J-S07025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

RONALD J. WYATT

                            Appellant               No. 1313 MDA 2016


           Appeal from the Judgment of Sentence February 24, 2016
              In the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0001177-2015


BEFORE: BOWES, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                      FILED FEBRUARY 08, 2017

       Ronald J. Wyatt appeals from the judgment of sentence, entered in the

Court of Common Pleas of Lebanon County, following his conviction for

multiple drug offenses.1 After careful review, we affirm.

       The trial court aptly summarized the facts underlying Wyatt’s arrest as

follows:

       At the trial, Detective Michael DiPalo of the Lebanon Count Drug
       Task Force testified that he received information that [Wyatt]
       would be traveling to Philadelphia via the Pennsylvania Turnpike
       to pick up drugs on May 8, 2015. As a result, Detective DiPalo
       and other officers conducted surveillance of [Wyatt]’s home and
       anticipated route of travel. The officers eventually observed
____________________________________________


1
  Wyatt was charged and convicted of three counts of possession with intent
to deliver, 35 P.S. § 780-113(a)(30) (cocaine and marijuana), 35 P.S. §
780-113(a)(16) (methamphetamine), and three counts of possession of a
controlled substance, 35 P.S. § 780-113(a)(32) (cocaine, marijuana, and
methamphetamine).
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     [Wyatt] driving a gold-colored van, which was registered to one
     of Defendant’s family members, traveling on the Turnpike. After
     the van exited the Turnpike, officers from the South Londonderry
     Township Police Department followed it as it headed north on
     Route 72. When the van was stopped and searched, two cell
     phones were found inside. A K-9 unit was summoned and also
     conducted a search of the vehicle. The K -9 officer indicated to
     the engine compartment of the car. When the hood was opened,
     officers found a bag containing two pounds of marijuana,
     approximately an ounce of methamphetamine and an ounce of
     cocaine. When asked whether he had any other controlled
     substances at his residence [Wyatt] admitted that he had some
     additional cocaine and a cutting agent there.            [Wyatt]
     accompanied the detectives to his home and led them to the
     cocaine and the cutting agent which were hidden in some paint
     cans in the basement.

     Another member of the Drug Task Force, Detective Ryan Mong,
     also testified at the trial. Detective Mong was qualified as an
     expert to testify as to whether drugs were possessed for
     personal use or delivery. Detective Mong was assisting Detective
     DiPalo with surveillance and made the initial contact with
     [Wyatt] after the van was stopped. Detective Mong had [Wyatt]
     exit the van so that he could speak with him. After Detective
     Mong explained the information they had received, Defendant
     consented to a search of the van. Defendant told Detective
     Mong that there was a small amount of marijuana in the back of
     the van. When the officers opened the hood, [Wyatt] yelled
     “bingo, bingo, bingo.”      When Mong asked what he meant,
     [Wyatt] said “you'll find out.” [Wyatt] told them to open the bag
     and then said that he would cooperate so that they could get to
     the “big guy.” When he was asked whether he had other drugs
     at his home, [Wyatt] offered to take the detectives there to get
     them.

     Detective Mong opined that [Wyatt] had possessed the
     marijuana, cocaine and methamphetamine with the intent to
     deliver.   In reaching this opinion, he noted that the large
     amounts (807 grams - nearly two pounds – of marijuana, 51
     grams of cocaine, and 28 grams of methamphetamine). These
     items were packed in bulk as they had been picked up from
     [Wyatt]'s supplier.    Detective Mong explained that dealers
     usually purchase drugs in bulk because it is cheaper.          In
     addition, no items which could be used for ingestion of the drugs


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      were found and [Wyatt] had $1,400.00 in currency on his
      person.

      On cross-examination; Detective Mong acknowledged that
      disposable items could be used for the ingestion of controlled
      substances. He also explained that the detectives did a “walk-
      through” of [Wyatt]'s home and did not search drawers or
      cabinets. When asked about the consumption of drugs by an
      addict, Detective Mong indicated that a “terrible” addict could
      possibly use up to a hundred dollars’ worth of controlled
      substance per day. However, he further noted that the amount
      of drugs in this case would last a user up to six months,
      depending on the frequency of use, and that a typical “user”
      would not be expected to have this quantity of drugs. The fact
      that he already had cocaine in his home and went out to
      purchase more also made it unlikely that the drugs were for
      [Wyatt]'s personal use. Detective Mong also acknowledged that
      a cutting agent could be used to dilute the potency of a
      controlled substance, but that doing so would reduce the “high.”

      [Wyatt] testified that he was sixty years of age and had been
      doing drugs since he was twelve years old. He indicated that he
      had suffered with drug addiction for many years and that he was
      using drugs at the time of this incident. He explained that he
      had purchased the drugs in Philadelphia because they were
      cheaper there. He admitted that he sold marijuana, but that the
      cocaine and methamphetamine were for his personal use. He
      used the proceeds from the marijuana sales in order to pay for
      his cocaine and methamphetamine habit. [Wyatt] claimed that
      the marijuana found in the back of the van was for his disabled
      son's medical needs. He further explained that he had used the
      cutting agent at his home to dilute the cocaine in order to avoid
      overdosing, but that he had ruined the cocaine by cutting it too
      much. He had those items hidden in the paint cans to keep it
      from children in his home. He claimed that the $1,400.00 was
      from sources other than drug sales. On cross-examination,
      [Wyatt] admitted that he had several clean urine tests around
      the time of this incident and Detective DiPalo testified that
      [Wyatt] had said nothing about being an addict to the
      detectives.

Trial Court Opinion, 7/26/16, at 2-5.




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      Wyatt was tried before a jury and convicted of all charges.           On

February 24, 2016, he was sentenced to 5 to 10 years’ imprisonment. On

February 29, 2016, Wyatt filed post-sentence motions that were denied.

Wyatt filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b)

concise statement of matters complained of on appeal.

      On appeal, Wyatt presents the following issues for our review:

      (1)   Whether the Wyatt's motion for acquittal should be
            granted due to the Commonwealth's failure to present
            sufficient evidence at trial to prove the possession with the
            intent to deliver cocaine and possession with the intent to
            deliver methamphetamine?

      (2)   Whether the jury’s verdicts were against the weight of the
            evidence as it pertains to the possession with the intent to
            deliver cocaine charge and possession with the intent to
            deliver methamphetamine?

      Wyatt first contends that the Commonwealth failed to prove, beyond a

reasonable doubt, that he possessed cocaine and methamphetamine with

the intent to deliver.

      In reviewing a challenge to the sufficiency of the evidence, we must

determine whether, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, together with all reasonable inferences

therefrom, the trier of fact could have found that each and every element of

the   crimes   charged   was   established   beyond    a   reasonable   doubt.

Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000).               In

order to convict an accused of possession with intent to deliver under 35

P.S. § 780-113(a)(30), “the Commonwealth must prove that he ‘both


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possessed the controlled substance and had an intent to deliver that

substance.’”     Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super.

2011) (citation omitted).

       Moreover, “[w]hen determining whether a defendant had the requisite

intent to deliver, relevant factors for consideration are ‘the manner in which

the controlled substance was packaged, the behavior of the defendant, the

presence of drug paraphernalia, and large sums of cash[.]’”                Id. (citation

omitted).    “[E]xpert testimony is . . . admissible ‘concerning whether the

facts surrounding the possession of controlled substances are consistent with

an intent to deliver rather than an intent to possess it for personal use.’”

Id. (citation omitted). “[P]ossession with intent to deliver can be inferred

from   the     quantity    of    the   drugs     possessed   and   other   surrounding

circumstances,      such        as   lack   of    paraphernalia    for   consumption.”

Commonwealth v. Ratsamy, 934 A.2d 1233, 1237-38 (Pa. 2007).

       Wyatt claims that the Commonwealth failed to prove that he

possessed the drugs with the intent to deliver. Specifically, he discredits the

Commonwealth’s expert, Detective Mong, who opined that, based upon the

weight of the controlled substances, they were intended to be delivered.

Wyatt argues that his own testimony (he is an addict who buys drugs in bulk




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because it is cheaper, adds a cutting agent2 to the drugs due to a past

overdose experience, and was buying the drugs because he ruined a batch

by using too much cutting agent) is more reliable than the expert’s

speculation.     Finally, Wyatt asserts that officers did not find drug use

paraphernalia in his home because they did not search drawers, closets, or

other areas where an addict might hide paraphernalia.

       Instantly, the trial court found that based on the sheer amount of

drugs packed in bulk (almost two pounds of marijuana; 51 grams of cocaine;

and 28 grams of methamphetamine), the absence of any drug-use

paraphernalia in Wyatt’s home or van, $1,400.00 found on Wyatt’s person,

and the presence of a cutting agent, the intent to deliver was proven beyond

a reasonable doubt. We agree and find that there was sufficient evidence to

sustain Wyatt’s conviction of possession with intent to deliver.         See

Commonwealth v. Ariondo, 580 A.2d 341 (Pa. Super. 1990) (although

defendant testified that he was heavy drug user and intended cocaine for

personal use, court made its own credibility determination and discounted

defendant’s self-serving testimony where other evidence supported court’s

finding that defendant possessed cocaine with intent to deliver).




____________________________________________


2
   A cutting agent is a non-controlled substance which is mixed with a
controlled substance in order to increase its volume and the potential profit
from it.



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      In his final claim on appeal, Wyatt asserts that the jury improperly

weighed the testimony of the Commonwealth’s expert in determining that

Wyatt possessed the drugs with the intent to deliver.

      The finder of fact is the exclusive judge of the weight of the
      evidence as the fact finder is free to believe all, part, or none of
      the evidence presented and determines the credibility of the
      witnesses. As an appellate court, we cannot substitute our
      judgment for that of the finder of fact. Therefore, we will reverse
      a jury’s verdict and grant a new trial only where the verdict is so
      contrary to the evidence as to shock one's sense of justice[.]

      Furthermore,

         where the trial court has ruled on the weight claim below,
         an appellate court’s role is not to consider the underlying
         question of whether the verdict is against the weight of the
         evidence. Rather, appellate review is limited to whether
         the trial court palpably abused its discretion in ruling on
         the weight claim.

Commonwealth v. Rabold, 920 A.2d 857, 860-61 (Pa. Super. 2007)

(citations omitted).

      Wyatt claims that, given his forthcoming testimony regarding the fact

that he is an addict and had the financial resources to buy drugs in bulk, the

court should have regarded him as more credible than the Commonwealth’s

expert, whose opinion was based on conjecture. Again, we emphasize that

the jury, as the trier of fact, was tasked with passing upon the credibility of

the witnesses and determining the weight to be afforded the evidence.

Moreover, the jury was free to believe all, part or none of Wyatt’s testimony.

Accordingly, we cannot conclude that the trial court palpably abused its

discretion in ruling on Wyatt’s weight claim. Rabold, supra.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/8/2017




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