J-S19032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
           v.                             :
                                          :
MAURICE HARPER,                           :
                                          :
                 Appellant                :          No. 1176 EDA 2015

            Appeal from the Judgment of Sentence April 2, 2015
           in the Court of Common Pleas of Philadelphia County,
             Criminal Division, No(s): CP-51-CR-0006700-2009

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

MEMORANDUM BY MUSMANNO, J.:                         FILED MARCH 29, 2016

     Maurice Harper (“Harper”) appeals from the judgment of sentence

imposed following his conviction of possession with intent to deliver a

controlled substance (“PWID”). See 35 P.S. § 780-113(a)(30).      We affirm.

     The trial court stated the relevant facts:

           On March 19, 2009, at about 7:00 p.m., Philadelphia Police
     Officer Frank Bonnett [“Officer Bonnett”], assigned to the
     Narcotics Enforcement Team, along with other officers, set up a
     surveillance in the 5700 block of Germantown Avenue after
     police [had] received complaints related to the illegal sale of
     drugs. At that time and location, Officer Bonnett observed
     [Harper] walking back and forth in front of a delicatessen.

            At about 7:10 p.m., Officer Bonnett observed a male, later
     identified as Julian Dawson [“Dawson”], approach [Harper],
     engage him in a brief conversation, and then hand him U.S.
     currency. Upon receiving the money, [Harper] removed a bag
     from his pocket that contained red objects, removed an object
     from the bag, and handed it to Dawson, who then left the area
     on foot. Based on his extensive experience in illegal drug
     sales[,] Officer Bonnett believed that he had just witnessed a
     narcotics transaction[,] so he radioed a description of Dawson to
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      his back-up officers[,] following which Dawson was stopped and
      found to be in possession of a packet of marijuana.

            Approximately ten minutes later, another male approached
      [Harper] and participated in an identical transaction to the one
      with Dawson. Police, however[,] were not able to apprehend
      this male after this transaction with [Harper].

             At 7:35 p.m., a man later identified as Darnell Morton
      [“Morton”] approached [Harper], handed him U.S. [c]urrency
      and received an object in return.         Police stopped Morton
      following the transaction and recovered a pill, which testing
      [later] revealed to be [ecstasy] (benyzlpiperazine).

             At 7:45 p.m., [Harper] entered the rear passenger seat of
      an automobile. Officer Bonnett, believing that [Harper] might
      decide to drive away, directed his back-up team to stop
      [Harper]. Police apprehended [Harper] and incident thereto
      recovered from him six packets of crack cocaine, three [ecstasy]
      pills, $39.00, and three cell phones. Police also recovered a bag
      from the car, which [Harper] dropped at the behest of the
      police[,] that contained twenty-eight packets of marijuana.
      Officer Bonnett testified that the drugs recovered from Dawson
      and Morton appear[ed] identical to the items seized by police
      from [Harper] after he was apprehended.

Trial Court Opinion, 9/2/15, at 2-3 (citations omitted).

      Harper filed a Motion to Suppress the Evidence, which the trial court

denied. Following a jury trial, Harper was convicted of PWID. On April 2,

2015, the trial court sentenced Harper to two to five years in prison,

followed by five years of probation. Thereafter, Harper filed a timely Notice

of Appeal and a timely court-ordered Pennsylvania Rule of Appellate

Procedure 1925(b) Concise Statement of Matters Complained of on Appeal.

      On appeal, Harper raises the following questions for our review:

      I. Was the evidence adduced at trial legally sufficient to convict
      [Harper] of the offense of possession with intent to deliver a


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      controlled substance, where the jury was not required to
      determine which specific controlled substance was possessed
      with a [contemporaneous] intent to deliver that controlled
      substance?

      II. Did the trial court err [] or abuse [its] discretion in providing
      the jury with a “Spencer” charge,[1] where the jury did not
      indicate difficulty in reaching a verdict, and did not indicate it
      was deadlocked as to reaching a unanimous verdict[?]

Brief for Appellant at 2 (some capitalization omitted, footnote added).

      In his first claim, Harper contends that the evidence was insufficient to

sustain his PWID conviction. Id. at 6, 7. Harper argues that the packaging

of the drugs found on Morton was inconsistent with the substances the police

had seized from him. Id. at 6-7.

      We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:

      The standard we apply in reviewing the sufficiency of the
      evidence 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
  When a jury is deadlocked, the trial court may provide a jury charge that
should follow the guidelines set forth by our Supreme Court in
Commonwealth v. Spencer, 275 A.2d 299 (Pa. 1971). The “Spencer”
charge refers to a type of a non-coercive charge that should direct all jurors
to consult with one another in an effort to reach a unanimous decision,
without singling out dissenting jurors. Spencer, 275 A.2d at 304-05.



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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
      finder 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. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)

(citation omitted).

      Here, the trial court set forth the relevant law, addressed Harper’s

claim and concluded that it is without merit.       See Trial Court Opinion,

9/9/15, at 3-5. Because the record supports the trial court’s findings and

credibility determinations, we adopt the sound reasoning and conclusion of

the trial court for the purpose of this appeal. See id.; see also Talbert,

129 A.3d at 543.

      Harper additionally contends that his judgment of sentence should be

arrested because the intent to deliver three separate substances was

submitted to the jury as one question, without specifying which substance

was possessed with the intent to deliver. Brief for Appellant at 7.2

      In effect, Harper challenges the validity of the Criminal Complaint,

arguing that the charged offense was overly broad. However, the trial court

notes that Harper did not raise this claim before the trial court and only

raised it for the first time in his Rule 1925(b) Concise Statement. See Trial


2
   Harper fails to cite to the record or any authority in support this bald
allegation. See Pa.R.A.P. 2119(a).


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Court Opinion, 9/9/15, at 5-6; see also Pa.R.A.P. 302(a) (stating that an

issue cannot be raised for the first time on appeal). Thus, we conclude that

this claim is waived.    See, e.g., Commonwealth v. Richter, 676 A.2d

1232, 1236 n.2 (Pa. Super. 1996) (noting that appellant’s claim that the

information filed by the Commonwealth was defective was waived for failing

to raise the issue in a pre-trial suppression motion).

      In his second claim, Harper contends that the trial court erred in

providing the jury with a “Spencer” charge. Brief for Appellant at 7. Harper

argues that the trial court gave the instruction in response to a question

from the jury, and that there was no evidence that the jury was deadlocked.

Id. at 7-8.

      Here, Harper acknowledges that he did not object to the charge at the

time it was given to the jury. See Brief for Appellant at 8. Thus, the claim

is waived on appeal.    See Trial Court Opinion, 9/9/15, at 9 (noting that

Harper’s failure to lodge an objection at the time the charge was given to

the jury resulted in a waiver of his claim);3 see also Pa.R.A.P. 302(a).

      Judgment of sentence affirmed.




3
  We note that on the second day of deliberations, the jury informed the
court officer that it was “having trouble reaching a unanimous verdict.”
N.T., 1/20/15, at 9. Thereafter, the trial court provided the “Spencer”
charge to the jury. Id. at 9-10.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/29/2016




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