J-S56027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BRANDON WAYNE JOHNSON

                            Appellant                 No. 433 MDA 2015


            Appeal from the Judgment of Sentence January 13, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0004786-2013


BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                      FILED NOVEMBER 06, 2015

        Appellant Brandon Wayne Johnson appeals from the judgment of

sentence entered in the Dauphin County Court of Common Pleas following

his jury trial conviction for delivery of a controlled substance, marijuana.1

We affirm.

        On August 31, 2012, Trooper Jon Mearkle assisted in arranging a

controlled buy between a confidential informant (“CI”) and Appellant. N.T.,

1/12-13/15, (“N.T.”) at 30-38. The CI had informed Trooper Mearkle that

he could buy pot from a person named “Brandon,” who was later identified

as Appellant. N.T. at 30. The CI contacted Appellant and drove to a parking

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
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lot outside of an Adventure Sports store carrying $100.00 to purchase

marijuana from Appellant.     N.T. at 33, 34.       Appellant arrived at the

Adventure Sports parking lot as a passenger in a burgundy vehicle and

parked near the CI. N.T. at 71. Appellant exited his vehicle, walked up to

the CI’s vehicle, and made a hand-to-hand exchange through the window.

N.T. at 72-73. Appellant then returned to his vehicle and departed. N.T. at

74.     Trooper Mearkle followed the CI from the parking lot to another

location, where he determined that the CI now was in possession of

marijuana and no longer had the $100.00. N.T. at 38.

        The court conducted a jury trial on January 12 and 13 of 2015.

Trooper Mearkle and Gary W. Flythe of the Dauphin County Drug Task Force

testified for the Commonwealth.       The Commonwealth also introduced

photographic evidence of the transaction.   The photographs did not depict

the drugs and money changing hands.         On cross-examination, Trooper

Mearkle testified that the CI’s goal in aiding in the transaction was to have

criminal charges against him reduced. N.T. at 52.

        On January 13, 2015, a jury convicted Appellant of delivery of a

controlled substance. The same day, the court sentenced Appellant to one

(1) to twelve (12) months’ incarceration. On January 20, 2015, Appellant

timely filed a post-sentence motion, which the court denied on February 3,

2015.    On March 5, 2015, Appellant timely filed a notice of appeal.     On

March 10, 2015, the court ordered Appellant to file a concise statement of




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errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b), and he

timely complied on March 16, 2015.

      Appellant raises the following issue for our review:

         WHETHER THE TRIAL COURT ERRED IN DENYING
         APPELLANT’S POST-SENTENCE MOTION WHERE HIS
         CONVICTIONS WERE AGAINST THE WEIGHT OF THE
         EVIDENCE SO AS TO SHOCK ONE’S SENSE OF JUSTICE
         WHERE APPELLANT WAS NEVER SHOWN TO HAVE
         ENGAGED IN ACTS WHICH CONSTITUTE THE CRIME OF
         WHICH HE WAS CONVICTED?

Appellant’s Brief at 4.

      Appellant’s issue challenges both the sufficiency of the evidence and

the weight of the evidence.     We must first address his challenge to the

sufficiency of the evidence.

      Appellant argues that “he was not shown to have delivered the

controlled substance at issue”.     Appellant’s Brief at 10.    He claims that

because the photographs do not depict him actually exchanging money and

drugs with the CI, that the CI could have created a false transaction to

reduce the charges against himself. Appellant submits the Commonwealth

did not present enough evidence to prove that he delivered a controlled

substance. We disagree.

      When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:

         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

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        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 [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.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874

A.2d 108, 120-21 (Pa.Super.2005)).

     Appellant was convicted of the following crime:

        § 780-113. Prohibited acts; penalties

        (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).

     Instantly, the jury was presented with enough evidence to find all of

the elements of Appellant’s delivery of a controlled substance offense



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beyond a reasonable doubt.       Specifically, the Commonwealth presented

photographs of the hand-to-hand transaction between Appellant and the CI.

Further, Detective Flythe testified that he witnessed the transaction, and

Trooper Mearkle testified that the CI entered the exchange with $100.00

cash and returned with marijuana.        The jury was free to believe this

evidence, as it chose to do. Thus, Appellant’s challenge to the sufficiency of

the evidence fails. See Hansley, supra.

      We now address Appellant’s contention that the jury’s verdict was

contrary to the weight of the evidence.     Appellant argues the jury should

have credited Trooper Mearkle’s testimony, on cross-examination, about

how it was in the CI’s best interest to participate in the drug transaction so

that the Commonwealth would reduce criminal charges against him.            He

contends the jury’s decision not to believe the possibility that the CI hid the

money and the drugs in the car where Officer Mearkle could not find them

and fabricated the transaction to implicate Appellant to have his own

charges reduced was against the weight of the evidence. We disagree.

      We review challenges to the weight of the evidence as follows:

           The weight of the evidence is exclusively for the finder
           of fact who is free to believe all, part, or none of the
           evidence and to determine the credibility of the
           witnesses. An appellate court cannot substitute its
           judgment for that of the finder of fact. Thus, we may
           only reverse the…verdict if it is so contrary to the
           evidence as to shock one’s sense of justice.

         Commonwealth v. Small, 741 A.2d 666, 672–73
         (Pa.1999) [cert. denied, 121 S.Ct. 80, 148 L.Ed.2d 42

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         (U.S.2000)]. Moreover, where the trial court has ruled on
         the weight claim below, an appellate court’s role is not to
         consider the underlying question of whether the verdict is
         against the weight of the evidence. Rather, appellate
         review is limited to whether the trial court palpably abused
         its discretion in ruling on the weight claim.

Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011), appeal

denied, 42 A.3d 1059 (Pa.2012) (some internal citations omitted).

      This Court has recognized that “a true weight of the evidence

challenge concedes that sufficient evidence exists to sustain the verdict but

questions   which     evidence   is   to    be   believed.”    Commonwealth v.

Thompson, 106 A.3d 742, 758 (Pa.Super.2014). Accordingly, “[o]ne of the

least assailable reasons for granting or denying a new trial is the lower

court’s conviction that the verdict was or was not against the weight of the

evidence and that a new trial should be granted in the interest of justice.”

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.2013).                    A trial judge

should not grant a new trial due to “a mere conflict in the testimony or

because the judge on the same facts would have arrived at a different

conclusion.”    Id.      Instead,     the   trial   court   must   examine   whether

“notwithstanding all the facts, certain facts are so clearly of greater weight

that to ignore them or to give them equal weight with all the facts is to deny

justice.” Id. Only where the jury verdict “is so contrary to the evidence as




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to shock one’s sense of justice”2 should a trial court afford a defendant a

new trial. Id.

       Here, the jury chose to credit the Commonwealth’s photographic

evidence of the transaction along with the testimony of Trooper Mearkle and

Detective Flythe. Although it is possible that the CI could have hidden drugs

in the car and created a false transaction to reduce the charges against him,

the jury’s verdict was not against the weight of the evidence.

       Judgment of sentence affirmed.

      Judge Shogan joins in the memorandum.

       Judge Platt concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2015




____________________________________________


2
  When “the figure of Justice totters on her pedestal, or when the jury’s
verdict, at the time of its rendition, causes the trial judge to lose his breath,
temporarily, and causes him to almost fall from the bench, then it is truly
shocking to the judicial conscience.” Commonwealth v. Cruz, 919 A.2d
279, 282 (Pa.Super.2007) (internal citations omitted).



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