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[U] Commonwealth v. Smith

Superior Court of Pennsylvania

March 13, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
WILFREDO TERRADO SMITH Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence October 6, 2011 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0000196-2011

BEFORE: PANELLA, J., OLSON, J., and WECHT, J.

MEMORANDUM

PANELLA, J.

Appellant, Wilfredo Terrado Smith, appeals nunc pro tunc from the judgment of sentence entered October 6, 2011, in the Court of Common Pleas of Fayette County. After careful review, we affirm.

On August 19, 2010, the Fayette County Drug Task Force utilized the services of a confidential informant ("CI") to arrange a controlled buy of crack cocaine. Prior to the transaction, officers searched the CI and his car, and determined that he did not possess any cocaine or money. The officers then provided the CI with $50, and followed him to a pre-arranged location in an undercover vehicle.

It was the officers' intention that the CI would enter the residence at 6 Angle Street in Brownsville to consummate the transaction, providing a basis for a future search warrant of the premises. However, as the CI walked toward the residence, Smith came out and met him on the sidewalk. The prosecuting officer testified that he knew Smith personally and recognized him. The CI's hand briefly contacted Smith's hand, after which the CI returned to his vehicle.

The CI drove to the police station under constant surveillance by officers. Upon being searched by officers at the station, it was revealed that the CI no longer possessed any cash, but now possessed three clear plastic bags containing a substance subsequently identified as 0.33 grams of cocaine. Smith was subsequently charged with delivery of a controlled substance, possession with intent to deliver, possession of a controlled substance, and possession of drug paraphernalia. After a trial, a jury convicted Smith on all charges, and the trial court sentenced Smith on October 6, 2011 to an aggregate term of incarceration of two to four years.

Smith filed a timely pro se direct appeal of his judgment of sentence, despite the fact that trial counsel had not withdrawn from the case. This Court returned the appeal for, inter alia, failing to pay the filing fee. On March 15, 2012, Smith filed a pro se petition for relief pursuant to the Post Conviction Relief Act ("PCRA"). In his petition, Smith asserted multiple instances of ineffectiveness of counsel, including an allegation that counsel had failed to file a requested direct appeal.

After a hearing, the PCRA court granted Smith a restoration of his direct appellate rights. However, the PCRA court explicitly dismissed the remaining claims for relief contained in Smith's petition. Smith subsequently filed this counseled appeal.

On appeal, Smith seeks to raise the following issues for our review:
1. Whether the court erred in not finding defendant's trial attorney, Jenee Oliver, ineffective when attorney Oliver failed to file a formal request for discovery or a request for bill of particulars that would have revealed the date of the alleged incident to be August 19, 2010 and not August 1, 2010?
2. Whether the court erred in not granting defendant a new trial to present alibi witnesses, Jacy Kuhn, Robert Lewis, and Alyssa Caltuna, whose testimony would have raised doubts as to the culpability of the defendant?
3. Whether the court erred by failing to instruct the jury as to an alibi defense?
4. Whether the evidence was legally and factually insufficient to prove that the defendant committed the crimes of delivery of a controlled substance, 35 Pa.Cons.Stat.Ann. § 780-113(A)(30); intent to deliver a controlled substance, 35 Pa.Cons.Stat.Ann. § 780-113(A)(30); possession of a controlled substance, 35 Pa.Cons.Stat.Ann. § 780-113(A)(16); and possession of drug paraphernalia, 35 Pa.Cons.Stat.Ann. § 780-113(A)(32)?

Appellant's Brief, at 3.

Initially, we note that Smith's first two issues on appeal concern the denial of his claims, contained in his PCRA petition, that trial counsel was ineffective.[1] As noted by this Court previously, raising such issues in his nunc pro tunc direct appeal is considered a "hybrid review, " and generally not permitted absent an explicit waiver of further collateral proceedings in the trial court. See Commonwealth v. Barnett, 25 A.3d 371, 377 (Pa.Super. 2011). As there is no indication in the record that Smith has waived further opportunities for collateral review, we conclude that these issues are not properly before us.

In his third issue on appeal, Smith argues that the trial court erred in failing to instruct the jury on the role of alibi evidence. However, trial counsel did not object to "leaving that [the alibi instruction] out of the instruction." N.T., Trial, 9/7-8/2011, at 82. Thus, the issue is waived for purposes of review on direct appeal. See Pa.R.A.P., Rule 302.

In his final issue on direct appeal, Smith contends that the evidence at trial was insufficient to support his convictions. Smith does not premise his challenge on a failure of the evidence to support any specific elements of his convictions. Rather, he argues that the evidence supporting the conclusion that he is the person who committed these crimes is insufficient. We therefore will focus our analysis on the overarching issue of identity.

The standard of review for a challenge to the sufficiency of the evidence is to determine whether, when viewed in a light most favorable to the verdict winner, the evidence at trial and all reasonable inferences therefrom is sufficient for the trier of fact to find that each element of the crimes charged is established beyond a reasonable doubt. Commonwealth v. Dale, 836 A.2d 150, 152 (Pa.Super. 2003). The Commonwealth may sustain its burden of proving every element beyond a reasonable doubt by means of wholly circumstantial evidence. See Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).

The facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. See id. Any doubt raised as to the accused's guilt is to be resolved by the fact-finder. See id. As an appellate court, we do not assess credibility nor do we assign weight to any of the testimony of record. See Commonwealth v. Kinney, 863 A.2d 581, 584 (Pa.Super. 2004), appeal denied, 584 Pa. 685, 881 A.2d 819 (2005). Therefore, we will not disturb the verdict "unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances." Bruce, 916 A.2d at 662.

At trial, Detective John Brant testified that he had a clear view of the transaction from about 5 or 6 car lengths away. See N.T., Trial, 9/7-8/2011, at 25. He was familiar with Smith, having encountered him "easily 100 times" before. Id., at 27-28. He positively identified Smith as the person who interacted with the CI. See id.

Similarly, Detective Norman Howard testified that he had a clear view of the transaction from approximately 50 feet away. See id., at 46. He was familiar with Smith, having interacted with Smith approximately 20 times previously. See id., at 49. Detective Howard also positively identified Smith as the person who interacted with the CI. See id., at 48.

This testimony, view in the light most favorable to the Commonwealth as the verdict winner, is sufficient to establish that Smith was the person who sold cocaine to the CI. Smith's arguments regarding the distance between the detectives and the transaction, and his argument based upon the Detectives' decision not to immediately arrest him, are more properly challenges to the credibility of their testimony. As we will not re-weigh testimony pursuant to a sufficiency challenge, we conclude that this issue merits no relief.

In summary, we conclude that Smith's first two issues must await for collateral review and are not properly before this Court on direct appeal. His third issue is waived for failure to preserve it in the trial court. Finally, we conclude that the evidence at trial was sufficient to support the verdicts against him. We therefore affirm his judgment of sentence.

Sentence affirmed.

Jurisdiction relinquished.

Judgment Entered.


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