J-S27036-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

TERRANCE POTEAT

                            Appellant              No. 1702 WDA 2013


       Appeal from the Judgment of Sentence entered August 20, 2013
               In the Court of Common Pleas of Fayette County
            Criminal Division at No(s): CP-26-CR-0001997-2012


BEFORE: GANTMAN, P.J. , ALLEN, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                        FILED AUGUST 07, 2014

       Appellant, Terrance Poteat, appeals from the August 20, 2013

judgment of sentence imposing three to six years of incarceration for

possession     with   intent    to   de

possession of a controlled substance, delivery of a controlled substance, and

possession of drug paraphernalia.1 We affirm.



which are not in dispute:

             On July 19, 2012, a confidential informant met with
       Fayette County Drug Task Force Detectives Norman Howard and
       Troy Rice. The detectives were working with the informant to
____________________________________________


1
   35 P.S. § 780-113(a)(16) (Possession), (30) (Delivery and PWID), and
(32) (Paraphernalia).    The trial court imposed three to six years of
incarceration for PWID and no further penalty on the remaining convictions.
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       informant indicated to the detectives that he could purchase
       heroin from [Appellant]. He contacted [Appellant] via phone to

       for one hundred twenty (120) dollars. After a thorough search
       of the inf

       sight as he drove to meet [Appellant].

             When the informant approached [Appellant], [Appellant]
       placed two garbage bags into the informant
       backseat and the other in the trunk. The informant drove
       [Appellant] to another residence, and [Appellant] entered the
       residence where he was inside for several minutes. Upon exiting
       the residence, [Appellant] reentered the inform
       where the drug exchange occurred. Giving their agreed upon
       signal, the informant tapped the roof of his vehicle with his
       hand, and the detectives notified standby police officers to stop
       the vehicle.

              Once the vehicle was stopped, the detectives approached
       and asked the informant to exit the vehicle and place his hands
       on it with his legs spread. [Appellant] was also approached. At
       that time, a Terry[2] frisk was conducted, and Detective Howard
       found three (3) bundles of heroin in [Appella
       but no money. He was then placed into custody. The informant
       was also subjected to a Terry frisk, and one (1) bundle of heroin
       was recovered from his person. The one hundred twenty (120)
       dollars was not found on him. He was placed under fake arrest
       in order to avoid exposing him as a confidential informant. The
       detectives proceeded to search the vehicle and found some
       personal items belonging to [Appellant] in the trash bags but no
       additional drugs, money, or paraphernalia.

             [Appellant] was then transported to the Uniontown City
       Police Station where he was read his Miranda[3] warnings
       before being interviewed by the detectives. He waived his
       Miranda
____________________________________________


2
    Terry v. Ohio, 392 U.S. 1 (1968).
3
    Miranda v. Arizona, 384 U.S. 436 (1966).



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J-S27036-14


     stuff not knowing if it was real or not. So I kept it until I had

     house it [sic] another. And I kept it until I was able to see if was


            [Appellant] was   charged    with   Delivery,  [PWID],
     Possession, and Possession of Drug Paraphernalia. A jury trial
     was held on August 8-9, 2013, and [Appellant] was convicted on
     all counts.

Trial Court Opinion, 12/18/13, at 2-3.

     Appellant raises two issues in this timely appeal:

           1. The Commonwealth failed to prove beyond a reasonable
              doubt that [Appellant] possessed the controlled
              substance with intent to deliver them [sic] to another
              party.

           2. The Commonwealth failed to prove beyond a reasonable
              doubt that [Appellant] delivered the controlled
              substance to another party.




evidence. We conduct our review as follows:

           The standard of review for a challenge to the sufficiency of
     the evidence is to determine whether, when viewed in a light
     most favorable to the verdict winner, the evidence at trial and all
     reasonable inferences therefrom is sufficient for the trier of fact
     to find that each element of the crimes charged is established
     beyond a reasonable doubt. The Commonwealth may sustain its
     burden of proving every element beyond a reasonable doubt by
     means of wholly circumstantial evidence.

         The facts and circumstances established by the
     Commonwealth need not preclude every possibility of innocence.

     the fact-finder.   As an appellate court, we do not assess
     credibility nor do we assign weight to any of the testimony of
     record. Therefore, we will not disturb the verdict unless the
     evidence is so weak and inconclusive that as a matter of law no

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      probability of     fact    may    be   drawn     from   the     combined
      circumstances.

Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014)

(citations and quotation marks omitted).          As sufficiency of the evidence

presents a question of law, our standard of review is de novo and our scope

of review is plenary.    Commonwealth v. Staton, 38 A.3d 785, 789 (Pa.

2012).

      Appellant     asserts     the    evidence   is   insufficient     because    the

Commonwealth produced no direct evidence in support of his PWID and



convictions were based on mere conjecture or surmise. Id. at 8. This is so,

according to Appellant, because neither of the testifying detectives saw the

actual transaction take place, and because they did not recover the pre-

recorded buy money. Id. at 9-10.

                                                                      can rest entirely

on circumstantial evidence. Vogelsong, 90 A.3d at 719. In addition, the

detectives observed the confidential informant call Appellant to arrange the

deal and travel to meet Appellant to conduct the deal, which was for one

bundle of heroin.    When the informant signaled to the detectives that the

transaction was complete, police arrested both men and found one bundle of



transaction.   In summary, the record contains overwhelming evidence of




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relief.



was contrary to the weight of the evidence.4                                    -9.

Appellant included this issue in a timely post-sentence motion in accordance

with Pa.R.Crim.P. 607.5

as it is under his sufficiency of the evidence argument the detectives did not

observe the actual transaction and did not recover the buy money from

Appellant. Our conclusion, likewise, remains the same under a weight of the

____________________________________________


4
    The applicable standard of review is as follows:

                A verdict is not contrary to the weight of the evidence
          because of a conflict in testimony or because the reviewing court
          on the same facts might have arrived at a different conclusion
          than the factfinder. Rather, a new trial is warranted only when
                                             to the evidence that it shocks

          so that right may be given another opportunity to prevail.
          Where, as here, the judge who presided at trial ruled on the
          weight claim below, an appellate court
          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. Tharp, 830 A.2d 519, 528 (Pa. 2003) (citations and
quotation marks omitted), cert. denied, 541 U.S. 1045 (2004). In his brief,
Appellant appears to blur the distinction between challenges to weight and
sufficiency of the evidence.
5
   We disapprove of
of questions involved, in violation of Pa.R.A.P. 2116(a).



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                                       otion for a



     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2014




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