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[U] Commonwealth v. Palmer

Superior Court of Pennsylvania

February 3, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
DANA PALMER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence Entered October 23, 2012 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000777-2012

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM

BENDER, P.J.E.

Appellant, Dana Palmer, appeals from the judgment of sentence of six to twelve years' incarceration, followed by five years' probation, imposed after he was convicted of possession with intent to deliver heroin (PWI D) and possession of heroin. Appellant solely challenges the sufficiency of the evidence to sustain his convictions. We affirm .

The trial court set forth the facts of this case as follows:

On November 18, 2011, Officer Igor Boyko, of the Pittsburgh Police Department, was assigned to perform a traffic enforcement detail at the intersection of Robinson Street and Fifth Avenue in the City of Pittsburgh. At approximately 10: 00 p.m., Officer Boyko observed a red Ford Mustang coming down Robinson Street toward Fifth Avenue. At the intersection of Robinson and Fifth Avenue, there were signs prohibiting traffic from making a left-hand turn requiring all traffic to make a right-hand turn on to Fifth Avenue. The Ford Mustang stopped at the stop sign and then despite the signs prohibiting a left-hand turn, made a left onto Fifth Avenue. The Mustang then made an illegal right turn on to the bus lane of Fifth Avenue and proceeded toward the entrance ramp from Fifth Avenue to the Parkway East.
Officer Boyko was in pursuit of this red Mustang and had activated his lights and siren in an effort to stop [ the vehicle] for the traffic violations that he had witnessed. As the Mustang proceeded down the sloped entrance ramp, Officer Boyko observed a white shopping bag being thrown out of the passenger side window. That object landed on the top of a hillside on the top of the retaining wall for this entrance ram p. Officer Boyko noted the location of this thrown object and requested backup so that he could be assisted in the investigation of this incident. Officer Aaron Fetty arrived on the scene and Officer Boyko told him where the object had been thrown[ .] [ Officer Fetty] recovered that shopping bag which contained [ 960] stamp bags of heroin. The driver of the vehicle, Jonathan Young, (hereinafter referred to as "Young"), and his cousin, [ Appellant], were arrested and charged with the violation of the Controlled Substance, Drug, Device & Cosmetic Act and tampering with evidence.

Trial Court Opinion (TCO), 4/ 30/ 13, at 3-4.

Appellant was initially charged with two counts of criminal conspiracy, tampering with physical evidence, possession of heroin, and PWID. After his preliminary hearing, the criminal conspiracy counts were dismissed. On August 27, 2012, Appellant proceeded to a jury trial on the remaining charges. On August 29, 2012, the jury found Appellant guilty of tampering with physical evidence, but it was unable to reach a verdict with regard to the remaining charges.[1]

On October 22, 2012, a second jury trial was conducted, after which the jury convicted Appellant of possession of heroin and PWID. He was subsequently sentenced to a term of six to twelve years' incarceration, followed by five years' probation. Appellant filed a timely post-sentence motion, which the court ultimately denied. Appellant then filed a timely notice of appeal, as well as a timely concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, he raises one issue for our review:

1. Did the trial court err in finding that the evidence was sufficient to sustain the verdict when the Commonwealth relied on a theory of constructive possession and the evidence presented only established the location of the drugs?

Appellant's Brief at 3.

To begin, we note our standard of review of a challenge to the ...


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