Com. v. Haywood, D.

J. S11046/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

DAVID HAYWOOD, : No. 2055 EDA 2019

:

Appellant :

Appeal from the Judgment of Sentence Entered January 2, 2018,

in the Court of Common Pleas of Monroe County

Criminal Division at No. CP-45-CR-0000876-2016

BEFORE: SHOGAN, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 09, 2020

David Haywood appeals from the January 2, 2018 judgment of

sentence1 of five to ten years’ imprisonment and a $30,000 fine, imposed after

a jury found him guilty of possession of a controlled substance, possession

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

amount of marijuana, and three counts of possession of drug paraphernalia.2

After careful review, we affirm.

1 In a separate sentencing order entered at No. CP-45-CR-0000115-2016,

appellant was sentenced to three to six years’ imprisonment and a $10,000

fine, after a jury found him guilty of possession of a controlled substance,

PWID, possession of a small amount of marijuana, and possession of drug

paraphernalia, and the trial court found him guilty of the summary offense of

making an improper right turn. The issues appellant raises with respect to

No. CP-45-CR-0000115-2016 will be addressed at Superior Court Docket

No. 2032 EDA 2018.

2 35 P.S. §§ 780-113(a)(16), (a)(30), (a)(31), and (a)(32), respectively.

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

On April 4, 2016, at [4:30 p.m.] the Pocono Township

Police Department received a call from dispatch

advising that a complaint of a domestic disturbance

had been received from a residence at 268 Image

Drive in the township. Officer Earl Ackerman

responded to the residence, and Officer Robert Gupko

also responded in a separate vehicle. Upon pulling

into the driveway, Officer Ackerman observed

[appellant] leaving the front door of the residence. He

was carrying an armload of personal belongings,

consisting of mostly of [sic] clothing. He had a

bleeding laceration on the top of his head. Two

vehicles were parked in front of the house, one of

which was [appellant’s] rented red Hyundai Elantra

sedan. Visible in the rear of that vehicle was a pile of

men’s clothing. A plastic bag which appeared to

contain packets of heroin was on top of the clothing.

The report to the police included a statement that a

knife was involved, so the police handcuffed

[appellant] and patted him down to look for a weapon.

During this search, the police found a small bag of

marijuana and $770.00 in cash. The police noticed

the odor of marijuana about his person. When the

police asked [appellant] about the altercation, he “was

very evasive in explaining what had happened. I

believe his excuse was he fell. He just said that he

needed to get out of the residence and needed to get

away.”

Officer Robert Gupko was the first officer on the

scene. He saw [appellant] on the front porch of the

residence. He was the officer who handcuffed

[appellant] and turned him over to Officer Ackerman.

He then spoke to [appellant’s] girlfriend,

Shanace Armstrong-Woods at the door of the

residence. The police did a sweep of the house to

make sure that no one in the house had been the

subject of violence, and to make sure there weren’t

violent actors hiding in the house. The police found

Ms. Armstrong’s mother inside the house in a

wheelchair. She was living in a room close to the front

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door of the residence. Ms. Armstrong-Woods[’]

13[-]year-old son was upstairs. Officer Gupko could

smell marijuana inside the residence. He sought the

consent of Ms. Armstrong-Woods to search the

residence, but that was denied. After [appellant] was

placed under arrest for simple assault and transported

from the scene, Officer Gupko sought a search

warrant to search the house and the vehicles.

The warrant was obtained on the same day. The

police searched the house and the Hyundai Elantra in

front of the house that evening. In the master

bedroom of the house, the police found what they

believed was a small bag of cocaine, marijuana cigar

papers and two small bags of marijuana. In a top

right dresser drawer in the master bedroom the police

found an expired temporary Pennsylvania driver’s

license for [appellant], a Pennsylvania driver’s license

belonging to Ms. Armstrong-Woods, rubber bands,

packets of heroin, and a plastic bag full of smaller

plastic bags; a taped-up magazine cover of a type

typically used to package bricks of heroin. (50 bags.)

The police found no paraphernalia in the house for

ingestion of heroin.

The Commonwealth established that there were two

closets in the bedroom of the house; one contained

women’s clothing and the other was empty. This was

offered to show the jury that [appellant] had removed

his clothing from the bedroom and was in the process

of loading them into the car.

The police also searched the Hyundai Elantra sedan

rented by [appellant]. The vehicle was parked in front

of the garage of 268 Image Drive. Before the police

entered the car, they observed a large amount of

suspected heroin in the back seat on top of a pile of

clothing. It was in a large ziplock bag. The vehicle

was locked, so the police gained entry by popping the

lock. Inside the car they found a pile of men’s clothing

on the back seat under the bag of heroin. The bag of

heroin contained fifteen “bricks” of heroin consisting

of 750 individual glassine packets. (Packets of 50).

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Ms. Armstrong-Woods told Officer Gupko that

[appellant] had rented the vehicle from Hertz.

Jennifer Libus, a forensic scientist in the Pennsylvania

State Police Wyoming Regional Laboratory testified

that she tested the drugs found by the police in

[appellant’s] vehicle and residence. She found the

substances to include marijuana, approximately

1.8 grams; the chunky substance in the plastic bag

contained alpha-PVP, a substituted cathinone, a bath

salt; 10 white glassine packets of heroin stamped

“Dab[”;] 10 white glassine packets of heroin stamped

“Formula 1[”;] 750 white glassine packets of heroin

stamped “420, Ride or Die.” The heroin was

determined to weigh approximately 15 grams.

Officer Christopher Shelly of the Stroud Area Regional

Police Department was called as an expert in the field

of narcotics investigation and drug trafficking. Officer

Shelly reviewed the fact that police found 770 bags of

heroin in [appellant’s] house and car. He testified that

the “street value” of this heroin was $7,000 to $8,000.

“For a mid-level dealer, this is a decent amount of

heroin.” Officer Shelly said this amount of heroin was

for sales, not personal use. He pointed out that

[appellant] had $770 in cash on his person in low

denominations, a sign of involvement in drug

trafficking. The 750 bags of heroin were set up in

bundles, 10 bags, or bricks, 50 bags. The magazine

wrappers found in the drawer with the heroin are

consistent with the manner in which New Jersey

heroin sources package heroin. “They will take a

magazine, they will rip a page out of the magazine,

they will put the brick of heroin in there and they’ll

wrap it up like a present.”

Trial court opinion, 6/22/18 at 1-4 (citations to notes of testimony omitted).

On June 21, 2016, appellant filed an omnibus pretrial motion to

suppress all the physical evidence seized by police in connection with the

execution of the search warrant at the Armstrong-Woods residence. Following

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a hearing, the suppression court denied appellant’s motion on October 27,

2016. The Commonwealth’s subsequent motion to consolidate Nos. CP-45-

CR-0000115-2016 and CP-45-CR-0000876-2016 was denied by the trial court

on November 15, 2016. On November 14, 2017, appellant proceeded to a

jury trial and was found guilty of PWID, possession of a controlled substance,

possession of a small amount of marijuana, and three counts of possession of

drug paraphernalia. On January 2, 2018, appellant proceeded to a sentencing

hearing for both Nos. CP-45-CR-0000115-2016 and CP-45-CR-0000876-

2016. (See notes of testimony, 1/2/18 at 27-33.) That same day, the trial

court entered a separate sentencing order at No. CP-45-CR-0000876-2016,

sentencing appellant to five to ten years’ imprisonment and a $30,000 fine.

(Sentencing order “No. 876 Criminal 2016,” 1/2/18.) Appellant filed timely,

joint post-sentence motions for reconsideration of sentence and a new trial

based on the weight of the evidence, which were denied by the trial court.

Thereafter, appellant filed separate, timely notices of appeal at each docket

number, listing both docket numbers on each.3

3 The record reflects that on July 30, 2018, appellant complied with the trial

court’s order and filed a timely concise statement of errors complained of on

appeal, in accordance with Pa.R.A.P. 1925(b), for each corresponding docket

number. On August 17, 2018, the Honorable Arthur L. Zulick filed a

Rule 1925(a) opinion, addressing appellant’s claims relating to the trial and

post-sentence proceedings, and relying, in part, on his June 22, 2018 opinion

that denied appellant’s post-sentence motions. Subsequently, on August 21,

2018, the Honorable Jonathan Mark filed a supplemental Rule 1925(a)

opinion, indicating that he was relying on the reasoning set forth in his prior

October 27, 2016 order denying appellant’s suppression motion.

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Prior to consideration of the merits of this appeal, we must first address

whether appellant’s notice of appeal complied with the requirements set forth

in the Pennsylvania Rules of Appellate Procedure and Commonwealth v.

Walker, 185 A.3d 969 (Pa. 2018). In Walker, our supreme court provided

a bright-line mandate requiring that “where a single order resolves issues

arising on more than one docket, separate notices of appeal must be filed for

each case,” or the appeal will be quashed. Id. at 971, 976-977. The Walker

court applied its holding prospectively to any notices of appeal filed after

June 1, 2018. In the instant case, the record demonstrates that appellant

filed separate notices of appeal at each docket number on July 5, 2018;

however, the notices of appeal referenced both docket numbers in their

respective captions. A recent en banc panel of this court held that such a

practice does not invalidate appellant’s separate notices of appeal.

Commonwealth v. Johnson, A.3d , 2020 WL 3869723 (Pa.Super.

July 9, 2020) (en banc). Moreover, we note that this case does not involve

an appeal of a single order resolving issues arising on both docket numbers.

On the contrary, the trial court entered separate sentencing orders at each

docket number in this matter, and therefore, Walker is not implicated.

Accordingly, we shall consider the merits of appellant’s appeal.

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Appellant raises the following issues4 for our review:

[I.] Whether the suppression court should have

granted [a]ppellant’s motion to suppress

because the warrant was not supported by

probable cause and not sufficiently tied to the

targeted areas?

[II.] Whether the trial court improperly allowed

Officer Christopher Gupko to render expert

opinions on drug trafficking when he was not

admitted as an expert?

[III.] Whether the trial court improperly allowed

Officer Christopher Shelly to render opinions on

who possessed narcotics, when his testimony

was limited to that as an expert on drug

trafficking?

[IV.] Whether there was insufficient evidence to

convict [a]ppellant of any of the charges,

particularly considering that (1) this case arose

out of a domestic violence report between

[a]ppellant and his ex-girlfriend,

(2) [a]ppellant’s ex-girlfriend had equal access

and control of the drugs, (3) the ex-girlfriend

vehemently refused consent to search the

home; and that (4) incriminating statements

about [a]ppellant’s access to the drugs were

provided by the ex-girlfriend?

[V.] Whether the trial court should have granted

[a]ppellant’s motion for a new trial based upon

after-discovered evidence, where it was

discovered after sentencing that [a]ppellant’s

ex-girlfriend was dealing in large amounts of

heroin from the residence, particularly

considering (1) [a]ppellant could not have

4 We note that appellant filed a single brief for Nos. CP-45-CR-0000876-2016

and CP-45-CR-0000115-2016. As noted, this memorandum will address only

those issues appellant raises with respect to No. CP-45-CR-0000876-2016.

Any issues appellant raises with respect to No. CP-45-CR-0000115-2016 will

be addressed at Superior Court Docket No. 2032 EDA 2018.

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known that his ex-girlfriend was being

investigate [sic] for heroin dealing by police

from the very first moment of [a]ppellant’s

arrest and incarceration in this case, and

(2) that [a]ppellant could not have known his

ex-girlfriend would be charged for heroin

dealing in large amounts, from the residence in

which [a]ppellant was alleged to have dealt

heroin, nine (9) days after [a]ppellant’s

sentencing in this case?

Appellant’s brief at 6-8 (citations to notes of testimony, extraneous

capitalization, and footnote omitted).5

I. Motion to Suppress

Appellant’s claim with regard to the denial of his suppression motion is

two-fold. Appellant first argues the suppression court erred in denying his

suppression motion “because the warrant was not supported by probable

cause and not sufficiently tied to the targeted areas[.]” (Id. at 6, 33.)

Our standard of review when addressing a challenge to a trial court’s

denial of a suppression motion is well settled.

[An appellate court’s] standard of review in

addressing a challenge to the denial of a suppression

motion is limited to determining 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

5 For the ease of our discussion, we have renumbered appellant’s issues.

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suppression court’s factual findings are supported by

the record, [the appellate court is] bound by [those]

findings and may reverse only if the court’s legal

conclusions are erroneous.

Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation

omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).

Article I, Section 8 of the Pennsylvania Constitution and the Fourth

Amendment to the United States Constitution mandate that search warrants

must be supported by probable cause. Commonwealth v. Johnson, 42 A.3d

1017, 1031-1032 (Pa. 2012), cert. denied, 569 U.S. 922 (2013).

[T]he question of whether probable cause exists for

the issuance of a search warrant must be answered

according to the totality of the circumstances test

articulated in Commonwealth v. Gray, [] 503 A.2d

921 (Pa. 1985), and its Pennsylvania progeny, which

incorporates the reasoning of the United States

Supreme Court in Illinois v. Gates, 462 U.S. 213,

103 S.Ct. 2317 [] (1983). The task of the magistrate

acting as the issuing authority is to make a practical,

common sense assessment of whether, given all the

circumstances set forth in the affidavit, a fair

probability exists that contraband or evidence of a

crime will be found in a particular place. A search

warrant is defective if the issuing authority has not

been supplied with the necessary information. The

chronology established by the affidavit of probable

cause must be evaluated according to a common

sense determination.

Commonwealth v. Arthur, 62 A.3d 424, 432 (Pa.Super. 2013) (some

citations and internal quotation marks omitted), appeal denied, 78 A.3d

1089 (Pa. 2013). “We must limit our inquiry to the information within the four

corners of the affidavit submitted in support of probable cause when

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determining whether the warrant was issued upon probable cause.”

Commonwealth v. Burgos, 64 A.3d 641, 656 (Pa.Super. 2013) (citation

omitted), appeal denied, 77 A.3d 635 (Pa. 2013).

Upon review, we find that the record supports the suppression court’s

determination that the affidavit of probable cause upon which the search

warrant was based set forth sufficient information within its four corners to

justify the issuance of a search warrant. The affidavit of probable cause

consisted of 12, single-spaced paragraphs detailing Officer Gupko’s extensive

training in narcotics investigation and his April 4, 2016 response to a domestic

disturbance at the residence shared by appellant and Armstrong-Woods. (See

“Application for Search Warrant – Affidavit of Probable Cause,” 4/4/16 at 2-3.)

The affidavit indicates that upon arriving at the residence, Officers Gupko and

Ackerman encountered appellant with an armload of clothing attempting to

move items to his vehicle. (Id. at 3, ¶ 6.) The affidavit further indicates that

after speaking with appellant, the officers detected a “strong odor of

marijuana” emanating from appellant’s person. (Id.) The affidavit also

indicates that Officer Gupko spoke with Armstrong-Woods, who informed him

that she and appellant had argued over their finances, which culminated with

appellant’s grabbing a knife and demanding her keys. (Id. at ¶ 7.) Based on

these observations, the officers placed appellant under arrest and conducted

a frisk of his person, which yielded a small plastic bag containing 2.4 grams

of marijuana. (Id.) The affidavit also indicates that while speaking with

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Armstrong-Woods, both officers detected a strong odor of raw marijuana

coming from inside the residence. (Id. at ¶ 8.) When questioned about this

observation, Armstrong-Woods stated that appellant had smoked marijuana

inside the residence earlier in the day, which appellant later confirmed at the

police station. (Id. at ¶¶ 8-9.) The affidavit also indicates that two vehicles

were parked in the driveway of the residence at this time, one of which was a

rental vehicle. (Id. at ¶ 10.) Additionally, the affidavit indicates that the

officers were aware of appellant’s extensive criminal history, which included

no less than ten drug-related arrests since 2002. (Id. at ¶ 11.)

Based on the foregoing, we find that the record supports the suppression

court’s conclusion that “[t]hese circumstances . . . establish a fair probability

that contraband or evidence of a crime would be discovered in the residence

and vehicles located on the property.” (Suppression court order, 10/27/16

at 2.) Accordingly, appellant’s contention that the warrant was not supported

by probable cause nor sufficiently tied to the targeted areas must fail.

Appellant next argues that there is an insufficient nexus between the

affidavit of probable cause and the areas searched, including his rental vehicle.

(Appellant’s brief at 20, 35-41.) In support of this contention, appellant relies

on United States v. Brown, 828 F.3d 375 (6th Cir. 2016), and

Commonwealth v. Flaherty, 583 A.2d 1175 (Pa.Super. 1990).

Pennsylvania Rules of Criminal Procedure 205 and 206 mandate that an

application for a search warrant and accompanying affidavit of probable cause

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must contain, inter alia, the “name or describe with particularity the person

or place to be searched[.]” Pa.R.Crim.P. 205(3); Pa.R.Crim.P. 206.

Contrary to appellant’s contention, our review indicates that the April 4,

2016 application for the search warrant sets forth a description of the premises

to be searched with the requisite specificity:

268 Image Dr. 268 is in a red multi[-]unit town

house. Apartment 268 is on the left side if you are

facing the residence from the street. The residence is

a multi level unit with a main floor and basement area,

on the outside of the residence is red texture 111

siding on a concrete block foundation. The number

268 is marked on the outside entry door. There are

two vehicles in the residence a 2006 Maroon Chevrolet

Trailblazer bearing PA registration JPC6623 registered

to Samoy COX [(the sister of appellant’s girlfriend)]

and a West Virginia registration 6YU367 registered to

PV holdings corporation in Charleston[,] South

Carolina [(appellant’s rental vehicle)].

Application for search warrant, 4/4/16 at 1, 5.

Moreover, we find that appellant’s reliance on Brown and Flaherty is

misplaced. Brown involved a situation where police sought a search warrant

for the defendant’s home after they recovered drugs from a car that was

parked at a codefendant’s house but was registered to the defendant’s home

address. Brown, 828 F.3d at 379-380. The affidavit also stated that the

defendant had a criminal history involving drug offenses. Id. at 380. The

Sixth Circuit Court of Appeals rejected the Commonwealth’s argument that

these facts were sufficient to establish probable cause to search the

defendant’s residence, noting that, “whether an affidavit establishes a proper

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nexus is a fact-intensive question resolved by examining the totality of the

circumstances presented.” Id. at 382. The Brown court held that “if the

affidavit fails to include facts that directly connect the residence with the

suspected drug dealing activity, . . . it cannot be inferred that drugs will be

found in the defendant’s home—even if the defendant is a known drug dealer.”

Id. at 384.

Brown is factually distinguishable from the instant matter. Unlike

Brown, the affidavit in this case did not fail to “draw some plausible

connection to the residence” or his vehicle. See id., 828 F.3d 385. Appellant’s

vehicle was parked in the driveway directly outside of the residence and not

at the home of an unrelated, third party. (“Application for Search Warrant –

Affidavit of Probable Cause,” 4/4/16 at 3, ¶ 10.) Moreover, the arresting

officers’ knowledge of appellant’s extensive criminal history in drug trafficking

was but one factor set forth in the affidavit of probable cause in support of the

search warrant. (See id. at ¶ 11.)

Similarly, Flaherty is distinguishable. Flaherty involved an informant

who told police that the defendant will “deliver pills to special customers using

his car” that he had just purchased with profits from his drug dealing.

Flaherty, 583 A.2d at 1176. Based on these allegations, the police obtained

and executed a warrant while defendant was washing his car. Id. at 1177.

The Flaherty court affirmed the trial court’s order suppressing evidence of

drugs seized from the defendant’s automobile. Id. at 1176. In reaching this

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decision, the Flaherty court held that there was no probable cause to believe

that there were drugs in the car at the time the warrant was issued, as the

informant did not indicate that he had ever seen drugs in the car and only

implicated the defendant in future conduct. Id. at 1178-1179.

Unlike in Flaherty, the warrant in this case was not executed without

independent corroboration that any illegal drug activity was occurring on the

premises. See id., 583 A.2d at 1178-1179. As noted, upon arriving at the

scene, Officers Gupko and Ackerman detected a “strong odor of marijuana”

emanating from both appellant’s person and the residence itself. (“Application

for Search Warrant – Affidavit of Probable Cause,” 4/4/16 at 3, ¶ 8.)

Additionally, appellant was observed moving an armload of personal

belongings from the residence to his vehicle. (Id. at ¶ 6.)

Based on the foregoing, appellant’s contention that the evidence seized

by police should have been suppressed pursuant to Brown and Flaherty must

fail.

II. Officer Gupko’s Testimony

Appellant next argues that the trial court abused its discretion in

permitting Officer Gupko to render an expert opinion on drug trafficking when

he was not admitted as an expert. (Appellant’s brief at 41.) The record belies

this claim.

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“[T]he admission of evidence is within the sound discretion of the trial

court and will be reversed only upon a showing that the trial court clearly

abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106

(Pa.Super. 2012) (citation omitted), appeal denied, 76 A.3d 538 (Pa. 2013).

“An abuse of discretion is not merely an error of judgment; rather discretion

is abused when the law is overridden or misapplied, or the judgment exercised

is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will,

as shown by the evidence or the record.” Commonwealth v. Antidormi, 84

A.3d 736, 745 (Pa.Super. 2014) (citation omitted), appeal denied, 95 A.3d

275 (Pa. 2014).

Pennsylvania Rule of Evidence 701 governs the admission of opinion

testimony by lay witnesses and provides as follows:

If a witness is not testifying as an expert, testimony

in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s

perception;

(b) helpful to clearly understanding the

witness’s testimony or to determining a

fact in issue; and

(c) not based on scientific, technical, or other

specialized knowledge within the scope of

Rule 702.

Pa.R.E. 701(a)-(c).

Rule 702, in turn, governs the admission of expert witness testimony

and provides as follows:

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A witness who is qualified as an expert by knowledge,

skill, experience, training, or education may testify in

the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other

specialized knowledge is beyond that

possessed by the average layperson;

(b) the expert’s scientific, technical, or other

specialized knowledge will help the trier of

fact to understand the evidence or to

determine a fact in issue; and

(c) the expert’s methodology is generally

accepted in the relevant field.

Pa.R.E. 702(a)-(c).

We have explained that,

[a] witness can qualify as both a fact and expert

witness and an expert may base an opinion on fact or

data in the case that the expert has personally

observed. . . . [a] law-enforcement officer’s testimony

is a lay opinion if it is limited to what he observed ...

or to other facts derived exclusively from [a]

particular investigation. On the other hand, an officer

testifies as an expert when he brings the wealth of his

experience as [an] officer to bear on those

observations and ma[kes] connections for the jury

based on that specialized knowledge.

Commonwealth v. Huggins, 68 A.3d 962, 969 (Pa.Super. 2013) (citations

and internal quotation marks omitted; brackets in original), appeal denied,

80 A.3d 775 (Pa. 2013).

Here, Officer Gupko testified at great length with regards to his training

and experience in narcotics investigations, his response to the scene on

April 4, 2016, and his subsequent execution of a search warrant at appellant’s

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residence. At trial, Officer Gupko was questioned about the significance of the

cash found on appellant’s person following his arrest, and opined, over

appellant’s objection, as follows:

Q. So the large denominations -- did the large

denominations of money or a large sum of

money have significance to you as a whole in

this scenario?

A. Yeah, it would.

Q. And what would that significance be?

A. That would -- drug dealers, when we deal

with them, they carry a lot of money with

them, whether it’s from dealing all day or

if they go [to] what we call “re-up,” which

is [to] go to wherever they go to get more

drugs. They would have a bunch of money

with them. Most of the time they have a

large sum of cash with them.

....

Q. Did that quantity of the denominations of money

-- does that have significance to you to the

quantity of heroin that was found in the vehicle?

A. The particular amount of money versus

what was found in the vehicle -- what was

found in the vehicle would be worth way

more than what was found on [appellant].

The street value of the exact -- I guess you

would have to break it down into if it was

sold in individual packets or all together.

But the actual value of what was recovered

versus what he had in his pocket or any

correlation between it -- the best answer I

can give you is that drug dealers carry a lot

of money, and that’s just part of the game.

Notes of testimony, 11/14/17 at 106-107 (emphasis added).

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Upon review, we discern no abuse of discretion on the part of the trial

court in permitting this testimony to be admitted into evidence. The record

indicates that Officer Gupko was present at the scene when Officer Ackerman

searched appellant incident to his arrest and found $770 in cash on his person.

(See notes of testimony, 11/14/17 at 105.) Officer Gupko’s testimony was

clearly based upon his investigation of the crime scene and his nine years’

experience as part of the Monroe County Drug Task Force. (See notes of

testimony, 11/14/17 at 45-55.) Contrary to appellant’s contention, this is not

the type of “scientific, technical, or other specialized knowledge within the

scope of Rule 702.” Pa.R.E. 701(c). As the trial court properly recognized,

the fact that “drug dealers often are found with large sums of cash . . . is not

a novel concept, and the jurors knew exactly how much cash [appellant] had

and the circumstances at the time of his arrest[.]” (Trial court Rule 1925(a)

opinion, 8/17/18 at 4-5.) Accordingly, appellant’s evidentiary challenge must

fail.

III. Scope of Officer Shelly’s Expert Testimony

Appellant next contends that the trial court abused its discretion in

allowing Officer Shelly to improperly “render an opinion on who possessed

narcotics[,]” when his testimony was limited to that as an expert on drug

trafficking. (Appellant’s brief at 42.) We disagree.

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“[T]he rules [of evidence] governing expert and lay testimony do not

preclude a single witness from testifying, or offering opinions, in the capacity

as both a lay and an expert witness on matters that may embrace the ultimate

issues to be decided by the fact-finder.” Commonwealth v. Yocolano, 169

A.3d 47, 62 (Pa.Super. 2017) (citation omitted). Rule 704 states that “[a]n

opinion is not objectionable just because it embraces an ultimate issue[]” to

be decided by the trier of fact. Pa.R.E. 704. Moreover, we recognize that

the witness’[s] association to the evidence controls

the scope of admissible evidence that he or she may

offer. . . . [S]hould a single witness testify in dual

capacities, the trial court must instruct the jurors

regarding lay versus expert testimony and [tell] them

that they [are] solely responsible for making

credibility determinations.

Yocolano, 169 A.3d at 62, quoting Huggins, 68 A.3d at 967, 973 (internal

quotation marks omitted).

At trial, Officer Shelly was qualified as an expert in the field of narcotics

investigation and drug trafficking and testified at length with regard to how

“bricks” of heroin are packaged by various dealers in Monroe County. (Notes

of testimony, 11/14/17 at 142-150.) Officer Shelly was also asked to render

his expert opinion based upon the testimony he heard from Officer Ackerman

and Officer Gupko and his observation of the evidence seized in this case. (Id.

at 151.) In doing so, Officer Shelly opined that both the quantity and

particular packaging of the “bricks” of heroin that were found in appellant’s

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dresser drawer and rental vehicle indicated that he was buying the bricks of

heroin for resale:

A. There is [sic] 770 bags of heroin. Twenty of the

bags were located in [appellant’s] residence.

The other 750 bags were located in a rental car

under his name. That is a substantial amount

of heroin.

....

There’s no way, in my opinion, that any type of

this amount of heroin could ever be used for

personal use. . . .

....

Q. As it relates to the packaging of the narcotics in

this case, can you tell the jury why that is

significant to you as it relates to trafficking[?]

A. Sure. Once again, he has this packaged -- so

the 750 individual bags of heroin -- we talk

about packaging. When you have several little

packets, it’s already broken up for sale. In this

case, 770 bags of heroin is [sic] broken up

individually for sale or to sell by bundle, which

is 10 bags, or to sell by brick, which is 50 bags.

And that’s the way his packaging was set up.

Q. In reviewing all of the evidence displayed here,

were you able to draw any other conclusions as

it relates to the heroin obtained in this case?

A. Yes. One thing I didn’t touch on -- and I’m sorry

-- it’s actually not in this photo, but the brick

wrappers that were located also in the drawer

with the heroin. Again, New Jersey packages of

heroin -- I don’t know why they package it this

way, but they do. It’s been that way for my last

15 years.

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They will take a magazine, they will rip a page

out of the magazine, they will put the brick of

heroin in there and they’ll wrap it up like a

present. They will put that -- whether it’s

20 bricks, 30 bricks, 40 bricks, or whatever it’s

going to be, and they will use tape and they’ll

tape the heroin. It’s usually in pornographic

magazines. I’m not sure why. It’s just usually

the way it comes. I’ve also seen it with lottery

tickets.

But that was located in the drawer with

[appellant’s] ID, as well with the heroin, which

is showing he’s buying bricks of heroin at a time.

Id. at 151-154.

Appellant’s counsel objected to Officer Shelly’s “conclusions about who

possessed or sold the drugs” as beyond the scope of his expertise, and the

trial court overruled his objection, indicating that appellant’s counsel could

address this point on cross-examination. (Id. at 154-155.) The record

reflects that appellant’s counsel did not question Officer Shelley at length on

this point during cross-examination. (See id. at 156-158.)

Upon review, we discern no abuse of the trial court’s discretion in

allowing this testimony to be admitted into evidence. Officer Shelly’s

testimony was properly admitted pursuant to Yocolano and Rule 704.

Officer Shelly utilized evidence discovered during the course of the

investigation to render his expert opinion on the quantity and packaging of

the heroin found during the investigation. Although Officer Shelly did not

personally observe appellant purchase the 20 bricks of heroin found in his

bedroom, Officer Shelly’s inference from the heroin’s packaging that it had

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been purchased for resale by appellant “embrace[d] the ultimate issue[] to be

decided by the fact-finder.” See Yocolano, 169 A.3d at 62. Moreover, the

record reflects that the trial court properly instructed the jury pursuant to

Yocolano on the differences between lay and expert testimony and how to

evaluate each. (See notes of testimony, 11/14/17 at 188-191.) Accordingly,

appellant’s claim of trial court error must fail.

IV. Sufficiency of the Evidence

Appellant next argues that there was insufficient evidence to sustain his

convictions for possession of a controlled substance and PWID. (Appellant’s

brief at 43.)

In reviewing the sufficiency of the evidence, we must

determine whether the evidence admitted at trial and

all reasonable inferences drawn therefrom, viewed in

the light most favorable to the Commonwealth as

verdict winner, is sufficient to prove every element of

the offense beyond a reasonable doubt. As an

appellate court, we may not re-weigh the evidence

and substitute our judgment for that of the fact-

finder. Any question of doubt is for 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. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009) (citations

omitted), appeal denied, 4 A.3d 1054 (Pa. 2010).

To sustain a conviction for the crime of possession of a controlled

substance, the Commonwealth must prove that appellant “knowingly or

intentionally possess[ed] a controlled or counterfeit substance” without being

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properly registered to do so under the act. 35 P.S. § 780-113(a)(16). The

crime of PWID requires the Commonwealth to prove an additional element:

that appellant possessed the controlled substance with the intent to

manufacture, distribute, or deliver it. 35 P.S. § 780-113(a)(30).

Here, the crux of appellant’s claim is that the Commonwealth failed to

prove that “[he] was the individual in possession or control of the narcotics”

found in his vehicle and the bedroom he shared with his girlfriend.

(Appellant’s brief at 43-45.) In situations where it cannot be proven that a

suspect had the narcotics on his person, the Commonwealth is required to

prove constructive possession. See Commonwealth v. Hopkins, 67 A.3d

817, 820 (Pa.Super. 2013), appeal denied, 78 A.3d 1090 (Pa. 2013).

Constructive possession is a legal fiction, a pragmatic

construct to deal with the realities of criminal law

enforcement. 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.

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super. 2012) (citations

and internal quotation marks omitted), appeal denied, 63 A.3d 1243 (Pa.

2013). As with any other element of a crime, the Commonwealth may sustain

its burden of proving constructive possession by means of wholly

circumstantial evidence. Hopkins, 67 A.3d at 820.

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Courts in this Commonwealth have long recognized that two persons

may constructively possess narcotics at the same time. Commonwealth v.

Katona, 191 A.3d 8, 12 (Pa.Super. 2018), appeal granted, 200 A.3d 8 (Pa.

2019); see also Commonwealth v. Johnson, 26 A.3d 1078, 1094 (Pa.

2011) (“constructive possession may be found in one or more actors where

the item [at] issue is in an area of joint control and equal access.” (citation

and internal quotation marks omitted)). A marital relationship between the

parties is not necessary. See Commonwealth v. Jackson, 659 A.2d 549,

550 (Pa. 1995), citing Commonwealth v. Mudrick, 507 A.2d 1212, 1213-

1214 (Pa. 1986).

Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, we conclude that there was sufficient evidence to

establish that appellant constructively possessed the narcotics found in his

vehicle and the bedroom he shared with Armstrong-Woods. The record

establishes that police found the following items in a dresser located in the

master bedroom of Armstrong-Woods’ residence: appellant’s expired

temporary Pennsylvania driver’s license; a Pennsylvania driver’s license

belonging to Armstrong-Woods; rubber bands; packets of heroin; a plastic

bag full of smaller plastic bags; and a taped-up magazine cover similar to

those typically used to package bricks of heroin. (Notes of testimony,

11/14/17 at 62.) The record further establishes that police also found a small

bag of what they believed to be cocaine, marijuana cigar papers, and two

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small bags of marijuana in the master bedroom. (Id. at 58-59.) Additionally,

no paraphernalia for the ingestion of heroin was found in the residence. (Id.

at 71.)

The Commonwealth presented evidence at trial to establish that there

were two closets in the residence’s master bedroom, one that contained

women’s clothing and the other of which was empty. (Id. at 83.) Additionally,

Officer Ackerman testified that when he arrived on the scene, he observed

appellant exiting the residence and walking towards his vehicle with an armful

of personal belongings and clothing. (Id. at 29, 33.) Officer Ackerman opined

that appellant was trying to leave in said vehicle, and Armstrong-Woods later

informed the officers that appellant had rented this vehicle from Hertz. (Id.

at 33, 76.) A subsequent search of this vehicle yielded a large ziplock bag

sitting in plain view on top of a pile of men’s clothing in the back seat, which

contained 15 “bricks” of heroin consisting of 750 individual glassine packets.

(Id. at 72-73.)

Based on the foregoing, we find that the Commonwealth presented

sufficient evidence for the jury to conclude that appellant possessed “the

power to control the [narcotics] and the intent to exercise that control.” See

Brown, 48 A.3d at 430. Accordingly, appellant’s sufficiency claim must fail.

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V. After-Discovered Evidence

In his final issue, appellant contends that the trial court should have

granted his motion for a new trial based upon after-discovered evidence “that

[Armstrong-Woods] was dealing in large amounts of heroin from the

residence” with another individual. (Appellant’s brief at 8, 45-50.)

After-discovered evidence is the basis for a new trial

when it: 1) has been discovered after the trial and

could not have been obtained at or prior to the

conclusion of trial by the exercise of reasonable

diligence; 2) is not merely corroborative or

cumulative; 3) will not be used solely for impeaching

the credibility of a witness; and 4) is of such nature

and character that a new verdict will likely result if a

new trial is granted. Further, the proposed new

evidence must be producible and admissible.

Commonwealth v. Chamberlain, 30 A.3d 381, 414 (Pa. 2011) (citations

and internal quotation marks omitted), cert. denied, 566 U.S. 986 (2012).

Here, the trial court authored a comprehensive and well-reasoned

opinion that thoroughly addresses and disposes of appellant’s after-discovered

evidence claim. Specifically, we agree with the trial court that appellant failed

to present any evidence that “[Armstrong-Woods] was involved with

drug-dealing with another person besides [appellant] at the time of [his]

arrest.” (Trial court opinion, 6/22/18 at 9-10.) Additionally, we agree that

“evidence of [Armstrong-Woods’] actions in January 2018 would not be

relevant in a trial of [appellant] for his actions on April 4, 2016.” (Id. at 10.)

Accordingly, we adopt the pertinent portions of the trial court’s well-reasoned

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June 22, 2018 opinion as our own for purposes of this appellate review. (See

id. at 8-10.)6

For all the foregoing reasons, we affirm the trial court’s January 2, 2018

judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/9/20

6 The trial court’s opinion also addresses appellant’s sufficiency of the evidence

claim, which we addressed in detail at Subsection IV, infra.

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