J-S38028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MATTHEW JOHNSON                            :
                                               :
                       Appellant               :   No. 2784 EDA 2017

              Appeal from the Judgment of Sentence July 18, 2017
     In the Court of Common Pleas of Delaware County Criminal Division at
                        No(s): CP-23-CR-0004231-2016


BEFORE:      OTT, J., DUBOW, J., and COLINS*, J.

MEMORANDUM BY DUBOW, J.:                            FILED DECEMBER 23, 2019

        Appellant, Matthew Johnson, appeals from the Judgment of Sentence

entered by the Delaware County Court of Common Pleas following his

conviction after a bench trial of three counts of Sale of Noncontrolled

Substance Representing as a Controlled Substance.1 He raises a challenge to

the sufficiency of evidence. After careful review, we reverse his convictions

and vacate his Judgment of Sentence.

        We glean the following facts from the certified record. In February 2016,

Police Officer Stacey Rucker participated in an undercover drug operation

investigation in Darby Borough. While monitoring Instagram, she observed a

photograph of three small blue pills in a clear vial with dark purple liquid,


____________________________________________


1   35 P.S. § 780-113(a)(35)(ii).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S38028-19



labeled “pancakes and syrup,[2] who wants some[?]” N.T. Trial, 7/18/17, at

17. The photograph was associated with the Instagram account belonging to

Itstatagg.

       On February 11, 2016, Officer Rucker contacted Itstatagg through

Instagram, and inquired about purchasing “pancakes and syrup.” In response,

Itstatagg gave Officer Rucker a cell phone number to text message when she

was ready to make a purchase.

       On February 15, 2016, Officer Rucker texted the cell phone number and

arranged to purchase four vials of “pancakes and syrup” for $70 at the 9th

and Main Street trolley loop that afternoon. When she arrived at the trolley

loop, Officer Rucker recognized Appellant from photograms on the Itstatagg

Instagram account. Appellant reached into a duffle bag and pulled out four

vials filled with dark liquid. In return for the four vials, Officer gave Appellant

$70 in cash.

       Two days later, on February 17, 2016, Officer Rucker texted the cell

phone number again and requested four more vials of “pancakes and syrup.”

She again met Appellant at the 9th and Main Street trolley loop later that day,

where Appellant gave her four vials for $70.


____________________________________________


2 “Pancakes and syrup” is the street name for a mix of the narcotic codeine
and promethazine. N.T. Trial, 7/18/17, at 18. Codeine is a controlled
substance; promethazine is not. See 35 P.S. § 780-104 (schedules of
controlled substances).




                                           -2-
J-S38028-19



         Officer Rucker contacted Appellant on February 25, 2016, and inquired

about purchasing “lean.” 3 Appellant informed her that he only had half-ounce

jars of “lean” for sale for $20 each, plus a delivery fee; Officer Rucker agreed

to purchase jars at that price. They met again at the trolley loop where

Appellant gave her two half-ounce jars of purple liquid in exchange for $50.

He informed her that “these ones are stronger than the last ones.” N.T. Trial

at 35.

         Officer Rucker sent the vials and jars she purchased from Appellant to

the Pennsylvania State Police laboratory for testing, which revealed that none

of the items she purchased from Appellant contained any controlled

substances. The Commonwealth charged Appellant with three counts of Sale

of Noncontrolled Substance Representing as a Controlled Substance.

         On July 18, 2017, the court held a bench trial, in which Officer Rucker

was the sole witness. The court found Appellant guilty of all three counts. On

the same date, the court sentenced him to an aggregate term of four to

twenty-three months of imprisonment. Appellant filed a Post-Sentence

Motion, which the trial court denied.

         Appellant filed a Notice of Appeal. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

         In his Brief, Appellant raises the following issue: “[w]hether [the]

Commonwealth presented sufficient evidence that [Appellant] sold a

____________________________________________


3   “Lean” is the street name for codeine. Id. at 33.

                                           -3-
J-S38028-19



Noncontrolled Substance Representing as a Controlled Substance under 35

P.S. 780-113[(]35)(ii),” contending that the Commonwealth failed to present

any evidence supporting the factors set forth in the statute. Appellant’s Br. at

7, 11.

         “A claim challenging the sufficiency of the evidence is a question of

law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “We

review claims regarding the sufficiency of the evidence by considering

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.”

Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017), appealed

denied, 172 A.3d 632 (Pa. 2018) (internal quotation marks and citations

omitted). “Further, a conviction may be sustained wholly on circumstantial

evidence, and the trier of fact—while passing on the credibility of the witnesses

and the weight of the evidence—is free to believe all, part, or none of the

evidence.” Id. “In conducting this review, the appellate court may not weigh

the evidence and substitute its judgment for the fact-finder.” Id.

         Pursuant to 35 P.S. § 780-113(a)(35)(ii):

         [N]o person shall knowingly distribute or sell a noncontrolled
         substance upon the express or implied representation that the
         substance is a controlled substance. In determining whether there
         has been a violation of this subclause, the following factors shall
         be considered:

                 (A) Whether the noncontrolled substance in its overall
                 finished dosage appearance is substantially similar in


                                          -4-
J-S38028-19


            size, shape, color and markings or lack thereof to a
            specific controlled substance.

            (B) Whether the noncontrolled substance in its
            finished dosage form is packaged in a container which,
            or the labeling of which, bears markings or printed
            material substantially similar to that accompanying or
            containing a specific controlled substance.

            (C) Whether the noncontrolled substance is packaged
            in a manner ordinarily used for the illegal delivery of
            a controlled substance.

            (D) Whether the consideration tendered in
            exchange      for   the    noncontrolled   substance
            substantially exceeds the reasonable value of
            the substance, considering the actual chemical
            composition of the substance and, where applicable,
            the price at which over-the-counter substances of like
            chemical composition sell.

            (E) Whether the consideration tendered in
            exchange      for    the    noncontrolled     substance
            approximates or exceeds the price at which the
            substance would sell upon illegal delivery were it
            actually the specific controlled substance it physically
            resembles.

35 P.S. § 780-113(a)(35)(ii) (emphasis added).

      The first three factors of 35 P.S. § 780-113(a)(35)(ii) pertain to the

substance and packaging of the counterfeit substances. The substance must

be similar in size, shape, color, and marking to the controlled substance, and

in a container similar to the kind used to carry the controlled substance.

Commonwealth v. Dancy, 650 A.2d 448, 451 (Pa. Super. 1994). The last

two factors pertain to the price of the counterfeit substance—whether the

consideration exceeds the reasonable value of the counterfeit substance and



                                     -5-
J-S38028-19



approximates the value of the controlled substance that the purchaser

believed she was purchasing. Id.

      At trial, the Commonwealth produced evidence that addressed only the

first three factors of 35 P.S. § 780-113(a)(35)(ii). Officer Rucker’s testimony

regarding the three transactions noted above showed that the counterfeit

substances that Appellant sold to Officer Rucker were similar in appearance,

including form and packaging, to “pancakes and syrup” or “lean.” Officer

Rucker stated that she had made 200 drug purchases in her capacity as an

undercover officer, and had encountered “pancakes and syrup.” N.T. Trial at

16. She indicated that it was typically packaged in small clear vials with

colored liquid. Id. at 17, 60. She noted that liquid could be purple or a variety

of other colors. Id. at 17. Officer Rucker further testified that she had

purchased “pancakes and syrup” as well as “lean” in the same forms, including

packaging, that Appellant had sold her the counterfeit substances. Id. at 60.

      However, the Commonwealth presented no evidence regarding the last

two factors. The Commonwealth never presented evidence about the type of

substance that the officer actually purchased. The parties stipulated only that

the laboratory results revealed that the vials and jars at issue did not contain

any controlled substances. Id. at 64. The parties did not stipulate to the type

of substance in the vials and jars. Additionally, Officer Rucker admitted during

cross-examination that the bottles “could have [contained] anything. . . . [W]e

can’t field test.” Id. at 50. Without evidence of the type of substance that

Appellant sold to the officer, the Commonwealth could not establish “the

                                      -6-
J-S38028-19



reasonable value of the substance” as required by subsection D. See 35 P.S.

§ 780-113(a)(35)(ii)(D).

      Moreover, Officer Rucker never testified about the prevailing market

price of “pancakes and syrup” or “lean.” She simply testified about the amount

of money she paid Appellant in each of the three transactions, and that she

had thought she was purchasing controlled substances. See id. at 22, 29, 32,

34, 42-43.

      Therefore, even considering all of the evidence admitted at trial in the

light most favorable to the Commonwealth as verdict winner, we conclude that

the Commonwealth failed to present evidence regarding “[w]hether the

consideration   tendered   in   exchange    for   the   noncontrolled   substance

substantially exceeds the reasonable value of the substance” and “[w]hether

the consideration tendered in exchange for the noncontrolled substance

approximates or exceeds the price at which the substance would sell upon

illegal delivery were it actually the specific controlled substance it physically

resembles.” 35 P.S. § 780-113(a)(35)(ii)(D)-(E).

      Consequently, we conclude that there is insufficient evidence to sustain

Appellant’s convictions for Sale of a Noncontrolled Substance Representing as

a Controlled Substance. Accordingly, we reverse his convictions.

      Judgment of Sentence reversed. Jurisdiction relinquished.

      Judge Colins joins the memorandum.

      Judge Ott files a dissenting memorandum.




                                      -7-
J-S38028-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/19




                          -8-
