from the Judgment of Sentence February 7, 2017 In the Court
of Common Pleas of Chester County Criminal Division at No(s):
BEFORE: OTT, J., STABILE, J., and STEVENS [*] , P.J.E.
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. 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.
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
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.
Court Opinion, 5/19/2017, at 1-4 (record citations and
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.
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
Sweitzer's Brief, at 2.
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
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).
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
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
(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)(3). The crime of possession of drug
paraphernalia is defined in Section ...