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[U] Commonwealth v. Bratten

Superior Court of Pennsylvania

February 19, 2014



Appeal from the Judgment of Sentence April 23, 2013 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0001402-2011




Appellant, Quion Thomas Bratten, appeals from the April 23, 2013 aggregate judgment of sentence of 27 months' to five years' imprisonment imposed after a jury found him guilty of possession with intent to deliver a controlled substance (PWID), intentional possession of a controlled substance, and possession of drug paraphernalia.[1] After careful review, we affirm the judgment of sentence.

The trial court summarized the relevant facts and procedural history of this case as follows.

Shortly after midnight on October 1, 2011, Officer Damon Hagan of the Williamsport Bureau of Police saw Appellant [] standing in front of the Finish Line bar. Officer Hagan recognized Appellant as a person who was wanted on an outstanding warrant.1Officer Hagan arrested Appellant and searched him incident to the arrest. During the search, Officer Hagan found a cell phone, $720 in cash and 18 baggies of crack cocaine. [The record further reflects that Appellant was not found in possession of any ingestion paraphernalia, and the aggregate weight of the crack cocaine was 2.38 grams.]
[On October 4, 2011, ] Appellant was charged with [PWID], possession of a controlled substance, and possession of drug paraphernalia.
A jury trial was held December 20-21, 2012, at which the sole issue was whether Appellant possessed the cocaine with the intent to deliver it.2[On December 21, 2012, t]he jury found Appellant guilty, and on April 23, 2013, the [trial] court sentenced Appellant to 27 months['] to 5 years['] of incarceration in a state correctional institution.
1 Appellant was wanted on a parole violation for leaving a half-way house.
2 Appellant had already been found guilty of [possession of a controlled substance and possession of drug paraphernalia] at a jury trial held on March 6, 2012, but that jury deadlocked and a mistrial was declared on the charge of [PWID].

Trial Court Opinion, 9/26/13, at 1-2 (footnotes in original).

Appellant did not file any post-sentence motions. This timely appeal followed on May 7, 2013. On May 9, 2013, the trial court ordered Appellant to file a concise statement of errors complained of on appeal, in accordance with Pennsylvania Rule of Appellate Procedure 1925(b), within 21 days. Appellant filed a timely Rule 1925(b) statement on May 13, 2013. Thereafter, on September 26, 2013, the trial court filed its Rule 1925(a) opinion.

On appeal, Appellant raises the following issues for our review.

I. Whether the evidence produced at trial was insufficient to prove that [] Appellant intended to deliver the cocaine found on his person[?]
II. Whether the trial court erred by admitting intercepted jail telephone calls/visits and by permitting the Commonwealth to present transcripts of those calls to the jury[?]

Appellant's Brief at 7.

We begin by addressing Appellant's claim that there was insufficient evidence to sustain his conviction for PWID. "The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt." Commonwealth v. O'Brien, 939 A.2d 912, 913 (Pa.Super. 2007) (citation omitted). "Any doubts concerning an appellant's guilt [are] to be resolved by the trier of fact unless the evidence was so weak and inconclusive that no probability of fact could be drawn therefrom." Commonwealth v. West, 937 A.2d 516, 523 (Pa.Super. 2007), appeal denied, 947 A.2d 737 (Pa. 2008). Moreover, "[t]he Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence." Commonwealth v. Perez, 931 A.2d 703, 707 (Pa.Super. 2007) (citations omitted).

The crime of PWID is codified in the Pennsylvania Crimes Code as follows.

§ 780-113. Prohibited acts; penalties
(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.

35 P.S. § 780-113(a)(30). Thus, "[i]n order to prove the offense of [PWID], the Commonwealth must prove beyond a reasonable doubt both that the defendant possessed the controlled substance and had the intent to deliver." Commonwealth v. Carpenter, 955 A.2d 411, 414 (Pa.Super. 2008) (citation omitted).

In the instant matter, Appellant does not dispute that he possessed crack cocaine, but argues the Commonwealth failed to prove he had the requisite intent to deliver it. Appellant's Brief at 11. On the contrary, Appellant avers that the 2.38 grams of crack cocaine found on his person "alone established [that] he possessed it with the intent to use, and not … to distribute[, ]" and thus, "its packaging and the large amount of cash found on [Appellant] is inconsequential." Id. at 11, 13.

This Court has long recognized that "[t]he intent to deliver can be inferred from an examination of the surrounding facts and circumstances." Perez, supra at 708 (citations omitted). Factors to be considered in determining intent to deliver include the quantity of drugs possessed, the manner of packaging, the absence of paraphernalia for drug use, the behavior of the defendant, the presence of large amounts of cash, and expert opinion testimony. Commonwealth v. Taylor, 33 A.3d 1283, 1288 (Pa.Super. 2011) (citation omitted), appeal denied, 47 A.3d 847 (Pa. 2012).

Upon review of the evidence, viewed in the light most favorable to the Commonwealth, as the verdict winner, we conclude that the Commonwealth has presented sufficient evidence that Appellant possessed crack cocaine with the intent to deliver it. The evidence presented at trial established that during his arrest, Appellant was found in possession of 18 individual baggies of crack cocaine with a total weight of 2.38 grams. N.T., 12/20/12, at 47-48, 91. Other indicia, including the complete absence of paraphernalia for ingesting the cocaine, a cell phone, and the large amount of cash ($720.00) found on Appellant's person, strongly evidence his intent to deliver. Id. at 47, 49, 59. Additionally, Appellant's testimony that the money in question came from gambling at the pool table inside the Finish Line bar was contradicted by the bouncer/security guard, Frederick Latsch, who testified that Appellant was only there for 15 to 20 minutes and never played pool. Id. at 34-35, 140-141. Lastly, the record reveals that the Commonwealth presented the expert testimony of Williamsport Police Officer Justin Snyder, who opined that Appellant possessed the crack cocaine in question with the intent to deliver it. Id. at 89. Officer Snyder noted that he based this opinion on the packaging of the crack cocaine, the absence of ingestion paraphernalia found on Appellant's person, the fact that Appellant used language that was consistent with that of drug trafficking, and that the cash found in Appellant's possession was in denominations consistent with street-level drug dealing. Id. at 89-97. Accordingly, based on the totality of the circumstances, we conclude that there was sufficient evidence to sustain Appellant's conviction for PWID. See Taylor, supra.

In his second issue, Appellant argues the trial court abused its discretion in admitting into evidence various audio recordings of conversations he had while incarcerated in Lycoming County Prison, "and by allowing the jury to have transcripts [of said conversations] during their playback[.]" Appellant's Brief at 15.

In reviewing a trial court's ruling on the admissibility of evidence, our standard of review is one of deference. Questions concerning the admissibility of evidence are within "the sound discretion of the trial court, and its discretion will not be reversed absent a clear abuse of discretion." Commonwealth v. Selenski, 18 A.3d 1229, 1232 (Pa.Super. 2011) (citation omitted). As noted, "[a]n abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record." Commonwealth v. Harris, 884 A.2d 920, 924 (Pa.Super. 2005) (internal citations and quotation marks omitted), appeal denied, 928 A.2d 1289 (Pa. 2007). Furthermore, "if in reaching a conclusion the trial court over-rides [sic] or misapplies the law, discretion is then abused and it is the duty of the appellate court to correct the error." Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa.Super. 2009) (citation omitted), appeal denied, 986 A.2d 150 (Pa. 2009).

Instantly, the record reflects that on December 14, 2012, the Commonwealth filed a motion in limine that sought, inter alia, a determination as to whether audio recordings of various conversations Appellant had while incarcerated in Lycoming County Prison were admissible as evidence. See Motion in Limine, 12/14/12, at 3-5, ¶¶ 1-23.[2] In said recordings, Appellant acknowledged that "he had work on him" the night he was arrested; cautions an associate not to involve himself with a well-known confidential informant because he is "bad business"; and indicates that he has $3, 000.00 in cash waiting for him when he is released from jail, even though he was admittedly unemployed. See id. at ¶¶ 15-17, 22; see also N.T., 12/20/12, at 67-70, 98-100.

Following a hearing, the trial court granted the Commonwealth's motion and permitted it to introduce the recordings into evidence at trial. In support of this decision, the trial court reasoned as follows.

The recordings were relevant to show whether Appellant intended to deliver the drugs and to show that Appellant was the person making the statements. Appellant told the police he was not employed. In his trial testimony, he indicated that he was surviving during that time by friends and family giving him money. [N.T., 12/20/12, at 141]. Yet on the recordings of the phone calls and visits, Appellant talked about having money and expecting to get $3, 000 in January. A reasonable inference to be drawn from these statements, the number of baggies of cocaine on his person and the lack of employment was that Appellant was getting money by selling drugs. Appellant's statements warning others to stay away from Lyle because he was a confidential informant (CI) also supported this inference. As Officer Snyder explained, an addict or user would not need to be worried about a CI because a CI is used to buy from drug dealers. [Id. at 98-100]. Appellant also indicated Lyle was "bad business" and he used the term "work" when referring to his drugs, which when considered in conjunction with the other evidence in this case was relevant to show that Appellant was not an addict or user, but rather a dealer who was in the business of selling drugs for money to support himself.

Trial Court Opinion, 9/26/13, at 5-6 (citation formatting corrected).

Upon review, we agree with the trial court that the audio recordings at issue were properly admitted into evidence. This Court has long recognized that "[t]he threshold inquiry with admission of evidence is whether the evidence is relevant." Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008) (citations and bracket omitted). "Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact." Commonwealth v. Edwards, 903 A.2d 1139, 1156 (Pa. 2006) (citation and internal quotation marks omitted), cert. denied, Edwards v. Pennsylvania, 127 S.Ct. 2030 (2007).

Herein, our review of the record in this case demonstrates that the admission of the audio recordings at issue was supported by specific and articulable facts showing that there were reasonable grounds to believe that these conversations were relevant in establishing Appellant's guilt for PWID. Specifically, Appellant's statements during these recorded conversations were relevant in that they provided circumstantial evidence that Appellant was both familiar with and actively involved in the distribution of narcotics. The relevance of the recordings were further bolstered by the testimony of Officer Snyder, who opined as an expert in the field of "narcotics investigations and possession with intent to deliver crack cocaine in particular" that the language used by Appellant during these conversations was consistent with that of a drug trafficker. N.T., 12/20/12, at 84, 98-99. Accordingly, we discern no abuse of discretion on the part of the trial court in admitting the aforementioned audio recordings into evidence.[3]

For all the foregoing reasons, we conclude that Appellant's claims on appeal are devoid of merit. Therefore, we affirm the April 23, 2013 judgment of sentence.

Judgment of sentence affirmed.

Judge Wecht Concurs in the Result.

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