J-S15041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    RANDY CARTWRIGHT                           :
                                               :
                       Appellant               :      No. 1488 WDA 2018

        Appeal from the Judgment of Sentence Entered October 9, 2018
                In the Court of Common Pleas of Fayette County
            Criminal Division at No(s): CP-26-CR-0002214-2017


BEFORE:      GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY GANTMAN, P.J.E.:                          FILED APRIL 30, 2019

        Appellant, Randy Cartwright, appeals from the judgment of sentence

entered in the Fayette County Court of Common Pleas, following his jury trial

convictions for two counts of possession with intent to deliver (“PWID”), and

one count each of possession of a controlled substance and possession of drug

paraphernalia.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

           On August 25, 2016, Detective Brian Harvey of the City of
           Connellsville Police Department and the Fayette County
           Bureau of Investigations (“FCBI”) conducted a drug
           investigation involving the use of controlled buys by
           confidential informants. Detective Harvey was working for
           the FCBI as part of a controlled buy. [Appellant] was the
           intended target. The drug to be purchased was Heroin. As
           part of the investigation, the confidential informant [(“CI”)]
           was informed that he would purchase 3 bags of Heroin from
____________________________________________


1   35 P.S. §§ 780-113(a)(30), (16), and (32), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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         [Appellant] for a price of thirty ($30) dollars.             The
         transaction was to take place in the parking lot of the Shop
         ‘N Save store in Connellsville, Fayette County, Pennsylvania.
         The only parties present for the transaction were the [CI],
         Appellant, and law enforcement. Prior to the controlled buy,
         the [CI] met with law enforcement at the Connellsville Police
         Station where the [CI] was searched in the presence of
         Detective Harvey as part of the standard procedure before
         a controlled buy. The [CI] was found to be free of the
         possession of drugs, money, and other contraband.
         Detective Harvey provided the [CI] with thirty ($30) dollars
         in official funds to use for the purposes of the controlled buy.
         These funds were provided by the FCBI.

         The [CI] was driven by Detective Heath to the Shop ‘N Save
         [p]arking lot.    Detective Harvey and Detective Patton
         proceeded to the location in separate vehicles. At no time
         was the [CI] out of sight of law enforcement. At or around
         7:30 p.m., Detective Patton observed a burgundy Hyundai
         enter the parking lot. Detective Harvey also saw the
         burgundy Hyundai and identified Appellant as the driver and
         sole occupant. Detective Harvey observed Appellant come
         to a stop at which time the [CI] approached the driver side
         window of the Hyundai.         The [CI] then entered the
         passenger side of the vehicle. The vehicle drove into a
         parking space where it remained for approximately thirty
         (30) seconds at which time the [CI] exited the vehicle.
         Appellant then exited the parking lot via York Avenue. Law
         enforcement then transported the [CI] back to the
         Connellsville Police Station.     The [CI] provided the
         Detectives with three (3) folded tickets believed to contain
         heroin. The substance was submitted to the Pennsylvania
         State Police Crime Lab for testing. The substance was
         identified as Heroin.

(Trial Court Opinion, filed December 14, 2018, at 2-4) (emphasis and internal

citations omitted).

      During a jury trial from October 3 to October 4, 2018, Detectives Harvey

and Patton both testified that they identified Appellant as the driver of the

vehicle during the controlled buy. On October 4, 2018, the jury convicted

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Appellant of two counts of PWID, and one count each of possession of a

controlled substance and possession of drug paraphernalia.           The court

sentenced Appellant on October 9, 2018, to an aggregate sentence of 12 to

24 months’ imprisonment.      Appellant did not file post-sentence motions.

Appellant filed a timely notice of appeal on October 17, 2018. The following

day, the court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).        Appellant timely

complied on November 5, 2018.

      Appellant raises the following issues for our review:

         DID THE COMMONWEALTH FAIL TO PRESENT SUFFICIENT
         EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT
         APPELLANT POSSESSED THE REQUISITE INTENT TO
         DELIVER A CONTROLLED SUBSTANCE?

         DID THE COMMONWEALTH FAIL TO PRESENT SUFFICIENT
         EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT
         APPELLANT POSSESSED A CONTROLLED SUBSTANCE?

(Appellant’s Brief at 7).

      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

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            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.
            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.

         This standard is equally applicable in cases where the
         evidence is circumstantial, rather than direct, provided that
         the combination of evidence links the accused to the crime
         beyond a reasonable doubt.

Commonwealth v. Orr, 38 A.3d 868, 872-73 (Pa.Super. 2011) (en banc),

appeal denied, 617 Pa. 637, 54 A.3d 348 (2012) (internal citations, quotation

marks, and emphasis omitted).

      In his issues combined, Appellant argues the Commonwealth presented

insufficient evidence to convict Appellant of PWID and possession of a

controlled substance. Specifically, Appellant contends the detectives did not

apprehend the driver of the vehicle at the scene of the controlled buy; no

witnesses testified about interactions within the vehicle; no witnesses testified

as to the number of occupants within the vehicle prior to the CI entering; and

the Commonwealth did not present video evidence at trial.              Appellant

concludes this Court should grant Appellant either a judgment of acquittal,

arrest of judgment, or a new trial. We disagree.

      The Controlled Substance, Drug, Device, and Cosmetic Act defines the

offenses of possession of a controlled substance and PWID as follows:


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        § 780-113. Prohibited acts; penalties

           (a) The following acts and the causing thereof within
        the Commonwealth are hereby prohibited:

                                 *    *     *

            (16) Knowingly or intentionally possessing a controlled
        substance 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 with intent to deliver, a counterfeit
        controlled substance.

35 P.S. §§ 780-113(a)(16), (30).      To establish the offense of PWID, the

Commonwealth must prove beyond a reasonable doubt that the defendant

possessed   a   controlled   substance     with   the   intent   to   deliver   it.

Commonwealth v. Jones, 874 A.2d 108, 121 (Pa.Super. 2005).

        The trier of fact may infer that the defendant intended to
        deliver a controlled substance from an examination of the
        facts and circumstances surrounding the case. Factors to
        consider in determining whether the drugs were possessed
        with the intent to deliver include the particular method of
        packaging, the form of the drug, and the behavior of the
        defendant.

Id. (quoting Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa.Super.

2003), appeal denied, 577 Pa. 712, 847 A.2d 1280 (2004)). “Thus, possession

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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.” Jones, supra at 121.

      We further note:

         When contraband is not found on the defendant’s person,
         the Commonwealth must establish constructive possession.
         Constructive possession is the ability to exercise conscious
         control or dominion over the illegal substance and the intent
         to exercise that control. … The intent to exercise conscious
         dominion can be inferred from the totality of the
         circumstances.

Id. (internal citations omitted).

      Instantly, detectives oversaw a controlled buy between the CI and

Appellant.   On August 25, 2016, Detective Harvey searched the CI for

contraband and gave him $30.00 to purchase heroin from Appellant. That

evening, Detective Heath drove the CI to a designated parking lot. Detectives

Harvey and Patton also attended the controlled buy. Detectives Harvey and

Patton observed a burgundy Hyundai drive into the parking lot, and saw the

CI enter through the passenger side door. Both detectives identified Appellant

as the driver of the vehicle. The CI exited the vehicle after a short time and

returned to the detectives. The CI provided three folded lottery tickets, which

were later confirmed to contain heroin.

      Here, the CI contacted Appellant for the specific purpose of purchasing

heroin from Appellant. During the controlled buy, the CI entered a burgundy

Hyundai, and Detectives Harvey and Patton identified Appellant as the driver


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of the vehicle. After a short time, the CI exited the vehicle and returned to

detectives with three folded lottery tickets, which contained heroin. Under the

totality of the circumstances, the Commonwealth presented sufficient

evidence to support Appellant’s convictions. See 35 P.S. §§ 780-113(a)(16),

(30); Orr, supra; Jones, supra. Accordingly, we affirm the judgment of

sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/2019




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