J-S20040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                              Appellee

                        v.

VALERIE MCDERMOTT,

                              Appellant                      No. 1470 WDA 2015


              Appeal from the Judgment of Sentence July 22, 2015
                in the Court of Common Pleas of Beaver County
               Criminal Division at No.: CP-04-CR-0000003-2015


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                    FILED MARCH 04, 2016

        Appellant, Valerie McDermott, appeals from the judgment of sentence

imposed      pursuant        to   her   jury   conviction    of   possession   of   drug

paraphernalia.1 We affirm.

        We take the following facts from the trial court’s September 1, 2015

opinion and our independent review of the certified record. On February 9,

2015, the Commonwealth filed an information against Appellant charging her

with possession of drug paraphernalia and related crimes.                      The case

proceeded to trial on May 4, 2015. At trial, the Commonwealth presented

the following pertinent evidence.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. 780-113(a)(32).
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      Officer Ronald L. Lutton of the Midland Borough Police Department

testified that, on May 29, June 3, and June 6, 2014, the Midland Township

Police Department conducted three controlled buys from Appellant at her

home, 49 Midcrest Homes, with the assistance of their informant, Brian

Ward.   On each occasion, Ward would phone Appellant to arrange the

purchase of controlled substances from her in the presence of Officer Lutton,

who heads the department’s drug investigations, and is a fourteen-year

police veteran. Thereafter, at the time set for the drug buy, Officer Lutton

would meet Ward at a remote location, conduct a thorough search of his

person and vehicle, provide him with marked “buy” money, and escort him

to Appellant’s residence.    Ward would then enter the home, and return

moments later with the illegal prescription drugs and marijuana, which he

immediately would give to Officer Lutton.

      After the June 6, 2014 controlled buy, Officer Lutton obtained and

executed a search warrant for Appellant’s 49 Midcrest Homes residence. At

the time that he executed the search, Appellant’s roommates, Jesse Jackson

and Monica Miller were at the home, but she was not. During the search of

Appellant’s bedroom, Officer Lutton recovered, among other things, two

digital scales, plastic baggies, and a large bag of marijuana.     He testified

that, based on his experience and expertise in investigating drug cases,

digital scales like the ones found in Appellant’s bedroom are utilized to weigh

contraband and fix prices.


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       On May 6, 2015, the jury convicted Appellant of possession of drug

paraphernalia.2 On July 22, 2015, the court sentenced her to one year of

reporting probation. Appellant filed a post-sentence motion, which the court

denied on September 1, 2015. Appellant timely appealed.3

       Appellant raises one issue for this Court’s review:       “Whether the

Commonwealth presented sufficient evidence to prove beyond a reasonable

doubt that Appellant possessed both digital scales and plastic baggies as

drug paraphernalia as defined by statute?”           (Appellant’s Brief, at 6)

(emphasis and unnecessary capitalization omitted).       Specifically, Appellant

argues that the evidence that the plastic baggies were drug paraphernalia

was insufficient where they did not contain a controlled substance; and that

the evidence as to the digital scales was insufficient because the only

“evidence presented by the Commonwealth to suggest that the scales were

possessed with the intent to use them with controlled substances” was the

testimony of Officer Lutton. (Id. at 12). Appellant’s issue lacks merit.

       Our standard of review of this matter is well-settled:


____________________________________________


2
  The jury found Appellant not guilty of possession with intent to deliver a
controlled substance, 35 P.S. § 780-113(a)(30).
3
   Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on October 7, 2015. See
Pa.R.A.P. 1925(b). The court filed a Rule 1925(a) opinion on October 21,
2015, in which it relied on the reasons stated in its September 1, 2015
opinion. See Pa.R.A.P. 1925(a).



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             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
      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. Giordano, 121 A.3d 998, 1002-03 (Pa. Super. 2015)

(citation omitted).

      The Controlled Substance, Drug, Device and Cosmetic Act (the Act)

defines possession of drug paraphernalia, in pertinent part, as “[t]he use of,

or possession with intent to use, drug paraphernalia for the purpose of . . .

packing, repacking, storing, [or] containing . . . a controlled substance in

violation of this [A]ct.” 35 P.S. § 780-113(a)(32). Drug paraphernalia

      includes, but is not limited to . . . [s]cales and balances used,
      intended for use or designed for use in weighing or measuring
      controlled substances[;] . . . [c]apsules, balloons, envelopes and
      other containers used, intended for use or designed for use in
      packaging small quantities of controlled substances[; and]
      [c]ontainers and other objects used, intended for use or
      designed for use in storing or concealing controlled substances.

35 P.S. §§ 780-102(5), (9), (10).

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                    In determining whether an object is drug
             paraphernalia, a court or other authority should
             consider, in addition to all other logically relevant
             factors, statements by an owner or by anyone in
             control of the object concerning its use . . . the
             proximity of the object, in time and space, to a direct
             violation of this act, the proximity of the object to
             controlled substances, the existence of any residue
             of controlled substances on the object, direct or
             circumstantial evidence of the intent of an owner, or
             of anyone in control of the object, to deliver it to
             persons who he knows, or should reasonably know,
             intend to use the object to facilitate a violation of
             this [A]ct . . . the existence and scope of legitimate
             uses for the object in the community, and expert
             testimony concerning its use.

     35 P.S. § 780–102(b) []. To sustain a conviction for possession
     of drug paraphernalia[,] the Commonwealth must establish
     that items possessed by defendant were used or intended
     to be used with a controlled substance so as to constitute
     drug paraphernalia and this burden may be met by [the]
     Commonwealth through circumstantial evidence.

Commonwealth v. Coleman, 984 A.2d 998, 1001 (Pa. Super. 2009) (case

citation and quotation marks omitted) (emphasis added).

     Preliminarily, we observe that Appellant’s claim that the evidence was

insufficient to establish that the baggies were drug paraphernalia because

they did not contain any controlled substances fails. (See Appellant’s Brief,

at 12).     The Commonwealth only was required to prove that Appellant

possessed the baggies with the intent to use them for controlled

substances, which, as stated above, can be proven through circumstantial

evidence.    See Coleman, supra at 1001; see also 35 P.S. §§ 780-

102(b)(5), (9), (10), 780-113(a)(32).


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      Additionally, the evidence presented by the Commonwealth supports

Appellant’s conviction.    Specifically, our review of the record reveals the

Commonwealth established that Appellant sold illegal prescription narcotics

and marijuana to a police informant, at her home, on three occasions within

the week previous to the execution of the search warrant, (see N.T. Trial,

5/05/15, at 40-47, 100-04, 106-10, 115-17); upon executing the warrant,

police found the plastic baggies, scales, and marijuana in her bedroom, (see

id. at 119-23, 152); and, a fourteen-year police veteran, who leads the drug

investigations section of the arresting police department, testified that,

based on his experience, digital scales like the ones found in Appellant’s

bedroom are used for weighing and pricing controlled substances for sale,

(see id. at 97, 122).

      Viewing   the     foregoing   in    the   light   most   favorable   to   the

Commonwealth as verdict winner, we conclude that the jury could

reasonably find that Appellant possessed the scale and the plastic baggies

with the intent of using them with a controlled substance. See Coleman,

supra at 1001; Commonwealth v. Pitner, 928 A.2d 1104, 1108 (Pa.

Super. 2007), appeal denied, 944 A.2d 757 (Pa. 2008) (“Drug paraphernalia

includes bags used to package or store marijuana.”) (citation omitted).

Therefore, the trial court properly found that there was sufficient evidence to

establish that Appellant was guilty of possessing drug paraphernalia. See,




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Giordano, supra at 1002-03; see also 35 P.S. §§ 780-102(b)(5), (9),

(10), 780-113(a)(32).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2016




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