J-A14037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

FREDERICK SANDERS,

                            Appellant                 No. 3517 EDA 2015


           Appeal from the Judgment of Sentence October 21, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001071-2015


BEFORE: BENDER, P.J.E., BOWES and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED SEPTEMBER 18, 2017

        Appellant, Frederick Sanders, appeals from the judgment of sentence

entered following his convictions of simple possession of a controlled

substance and possession of a controlled substance with intent to deliver.1

We affirm.

        The trial court summarized the underlying facts of this case as follows:

               Officer Don Vandermay [of the Philadelphia Police
        Department] testified at trial that during his tour of duty on
        January 16, 2015, at approximately 5:45 p.m., he was patrolling
        the area of 500 East Cambria Street, in full uniform and in an
        unmarked patrol car.      While he was driving, he observed
        [Appellant] and an unidentified black male walking eastbound on
        Cambria St. He saw the arm of the unidentified male extended
        in front of him and holding an unknown amount of United States
        currency. At this point Officer Vandermay heard yelling from
____________________________________________


1
    35 P.S. §§ 780-113(a)(16) and (30).
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      behind the patrol vehicle and observed [Appellant] discard a
      black object. Officer Vandermay testified that he was about 15
      feet from [Appellant] when he dropped the object.            The
      unidentified male was not stopped. Officer Vandermay and his
      partner Officer Walsh exited the patrol vehicle. Officer Walsh
      stopped [Appellant] while Officer Vandermay went to look for the
      discarded object. The officer recovered a black key holder
      containing a bundle of 10 packets of heroin. While waiting with
      [Appellant] for his partner to complete the necessary paperwork,
      Officer Vandermay saw an unidentified white male approach the
      police vehicle and say “Yo, Black, do you have anything left?”
      The unidentified male quickly turned away and left the area.

Trial Court Opinion, 5/13/16, at 1-2.

      Appellant was    charged with simple        possession of a controlled

substance and possession with intent to deliver. On July 29, 2015, at the

conclusion of a nonjury trial, Appellant was convicted of both crimes.

Appellant filed a post-trial motion for extraordinary relief on October 20,

2015, which the trial court denied on October 21, 2015. Also on October 21,

2015, the trial court sentenced Appellant to serve a term of incarceration of

two to four years, to be followed by five years of probation for the conviction

of possession with intent to deliver. No further penalty was imposed for the

conviction of simple possession.        Appellant filed a timely post-sentence

motion for reconsideration of sentence, which the trial court denied on

November 10, 2015. This timely appeal followed. Both Appellant and the

trial court have complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      1. Was not the evidence insufficient to sustain [A]ppellant’s
      conviction for possession with the intent to deliver a controlled


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      substance, insofar as there was insufficient evidence that there
      was any intent to deliver?

      2. Did not the trial court err in admitting inadmissible hearsay
      evidence from the Commonwealth at [A]ppellant’s trial?

Appellant’s Brief at 4.

      Appellant first argues that the Commonwealth failed to present

sufficient evidence to support his conviction of possession with intent to

deliver.   Appellant’s Brief at 9-16.    Essentially, Appellant contends the

Commonwealth failed to establish that Appellant intended to deliver the

heroin. Appellant alleges that the evidence against him was circumstantial

and speculative.

      We analyze arguments challenging the sufficiency of the evidence

under the following parameters:

             Our standard when reviewing the sufficiency of the
      evidence is whether the evidence at trial, and all reasonable
      inferences derived therefrom, when viewed in the light most
      favorable to the Commonwealth as verdict-winner, are sufficient
      to establish all elements of the offense beyond a reasonable
      doubt.     We may not weigh the evidence or substitute our
      judgment for that of the fact-finder. Additionally, the evidence
      at trial need not preclude every possibility of innocence, and the
      fact-finder is free to resolve any doubts regarding a defendant’s
      guilt 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. When evaluating the credibility and
      weight of the evidence, the fact-finder is free to believe all, part
      or none of the evidence. For purposes of our review under these
      principles, we must review the entire record and consider all of
      the evidence introduced.




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Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)

(quoting Commonwealth v. Emler, 903 A.2d 1273, 1276-1277 (Pa. Super.

2006)).

      In order to uphold a conviction for possession of narcotics with the

intent to deliver pursuant to 35 P.S. § 780-113(a)(30), the Commonwealth

must prove beyond a reasonable doubt that the defendant possessed a

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

Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000) (en

banc).    The intent to deliver may be inferred from an examination of the

facts and circumstances surrounding the case.              Commonwealth v.

Conaway, 791 A.2d 359, 362-363 (Pa. Super. 2002). Factors that may be

relevant in establishing that 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. Aguado, 760 A.2d at 1185. Moreover, we have

held that circumstantial evidence is reviewed by the same standard as direct

evidence - that is, that a decision by the trial court will be affirmed “so long

as the combination of the evidence links the accused to the crime beyond a

reasonable doubt.” Commonwealth v. Johnson, 818 A.2d 514, 516 (Pa.

Super. 2003) (citations omitted).

      In addressing Appellant’s challenge to the sufficiency of the evidence

to sustain the guilty verdict, the trial court offered the following analysis:

           Officer Vandermay saw an unidentified male walking with
      [Appellant]. The unidentified male had money in his extended

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      hand. Upon hearing a shout from an unknown and unseen
      individual, the two men separated and [Appellant] discarded a
      black object. Officer Vandermay observed the abandonment of
      the object from approximately 10-15 feet. He then immediately
      found and recovered a key holder containing heroin in the same
      area where [Appellant] had discarded his object. These fact[s]
      and circumstances were sufficient to establish an aborted sale
      and that [Appellant] was the seller. The unidentified male was
      extending the money outward, a signal that he was giving
      money, not receiving it. The fact that the heroin was secreted in
      a key holder also suggests that the heroin had yet to be sold and
      therefore [Appellant] was the seller. There is nothing in this
      scenario to suggest that [Appellant] was a buyer. Indeed, no
      paraphernalia was recovered from him. Therefore, the evidence
      was sufficient to establish possession with the intent to deliver
      beyond a reasonable doubt.

Trial Court Opinion, 5/13/16, at 3.

      Upon thorough review of the certified record, we agree that the

circumstantial evidence was sufficient for the trial court, sitting as the finder

of fact, to conclude beyond a reasonable doubt that Appellant possessed a

controlled substance with the intent to deliver. Accordingly, the evidence is

sufficient to prove that Appellant committed the crime of possession with

intent to deliver. Therefore, Appellant’s contrary argument lacks merit.

      Appellant   next   argues   that    the   trial   court   erred   in   admitting

inadmissible hearsay evidence at trial. Appellant’s Brief at 16-20. Appellant

asserts that the statement: “Yo Black, do you have anything left?,” made by

an unidentified person, while Appellant was under arrest, constituted

inadmissible hearsay that should not have been admitted and was not

harmless error.




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      It is well settled that “[t]he admission of evidence is within the sound

discretion of the trial court, and will be reversed on appeal only upon a

showing that the trial court clearly abused its discretion.” Commonwealth

v. Miles, 846 A.2d 132, 136 (Pa. Super. 2004) (en banc) (citing

Commonwealth v. Lilliock, 740 A.2d 237 (Pa. Super. 1999)).            Abuse of

discretion requires a finding of misapplication of the law, a failure to apply

the law, or judgment by the trial court that exhibits bias, ill-will, prejudice,

partiality, or was manifestly unreasonable, as reflected by the record.

Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009).

      Hearsay has been defined as a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.       Pa.R.E. 801(c).   Commonwealth v.

Smith, 586 A.2d 957, 963 (Pa. Super. 1991).         Hearsay testimony is not

admissible in this Commonwealth, except as provided in the Pennsylvania

Rules of Evidence, by other rules prescribed by the Pennsylvania Supreme

Court, or by statute. Pa.R.E. 802. “The rationale for the hearsay rule is that

hearsay is too untrustworthy to be considered by the trier of fact.”

Commonwealth v. Bean, 677 A.2d 842, 844 (Pa. Super. 1996).

      Assuming, for the sake of argument, that the unidentified person’s

statement was improperly admitted hearsay evidence, we conclude that

Appellant is not entitled to relief.    We have often stated that “where a

criminal case proceeds before a judge sitting without a jury, there is a


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presumption that his knowledge, experience and training will enable him to

disregard    inadmissible      evidence    and   other   improper     elements.”

Commonwealth v. Lambert, 765 A.2d 306, 362 (Pa. Super. 2000). See

also Commonwealth v. Miller, 627 A.2d 741, 749 (Pa. Super. 1993)

(stating that “when the court is sitting as fact-finder, it is presumed that

inadmissible evidence is disregarded and that only relevant and competent

evidence is considered”).

     Our independent review of the record reflects that Appellant waived

his right to a jury trial and chose to be tried by the Honorable Abbe F.

Fletman.    Thus, we are to presume that the trial judge considered only

competent     and   relevant    evidence    presented    and   disregarded     any

inadmissible evidence presented by the Commonwealth. Furthermore, this

conclusion is supported by the written statement of the trial judge. In her

opinion authored pursuant to Pa.R.A.P. 1925(a), Judge Fletman addressed

Appellant’s contention that she improperly considered the statement from

the unknown individual.     The trial court discounted Appellant’s allegations

with the following thorough discussion:

           [Appellant] argues that the trial court abused its discretion
     by failing to exclude the hearsay testimony by Officer
     Vandermay. Review of a trial court’s evidentiary ruling is limited
     to clear abuse of discretion. Com. v. King, 959 A.2d 405, 411
     (Pa. Super. 2008). “Abuse of discretion is not merely an error of
     judgment, but rather where the judgment is manifestly
     unreasonable or where the law is not applied or where the record
     shows that the action is a result of partiality, prejudice, bias or ill
     will.” Id. (citing Com. v. Hunzer, 868 A.2d 498 (Pa. Super.
     2005)).

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J-A14037-17



             The statements by the unknown male constitute hearsay
      and there is no applicable exception. The court’s admission of
      this statement, however, constitutes harmless error. “Harmless
      error exists where ... the error did not prejudice the defendant
      or the prejudice was de minimis ....” Com. v. Robinson, 721
      A.2d 344, 350 (Pa. 1999). Defense counsel failed to object until
      Officer Vandermay already had uttered the entire statement. At
      this point, the fact-finder, in this case the Court, had already
      heard the statement. The statement was also of little value
      and had no bearing on the outcome of the case. “[J]urists
      are human and therefore subject to the failings of human nature.
      However, their training and experience in assessing the
      competency and the relevance of proffered evidence equips
      them to be more critical and judicious in their evaluation.” Com.
      v. Harvey, 526 A.2d 330, 333 (Pa. 1987). In this case, the
      fact-finder would have to make the inference that this
      unknown individual walked up to [Appellant], and a
      uniformed police officer, and inquired as to whether
      [Appellant] had any drugs left because he was a known
      drug dealer. While a jury may be willing to make this
      logical leap, the Court did not. The Court based its finding
      entirely    on    Officer    Vandermay’s       observations    of
      [Appellant], the unidentified male, and the physical
      evidence recovered. Therefore, the prejudice to [Appellant]
      was de minimis and the Court’s admission of the statement
      constituted harmless error.

Trial Court Opinion, 5/13/16, at 5-6 (emphases added).            Therefore,

Appellant’s assertion that the evidence was improperly considered by the

trial court lacks merit.

      Judgment of sentence affirmed.




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J-A14037-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2017




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