J-S40003-17

                                  2017 PA Super 208

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JULIUS BROCKMAN                            :
                                               :
                      Appellant                :   No. 2435 EDA 2016

              Appeal from the Judgment of Sentence June 13, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002709-2015


BEFORE:      OTT, DUBOW, JJ., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                                FILED July 5, 2017

        Appellant Julius Brockman appeals the judgment of sentence entered

in the Court of Common Pleas of Philadelphia County on June 13, 2016, at

which time he was sentenced to an aggregate term of four (4) years to eight

(8) years in prison following a stipulated bench trial. We affirm.

        The trial court aptly set forth the relevant procedural history and facts

herein as follows:

        PROCEDURAL HISTORY

              The Commonwealth charged Appellant with violating
        sections 6105, 6106, and 6108 of the Uniform Firearms Act (18
        Pa. C.S.A. §§ 6105, 6106, and 6108), possessing with intent to
        deliver a controlled substance (35 P.S. § 780-113(a)(30)), and
        knowingly or intentionally possessing a controlled substance (35
        P.S. § 780-113(a)(16)). On April 11, 2016, Appellant brought a
        pretrial motion to suppress physical evidence, which this [c]ourt

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S40003-17


     denied. A bench trial followed and this [c]ourt found Appellant
     guilty of the above-referenced crimes.
            On June 13, 2016, this [c]ourt sentenced Appellant to
     three (3) to six (6) years' incarceration for violating section 6106
     of the Uniform Firearms Act, one (1) to two (2) years'
     consecutive incarceration for violating section 6105 of the
     Uniform Firearms Act, and three (3) years' probation for
     violating section 6108 of the Uniform Firearms Act. This [c]ourt
     imposed no further sentence for Appellant's remaining
     convictions and his aggregate sentence therefore is four (4) to
     eight (8) years' incarceration followed by three (3) years'
     probation.
            On June 22, 2016, Appellant filed a post-sentence motion
     for reconsideration of sentence, which this [c]ourt denied on
     June 30, 2016. On July 28, 2016, Appellant filed a Notice of
     Appeal to the Pennsylvania Superior Court, and on October 18,
     2016, Appellant filed a Statement of Matters Complained of on
     Appeal pursuant to Pa. R.A.P. No. 1925(b).

     MATERIAL FACTS

           Appellant brought a motion to suppress a firearm and
     crack cocaine that he discarded onto a public street in
     Philadelphia, Pennsylvania. At the suppression hearing, the
     Commonwealth presented the testimony of Philadelphia Police
     Detective Michael Rocks (Detective Rocks), and Philadelphia
     Police Officer Alexander McChord (Officer McChord).
           Detective Rocks testified that he was assigned to
     investigate a shooting that occurred on December 12, 2014,
     around the 2500 block of North 30th Street in the city and
     county of Philadelphia, Pennsylvania. Pursuant to his
     investigation, Detective Rocks received information from another
     police officer, Officer Calabrese, who spoke to the shooting
     victim at the hospital. Officer Calabrese advised Detective Rocks
     that the victim stated "he couldn't believe Ju Ju shot Him." The
     victim also provided Officer Calabrese a physical description of
     "Ju Ju" (e.g., height and weight), which Officer Calabrese
     relayed to Detective Rocks. Thereafter, Detective Rocks
     "reviewed numerous photographs" from files relating to previous
     pedestrian stops in the shooting area. Based on the suspect's
     nickname, physical description, and the neighborhood of the
     shooting, Detective Rocks ultimately developed Appellant as the
     suspected shooter.1 (Id. at pgs. 5-10, 16-18).2


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             On December 23, 2014, after already developing Appellant
     as a suspect, Detective Rocks received a phone call at Central
     Detectives from a female identifying herself as the victim's
     girlfriend. The girlfriend advised that "the male that shot her
     boyfriend was standing on the 2600 block of North 30th Street
     ... wearing a grey jacket and jeans."3 The girlfriend did not
     identify the alleged shooter by name but provided Detective
     Rocks a "clothing description." Detective Rocks subsequently
     called Officer McChord and his partner (Officer D'Amico), who
     were uniformed patrol officers in the area, and "asked them to
     go to that location to see if they observed the male who matched
     that description[.]" In addition to relaying the girlfriend's
     "clothing description" of the person she identified as the shooter,
     Detective Rocks informed Officer McChord that his suspect's
     name in the shooting was Julius Brockman (i.e., Appellant).
     Although Appellant was still only a suspect and no arrest warrant
     had been issued for him, Detective Rocks requested that if the
     officers saw Appellant at the described location, "to stop him and
     bring him to Central Detectives for investigation." (Id. at pgs.
     10-12).
             Officer McChord already knew Appellant "from seeing him
     in the neighborhood" and because his partner "arrested him
     earlier that year." Upon arriving at the above-referenced
     location, Officer McChord, who was the front seat passenger in
     the patrol car, recognized Appellant walking down the block with
     another male. Officer D'Amico pulled the patrol car beside
     Appellant and Officer McChord then "opened up the door and
     told [Appellant] to stop." (Id. at pgs. 20-25).
             Officer McChord testified that he "told [Appellant] to stop
     right there" in a "normal manner" - i.e., Officer McChord neither
     yelled stop nor said it with a "soft voice." Moreover, Officer
     McChord kept his firearm holstered and no lights or sirens were
     activated on the patrol vehicle. Officer McChord testified that his
     "whole point" of stopping Appellant was not to arrest him but
     "for investigation purposes." (Id. at pgs. 23-24).
             As soon as Officer McChord told Appellant to stop,
     Appellant "immediately reached for his front right side of his
     waistband holding on to something and then fled." Officer
     McChord believed Appellant was clutching a firearm in his
     waistband because he had seen individuals clutch firearms in
     such manner between fifteen (15) and twenty (20) occasions. In
     Officer McChord's experience, when someone keeps an
     unholstered firearm in his/her waistband, he/she must grasp the


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     weapon while running or it will fall out of his/her waistband. (Id.
     at pgs. 24-29).
            As Appellant fled the officers, Officer McChord observed
     him remove from his waistband a black handgun and a "clear
     bag," both of which Appellant dropped in front of a black SUV
     parked on the street. Although Officer McChord eventually lost
     sight of Appellant when the latter ran down a side street, his
     partner (Officer D'Amico) arrested Appellant the very next day
     pursuant to an arrest warrant. (Id. at pgs. 24-29).
            Before trial, Appellant moved to suppress the firearm and
     "clear bag" that he discarded while fleeing from the officers.
     Appellant claimed Officer McChord had initially ordered him to
     stop without reasonable suspicion that Appellant was engaging in
     criminal activity at that time. Appellant therefore claimed that
     the discarded items were fruits of a "forced abandonment"
     precipitated by an unlawful seizure. (Id. at pgs. 32-35, 42-43).
            This [c]ourt denied Appellant's motion and thereafter
     conducted a stipulated bench trial. Appellant stipulated that
     Officer McChord would testify at trial that he recovered the "clear
     bag" that Appellant discarded, and that the bag contained thirty-
     five (35) "clear plastic Ziploc packets" of crack cocaine. Officer
     McChord also would testify that the firearm Appellant had
     discarded was placed on a property receipt and was "test fired
     and ... found to be operable." Appellant further stipulated that
     the Commonwealth's expert, "Officer Keys," would testify that he
     "reviewed the file" and heard the testimony, and expertly opines
     that the crack cocaine Appellant discarded "was possessed with
     the intent to deliver." In addition to the stipulated testimony, the
     Commonwealth submitted a Certificate of Nonlicensure and a
     criminal "extract indicating [Appellant] is ineligible to possess a
     firearm in Pennsylvania." (Id. at pgs. 50-51).
            Based on the above evidence, this [c]ourt found Appellant
     guilty of unlawfully possessing a firearm (18 Pa. C.S.A. § 6105),
     carrying a firearm without a license (18 Pa. C.S.A. § 6106),
     unlawfully carrying a firearm on the public streets of Philadelphia
     (18 Pa. C.S.A. § 6108), possessing with intent to deliver a
     controlled substance (35 P.S. § 780-113(a)(30)), and knowingly
     or intentionally possessing a controlled substance (35 P.S. §
     780-113(a)(16)). (Id. at pg. 52). For Appellant's firearms
     convictions, this [c]ourt sentenced him to an aggregate term of
     four (4) to eight (8) years' incarceration, followed by three (3)
     years' probation. This [c]ourt imposed no sentence for
     Appellant’s narcotics convictions. (N.T., 6/13/16, pgs. 19-20.
     ____

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      1
       Detective Rocks testified that Appellant had a tattoo on his body
      that stated, "Ju Ju." However, the Commonwealth subsequently
      stipulated that if Appellant testified, he would exhibit to the
      [c]ourt that he had no tattoo bearing the name Ju Ju. (Id. at
      pgs. 18, 29).
      2
        Detective Rocks testified that the victim was "uncooperative" in
      the investigation and refused to give a statement about the
      incident, notwithstanding the detective's several attempts to
      interview him. Because the victim refused to cooperate,
      Detective Rocks did not show him photographs of Appellant for
      purposes of identification. (Id. at pgs. 19-20).
      3
        Detective Rocks testified that he believes this female obtained
      his phone number from his work card that he left at the hospital
      with the victim. Although Detective Rocks never met this female
      in person or formally interviewed her at the police station, she
      had called him "several times" between the day of the shooting
      and December 23rd. (Id. at pgs. 13-14).


Trial Court Opinion, filed 12/13/16, at 1-5 (emphasis in original).

      In his brief, Appellant presents the following Statement of the

Questions Involved:


      A.    Did the lower court abuse its discretion when it denied
      Appellant’s motion to suppress, where Appellant was forced to
      abandon the contraband based on an illegal seizure?

      B.   Did the Commonwealth fail to prove that the crack cocaine
      was possessed with the intent to distribute, as the
      Commonwealth relied on a single conclusory sentence from an
      expert?

Brief for Appellant at 4.

      We begin our consideration of Appellant’s first issue with our well-

settled standard of review:



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             Our standard of review in addressing a challenge to a trial
      court's denial of a suppression motion is limited to determining
      whether the factual findings are supported by the record and
      whether the legal conclusions drawn from those facts are
      correct.
             [W]e may consider only the evidence of the prosecution
      and so much of the evidence for the defense as remains
      uncontradicted when read in the context of the record as a
      whole. Where the record supports the findings of the suppression
      court, we are bound by those facts and may reverse only if the
      court erred in reaching its legal conclusions based upon the
      facts. Commonwealth v. Williams, 2008 PA Super 6, 941 A.2d
      14, 26–27 (Pa. Super. 2008) (en banc ) (citations, quotations,
      and quotation marks omitted). Moreover, it is within the lower
      court's province to pass on the credibility of witnesses and
      determine the weight to be given to their testimony. See
      Commonwealth v. Clemens, 2013 PA Super 85, 66 A.3d 373,
      378 (Pa. Super. 2013). Commonwealth v. Roberts, 133 A.3d
      759, 771 (Pa. Super. 2016), appeal denied, 145 A.3d 725 (Pa.
      2016). Furthermore, our Supreme Court in In the Interest of
      L.J., 622 Pa. 126, 79 A.3d 1073, 1085 (2013), clarified that the
      scope of review of orders granting or denying motions to
      suppress is limited to the evidence presented at the suppression
      hearing.

Commonwealth v. McCoy, 154 A.3d 813, 815–16 (Pa.Super. 2017).

      Appellant initially contends the suppression court erred in denying his

motion to suppress the firearm and crack cocaine secreted under the black

SUV because officers had neither reasonable suspicion nor probable cause to

stop him and he was forced to abandon the contraband as a result of the

illegal stop. Specifically, Appellant maintains:

             Officer McChord commanded Appellant to stop and submit
      to an investigative detention.    But he did so based on an
      anonymous and uncorroborated tip. The claimed girlfriend of the
      victim told Detective Rocks that the shooter was at a particular
      location and was wearing particular clothes. But Appellant was
      stopped at another location and there is no proof offered that he
      was wearing the same-or even similar-clothing. Indeed, the

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      record does not indicate whether Appellant matched the initial
      description offered of a short, black male. Perhaps the only
      certainty is that Appellant does not have a “Ju Ju” tattoo, as
      Detective Rocks claimed. (N.T. 4/11/16, pp. 30-31). Given the
      fact that the caller was never conclusively identified and that the
      Commonwealth failed to prove that Appellant matched the
      descriptive information given, Officer McCord did not have
      authority to stop Appellant.
             “A criminal defendant has no standing to contest the
      search and seizure of items he has voluntarily abandoned.”
      Commonwealth v. Welch, 120 A.3d 1047 (Pa.Super. 2015). But
      Pennsylvania     law   recognizes    the   concept     of   “forced
      abandonment” [] which holds that “when contraband is
      discarded by a person fleeing from a police officer who possesses
      neither probable cause to arrest nor reasonable suspicion to
      conduct a Terry [1] stop, the contraband is the fruit of an illegal
      seizure.” Id.
             Though Appellant discarded the contraband as he fled, he
      was forced to do so by Officer McChord’s illegal seizure. Thus,
      the evidence should have been suppressed and the lower court’s
      failure to do so was an abuse of discretion. As such, Appellant
      respectfully requests this Court to vacate his judgments of
      sentence and remand to the lower court with instruction to
      prohibit the Commonwealth from presenting the contraband in
      its case against Appellant.
      ___
      Terry v. Ohio, 392 U.S. 1 (1968).

Brief for Appellant at 12-13.

      Our disposition of this claim depends upon the nature of Appellant’s

encounter with police.   In McCoy, this Court recently reiterated the three

types of encounters between law enforcement officials and private citizens:

      A “mere encounter” need not be supported by any level of
      suspicion but carries no official compulsion to stop or respond.
      An “investigative detention” must be supported by reasonable
      suspicion and subjects the suspect to a stop and a period of
      detention, but it does not have the coercive conditions that
      would constitute an arrest. The courts determine whether
      reasonable suspicion exists by examining the totality of the


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     circumstances. An arrest, or “custodial detention,” must be
     supported by probable cause.

McCoy, 154 A.3d at 816 (citing In re J.G., 145 A.3d 1179, 1185 (Pa.Super.

2016)).

             “To have reasonable suspicion, police officers need not
     personally observe the illegal or suspicious conduct, but may rely
     upon the information of third parties, including tips from
     citizens.” Commonwealth v. Swartz, 787 A.2d 1021, 1024
     (Pa.Super. 2001) (en banc) (citation omitted). “Indeed,
     identified citizens who report their observations of criminal
     activity to police are assumed to be trustworthy, in the absence
     of special circumstances, since a known informant places himself
     at risk of prosecution for filing a false claim if the tip is untrue,
     whereas an unknown informant faces no such risk.”
     Commonwealth v. Barber, 889 A.2d 587, 593 (Pa.Super.
     2005). Similarly, “Pennsylvania law ... permits a vehicle stop
     based upon a radio bulletin if evidence is offered at the
     suppression hearing to establish reasonable suspicion.” Id. at
     594.
           [F]or a stop to be valid, someone in the police
           department must possess sufficient information to give
           rise to reasonable suspicion. The officer with the
           reasonable suspicion, usually the dispatcher, need not
           convey all of this background information to the officer
           who actually effectuates the stop. Thus, the police may
           justify the search by presenting sufficient evidence at
           the suppression hearing that someone in the chain of
           command had reasonable suspicion before the stop,
           even if the arresting officer did not.
     Id. (citation omitted).

Commonwealth v. Anthony, 977 A.2d 1182, 1187 (Pa.Super. 2009).

     In light of the foregoing and following our review, we find the record

belies the facts as set forth by Appellant and disagree with his claim that

officers lacked reasonable suspicion to detain him initially. Accordingly, we




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reject Appellant’s argument that he abandoned the contraband only after he

had been seized absent reasonable suspicion or probable cause.

        At the suppression hearing, Detective Michael Rocks testified that

during the course of his investigation of a shooting which had taken place on

December 12, 2014, in the 2500 block of North 30 th Street, he developed

Appellant as a suspect after receiving information from Officer Calabrese

obtained from the victim concerning the nickname of the alleged shooter.1

N.T., 4/11/16, at 6-8. The victim had indicated to Officer Calabrese that he

could not believe “Ju Ju” had shot him and that the shooter was a short,

black male. Id. at 8-9. Based upon the nickname and description the victim

provided along with information regarding the area in which the shooting

had occurred, Detective Rocks suspected Appellant was the perpetrator,

although no arrest warrant was issued. Id. at 9, 17-18. Appellant’s claims

to the contrary, Detective Rocks did not unequivocally state that Appellant

had a tattoo of “Ju Ju” but rather said that “if his memory serv[ed] him

correctly, [he] believe[d] [Appellant] has that tattooed on him somewhere

also, Ju Ju.” Id. at 18.

        The record also belies Appellant’s assertion that officers relied on an

uncorroborated, anonymous tip in effecting the stop.         On December 23,

2014, a female who identified herself by name and as the victim’s girlfriend

____________________________________________


1
    Officer Calabrese’s first name does not appear in the record.



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informed Detective Rocks the man who had shot her boyfriend was standing

in the 2600 block of North 30th Street and was wearing a gray jacket and

jeans.    Detective Rocks then supplied that information to Officer McChord

and informed him the suspected shooter’s name was Julius Brockman. Id.

at 10-11, 13.      Detective Rocks directed Officers McChord and D’Amico “to

stop [Appellant] and bring him to Central Detectives for investigation” were

they to see him.      Id. at 10, 12.2      Although he never had interviewed the

victim’s girlfriend in person, Detective Rocks had had contact with her

“several times” between December 12th, the day of the shooting, and

December 23, when she provided the aforementioned information to him.

Id. at 13-14. In fact, she obtained the Detective’s contact information from

the professional card which he had left at the hospital with the victim. Id. at

14.

        Officer McChord stated he knew Appellant from previously “seeing him

in the neighborhood” and was aware Officer D’Amico, his partner, had

arrested Appellant earlier that year. Id. at 22. When Officer McChord saw

Appellant on December 23, 2014, and told him to stop, he did not intend to

arrest him. Officer McChord did not draw his weapon or activate the lights

and sirens of the patrol vehicle.              Id. at 23-24. In response to Officer

McChord’s words, Appellant immediately placed his right hand into the front

____________________________________________


2
    Officer D’Amico’s first name does not appear in the record.



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side of his waistband and fled on foot. At that point, Officer McChord saw

him pull out a black handgun and a clear bag and drop the items underneath

“the front part” of a parked, black SUV. Id. at 24.

        After articulating its factual findings, the suppression court denied

Appellant’s suppression motion and stated its reasons for doing so as

follows:

               My conclusions of law are that in order for there to be
        reasonable suspicion to stop [Appellant], the Commonwealth
        needs to establish that there was some basis for a belief that
        [Appellant] did, in fact, match a description for the suspect in
        that shooting.
               The basis for that belief was the information, verbal
        information, that was relayed from the shooting victim to Officer
        Calabrese and Officer Calabrese then relating the nickname Ju Ju
        and the sketch, the very brief description of the height and racial
        color, as well as location.
               Detective Rocks established, through whatever means he
        established, that he believed that [Appellant] did fit this
        description.    However, there was no arrest warrant issued.
        Detective Rocks did not do anything with that information it
        seems until he then gets the call from the woman who identifies
        herself as [Appellant’s], rather as the victim’s girlfriend. And
        Detective Rocks was familiar with this woman having already
        spoken to her. So she is not merely an anonymous tip at this
        point, and she gives him information that the person who he’s
        developed as a suspect is, indeed, at a specific location.
               For Detective Rocks to have simply ignored that
        information and not acted on it would have been a dereliction of
        his duty to investigate his suspect. I don’t think that the police
        are required under Taggart[3] or under any other case law to turn
        a blind eye toward good information that they receive, and this
        was good information.       It was not a flash anonymous tip
        situation, as it is in Taggart. This is called police investigation,
        and good police investigation. So, certainly, Detective Rocks
____________________________________________


3
    The suppression court did not supply a full citation for Taggart.



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     acted appropriately by having the officers in the 22nd see if they
     could locate the fellow that was described as [Appellant].
            And Officer McChord, therefore, is doing just that. Had he
     had five police cars drive up on [Appellant], block [Appellant]
     and at point of gun, you know, that would have been a different
     situation. That is not the situation here. He told [Appellant] to
     stop.    [Appellant] made the choice then to flee, clutching his
     waistband.
            And, certainly, Officer McChord, at that point, had good
     reason to chase [Appellant] at the point where [Appellant]
     discarded his gun and baggie. He did so based upon flight from
     the police.     Certainly, at that point, they had reasonable
     suspicion that a crime was being committed, quite frankly, in
     their presence. So for all of those reasons, the motion is denied.

N.T., 4/11/16, at 40-43.

     The facts of record support the suppression court’s determination that

officers initially had reasonable suspicion to stop Appellant.     Accordingly,

Appellant is not entitled to suppression of the contraband he discarded

during his flight. See Mccoy, supra, at 819 (citing Commonwealth v.

Cook, 558 Pa. 50, 735 A.2d 673, 675 (1999) (finding where police officers

demonstrate reasonable suspicion to stop suspect, officers may lawfully

recover contraband suspect abandoned during flight)).

     Appellant   next   maintains   the   Commonwealth    failed   to   present

sufficient evidence for the trial court to conclude that he possessed crack

cocaine with the intent to deliver because “[t]he Commonwealth’s sole

evidence at trial was that Appellant possessed 35 packets of crack cocaine

and that an ‘expert’ concluded that, ‘in his expert opinion, the [crack

cocaine] was possessed with the intent to deliver’” Brief for Appellant at 15

(citing N.T., 4/11/16, at 51).   Appellant opines that a “single conclusion

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cannot substitute for the surrounding circumstances and how those

circumstances    would    lead   a   proper    expert   could   [sic]   use   those

circumstances to reach a conclusion that the drugs were possessed with an

intent to deliver.” Id.

      When considering this claim which presents us with a question of law,

we are guided by a well-established standard of review:

             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 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 finder 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.
             This standard is equally applicable to cases where the
      evidence is circumstantial rather than direct so long as the
      combination of the evidence links the accused to the crime
      beyond a reasonable doubt. Although a conviction must be based
      on more than mere suspicion or conjecture, the Commonwealth
      need not establish guilt to a mathematical certainty.

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.Super. 2014)

(quotations and citations omitted).




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      To sustain a conviction for Possession with Intent to Deliver, “the

Commonwealth must prove both the possession of the controlled substance

and the intent to deliver the controlled substance.” Commonwealth v. Lee,

956 A.2d 1024, 1028 (Pa.Super. 2008) (citations omitted).       “In narcotics

possession cases, the Commonwealth may meet its burden by showing

actual, constructive, or joint constructive possession of the contraband.”

Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa.Super. 2014) (en banc)

(citation and quotation marks omitted).

      In the matter sub judice, police did not discover the crack cocaine on

Appellant's person; however, Appellant does not challenge the element of

possession.   Rather, he maintains the Commonwealth failed to prove he

intended to deliver the crack cocaine.       When determining whether an

individual in possession of drugs intended to deliver them, the starting point

is the quantity possessed.

          In Pennsylvania, the intent to deliver may be inferred
          from possession of a large quantity of controlled
          substance. It follows that possession of a small amount
          of a controlled substance supports the conclusion that
          there is an absence of intent to deliver. Notably, if,
          when considering only the quantity of a controlled
          substance, it is not clear whether the substance is
          being used for personal consumption or distribution, it
          then becomes necessary to analyze other factors.

Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa.Super. 2008) (citation

and quotation marks omitted). See also Commonwealth v. Ratsamy, 594

Pa. 176, 182, 934 A.2d 1233, 1237 (2007) (stating “if the quantity of the


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controlled substance is not dispositive as to the intent, the court may look to

other factors.”). The list of additional factors includes:

      the manner in which the controlled substance was packaged, the
      behavior of the defendant, the presence of drug paraphernalia,
      and [the] sums of cash found in possession of the defendant.
      The final factor to be considered is expert testimony. Expert
      opinion testimony is admissible concerning whether the facts
      surrounding the possession of controlled substances are
      consistent with an intent to deliver rather than with an intent to
      possess it for personal use.

Id. at 183, 934 A.2d at 1237–38 (quotation and internal quotation marks

omitted).

      Contrary to Appellant’s assertions, the evidence presented herein was

not limited to a “single conclusion” of an expert that Appellant possessed the

crack cocaine with the intent to deliver. Rather, the evidence also showed

that Appellant possessed the drugs, as officers observed him discard the

same under the SUV, that Appellant abandoned the contraband while fleeing

police, and that the crack cocaine was packaged in separate quantities

comprised of almost three dozen packets. Specifically, Appellant stipulated

that Officer McChord would testify at trial that when he recovered the clear

bag Appellant discarded, he discovered it contained thirty-five “clear plastic

Ziploc packets” of crack cocaine each of which was marked with a black and

yellow “Batman symbol.”      N.T., 4/11/16, at 50.     Appellant also stipulated




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that Officer Keys,4 the Commonwealth’s expert, would testify the total

weight of the contraband was 3.943 grams and opine beyond a reasonable

doubt that following his review of the file and his listening to the testimony,

Appellant possessed the crack cocaine with the intent to deliver. Id. at 51-

52.

         Furthermore, we note the record does not reveal that Appellant

possessed any personal-use paraphernalia, a circumstance this Court has

deemed relevant. See Commonwealth v. Bess, 789 A.2d 757, 762

(Pa.Super. 2002) (finding that in addition to other factors, the fact

defendant did not have any drug paraphernalia associated with the personal

use of cocaine was relevant to establish he possessed drugs with the intent

to deliver).     As such, we find the presence of the aforementioned factors

along with Officer Keys’ expert opinion provided a sufficient basis for the

verdict of the trial court, sitting as the finder of fact.    Therefore, taken

together, we do not find that the evidence was “so weak and inconclusive

that as a matter of law no probability of fact may be drawn from the

combined circumstances.” Ratsamy, at 181 n. 2, 934 A.2d at 1236 n. 2.

Therefore, no relief is due.

        Judgment of Sentence Affirmed.

        Judge Dubow joins the Opinion.

____________________________________________


4
    Officer Keys’ first name does not appear in the record.



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     Judge Ott concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/5/2017




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