J-S62002-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KEITH BROWN,

                            Appellant                  No. 455 EDA 2013


       Appeal from the Judgment of Sentence entered January 15, 2013,
            in the Court of Common Pleas of Philadelphia County,
             Criminal Division, at No(s): CP-51-CR-0008751-2012


BEFORE: ALLEN, OLSON, and OTT, JJ.

MEMORANDUM BY ALLEN, J.:                        FILED SEPTEMBER 26, 2014



imposed after the trial court convicted him of possession with intent to

deliver a controlled substance and intentional possession of a controlled

substance.1 We affirm.

        The trial court summarized the relevant facts as follows:

               On July 5, 2012 at approximately 4:55 p.m., Officer Daniel
        Adams was conducting surveillance for illegal narcotics at 1102
        West Somerville Avenue in Philadelphia, Pennsylvania.         At
        approximately 5:15 p.m., Officer Adams witnessed a male
        identified as Quentin Thompson hand [Appellant] an unknown
        amount of United States Currency in exchange for unknown
        small objects [Appellant] took out of a clear bag from his left-
        hand pocket.      At approximately 5:25 p.m., Officer Adams
        witnessed a male identified as Larry Goodman approach
        [Appellant] on a bicycle. [Appellant] descended down the stairs
____________________________________________


1
    35 P.S. §§780-113(a)(30) and (16) respectively.
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      in front of 1102 West Somerville Avenue to meet the male.
      [Appellant] accepted an unknown quantity of United States
      Currency in exchange for unknown objects taken out of a clear
      plastic bag from his left-hand pocket.

            After the second transaction, [Appellant] walked away
      from 1102 West Somerville Avenue. Officer Tyrick Armstead
      proceeded to arrest [Appellant] in the middle of the street at
      5200 Tenth Street, approximately one and a half to two blocks
      away from 1102 West Somerville [Avenue]. At the time of the
      arrest, [Appellant] had thirty four ($34.00) dollars on his person.
      Nothing else was recovered from [Appellant].

             Officer Deirdre Still recovered one clear Ziploc bag
      containing white chunks weighing 106 milligrams that tested
      positive for cocaine base from Mr. Thompson. Officer Still also
      recovered one clear Ziploc bag containing white chunks weighing
      130 milligrams that also tested positive for cocaine base from
      Mr. Goodman.

Trial Court Opinion, 4/2/14, at 1-2 (citations to notes of testimony omitted).

      The Commonwealth charged Appellant with possession with intent to

deliver a controlled substance and intentional possession of a controlled

substance. The trial court convened a bench trial on January 15, 2013, after

which the trial court rendered its guilty verdicts and sentenced Appellant to

eighteen (18) months of probation on the possession with intent to deliver a

controlled substance charge, with no further penalty on the intentional

possession of a controlled substance charge. See N.T., 1/15/13, at 72-73.

Appellant did not file a post-sentence motion. On February 4, 2012, he filed

a timely notice of appeal. Both Appellant and the trial court have complied

with Pa.R.A.P. 1925.

      Appellant raises a single issue on appeal:




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            Was not the evidence insufficient as a matter of law to
                                                  with the intent to
      deliver and knowing and intentional possession of a controlled
      substance where there were no drugs founds on appellant or in
      the area he occupied and all that was recovered from appellant
      was $34?




      The essence of




f

                                    Id. at 10, 18.   Appellant further asserts




                                                     Id. at 13.

      We initially note that to the extent Appellant challenges the trial

       inferences and credibility determinations, such challenge goes to the

weight of the evidence.   Commonwealth v. Wilson, 825 A.2d 710, 713-

714 (Pa. Super. 2003) (a review of the sufficiency of the evidence does not

include an assessment of the credibility of testimony, such claim goes to the

weight of the evidence). Because Appellant has not raised a weight claim

before either the trial court or this Court, it is waived. Pa.R.Crim.P. 607(A);

Pa.R.A.P. 1925(b). However, even had Appellant preserved a weight claim,


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J-S62002-14



such claim would be meritless in this case because this Court cannot

substitute    its   judgment    for   the    trial   court    as   the   finder    of   fact.

Commonwealth v. Holley, 945 A.2d 241, 246 (Pa. Super. 2008).

      To the extent Appellant raises a sufficiency claim, we must view the

evidence, together with all reasonable inferences therefrom, in a light most

favorable to the Commonwealth as the verdict winner. Commonwealth v.

Weston, 749 A.2d 458, 461 (Pa. 2000). If the fact finder                 in this case the

trial court    could have reasonably determined from the evidence that the

necessary elements of the crimes were established, then the evidence is

sufficient to support the convictions. Id. Upon review, we find that the trial

court was presented with sufficient evidence from which it could find that the



reasonable doubt.

      To find a defendant guilty of possession with the intent to deliver, 35

P.S. § 780-113(a)(30), the Commonwealth must prove that the defendant

possessed a controlled substance and did so with the intent to deliver it.

Commonwealth v. Conaway, 791 A.2d 359, 362 (Pa. Super. 2002). The

intent to deliver may be inferred from an examination of the facts and

circumstances surrounding the case. Id. at 362-363.

      To sustain a conviction for intentional possession of a controlled

substance, 35 P.S. § 780-113(a)(16), the Commonwealth must prove that

the   defendant     knowingly    and    intentionally        possessed    the     controlled




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substance.    Commonwealth v. Valette, 613 A.2d 548, 549-550 (Pa.

1992).

      The record reveals the following:        Philadelphia Police Officer Daniel

Adams tes




                                                                   n amount of

                                                                           -hand

pocket and removed a clear bag, removed small objects from that bag and

                                          Id. at 13-14, 21, 24.   Officer Adams

testified that approximately ten minutes later, at 5:25 p.m., Larry Goodman



Id. at 15.   Officer Adams, again from 20 feet away, observed Appellant

                                                                    objects from

                                                  Id.

      Philadelphia Police Officer Dierdre Still testified to working on July 5,

                                                                           Id. at

30-31. Officer Still testified to appre



Goodman. Id. at 33.

      Philadelphia Police   Officer   Tyrick Armstead testified to       working

plainclothes narcotic surveillance on July 5, 2012, and being given

information to stop Appellant.    Id. at 41-42.     Officer Armstead testified to

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J-S62002-14



                                                                         Id. at

42.

      Philadelphia Police Officer Mark Robinson testified to being part of an



Quentin Thompson and recover[ing] from his right front pants pocket one

                                                            Id. at 47.   Officer




Thompson. Id. at 51.

      Counsel stipulated that 106 milligrams of cocaine were recovered from

Mr. Thompson and 130 milligrams of cocaine were recovered from Mr.

Goodman. Id. at 52-54.

      Appellant did not present any witnesses in his defense.

      Based on the testimony presented by the Commonwealth, the trial

court reached its guilty verdicts and offered the following rationale:

            [The trial] court considers the observations made by the
      narcotics surveillance team to be direct evidence of guilt.
      [Appellant] was observed by the specialized team making two
      hand-to-hand transactions, which resulted in [Appellant]
      accepting unknown quantities of United States Currency. In
      addition, the same type of drug with the same packaging was
      recovered from both of the buyers observed by the surveillance
      team. The two transactions coupled with the similar packaging
      of the crack cocaine obtained from the buyers established
      [Appell
      combination of this evidence links [Appellant] to the crime
      beyond a reasonable doubt.

           Although no drugs were recovered from [Appellant], it is
      reasonable to believe that [Appellant] exhausted his supplies

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J-S62002-14


      after the second transaction.        The officers that arrested
      [Appellant], Mr. Thompson, and Mr. Goodman were able to keep
      close observation of all three individuals during the transaction.
                                                               leaves no
      reasonable doubt that Mr. Thompson and Mr. Goodman
      purchased the crack cocaine from [Appellant]. Viewing the
      totality of the evidence, the [trial c]ourt concluded that
      [Appellant] had constructive possession of the crack cocaine that
      he sold to Mr. Thompson and Mr. Goodman.

Trial Court Opinion, 4/2/14, at 4.



Pennsylvania statutory and case law, as well as the evidence of record. We

                                                   cy claim and affirm the

judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2014




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