The opinion
J-A14034-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KASHIF ROBERTSON :
:
Appellant : No. 1161 MDA 2021
Appeal from the Judgment of Sentence Entered August 25, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0002292-2019
BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: AUGUST 16, 2022
Kashif Robertson appeals from the August 25, 2021 modified, aggregate
judgment of sentence of 2½ to 5 years’ imprisonment, followed by 5 years’
probation, imposed after a jury found him guilty of two counts each of
possession with intent to distribute a controlled substance (“PWID”) and
possession of a controlled substance, and one count of possession of drug
paraphernalia.1 After careful review, we affirm the judgment of sentence.
The suppression court summarized the factual background of this case
as follows:
[O]n February 2, 2019, [Appellant] was pulled over
for a traffic stop by Officer Chad McGowan of the
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32), respectively.
J-A14034-22
Harrisburg Police Department for illegal window tint.
During the traffic stop, Officer McGowan asked
[Appellant] if he was active with probation or parole.
[Appellant] responded in the negative. When Officer
McGowan returned to his vehicle, he informed Adult
Probation Officers [(hereinafter “PO”)] [Daniel]
Kinsinger and [Bruce] Cutter that [Appellant]
indicated that he was not active with probation or
parole. [POs] Kinsinger and Cutter knew [Appellant]
to be on probation. Officer McGowan returned to
[Appellant’s] vehicle, returned his documents, and
told [Appellant] that he was free to leave.
Before [Appellant] left, [POs] Kinsinger and Cutter
approached the vehicle to make contact with
[Appellant]. [PO] Cutter opened [Appellant’s] door
and asked him to step out of the vehicle after
informing [Appellant] that he was in violation of his
conditions of probation. Once out of the vehicle, [POs]
Kinsinger and Cutter performed a search of
[Appellant]’s vehicle. Inside, they found a purple
Crown Royal bag containing cash totaling $8,000 and
an empty cigarette container in the center console
area that contained loose marijuana.
A search of the [Appellant] showed that he was
carrying cash totaling $4,598.00 in both his pants
pocket and his wallet. The [POs] then took
[Appellant] to the front of Officer McGowan’s vehicle.
At this time, Officer McGowan smelled an odor of
marijuana coming from [Appellant’s] person. [PO]
Kinsinger conducted a second search of [Appellant’s]
person and felt a hard lump in [Appellant’s] groin
area. At this time, [Appellant] was detained and
placed in handcuffs. As handcuffs were being placed
on [Appellant], [Appellant] attempted to break free
and run. The officers were able to detain [Appellant].
After [Appellant] was secured, [PO] Kinsinger found
six baggies of cocaine and one baggie of marijuana in
[Appellant’s] groin area.
Suppression court opinion, 2/10/21 at 1-2.
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The trial court summarized the relevant testimony presented at trial as
follows:
Amber Gegg (hereinafter, Ms. Gegg) of the
Pennsylvania State Police Harrisburg Regional
Laboratory offered expert testimony as a drug
analyst. Ms. Gegg analyzed the narcotics that were
sent to her regarding Appellant. Through testing, Ms.
Gegg was able to identify the white substances found
in the plastic baggies as cocaine and marijuana. The
powder and crack cocaine weighed approximately 26
grams.
Detective John Goshert (hereinafter, “Detective
Goshert”) of the Dauphin County Criminal
Investigation Division offered expert testimony as an
expert in the field of street level drug trafficking.
Detective Goshert testified about the difference
between powder cocaine and crack cocaine. Detective
Goshert testified that crack cocaine is cocaine base.
Crack cocaine, or cocaine base, is a smokable form of
cocaine that holds its shape. Powder cocaine is
cocaine that is in a powder form that is either
dissolved by a heat source in water in order to be
injected or smoked or snorted in its powder. One can
differentiate between crack cocaine and powder
cocaine by looking at the physical consistency of it.
Detective Goshert testified that the Pennsylvania
State Police Laboratory does not differentiate between
crack cocaine and powder cocaine on their reports.
Detective Goshert further testified that Appellant did
not have any taxable income from the date Appellant
was pulled over by Officer McGowan and prior.
Appellant testified that he was in the process of
returning drugs that he picked up that day from a
dealer when he was pulled over by Officer McGowan.
Appellant stated that he tested the drugs and he was
not satisfied with the quality. He further testified that
he had a large amount of cash in his vehicle because
he worked as a barber and the money was to pay
taxes.
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Trial court opinion, 11/1/21 at 3-4 (citations to notes of testimony omitted).
On August 1, 2019, Appellant filed an omnibus pretrial suppression
motion challenging the legality of the traffic stop; the scope and duration of
the traffic stop; the actions of the probation officers at the scene of the arrest;
and the legality of the initial pat-down of his person. Appellant filed a
supplemental motion on October 29, 2019. Following a hearing, the
suppression court denied Appellant’s suppression motion on August 11, 2020.
On October 7, 2020, Appellant filed a “Petition for Disqualification (Recusal)
of Judge [Deborah E. Curcillo],” which was ultimately denied on October 15,
2020.
Thereafter, on March 10, 2021, Appellant proceeded to a jury trial and
was found guilty of two counts each of PWID and possession of a controlled
substance and one count of possession of drug paraphernalia. On May 26,
2021, the trial court sentenced Appellant to an aggregate term of 4 to 8 years’
imprisonment, followed by 5 years’ probation. On June 7, 2021, Appellant
filed a post-sentence motion to modify his sentence. Following a hearing on
August 25, 2021, the trial court modified Appellant’s judgment of sentence
and resentenced him to 2½ to 5 years’ imprisonment, followed by 5 years’
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probation. This timely appeal followed on September 2, 2021.2 Appellant and
the trial court have complied with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Did the [suppression] court err when it found
reasonable suspicion existed to stop
[Appellant’s] vehicle for a suspected window tint
violation, where the seizing officer failed to point
to “specific and articulable facts” which led him
to suspect criminal activity was afoot for a
violation of the inspection manual?
2. Did the [suppression] court err when it denied
[Appellant’s] OPTM for the Commonwealth’s
failure to establish a reasonable suspicion for
Dauphin County Adult Probation to seize him
after Harrisburg City Police advised him that he
was free to leave without an oral or written
warning?
3. Did the [suppression] court err when it denied
[Appellant’s] OPTM by finding that the duration
of the traffic stop was proper as the focus of the
stop was the suspected window tint violation,
and any inquiry as to [Appellant’s] status on
supervision or conversations with probation and
parole following the officer’s initial encounter as
well as the duration of the search unnecessarily
prolonged the traffic stop?
4. Did the [suppression] court err when it denied
[Appellant’s] OPTM for suppression of the
evidence when it found that probation and
parole did not act like “stalking horses” for the
police by circumventing the warrant
____________________________________________
2We note that although Appellant purports to appeal from the March 10, 2021
guilty verdict, “[i]n a criminal action, appeal properly lies from the judgment
of sentence made final by the denial of post-sentence motions.” See
Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa.Super. 2001)
(en banc), appeal denied, 800 A.2d 932 (Pa. 2002).
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requirement based on reasonable suspicion,
instead of the heightened standard of probable
cause, as the search was nothing more than a
ruse for a police investigation[?]
5. Did the [suppression] court err when it denied
[Appellant’s] OPTM when it found that probation
and parole did not exceed the scope of Terry
when the protective search of [Appellant] went
beyond what was necessary to determine if he
was armed[?]
6. Did the [suppression] court err when it denied
[Appellant’s] OPTM when it found that the
second search of [Appellant] by probation
shaking out his pants did not exceed the scope
of Terry or the plain feel doctrine[?]
7. Did the trial court err when it did not recuse
itself from this matter due to the appearance of
impartiality, bias, prejudice or ill will, where the
court denied [Appellant’s] right to a full
suppression hearing and continuously allowed
the Commonwealth to make untimely filings
pertaining to the suppression matter and wholly
adopted the Commonwealth’s findings of fact
and legal conclusions[?]
8. Did the Commonwealth present sufficient
evidence that [Appellant] possessed a
controlled substance, specifically crack cocaine,
and that he did so with the intent to deliver it
when the only scientific proof presented from
the laboratory was a report that identified the
substance as cocaine, not cocaine base[?]
9. Did the trial court abuse its discretion in denying
counsel’s post-sentence motion where the guilty
verdict for Count 2 — [PWID] (crack cocaine)
was against the weight of the evidence as the
Commonwealth failed to present scientific
evidence in the form of a laboratory report that
confirmed that the substance that was tested
was cocaine base[?]
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Appellant’s brief at 1-2.
I. Suppression Motion
Appellant’s first six claims relate to the denial of his suppression motion.
Our standard of review in addressing a challenge to a denial of a suppression
motion is well settled.
[Our] 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
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).
“Both the Fourth Amendment of the United States Constitution and
Article 1, Section 8 of the Pennsylvania Constitution guarantee an individual’s
freedom from unreasonable searches and seizures.” Commonwealth v.
Bostick, 958 A.2d 543, 550 (Pa.Super. 2008) (citation and internal quotation
marks omitted), appeal denied, 987 A.2d 158 (Pa. 2009). “To secure the
right of citizens to be free from such intrusions, courts in Pennsylvania require
law enforcement officers to demonstrate ascending levels of suspicion to
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justify their interactions with citizens to the extent those interactions
compromise individual liberty.” Commonwealth v. Reppert, 814 A.2d 1196,
1201 (Pa.Super. 2002) (citation omitted).
This court has recognized three types of interactions between members
of the public and the police:
The first of these is a “mere encounter” (or request
for information) which need not be supported by any
level of suspicion, but carries no official compulsion to
stop or to respond. The second, an “investigative
detention” must be supported by a reasonable
suspicion; it subjects a suspect to a stop and a period
of detention, but does not involve such coercive
conditions as to constitute the functional equivalent of
an arrest. Finally, an arrest or “custodial detention”
must be supported by probable cause.
Commonwealth v. Way, 238 A.3d 515, 518 (Pa.Super. 2020) (citation
omitted). Thus, pursuant to the Fourth Amendment, a person may not be
lawfully seized, either by means of an investigative detention or a custodial
detention, unless the police possess the requisite level of suspicion.
Appellant contends that the suppression court erred in concluding that
Officer McGowan possessed the requisite suspicion to stop his vehicle for a
violation of the Motor Vehicle Code (“MVC”). Appellant’s brief at 26-32.
The level of suspicion that a police officer must possess before initiating
a traffic stop is codified in 75 Pa.C.S.A. § 6308(b), which provides as follows:
(b) Authority of police officer.--Whenever a
police officer is engaged in a systematic
program of checking vehicles or drivers or has
reasonable suspicion that a violation of this title
is occurring or has occurred, he may stop a
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vehicle, upon request or signal, for the purpose
of checking the vehicle’s registration, proof of
financial responsibility, vehicle identification
number or engine number or the driver’s
license, or to secure such other information as
the officer may reasonably believe to be
necessary to enforce the provisions of this title.
75 Pa.C.S.A. § 6308(b).
This court has long recognized that “mere reasonable suspicion will not
justify a vehicle stop when the driver’s detention cannot serve an investigatory
purpose relevant to the suspected violation.” Commonwealth v. Feczko,
10 A.3d 1285, 1291 (Pa.Super. 2010) (en banc) (citation omitted), appeal
denied, 25 A.3d 327 (Pa. 2011). Rather, police officers are required to
possess probable cause to stop a vehicle based on observed violation of the
MVC or otherwise non-investigable offense. Id.
“Pennsylvania law makes clear that a police officer has probable cause
to stop a motor vehicle if the officer observes a traffic code violation, even if
it is a minor offense.” Commonwealth v. Harris, 176 A.3d 1009, 1019
(Pa.Super. 2017) (citation omitted).
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 has committed or is committing a crime.
The question we ask is not whether the officer’s belief
was correct or more likely true than false. Rather, we
require only a probability, and not a prima facie
showing, of criminal activity. In determining whether
probable cause exists, we apply a totality of the
circumstances test.
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Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (internal
quotation marks and citations omitted).
Instantly, the suppression court found that Officer McGowan’s testimony
at the suppression hearing established that he possessed the requisite
probable cause to stop Appellant’s vehicle for illegal window tint in
contravention of 75 Pa.C.S.A. § 4107(b)(2).3 See suppression court opinion,
2/10/21 at 2-3. We agree with this assessment.
The record reflects that Officer McGowan testified that in the late
afternoon hours of February 2, 2019, he was on patrol with members of the
Street Crimes Unit when he observed Appellant’s vehicle make a right-hand
turn and began traveling east on the 400 block of Muench Street. Notes of
____________________________________________
3 Section 4107(b)(2), Operating a Vehicle With Unsafe Equipment,
provides as follows:
(b) Other violations.--It is unlawful for any person to
do any of the following:
....
(2) Operate, or cause or permit another person to
operate, on any highway in this Commonwealth any
vehicle or combination which is not equipped as
required under this part or under department
regulations or when the driver is in violation of
department regulations or the vehicle or combination
is otherwise in an unsafe condition or in violation of
department regulations.
75 Pa.C.S.A. § 4107(b)(2).
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testimony, 2/25/20 at 4-5, 11. Officer McGowan observed that Appellant’s
“front driver’s window was covered with an illegal aftermarket window tint.”
Id. at 5, 12. At this point, Officer McGowan activated his lights and sirens to
conduct a traffic stop, but Appellant did not immediately pull over to the side
of the road. Id. at 5-6. After pulling over, Officer McGowan observed that
Appellant was physically shaking and nervous and exhibited labored
breathing. Id. at 8. Officer McGowan testified that a subsequent test of the
window tint revealed that it registered 17% light transmission, which is well
below the 70% allowed by law. Id. at 15. Based on the foregoing, we
conclude the suppression court properly determined that Officer McGowan
possessed the requisite probable cause to stop Appellant’s vehicle for a
violation of Section 4107(b)(2).
Appellant next argues that his suppression motion should have been
granted because the duration of the traffic stop was improper and Officer
McGowan’s inquiry as to his probation status unnecessarily prolonged the
stop. Appellant’s brief at 43-52. We disagree.
The United States Supreme Court has long recognized that “[a]n
officer’s inquiries into matters unrelated to the justification for the traffic stop
. . . do not convert the encounter into something other than a lawful seizure,
so long as those inquiries do not measurably extend the duration of the stop.”
Arizona v. Johnson, 555 U.S. 323, 333 (2009). In Commonwealth v. Ellis,
662 A.2d 1043 (Pa. 1995), our Supreme Court held that an additional ten to
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fifteen minutes of detention did not constitute an impermissible extension of
a traffic stop. Id. at 1049.
Here, the record reflects that the initial traffic stop in question was
considerably less than fifteen minutes in length. Officer McGowan testified at
the suppression hearing that although he didn’t “feel comfortable putting a
time limit on [the traffic stop],” he did not “feel like it was very long” and
certainly not greater than fifteen minutes. Notes of testimony, 2/25/20 at 10.
Moreover, Officer McGowan’s inquiry of Appellant with respect to his probation
status consisted of a single question, which clearly did not impermissibly
extend the traffic stop. See id. at 8; Ellis, 662 A.2d at 1049. Accordingly,
we find that Appellant’s claim must fail.
Appellant next argues that the evidence seized as a result of the traffic
stop should have been suppressed because PO Kinsinger and Cutter “act[ed]
like stalking horses for the police[.]” Appellant’s brief at 53-66.
As discussed more fully infra, the record reflects that POs Kinsinger and
Cutter did not act as police officers in this matter but were merely carrying
out their respective duties as probation officers after being informed by Officer
McGowan that Appellant had lied about his probation status. See notes of
testimony, 2/25/20 at 8-9. It is well settled in this Commonwealth that “[a]
probation officer does not act as a stalking horse if he initiates the search in
the performance of his duties as a probation officer.” Commonwealth v.
Parker, 152 A.3d 309, 321 n.6 (Pa.Super. 2016) (citation omitted); see also
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Commonwealth v. Altadonna, 817 A.2d 1145, 1152–1153 (Pa.Super.
2003).
The crux of Appellant’s remaining suppression claims is that his
continued interaction with POs Cutter and Kinsinger transitioned the traffic
stop into an unlawful investigative detention. Appellant’s brief at 33-42, 67-
71. In support of this contention, Appellant avers that POs Cutter and
Kinsinger lacked reasonable suspicion to seize him; their protective search
exceeded of the scope of Terry4; and that they violated the plain feel doctrine.
Id.
Preliminarily, we recognize that in Rodriguez v. United States, 575
U.S. 348 (2015), the United States Supreme Court examined the permissible
scope of an officer’s investigation during a traffic stop. The Rodriguez Court
reasoned:
A seizure for a traffic violation justifies a police
investigation of that violation. A relatively brief
encounter, a routine traffic stop is more analogous to
a so-called Terry stop ... than to a formal arrest. Like
a Terry stop, the tolerable duration of police inquiries
in the traffic-stop context is determined by the
seizure’s mission — to address the traffic violation
that warranted the stop and attend to related safety
concerns. Because addressing the infraction is the
purpose of the stop, it may last no longer than is
necessary to effectuate th[at] purpose. Authority for
the seizure thus ends when tasks tied to the traffic
infraction are — or reasonably should have been —
completed.
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4 Terry v. Ohio, 392 U.S. 1 (1968).
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Rodriguez, 575 U.S. at 354 (citations and internal quotation marks omitted).
Because Appellant’s claims challenge the ability of POs Kinsinger and
Cutter to conduct a search of his vehicle and person, we observe the following.
“[P]robationers and parolees have limited Fourth Amendment rights because
of a diminished expectation of privacy.” Parker, 152 A.3d at 316 (citation
omitted).
[POs] need not have probable cause to search a
[probationer] or his property; instead, reasonable
suspicion is sufficient to authorize a search.
A search will be deemed reasonable if the totality of
the evidence demonstrates: (1) that the [PO] had a
reasonable suspicion that the [probationer] had
committed a [probation] violation, and (2) that the
search was reasonably related to the [PO’s] duty.
Commonwealth v. Wright, 255 A.3d 542, 549–550 (Pa.Super. 2021)
(citations and internal quotation marks omitted), appeal denied, 268 A.3d
374 (Pa. 2021).
Pursuant to 42 Pa.C.S.A. § 9912(a)(1)(i), “[a] personal search of an
offender may be conducted by [a PO] . . . if there is a reasonable suspicion to
believe that the offender possesses contraband or other evidence of violations
of the conditions of supervision[.]” Id. Subsection 9912(d)(6) sets forth the
following factors the court may consider in determining whether reasonable
suspicion exists:
(i) The observations of officers.
(ii) Information provided by others.
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(iii) The activities of the offender.
(iv) Information provided by the offender.
(v) The experience of the officers with the offender.
(vi) The experience of officers in similar
circumstances.
(vii) The prior criminal and supervisory history of the
offender.
(viii) The need to verify compliance with the
conditions of supervision.
42 Pa.C.S.A. § 9912(d)(6).
In Parker, a panel of this Court observed that,
[i]n establishing reasonable suspicion, the
fundamental inquiry is an objective one, namely,
whether the facts available to the officer at the
moment of the intrusion warrant a person of
reasonable caution in the belief that the action taken
was appropriate. This assessment, like that applicable
to the determination of probable cause, requires an
evaluation of the totality of the circumstances, with a
lesser showing needed to demonstrate reasonable
suspicion in terms of both quantity or content and
reliability.
The threshold question in cases such as this is
whether the probation officer had a reasonable
suspicion of criminal activity or a violation
of probation prior to the search.
Parker, 152 A.3d at 318 (citations, brackets, and internal quotation marks
omitted).
Here, our review of the record supports the suppression court’s
conclusion that Appellant was not subjected to an unlawful investigative
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detention when POs Kinsinger and Cutter interacted with Appellant after
Officer McGowan returned to the vehicle and informed Appellant that he
planned to issue him a warning and that he would be free to leave. Viewing
the totality of the circumstances, we conclude that POs Kinsinger and Cutter
possessed the requisite reasonable suspicion to justify a second investigatory
detention to search Appellant’s vehicle and person.
Specifically, the suppression court opined as follows:
In the instant case, [POs] Kinsinger and Cutter knew
[Appellant] was on probation at the time of the traffic
stop. [Notes of testimony, 2/25/20 at 27.] Officer
McGowan informed them that [Appellant] stated he
was not on probation. [Id.] At this point, [POs]
Kinsinger and Cutter know that [Appellant] is lying
about his probation status. They also know that
[Appellant] has been pulled over for a traffic stop due
to illegal window tint. Using this information, [POs]
Kinsinger and Cutter decide that they have reasonable
suspicion to search [Appellant] and his property. [Id.
at 30-31.] Thus, the probation officers had the
requisite reasonable suspicion to search [Appellant’s]
vehicle and his person. We find [Appellant’s]
arguments are without merit.
Suppression court opinion, 2/10/21 at 5 (citation formatting corrected).
Following our careful review, we agree with the suppression court’s
assessment and adopt these well-reasoned conclusions as our own.
II. Motion to Recuse
Appellant next argues that Judge Deborah E. Curcillo was biased against
him and erred by denying his motion that she recuse herself. Appellant’s brief
at 71. Appellant’s claim is premised on his belief that Judge Curcillo “denied
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[his] right to a full suppression hearing and continuously allowed the
Commonwealth to make untimely filings pertaining to the suppression matter
and wholly adopted the Commonwealth’s findings of fact and legal
conclusions.” Id. This claim is meritless.
Our standard of review of a trial court’s determination
not to recuse from hearing a case is exceptionally
deferential. We recognize that our trial judges are
honorable, fair and competent, and although we
employ an abuse of discretion standard, we do so
recognizing that the judge himself is best qualified to
gauge his ability to preside impartially.
Commonwealth v. Harris, 979 A.2d 387, 391–392 (Pa.Super. 2009)
(citations and internal quotation marks omitted).
“It is the burden of the party requesting recusal to produce evidence
establishing bias, prejudice or unfairness which raises a substantial doubt as
to the jurist’s ability to preside impartially.” Commonwealth v. White, 910
A.2d 648, 657 (Pa. 2006) (citation omitted).
Here, our independent review of the multiple transcripts in this matter
does not reveal a scintilla of evidence to support Appellant’s contention that
Judge Curcillo “displayed a deep-seated favoritism to the Commonwealth,
which made a fair judgment impossible.” Appellant’s brief at 74. Nor does
the record support Appellant’s contention that he was denied his right to a full
suppression hearing. The record reveals that trial court conducted a full
hearing on February 25, 2020 and only denied Appellant’s suppression motion
following its comprehensive review of the evidence presented in both parties’
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briefs and at the hearing itself. Accordingly, Appellant’s claim that the trial
court erred in denying his recusal motion must fail.
III. 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 77.
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
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).
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Here, the crux of Appellant’s claim is that the Commonwealth failed to
prove that he possessed crack cocaine, because “the only scientific proof
presented from the laboratory was a report that identified the substance as
cocaine, not cocaine base.” Appellant’s brief at 77. Viewing the evidence in
the light most favorable to the Commonwealth as the verdict winner, we find
that this claim is entirely devoid of merit.
The record establishes that during the traffic stop, Appellant was found
in possession of 6 clear plastic baggies containing approximately 26 grams of
powder and crack cocaine, as well as $12,000 in cash. Notes of testimony,
3/10/21 at 38. Officer McGowan testified that he identified the crack cocaine
and powder cocaine by observing the differences in the physical consistencies
of each substance. Id. at 42-44.
At trial, the Commonwealth presented the testimony of Dauphin County
Detective John Goshert, who testified as an expert in the field of street level
drug tracking. Id. at 170. Detective Goshert testified at great length about
the differences between the powder cocaine and crack cocaine, which is also
known as cocaine base, that was found in the six baggies recovered from
Appellant. Id. at 173-176.
The record further reflects that Amber Gegg, an expert in the field of
drug analysis with the Pennsylvania State Police Laboratory, testified that the
white substances recovered from Appellant tested positive for cocaine. Id. at
105-106, 114-117. The evidence presented at trial also established that the
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Pennsylvania State Police Laboratory does not differentiate between crack
cocaine and powder cocaine on its reports. Id. at 192.
Based on the foregoing, we find that the Commonwealth presented
sufficient evidence for the jury to conclude that Appellant knowingly or
intentionally possessed crack cocaine with the intent to distribute it.
Accordingly, Appellant’s sufficiency claim must fail.
III. Weight of the Evidence
In his final claim, Appellant argues that the verdict was against the
weight of the evidence because “the Commonwealth failed to present scientific
evidence in the form of a laboratory report that confirmed that the substance
that was tested was cocaine base.” Appellant’s brief at 78. We disagree.
“An allegation that the verdict is against the weight of the evidence is
addressed to the discretion of the trial court.” Commonwealth v. Galvin,
985 A.2d 783, 793 (Pa. 2009) (citation omitted), cert. denied, 559 U.S. 1051
(2010). “[A] true weight of the evidence challenge concedes that sufficient
evidence exists to sustain the verdict but questions which evidence is to be
believed.” Commonwealth v. Miller, 172 A.3d 632, 643 (Pa.Super. 2017)
(citation omitted), appeal denied, 183 A.3d 970 (Pa. 2018).
[W]here the trial court has ruled on the weight claim
below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against
the weight of the evidence. Rather, appellate review
is limited to whether the trial court palpably abused
its discretion in ruling on the weight claim.
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Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa.Super. 2012) (citation
omitted).
Because the trial judge has had the opportunity to
hear and see the evidence presented, an appellate
court will give the gravest consideration to the
findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict
is against the weight of the evidence. One of the least
assailable reasons for granting or denying a new trial
is the lower court’s conviction that the verdict was or
was not against the weight of the evidence and that a
new trial should be granted in the interest of justice.
This does not mean that the exercise of discretion by
the trial court in granting or denying a motion for a
new trial based on a challenge to the weight of the
evidence is unfettered. In describing the limits of a
trial court’s discretion, we have explained[,] [t]he
term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate
conclusion within the framework of the law, and is not
exercised for the purpose of giving effect to the will of
the judge. Discretion must be exercised on the
foundation of reason, as opposed to prejudice,
personal motivations, caprice or arbitrary actions.
Discretion is abused where the course pursued
represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or
where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations and
emphasis omitted).
Upon review, we find that the trial court properly exercised its discretion
in concluding that the jury’s verdict was not against the weight of the
evidence. See trial court opinion, 11/1/21 at 10-11. “[T]he trier of fact while
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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. Andrulewicz, 911 A.2d 162, 165 (Pa.Super. 2006)
(citation omitted), appeal denied, 926 A.2d 972 (Pa. 2007).
Here, the jury clearly found the testimony of the three primary
Commonwealth witnesses on this issue – Officer McGowan, Ms. Gegg, and
Detective Goshert – credible, and elected not to believe Appellant’s version of
the events. Appellant essentially asks us to reassess their credibility. We are
precluded from reweighing the evidence and substituting our judgment for
that of the fact-finder. Clay, 64 A.3d at 1055. Accordingly, Appellant’s weight
claim must fail.
For all the foregoing reasons, we affirm the trial court’s August 25, 2021
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/16/2022
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