J-A02001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

MICHAEL TITH

                            Appellee                  No. 3720 EDA 2015


                    Appeal from the Order November 9, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0015686-2013


BEFORE: OTT, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                 FILED APRIL 27, 2017

        The Commonwealth appeals from the order entered November 9,

2015, in the Court of Common Pleas of Philadelphia, granting the post-

sentence motion of Michael Tith for arrest of judgment, after Tith was

convicted by the trial court of one count of possession with intent to deliver

(PWID) heroin, and sentenced to one and one-half years’ probation.1 The

Commonwealth contends the trial court misread the record and erroneously

altered the verdict by reevaluating the evidence. Based upon the following,

we reverse and remand for the trial court to reinstate the guilty verdict and

sentence.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
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        Tith was arrested on August 23, 2013. On December 24, 2013, the

Commonwealth filed an Information, charging Tith with PWID (heroin),

conspiracy,2 possession of a controlled substance,3 and possession of drug

paraphernalia,4 on August 20, 2013. See Information, 12/24/2013.

        At trial, the Commonwealth presented evidence of events that

occurred on August 20, 2013, as well as August 21, 2013, and August 23,

2013. The trial court summarized the evidence, as follows:

        On August 20, 201[3], [P]olice [O]fficer [Paul] Rich utilized a
        confidential informant (CI) to attempt a controlled buy of
        narcotics from [Tith] at or near 436 Tree Street in Philadelphia.
        Officer Rich prepared his confidential informant and provided him
        with $20.00 pre-recorded buy money. According to Officer Rich,
        the confidential informant exited the police officer’s vehicle,
        approached [Tith], [and] they had a brief conversation. After the
        conversation the confidential informant handed [Tith] the pre-
        recorded buy money. The confidential informant then went to
        the north side of the block closer to 5th Street towards the
        corner. [Tith] went into 436 Tree Street for approximately 1 to 2
        minutes. [Tith] exited, walked over to the confidential informant.
        They had an exchange of small objects. The confidential
        informant then turned [and] started to walk towards 5th, [Tith]
        walked back towards 436 Tree Street. See N.T. 9/30/2015 pp.
        10-12.

        The confidential informant then turned over to Officer Rich two
        clear packets containing blue inserts with blue markings
        containing alleged heroin.


____________________________________________


2
    18 Pa.C.S. § 903.
3
    35 P.S. § 780-113(a)(16).
4
    35 P.S. § 780-113(a)(32).



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        On August 21, 2013, Officer Rich again performed the same drill
        with the confidential informant and [Tith] in an identical
        interaction according to his (the police officer’s) testimony. See
        N.T. 9/30/2015 pp. 14-16.

        Afterwards, based upon these events, Officer Rich applied for
        and obtained a search warrant for the property located at 436
        Tree Street, Philadelphia, Pa. The warrant was executed on
        August 23, 2013.

        On cross examination of Officer Rich, he admitted that the
        alleged transactions between the confidential informant and
        [Tith] took place 150 to 200 feet from him or more ([u]sing
        binoculars). Also that he, the police officer lost sight of the men
        for a brief period during their interaction. Officer Rich admits
        that he does not know what transpired between the CI and [Tith]
        and, upon execution of the search warrant, no pre-recorded buy
        money was ever recovered. Further, no mention of [Tith] was
        recorded on the initial investigatory reports to identify [Tith] as
        the person involved in drug transactions. See N.T. 9/30/2015
        pp. 26-36.

        Officer [Carlos] Buitrago also testified that [on August 23,
        20135] he was working plainclothes in a backup capacity, with
        Officer Rich who had a search warrant for the Tree street
        location. Officer Buitrago testified that “Mr. Tith dropped an item
        underneath the parked vehicle that was on the sidewalk, and he
        began to like work on a bike, making it look like he was working
        on a bike, with another gentleman that was stopped in my
        presence by Officer Kidd, I believe that second male last name
        was Carabello. At which point I secured Mr. Tith, and everybody
        pretty much exited the vehicle, and we executed the search
        warrant.” See N.T. 9/30/2015 p. 39.

        Also testifying is Police Officer Jason Yerges, narcotics officer
        who testified that he was part of a narcotics investigation
        ultimately resulting in a search warrant for 436 Tree Street.
        Although stating that he was part of the investigation team,
        supposedly in the car with Officer Rich, Officer Yerges was not
        able to verify many of the allegations testified to by [O]fficer
____________________________________________


5
    See N.T., 9/30/2015, at 38.



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     Rich. Officer Yerges consistently replied that he could not recall
     specific facts of the interaction with [Tith] and with his partner,
     Officer Rich. See N.T. 9/30/2015 pp. 54-57.

     Finally Police Officer James Kidd also testified that he was
     participating in the execution of a search warrant at the Tree
     [S]treet location. He stated that he arrested the co-defendant,
     Carabello, who had a key to the Tree Street residence. When
     questioned about Officer Rich and his interaction with the
     defendant Tith, Officer Kidd testified as follows:

         Q. ...You had no information about my client; correct?

         A. I did not.

         Q. Officer Rich didn’t say anything over the radio about
         that?

         A. I don’t know, I don't recall at this time, it's been so
         long.

         Q. Nor were you ever told about my client before you got
         there; right?

         A. It’s been so long I don’t recall anything being on the
         radio.

         Q. As you sit here today to testify under oath you cannot
         say that Officer Rich gave you any information or any
         description about my client?

         A. I don’t recall anything.

         Q. Nor did he say anything immediately prior to you
         getting there; correct?

         A. There was information over the radio, [Y]our Honor,
         years later, I couldn’t tell you what was said over the
         radio.

     See N.T. 9/30/2015 pp. 62-63.

Trial Court Opinion, 6/3/2016, at 2–3.


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        On September 30, 2015, the trial court convicted Tith of PWID on

August 20, 2013,6 and found him not guilty of the remaining offenses. Tith

immediately proceeded to sentencing, and the trial court imposed a

sentence of one and one-half years’ probation.

        On October 6, 2015, Tith filed a post sentence motion for arrest of

judgment, contending “the Commonwealth failed to establish beyond a

reasonable doubt that [Tith] was the individual who allegedly sold narcotics

on the criminal act date specified in the bills of information,” i.e., August 20,

2013. Tith’s Post Trial Motion for Arrest of Judgment, 10/6/2015, at ¶6.

        On November 9, 2015, the trial court granted Tith’s motion for arrest

of judgment. The trial court opined, in part:

        In the present case, while one police officer alleges he observed
        [Tith] engage in separate drug sales in which he accepted money
        following a brief conversation with the confidential informant,
        other officers testifying cannot verify the same set of facts
        despite being at the same location and the same times. These
        inconsistencies, when reviewed in detail, ex post facto, laid the
        foundation for this Court’s decision to grant [Tith’s] motion for
        post-sentence arrest of judgment where the evidence was legally
        insufficient.

        On review of [Tith’s] motion for post-trial relief, a doubt arose
        regarding [Tith’s] guilt after examination of the facts drawn from
        the combined circumstances. Although the Commonwealth may
        sustain its burden of proof by means of wholly circumstantial
        evidence, inconsistencies, at times wreak havoc with credibility.



____________________________________________


6
    See N.T., 9/30/2013, at 87.



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Trial Court Opinion, 6/3/2016, at 5–6. The Commonwealth filed this timely

appeal.7

       The principles that guide our review are well settled.

       Our standard of review of this claim is as follows:

           When ruling on a motion in arrest of judgment, a trial
           court is limited to ascertaining “the absence or presence
           of that quantum of evidence necessary to establish the
           elements of the crime.” At this stage in the proceedings,
           the trial court is limited to rectifying trial errors, and
           cannot make a redetermination of credibility and weight
           of the evidence. . . .

       For purposes of appellate review,

           “In passing upon such a motion [in arrest of judgment],
           the sufficiency of the evidence must be evaluated upon
           the entire trial record. All of the evidence must be read in
           the light most favorable to the Commonwealth and it is
           entitled to all reasonable inferences arising therefrom.
           The effect of such a motion is to admit all the facts which
           the Commonwealth’s evidence tends to prove.”

           In order for a trial court to properly grant a criminal
           defendant’s motion in arrest of judgment on the ground
           of insufficient evidence, “it must be determined that
           accepting all of the evidence and all reasonable inferences
           therefrom, upon which, if believed [the verdict could
           properly have been based], it would be nonetheless
           insufficient in law to find beyond a reasonable doubt that
           the [defendant] is guilty of the crime charged.”

Commonwealth v. Marquez, 980 A.2d 145, 147–148 (Pa. Super. 2009),

quoting Commonwealth v. Melechio 658 A.2d 1385, 1387 (Pa. Super.

____________________________________________


7
   The Commonwealth also filed                   a   Pa.R.A.P.   1925(b)   statement
contemporaneously with the appeal.



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1995) (citations omitted) (emphasis in original). See also Commonwealth

v. Feathers, 660 A.2d 90, 94–95 (Pa. Super. 1995) (citation omitted) (“In

passing upon a post-verdict motion for judgment of acquittal, a trial court is

limited to determining the presence or absence ‘of that quantum of evidence

necessary to establish the elements of the crime.’”).

      Regarding    the   sufficiency    of    evidence   of    identification,   the

Pennsylvania Supreme Court has instructed:

      Proof beyond a reasonable doubt of the identity of the accused
      as the person who committed the crime is essential to a
      conviction. The evidence of identification, however, needn’t be
      positive and certain in order to convict, although any
      indefiniteness and uncertainty in the identification testimony
      goes to its weight.

Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973) (citation

omitted).

      Finally, the Controlled Substances Act defines Tith’s offense as follows:

      (a) The following acts and the causing                  thereof   within   the
      Commonwealth are hereby prohibited:

                                       ****


      (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).




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          The Commonwealth maintains the evidence presented at the non-jury

trial established that Tith sold heroin to a confidential informant (CI).

Specifically, the Commonwealth points to the testimony of Officer Rich, who

identified Tith as the seller.

          The Commonwealth argues the trial court, in granting Tith’s motion for

arrest of judgment, erroneously reevaluated the evidence in Tith’s favor.

The Commonwealth challenges the trial court’s finding that “other officers

testifying [could not] verify the same set of facts despite being at the same

location and the same time.”8 The Commonwealth asserts that Officer Rich

was the only officer conducting surveillance on August 20, 2013, that Officer

Yerges was present but his sole responsibility was to serve as Officer Rich’s

lookout, and that Officers Buitrago and Kidd were not present on August 20,

2013.       The Commonwealth maintains that “in addition to its error of

reevaluating the credibility of the testimony, the court simply misread the

record.” Commonwealth’s Brief at 11.

          The Commonwealth contends the trial court also erred as a matter of

law when it “‘reviewed in detail, ex post facto’ the evidence,” looking for

inconsistencies.9      Id., citing Trial Court Opinion, 6/3/2016, at 5.     The

Commonwealth asserts, “It was not the function of the court, in reviewing

____________________________________________


8
    Trial Court Opinion, 6/3/2016, at 5.
9
    Id.



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post-verdict motions, to reweigh the evidence presented at trial.”         Id.

(citation omitted).     The Commonwealth states, “the court’s opinion readily

acknowledges second-guessing the evidence.” Commonwealth Brief at 11,

citing Trial Court Opinion, 6/3/2016, at 6.

       At trial, Officer Rich testified that, on August 20, 2013, he arranged a

controlled buy in the 400 block of Tree Street in Philadelphia, based upon

information supplied to him by a CI. N.T., 9/30/2015, at 9-10. Officer Rich

identified Tith as the individual he witnessed sell drugs to the CI.        He

testified the CI, who was furnished with $20.00 pre-recorded buy money,

had a brief conversation with Tith, who was standing outside 436 Tree

Street. He stated after the CI handed Tith the buy money, Tith entered 436

Tree Street for one to two minutes, exited, and proceeded to walk over to

the CI. Officer Rich testified he observed an exchange of small objects, and

the CI returned with two packets containing blue inserts with blue markings

of alleged heroin.10     See id. at 10-13.

____________________________________________


10
   Valerie Davis, of the Philadelphia Police, Department of Chemistry Unit,
testified regarding Commonwealth Exhibit 2 (property receipt 3117810,
relating to the August 20, 2013, controlled buy), stating the items
documented on property receipt tested positive for heroin.      See N.T.,
9/30/2015, at 71–74. See also id. at 12-13 (Commonwealth Exhibit 2 –
property receipt 3117810). She further testified she only analyzed one of
the two packets documented on Exhibit C-2 “because both of those items
were consistent with each other.” Id. at 76. On cross examination, she
stated that her report for the property receipt ending in 810 showed one
packet was tested and determined to have a weight of 0.019 grams. See
N.T., 9/30/2015, at 77–78 (property receipt 3117810).



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      Officer Rich also identified Tith as the seller of drugs in a controlled

buy that occurred in the same fashion on August 21, 2013, at the same

place. See id. at 13-15. He further testified that on August 23, 2013, he

saw Tith exit 436 Tree Street, at which point he directed officers to stop Tith

and his co-defendant, and police then executed a search warrant at that

address. See id. at 18–19.

      On cross examination, Officer Rich testified the August 20, 2013,

transaction occurred between 4:00 and 7:00 p.m.         He explained he was

seated in an unmarked car on the passenger side, about 100 feet away from

Tith, and was using binoculars.     See id. at 20–21.     He saw Tith’s right

profile, saw him go into the house, observed Tith and the CI exchange small

objects, and then saw Tith as Tith walked toward him. See id. at 23–26.

Officer Rich testified the second transaction happened almost the same way.

See id. at 27.    Officer Rich admitted no pre-recorded buy money was ever

recovered, and that no descriptive information of Tith was included in the

property receipts or police report (“48”) generated by the investigation. See

id. at 28–33.    He further testified he saw Tith again on August 23, 2013,

during surveillance at the scene. See id. at 33.

      In his direct testimony, Officer Yerges testified only regarding the

narcotics he recovered during the execution of the warrant at 436 Tree




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Street, on August 23, 2013.11 See id. at 49-52. Officers Buitrago and Kidd

testified solely regarding their respective roles in the events that occurred on


____________________________________________


11
     On cross-examination, Officer Yerges testified in the following exchange:

        Q. Did you see my client at all, the person sitting next to me?

        A. Yes.

        Q. What time did you see him?

        A. At some time prior to the execution of the warrant I observed
        him coming out of 436 Tree Street.

        Q. Was that immediately prior or like an hour prior?

        A. I don’t remember.

        Q. How close was it to the time you served the warrant?

        A. It was – all that happened within an hour of serving the
        warrant, [Y]our Honor, I don’t remember what time it was.

        Q. Was my client fixing a bike out there?

        A. I don’t recall him fixing a bike, no.

        Q. Had you ever seen my client before that day?

        A. Yes.

        Q. When was that?

        A. There were two prior days where controlled buys were
        conducted on the 400 block of Tree Street and I seen you client
        out there on those days.

        Q. You didn’t see him do anything though; right?

(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)

      A. I seen him engage in hand-to-hand transaction with a
      confidential informant on the block.

      Q. You did?

      A. Yes.

      Q. Were you using binoculars?

      A. I wasn’t, no.

      Q. Was your brother officer?

      A. I don’t remember.

      Q. Did you see your brother on those two days August 20 th, 21st,
      do you remember Officer Rich being there?

      A. Yes, I was partner’s with him on those days.

      Q. Where were you physically in the car?

      A. I don’t remember.

      Q. Did you see Officer Rich use binoculars during these alleged
      observations?

      A. Your Honor, I don’t remember.

      Q. Did you see Officer Rich move at all within the car?

      A. I’m sure he did.

      Q. Where did he move?

      A. I don’t know. Like I said, I don’t remember.

      Q. But you do remember the 23rd?

      A. Yes, the execution of the warrant day, yes.

(Footnote Continued Next Page)


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August 23, 2013.         Officer Buitrago testified he secured Tith prior to the

execution of the search warrant. See id. at 38–39. Officer Kidd testified he

saw Tith standing next to the co-defendant, but his attention was directed to

the co-defendant.       See id. at 62.

      On this record, the evidence, viewed in a light most favorable to the

Commonwealth, supports Tith’s PWID conviction.           See Marquez, supra,

980 A.2d at 148.         The Commonwealth presented positive identification of

Tith as the seller in the August 20, 2013, controlled buy through the

testimony of Officer Rich. See Hickman, supra. Officer Rich detailed his

opportunity to observe Tith on August 20, 2013, and his identification of Tith

remained unshaken on cross-examination.

      As discussed above, when addressing Tith’s arrest of judgment claim,

the trial court was limited to accepting all of the evidence and reasonable

inferences therefrom in determining whether the evidence was insufficient to

find Tith guilty of PWID.        See Marquez, supra.   Here, however, the trial

                       _______________________
(Footnote Continued)

      Q. Why is it you remember the 23rd but not the 21st or 20th?

      A. Because my primary duty, Your Honor, was the safety of
      other officers during any of the surveillance which I wasn’t
      focused primarily on the target location or the defendant here.
      On that day when we executed the warrant I specifically
      remember only searching the kitchen area, that was my
      responsibility, so, that’s what I focused on, that’s what I came
      prepared to testify about today.

N.T., 9/30/2015, at 54



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court made new credibility determinations. Even if Officers Yerges, Buitrago

and Kidd were not credible, the Information only charged Tith with PWID

and related offenses that occurred on August 20, 2013, and the testimony of

Officer Rich, which was accepted by the trial judge, was clearly sufficient

evidence to support the court’s verdict finding Tith guilty of PWID.

Therefore, it was improper for the trial judge to reweigh the credibility of

Officer Rich after rendering her verdict on the August 20, 2013 PWID

charge.   As such, the grant of the motion in arrest of judgment was

erroneous.    See Feathers, supra, 660 A.2d at 95-96 (finding trial court

engaged in impermissible reevaluation of the credibility of the witnesses and

the weight of the evidence; reversing post-verdict entry of a judgment of

acquittal). Accordingly, based on the foregoing, we reverse and remand to

the trial court for reinstatement of the guilty verdict and sentence.

      Order reversed. Case remanded for reinstatement of guilty verdict.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/2017




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