Appeal from the Judgment of Sentence Entered October 10, 2008, Court of Common Pleas, Philadelphia County, Criminal Division, at No. CP-51-CR-0000995-2008.
The opinion of the court was delivered by: Shogan, J.:
BEFORE: STEVENS, P.J., BOWES, GANTMAN, PANELLA, SHOGAN, ALLEN, LAZARUS, MUNDY and WECHT, JJ.
Appellant, Abdul-Mussawir James, appeals from the judgment of sentence that was originally imposed on October 10, 2008, and corrected in an order filed on November 1, 2010, following his conviction on charges of possession of a controlled substance ("possession")*fn1 and possession with intent to deliver a controlled substance ("PWID")*fn2 under the Controlled
Substance, Drug, Device and Cosmetic Act ("the CSDDCA").*fn3 Following en banc consideration, we affirm the October 10, 2008 judgment of sentence, as corrected in the order filed on November 1, 2010.
A prior panel of this Court set forth the underlying facts and procedural history of this matter as follows:
James was arrested and charged with the aforementioned crimes based on police observation of a single sale of Oxycodone by James to an unidentified white male. On April 28, 2008, James filed a motion to suppress the physical evidence, arguing that he was stopped without reasonable suspicion that criminal activity was afoot and was arrested without probable cause that a crime was committed. A hearing was held on the motion on August 11, 2008. Agent John Brennan ("Agent Brennan") testified as a narcotics expert regarding his observations of what he believed to be a drug transaction between James and the unidentified white male. He stated that he was conducting surveillance in the 900 block of North 65th Street based on numerous complaints of drug activity in the area. He observed the unidentified white male walk up and down the street "looking around constantly," and then sit down on the steps in front of 925 North 65th Street. N.T., 8/11/08, at 7.
Agent Brennan then saw James leave a conversation with two individuals at the 6400 block of Jefferson Street, walk directly over to the unidentified white male, pull out an amber colored pill bottle, pour some of its contents into the male's hand, and place the pill bottle back in his pocket. The male then gave James something that James also put into his pocket, although Agent Brennan testified he could not see what was given to James. Agent Brennan stated that based on his expertise and experience, he believed a drug transaction had just occurred and radioed backup officers with a description of James. Police stopped James, went into his pant pockets, and removed $16.00 and the amber pill bottle, which was found to contain 13 Oxycodone pills.
The trial court indicated that it found Agent Brennan's testimony to be credible, and based on his testimony, denied the suppression motion. A bench trial immediately followed, wherein Agent Brennan's prior testimony was incorporated into the record. He was briefly recalled to testify, at which time he indicated that the pill bottle bore James' name and indicated that the prescription had been filled on the day of this incident, June 4, 2007.
James testified that he had a prescription for Oxycodone because he had recently been hit by a car and was experiencing back and arm pain. He stated that the unidentified white male was his neighbor, Joey, and that he merely said hello to Joey as James exited the building. He denied selling or providing Joey with any drugs. He testified that he was on the corner talking to friends when a police officer "attacked" him and he was arrested. Id. at 46. James alleged that the police officer told him that unless he could provide them with a "big fish," James would be charged with selling drugs. Id. at 55.
The trial court indicated that it found James' version of events to be incredible. He was convicted of possession of a controlled substance and PWID, and sentenced to 3-6 years of incarceration for each crime, to run concurrently. This timely appeal followed.
Commonwealth v. James, 3188 EDA 2008, unpublished memorandum at 1-3, 6 A.3d 576 (Pa. Super. filed July 29, 2010). In that prior appeal, Appellant's counsel had petitioned to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). The panel concluded there were meritorious issues, denied Appellant's counsel's motion to withdraw, and remanded the matter for further proceedings. On remand, Appellant filed a supplemental Pa.R.A.P. 1925(b) statement, and the trial court filed a supplemental Pa.R.A.P. 1925(a) opinion and corrected the earlier sentencing order.*fn4 The amended trial court record was then returned to this Court for review of the appeal on the merits. Following remand, the earlier panel filed an opinion on June 17, 2011 that vacated Appellant's judgment of sentence for possession. Thereafter, the Commonwealth filed an application for en banc reargument that was granted in an order filed on August 17, 2011, and the opinion vacating Appellant's judgment of sentence was withdrawn. On appeal, Appellant raises two issues for this en banc Court's consideration:
1. Was not the evidence insufficient to support the verdict of guilty of possession of a controlled substance as appellant testified that he had a valid prescription for the Oxycodone found in his possession, and there was no evidence that the ...