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Commonwealth v. Sweitzer

Superior Court of Pennsylvania

December 21, 2017

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH DAVID SWEITZER JR. Appellant

         Appeal from the Judgment of Sentence February 7, 2017 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0002595-2015

          BEFORE: OTT, J., STABILE, J., and STEVENS [*] , P.J.E.

          OPINION

          OTT, J.

         Joseph David Sweitzer, Jr., appeals from the judgment of sentence imposed on February 7, 2017, in the Chester County Court of Common Pleas. A jury found Sweitzer guilty of possession of a controlled substance (two counts), possession with intent to deliver (PWID), and possession of drug paraphernalia.[1] The trial court sentenced Sweitzer to an aggregate term of three to seven years' imprisonment. On appeal, Sweitzer challenges (1) the sufficiency of the evidence to sustain his convictions, and (2) the trial court's admission of a photographic image of Sweitzer's Pennsylvania Access card. After a thorough review of the submissions by the parties, the certified record, and relevant law, we affirm.

         The facts underlying Sweitzer's conviction were aptly summarized by the trial court as follows:

On March 28, 2016 at approximately 10:30 p.m., Officer Brian Bolt with the West Nottingham Township Police Department, Chester County, was on stationary patrol in the area of the WAWA parking lot. 2 Officer Bolt observed an unoccupied Dodge minivan
2 WAWA had previously requested that police officers patrol its parking lot.
parked by the gas pumps. When he checked the minivan's tag through PA CLEAN, the results showed that the tag was registered to a Toyota vehicle; not a Dodge. Subsequently, Officer Bolt observed two male individuals approach the minivan; the first male entered via the driver's door and the second male entered via the front passenger door. The minivan then moved to a parking space. Ten to fifteen minutes later, the minivan exited the WAWA parking lot. Officer Bolt followed the minivan and initiated a traffic stop to investigate the registration discrepancy. After Officer Bolt activated his overhead lights, the minivan continued to travel approximately ¼ mile before pulling over though there was plenty of opportunity for the driver to stop in a safe location immediately. Officer Bolt began his investigation by speaking with the driver and observed [Sweitzer] lying across the rear bench of the minivan screaming in pain (the middle passenger seats of the van had been removed). [Sweitzer] declined Officer Bolt's offer to call an EMS unit to address his medical issue. Officer Bolt then called for back-up and proceeded to further question the driver about the tag discrepancy.
Officer Coverly testified that he responded to Officer Bolt's request for back-up and spoke briefly with Officer Bolt before approaching [Sweitzer]. Officer Bolt requested that Officer Coverly monitor [Sweitzer] while Officer Bolt spoke with the driver. [Sweitzer] indicated to Officer Coverly that he was in pain. Officer Coverly also offered to call for medical assistance and [Sweitzer] again declined. During their conversation, [Sweitzer] volunteered that he may have an outstanding warrant. It was confirmed that there was a warrant for [Sweitzer's] arrest from Lancaster County and Officer Coverly took [Sweitzer] into custody.
Incident to the arrest, Officer Bolt conducted a search of [Sweitzer's] person. Items taken out of [Sweitzer's] pockets included: batteries [two "Cell Max" batteries, one "Rayovac" battery, and one green "Duracell" battery], debit cards, cash, a driver's license, etc. 3 Those items were laid on the ledge area of the minivan's floor and photographed. [Sweitzer] was then escorted to the patrol car for transport to the station.
3 Seizure of the items is not at issue in this appeal.
After [Sweitzer] was secured in the patrol car, Officer Coverly searched the area of the van that had been within [Sweitzer's] immediate reach, including a flannel jacket upon which [Sweitzer] had been lying. Officer Coverly lifted the flannel jacket for inspection and found a digital scale box with a razor blade taped to it. Officer Coverly also found a Newport cigarette packet in the crevice between the rear seat and the back of the rear seat. Inside the Newport packet was a tin containing suspected methamphetamine ("meth"). The Commonwealth presented photographs of the rear seat, the flannel jacket, the rectangular digital scale without its box, the Newport packet, and the tin of suspected meth that was hidden in the Newport packet. Upon a later inspection of the minivan 4, Officer Bolt found two more tins further down the crease of the rear seat. One tin contained yellow and white tablets and the other tin contained many small plastic baggies. In between the two front seats, Officer Bolt found a small black carrying bag containing a number of items including another tin with more small baggies, a metal spoon, and a second digital scale.
4 The driver of the minivan gave consent to have the minivan searched.
[Sweitzer] was transported to the station for processing. At no time during the transport or the processing did [Sweitzer] complain further about abdominal pain. During [Sweitzer's] processing, he seemed stressed and Officer Coverly offered [Sweitzer] the opportunity to smoke. [Sweitzer] stated he preferred Newport cigarettes to smoke and that he had left an empty Newport packet in the minivan.

         Trial Court Opinion, 5/19/2017, at 1-4 (record citations and footnote omitted).

         Sweitzer was subsequently charged with two counts of possession of a controlled substance, PWID, possession of drug paraphernalia, and criminal conspiracy. Prior to trial, the Commonwealth withdrew the criminal conspiracy charge. Sweitzer proceeded to a jury trial held on November 15-16, 2016 and Sweitzer was found guilty as stated above. Following sentencing, Sweitzer filed a timely post-sentence motion to modify and reduce sentence. The trial court denied this motion on February 22, 2017, and this timely appealed followed.[2]

         Sweitzer presents two questions for our review, as follows:

Was evidence presented at trial sufficient to prove constructive possession for the following offenses: Possession with Intent to Deliver, Possession of a Controlled Substance, Possession of Paraphrenalia?
Did the trial court err in admitting evidence which contained an image of [Sweitzer's] Access card, unfairly prejudicing [Sweitzer] and providing cumulative evidence of identificaton?

Sweitzer's Brief, at 2.

         In his first issue, Sweitzer contends the Commonwealth presented insufficient evidence showing he possessed the prerequisite knowledge of the existence and location of the items containing contraband, and the power and intent to exercise control over the contraband. The following principles guide our review.

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. In applying the above test, we may not weigh the evidence and substitute our judgment for [that of] the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of proving every element beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Irvin, 134 A.3d 67, 75-76 (Pa. Super. 2016) (citation omitted).

         The crime of possession of a controlled substance is defined in Section 780-113(a)(16) of The Controlled Substance, Drug, Device and Cosmetic Act (Act):

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited: …
(16) Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act.

35 P.S. § 780-113(a)(16). The crime of possession with intent to deliver is defined in Section 780-113(a)(30) of the Act:

(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. ยง 780-113(a)(3). The crime of possession of drug paraphernalia is defined in Section ...


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