J-S02027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

BRUCE ALVARADO

                            Appellant               No. 488 EDA 2014


           Appeal from the Judgment of Sentence January 24, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0000702-2013


BEFORE: MUNDY, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.:                            FILED APRIL 06, 2015

       Appellant, Bruce Alvarado, appeals from the judgment of sentence

entered on January 24, 2014. We affirm.

       The trial court has ably summarized the underlying facts of this case.

As the trial court explained:

         On January 1, 2013, Detective Perez and Officer Floyd set
         up a narcotics surveillance on the 2800 block of Lee Street
         in the City of Philadelphia. At approximately 5:20 p.m.,
         Detective Perez observed [Appellant] standing on the
         northwest corner of Lee Street and Somerset Street along
         with another Hispanic male, later identified as Christopher
         Keylez.[1] A white male, later identified as Andrew Cook,
____________________________________________


1
  As the Commonwealth declares: “[t]he notes of testimony from trial
identify the cohort as ‘Christopher Ke[y]lez,’ but the trial court’s docket
identifies the co-defendant’s criminal matter as Commonwealth v.
Cristopher Quiles, CP-51-CR-0004687-2013.” Commonwealth’s Brief at 2
n.1. Nevertheless, with respect to the co-defendant’s last name, this
(Footnote Continued Next Page)
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         approached them, engaged in a brief conversation, and then
         handed Keylez [United States] currency.          In response,
         Keylez crossed the street to a vacant lot for approximately
         one minute and returned to hand Cook a small item. Cook
         then departed from the area and Detective Perez radioed
         his description and direction of travel to backup officers. . . .
         Cook was stopped by Officer Ashburn, who recovered one
         yellow tinted packet of powder cocaine.

                                            ...

         At approximately 5:55 p.m., Detective Perez observed
         another white male, later identified as Francis Mandarin,
         approach [Appellant] and Keylez, engage in a brief
         conversation, and then hand Keylez [United States]
         currency. In response, Keylez crossed the street to a
         vacant lot for approximately one minute and returned to
         hand Mandarin a small item with a fist over hand motion.
         Mandarin then departed [] the area in a white Buick and
         Detective Perez radioed [Mandarin’s] description, the
         vehicle description, and the direction of travel to backup
         officers. . . . Mandarin was stopped by Officer Crawford,
         who recovered one peach packet of crack cocaine.

                                            ...

         At approximately 6:25 p.m., Detective Perez observed a
         third white male, later identified as Charles Gorman,
         approach [Appellant] and Keylez, engage in a brief
         conversation, and then hand [Appellant] [United States]
         currency. In response, [Appellant] handed Gorman a small
         item with a fist over hand motion. Gorman then departed []
         the area in a Toyota Rav4 [automobile] and Detective Perez
         radioed [Gorman’s] description, the vehicle description, and
         the direction of travel to backup officers. The detective also
         radioed a description of [Appellant] and [Keylez] to the
         backup officers. . . . Gorman was stopped by Officer
         Kenner, who recovered five clear packets of heroin with blue
         glassine inserts stamped “China White.”
                       _______________________
(Footnote Continued)

memorandum will retain the spelling that is memorialized in the trial court’s
opinion and in the notes of testimony.



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                                           ...

          [During Appellant’s trial, it was stipulated that “Officer
          Criselli . . . stopped and arrested [Appellant] as [Appellant]
          began to run into [Appellant’s house at] 2810 Lee Street.”
          N.T. Trial, 10/30/13, at 20.] Officer Criselli [] recovered
          [$150.00 in United States] currency from [Appellant’s]
          person. [However, the police did not recover any controlled
          substances from Appellant’s person]. Keylez was stopped
          and arrested by Officer Walsh[,] who recovered [$250.00 in
          United States] currency from [Keylez’s] person.

Trial Court Opinion, 5/13/14, at 2-4.

        Following Appellant’s October 30, 2013 bench trial, the trial court

found Appellant guilty of possession of a controlled substance with the intent

to deliver (hereinafter “PWID”) and possession of a controlled substance.2

On January 24, 2014, the trial court sentenced Appellant to serve a term of

one-and-a-half to four years in prison for PWID.3

        Appellant filed a timely notice of appeal and now raises the following

claim to this Court:

          Was not the evidence insufficient to convict [Appellant] of
          [PWID] and simple possession of a controlled substance
          where the officer’s observations and circumstantial evidence


____________________________________________


2
    35 P.S. § 780-113(a)(30) and (16), respectively.
3
   Appellant was originally sentenced on October 30, 2013.          However,
Appellant filed a timely post-sentence motion and, on January 24, 2014, the
trial court vacated Appellant’s judgment of sentence.     Trial Court Order,
1/24/14, at 1. The trial court then re-sentenced Appellant to serve a term of
one-and-a-half to four years in prison for PWID, with credit for 379 days of
time served. Id.



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        did not establish, beyond a reasonable           doubt   that
        [Appellant] committed the illegal acts?

Appellant’s Brief at 3.

      We review Appellant’s sufficiency of the evidence claim under the

following standard:

        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 [that of] 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) (en

banc) (internal quotations and citations omitted).

      Appellant claims that the evidence was insufficient to support his PWID

and simple possession convictions because “there was [not] enough []

circumstantial evidence to conclude beyond a reasonable doubt that the

drugs recovered from Mr. Gorman were sold to him by [Appellant]. . . .



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[Therefore,     Appellant’s    convictions   are   based   upon]   conjecture   and

speculation.”    Appellant’s Brief at 10 and 14.       In other words, Appellant

claims that the evidence is insufficient to support his convictions because

“the evidence is so weak and inconclusive that as a matter of law no

probability of fact may be drawn from the combined circumstances.”

Brown, 23 A.3d at 559-560 (internal quotations and citations omitted).

Appellant’s claim fails.

      An individual is guilty of possession of a controlled substance if he

knowingly and intentionally possesses a controlled substance.             35 P.S.

§ 780-113(a)(16). Further, “[i]n order to convict an accused of PWID under

35 P.S. § 780-113(a)(30), the Commonwealth must prove that he both

possessed the controlled substance and had an intent to deliver that

substance.”     Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super.

2011) (internal quotations and citations omitted).

      Within Appellant’s brief to this Court, Appellant bases his argument

upon our Supreme Court’s opinion in Commonwealth v. Banks, 658 A.2d

752 (Pa. 1995). There, our Supreme Court held that the police did not have

probable cause to conclude that the defendant had sold contraband, where

the police observed:          a single exchange on a street corner, where the

defendant handed an unidentified object to an unidentified female in

exchange for an undetermined amount of money, and the defendant fled

upon seeing the police.        Appellant’s Brief at 12; Banks, 658 A.2d at 752.


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According to Appellant, since the Supreme Court concluded that the police

did not possess probable cause in Banks, “by definition” the evidence is

insufficient to support Appellant’s convictions in the case at bar. Appellant’s

Brief at 12-13.

      Appellant’s reliance upon Banks fails because, in Banks, the police

merely observed a single street transaction and the police never stopped the

unidentified female – thus, the police were never able to determine what the

defendant sold to the female. Banks, 658 A.2d at 753. By contrast, in the

case at bar, the quantity and quality of the Commonwealth’s evidence is far

greater than was found in Banks.             Specifically, in this case, the

Commonwealth presented evidence that:          Appellant was lingering on a

street corner that was being used for drug distribution, with an individual

who was distributing cocaine; during the course of one hour, the police

observed Appellant and Keylez engage in three hand-to-hand street

transactions with passing individuals; the three hand-to-hand transactions

occurred in roughly the same manner (the individual approached Appellant

and Keylez on the corner, the individual engaged in a brief conversation with

Appellant and Keylez, the individual handed Appellant or Keylez money,

following the monetary exchange, either Appellant or Keylez handed the

individual “a small item” in a “fist over hand motion,” and, following the brief

transaction, the individual departed); each of the individuals was later

stopped by the police and the police recovered cocaine from the two who


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transacted with Keylez and a different drug – heroin – from the one who

transacted with Appellant; when police appeared on scene, Appellant

attempted to flee; and, a search of Appellant’s person revealed that

Appellant possessed $150.00.

      Viewing    this   evidence   in   the   light   most   favorable   to   the

Commonwealth, we conclude that the evidence is sufficient to prove that

Appellant possessed the heroin that was later recovered from Charles

Gorman and that, when Appellant possessed the heroin, Appellant possessed

the heroin with the intent to deliver. Appellant’s claim on appeal fails.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2015




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