J-A21011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

AARON M. HARRIS,

                        Appellant                   No. 845 WDA 2016


         Appeal from the Judgment of Sentence January 13, 2016
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0005587-2015


BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED OCTOBER 30, 2017

     Appellant, Aaron M. Harris, appeals from the judgment of sentence of

18 to 45 months’ incarceration and an aggregate consecutive term of six

years’ probation. On appeal, he challenges the sufficiency of the evidence to

support his conviction of Possession with Intent to Deliver a Controlled

Substance (hereinafter “PWID”), 35 P.S. § 780-113(a)(30). We affirm.

     The trial court summarized the procedural history and factual

background of this case as follows:
     On October 16, 2015, this [c]ourt found Appellant … guilty of
     one count of [PWID] ([] cocaine), two counts of Possession of a
     Controlled Substance (heroin and cocaine)[, 35 P.S. § 780-
     113(a)(16)], and one count of Possession of a Small Amount of
     Marijuana[, 35 P.S. 780-113(a)(31)]. This [c]ourt sentenced
     Appellant on January 13, 2016, to a term of 18 to 45 months at
     Count One (PWID), and an aggregate consecutive term of six
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       years[’] probation.[1] Appellant’s Post-Sentence Motion was
       denied on May 19, 2016. Appellant filed a Notice of Appeal on
       June 13, 2016[,] and his Statement of Errors Complained of on
       Appeal on August 1, 2016.
                                           ***
       At trial, Appellant stipulated to possession of cocaine but
       disputed that he had intent to deliver. Robert Fassinger, a
       parole agent for the Commonwealth of Pennsylvania for the past
       nine years, testified that he supervised Appellant after he was
       paroled from a [sentence of] four years and two months to ten
       years … for PWID. Fassinger testified that all of Appellant’s drug
       screens were clean1 but Appellant had not obtained
       employment.2       On February 19, 2015, Fassinger went to
       Appellant’s residence at approximately 6:30 a.m. After a few
       moments of knocking, someone inside asked[,] “Who is it?”
       Fassinger identified himself and then heard significant movement
       within the residence.     He testified that once the door was
       opened, he immediately smelled “an obvious odor of burnt
       marijuana.” He placed Appellant in handcuffs for safety reasons
       and conducted a pat down for weapons. During the pat down,
       Fassinger felt stamped bags of heroin in Appellant’s pocket.
       Fassinger recovered twenty-two bags of heroin, crack cocaine
       weighing over thirteen grams3 and a small amount of marijuana
       from Appellant’s person.[2] Appellant also had $380.00 cash in
       his pocket. In addition, Fassinger observed a digital scale in the
       living room. Fassinger did not find any use paraphernalia from
       his search of Appellant or in his apartment.
          1
            On cross-examination, the witness stated all screens
          were negative for cocaine and heroin.     He did not
____________________________________________


1
   Specifically, Appellant received three years’ probation for his PWID
conviction, and a consecutive three years’ probation for his conviction of
possession of a controlled substance (heroin). The trial court did not impose
further penalties for the remaining counts.
2
  The Commonwealth concedes that the crack cocaine actually weighed 6.3
grams. It acknowledges that “[t]his amount differs from the view expressed
in the trial court opinion.”   Commonwealth’s Brief at 3 n.2; accord
Appellant’s Brief at 30 (“The piece of cocaine seized from [Appellant]
weighed 6.3 grams….”).



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          remember specifically Appellant[’s] testing positive for THC
          (marijuana), but he believe[d] Appellant may have, based
          on his history.
          2
            Appellant testified that he was given drug screens on a
          weekly basis upon his release, and monthly screens
          thereafter.
          3
            The witness clarified on cross-examination that his notes
          indicate[d] the weight being 8.4 grams.

       Next, Detective Brian Nichols of the City of Pittsburgh Police
       Department testified as a narcotics expert. Detective Nichols
       testified that, in his expert opinion, the cocaine was possessed
       with the intent to deliver it and not to consume it individually.
       He based his opinion on several factors. Detective Nichols
       testified that the amount recovered represented thirty-one large
       doses of crack cocaine.[3] He found the absence of usage
       paraphernalia and the presence of a digital scale to be factors in
       support of his conclusion that the cocaine was possessed with
       intent to deliver.      He also found significant the fact that
       Appellant [had] $380.00 on his person despite Appellant[’s] not
       having an employment history that would support Appellant[’s]
       having this amount of money. Detective Nichols testified that a
       typical crack cocaine user would have little crack cocaine on him
       at any given time but use paraphernalia would be found
       throughout the house. Crack cocaine consumers often have
       burnt fingers, white lips and tongue, sunken faces, dirty clothes
       and body odor. Detective Nichols testified that Appellant did not
       appear to have any characteristics of a typical crack user.

       Lastly, Appellant took the stand in his own defense. Appellant
       testified that he was smoking marijuana laced with crack cocaine
       in January and February of 2015. He chose to use crack and
       marijuana because he no longer had access to K2, a synthetic
       version of marijuana. He claimed that the cocaine that he
       possessed was strictly for his own personal use.

Trial Court Opinion (TCO), 12/5/2016, at 2-4 (internal citations).

____________________________________________


3
 Detective Nichols testified that “6.3 something grams [of crack cocaine]
would be about 31½ doses.” N.T. Trial, 10/16/2015, at 36.



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      As stated above, Appellant filed a timely notice of appeal, and

complied with the trial court’s instruction to file a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. Presently, Appellant raises a

single issue for our review:
      Was the evidence insufficient as a matter of law to convict
      [Appellant] of [PWID], where the Commonwealth failed to prove
      beyond a reasonable doubt that the cocaine in his possession
      was possessed for anything other than his own personal use?

Appellant’s Brief at 6 (unnecessary capitalization and emphasis omitted).

      Initially, we set forth our standard of review:
      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.

      This standard is equally applicable to cases where the evidence
      is circumstantial rather than direct so long as the combination of
      the evidence links the accused to the crime beyond a reasonable
      doubt. Although a conviction must be based on more than mere
      suspicion or conjecture, the Commonwealth need not establish
      guilt to a mathematical certainty.


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Commonwealth v. Brockman, -- A.3d --, 2017 WL 2855094, at *7 (Pa.

Super. filed July 5, 2017) (citation omitted).

      On appeal, Appellant argues that “[t]he evidence was insufficient as a

matter of law to convict [him] of PWID, as the Commonwealth failed to

prove beyond a reasonable doubt that the cocaine in [Appellant’s]

possession was for anything other than personal use.” Appellant’s Brief at

24.   He claims that he “possessed … a quantity that is by no means an

uncommon      purchase   made    by   users[,]”   and   he   did   not   possess

accoutrements or display behaviors that were consistent with drug dealing.

Id.   Accordingly, he claims that “[h]is conviction for PWID must … be

reversed.” Id. at 26. We disagree.

      Under 35 P.S. § 780-113(a)(30), PWID is defined as follows:
      (a) The following acts and the causing thereof within the
      Commonwealth are hereby prohibited:
                                      ***
         (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)(30).

      Furthermore,
      [w]hen determining whether an individual in possession of drugs
      intended to deliver them, the starting point is the quantity
      possessed.

         In Pennsylvania, the intent to deliver may be inferred from
         possession of a large quantity of controlled substance. It

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        follows that possession of a small amount of a controlled
        substance supports the conclusion that there is an absence
        of intent to deliver. Notably, if, when considering only the
        quantity of a controlled substance, it is not clear whether
        the substance is being used for personal consumption or
        distribution, it then becomes necessary to analyze other
        factors.

     Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa. Super.
     2008) (citation and quotation marks omitted). See also
     Commonwealth v. Ratsamy, 594 Pa. 176, 182, 934 A.2d
     1233, 1237 (2007) (stating “if the quantity of the controlled
     substance is not dispositive as to the intent, the court may look
     to other factors.”). The list of additional factors includes:

        the manner in which the controlled substance was
        packaged, the behavior of the defendant, the presence of
        drug paraphernalia, and [the] sums of cash found in
        possession of the defendant.        The final factor to be
        considered is expert testimony. Expert opinion testimony
        is admissible concerning whether the facts surrounding the
        possession of controlled substances are consistent with an
        intent to deliver rather than with an intent to possess it for
        personal use.

     Id. at 183, 934 A.2d at 1237-38 (quotation and internal
     quotation marks omitted).

Brockman, 2017 WL 2855094, at *8.

     In the case sub judice, the trial court reasoned:
     The circumstantial evidence in this case strongly supports the
     conclusion that Appellant possessed the cocaine with intent to
     deliver it. Appellant had enough cocaine on him for over thirty
     individual uses but no paraphernalia indicative of use. He had
     $380.00 in his pocket but no job. He had been giving clean
     screens during his probation supervision. The digital scale in his
     living room further suggests that he was operating a drug
     dealing business within his home. In addition, Detective Nichols
     testified that, in his expert opinion, Appellant did not have the
     physical characteristics consistent with crack cocaine usage.

TCO at 5.




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       Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, we conclude that there is sufficient evidence to

support Appellant’s PWID conviction.4            The above factors support a

conclusion that Appellant did not possess the crack cocaine for personal use,

but instead for delivery. Further, Appellant’s arguments to the contrary urge

us to improperly weigh and view the evidence in the light most favorable to

him, which we decline to do.5 Thus, based on the foregoing, we affirm his

judgment of sentence.

       Judgment of sentence affirmed.




____________________________________________


4
  Cf. Commonwealth v. Brown, 904 A.2d 925, 932 (Pa. Super. 2006)
(determining that evidence was sufficient to support the defendant’s PWID
conviction where the police recovered “a clear plastic bag that was knotted
and contained a large chunk (5.71 grams) of … cocaine[,]” seized $308 from
the unemployed defendant, and had observed the defendant in a “a very
high drug area at 10:00 p.m.”).
5
  For instance, Appellant argues that “it is often more cost effective to buy in
bulk, and this concept also can apply to illegal drugs”; he points out that
“[a] digital scale … is not an uncommon accessory possessed by drug users
who merely wish to be assured that they are getting from their drug dealer
what they are paying for”; and finally, he asserts that “there are obviously
legal means of obtaining cash other than from formal employment.” See
Appellant’s Brief at 33, 37, 43. While this all may be true, we may not
substitute our judgment for the fact-finder. See Brockman, 2017 WL
2855094, at *7.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2017




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