Com. v. Hand (memorandum)
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J-S77007-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. KWAMAINE HAND, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1090 EDA 2011 Appeal from the Judgment of Sentence entered on March 21, 2011 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. CP-51-CR-0006711-2010 BEFORE: MUSMANNO, WECHT and PLATT*, JJ. MEMORANDUM BY MUSMANNO, J.: Filed: March 11, 2013 Kwamaine Hand ( Hand ) appeals from the judgment of sentence imposed after he was convicted of possession of a controlled substance and possession with the intent to deliver a controlled substance ( PWID ). See 35 P.S. § 780-113(a)(16), (a)(30). We affirm. The trial court set forth the facts underlying this appeal as follows: At trial, the Commonwealth presented the testimony of Philadelphia Police Officer Pat DiDomenico and Officer Paul Haye. Viewed in the light most favorable to the Commonwealth, the testimony presented [] established the following facts: On February 25, 2010, at approximately 12:34 P.M., Officer DiDomenico was on duty at the 3900 block of Melon Street. Officer DiDomenico and his partner, Officer Haye, were in full uniform in a marked police vehicle when [Officer DiDomenico] observed a Pontiac Grand Prix[,] with a PA license plate tag of HLC7271[,] that was double[-]parked close to the top of the 3900 block with the engine still running. Officer DiDomenico was approximately 40 to 45 feet behind the vehicle when be observed [Hand] exit the driver[ s] side [door]. [Hand *Retired Senior Judge assigned to the Superior Court. J-S77007-12 then walked to] an open lot that was located behind a corner property on Union Street but faced the 3900 block of Melon [Street]. Officer DiDomenico was able to clearly see [Hand] discard with his hands four clear plastic bags containing smaller objects. Officer DiDomenico was approximately 20 to 25 feet away from [Hand] when he discarded the objects. [Hand] started to exit the lot when Officer DiDomenico stopped [him] for an investigation. Officer DiDomenico directed Officer Haye to where he saw [Hand] discard the plastic bags. Officer Haye walked to the back of the lot along the fence line and found the objects in less than two to three minutes. The objects were sitting on top of snow, rocks, and debris. Then, Officer Haye recovered the objects that Officer DiDomenico watched [Hand] discard. The objects were four clear plastic sandwich bags. The four clear plastic bags [each] contained 40 smaller clear plastic Ziploc packets[; thus, there were] a total of 160 [small plastic packets]. The 160 packets were tested and all came back positive for crack cocaine base. [Hand] was arrested [and was subsequently charged with the above-mentioned narcotics offenses.] [Hand] was also issued two traffic citations ¦. The vehicle that [Hand had] exited was then [] stopped and towed. At [Hand s non-jury] trial, there was a formal stipulation between counsel that if the narcotics expert was to testify[,] he would testify to a reasonable degree of expert certainty that the 160 packets were possessed with intention to deliver. [Hand] testified on his own behalf that the running vehicle on [the] 3900 [block of] Melon Street belonged to his brother[, who, Hand alleged,] ¦ was never in the vehicle. [Hand] also testified that he [had entered] the open lot to reach the back of his aunt s house [in order to] yell for her to open the front door [of her residence]. However, [the trial c]ourt found [Hand s] testimony to be wholly incredible. Trial Court Opinion, 6/29/12, at 2-3 (citations omitted). At the close of Hand s trial, the trial court found Hand guilty of all counts. Subsequently, the trial court imposed a sentence of one to two -2- J-S77007-12 years in jail, followed by two years of probation. Hand timely filed a Notice of appeal. On appeal, Hand raises the following issue for our review: Did the trial court err in deciding that the evidence was sufficient to convict [Hand] [] of [PWID] and knowing and intentional possession of a controlled substance? Brief for Appellant at 6 (capitalization omitted). Our standard of review of a sufficiency of the evidence claim is well settled: We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail. The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. Commonwealth v. Mobley, 14 A.3d 887, 889-90 (Pa. Super. 2011) (citation and paragraph break omitted). Hand argues that the Commonwealth did not present sufficient evidence to sustain either of his convictions, since it failed to establish that he had constructive possession DiDomenico and Haye.1 of the narcotics Brief for Appellant at 14. 1 found by Officers Hand asserts that Hand concedes that the narcotics were possessed with the intent to deliver; the only element at issue is whether Hand possessed the narcotics. See Brief for Appellant at 14. -3- J-S77007-12 although Officer DiDomenico testified to seeing Hand discard four clear plastic bags near the area where the officers found the narcotics, Officer DiDomenico did not testify to any evidence that demonstrated [Hand s] connection to the controlled substance found[.] Id. at 15. Hand further points out that Officer Haye testified that the general area in which the officers had found the narcotics was a known high-crime area. Id. at 15, 16. Finally, Hand asserts that the circumstances surrounding his arrest tend to exculpate him. Id. at 15. Specifically, Hand contends that (1) [w]hen Officer DiDomenico, who was in uniform, approached [Hand], [Hand] did not run or show any sign of perceived guilt[;] (2) [t]here was no testimony that narcotics were found in the vehicle [that Hand had] allegedly exited from[;] and (3) [t]here was no money found on [Hand, and t]here was no paraphernalia found that was consistent with either the use of the sale of drugs. Id. In its Opinion, the trial court adeptly set forth the applicable law and concisely discussed its reasons for concluding that the evidence supported each of Hand s convictions. See Trial Court Opinion, 6/29/12, at 4-7.2 Since the trial court s sound reasoning is supported by the law and the certified record, we affirm on this basis. See id.; see also Commonwealth v. Clark, 746 A.2d 1128, 1136-37 (Pa. Super. 2000) 2 We note that the trial court provides an incorrect case citation on page 4 of its Opinion; the correct citation is as follows: Commonwealth v. Cardona, 463 A.2d 11, 15 (Pa. Super. 1983). -4- J-S77007-12 (where police officers had observed the appellant entering a vacant lot to obtain small objects for use in presumed drug sales and the appellant was the only person who had approached the lot during the police surveillance, holding that the evidence was sufficient to establish that the appellant constructively possessed narcotics hidden in the lot); see also Commonwealth v. Smith, 392 A.2d 727, 729 (Pa. Super. 1978) (where the evidence was sufficient to prove that the appellant had possessed narcotics and a handgun that he concealed in a paper bag located at his feet, stating that [t]he fact that the contraband was located on a public street accessible to other persons does not alter this conclusion and [a]lthough appellant attempted to separate himself from the contraband, his efforts were insufficient to avoid conviction. ). Since we conclude that the totality of the evidence, taken in a light most favorable to the Commonwealth as the verdict winner, was sufficient to sustain Hand s convictions of possession of a controlled substance and PWID, Hand s sole claim on appeal fails. Judgment of sentence affirmed. -5-
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