Com. v. Muslim, D. (memorandum)

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J.S59044/13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. DREW ALI MUSLIM, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1201 EDA 2013 Appeal from the Judgment of Sentence November 26, 2012 In the Court of Common Pleas of Carbon County Criminal Division No(s).: CP-13-CR-0000611-2011 BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 23, 2013 Appellant, Drew Ali Muslim, appeals from the judgment of sentence entered in the Carbon County Court of Common Pleas after a jury found him guilty of possession of a controlled substance, possession with intent to deliver a controlled paraphernalia.1 substance ( PWID ), and possession of drug Appellant challenges the sufficiency and weight of the evidence and regarding his intent to deliver a controlled substance. We affirm. The trial court thoroughly summarized the trial evidence presented by the Commonwealth and we adopt its summary for the purposes of appeal. * Former Justice specially assigned to the Superior Court. 1 35 P.S. § 780-113(a)(16), (30), (32). J. S59044/13 See Trial Ct. Op., 4/1/13, at 2-7. Procedurally, a jury found Appellant guilty of possession of a controlled substance, PWID, and possession of drug paraphernalia2 on September 11, 2012. The trial court, on November 26, 2012, sentenced him to serve an aggregate sentence of imprisonment of twenty-eight months to eighty-four months. Appellant timely filed post- sentence motions on November 30, after which the trial court ordered the filing of briefs. On March 27, 2013, the trial court denied Appellant s postsentence motions.3 Appellant timely appealed and complied with the court s order to file a Pa.R.A.P. 1925(b). This appeal followed. Appellant presents the following questions for our review: I. WAS THE VERDICT RETURNED BY THE JURY AS TO THE CHARGE OF POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DELIVER CONTRARY TO THE WEIGHT OF THE EVIDENCE IN THAT THE RECORD DISCLOSED NO EVIDENCE, AND PARTICULARLY NO EXPERT OPINION, OF INTENT ON THE PART OF [APPELLANT] TO DISSEM[I]NATE A CONTROLLED SUBSTANCE TO ANY OTHER PERSON OR PERSONS? II. WAS THERE A LEGALLY INSUFFICIENT BASIS TO SUPPORT THE VERDICT RETURNED BY THE JURY AS THE RECORD DISCLOSED NO EVIDENCE, AND PARTICULARLY NO EXPERT OPINION, OF INTENT ON THE PART OF [APPELLANT] TO DISSEM[I]NATE A CONTROLLED SUBSTANCE TO ANY OTHER PERSON OR PERSONS? 2 The jury found Appellant not guilty of conspiracy. 3 The trial court denied Appellant s post-sentence motions 117 days after they were filed. See Pa.R.Crim.P. 720(B)(3)(a) (setting forth general rule that the judge shall decide post-sentence motion . . . within 120 days of the filing of the motion ). -2- J. S59044/13 III. WAS A MOTION IN ARREST OF JUDGMENT PROPER AS TO THE VERDICT RETURNED BY THE JURY INCIDENTAL TO THE CHARGE OF POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DELIVER IN THAT THE RECORD DISCLOSED NO EVIDENCE, AND PARTICULARLY NO EXPERT OPINION, OF INTENT ON THE PART OF [APPELLANT] TO DISSEM[I]NATE A CONTROLLED SUBSTANCE TO ANY OTHER PERSON OR PERSONS? IV. WAS A MOTION FOR JUDGMENT OF ACQUITTAL AS TO THE VERDICT RETURNED BY THE JURY WITH REGARD TO THE CHARGE OF POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DELIVER PROPER IN THAT THE RECORD DISCLOSED NO EVIDENCE, AND PARTICULARLY NO EXPERT OPINION, OF INTENT ON THE PART OF [APPELLANT] TO DISSEM[I]NATE A CONTROLLED SUBSTANCE TO ANY OTHER PERSON OR PERSONS? Appellant s Brief at 5. We summarize Appellant s arguments in support of his request for a new trial or that his PWID conviction be vacated. Appellant, in each of his four arguments on appeal, sets forth nearly identical claims, namely, that the evidence regarding his intent to deliver cocaine was lacking. Specifically, he emphasizes that no controlled substances or paraphernalia were found on his person when he was arrested, and that none of the indicia normally associated with a drug transaction were discovered. Id. at 23. Moreover, he claims that the quantities of cocaine found by the arresting officers were suggestive of personal use. Id. He also observes that the Commonwealth did not present expert testimony distinguishing cocaine possessed for personal use and for distribution to others. Id. Lastly, Appellant recognizes that Deanna Hoherchak testified against him, -3- J. S59044/13 but asserts that her testimony is unworthy of belief. Id. at 25-27, 33-34, 39-40, 45-46. We are further mindful that although Appellant purports to assert four claims, three are duplicative and framed as a challenge to the sufficiency of the evidence, a challenge to the denial of a motion for arrest of judgment, and a challenge to the denial of a motion for judgment of acquittal, respectively. See id. at 31, 37, 43. Each, however, is essentially a challenge to the sufficiency of the evidence. Id. Moreover, while Appellant alleges that the verdict as returned by the jury was both erroneous and contrary to the weight of the evidence[,] id. at 24-25, the ensuing argument is nearly identical to the arguments set forth in the remainder of his brief. See id. at 25-30, 32-36, 37-42, 43-48. Thus, we discern two challenges raised in this appeal: whether the evidence was sufficient to convict Appellant of possession with intent to deliver; whether the verdict on that crime was against the weight of the evidence.4 The standards underlying challenges to the sufficiency and the weight of the evidence are as follows: A claim challenging the sufficiency of the evidence, if granted, would preclude retrial under the double jeopardy provisions of the Fifth Amendment to the United States Constitution, and Article I, Section 10 of the Pennsylvania 4 Appellant s challenge to the weight of the evidence was raised in the trial court in a post-sentence motion and preserved in his Pa.R.A.P. 1925(b) statement. -4- J. S59044/13 Constitution, whereas a claim challenging the weight of the evidence if granted would permit a second trial. A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice. Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations omitted). Having reviewed Appellant s arguments, the record, and the opinion filed by President Judge Roger Nanovic, we find no merit to Appellant s -5- J. S59044/13 challenges to either the sufficiency of the evidence or the weight of the evidence underlying the jury s findings that he intended to deliver cocaine. Moreover, because the trial judge thoroughly discussed and analyzed both challenges, we affirm on the basis of the attached trial court opinion. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/23/2013 -6-

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