J-S68020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                             Appellee

                        v.

TEVIS THOMPSON

                             Appellant                       No. 3450 EDA 2013


             Appeal from the Judgment of Sentence June 17, 2013
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0001324-2013


BEFORE: ALLEN, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                              FILED DECEMBER 01, 2014

       Following    a    non-jury    trial,    the   court   found   Tevis   Thompson

(“Appellant”) guilty of possession with intent to deliver a controlled

substance (“PWID”)1 and sentenced him to 2½-10 years’ imprisonment. The

lone issue in this direct appeal is whether the evidence is sufficient to sustain

Appellant’s conviction for PWID2. We affirm.

____________________________________________


1
   35 P.S. § 780-113(a)(30).
2
   The procedural history of this appeal deserves brief mention. On June 27,
2013, Appellant filed a timely post-sentence motion to modify and
reconsider sentence which was denied without a hearing by Order dated July
3, 2013. On September 11, 2013, Appellant filed a pro se Petition pursuant
to the Post-Conviction Relief Act alleging that trial counsel failed to file a
direct appeal after being instructed to do so by Appellant. By order dated
October 9, 2013, the PCRA court reinstated Appellant’s right to file a direct
appeal nunc pro tunc; trial counsel was directed to file a notice of appeal
within 30 days from the date of the Order. On October 24, 2013, Appellant
filed, pro se, a petition for Direct Appeal and subsequently a “Motion for
(Footnote Continued Next Page)
J-S68020-14



        Thompson raised multiple issues in his counseled Pa.R.A.P. 1925(b)

statement, but the only issue in his brief is a challenge to the sufficiency of

the evidence. Therefore, he has waived all other issues within his Pa.R.A.P.

1925(b) statement3.          Commonwealth v. Kearney, 92 A.3d 51, 66-67
                       _______________________
(Footnote Continued)

Appointment of Counsel.” On November 13, 2013, trial counsel filed a
motion to withdraw as counsel. On November 20, 2013, the trial court
ordered Thompson to file a Pa.R.A.P. 1925(b) statement of matters
complained of on appeal no later than 21 days from the date of the Order.
On November 26, 2013, the court granted in forma pauperis status to
Thompson and permitted trial counsel to withdraw. On the same date, the
court appointed new counsel to represent Thompson on appeal.             On
December 9, 2013, acting pro se, Thompson filed a Pa.R.A.P. 1925(b)
statement. One day later, the court directed appellate counsel to file a
Pa.R.A.P. 1925(b) statement. The court later granted appellate counsel an
extension to file the Pa.R.A.P. 1925(b) statement until after the trial and
sentencing transcripts became available. On March 11, 2014, appellate
counsel filed his Pa.R.A.P. 1925(b) statement. On March 19, 2014, the trial
court filed its Pa.R.A.P. 1925(a) opinion.
3
    These issues are as follows:

The trial court erred when it failed to dismiss the case or issue an
appropriate remedy when Officer Brady, while sequestered during a recess
in his testimony, conferred with Sergeant Bugsch, about matters relating to
Officer Brady's testimony.

The guilty verdict to the charge of [PWID] was against the weight of the
evidence.

The trial court erred when it drew an adverse inference from [Appellant’s]
decision to not call the Commonwealth's informant as a defense witness.

The trial court erred when it denied [Appellant’s] motion for the release of
certain information contained within the personnel files of three police
officers involved in the case.

Pa.R.A.P. 1925(b) Statement, ¶¶ 1, 3-5.



                                            -2-
J-S68020-14



(Pa.Super.2014) (issues are waived on appeal due to absence of developed

argument).

      Thompson challenges the sufficiency of the evidence as follows: “The

Commonwealth’s evidence was insufficient to establish a guilty verdict to the

charge of [PWID] when the record contained insufficient evidence to prove

the elements of ‘possession’ and ‘delivery’ beyond a reasonable doubt.”

Pa.R.A.P. 1925(b) statement, ¶ 2. Our standard of review for challenges to

the sufficiency of the evidence is well-settled:

             [W]hether[,] viewing all the evidence admitted at
             trial   in    the  light most     favorable   to  the
             [Commonwealth as 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     circumstances.    The
             Commonwealth may sustain its burden of proving
             every element of the crime beyond a reasonable
             doubt by means of wholly circumstantial evidence.

Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super.2003) (citations

omitted).

      Pennsylvania    law   criminalizes    “the   manufacture,   delivery,   or

possession with the intent to manufacture or deliver, a controlled substance



                                      -3-
J-S68020-14


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).    A “delivery” is “the actual, constructive, or attempted

transfer from one person to another of a controlled substance, other drug,

device or cosmetic whether or not there is an agency relationship.” 35 P.S.

§ 780-102.    Thus, to establish the element of delivery of a controlled

substance, the Commonwealth must prove that the defendant knowingly

made an actual, constructive, or attempted transfer of a controlled

substance to another person without the legal authority to do so.

Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa.2004). PWID may

be inferred from the facts and circumstances surrounding the case.

Commonwealth v. Daniels, 999 A.2d 590, 595 (Pa.Super.2010). Factors

that may be relevant in establishing PWID include packaging, the form of the

drug, and the defendant’s behavior. Id.

      Construed in the light most favorable to the Commonwealth, the

evidence is as follows: on August 13, 2012, Bensalem Township police

officers were conducting a drug investigation relating to Adrian Thompson.

N.T. 6/17/13 (“Tr.”), pp. 8-9.       During the investigation, the officers

performed a controlled purchase (“controlled buy”) at 909 Bristol Pike,

Building D, with the help of a confidential informant (“CI”). Tr., pp. 8-10.

Bensalem Officer Brady searched the CI prior to the controlled buy, found


                                    -4-
J-S68020-14


the CI free of contraband, and handed him $120 in prerecorded buy money.

Tr., pp. 10-11. The CI advised that Adrian Thompson told the CI that the

meeting at 909 Bristol Pike would be with Adrian’s brother instead of Adrian

himself. Tr., pp. 7-8.

      Upon arriving at 909 Bristol Pike, Officer Brady parked directly in front

of Building D and observed the CI ring the front bell. Tr., pp. 18-19. Officer

Brady does not wear glasses or contact lenses, and his assignment was to

observe the CI throughout the entire transaction. Tr., p. 15. The CI never

left Officer Brady’s view throughout the transaction. Tr., pp. 10, 17, 19, 20,

25, 40, 50.

      The building’s main entrance consisted of two doors, both of which had

glass windows. Tr., p. 17. The building was a dwelling with a vestibule in

front of the doors and stairs that lead up to apartments and down to other

apartments. Tr., p. 17.

      Officer Brady observed Appellant come up from the bottom floor, open

the front door of the apartment building, and hand something to the CI in

the vestibule.   Tr., pp. 19-21.   The CI returned directly to Officer Brady’s

vehicle and turned over two bags of cocaine. Tr., pp. 19-21. Officer Brady

was unaware of Appellant’s identity at the time he viewed Appellant deliver

the two bags of cocaine to the CI containing .76 grams of cocaine. Tr., p.

25. The CI no longer had the buy money. Tr., pp. 25-26.




                                     -5-
J-S68020-14


     Sergeant Robert Bugsch, who was positioned about 90 feet away from

Officer Brady, testified that he saw the CI walk to the doorway and saw

movement inside the vestibule, although he could not specifically see the

hand to hand transaction.    Tr., pp. 68-69.   After the CI walked back to

Officer Brady’s vehicle, Sergeant Bugsch approached the building several

minutes later and rang doorbell number 4. Tr., pp. 71-72. Appellant came

out of Apartment D4, opened the door to the apartment building and stood

face to face with Sergeant Bugsch. Tr., pp. 71-72.

     The next day, August 14, 2012, Bensalem police continued their

investigation of Adrian Thompson with the same CI. Tr., pp. 27-28. Officer

Brady testified that he and the CI drove to the same location as the day

before, 909 Bristol Pike, Building D. Tr., p. 29. When they arrived at this

location, a blue Volkswagen Jetta pulled into the same parking lot. Officer

Brady saw Adrian Thompson in the passenger seat of the vehicle and

Appellant in the driver’s seat. Tr., pp. 29-31. Officer Brady then observed

Adrian Thompson deliver drugs to the CI. Tr., p. 30. Officer Brady obtained

the license plate of the Jetta and learned that Appellant was its registered

owner. Tr., pp. 30-31. Based on the vehicle identification, the officers were

able to identify Appellant, by name, as the person they saw conduct the

drug transaction on August 13, 2012. Tr., p. 30.

     Viewed in the light most favorable to the Commonwealth, there was

sufficient evidence to prove the elements of possession and delivery beyond


                                    -6-
J-S68020-14


a reasonable doubt. Prior to the transaction between Appellant and the CI,

the CI had $120.00 in cash on his person but no controlled substances. The

CI then engaged in a hand to hand transaction with Appellant while two

Bensalem police officers watched the transaction. Following the transaction,

the CI brought .76 grams of cocaine back to Officer Brady but no longer had

any cash in his possession.     This evidence demonstrates that Appellant

possessed cocaine at the beginning of the transaction and delivered it to the

CI in exchange for money. Cf. Daniels, supra, 999 A.2d at 595 (evidence

was sufficient to support defendant's conviction for PWID; officer witnessed

man approach defendant while defendant was sitting in parked car, officer

witnessed hand-to-hand exchange of money for small objects, the man was

stopped and discovered to be in possession of blue-tinted packet of heroin,

and when defendant was arrested, he was found to be in possession of five

blue heat-sealed packets of heroin and $374 in cash).

     Appellant argues that the evidence against him was insufficient due to

inconsistencies in the police officers’ testimony.      Specifically, Appellant

complains that during a pre-trial suppression hearing, Sergeant Bugsch

testified that on August 13, 2012, he could not see which apartment unit the

seller came from, but during trial, he testified that he could see the seller

walk up from the lower level of the apartment building to meet the CI.

Further, Appellant contends that Officer Brady’s arrest reports were

inconsistent with his trial testimony, because he failed to document the


                                    -7-
J-S68020-14


details of the hand to hand transaction on August 13th or document that he

saw Appellant’s face.

      These objections do not undermine the sufficiency of the evidence

against Appellant.   The trial court, sitting as factfinder, heard these minor

discrepancies and resolved them in the Commonwealth’s favor. We cannot

second-guess the trial court’s findings of fact. Our role on appeal is limited

to determining whether the evidence, viewed in the light most favorable to

the Commonwealth, proves the crime of PWID beyond a reasonable doubt.

Construed under this standard, the evidence clearly is adequate to sustain

Appellant’s conviction.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2014




                                     -8-
