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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                      v.                        :
                                                :
DAVON LAMAR SMITH,                              :        No. 1675 WDA 2015
                                                :
                           Appellant            :


              Appeal from the Judgment of Sentence, August 25, 2015,
                   in the Court of Common Pleas of Blair County
                 Criminal Division at No. CP-07-CR-0000780-2014


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED DECEMBER 09, 2016

        Davon Lamar Smith appeals the judgment of sentence in which the

Court    of    Common      Pleas   of   Blair   County   sentenced   him   to   serve

36-72 months for two counts of possession with intent to deliver a controlled

substance (“PWID”) and two counts of criminal use of a communications

facility.1    He was also convicted of two counts of simple possession 2 for

which he received no further penalty.

        The record reflects that on September 25, 2013, a confidential

informant for the Altoona Police Department, Eric Minnoia (“CI”), contacted

appellant via cellular telephone to arrange the purchase of heroin.              The



1
    35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 7512, respectively.
2
    35 P.S. § 780-113(a)(16).
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Altoona Police Department provided the CI with $300 in order to pay a debt

to appellant of $150 and to purchase heroin with the other $150. Before the

controlled buy was conducted, the CI was strip searched.       He was then

transported to his home by the police officers and waited on his front steps

for appellant. Shortly thereafter, a car drove up and picked up the CI. After

the transaction was conducted, the CI was dropped off back at his residence

approximately five minutes later. The police officers then took the CI back

to the police department where the heroin was recovered from him.         He

underwent another strip search.     (Notes of testimony, 6/15/15 at 48-49,

53-56, 60.)    The parties later stipulated that the substance obtained from

appellant was, in fact, heroin. (Id. at 139-140.)

     On September 28, 2013, the CI contacted appellant at the same phone

number and sought to make another purchase of heroin. Once again, the CI

was strip searched, provided with “buy money,” and transported to his

residence.    (Id. at 123-124, 128, 154, 167.)      Patrolman Andrew Crist

(“Patrolman Crist”) waited inside the CI’s apartment with the CI until

appellant contacted the CI. When appellant arrived in a vehicle outside the

CI’s residence, the CI left his residence and entered the vehicle.   (Id. at

128-129.)     Sergeant Christopher Moser (“Sergeant Moser”) of the Altoona

Police Department followed the vehicle and took photographs of the vehicle

and its occupants. (Id. at 170.) After the transaction was completed, the

vehicle returned to the CI’s residence, and the CI was dropped off.      The



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police officers again transported the CI to the police station, conducted a

strip search, and recovered what later was identified as heroin from the CI.

(Id. at 170-171.)

     On or about June 9, 2014, two Criminal Informations were filed which

charged appellant with the crimes for which he was convicted.

     On June 15 and 16, 2015, the trial court conducted a jury trial. The

CI, Sergeant Benjamin Jones (“Sergeant Jones”) of the Altoona Police

Department, Patrolman Crist, and Sergeant Moser all testified on behalf of

the Commonwealth.      At the conclusion of the Commonwealth’s case,

appellant moved for a judgment of acquittal on the basis that there was not

enough evidence to link him to possession because there were no

photographs that were descriptive and no record of anything changing

hands.   As to the charges of criminal use of a communications facility,

appellant argued that nothing was specifically linked to him because there

was no name programmed in the CI’s phone, there was no phone found on

appellant’s person to prove that he actually owned any phone that was

linked with the telephone numbers used by the CI to obtain heroin, and

there was no record traced back to him. The trial court denied the motion.

(Id. at 203-204.)

     On June 16, 2015, the jury returned guilty verdicts on all charges. On

August 25, 2015, the trial court imposed the sentence set forth above. On




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September 8, 2015, appellant moved for reconsideration of his sentence

which the trial court denied.

      On appeal to this court, appellant raises the following issue for our

review:   “Whether the [t]rial [c]ourt erred by denying [a]ppellant[’s] . . .

Motion for Judgment of Acquittal because there was insufficient evidence for

each of the charges in both of the above mentioned criminal actions to

permit said charges to be submitted to the jury at the criminal trial in this

case?” (Appellant’s brief at 4.)

      Our standard of review of appellant’s claim that the court erred in

denying his motion for judgment of acquittal is as follows:    “A motion for

judgment of acquittal challenges the sufficiency of the evidence to sustain a

conviction on a particular charge, and is granted only in cases in which the

Commonwealth has failed to carry its burden regarding that charge.”

Commonwealth v. Foster, 33 A.3d 632, 634-635 (Pa.Super. 2011).

                  A claim challenging the sufficiency of the
            evidence is a question of law. Commonwealth v.
            Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751
            (2000). In that case, our Supreme Court set forth
            the sufficiency of the evidence standard:

                  Evidence will be deemed sufficient to
                  support the verdict when it establishes
                  each material element of the crime
                  charged and the commission thereof by
                  the accused, beyond a reasonable doubt.
                  Commonwealth v. Karkaria, 533 Pa.
                  412, 625 A.2d 1167 (1993). Where the
                  evidence offered to support the verdict is
                  in contradiction to the physical facts, in
                  contravention to human experience and


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                  the laws of nature, then the evidence is
                  insufficient as a matter of law.
                  Commonwealth v. Santana, 460 Pa.
                  482, 333 A.2d 876 (1975).           When
                  reviewing a sufficiency claim the court is
                  required to view the evidence in the light
                  most favorable to the verdict winner
                  giving the prosecution the benefit of all
                  reasonable inferences to be drawn from
                  the evidence.       Commonwealth v.
                  Chambers, 528 Pa. 558, 599 A.2d 630
                  (1991).

           Id. at 319, 744 A.2d at 751.

Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).

     Initially, appellant contends that the trial court erred when it denied

his motion for judgment of acquittal with respect to the charges of PWID and

simple possession at criminal action number CP-07-CR-0000780-2014.

     The charges of possession and PWID are set forth as follows:

           (16) 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.

           ....

           (30) 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



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                 with intent to deliver, a counterfeit controlled
                 substance.

35 P.S. §§ 780-113(a)(16) and (30).

     Specifically, appellant asserts that actual possession or possession

with intent to deliver was not established because the CI failed to properly

identify appellant as the person who sold him the heroin on March 25, 2013.

It is true that the CI initially called the person from whom he purchased

heroin by the nickname “Trouble” which was actually the nickname of

another suspected drug dealer.      Appellant was known as “Flip.”        The CI

stated in his statement for the police department:

           Trouble pulled up and I got in and rode around the
           block. He dropped me back off after he gave me the
           bundle and I gave him a hundred and fifty dollars.
           . . . I met back up with Moser and was taken to the
           police station and gave him the bundle and was strip
           searched. Trouble drove past Officer Moser’s car
           multiple times paranoid that it was a cop car. I
           assured him that it wasn’t and he still served me.

Notes of testimony, 6/15/15 at 117. In addition, Sergeant Moser placed the

heroin from this buy in an envelope labeled “Trouble Doe.” (Id. at 193.)

     Despite   this   evidence,   this   court   is   not   convinced   that   the

Commonwealth failed to establish that appellant possessed the heroin that

was sold to the CI. The CI pointed out appellant as the person who sold him

the heroin on the first buy on March 25, 2013, and whom he identified

initially as “Trouble” during the trial. (Id. at 94.) After the “buy,” the CI

testified that he gave the drugs, which were later identified as heroin, to



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Sergeant Moser.        (Id. at 96.)    The CI explained that after the first buy,

Sergeant Moser informed him that appellant was known as “Flip” and not as

“Trouble.”     The CI explained that he also did controlled buys on

Kenneth Harrell, who was known as “Trouble.” While he could tell the two

apart, it was only the names that confused him.                   (Id. at 97-98.)

Sergeant Jones explained the procedures followed for a controlled buy to

ensure that any drugs returned to the police department by a confidential

informant    are   a    product   of   the   controlled   buy.    (Id.   at   43-44.)

Sergeant Jones also explained that the police department produced pictures

of both “Trouble” and “Flip” and presented them to the CI without telling him

who was who. The CI was able to identify the two correctly, though he had

the names wrong. (Id. at 46-47.) Sergeant Jones testified that he dropped

the CI off prior to the September 25, 2013 buy, and the CI never left his

sight until appellant arrived and picked him up in his vehicle. (Id. at 55.)

Sergeant Jones testified that he identified appellant as the person in the

vehicle that picked up the CI. (Id. at 57.) Also, shortly after picking up the

CI after the controlled buy, Sergeant Jones observed appellant at a gas

station putting gas in his car.         (Id. at 59.)      All of this evidence, the

safeguards for confidential informants, the CI identifying appellant in open

court as the person who sold him heroin, and Sergeant Jones observing

appellant before and after the drug buy, provides sufficient evidence that

appellant possessed heroin and possessed it with intent to deliver.



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      Next, appellant argues that the Commonwealth failed to present

sufficient evidence to establish that appellant possessed heroin and

possessed it with intent to deliver on September 28, 2013.               Appellant

essentially raises the same argument with respect to the CI’s ability to

correctly identify him. However, the CI testified that he bought drugs from

the same person on September 28, 2013, as he did on September 25, 2013.

(Id. at 98.) He further identified appellant in the courtroom as the person

who sold him drugs on September 28, 2013.              (Id. at 102.)      He also

explained that he was subject to the same procedures prior to and following

the controlled buy. (Id. at 99.) In addition, Patrolman Crist testified that

he conducted a strip search of the CI both before and after the controlled

buy. (Id. at 124.)    Patrolman Crist also testified that he observed the CI

telephone appellant and a car pulled up outside the CI’s residence before the

phone was answered.      The CI entered the vehicle and shortly thereafter

returned with a bundle of heroin.          (Id. at 128-129.)    Sergeant Moser

testified that he observed appellant driving the vehicle into which the CI

entered to make the transaction. (Id. at 169.) Once again, the evidence

presented by the Commonwealth was sufficient to establish that appellant

committed the material elements of each crime.

      Appellant   then   contends   that    the   evidence   presented    by   the

Commonwealth was insufficient to establish that appellant twice committed

criminal use of a communications facility.



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      Section 7512 of the Crimes Code, 18 Pa.C.S.A. § 7512, provides in

pertinent part:

            (a)   Offense defined.--A person commits a felony
                  of the third degree if that person uses a
                  communication facility to commit, cause or
                  facilitate the commission or the attempt
                  thereof of any crime which constitutes a felony
                  under this title or under the act of April 14,
                  1972 (P.L. 233, No. 64), known as The
                  Controlled Substance, Drug, Device and
                  Cosmetic Act.      Every instance where the
                  communication facility is utilized constitutes a
                  separate offense under this section.

                  ....

            (c)   Definition.--As used in this section, the term
                  “communication facility” means a public or
                  private instrumentality used or useful in the
                  transmission of signs, signals, writing, images,
                  sounds, data or intelligence of any nature
                  transmitted in whole or in part, including, but
                  not limited to, telephone, wire, radio,
                  electromagnetic, photoelectronic or photo-
                  optical systems or the mail.

18 Pa.C.S.A. § 7512.

      Appellant concedes that a cell phone was employed to make plans for

each transaction and that the use of a cell phone comes under the definition

set forth in 18 Pa.C.S.A. § 7512(c).    However, appellant argues that the

evidence failed to link the cell phone used to appellant.     Sergeant Jones

testified that the telephone number was programmed into the CI’s phone

under appellant’s nickname. (Notes of testimony, 6/15/15 at 53.) Appellant

points to the confusion regarding his nickname to cast doubt on this



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statement.     Further, Patrolman Crist testified that before the second

transaction, he verified the phone number the CI was about to call, and it

was just a phone number with no names associated with it. (Id. at 135.)

        While that testimony does appear somewhat contradictory, the CI’s

own testimony provides support for the crime of criminal use of a

communications facility.    The CI testified that he contacted appellant by

telephone to set up the first controlled buy.           (Id. at 92.)     The CI also

testified that prior to the second controlled buy, he telephoned appellant

through a number that was in his phone and that he used that number to

contact appellant prior to his cooperation with law enforcement. (Id. at 99-

100.)    With respect to the second buy, Sergeant Moser was in a police

vehicle with the CI, when the CI received a phone call from appellant to

confirm the transaction.     The CI showed Sergeant Moser his call log to

indicate the number. (Id. at 154.) The number was the same as the one

Sergeant Jones testified that the CI called to set up the first controlled buy.

(Id. at 53.)

        This evidence established that the CI and appellant communicated by

telephone to set up both drug buys. The drug buys were completed, so the

telephone was used to facilitate the commission of a crime under The

Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-113,

which    constitutes   criminal   use    of      a   communication     facility   under




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18 Pa.C.S.A. § 7512.      The evidence was sufficient to establish these

violations.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/9/2016




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