J-S66021-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                         Appellee        :
                                         :
             v.                          :
                                         :
ALPESHKUMAR PATEL,                       :
                                         :     No. 561 MDA 2014
                         Appellant       :     No. 562 MDA 2014


     Appeal from the Judgment of Sentence Entered February 27, 2014,
               In the Court of Common Pleas of Berks County,
             Criminal Division, at Nos. CP-06-CR-0005270-2012
                       and CP-06-CR-0005274-2012.


BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED NOVEMBER 25, 2014

      Appellant, Alpeshkumar Patel, appeals from the judgment of sentence

entered on February 27, 2014, in the Berks County Court of Common Pleas.

We affirm.

      In its Pa.R.A.P. 1925(a) opinion, the trial court set forth the relevant

facts of this matter as follows:

             Detective Douglas Weaver, at that time operating in an
      undercover capacity, was assigned to assist Detective Joseph
      Walsh with an investigation into possible drug sales occurring at
      E-Z Shoppe, a convenience store located at 44 East Lancaster
      Avenue in the Borough of Shillington. NOTES OF TESTIMONY
      (N.T.) DEC. 30, 2013 at 29-30. On September 28, 2012,
      Detective Weaver entered the store and approached the counter.
      Id. at 30. Appellant and Nilesh Patel, a coworker of Appellant,
      were behind the counter at that time. Id. Detective Weaver
      testified that he engaged in a transaction for Giggle, a
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     counterfeit controlled substance commonly advertised as a
     scented potpourri:

          A: I asked [Appellant] if I could have two Giggle.
          And he looked to his left at the other Indian male
          that was seated on a chair behind the counter. And
          the male that was seated nodded his head up and
          down.

          And at that point [Appellant] reached underneath the
          counter, opened up a gray plastic bag, and removed
          from that bag a two gram envelope containing two
          grams of Giggle and placed it on the counter.

     Id. at 31, 33. There was also some verbal communication
     between the store’s employees during this initial transaction:

          Q: And you described an interaction between the
          defendant, Mr. Patel, and another Indian male.
          W[ere] there any words said in that interaction?

          A: The interaction between the two, the defendant
          said something that I didn’t understand clearly to the
          other individual who was seated there. And the other
          individual responded in a language that was English
          that I could understand.

          Q: Okay. And what did that individual say?

          A: He said it was all right.

     Id. at 32. After Appellant placed the Giggle on the counter,
     Detective Weaver requested another counterfeit controlled
     substance called Cloud 9:

          Q: And after [Appellant] had placed the Giggle on
          the counter, what happened next?

          A: I asked him if I could have a ten of Cloud 9.

          Q: And what happened when you asked that
          question?


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           A: Once again he looked at the second Indian male
           that was seated and made eye contact with him. And
           the second Indian male shook his head up and down
           and said okay. He then went to the same location,
           got the same bag, opened it up and put a ten gram
           envelope or packet of Cloud 9 on the counter.

     Id. at 33-34. Detective Weaver paid a total of $84.80—$20 for
     the Giggle and $60 for the Cloud 9, plus tax. Id. at 35. After the
     transaction, but while the envelopes of Giggle and Cloud 9 were
     still sitting on the counter, another patron entered the store and
     walked towards the counter. Id. at 36-37. Detective Weaver
     testified that Nilesh Patel “told me to put them in my pocket
     because someone was coming in.” Id. at 37. Detective Weaver
     conducted two or three additional purchases of synthetic
     marijuana in the subsequent week or so. Id. at 38. During each
     of these additional transactions, Appellant was the one to sell the
     controlled substances, which were concealed behind the counter.
     Id. at 38-39. No cash register was used and no receipt was
     furnished. Id. at 39.

           Detective Walsh and several other officers executed a
     search warrant of the store on October 11, 2012. Id. at 53-54.
     The officers seized eleven items, including a black plastic bag
     (containing a white plastic bag containing four bags of Cloud 9),
     United States currency, clear plastic baggies, a scale, and
     several glass pipes. Id. at 57-58. The glass pipes would have
     been in plain view to customers; the packing materials, scales,
     and Cloud 9 were behind the counter in drawers. Id. at 61.

           The Commonwealth also presented testimony from
     Detective Anthony DeFazio, an expert in the field of narcotics
     investigation, who concluded that Appellant possessed the
     counterfeit controlled substances with the intent to deliver. Id. at
     79. Detective DeFazio testified that his conclusion was based on
     the storage of the contraband, the scales, the buy money, the
     packaging material, the glass pipes, and the concealment of the
     contraband within the store. Id. at 80-82.

Trial Court Opinion, 6/24/14, at 2-3 (footnotes omitted).




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      On December 23, 2013, following a jury trial, Appellant was found

guilty of delivery of a controlled substance, possession with intent to deliver

a controlled substance (“PWID”), conspiracy to commit PWID, possession of

a controlled substance, and conspiracy to commit possession of a controlled

substance.1 On February 27, 2014, the trial court sentenced Appellant to an

aggregate term of two to four years of incarceration. Appellant filed a timely

appeal.

      On appeal, Appellant raises one issue for our consideration:

      Whether there was insufficient evidence to support the jury’s
      verdict as the Commonwealth failed to establish Appellant
      knowingly possessed synthetic marijuana where Appellant
      believed the item to be tobacco?

Appellant’s Brief at 8.

      When examining a challenge to the sufficiency of the evidence:

      The standard we apply . . . 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 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

1
  The synthetic marijuana was chemically tested, and those tests revealed it
contained the following Schedule I controlled substances: JWH 018 (35 P.S.
§ 780-104(1)(vii)(2)(B)); JWH 210 (35 P.S. § 780-104(1)(vii)(2)(H)); JWH
250 (35 P.S. § 780-104(1)(vii)(6)(B)); and XLR-11 (35 P.S. § 780-
104(1)(vii)(12)). N.T., Trial, 12/30/13, at 148 (Commonwealth’s Exhibit 6).


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     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. Orr, 38 A.3d 868, 873 (Pa. Super. 2011) (quoting

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011)).

     As noted above, Appellant was convicted of delivery of a controlled

substance, PWID, conspiracy to commit PWID, possession of a controlled

substance, and conspiracy to commit possession of a controlled substance.

The Crimes Code definitions of these offenses are set forth below:

     Possession of a controlled substance:

     Knowingly or intentionally possessing a controlled or counterfeit
     substance by a person not registered under this act, or a
     practitioner not registered or licensed by the appropriate State
     board, unless the substance was obtained directly from, or
     pursuant to, a valid prescription order or order of a practitioner,
     or except as otherwise authorized by this act.

35 P.S. § 780-113 (a)(16).

     PWID:

     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).


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     Conspiracy:

     Definition of conspiracy.--A person is guilty of conspiracy with
     another person or persons to commit a crime if with the intent of
     promoting or facilitating its commission he:

           (1) agrees with such other person or persons that
           they or one or more of them will engage in conduct
           which constitutes such crime or an attempt or
           solicitation to commit such crime[.]

18 Pa.C.S. 903 (a)(1).2 Appellant’s narrow argument is that he did not know

he possessed, or conspired to possess, synthetic marijuana.       Appellant’s

Brief at 10. Thus, he claims that the Commonwealth failed to establish the

necessary mens rea. We disagree.

     The trial court cogently addressed Appellant’s challenge as follows:

           The Commonwealth introduced ample evidence to
     establish that Appellant knowingly possessed synthetic
     marijuana. When an undercover officer requested Giggle, a
     synthetic marijuana product, Appellant looked to a coworker,
     Nilesh Patel, for permission. Appellant again sought the
     coworker’s permission when the undercover officer requested
     Cloud 9, another synthetic marijuana product. The synthetic
     marijuana was significantly more expensive than ordinary
     tobacco. Additionally, the undercover officer was told to put the
     products in his pocket when another customer began
     approaching the counter. During this and subsequent controlled
     buys by the undercover officer, no cash register was used and no
     receipt was furnished. The synthetic marijuana was always
     hidden from view behind the counter and within plastic bags.
     Execution of a search warrant also revealed clear plastic baggies,
     a scale, and several glass pipes. Finally, an expert witness in the


2
  Clearly, criminal conspiracy alone is not a possessory offense. Our focus
here is on the objects of the conspiracy, which in the case at bar, are the
aforementioned underlying crimes of possession and PWID.

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      field of narcotics investigations concluded that Appellant
      possessed the synthetic marijuana with the intent to sell.

             In light of this testimony, the Commonwealth clearly
      presented sufficient evidence for a reasonable jury to conclude
      that Appellant knowingly possessed synthetic marijuana. As
      discussed supra, courts must substantially defer to the jury as
      fact-finder. We are not entitled to reconsider the evidence or
      determine whether the pertinent witnesses were credible.
      Accordingly, Appellant’s sufficiency of the evidence claim lacks
      merit.

Trial Court Opinion, 6/24/14, at 5 (footnote omitted).

      Examining the evidence in its totality and in a light favorable to the

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

sufficient for the jury to reasonably find that Appellant was well aware of the

illicit nature of the synthetic marijuana.    Accordingly, Appellant’s sufficiency

of the evidence argument is meritless.

      For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Therefore, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/25/2014




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