J-S02032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CARL DANIELS LOVE, JR.

                            Appellant                  No. 861 EDA 2014


    Appeal from the Judgment of Sentence entered on February 4, 2014
             In the Court of Common Pleas of Delaware County
             Criminal Division at No.: CP-23-CR-0001921-2013


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                             FILED MARCH 24, 2015

       Carl Daniels Love, Jr., appeals his February 4, 2014 judgment of

sentence, which was imposed after jury convictions of two counts of

possession of a controlled substance1 and two counts of possession of a

controlled substance with the intent to deliver (“PWID”).2 We affirm.

       The trial court summarized the factual history of this case as follows:

       On March 12, 2013[,] at approximately 4:09 p.m., Detective
       Jerry Goodman of the Haverford Township Police Department
       was conducting surveillance for drug activity in the Sunoco gas
       station parking lot located at 400 East Township Line Road,
       Havertown, Delaware County, PA 19083. Detective Goodman
       was in an unmarked police vehicle and in plain clothes. While on
       location, he observed a gold colored vehicle parked on the west
       side of the Sunoco parking lot with a black male sitting in the
____________________________________________


1
       35 P.S. § 780-113(a)(16).
2
       35 P.S. § 780-113(a)(30).
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       driver’s seat. The unknown black male parked the vehicle
       against the parking spots and appeared to be waiting for
       someone. Detective Goodman drove next to the vehicle and
       observed the driver who looked over at him.      Detective
       Goodman then drove to the west side of the parking lot and
       continued surveillance.

       A short time later, a white male later identified as Robert Link
       drove up to the gas pump in a black . . . Hyundai Sonata.
       Detective Goodman had received confidential information that
       Robert Link is involved in drug trafficking. Link proceeded to the
       gold colored vehicle and handed the black male a quantity of US
       currency through the passenger side door. In exchange the
       black male handed Link an amber colored pill bottle. Detective
       Goodman knew from training and experience that drug dealers
       commonly use amber colored prescription bottles for containers
       for controlled substances. The black male then left in the gold
       colored vehicle onto Township Line Road.

       Detective Goodman knew from training and experience that he
       witnessed a hand to hand exchange. Detective Goodman has
       made numerous narcotics arrests in the Sunoco parking lot
       located at 400 East Township Line Road. Detective Goodman
       parked his vehicle behind the black Sonata and approached
       Robert Link and observed him place the amber bottle into the
       middle console. Detective Goodman advised Link that he was a
       police officer and displayed his badge.

       Detective Goodman advised Link that he observed him purchase
       narcotics and that he also observed him place the narcotics into
       his middle console. Link admitted to Detective Goodman that he
       had just purchased . . . one hundred – 30 mg oxycodone pills
       and placed them into the middle console. Detective Goodman
       ordered Link out of the vehicle whereupon Link was arrested and
       the oxycodone pills were confiscated. In addition, police located
       . . . one alprazolam, 2 mg pill[,] one additional oxycodone pill
       and $52.00 US currency. Detective Goodman advised Sgt.
       Chambers[3] that the unknown black male left the area in a gold
       colored Lincoln Continental and that the vehicle had a partial
       registration of JD – 1681 with a paper tag in the upper driver’s
       side rear window.
____________________________________________


3
       Sgt. Chamber’s first name does not appear in the certified record.



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       Link was transported back to police headquarters and placed into
       the Investigation’s interview room [sic]. Detective Goodman
       read Link his Miranda[4] Warnings and Link agreed to speak
       with police.       Link signed the Miranda Waiver.         Officer
                  5
       Reynolds[ ] was also present. Link advised Detective Goodman
       that he was on probation and that he just purchased 100
       oxycodone pills from “C” at the Sunoco for $1800.00 US
       currency. Detective Goodman requested consent for a search of
       Link’s cell phone and Link consented. Link signed a Delaware
       County District Attorney’s Office Drug Task Force consent form.
       Upon receipt of the form, Sgt. Chambers observed numerous
       text messages in Link’s cell phone that were consistent with drug
       sales/trafficking.    Link advised police that “C’s” cell phone
       number was 484-667-7880. Police also observed that there was
       a listing on Link’s phone labeled “C” with the phone number 484-
       667-7880.

       The pills that were blue in color, round pills stamped “N215”.
       Detective Goodman identified the pills as oxycodone
       hydrochloride 30 mg., a Schedule II narcotic substance.
       Detective Goodman has in the past seized similar pills that have
       been sent to PSP Lab analysis and had determined the same to
       be oxycodone hydrochloride (30 mg) pills. The oxycodone and
       the alprazolam were submitted to PSP/Lima for testing.

       On March 13, 2013 at approximately 2 p.m., Detective Goodman
       and Sgt. Chambers responded to the Sunoco at 400 East
       Township Line Road and spoke with the manager, Steve Coffin.
       Coffin advised police that he had surveillance video of a black
       male who exited the gold Lincoln Continental that was a suspect
       in the ongoing drug investigation. The black male was identified
       as “C” by the drug purchaser, Link[,] the day before. Detective
       Goodman and Sgt. Chambers observed the video and observed a
       black male exit the gold Lincoln Continental and entered the
       Sunoco store [sic]. Police observed the black male wearing a
       grey hoodie and a brown and tan vest. Detective Goodman
       immediately recognized the black male as the same subject that
       sold Link . . . one hundred oxycodone hydrochloride pills on
____________________________________________


4
       Miranda v. Arizona, 384 U.S. 436 (1966).
5
       Officer Reynolds’ first name is not available in the record.



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     [March 12, 2013] at 400 East Township Line Road, Havertown,
     Delaware County, PA. Police obtained a copy of the video. The
     officers obtained information that the black male suspect was
     living/dealing in the area of State and Lansdowne Roads in
     Upper Darby, PA.      Detective Goodman and Sgt. Chambers
     conducted surveillance in the area and at approximately 3:37
     p.m. Detective Goodman and Sgt. Chambers observed the
     suspect black male known to Detective Goodman as “C”
     operating the gold Lincoln Continental with PA registration JDX-
     1681 travel southbound on Lansdowne Road. Upon observing
     the operator, later identified as Carl Love[,] Jr., Detective
     Goodman immediately recognized the actor as the subject who
     conducted the hand to hand transaction with Robert Link on
     [March 12, 2013] at 400 East Township Line Road.

     Police proceeded to follow Love and observed him enter the
     Exxon gas station at 1892 S. State Road, Upper Darby, Delaware
     County, PA 19082. Love parked his vehicle on the side of the
     gas station and entered the store on foot. Police observed that
     Love was wearing the exact same clothes as he did on [March
     12, 2013] at the Sunoco.         Sgt. Chambers and Detective
     Goodman stationed themselves outside the Exxon. Love exited
     the store and police identified themselves and advised Love to
     get on the ground numerous times. Love did not comply and
     was taken to the ground by police. Love was taken into custody
     for Possession with the Intent to Deliver. In a search incident to
     arrest the police discovered the following items on Love’s
     person: $2692.00 US currency; three . . . oxycodone
     hydrochloride pills contained in [a] white plastic bottle labeled
     Advil; one . . . iPhone with number 484-667-7880; one . . .
     marijuana cigarette located in a cigarette box; one . . . grey
     hoodie; and one . . . brown and tan vest. This incident occurred
     within 1000 feet of a school zone.

     The oxycodone pills were consistent with the pills seized from
     Robert Link on [March 12, 2013]. The pills were blue in color,
     round pills stamped “N/215”.        The pills and the suspected
     marijuana were submitted to PSP/Lima for testing. Police dialed
     phone number 484-667-7880 and the iPhone that was in
     [Love’s] possession . . . at the time of his arrest rang. This was
     the phone number observed by police on Link’s phone and was
     also the number Link advised police was the phone number of
     his oxycodone hydrochloride supplier, known as “C.”



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Trial Court Opinion (“T.C.O.”), 5/30/2014, at 1-5.

       On December 4, 2013, following a jury trial, Love was convicted of the

above-mentioned crimes.          On February 4, 2014, the trial court sentenced

Love to not less than seven nor more than twenty years’ imprisonment for

the first PWID conviction, with an additional two to twenty years’

imprisonment to be served concurrently for the second PWID conviction.6

On February 12, 2014, Love timely filed a post-sentence motion, which the

trial court denied on February 19, 2014.

       On March 19, 2014, Love timely filed a notice of appeal. On March 20,

2014, the trial court ordered Love to submit a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On April 8, 2014,

Love timely filed his statement.         On May 30, 2014, the trial court filed its

opinion pursuant to Pa.R.A.P. 1925(a).

       Love raises the following questions for our review:

       I.     Whether the evidence was insufficient to establish the
              elements of possession with intent to deliver regarding the
              conviction arising from the incident occurring March 31,
              2013 when Mr. Love was found in possession of three
              oxycodone pills[?]

       II.    Whether the court erred in denying defense counsel’s
              requested jury instruction regarding the treatment of
              inconsistent statements (Standard Instruction 4.08) which
              were made by [Detective] Goodman and established
              through cross-examination[?]
____________________________________________


6
      The trial court concluded that the simple possession conviction merged
with the PWID charges for sentencing purposes.



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Brief for Love at 7.

      In his first issue, Love argues that the Commonwealth did not provide

sufficient evidence to prove beyond a reasonable doubt that Love had the

requisite intent to deliver the oxycodone pills. See Brief for Love at 11. We

disagree.

      When reviewing challenges to the sufficiency of the evidence, we

evaluate the record in the light most favorable to the Commonwealth as the

verdict winner, giving the prosecution the benefit of all reasonable inferences

to be drawn from the evidence.      Commonwealth v. Duncan, 932 A.2d

226, 231 (Pa. Super. 2007) (citation omitted).     “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.”     Id. (quoting Commonwealth v. Brewer, 876 A.2d

1029, 1032 (Pa. Super. 2005)).       However, the Commonwealth need not

establish guilt to a mathematical certainty, and it may sustain its burden by

means of wholly circumstantial evidence. Id. Moreover, this Court may not

substitute its judgment for that of the factfinder, and where the record

contains support for the convictions, they may not be disturbed. Id. The

burden of proving a person guilty of PWID beyond a reasonable doubt rests

with the Commonwealth. Commonwealth v. Drummond, 775 A.2d 849,

854 (Pa. Super. 2001).    The finder of fact is free to believe some, all, or




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none of the evidence presented. Commonwealth v. Hartle, 894 A.2d 800,

804 (Pa. Super. 2006).

      In order to establish the offense of PWID, the Commonwealth must

prove beyond a reasonable doubt that the defendant possessed a controlled

substance with the intent to deliver it. Commonwealth v. Conaway, 791

A.2d 359, 362 (Pa. Super. 2002).      “The trier of fact may infer that the

defendant intended to deliver a controlled substance from an examination of

the facts and circumstances surrounding the case.”       Commonwealth v.

Kirkland, 831 A.2d 607, 611 (Pa. Super. 2003).        “Factors to consider in

determining whether the drugs were possessed with the intent to deliver

include the particular method of packaging, the form of the drug, and the

behavior of the defendant.” Id.

      Love claims that, based upon his possession of oxycodone pills, the

evidence presented was insufficient to draw the inference that he possessed

the pills with the intent to distribute them.   See Brief for Love at 12, 16.

Love asserts that the Commonwealth’s expert witness, Lieutenant Michael

Boudwin, reached his opinion by relying upon Love’s prior drug transactions,

instead of the surrounding circumstances at the time of the arrest. Id. at

13.   Furthermore, Love argues that, on cross-examination, the expert

conceded that Love could have possessed the pills for personal use. Id. at

14.   Love contends that the aforementioned evidence does not establish

beyond a reasonable doubt that he possessed the pills with the intent to


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distribute them. Id. at 16. Therefore, Love argues that this Court should

reverse his conviction for possession with intent to deliver. Id.

      The Commonwealth counters that the evidence presented at trial

establishes the elements of PWID beyond a reasonable doubt. See Brief for

Commonwealth at 11.        At trial, Detective Goodman testified that he

witnessed Love sell one hundred oxycodone pills.         Notes of Testimony

(“N.T.”), 12/4/2013, at 38-39, 50. The following day, Detective Goodman

arrested Love and found $2600.00 in his pocket along with incriminating text

messages in his cellphone. Id. at 59, 60-61, 64-65. The Commonwealth’s

expert, Lieutenant Michael Boudwin, provided testimony that Love was a

mid-level drug dealer and that, at the time of the arrest, he possessed three

oxycodone pills with the intent to deliver them to another person.    Id. at

173. Therefore, the Commonwealth argues that the evidence presented at

trial proves Love’s guilt beyond a reasonable doubt for the crime of PWID.

See Brief for Commonwealth at 13.

      In analyzing the facts presented, it is clear that the Commonwealth

has satisfied its burden in proving beyond a reasonable doubt that Love

possessed the oxycodone pills with the intent to deliver them. On March 12,

2013, the day before the arrest, Detective Goodman witnessed Love deliver

one hundred oxycodone pills. T.C.O. at 11; see also N.T., 12/4/2013, at

59, 60-61, 64-65. On March 13, 2013, during a search incident to arrest,

Detective Goodman discovered incriminating evidence on Love’s person,


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including $2692.00, three oxycodone pills, and an iPhone that contained

incriminating text messages.           Furthermore, expert witness Lieutenant

Boudwin testified that Love possessed three oxycodone pills with the intent

to deliver them to another person. N.T., 12/4/2013, at 173. The jury was

free to consider all facts and circumstances surrounding the possession,

including Love’s drug transaction that took place a day before the arrest.

This evidence leads to the logical inference that Love possessed the

oxycodone pills with the intent to deliver them.            The jury found the

incriminating evidence on Love’s person the day of the arrest, and the

expert testimony of Lieutenant Boudwin to be credible.          Based upon the

foregoing, we conclude that the evidence, viewed in the light most favorable

to the Commonwealth, is sufficient to sustain Love’s PWID conviction.

      In his second issue, Love challenges the trial court’s decision to deny

his   requested   jury   instruction   regarding   the   treatment   of   allegedly

inconsistent statements made by Detective Goodman. See Brief for Love at

17 (citing Pa. SSJI (Crim) 4.08A).            Love argues that, during cross-

examination, Detective Goodman acknowledged testifying differently at the

preliminary hearing. Id. In Love’s Pa.R.A.P. 1925(b) statement, Love refers

to the inconsistent statements as those “which were made by Officer

Goodman and established through cross-examination.”           See Rule 1925(b)

statement, 4/8/2014, at III. This challenge is waived.




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      According to Pennsylvania Rule of Appellate Procedure 1925(b), the

statement of errors complained of on appeal should “concisely identify each

ruling or error that the appellant intends to challenge with sufficient detail to

identify all pertinent issues for the judge.”         Pa.R.A.P. 1925(b)(4)(ii). “Rule

1925 is intended to aid trial judges in identifying and focusing upon those

issues which the parties plan to raise on appeal.” Commonwealth v. Lord,

719 A.2d 306, 309 (Pa. 1998). “When a court has to guess what issues an

appellant   is   appealing,   that   is   not      enough   for   meaningful   review.”

Commonwealth v. Allhouse, 969 A.2d 1236, 1239 (Pa. Super. 2009).

Therefore, a “Pa.R.A.P. 1925(b) statement which is too vague to allow the

court to identify the precise issue raised on appeal is equivalent to no

statement at all.” Commonwealth v. Thompson, 778 A.2d 1215, 1224,

(Pa. Super. 2001).       Issues not properly included in the Rule 1925(b)

Statement are waived. Pa.R.A.P. 1925(b)(4)(vii).

      In this case, Love did not specify in his Pa.R.A.P. 1925(b) statement

which testimony established the alleged inconsistency. Instead, Love made

vague reference to statements “which were made by Officer Goodman and

established through cross-examination.”              See Rule 1925(b) statement,

4/8/2014, at III; see also T.C.O. at 12. Without any specific evidence to

reevaluate, the trial court determined that the evidence provided at trial did

not warrant the charge. See Allhouse, 969 A.2d at 1239; T.C.O. at 12.




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Therefore, because Love’s counsel did not properly preserve this issue in the

Rule 1925(b) Statement, the challenge is waived.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/24/2015




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