J-S33037- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. CHRISTY GASKIN Appellant No. 1332 EDA 2010 Appeal from the Judgment of Sentence entered April 29 , 2010 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP

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- CR -0010890-2009
BEFORE: FORD ELLIOTT, P.J.E., OLSON, and STABILE, JJ. MEMORANDUM BY STABILE, J.: FILED AUGUST 25, 2014 Appellant, Christy Gaskin, appeals from the April 29, 2010 judgment of sentence imposing two concurrent sentences of six to twelve months of house arrest followed by three years of probation for possession of a controlled substance and possession with intent to delive r a controlled substance (“PWID”) (35 Pa.C.S.A. § 780 -113(a)(16) and (30), respectively). We affirm in part and vacate in part. The record reveals that Officer William Carrion (“Officer Carrion”) was on duty in plain clothes on January 17, 2003. N.T. T rial, 3/10/10, at 14. Officer Carrion engaged in a conversation with Corey P arks (“Parks”) on the 3300 block of Kensington Avenue in Philadelphia. Id. at 15. Parks directed the officers to 3320 Kensington Avenue, where Officer C arrion observed Appellant hanging out of a second floor window. Id. Parks and AppellantJ-S33037- 14

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conversed, and Appellant left the window to come to th e front door. Id. at 15 -16. While Appellant was en route, Officer Carrion h anded Parks a prerecorded five dollar bill. Id. at 16. When Appellant opened the front door, Parks handed her the five dollar bill and Appe llant handed Parks two heat-sealed plastic packets later determined to contain co caine. Id. at 16- 17. The interaction among Officer Carrion, Parks, and Appellant occurred while Officer Ernest Brown (“Officer Brown”) was conducting surveillance from twenty feet away. Id. at 30. Brown also observed the initial conversation between Officer Carrion and Parks. Subsequ ent to the transaction Officers Carrion and Brown summoned backup, a nd Appellant and Parks were arrested. Id. at 16, 30. Appellant proceeded to a March 10, 2010 bench trial, a t the conclusion of which the trial court found her guilty of the afor ementioned offenses. The trial court imposed sentence on April 29, 2010 and Appe llant filed this timely appeal on May 12, 2010. She challenges the sufficiency of the evidence in support of both convictions and argues her sentence for p ossession is illegal because it is a lesser included offense of PWID. Appella nt’s Brief at 2. We will address these contentions in turn. We review Appellant’s sufficiency of the evidence claim according to the following:

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 elem ent of theJ-S33037- 14

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crime beyond a reasonable doubt. In applying the abo ve test, we may not weigh the evidence and substitute our judgm ent for 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 reg arding 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 of the crime beyond a reasonabl e doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be eva luated and all evidence actually received must be considered. Final ly, the fi nder of fact while passing upon the credibility of wit nesses and the weight of the evidence produced, is free to believ e all, part or none of the evidence. Commonwealth v. Antidormi , 84 A.3d 736, 756 (Pa. Super. 2014), appeal denied , 2014 Pa LEXIS 1647 (Pa. July 7, 2014). Appellant argues the evidence is insufficient because pol ice did not recover the prerecorded five dollar bill or any drugs from her person, and because Parks later denied engaging in the transaction with her. In its Pa.R.A.P. 1925(a) opinion, the trial court rejected A ppellant’s argument based on its credibility assessments. Trial Court Opinio n, 8/9/13, at 4. 1 Specifically, the trial court found Officers Carrion an d Brown credible, and

____________________________________________ 1 On September 2, 2010, this Court sent the trial court a notice of delinquency in regards to our receipt of the certified record. The record also reflects that substitute counsel was appointed to represen t Appellant on July 15, 2011. On September 27, 2011, substitute counsel fi led a request for an extension of time to comply with the tri al court’s Pa.R.A.P. 1925(a) order, alleging the clerk of courts provided the incorrect reco rd, and then provided an incomplete one. Other than these items, we are un able to discern from the record the reasons for the lengthy delay in the p rocessing of this appeal.J-S33037- 14

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Parks not credible in light of 11 prior crimen falsi convictions. Put simply, Officer Carrion provided an eyewitness account of a dr ug transaction that took place while he was in the immediate presence of bo th parties. Officer Carrion personally observed Appellant hand two packet s to Parks in exchange for money. The trial court was free to deem Carrion’s account credible. Antidormi , 84 A.3d at 756. Subsequent testing revealed that the packets contained cocaine. Appellant cannot obtain reli ef on her sufficiency of the evidence argument. Next Appellant argues her sentence is illegal because he r possession and PWID convictions arise from the same act, and because possession is a lesser included offense of PWID. 2 Merger implicates the legality of a sentence, and as such our standard of review is de novo and our scope of review is plenary. Commonwealth v. Jenkins , 2014 Pa. Super. LEXIS 1786 (Pa. Super. July 5, 2014). This Court has indee d held that possession under § 780 -113(a)(30) is a lesser included offense of PWID and th at th e two offenses merge for sentencing purposes if they arise from a single act. Commonwealth v. Rippy , 732 A.2d 1216, 1223-24 (Pa. Super. 1999). Instantly, Appellant’s convictions plainly arise from th e same act, that being the transaction with Parks. The Commonwealth co ncedes the validity

____________________________________________ 2 “No crimes shall merge for sentencing purposes unless the cri mes arise from a single criminal act and all of the statutory ele ments of one offense are included in the statutory elements of the other o ffense.” 42 Pa.C.S.A. § 9765.J-S33037- 14

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of Appellant’s argument. Commonwealth’s Brief at 10 -11. We therefore vacate the judgment of sentence for Appellants’ violati on of 35 Pa.C.S.A. § 780-113(a)(16). Since the trial court imposed ident ical concurrent
sent ences, our result does not disturb the trial court’s senten cing scheme. We therefore need not vacate the entire sentence and r emand for resentencing. Judgment of sentence affirmed in part and vacated in p art. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/25/2014