The opinion
J-S52022-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JERMAIN JACKSON,
Appellant No. 2549 EDA 2013
Appeal from the Judgment of Sentence entered May 3, 2013
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0010177-2010
BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD*, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 20, 2014
imposed after he was convicted of possession with intent to deliver (PWID).1
We affirm.
The trial court
follows:
On May 15, 2010 at approximately 9:00 p.m., Police
Officers Maurice Rhoades and Melvin Floyd were on duty as
members of the Narcotics Strike Force Field Unit. The officers
set up surveillance in an unmarked car at the well-lit 1400 block
of North 17th Street in the City and County of Philadelphia.
Officers saw Appellant on the street, engaged in a brief
____________________________________________
1
35 P.S. § 780-113(a)(30).
*Former Justice specially assigned to the Superior Court.
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black male approached Appellant, spoke with him for less than a
minute, and handed him money. Appellant went to a nearby
wall, took a black plastic bag from the ground, and removed
small objects from inside the bag. Appellant handed the objects
to the man, who then walked away. Officer Floyd relayed his
observations over the surveillance band to backup officers, but
police officers were not able to locate that man.
Approximately ten (10) minutes later, a car pulled up
driven by a second unidentified black male. The man spoke
briefly to Appellant and handed him an unknown amount of
money. Appellant once again went to the black plastic bag by
the wall and took objects from inside the bag, and handed them
to the man along with a small, black-capped jar about two
inches tall. The man put the small objects in his mouth and
spoke briefly with Appellant and Stanson before driving away.
Police officers did not stop the man.
At approximately 9:25 p.m., Appellant retrieved the black
bag and entered a gray Dodge vehicle, with Stanson driving.
Officer Rhoades put out the description and license plate number
of the car over the radio. Officer Christopher Purnell, also of the
Narcotics Strike Force, was in a marked car about two or three
blocks away from 1400 N. 17th Street. Officer Purnell spotted
the Dodge vehicle. When the vehicle made a left onto the 1600
block of Thompson Street, he activated his lights and sirens and
pulled Appellant over.
Appellant opened the door, threw something out, and
closed the door again. Officer Purnell removed Appellant from
the car. Stanson was taken out of the car by another officer and
later released. Officer Purnell recovered a black plastic bag from
beneath the vehicle. Inside was a clear sandwich bag with
twenty-eight (28) white pills later identified as Percocet, five (5)
green pills later identified as oxycodone, and a single jar with a
black top and purple syrup inside, later identified as codeine.
Officer Rhoades returned to Thompson Street and
identified Appellant as the man he had observed engaging in
narcotics transactions. Appellant was searched and from his
pants pocket was recovered $216 United States Currency
bills, two (2) $10 bills, one (1) $5 bill and one (1) $1 bill.
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Trial Court Opinion, 12/23/13, at 2-4 (footnotes and citations to notes
of testimony omitted). Appellant was subsequently arrested and
charged, and a jury trial commenced on January 17, 2013. The jury
found Appellant guilty of PWID.
Following a hearing on May 2, 2013, the trial court sentenced
Appellant to three and a half (3½) to eight (8) years in prison.
Appellant filed a post-sentence motion on May 3, 2013, which was
denied by operation of law on September 3, 2013. This timely appeal
followed. Both Appellant and the trial court have complied with
Pa.R.A.P. 1925.
Appellant raises the following issue for our review:
WAS THE EVIDENCE SUBMITTED BY THE COMMONWEALTH
AT TRIAL INSUFFICIENT AS A MATTER OF LAW TO SUPPORT
POSSESSION OF A CONTROLLED SUBSTANCE WITH THE
INTENT TO DELIVER WHEN THE EVIDENCE FAILED TO
ESTABLISH THAT APPELLANT EITHER DELIVERED, OR
INTENDED TO DELIVER, THE CONTROLLED SUBSTANCES IN
QUESTION?
MOTION FOR MISTRIAL MADE IN RESPONSE TO PREJUDICIAL
COMMENTS PRESENTED TO THE JURY BY THE
COMMONWEALTH DURING ITS CLOSING ARGUMENT?
In his first issue, Appellant argues that the evidence was insufficient to
establish that he was guilty of possession with intent to deliver in violation of
35 P.S. § 780-113(a)(30) which provides:
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(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited: ...
(30) Except as authorized by this act, the manufacture,
delivery, or 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, or knowingly creating, delivering or
possessing with intent to deliver, a counterfeit
controlled substance.
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.
Commonwealth v. Devine, 26 A.3d 1139, 1145 (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. 35 P.S. 780-113(a)(30); Commonwealth v.
Bostick
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the facts and circumstances surrounding possession are relevant in making a
Commonwealth v. Brown, 904 A.2d 925, 931 (Pa. Super. 2006), appeal
denied 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.
Bostick
of a controlled substance, it is not clear whether the substance is being used
for personal consumption or distribution, it then becomes necessary to
Id
that drugs were possessed with the intent to deliver include the particular
method of packaging, the form of the drug, and the behavior of the
Commonealth v. Aguado, 760 A.2d 1181, 1186 (Pa. Super.
2000).
Here, the trial court found the evidence sufficient to support
Officers observed Appellant take small objects from a black
plastic bag on the ground near a wall on 17th Street, and
exchange those objects for money in two separate transactions.
They observed an unidentified man exchange currency with
Appellant for pills and a small jar, which he consumed within
their view. Officers observed Appellant take the black plastic
bag from the ground and get into the passenger side of a gray
Dodge vehicle.
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vehicle, a gray Dodge, and its license plate number over the
surveillance radio, Officer Purnell spotted the vehicle traveling
southbound on 17th Street and pulled the driver over. Officer
Purnell observed the passenger door open, a black bag thrown
from the door, and the door close again. After placing Appellant
who matched the description given over the surveillance radio
in custody, Officer Purnell recovered a black plastic bag from
beneath the car. Appellant maintained possession and control of
the black plastic bag, from the time it was on the ground and he
took small objects from it, to the time he got into the passenger
side of the car after picking up the bag, to the time he threw it
from the car. The bag contained Percocet, codeine syrup, and
oxycodone. Officer Rhoades observed him make several
narcotics transactions, exchanging small objects in exchange for
money.
entirely in small bills, consistent with narcotics trafficking.
Thus, the evidence was sufficient to convict Appellant of
PWID.
Trial Court Opinion, 12/23/13, at 5-6.
Viewing the evidence in the light most favorable to the Commonwealth
as verdict winner, we agree with the trial court that the evidence was
sufficient for the jury to determine that Appellant possessed controlled
substances with intent to deliver. Officer Rhoades testified that he saw
Appellant engage in multiple hand-to-hand exchanges for cash of small
items retrieved from a black plastic bag. N.T., 1/17/13, at 49-52. Officer
Rhoades observed one of the individuals receive a small jar with a black cap
from Appellant in exchange for cash, and the officer observed the buyer
drink the contents of the jar. Id. When Appellant left the scene of the
aforementioned transactions in a gray Dodge vehicle, Officer Rhoades
relayed a description of his vehicle over the police radio, and approximately
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Id. at 53, 105-
Appellant discarded the black bag which was found to contain twenty-eight
Percocet pills, five oxycodone pills and a jar of codeine with a black cap,
identical in size, shape and color to the one Appellant had earlier sold to the
unknown male who had drank its contents on the street. Id. at 55-57, 107.
Additionally, $216 cash was retrieved from Appellant. Id. at 108. This
conviction. See Aguado, supra (finding evidence sufficient to support
PWID conviction where police officer witnessed appellant accept cash from
an unidentified male in exchange for small objects that the appellant
retrieved from a brown paper bag, and appellant discarded that paper bag
upon the officers' approach, and subsequent investigation revealed that the
paper bag contained ten individual vials containing crack cocaine, and that
the appellant possessed $93.00 in cash).
Appellant next argues that the trial court erred when it denied his
motion for mistrial made in response to prejudicial comments made by the
14-19. Our standard of review for a claim of prosecutorial misconduct is
limited to whether the trial court abused its discretion. Commonwealth v.
Harris, 884 A.2d 920, 927 (Pa. Super. 2005) (citation omitted), appeal
denied, 928 A.2d 1289 (Pa. 2007). In considering such a claim, our
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attention is focused on whether the defendant was deprived of a fair trial,
not a perfect one. Id.
[I]n reviewing prosecutorial remarks to determine their
prejudicial quality, comments cannot be viewed in isolation but,
rather, must be considered in the context in which they were
made. Our review of prosecutorial remarks and an allegation of
prosecutorial misconduct requires us to evaluate whether a
defendant received a fair trial, not a perfect trial.
***
It is well settled that a prosecutor has considerable latitude
during closing arguments and his arguments are fair if they are
supported by the evidence or use inferences that can reasonably
be derived from the evidence. Further, prosecutorial misconduct
does not take place unless the unavoidable effect of the
comments at issue was to prejudice the jurors by forming in
their minds a fixed bias and hostility toward the defendant, thus
impeding their ability to weigh the evidence objectively and
render a true verdict. Prosecutorial misconduct is evaluated
under a harmless error standard.
In determining whether the prosecutor engaged in
misconduct, we must keep in mind that comments made by a
prosecutor must be examined within the context of defense
counsel's conduct. It is well settled that the prosecutor may
fairly respond to points made in the defense closing. Moreover,
prosecutorial misconduct will not be found where comments
were based on the evidence or proper inferences therefrom or
were only oratorical flair.
Commonwealth v. Judy, 978 A.2d 1015, 1019 1020 (Pa. Super. 2009)
(internal citations omitted).
Appellant objects to the following comments made by the
Commonwealth during its closing argument:
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here and advocate for his client and say whatever he can to do
whatever he wants, unlike the police officers in this case, who
took the stand, raised their hand and swore to tell the truth.
And every time they get on that stand, they put their badge on
the line, their career, their reputation, their families, not just
that. When they get up there and they swear to tell the truth,
they risk perjury. They risk criminal charges, incarceration, if
they do not tell the truth. They got up there and they swore to
N.T., 1/18/13, at 48-49.
objected, asserting that the Commonwealth had
attempted to convey to the jury that police officers were more credible than
other witnesses due to their profession, and sought a mistrial or, in the
alternative, a curative instruction. Id. at 53-56. The trial court denied
instruction, and instructed the jury as follows:
There was a reference made in closing argument by the assistant
district attorney. And I want to clarify something with respect to
credibility of witnesses. I want to instruct you and you heard
you again at this point.
I will instruct you that you should neither believe nor disbelieve
al
in law enforcement. All witnesses called by the assistant district
attorney and by the defendant, if any, are to have their
credibility to truthfulness and accuracy evaluated by the same
standards.
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Law enforcement officers are people just like the rest of us. And
their credibility should be determined for using the same
standards you would use for anyone else. No one gets a free
ticket to be believed because of their job, whether it be a law
enforcement officer, a doctor, a lawyer, or any other profession.
because of what that person may or may not do for a living.
Id. at 57-58.
sion to issue the
curative instruction rather than declare a mistrial. See Commonwealth v.
Melendez Rodriguez
prejudice resultin
of law enforcement officers was effectively cured by the trial court's
immediate and comprehensive cautionary instruction. We find no error in
deprived of a fair and
impartial trial and conclude that the trial court did not err in denying his
motion for mistrial. See Commonwealth v. Collins, 70 A.3d 1245, 1253
when an incident is of such a nature that its unavoidable effect is to deprive
appellant of a fair trial [;] [t]he trial court is permitted to rectify an event
(citations omitted).
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
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