court's legal conclusions are erroneous. Where,
      as here, the appeal of the determination of the suppression court
      turns on allegations of legal error, the suppression court's legal
      conclusions are not binding on an appellate court, whose duty it
      is to determine if the suppression court properly applied the law
      to the facts. Thus, the conclusions of law of the courts below are
      subject to our plenary review.

Commonwealth v. Mbewe, 203 A.3d 983, 986 (Pa. Super. 2019) (internal

quotations and citations omitted).

      We have carefully reviewed the certified record, the submissions of the

parties, and the trial court’s Rule 1925(a) opinion. Based upon our review,

we adopt the trial court’s factual recitation and we conclude that the record

supports the factual findings of the trial court and that its legal conclusions


                                      -3-
J-A07004-19


are correct. In particular, the trial court correctly concluded that the officers

had reasonable suspicion to conduct a protective sweep of Appellant’s vehicle.

See Trial Court Opinion, 6/13/18, at 5 (crediting police testimony that

Appellant’s vehicle had heavily tinted windows, that Appellant appeared to

move about the interior compartment, that Appellant reached toward the

center console area, that Appellant did not comply with multiple commands

that he open his window, and that officers could not see what Appellant was

reaching for inside the vehicle). The trial court also correctly determined that

the area beneath the center console (including the location of the Jolly

Ranchers candy bag) fell within the scope of a permissible protective sweep

since the cup holder tray atop the console had been pried open and could

reasonably have concealed a weapon. See id. at 6. Lastly, the court properly

determined that the officers had probable cause to believe that the Jolly

Ranchers candy bag contained evidence of a crime since the police observed

it in an area of the vehicle not designed for storage and not ordinarily

accessible to vehicle occupants. See id. at 7. In sum, because the trial court

adequately and accurately addressed each of the issues raised on appeal, we

adopt its opinion and conclusions as our own. We instruct the parties to attach

the trial court’s June 13, 2018 opinion to each future filing pertaining to our

disposition of this appeal.

      Judgment of sentence affirmed.




                                      -4-
J-A07004-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/3/19




                          -5-
                                                                                                                   Circulated 11/04/2019 02:20 PM



                                                     lN THE COURT OF COMMON PLEAS
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                                                       .   CRIMINAL TRIAL.DIVIS·l.ON
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                              ·' 'COMMONWEA.LTH OF                                                   CP-5 J.-CR�OGQ6230-2017
                                   PENNSYL VAN1A
                                                                               .,             CP.,51-CR-0006230-2017   �mm..•, S<1J!lbal\8; jo,.,
                                                                                                 .     ' . .     dpu,ioii
                                                                                '
                                    'v:

                             JOSE SAMBANA                                                            111\ llllill\\lllll\U Ill
                                                                                                             s12i.a61591.
                                                                                         \.
                                                                          .OPINION

                             BRONSON; J.                                                             June 13, 20.18


                             On January: l 0:, 20.18, following a non-jury trial before-this Court, 'defendant                    Jose
               .Sambana' was convicted of.one count each ofpossession with intent to.delivera controlled

                substance C'PWJD.") (heroinand fontanyl).(35 P.S . '§ 780.-1.13.(a)(3Q))-and knowingly and

                   intentionally possessing-a controlledsubstencej+Kec!") (heroin and fenranyl) {35 P..S. § 7.80�

                   I JJ(aXI �)).· On March 2, 20 l'8.,. the Court imposed a sentence .of two 10 seven years

                imprisonment for the PWi'D char.ge.2 · Defendant did not file post-sentence motions.

                             Defendant-has now appealed from the judgment.of sentence entered bythe.Court on the

               .grounds that. I.) the Courterred by denying defendant's motion �o suppress the physical

               evidence; 2) the Court abused its. discretion by qualifying Office/ Debarberie as an expert

               witness; 3) the Court abused its discretion byrequiringthe Commonwealth to reopen.the motion

               to: suppress and recall 0f'ficer Debarberie; and 4) the evidence· was insufficient to.sustain the

               PWID conviction. Statement ofErrors. Complained
                                                       .
                                                               ofon Appeal ("Statemei1t of Errors") at��-
                                                                                                       .




               I
                Al defendant's suppression hearing, defendant indicated that- the correctspelling.of his nil inc was Jose Sambrana,
               N.T. 1 /.i,011 B· !id. It appears both ways in the .rceord.            · ·
               � Defendant 's K&!'tonviction- mergedfor sentencing purposes,




··-------.
         .-          ----·                                                                                                                          _
     4(�).,4(d). For the reasons .sel forth below; defendant's claims are without merit and the

 Judgment of sentence should be affirmed.

                                            J. FACTUAL BACKGROUND

            At trial, the
                        . Commonwealth presented the-testimony of Philadelphia police
                                                                               .    . officers -.Sarah

     Debarberie,' James 'Saxroti, and James Trappler. Defendant presented the testimony.of David

 Leff Viewed in the. light most favorable to the Commonwealth as the verdict winner; the

 evidence established the following.

            On iuJy 11, .io 17, Officer Debarberie.and her partner, Officer Saxton, :w.er.e 61) vebicle

patrol.on the ·1100 block of Jasper Street in Philadelphia, when they spotted a white GMC Yukon

turn onto Jasper Street andthen rnake ah abrupt left-hand turn without signaling.                  N.T. .l/J'0/18 at

·11: 12". Officers Debarberie and Saxton subsequently pulled the vehicle over on jhe 1900 block
      4




of Clementine Street N..T. l/l0/L8 at l l.

           -Officer Saxton. approached the driver'sside of the vehicle, vvhil.e Officer Debarberie

-�pproa9hed the passenger's side. N:T .. l/10/l'Bat 91.. Because the vehicle'swindows were

 heavily tinte.ct the officerscould only. make outthe driver's silhouette. N.:T, J/I'Oll 8,at· 11.

However. they were able to observe the driver-moving.around in.rhe.vehicle and reaching back
and forth toward the.center consofe. l'{/r. J/1 Oh$ at 11,_3 l, 92. Officer Saxtori-ordei:ed

(iefenqfi.nt tQ putdown his windowrnultipletirries; however, defendant-did notcomply. N.·T.

 1/JOll.8    an I- 12, Therefore, Officer Debarberie, in fear for her partner's safety; opened the
pass.enger side door ofthe vehicle. N.T, 1/1 Ol-i Rat l.2. Officer Saxton then opened the driver's

side door.      f.1:T 1/10/18 at 12-J 3.




·1   Offlcer Debarberie's testimony-from defendant's scppresslonheeringj.wlih the exception of any hearsay
testimony, was Incorporated info rhe' Cbmrnonwealth's cnse-ln-chief    JtT. Ill 0/.1.8 at s·:5,.
                                                           2
                      Once the doors were open; the officers observed defendant reach into the center console.

             N.T; l /10/18 at 92. Officer Saxton ordered defendant to stop what he was doing, .and to provide

             the officers with his license> registration, and. insurance, Id Defendant complied, but informed

             the officers thathe did not have a driver's license) and then again proceeded. to reach into the

             center console. N.T. l/l0/18.at 12, 92. Officer Saxton once more ordered defendant to stop;

             however, defendant did.not comply. N.T: i/10/18 .at 92. Therefore, Oftic�r Saxton removed

             defendant from the vehicle. Id. As he was being removed; defendant said.               to the officers; ''I
             don't.sell drugs, l don'tsell drugs." N.T. t/L0/18 at24.

                      Arthal same time, Officer Debarberie observed.that the cup holder tray that was

             connected to the center console had been manipulated and disconnected               from its frame, allowing
             access into.the space beneath (he tray. N.T. lll0/18 afl3-l4. Since defendant had been

             reaching in and around.that area, OfficerDebarberie lifted the tray and looked inlo the space to

             search   for weapons.       N.T. J/lOll 8   at 14-22, 40, 58,   Thereuithe' void Linder the tray; in an area

             where electrical wires were running, she found a Jolly Ranchers candy bag, N:T! J /10/18 at 21-

             22! Based on defendant's spontaneous statement, "I don't sell drugs," defendant's movements in

             the car, the manipulationofthe tray allowing access toa void not designed for storage, and
             because the bag was hiqden in that void, the orficer believed that the bag was relaied to narcotics

             activity'. N.T. Ill 0/18. ,lt$9. The officer therefore retrieved and' opened the bag, finding thirty-

             nine clear plastlc
                             .•
                                packets containing
                                                 .
                                                   heroin and.feruanyl. N.t. l./10/18 at 22,.86. In addition,

             Officer Debarberie recovered S i2S in various denominations. from a cLJp holder in the car. N.T,

             1/IO/J 8 at 25.. Finally, when. defendant was searched incidentto arrest, Officer Saxton recovered

             ,$343 in various denominations from defendant's person. N.'r'. 1/10/18 at 25, 89-90� 94.:.95;

             Commonweal th Exhibit C·:2.


                                                                       J



....-   _,       ,.           ,      ,                                                                                      . .,.-,.. ,   ,._.   ,.,,_.
                    According to Officer James Trappler, an expert in narcotics and narcotics packaging, the
             number of packets, the street value of the seized drugs, the denominations oft he currency.found

             on defendant and in the car; the absence of drug paraphernalia, and other factors, led him to

             conclude thatthe drugs. at issue were possessed by defendant with intent to deliver; Ni'I', lllOtl 8

             at 96�101.

                                                       n.   DISCUSSION

                    A. Motionto Suppress

                    Defendant first claims thatthe trial court erred by denying defendant's motion to

             suppress the physical evidence. Statement of'Errors at 14(a). ';�ln reviewing a ruling on a

             suppression motion, the standard of review is whether thefactual findings and legal conclusions

             drawn therefrom are supported by the evidence.'; Commonweattb v. Who/aver •. 989 A:2d 883,

          ·· · 896 (Pa. 2010) (quoting Commonwealth. v; Bronshteln, 691 A.2.d 907, .913 (Pa. 1997)).

             Additionally, "fw]here the. record supports the findings of the suppression· court, [the reviewing

             court] is bound by those foots and may reverse only if'the legal conclusions drawn therefrom arc

             in error." Commonwealth v. Ligons; 971 A2d fl 25� 1148 (Pa. 2009).

                    Defendant asserts three bases tor his claim thatthe Courterred in denying his motion to

            suppress the physical evidence. First, he argues that the police "lacked reasonable articulable

            suspicion. that [defendant] was armed anddangerous when they opened the car doors and

             removed [defendant] from his vehicle after stopping him for a minor traffic violation."

            Statement of Errors at 1 4(a)(i). This claim is without merit.

                     "When a police officer lawfully stops a motorist for a violation. of the Pennsylvania

             Motor Vehicle Code, the officer is pennitted to ask the drivejr] to step out ofthe vehicle as a

            matterofright. Further; an officer has the.rightto conduct a weapons search of an.autornobile.if



                                                              4




··-··-········ · -----------
.i




     there ·is·.a reasonablebelief that thesuspect is dangerousandthat the suspect might gain

     immediate-control ofweapons .." Commonwealth             :v. Boyd, l 7 A.Jcl   1274, 1277 (Pa. Super; 20 l I)

     (internal ci tations   and quota ti bhS .om itted) ;· see CT lso Commonwealth v.: Morr is, 644 ;A. 2d 721, 713

     (Pa. 1994). (requiring that officer's beliefmust be based on specific.artieuleble facrs);
     Commonwealtn v: Cartagena, ($3 .A:3d 2,94, 300 (Pa, Super. 20i":f) (en bane) (notingthatsearch

     is limited ·to the passenger compartment of the vehicle, where a weapon could be 'placed), l:n

     determi ning whether.the officer's. belief was reasonable; the Coll rt looks ro the totality of the

     circumstances and· considers such factors· as.whether' the stop occurred in a high: crime area, ..the

     time ofday, whether. the defendant-immediately stopped the vehicle, the· defendant' s beha vior,

     ·Md: whetherthe defendant made, movements inside of the vehicle, Commonwealth v.. Buchert,

     68 A.3d 9l l, 913.: l 6-. (Pa; Super: 20 i 3) .

             . Here, the-evidence adduced .at the suppression ;h�arinft: established that- the officers.held a

     reasonable belief that defendant' was dangerous and that he might have access to weapons in::his

     vehicle.. Officer Debarberieteslifiedthat afterdefendant's vehicle was stopped for the failure to-

     use. a turn signal, she Md Officer Saxton approached the vehicle, but could not see.defendant .due.

     to the vehicle} s windows being heavily tinted ... N.T. ·1 i l'0/18 at 11. Officer Debarberie could,

     however, make out defendcnr'e-silhouette ori.d was ablejo observe de fendarit movir.ig in th�

     vehicle and reaching towardsthe center: console. N.T.1/10/l S: at 1 l-i7,."31, 92. Addirlonally,

     while Officer Saxtonordered defendant ..,t0.- put-down his. wi.ndqYI mu! tip le· times} defendant.did

     not comply; N.T. l/10/18 at l -l-12. Officer Debarberie testified that at that point, she feared for

     herpartner'ssefetybeceuse she could riQ:t see what-defendant was reachingforinthe vehicle,

      . .. 1/10/l&at 12.. Underthese circumstances, the.officers had ample reason to believe. thatin
     N.J

     theinterests of their safety; itwasnecessaryto enter the vehicle and couducta seerch.foe
weapons.     Fina.lly, as it is uncontested that defendant Was lawfullystopped p'-1J'su�11Uo a.
violation of the molorvehicle code, th.e officets were free to remove defendant from the. velricle

ar that time. Boyd, 17 A.Jd at 1277,

          Next, defendant claims that the· officers "lacked-probable cause to. disassemble the

console ofappellant'svehicle,
           .
                              after noticing: a one-fourth lnch.gap,
                                                                  . .
                                                                     '. and also to remove, examine,

and look ins ide of a non-translucent candy bag, where packets of heroin were recovered."

.Statement ofErrors at ,i 4(a)(ii). This claini is also withoutmerit,

          As stated above, when conducting.a weapons search in. a vehicle.sofficers may search

anywhere within the compartnient of the vehicle where a weapon. could be placed .. Cartagena,

63 A.3 d at JOO. Here, 0 fficer- Debarberie tesli tied that.wh! le defendant was bei ng removed from

·his vehicle, the officer-observed that the cup holder traywithin the.center console had. beertpried

up t'fom its frame, exposing a quarter o.t' an inch grip. N.T. J/J0/18. at 14. Based onher

experience and training,
                      .   '         ·�
                         Office:r Debarberie was aware.that
                                                   '     .
                                                            there -,was ti h1dden space underneath
                                                             '                           '



the tray .. As discussed above, because.Officer Debarberie reasonably believed thatdefendant

was dangerous and that a weapon could have been concealed in the space, she was .permitted             to
do. a: protective search o (the urea for weapons regardless of whetherthere-was probable cause to

conduct a .seareb al that. t1111�. Sita pp-·4-�,.Jiuj,rt,. Because the officer .observed the Jolly ·

Ranchers candy bag during the lawful protective search, her observation of the bag was .entirely

lawfu1.

          Because the candy b�1g wasnot likely Lo. contain a weapon, the warrantlesssearch of the

bag could not be justified as part of the protective sweep. However,
                                                            .                    . fully. entitled
                                                                     the officerwas

to open and search the bag under the autcmobile.excepfion to the warrant requi rement. -See.

Commonwealth V, Gary, 91 A.3d 102 (P.a. 20\4)'(-hpldi.ng the federal automobile exception· to the


                                                       :6
warrantrequirement to apply under Pennsylvania law), Under that exception, officers having.

probable cause to believe tharrhere is contraband in a car may search not only the entire car, but

also. any packages and containers found within. the car. See Commonweaith v. Rttnyan,.160 A.3d

831, 83 7 tPa. Super, 20:17); In re 1.MS.1. ·124 A.3.d ll 1; 3·16. t 7 (J?a. Sup�r:2015).     Once Officer
Debarberie, dudng her protective search of thecar, observed.a.Jolly 'Ranchers candy bag. inan

area .o·f the cat not designed for sterage.notordinarily accessible 'tc oc?upants of the car, and.

where electtical wires were present, she unquestionably nad probable cause to .believe that the

car contained evidence ofa crime: Runyan, 160' A.Jd at 8-37 (probable-. cause to search a car

exists where the totality of the circumstances'would warrant a person ofreasonable caution to

believe that there. is contraband in the cat). Accordingly, no warrant. wasrequired to open and

search thecandy bag . Id:
        FinaHy·, defendant claims that because the IJS currencyfound on his person and in his

vehicle was "fruit of the poisonoustree," italso should have been-suppressed. Statementof

Errors at � 4(a)(iii). The premise of this claim is that the search leading to the.seizure of the

drugs was unlawful. Because the search leading to the discovery.and seizure .of thedrugs was

entirely 'lawful, there could be· no illegaJ·fru.its derived from thatsearch.

        Accordingly., all. physical .cv.idc·nce:wils pr.o:p�rly se ized and defe.ndant',�.mqtior:i to

suppress the physical evidencewas properly denied.. No relief isdue.

        B. Expert Witness Officer Scirci)1 Debarberie

       Defendant next -clairns that the Court abused. its discrefion by "qualifying Officer Sarah

Debarberie as .an.expert in tlie field of 'consolecup bolder devices beingused to conceal drugs'

based on a· one-week conference she attended on the topic.": StaternentefErrors .at �A(b).. This

claimis without merit.
        Pennsylvania Rufo ofEvidence 702 allows a witness to testify in the form of anopinion

as an expert.if "a) the expert's scientific, technical, or other specialized knowledge is beyond
                                                                                       )'


that possessed by the average layperson; b) the expert's scientific, technical, orother specialized

knowledge will help the trier of fact to understand the evidence orto determine a fact in issue;

and c) the expert's methodology is· generally accepted in the relevant field." Pa.R.E. 702 .. "The

standardJcwq�1alification ofan expertwitness is a liberal one. 'the test to be applied when

qualifying an expert witness iswheiher the witness has any reasonable pretension to specialized

knowledge 01J the subject under investigation. A witness does not need formal education on the

subject matter of the testimony, and may be qualified to render an Opinion based Oil training and

experience." Commonwealth v. Malseed, 84 7 A2d 112, i 14 (Pa; Super; 2004) (internal

q11otati�:,1is �nd citations omitted): FinaHy, the qrn.ili fication of an expert rests with the discretion

ofthe trial court and will only be disturbed upon an abuse of discretion. Jd. at 115.

        At defendant's suppression hearing, which was later incorporated into the 'trial, the

Commonwealth presented the testimony ofOfficer Debarberie as ,111 expert in the area ofconsole

cup hclder devices that are used to conceal drugs, N.. T .. 1/ l Oll8 at 13-22. As to her

qualificii�ions, Officer Debarberie testified that in addition to recently attending, a week-long
conference pi1 secret corrrpartrrrerrts in vehi.cles ihnt are .used to conceal crtrninal acrivity, she also.

receivedseveral trainings throughout her career as a police officer on the subject.         N.T l/1.0/18
a:t.14, l7. The trainings covered howcertain vehicles are designed, where natural spaces are

located within these vehicles, and how to identi fy if such a. space has been tampered        wi rh.   N.T.

\/W/18-at l.4, l7.:J8, Moreover, as defendant was driving a 2007 GMC Yukonat.the time of his

arrest, Officer Debarberle confirmed that she sped fically received training on GM vehicles, and
                        from that training, -she 'leamed that .in OM. vehicles, there is a. naturalspace. in the. center C00$91�

                        area and dash area. N.T. 1110/18 at 17.., 18.

                                   Accordingly; Officer Debarberie.clearly possessed 'specialized knowledge _in the area of

                        secret'compartmcnts in vehicles that was. 'beyond' the knowledge ofanaverage layperson, and

                        .allowed herto express opiuiorrs very-helpful to the .tder of fact, In particular, her expert

                        testimony assisted theCourt in imderstanding how. defendant tampered with the center console of

                        thevehicle to hide drugs                  andhow the-officer.was able to spot the secretcompartment.

                        Accordingly, no relief isdue.

                                C. Reopening_ Motion. ta Suppress
                                Defendantnext claims that tbe Court abused its disctetlon and its role as a neutral

                        magistrate when it "require]eel] the Conunonweahh to reopen the morion Jo suppress                           and recall

                        [Officer Debarberie], afterthe Commonwealth had rested.aud argurrrents were made by-both

                        sides, where the Cornmonwealrh.had otherwise foiled                    to meet.its burden in the motion to
                        suppress."
                          .        Statement           of Errors at i. 4(c),
                                                                         . . ·Thfs·dalm- is without.merit.
                                                                                                   .


                                "The generalrule is that prior to rendering its decision, a court mny in its discretion

                        permit either side to reopen its case to present additional testimony." Commonweallhv. 'Griffin,

                        412 A.2d 897., 90} (Pa; Super. 'I 979) (n.ol.irigthtn t:h� decisiou to. reopen            i:l   c ase should heey.�q

                        more flexible where. the issue                is notguilt, but instead, the admissibility of evidence); see also
                        Commonwealth v, Branch; 4J7 A.2.d 748_, 150�$ I (Pa; Super. J 9.IH). (.en.bc0�').(con¢luding.

                        suppression court is 'permitted lo reopen a hearing-to-receive additional testimony that was

                        inadvertently omitted by the Commonwealth), Moreover, the court ni�y sua sponte reopen the

                        record and allow th.¢ parties to supplement it; if the. court believes tbat such mustbe sf one in

                        order toavotda miscarriage ofjustice. Commonweoith v. S.a}kc1, 141 A.3q 1�3-9, 1249-50 (P�.



                                                                                        9.



....... ......   ,,,,           .......      ,, __..   _. .__..                                                                  _     -------....---·--···
2016). A court's decision to reopen the record will only be reverseduporra showing ofan abuse

ofdiscretien. Id. at 1248 .

         .Here, following argument at defendant's.suppression hearing, the Court opined that the.

record was not clear regarding Officer Debarberies basis for taking and opening the folly

Ranchers candy bag that she found in the space beneath the center.console. N.T. l/10/I 8 at 52-

55, The parties did not agree, and the Cot111 did not recall, whether the officer testified why she

bad looked in. the bag: N.T.1/10/LB at 46;. 52-56. For that reason, the Court concluded that it

was in the interest of justice to permit.the Commonwealth to reopen the record and recall Officer

Debarberie to answer additional questions onthe issue; before the Court rendered itsdecision.

N .T. 1/l 0/18 at 55-56 .. Moreover, as this was a pre-trial suppression hearing, there was no

potential that theadditional presentation of evidence would disrupt the proceedings, nor

prejudice defendant inany way. Accordingly; the Court did not.abuse its discretion.when it

reopened the record sue sponte to seek additional clarification on Officer Debarberie' s basis for

taking and opening the candy bag. No relief is due.

         D. Sufficiency ofthe Evidence

         Finally, defend ant claims that the evidence was insufficient to sustain a conviction for

PWID because "the Commonwealth failed to prove beyond a reasonable doubt .that [defendant].

had the intent to deliver heroin/fentanyl," Statement ofErrors at14(d}, This clalm is without

merit.

         In considering a challenge to the sufficiency of the evidence, the Courtmustdecide

whetherthe evidence al trial, viewed in the light most favorable ro the Comrnonwealth, together.

with all reasonable inferences therefrom, could enable the fact-finder to find every element of the

crimes charged beyond a reasonable doubt. Commonwealth. v. Walsh, 36 A.3d 613, 618 (Pa.


                                                  TO.
       Super. 20.12). In maki11g this assessment, a reviewing court. ri1a( not weigh the evidence and

       substitute its ownjudgment 'tor.:lliat of.the fact-finder, who isfree to believe allpart, ornone of

       :�he evidence .. 'Commonwealih v. Ramtahi1,/.; 3'.3 AJd .602,. 6.07 (Pa. 2Q 11 ). 'The Commonwealth

       m.ay satisfy itsburden bf proofentirely by .C:irc.ums.tl:\nt.ihLevid.ence. Id r:-int1.l!y1 "[ijf the record

       contains support for the· verdict, -, ir may not be disturbed." Commonwealth             l!:   Adams, 8.82 A:2d

       4961 499.(Pa. Super. 2005) (quoting Commonwealth v. Burns, 765 A ..2d i 1'44; 114.8 (Pa. Super,

       200:0), appeal. denied, 782 A.2d 542 (P�,. 200:-J.)}.

                To sustain aconviction.for PW10,Jhe Commonwealthis required to prove "that the

       defendant possessed a controlled substance and           did �o with the intent to-deliver it:'

       Commonwealth. v; Bricker, 882 A.2d i'0.08, I 0(5 (Pa, ·Super. 2.005). The requisite intent may be.

       inferred from all ofthe facts and circutnstances of the case, including-the method of packaging,

       ·th.e forin.ofthe drug, andthe defendant'sbehavior. id; Also relevant are the quantity of d.1'l1gs

       possessed and the lack of drug paraphernalia . .Co1J11honwep/th \}. Johnson, 7�2 A.2-d 10401 I 040

       (Pa. Super. 2001 ). Where no transactions-are observed, expert testimony niay be considered by

       the fact-Iinder on. the issue pf lntentto deliver. Ctmimm1\ii�cilt�, v. Carter, 58·9 A.2d· l l 33, I ns·

       (Pa. Super.), appeal dented; 5.9?. A.2d l'l 5 J:.(Pn. 1991):

                l'{cr.e,. 0 hiccr S�,xton tc��i f-ied thot v-ih.en -he: and Oft1ce'r. Debarberie p.tii led. defendant over

       for failing.to use a: turn signal, the officers observed defendant.reach.into his center console.

       N.T.   1/l0/18 at.9.1-92. When defendant did not comply with 'Offlcer Saxton's orders to.stop

       what he was doing, theofficer removed defendant              from the vehicle, N.T, 1/10118 at. 92.       When

       he.was. being removed from the vehicle, defendant spontaneous! y told the: o tficers.:"] don t:i sell

       drugs." ,N.T. 1/10/18 at 2'4, 95, 'furth�nnor�,. when Officer Debarberie searched defendant's-car,

       she discovered a Jolly Ranchers .candy. bag, hidden beneath the center console, containingjhirty-



                                                               11




 --·-··---·----------------------:.------------·---
..
nine clear pl,1stic packets of heroin and fentanyl.    N.T t/10/18 at 22, 59; .86,   In addition, the

officers recovered $1 is ii') various denominations from a CJ.lP holder in the vehicle and $343

from defendant's person .. N.T. 1110/18 a.t25, 89-90, 94.

       Attrial, (he Cornrrrouwealth culled Officer James Trappleras an expert in. narcotics and.

narcotics packaging. Officer Trappler had been a narcotics officer for 30 years. and .a police

officer for '3 7. years. He stated (hat, in his. expert
                                                     .  opinion,
                                                            .  . the number of packets containing


heroin and fentanyl, the street value of the seized drugs; defendant's proximity to where heroin is

sold, the various denomiuatlons.ofthe. U.S . currency recovered, and the lack of user

paraphernalia, established that the drugs at issue were possessed with the intent to deliver. N.T.

]110/18 at 98-: I Ol. This was ample evidence to allow �reas9nablefact�fir1derto conclude,

beyond a reasonable doubt, that defendant. both possessed a comrolled substance
                                                                            .   and did so
                                                                                         . with

the intent to deliver. See Commonweal: h v. Ratsamy, 934 A.2d 1233, 1236;.3 8 (Pa. 2007};

Commonwealth v. Robinson, 582A.2d         14, 17 (Pa. Super. 1990),    appea! denied, 598 A.2d     282

(Pa. t99·t. ). While defendant cal led a. drug expert who reached a contrary opinion; N.T. I /l O/l8

at UO· l 24, the Court, as factfirider, was entitled   to credit the testimony of the. Commonwealth.
expert, and to find th� defense expert not to be credible. Rdmtah"l� 33 A.3d.at 607.

        Accordingly, defeqdant'-s. sufficiency of the evidence claimsshould be. rejected.

                                          Ill.CONCLUSION

         For all of.the foregoing reasons, the   Court's judgment of sentence should be affirmed.


                                                                  BY THE COURT:




                                                                  GLENN 8. BRONSON; J.
