J-S28034-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                      :   IN THE SUPERIOR COURT OF
                                                   :         PENNSYLVANIA
              Appellee                             :
                                                   :
      v.                                           :
                                                   :
JEREMY MARK KIRSCH,                                :
                                                   :
              Appellant                            :   No. 1526 WDA 2016

           Appeal from the Judgment of Sentence September 13, 2016
                   in the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000693-2016

BEFORE:       OLSON, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                                  FILED JULY 10, 2017

      Jeremy Mark Kirsch (Appellant) appeals from the judgment of

sentence      imposed       following      his     convictions      for     operating   a

methamphetamine laboratory; possession of a controlled substance with

intent to deliver; illegal dumping of methamphetamine waste; possession of

phenylpropanolamine, phenyl acetone, methylamine, ammonium sulfate,

ammonium nitrate, phenyl acetic acid or a precursor substance with intent to

unlawfully    manufacture      a      controlled   substance;     risking    catastrophe;

possession     of    a   controlled    substance;      possession    of     paraphernalia;

possession of ephedrine, pseudoephedrine or phenylpropanolamine, or any

of their salts, optical isomers or salts of optical isomers with the intent to

manufacture         methamphetamine;        and    recklessly    engendering      another

person. We affirm.



*Retired Senior Judge assigned to the Superior Court.
J-S28034-17


            This case stems from Appellant’s operation of a
      methamphetamine laboratory from his residence located at
      11780 Middle Road, Lot 4, East Springfield Twp., Erie County. On
      January 26, 2016, Pennsylvania State Police troopers served a
      search warrant at Appellant’s residence and uncovered a
      sophisticated surveillance system, methamphetamine, and
      various items used to manufacture and sell methamphetamine.
      These items were located inside Appellant’s mobile home,
      detached shed, and the trunk of a car located on the property.
      Troopers also recovered methamphetamine from an individual
      who had just purchased the drugs from Appellant.

            On July 20, 2016, following a two-day jury trial, Appellant
      was found guilty of the aforementioned offenses. On September
      13, 2016, Appellant was sentenced to an aggregate term of 24
      months to [eight] years of imprisonment. Appellant filed a timely
      Motion to Reconsider Sentence, which [the trial court] denied on
      September 23, 2016. On October 4, 2016, Appellant filed a
      timely Notice of Appeal. In response to this Court’s directive,
      Appellant filed a Concise Statement of Matters Complained of on
      Appeal on November 1, 2016[.]

Trial Court Opinion, 12/2/2016, at 1-2.

      On appeal, Appellant challenges the sufficiency of the evidence with

respect   to   three   of   his   convictions:   operating   a   methamphetamine

laboratory, possession of a controlled substance with intent to deliver, and

risking catastrophe. Appellant’s Brief at 3.

      It is well-settled that

      our standard of review of sufficiency claims requires that we
      evaluate the record in the light most favorable to the verdict
      winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence. Evidence will be
      deemed sufficient to support the verdict when it establishes each
      material element of the crime charged and the commission
      thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a

                                        -2-
J-S28034-17


      mathematical certainty. Any doubt about the defendant’s guilt is
      to be resolved by the fact finder unless the evidence is so weak
      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.

      … Significantly, we may not substitute our judgment for that of
      the fact finder; thus, so long as the evidence adduced, accepted
      in the light most favorable to the Commonwealth, demonstrates
      the respective elements of a defendant’s crimes beyond a
      reasonable doubt, the appellant’s convictions will be upheld.

Commonwealth v. Tukhi, 149 A.3d 881, 886–87 (Pa. Super. 2016)

(internal citations omitted).   Credibility of witnesses and the weight of the

evidence produced is within the province of the trier of fact, who is free to

believe all, part, or none of the evidence. Commonwealth v. Scott, 146

A.3d 775, 777 (Pa. Super. 2016).

      Appellant contends that the evidence is insufficient to support his

convictions for operating a methamphetamine laboratory and possession

with intent to deliver because no methamphetamine was seized during the

search of his home, vehicle, and shed, and the Commonwealth failed to

establish that Appellant possessed any items recovered during that search.

Appellant’s Brief at 8-9. Further, Appellant argues that the Commonwealth

put forth no evidence to prove that he recklessly created a risk of

catastrophe by dangerous means. Id. at 9-10.

      The trial court addressed these claims as follows.

      To convict an individual of operating a methamphetamine
      laboratory, the Commonwealth must establish:



                                      -3-
J-S28034-17


           A person commits the offense of operating a
           methamphetamine      laboratory   if   the  person
           knowingly causes a chemical reaction involving
           ephedrine,     pseudoephedrine       or    phenyl-
           propanolamine, or any other precursor or reagent
           substance under section 13.1, for the purpose of
           manufacturing methamphetamine or preparing a
           precursor or reagent substance for the manufacture
           of methamphetamine.

     35 P.S. § 780-113.4(a)(footnote omitted).

          Regarding possession with intent to deliver, the evidence
     must establish:

           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. § 870-113(a)(30). The Commonwealth establishes the
     offense of possession with intent to deliver when it proves
     beyond a reasonable doubt that the defendant possessed a
     controlled substance with the intent to deliver it. To determine
     whether the Commonwealth presented sufficient evidence to
     sustain Appellant’s conviction for this offense, all of the facts and
     circumstances surround[ing] the possession are relevant and the
     elements of the crime may be established by circumstantial
     evidence. Furthermore, this offense can be inferred from the
     quantity of the drugs possessed along with the other
     surrounding circumstances.

           Possession is defined as the ability to exercise dominion
     and control over an area or object, and the possession may be
     actual or constructive. Constructive possession requires proof of
     the ability to exercise conscious dominion over the substance,
     the power to control the contraband and the intent to exercise
     such control. [A]n intent to maintain a conscious dominion may

                                     -4-
J-S28034-17


     be inferred from the totality of the circumstances … [and]
     circumstantial evidence may be used to establish a defendant’s
     possession of drugs or contraband. The fact that the contraband
     is located in an area usually accessible only to the defendant
     may lead to an inference that he placed it there or knew of its
     presence. Furthermore, our Supreme Court has recognized that
     [c]onstructive possession may be found in one or more actors
     where the item in issue is in an area of joint control and equal
     access.

           Delivery is defined by the [Controlled Substance, Drug,
     Device, and Cosmetic] Act as the actual, constructive or
     attempted transfer from one person to another of a controlled
     substance, other drug, device or cosmetic whether or not there
     is an agency relationship. Section 780-113(a)(30) does not
     require that a party make a profit, it simply prohibits delivery.

         Finally, to  establish   risking      a   catastrophe,     the
     Commonwealth must establish:

          (a) Risking catastrophe.-A person is guilty of a felony
          of the third degree if he recklessly creates a risk of
          catastrophe in the employment of fire, explosives, or
          other dangerous means listed in subsection (a)2 of
          this section.
                 ______
                 2
                   (a) Causing catastrophe.- - . A person who
                 causes a catastrophe by explosion, fire, flood,
                 avalanche, collapse of building, release of
                 poison gas, radioactive material or other
                 harmful or destructive force or substance, or
                 by any other means of causing potentially
                 widespread injury or damage, including selling,
                 dealing in or otherwise providing licenses or
                 permits to transport hazardous materials in
                 violation of 75 Pa.C.S. Ch. 83 (relating to
                 hazardous transportation), materials commits
                 a felony of the first degree if he does so
                 intentionally or knowingly, or a felony of the
                 second degree if he does so recklessly

     18 Pa.C.S.[] § 3302.

                                   -5-
J-S28034-17



            Here, the evidence adduced at trial established that the
     items found within Appellant’s residence, detached shed, and the
     trunk of a vehicle located on his property3 included paraphernalia
     necessary to manufacture methamphetamine. Troopers also
     recovered several baggies which were indicative of packaging
     used for the sale of drugs. The recovered items used to
     manufacture       methamphetamine        included     evidence     of
     pseudoephedrine, starter fluid, Coleman cans and Prestone
     starting fluid cans, Liquid Fire liquid drain opener, salt
     containers, ammonium, ammonium nitrate, lithium batteries,
     numerous       plastic    bottles    consistent      with    one-pot
     [methamphetamine] manufacturing, electric grinders, vinyl
     tubing, coffee filters and pots, funnels, and a hot plate.
     Pennsylvania State Police Trooper Donald Claypoole, a member
     of the Clandestine Lab Response Team, testified that the
     recovered items were indicative of precursors necessary to
     manufactur[e] methamphetamine. Furthermore, Brett Bailor, an
     expert witness in the field of forensic science and chemistry,
     testified at length on how the seized items, included those he
     tested, were used in the manufacturing process for
     methamphetarnine; furthermore, he opined to a reasonable
     degree [of] scientific certainty that the recovered items were
     indicative of a methamphetamine lab. Moreover, information
     from the pseudoephedrine tracking database showed Appellant’s
     history of 32 purchases of pseudoephedrine, totaling
     approximately 1,258 pills, between February 9, 2015 and
     January 21, 2016.
            ______
            3
              During surveillance, the vehicle never left the property.

            The evidence at trial further established Appellant resided
     at the property, and that prior to the search, he had sold
     methamphetamine to Kenneth Ryan [for $100].             Ryan also
     informed police that he previously provided Appellant cold pills in
     exchange for methamphetamine. Finally, the Commonwealth
     established    the    dangerous      nature    of   manufacturing
     methamphetamine in a trailer park, essentially placing other
     inhabitants and property at risk of injury. Trooper Shawn Massey
     testified that during surveillance, he was overcome by the
     chemical smell emanating from Appellant’s property wherein he
     suffered from nausea and lightheadedness. Other troopers

                                     -6-
J-S28034-17


     testified that when they opened the vehicle’s trunk, a cloud of
     fumes came blasting up into their faces.

            Based on the above, the evidence, as well as all
     reasonable inferences drawn therefrom, viewed in the light most
     favorable to the Commonwealth as the verdict winner, was
     sufficient to sustain the jury’s verdict at the challenged counts.

Trial Court Opinion, 12/2/2016, at 3-6 (some citations omitted).

     In addition to the aforementioned testimony, the Commonwealth

presented at trial a cable bill addressed to Appellant at the address

searched.1 N.T., 7/19/2016, at 40. A set of keys fitting the trunk of the

vehicle was recovered during the search of the residence.     Id. at 47-48.

Trooper Massey testified that, on the evening that he observed a “very

distinct chemical smell” emanating from the property, he also watched as

Appellant entered the shed and closed the door behind him. N.T.,

7/20/2016, at 40. Id. Thus, the totality of the evidence presented by the

Commonwealth was sufficient to establish that Appellant (1) constructively

possessed the components necessary to operate a methamphetamine

laboratory on his property, (2) intended to create in that laboratory

methamphetamine with the intent to deliver, (3) had actually delivered

methamphetamine to another person on the property at the time of the

search, and (4) recklessly created a risk of catastrophe to surrounding


1
  At trial, Appellant stipulated that during his arrest he gave the address
where the search warrant was executed, 11780 Middle Road, Lot 4, East
Springfield Twp., Erie County, as his address. N.T., 7/20/2016, at 11-12.

                                    -7-
J-S28034-17


residents by creating and storing the product and its individual components

on his property, which was located in a mobile home park.

      It is well-established that “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.” Commonwealth v. Hughes, 908 A.2d

924, 928 (Pa. Super. 2006). Here, the evidence was more than sufficient to

support the jury’s verdict. Accordingly, Appellant’s claim fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/10/2017




                                      -8-
