J-S63021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DIANE MASON,

                            Appellant                 No. 1936 EDA 2013


             Appeal from the Judgment of Sentence June 25, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001208-2012


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED OCTOBER 21, 2016

       Appellant, Diane Mason, appeals from the judgment of sentence

entered June 25, 2013, in the Court of Common Pleas of Philadelphia

County. We affirm.

       The trial court summarized the facts of this case as follows:

              On January 12th of 2012, at around 7:15 p.m., Officer
       Barry Stewart was conducting surveillance for illegal sales of
       narcotics in the area of the 900 block of North 43rd Street.
       Officer Steward observed [Appellant] at that location with an
       unidentified man. At approximately about [sic] 7:30 p.m., an
       unidentified woman approached [Appellant] and the unidentified
       man and they had a brief conversation. The unidentified woman
       gave United States currency to [Appellant]. [Appellant] walked
       eastbound on Otter Street out of view for approximately about
       [sic] a minute while the unidentified man and woman stayed on
       location. [Appellant] returned and gave unknown object to the
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      unidentified woman in a hand-to-hand motion. The woman then
      walked southbound on 43rd Street.        Immediately after this
      transaction, [Appellant] gave the unidentified male Unites States
      currency. The unidentified woman could not be located by
      backup officers.

             At approximately 7:45 p.m., a black male, later identified
      as Arthur Stanford approached [Appellant] and the unidentified
      male.     Mr. Stanford had a brief conversation with the two
      individuals and then he handed Unites States currency to
      [Appellant]. [Appellant] walked eastbound on Otter Street and
      was out of view for about a minute. [Appellant returned and
      gave Mr. Stanford unknown objects in a hand-to-hand motion.
      Mr. Stanford then walked northbound on 43rd Street.

            Pursuant to Officer Stewart’s description, Officer Tamika
      Allen stopped a Mr. Stanford at 900 North Belmont Avenue.
      Officer Allen observed Mr. Stanford discard items from his right
      hand which Officer Allen recovered. The items were three light
      orange packets containing crack cocaine.

            After the transaction with Mr. Stanford, [Appellant] and
      the unidentified man walked southbound on 43rd Street out of
      view.    At about 8:30 p.m., [Appellant] returned and was
      arrested.

Trial Court Opinion, 1/7/16, at 2-4.

      The trial court summarized the procedural history of this case as

follows:

            On January 12, 2012, [Appellant] was arrested and
      charged with Possession of a Controlled Substance with the
      Intent to Distribute (35 Pa. Stat. Ann. § 780-113(A)(30))
      (“PWID”) and Knowing and Intentional Possession of a Controlled
      Substance (35 Pa. Stat. Ann. § 780-113(A)(16))(“K & I”). On
      September 4, 2012, after a trial, this [c]ourt, sitting without a
      jury, convicted [Appellant] of both charges. Sentencing was
      deferred for the completion of a presentence and mental health
      report.

            On November 14, 2012, [Appellant] filed a Motion for
      Extraordinary Relief. On December 5, 2012, [Appellant] filed a

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     Motion for New Trial Based Upon After Discovered Evidence.
     This [c]ourt held multiple hearings on these Motions.         On
     January 25, 2013, this [c]ourt denied [Appellant’s] Motion for
     Extraordinary Relief. On April 26, 2013, this [c]ourt denied
     [Appellant’s] Motion for a New Trial. That same day, this [c]ourt
     sentenced [Appellant] to two to four years of incarceration and a
     consecutive term of two years of probation on the PWID charge.

           On May 3, 2013, [Appellant] filed a Post Sentence Motion.
     This [c]ourt granted a hearing on [Appellant’s] Motion and on
     [June] 25, 2013, after a hearing, this [c]ourt vacated
     [Appellant’s] original sentence and sentenced her to eleven and
     a half to twenty three months of incarceration and a consecutive
     term of five years of probation on the PWID charge.

           On July 9, 2013, [Appellant] filed a Notice of Appeal. On
     July 15, 2013, this [c]ourt ordered [Appellant] to submit a
     Statement of Matters Complained of on Appeal pursuant to
     Pa.R.A.P. 1925(b). As the notes of testimony were not ready,
     this Court granted [Appellant] an extension of time to file a
     Statement. [Appellant] never filed a Statement. On April 1,
     2014, the record was transmitted to the Superior Court without
     an opinion as the Honorable Judge Powell was no longer sitting
     as a judge of the Court of Common Pleas. On June 23, 2014,
     the Superior Court remanded the case for the filing of a
     Statement and Supplemental Opinion. In its Order, the Superior
     Court recognized that Judge Powell was no longer sitting and
     directed the case to be reassigned.        The case was never
     reassigned.

           On December 1, 2015, the Superior Court inquired with
     this Court regarding the status of the case . . . . Once this Court
     was aware that the case had not been reassigned, on December
     2, 2015, this [c]ourt ordered [Appellant] to submit a statement.
     On December 23, 2015, [Appellant] submitted a timely
     Statement.

Trial Court Opinion, 1/7/16, at 1-2.      The trial court issued an opinion

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

     Appellant presents the following issue for our review:




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            Was not the evidence insufficient to find [Appellant] guilty
      beyond a reasonable doubt of the crimes of possession with
      intent to deliver and simple possession of a controlled substance
      in that the evidence failed to prove that [Appellant] ever actually
      possessed or delivered a controlled substance to another
      person?

Appellant’s Brief at 3.

      Appellant argues that the evidence was insufficient to find her guilty

beyond a reasonable doubt of the crimes of PWID and possession.

Appellant’s Brief at 9. Specifically, Appellant asserts that the evidence failed

to prove that she actually possessed or delivered a controlled substance.

Id. Appellant maintains that “[n]o money was seized from [Appellant], no

drugs were seized from [Appellant] and no stash of drugs was recovered by

the police or by [Appellant] or by her alleged unknown companion.”          Id.

Despite acknowledging that when the police stopped one of the alleged

“buyers” he discarded three packets of crack cocaine, Appellant contends

that “[t]here was no direct evidence that [Appellant] delivered cocaine to

any individual and the circumstantial evidence supporting such an inference

was so speculative that it cannot support a conviction for possession with

intent to deliver.” Id.

      Our standard of review for sufficiency of the evidence claims is well-

settled:

      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,

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     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
     trier 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.

Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011).

     To sustain a conviction for PWID, “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). “The intent to deliver may be inferred from an examination of

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

Conaway, 791 A.2d 359, 362-363 (Pa. Super. 2002). “Factors to consider

whether the defendant possessed the drugs with the intent to deliver include

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

of the defendant.” Id. at 363.

     Regarding the crime of simple possession of narcotics, 35 P.S. § 780-

113(a)(16) prohibits

     [k]nowingly or intentionally possessing a controlled or
     counterfeit substance by a person not registered under this act,
     or a practitioner not registered or licensed by the appropriate
     State board, unless the substance was obtained directly from, or

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      pursuant to, a valid prescription order or order of a practitioner,
      or except as otherwise authorized by this act.

      If the contraband is not found on the defendant’s person, the

Commonwealth must prove that the defendant had constructive possession

of the contraband.    Commonwealth v. Estepp, 17 A.3d 939, 944 (Pa.

Super. 2011).

      Constructive possession is an inference arising from a set of
      facts that possession of the contraband was more likely than not.
      We have defined constructive possession as “conscious
      dominion.” We subsequently defined “conscious dominion” as
      the power to control the contraband and the intent to exercise
      that control. To aid application, we have held that constructive
      possession may be established by the totality of the
      circumstances.

Commonwealth v. Muniz, 5 A.3d 345, 348-349 (Pa. Super. 2010).

      In addressing Appellant’s issue, the trial court provided the following

analysis:

      Officer Stewart observed [Appellant] engage in two hand-to-
      hand transactions in which United States currency was
      exchanged for small objects. After arresting the second buyer,
      Mr. Stanford, police recovered from him three light orange
      packets containing crack cocaine. Officer Stewart positively
      identified [Appellant] as the individual making the hand-to-hand
      sale to Mr. Stanford. Although [Appellant] did not have cash on
      her when she was arrested, this is explained by the fact that
      Officer Steward observed [Appellant] give the unidentified man,
      who was never found, the proceeds of each sale. This evidence
      is sufficient to support the finding that [Appellant] possessed and
      delivered the crack cocaine.

Trial Court Opinion, 1/7/16, at 6.

      We agree. The record supports the trial court’s analysis. Thus, when

viewed in the light most favorable to the Commonwealth as the verdict

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winner, the evidence and all reasonable inferences derived therefrom are

sufficient to establish all elements of the crimes beyond a reasonable doubt.

Commonwealth v. Johnson, 100 A.3d 207, 209 (Pa. Super. 2014).

Accordingly, Appellant’s claim fails.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2016




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