J-S16002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ROBERT THOMAS, JR.

                            Appellant                 No. 1208 WDA 2015


               Appeal from the Judgment of Sentence July 9, 2015
                In the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0011012-2012


BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY MOULTON, J.:                              FILED JUNE 20, 2017

       Robert Thomas, Jr. appeals from the July 9, 2015 judgment of

sentence entered in the Allegheny County Court of Common Pleas following

his bench trial convictions for delivery of a controlled substance, possession

with intent to deliver a controlled substance (“PWID”), intentional possession

of a controlled substance, and false identification to a law enforcement

officer.1 We affirm.

       The well-reasoned opinion of the Honorable Randal B. Todd set forth

the factual and procedural history underlying this appeal, which we adopt

and incorporate herein. See Trial Ct. Op., 7/13/16, at 1-6 (“1925(a) Op.”).
____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
        35 P.S. § 780-113(a)(30) (delivery and PWID) and (a)(16), and 18
Pa.C.S. § 4914(a), respectively.
J-S16002-17



     Thomas raises two issues on appeal:

            1. Did the lower court err in failing to grant the motion
               to suppress evidence seized from Mr. Thomas insofar
               as the police lacked probable cause to arrest him,
               and no reasonable suspicion to believe that he was
               armed? Was the subsequent warrantless search and
               seizure of his person, as well as police interrogation,
               unlawful under the Fourth Amendment to the United
               States Constitution and Article 1, Section 8, of the
               Pennsylvania [Constitution]?        And was not all
               evidence seized thereafter “fruit of the poisonous
               tree” and inadmissible as a matter of law?

            2. Was the evidence presented insufficient as a matter
               of law to support the convictions for PWID and
               Possession of a Controlled Substance because the
               Commonwealth failed to prove beyond a reasonable
               doubt that the drugs found in possession of another
               man had come from Mr. Thomas?

Thomas’s Br. at 6.

     First, Thomas argues that the trial court erred in denying his motion to

suppress.   In reviewing the denial of a suppression motion, we must

determine

        whether the suppression court’s factual findings are
        supported by the record and whether the legal conclusions
        drawn from those facts are correct.             Because the
        Commonwealth prevailed before the suppression court, we
        may consider only the evidence of the Commonwealth 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 suppression court’s factual findings are
        supported by the record, we are bound by these findings
        and may reverse only if the court’s legal conclusions are
        erroneous.       Where, as here, the appeal of the
        determination of the suppression court turns on allegations
        of legal error, the suppression court’s legal conclusions are
        not binding on an appellate court, whose duty it is to
        determine if the suppression court properly applied the law

                                     -2-
J-S16002-17


         to the facts. Thus, the conclusions of law of the courts
         below are subject to our plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal

quotations and citations omitted).

      Thomas argues that when he was seized and placed under arrest, the

police lacked probable cause to arrest him.     According to Thomas, Officer

William Mudron’s testimony failed to establish he had probable cause

because, although he explained his training and experience, he did not

explain “how that training and experience specifically applies to [the arrest

made here.]”    Thomas’s Br. at 20.      Further, Thomas contends that the

totality of the circumstances did not give Officer Mudron probable cause

because Officer Mudron only observed, from 75 to 100 feet away, a man

approach a parked car with two men inside and an exchange of money for

an object. We disagree.

      In its opinion, the trial court applied the relevant law and properly

determined that the evidence should not be suppressed. See 1925(a) Op.

at 6-8. The trial court found that: the facts of this case are similar to those

in Commonwealth v. Thompson, 985 A.2d 928 (Pa. 2009); Officer

Mudron explained the nexus between his training and experience and

Thomas’s arrest; and probable cause supported the arrest.          The record

supports the trial court’s findings of fact and credibility determinations. See

Commonwealth v. Krisko, 884 A.2d 296, 299 (Pa.Super. 2005) (“[I]t is

exclusively the province of the suppression court to determine the credibility

of the witnesses and weight to be accorded their testimony.”).            After

                                     -3-
J-S16002-17



reviewing the briefs, the record, and the relevant law, we conclude that the

trial court did not err and affirm based on the trial court’s reasoning. See

1925(a) Op. at 6-8.

      Next,   Thomas    argues   that    the   Commonwealth’s   evidence   was

insufficient to support convictions for PWID and possession of a controlled

substance.    This Court’s standard for reviewing sufficiency of the evidence

claims is as follows:

             We must determine whether the evidence admitted at
         trial, and all reasonable inferences drawn therefrom, when
         viewed in a light most favorable to the Commonwealth as
         verdict winner, support the conviction beyond a reasonable
         doubt. Where there is sufficient evidence to enable the
         trier of fact to find every element of the crime has been
         established beyond a reasonable doubt, the sufficiency of
         the evidence claim must fail.

            The evidence established at trial need not preclude
         every possibility of innocence and the fact-finder is free to
         believe all, part, or none of the evidence presented. It is
         not within the province of this Court to re-weigh the
         evidence and substitute our judgment for that of the fact-
         finder.   The Commonwealth’s burden may be met by
         wholly circumstantial evidence and any doubt about the
         defendant's guilt is to be resolved by the fact[-]finder
         unless the evidence is so weak and inconclusive that, as a
         matter of law, no probability of fact can be drawn from the
         combined circumstances.

Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)

(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).

      Thomas asserts that the Commonwealth failed to prove his possession

of the drugs beyond a reasonable doubt because police recovered the

packets of heroin from another person.           According to Thomas, Officer


                                        -4-
J-S16002-17



Mudron only saw, from 75 to 100 feet away, the exchange of cash for an

item and, therefore, Officer Mudron’s testimony failed to prove beyond a

reasonable doubt that Thomas had possessed the drugs and passed them to

the man who approached the vehicle. We disagree.

      Section 780-113(a)(16) of the Controlled Substance, Drug, Device,

and Cosmetic Act (“Act”) 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 pursuant to, a valid prescription
         order or order of a practitioner, or except as otherwise
         authorized by this act.

35 P.S. § 780-113(a)(16). Section 780-113(a)(30) of the Act prohibits the

“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[.]”          Id. § (a)(30).     “The

Commonwealth establishes the offense of [PWID] when it proves beyond a

reasonable doubt that the defendant possessed a controlled substance with

the intent to deliver it.”   Commonwealth v. Little, 879 A.2d 293, 297

(Pa.Super. 2005).    “[A]ll of the facts and circumstances surrounding the

possession are relevant and the elements of the crime may be established

by circumstantial evidence.” Id.

      In its opinion, the trial court addressed Thomas’s claims and properly

determined that the evidence was sufficient to support Thomas’s convictions

for PWID and possession of a controlled substance.     1925(a) Op. at 8-10.

                                     -5-
J-S16002-17



The evidence presented by the Commonwealth showed that Officer Mudron,

an experienced officer with training in narcotics, was patrolling a high drug-

trafficking area when he saw Thomas exchange white packets with another

person for cash, which Thomas then placed in his left pants pocket. Police

recovered four white packets, later determined to be heroin, from the

buyer’s mouth, and found $40 in Thomas’s left pants pocket, which Officer

Mudron testified was consistent with the average price in that area of $10

per packet of heroin. After reviewing the briefs, the record, and the relevant

law, we affirm based on the trial court’s reasoning. Id. at 8-10.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2017




                                    -6-
                                                                             Circulated 05/22/2017 01:48 PM




  IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

                                      CRIMINAL DIVISION


COMMONWEALTH OF PENNSYLVANIA,                         )
                                                      )
       vs.                                            )      NO. CC201211012
                                                      )
ROBERT THOMAS, JR,                                    )
                                                      )
                Defendant.                            )


TODD,J.

July 13, 2016

                                            OPINION

       This is an appeal by Defendant, Robert Thomas, after he was found guilty on July 9,

2015 after a non-jury trial of Possession with Intent to Deliver a Controlled Substance in

violation of 35 Pa.C.S. § 780-113(a)(30); Possession of a Controlled Substance in violation of 35

Pa.C.S. § 780-l 13(a)(l6); and False Identification to Law Enforcement in violation of 18 Pa.C.S.

§ 4914. Defendant was sentenced on July 9, 2015 to 2 to 4 years incarceration and 5 years

probation He was sentenced to one year probation for False Identification to Law Enforcement.

On August 10, 2015 Defendant filed a Notice of Appeal. On August 13, 2015 an order was

entered for Defendant to file a Concise Statement of Matters Complained of on Appeal pursuant

to Pa.R.A.P. 1925(b). On November 23, 2015 Defendant filed his Concise Statement of Matters

Complained of on Appeal setting forth the following:

       "A.      The court erred in failing to grant the motion to suppress evidence seized
                from Mr. Thomas' person insofar as the police lacked probable cause to
                arrest him, and no reasonable suspicion to believe that he was armed; and
                therefore, the subsequent warrantless search of his person and
                interrogation were unlawful pursuant to the Fourth Amendment and

                                                 1
              Article 1, Section 8 of the Pennsylvania Constitution; and any evidence
              obtained pursuant to the unlawful arrest and search constituted the "fruit of
              the poisonous tree". In addition, the police lacked probable cause to seize
              the vehicle at the scene and order a passenger to pit out the contents of his
              mouth; and any evidence obtained pursuant to the unlawful seizures.

       B.     The evidence was insufficient to support the convictions of Possession
              with Intent to Deliver a Controlled Substance and Possession of a
              Controlled Substance insofar as the Commonwealth failed to prove
              beyond a reasonable doubt that the drugs found in the possession of
              another male who was in the vehicle nearby, were in the possession of Mr.
              Thomas, and/or that Mr. Thomas gave the drugs to the other male in the
              vehicle stopped by the police. The police were more than 100 yards away
              when Mr. Thomas allegedly approached a vehicle, could not have seen
              any exchange of items between Mr. Thomas and a passenger of the
              vehicle, or at least could not have seen whether and what items were
              exchanged. No fingerprints of DNA were offered into evidence to link the
              drugs found on the passenger of the vehicle to Mr. Thomas. In addition,
              the Commonwealth did not establish any credentials of the officer who
              testified with regard to the cost of the heroin at the time, or offer any basis
              for the officer's testimony that he identified the square packets he claimed
              he saw in Mr. Thomas' hand as heroin."

BACKGROUND
       This matter arises out of Defendant's arrest on August 14, 2012 after he was observed by

undercover police officers selling drugs. Defendant filed a motion to suppress on the basis that

the police lacked probable cause to arrest him. At the suppression hearing the Commonwealth

presented the testimony of Officer William Mudron who testified that on August 14, 2012 he

was working with other officers in an Impact Squad in plain clothes and in an unmarked vehicle.

At approximately 5:25 p.m. he was on patrol in the 200 block of Hammond Street in the City of

Pittsburgh. Officer Mudron described the area as:

       "That area's known as a high drug trafficking area. We made numerous arrests in
       that location prior to and conducted search warrants on residences in that block,
       that particular block. At that time we set up in an alleyway to do surveillance on a
       vehicle that was sitting there." (T., p. 5)




                                                2
       Officer Mudron testified that he has made numerous drug arrests in the past and that he

had specialized training in drug investigations, having gone through "Top Gun," which he

described as "the best training you can get in PA in reference to narcotics." (T., p. 9)

       Officer Mudron testified that the officers were in the alley when they observed a vehicle

parked along Hammond Street for approximately five to seven minutes. As he was watching the

vehicle a black male, later identified as Defendant, began walking towards the officers' vehicle,

which was similar in color to the parked vehicle which was under surveillance. Defendant at

first walked towards the unmarked police vehicle and then continued towards the vehicle parked

on Hammond Street. Officer Mudron testified:

       "There was two males [in the vehicle] facing up Hammond. He walked to the
       passenger's side, which was out in the roadway. At that time he reached out of his
       right pocket, handed the passenger four square baggies, which were white. To us
       we know it to be heroin. At that time he gathered cash, an unknown amount of
       cash at that time from the passenger and placed that cash into his left pocket. He
       began walking away from that passenger window back up Hammond." (T., p. 6)

Officer Mudron testified that upon observing the transaction they immediately pulled their police

vehicle out of the alley and Officer Mudron then confronted Defendant and arrested him. Officer

Mudron testified:

       "I immediately placed Mr. Thomas into handcuffs, explained to him, you know,
       he was going to be under arrest. We watched him just do the deal." (T., p. 7)

While Defendant was being placed under arrest, the other officers approached the passenger of

the vehicle and determined that the passenger had white stamp bags of heroin in his mouth. The

passenger spit the stamp bags out, which were recovered by the police. (T., pp. 7-8)

       In a search incident to the Defendant's arrest, Defendant was found in possession of $771

in currency from his right pocket, an iPhone 4 and in his left pocket were two additional twenty




                                                 3
dollar bills. Officer Mudron testified that $40.00 was consistent with the amount of what four

bags of heroin would cost. (T., p. 9) Officer Mudron testified:

           "At that particular time in the Sharadan (sic) area, bags of heroin were selling for
           approximately $10 apiece. The money recovered from the defendant's left pocket
           was $40. The amount of heroin recovered was four bags, which would be
           consistent with how much it would cost to buy a bag or four bags of heroin at that
           time in 2012." (T. pp. 9-10)

           Officer Mudron also testified that upon Defendant's arrest he gave a false name, using the

name of another individual who Officer Mudron had previously arrested and, therefore, knew

that Defendant had given a false name. (T., p., 10) Defendant eventually gave his correct name

and date of birth. It was stipulated that the items recovered and tested were, in fact, heroin. (T.,

p. 10)

           On cross-examination Officer Mudron testified that the police vehicle was approximately

75 to 100 feet away from the parked vehicle when he observed the transaction between

Defendant and the occupant of the vehicle. (T., p. 15) Officer Mudron reiterated that despite the

distance he was definitely able to observe the transaction including the small packages of white

material in that Defendant handed to the passenger in the vehicle. Officer Mudron testified as

follows:

           "Q.    What are you having us believe? That he turned his and - -

           A.      He reached into his right pocket, pulled it out of his right pocket and
           handed it like he would hand a dollar bill to somebody. He didn't at any time
           reach into his pocket with a fist. he would have never been able to reach into his
           pocket. He handed it like a dollar bill to the passenger of the vehicle, and the
           passenger then exchanged the money with him.

         Q.      My question to you is, where is it that you would have seen it? Was it in
         his hand or in the hand of the passenger?

         A.       It was in the defendant's hand.

         Q.       Okay. Is this when he's extending his hand out toward the passenger?


                                                    4
          A.     That's correct. Before it ever meets the window.

          Q.     Okay. You see four packets? Is that what you're telling us?

          A.     I saw white square packets. I couldn't see four.

          Q.     You didn't know what they were, did you?

          A.     I knew they were consistent with heroin.

          Q.     I know what you thought and suspected, that they were consistent with
          something, but you didn't know what they were, did you? In all honesty, you put
          in your report you didn't know?

          A.     Yeah, believing it was heroin.

          Q.     Believing, but you didn't know?

          A.     All the things coming together, I believed it to be a heroin drug deal.

          Q.     All the things coming together? What's that? A black male meeting a
          white male?

          A.     No. The totality of the circumstances." (T., pp. 22-23)


          At the conclusion of the hearing, Defendant argued that Officer's Mudron's testimony was

not credible because from his observation point approximately 75 to 100 away from the parked

vehicle, he could not have observed stamp bags in Defendant's hand or identify what was being

handed to the occupant of the vehicle and, therefore, there was no probable cause to arrest

Defendant. After consideration of all the evidence the motion to suppress was denied on the

basis that the credible evidence and the totality of the circumstances, including Officer Mudron's

training and experience, supported a finding that there was probable cause to arrest Defendant.

(T., p.

          Subsequent to the denial of the suppression motion a stipulated non-jury trial was held.

After an appropriate colloquy in which Defendant acknowledged his right to a jury trial the

                                                   5
testimony from the suppression hearing was incorporated into the non-jury trial record. (T., pp.

36-41)    Defendant's prior criminal record was also admitted into evidence. Defendant was

found guilty and sentenced as set forth above. Defendant filed the instant appeal.


DISCUSSION:

         In his concise statement Defendant first raises the claim that it was error to deny his

motion to suppress because there was no probable cause to arrest him. The facts in this case are

very similar to the facts in Commonwealth v. Thompson, 985 A.2d 928 (2009) in which the

Supreme Court addressed the issue of a police officer's experience in determining whether or not

probable cause existed to arrest after observing a suspected on street drug transaction. The Court

in Thompson stated that facts as follows:

         "On January 21, 2005, in the evening, Philadelphia Police Officer Orlando Ortiz
         was on duty in the 2400 block of Leithgow Street. Officer Ortiz knew the
         neighborhood as a high crime area in which narcotics, and specifically heroin,
         regularly were sold. The area was designated by the Philadelphia Police
         Department as an "Operation Safe Streets" neighborhood. Officer Ortiz, a nine-
         year veteran of the police force, and his partner, Officer Correa, were in
         plainclothes and driving an unmarked vehicle. Officer Ortiz saw a car parked by
         the sidewalk and observed Appellant standing in the street by the driver's side
         door. Officer Ortiz watched Appellant hand the male driver some money and saw
         the driver give Appellant a small object in return. Based on what he saw on the
         street and what he knew, including the fact that he had made several hundred
         narcotics arrests of this very type, Officer Ortiz believed the men were engaged in
         a drug transaction. Officer Ortiz stopped Appellant and recovered from his pocket
         a packet of heroin. Officer Correa approached the driver and ultimately recovered
         two packets of heroin from his hand and an additional 14 packets from his person.
         Commonwealth v. Thompson, 985 A.2d 928, 930 (2009)

The Court referenced the weJl recognized standards related to finding probable, stating:


         The parties agree that police were required to have probable cause in order to
         stop, seize, and search Appellant in the manner they did. Thus, we apply the well-
         established legal standard that governs this matter. Probable cause is made out
         when "the facts and circumstances which are within the knowledge of the officer
         at the time of the arrest, and of which he has reasonably trustworthy information,
         are sufficient to warrant a man of reasonable caution in the belief that the suspect

                                                   6
       has committed or is committing a crime." Commonwealth v. Rodriguez, 526 Pa.
       268, 585 A.2d 988, 990 (1991). The question we ask is not whether the officer's
       belief was "correct or more likely true than false." Texas v. Brown, 460 U.S. 730,
       742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). Rather, we require only a
       "probability, and not a prima facie showing, of criminal activity." Illinois v.
       Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (citation
       omitted) (emphasis supplied). In determining whether probable cause exists, we
       apply a totality of the circumstances test. Commonwealth v. Clark, 558 Pa. 157,
       735 A.2d 1248, 1252 (1999) (relying on Gates, supra). Commonwealth v.
       Thompson, 985 A.2d 928, 931 (2009)

After examining various cases dealing with the issue of the factors to be considered in

determining whether or not probable cause existed to arrest related to a suspected on street drug

transaction, including its 2008 decision in the Commonwealth v, Dunlap, 941 A.2d 671 (2008)

cert. denied, --- U.S.---, 129 S.Ct. 448, the Court concluded that:


       Upon review of the various Dunlap expressions, we recognize the logic and
       soundness of Justice Saylor's concurring opinion and so hold that "a police
       officer's experience may fairly be regarded as a relevant factor in determining
       probable cause." 941 A.2d at 679 (Saylor, J., concurring). We caution, however,
       that an officer's testimony in this regard shall not simply reference "training and
       experience abstract from an explanation of their specific application to the
       circumstances at hand." Id. at 681 (Saylor, J., concurring). As the Dunlap
       majority itself observed, "a court cannot simply conclude that probable cause
       existed based upon nothing more than the number of years an officer has spent on
       the force. Rather, the officer must demonstrate a nexus between his experience
       and the search, arrest, or seizure of evidence." Dunlap, 941 A.2d at 676. Indeed, a
       factor becomes relevant only because it has some connection to the issue at hand.
       The very foundation of the Gates totality test is the recognition that all relevant
       factors go into the probable cause mix. Commonwealth v. Thompson, 985 A.2d
       928, 935 (2009)


After considering all of the appropriate facts and circumstances the Court concluded that

probable cause did exist for the arrest, stating:

       Because we have determined that a police officer's experience may be fairly
       regarded as a relevant factor in determining probable cause, and due to the
       presence of additional factors in support of Officer Ortiz's conclusion that he was
       witnessing a drug transaction, we find no error in the Superior Court's conclusion
       that probable cause was present in this case. We do not base our decision solely
       on Officer Ortiz's experience and the connection he articulated between that

                                                    7
       experience and what he observed. We also rely on the fact that the transaction at
       issue occurred in the nighttime hours, on the street, in a neighborhood that the
       police department selected for the "Operation Safe Streets" program. We
       conclude that the Superior Court properly upheld the denial of suppression in this
       case and properly affirmed the judgment of sentence. Commonwealth v.
       Thompson, 985 A.2d 928, 936-37 (2009)

       In this case, Officer Mudron, testified that he had two and half years experience on the

Impact Squad, which is referred to as Unit 99, and that the majority of the work is related to

narcotics investigations. He had also undergone training at "Top Gun," which he described as

the "best training you can get in PA in reference to narcotics." He made numerous prior drug

arrests and the area where Defendant was arrested was known to him as a "high drug trafficking

area" in which he had made numerous arrests and he had conducted searches for drugs activity

on the same block of Hammond Street where the vehicle in question was under surveillance. He

observed Defendant approach the vehicle that had been sitting parked on Hammond Street for

several minutes and watched as Defendant took small white packages from his right pocket, hand

them to the passenger and receive cash in exchange before walking away from the vehicle.

Despite Defendant's argument to the contrary, Officer's Mudron's testimony concerning his

observations of the transaction was credible. His testimony established a nexus between his

experience as a trained narcotics officer, the location of the transaction and Defendant's

involvement in the transaction, as described, to lead to the conclusion that probable cause existed

to arrest Defendant.

       Defendant next contends that the evidence was insufficient to support the conviction of

Possession With Intent to Deliver or Possession of Controlled Substance because the

Commonwealth failed to prove that the drugs found in the possession of the passenger were in

the possession of Defendant or that Defendant gave the drugs to the passenger in the vehicle.

When reviewing a sufficiency of the evidence claim the evidence must be viewed in the light


                                                 8
most favorable to the Commonwealth, as verdict winner, to determine if there is sufficient

evidence to enable a fact-finder to find every element of the crime charged beyond a reasonable

doubt. Commonwealth v. McNair, 603 A.2d 1014 (1992). It is exclusively within the province of

the fact-finder to believe none, some or all of the evidence presented. Commonwealth v. Henry,

569 A.2d 929, 939 (1990); Commonwealth v. Jackson, 485 A.2d 1102 (1984). If the fact finder

reasonably could have determined from the evidence presented that all of the necessary elements

of the crime were established, then that evidence will be deemed sufficient to support the verdict.

Commonwealth v. Wood, 637 A.2d 1335, 1343 (1994) Commonwealth v. Hopkins, 747 A.2d

910, 914 (Pa. Super. 2000)

        Defendant argues that Officer Mudron was more than 100 yards away and could not have

seen what the items were that were exchanged between Defendant and the passenger of the

vehicle. Initially, it is noted that, in fact, Officer Mudron testified that he was only 75 to 100 feet

away, not a 100 yards, and had a clear view of the exchange and noted that there were small

white packets that were being exchanged between Defendant and the passenger. He also

testified that he saw the passenger hand money to the Defendant. Immediately upon the

exchange of the funds the police apprehended Defendant, as well as the passenger, and four

stamp bags of confirmed heroin were recovered from the passenger's mouth. Officer Mudron

credibly testified that $40.00 was recovered from Defendant's left pocket, the same pocket in

which he saw the cash being placed during the transaction that he had just witnessed. He also

testified that this was was consistent with the price of the four stamp bags of heroin recovered

from the passenger. This evidence is clearly sufficient to establish that Defendant was in

possession of the heroin and sold it to the passenger in the vehicle. The fact that there were no

drugs or drug paraphernalia found on Defendant at the time of the arrest does not negate the fact



                                                  9
that the evidence, and all reasonable inferences therefrom, indicates that Defendant had both

possessed and sold the heroin to the passenger in the vehicle. In addition, the fact that there were

no fingerprints or DNA evidence offered to link the drugs found on the passenger to Defendant is

irrelevant. It is recognized that the mere absence of DNA on tested items is not conclusive

evidence that a Defendant may not have been involved in the crime.        As noted in

Commonwealth v. Conway 14 A.3d 101, (Pa. Super. 2011), reargument denied (Mar. 16, 2011),

appeal denied, 29 A.3d 795 (2011) "In DNA, as in other areas, an absence of evidence is not

evidence of absence."

        Finally, as to Defendant's contention that the Commonwealth did not establish any

credentials of the officer who testified with regard to the cost of the heroin, this assertion is

contradicted by the evidence. Officer Mudron testified concerning his experience in narcotics

investigations and arrests as set forth in detail above and it was Officer Mudron who testified as

to the cost of the heroin. Therefore, based on all the evidence it is clear that the Commonwealth

met its burden of proving the charges of Possession With Intent to Deliver and Possession of a

Controlled Substance.




                                               TODD, J.




                                                  10
