J. S11046/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

DAVID HAYWOOD, : No. 2055 EDA 2019

:

 Appellant :

Appeal from the Judgment of Sentence Entered January 2, 2018,

in the Court of Common Pleas of Monroe County

Criminal Division at No. CP-45-CR-0000876-2016

BEFORE: SHOGAN, J., MURRAY, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 09, 2020

David Haywood appeals from the January 2, 2018 judgment of 

sentence1 of five to ten years’ imprisonment and a $30,000 fine, imposed after 

a jury found him guilty of possession of a controlled substance, possession 

with intent to deliver a controlled substance (“PWID”), possession of a small 

amount of marijuana, and three counts of possession of drug paraphernalia.2 

After careful review, we affirm.

 

1

In a separate sentencing order entered at No. CP-45-CR-0000115-2016, 

appellant was sentenced to three to six years’ imprisonment and a $10,000 

fine, after a jury found him guilty of possession of a controlled substance, 

PWID, possession of a small amount of marijuana, and possession of drug 

paraphernalia, and the trial court found him guilty of the summary offense of 

making an improper right turn. The issues appellant raises with respect to 

No. CP-45-CR-0000115-2016 will be addressed at Superior Court Docket 

No. 2032 EDA 2018. 

2 35 P.S. §§ 780-113(a)(16), (a)(30), (a)(31), and (a)(32), respectively.
J. S11046/19

- 2 -

The trial court summarized the relevant facts of this case as follows:

On April 4, 2016, at [4:30 p.m.] the Pocono Township 

Police Department received a call from dispatch 

advising that a complaint of a domestic disturbance 

had been received from a residence at 268 Image 

Drive in the township. Officer Earl Ackerman 

responded to the residence, and Officer Robert Gupko 

also responded in a separate vehicle. Upon pulling 

into the driveway, Officer Ackerman observed 

[appellant] leaving the front door of the residence. He 

was carrying an armload of personal belongings, 

consisting of mostly of [sic] clothing. He had a 

bleeding laceration on the top of his head. Two 

vehicles were parked in front of the house, one of 

which was [appellant’s] rented red Hyundai Elantra 

sedan. Visible in the rear of that vehicle was a pile of 

men’s clothing. A plastic bag which appeared to 

contain packets of heroin was on top of the clothing. 

The report to the police included a statement that a 

knife was involved, so the police handcuffed 

[appellant] and patted him down to look for a weapon. 

During this search, the police found a small bag of 

marijuana and $770.00 in cash. The police noticed 

the odor of marijuana about his person. When the 

police asked [appellant] about the altercation, he “was 

very evasive in explaining what had happened. I 

believe his excuse was he fell. He just said that he 

needed to get out of the residence and needed to get 

away.”

Officer Robert Gupko was the first officer on the 

scene. He saw [appellant] on the front porch of the 

residence. He was the officer who handcuffed 

[appellant] and turned him over to Officer Ackerman.

He then spoke to [appellant’s] girlfriend, 

Shanace Armstrong-Woods at the door of the 

residence. The police did a sweep of the house to 

make sure that no one in the house had been the 

subject of violence, and to make sure there weren’t 

violent actors hiding in the house. The police found 

Ms. Armstrong’s mother inside the house in a 

wheelchair. She was living in a room close to the front 
J. S11046/19

- 3 -

door of the residence. Ms. Armstrong-Woods[’] 

13[-]year-old son was upstairs. Officer Gupko could 

smell marijuana inside the residence. He sought the 

consent of Ms. Armstrong-Woods to search the 

residence, but that was denied. After [appellant] was 

placed under arrest for simple assault and transported 

from the scene, Officer Gupko sought a search 

warrant to search the house and the vehicles.

The warrant was obtained on the same day. The 

police searched the house and the Hyundai Elantra in 

front of the house that evening. In the master 

bedroom of the house, the police found what they 

believed was a small bag of cocaine, marijuana cigar 

papers and two small bags of marijuana. In a top 

right dresser drawer in the master bedroom the police 

found an expired temporary Pennsylvania driver’s 

license for [appellant], a Pennsylvania driver’s license

belonging to Ms. Armstrong-Woods, rubber bands, 

packets of heroin, and a plastic bag full of smaller 

plastic bags; a taped-up magazine cover of a type 

typically used to package bricks of heroin. (50 bags.) 

The police found no paraphernalia in the house for 

ingestion of heroin.

The Commonwealth established that there were two 

closets in the bedroom of the house; one contained 

women’s clothing and the other was empty. This was 

offered to show the jury that [appellant] had removed 

his clothing from the bedroom and was in the process 

of loading them into the car. 

The police also searched the Hyundai Elantra sedan 

rented by [appellant]. The vehicle was parked in front 

of the garage of 268 Image Drive. Before the police 

entered the car, they observed a large amount of 

suspected heroin in the back seat on top of a pile of 

clothing. It was in a large ziplock bag. The vehicle 

was locked, so the police gained entry by popping the 

lock. Inside the car they found a pile of men’s clothing 

on the back seat under the bag of heroin. The bag of 

heroin contained fifteen “bricks” of heroin consisting 

of 750 individual glassine packets. (Packets of 50). 
J. S11046/19

- 4 -

Ms. Armstrong-Woods told Officer Gupko that 

[appellant] had rented the vehicle from Hertz.

Jennifer Libus, a forensic scientist in the Pennsylvania 

State Police Wyoming Regional Laboratory testified 

that she tested the drugs found by the police in 

[appellant’s] vehicle and residence. She found the 

substances to include marijuana, approximately 

1.8 grams; the chunky substance in the plastic bag 

contained alpha-PVP, a substituted cathinone, a bath 

salt; 10 white glassine packets of heroin stamped 

“Dab[”;] 10 white glassine packets of heroin stamped 

“Formula 1[”;] 750 white glassine packets of heroin 

stamped “420, Ride or Die.” The heroin was 

determined to weigh approximately 15 grams. 

Officer Christopher Shelly of the Stroud Area Regional 

Police Department was called as an expert in the field 

of narcotics investigation and drug trafficking. Officer 

Shelly reviewed the fact that police found 770 bags of 

heroin in [appellant’s] house and car. He testified that 

the “street value” of this heroin was $7,000 to $8,000. 

“For a mid-level dealer, this is a decent amount of 

heroin.” Officer Shelly said this amount of heroin was 

for sales, not personal use. He pointed out that 

[appellant] had $770 in cash on his person in low 

denominations, a sign of involvement in drug 

trafficking. The 750 bags of heroin were set up in 

bundles, 10 bags, or bricks, 50 bags. The magazine 

wrappers found in the drawer with the heroin are 

consistent with the manner in which New Jersey 

heroin sources package heroin. “They will take a 

magazine, they will rip a page out of the magazine, 

they will put the brick of heroin in there and they’ll 

wrap it up like a present.”

Trial court opinion, 6/22/18 at 1-4 (citations to notes of testimony omitted).

On June 21, 2016, appellant filed an omnibus pretrial motion to 

suppress all the physical evidence seized by police in connection with the 

execution of the search warrant at the Armstrong-Woods residence. Following 
J. S11046/19

- 5 -

a hearing, the suppression court denied appellant’s motion on October 27, 

2016. The Commonwealth’s subsequent motion to consolidate Nos. CP-45-

CR-0000115-2016 and CP-45-CR-0000876-2016 was denied by the trial court 

on November 15, 2016. On November 14, 2017, appellant proceeded to a 

jury trial and was found guilty of PWID, possession of a controlled substance, 

possession of a small amount of marijuana, and three counts of possession of 

drug paraphernalia. On January 2, 2018, appellant proceeded to a sentencing 

hearing for both Nos. CP-45-CR-0000115-2016 and CP-45-CR-0000876-

2016. (See notes of testimony, 1/2/18 at 27-33.) That same day, the trial 

court entered a separate sentencing order at No. CP-45-CR-0000876-2016, 

sentencing appellant to five to ten years’ imprisonment and a $30,000 fine. 

(Sentencing order “No. 876 Criminal 2016,” 1/2/18.) Appellant filed timely, 

joint post-sentence motions for reconsideration of sentence and a new trial 

based on the weight of the evidence, which were denied by the trial court. 

Thereafter, appellant filed separate, timely notices of appeal at each docket 

number, listing both docket numbers on each.

3

 

3 The record reflects that on July 30, 2018, appellant complied with the trial 

court’s order and filed a timely concise statement of errors complained of on 

appeal, in accordance with Pa.R.A.P. 1925(b), for each corresponding docket 

number. On August 17, 2018, the Honorable Arthur L. Zulick filed a 

Rule 1925(a) opinion, addressing appellant’s claims relating to the trial and 

post-sentence proceedings, and relying, in part, on his June 22, 2018 opinion 

that denied appellant’s post-sentence motions. Subsequently, on August 21, 

2018, the Honorable Jonathan Mark filed a supplemental Rule 1925(a) 

opinion, indicating that he was relying on the reasoning set forth in his prior 

October 27, 2016 order denying appellant’s suppression motion.
J. S11046/19

- 6 -

Prior to consideration of the merits of this appeal, we must first address 

whether appellant’s notice of appeal complied with the requirements set forth 

in the Pennsylvania Rules of Appellate Procedure and Commonwealth v. 

Walker, 185 A.3d 969 (Pa. 2018). In Walker, our supreme court provided 

a bright-line mandate requiring that “where a single order resolves issues 

arising on more than one docket, separate notices of appeal must be filed for 

each case,” or the appeal will be quashed. Id. at 971, 976-977. The Walker

court applied its holding prospectively to any notices of appeal filed after 

June 1, 2018. In the instant case, the record demonstrates that appellant 

filed separate notices of appeal at each docket number on July 5, 2018; 

however, the notices of appeal referenced both docket numbers in their 

respective captions. A recent en banc panel of this court held that such a 

practice does not invalidate appellant’s separate notices of appeal. 

Commonwealth v. Johnson, A.3d , 2020 WL 3869723 (Pa.Super. 

July 9, 2020) (en banc). Moreover, we note that this case does not involve 

an appeal of a single order resolving issues arising on both docket numbers. 

On the contrary, the trial court entered separate sentencing orders at each 

docket number in this matter, and therefore, Walker is not implicated. 

Accordingly, we shall consider the merits of appellant’s appeal.
J. S11046/19

- 7 -

Appellant raises the following issues4for our review:

[I.] Whether the suppression court should have 

granted [a]ppellant’s motion to suppress 

because the warrant was not supported by 

probable cause and not sufficiently tied to the 

targeted areas?

[II.] Whether the trial court improperly allowed 

Officer Christopher Gupko to render expert 

opinions on drug trafficking when he was not 

admitted as an expert?

[III.] Whether the trial court improperly allowed 

Officer Christopher Shelly to render opinions on 

who possessed narcotics, when his testimony 

was limited to that as an expert on drug 

trafficking?

[IV.] Whether there was insufficient evidence to 

convict [a]ppellant of any of the charges, 

particularly considering that (1) this case arose 

out of a domestic violence report between 

[a]ppellant and his ex-girlfriend, 

(2) [a]ppellant’s ex-girlfriend had equal access 

and control of the drugs, (3) the ex-girlfriend 

vehemently refused consent to search the 

home; and that (4) incriminating statements 

about [a]ppellant’s access to the drugs were 

provided by the ex-girlfriend?

[V.] Whether the trial court should have granted 

[a]ppellant’s motion for a new trial based upon 

after-discovered evidence, where it was 

discovered after sentencing that [a]ppellant’s 

ex-girlfriend was dealing in large amounts of 

heroin from the residence, particularly 

considering (1) [a]ppellant could not have 

 

4 We note that appellant filed a single brief for Nos. CP-45-CR-0000876-2016

and CP-45-CR-0000115-2016. As noted, this memorandum will address only 

those issues appellant raises with respect to No. CP-45-CR-0000876-2016. 

Any issues appellant raises with respect to No. CP-45-CR-0000115-2016 will 

be addressed at Superior Court Docket No. 2032 EDA 2018.
J. S11046/19

- 8 -

known that his ex-girlfriend was being 

investigate [sic] for heroin dealing by police 

from the very first moment of [a]ppellant’s 

arrest and incarceration in this case, and 

(2) that [a]ppellant could not have known his 

ex-girlfriend would be charged for heroin 

dealing in large amounts, from the residence in 

which [a]ppellant was alleged to have dealt 

heroin, nine (9) days after [a]ppellant’s 

sentencing in this case?

Appellant’s brief at 6-8 (citations to notes of testimony, extraneous 

capitalization, and footnote omitted).5

I. Motion to Suppress

Appellant’s claim with regard to the denial of his suppression motion is 

two-fold. Appellant first argues the suppression court erred in denying his 

suppression motion “because the warrant was not supported by probable 

cause and not sufficiently tied to the targeted areas[.]” (Id. at 6, 33.) 

Our standard of review when addressing a challenge to a trial court’s 

denial of a suppression motion is well settled.

[An appellate court’s] standard of review in 

addressing a challenge to the denial of a suppression 

motion is limited to determining whether the 

suppression court’s factual findings are supported by 

the record and whether the legal conclusions drawn 

from those facts are correct. Because the 

Commonwealth prevailed before the suppression 

court, we may consider only the evidence of the 

Commonwealth and so much of the evidence for the 

defense as remains uncontradicted when read in the 

context of the record as a whole. Where the 

 

5 For the ease of our discussion, we have renumbered appellant’s issues.
J. S11046/19

- 9 -

suppression court’s factual findings are supported by 

the record, [the appellate court is] bound by [those] 

findings and may reverse only if the court’s legal 

conclusions are erroneous. 

Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation 

omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).

Article I, Section 8 of the Pennsylvania Constitution and the Fourth 

Amendment to the United States Constitution mandate that search warrants

must be supported by probable cause. Commonwealth v. Johnson, 42 A.3d 

1017, 1031-1032 (Pa. 2012), cert. denied, 569 U.S. 922 (2013).

[T]he question of whether probable cause exists for 

the issuance of a search warrant must be answered 

according to the totality of the circumstances test 

articulated in Commonwealth v. Gray, [] 503 A.2d 

921 (Pa. 1985), and its Pennsylvania progeny, which 

incorporates the reasoning of the United States 

Supreme Court in Illinois v. Gates, 462 U.S. 213, 

103 S.Ct. 2317 [] (1983). The task of the magistrate 

acting as the issuing authority is to make a practical, 

common sense assessment of whether, given all the 

circumstances set forth in the affidavit, a fair 

probability exists that contraband or evidence of a 

crime will be found in a particular place. A search 

warrant is defective if the issuing authority has not 

been supplied with the necessary information. The 

chronology established by the affidavit of probable 

cause must be evaluated according to a common 

sense determination. 

Commonwealth v. Arthur, 62 A.3d 424, 432 (Pa.Super. 2013) (some 

citations and internal quotation marks omitted), appeal denied, 78 A.3d 

1089 (Pa. 2013). “We must limit our inquiry to the information within the four 

corners of the affidavit submitted in support of probable cause when 
J. S11046/19

- 10 -

determining whether the warrant was issued upon probable cause.” 

Commonwealth v. Burgos, 64 A.3d 641, 656 (Pa.Super. 2013) (citation 

omitted), appeal denied, 77 A.3d 635 (Pa. 2013).

Upon review, we find that the record supports the suppression court’s 

determination that the affidavit of probable cause upon which the search 

warrant was based set forth sufficient information within its four corners to 

justify the issuance of a search warrant. The affidavit of probable cause 

consisted of 12, single-spaced paragraphs detailing Officer Gupko’s extensive 

training in narcotics investigation and his April 4, 2016 response to a domestic 

disturbance at the residence shared by appellant and Armstrong-Woods. (See

“Application for Search Warrant – Affidavit of Probable Cause,” 4/4/16 at 2-3.) 

The affidavit indicates that upon arriving at the residence, Officers Gupko and 

Ackerman encountered appellant with an armload of clothing attempting to 

move items to his vehicle. (Id. at 3, ¶ 6.) The affidavit further indicates that

after speaking with appellant, the officers detected a “strong odor of 

marijuana” emanating from appellant’s person. (Id.) The affidavit also

indicates that Officer Gupko spoke with Armstrong-Woods, who informed him 

that she and appellant had argued over their finances, which culminated with 

appellant’s grabbing a knife and demanding her keys. (Id. at ¶ 7.) Based on 

these observations, the officers placed appellant under arrest and conducted 

a frisk of his person, which yielded a small plastic bag containing 2.4 grams 

of marijuana. (Id.) The affidavit also indicates that while speaking with 
J. S11046/19

- 11 -

Armstrong-Woods, both officers detected a strong odor of raw marijuana 

coming from inside the residence. (Id. at ¶ 8.) When questioned about this 

observation, Armstrong-Woods stated that appellant had smoked marijuana 

inside the residence earlier in the day, which appellant later confirmed at the 

police station. (Id. at ¶¶ 8-9.) The affidavit also indicates that two vehicles 

were parked in the driveway of the residence at this time, one of which was a

rental vehicle. (Id. at ¶ 10.) Additionally, the affidavit indicates that the 

officers were aware of appellant’s extensive criminal history, which included 

no less than ten drug-related arrests since 2002. (Id. at ¶ 11.)

Based on the foregoing, we find that the record supports the suppression 

court’s conclusion that “[t]hese circumstances . . . establish a fair probability 

that contraband or evidence of a crime would be discovered in the residence 

and vehicles located on the property.” (Suppression court order, 10/27/16 

at 2.) Accordingly, appellant’s contention that the warrant was not supported 

by probable cause nor sufficiently tied to the targeted areas must fail.

Appellant next argues that there is an insufficient nexus between the 

affidavit of probable cause and the areas searched, including his rental vehicle. 

(Appellant’s brief at 20, 35-41.) In support of this contention, appellant relies 

on United States v. Brown, 828 F.3d 375 (6th Cir. 2016), and 

Commonwealth v. Flaherty, 583 A.2d 1175 (Pa.Super. 1990). 

Pennsylvania Rules of Criminal Procedure 205 and 206 mandate that an 

application for a search warrant and accompanying affidavit of probable cause 
J. S11046/19

- 12 -

must contain, inter alia, the “name or describe with particularity the person 

or place to be searched[.]” Pa.R.Crim.P. 205(3); Pa.R.Crim.P. 206. 

Contrary to appellant’s contention, our review indicates that the April 4, 

2016 application for the search warrant sets forth a description of the premises 

to be searched with the requisite specificity:

268 Image Dr. 268 is in a red multi[-]unit town 

house. Apartment 268 is on the left side if you are 

facing the residence from the street. The residence is 

a multi level unit with a main floor and basement area, 

on the outside of the residence is red texture 111 

siding on a concrete block foundation. The number 

268 is marked on the outside entry door. There are 

two vehicles in the residence a 2006 Maroon Chevrolet 

Trailblazer bearing PA registration JPC6623 registered 

to Samoy COX [(the sister of appellant’s girlfriend)] 

and a West Virginia registration 6YU367 registered to 

PV holdings corporation in Charleston[,] South 

Carolina [(appellant’s rental vehicle)].

Application for search warrant, 4/4/16 at 1, 5.

Moreover, we find that appellant’s reliance on Brown and Flaherty is

misplaced. Brown involved a situation where police sought a search warrant 

for the defendant’s home after they recovered drugs from a car that was 

parked at a codefendant’s house but was registered to the defendant’s home 

address. Brown, 828 F.3d at 379-380. The affidavit also stated that the 

defendant had a criminal history involving drug offenses. Id. at 380. The 

Sixth Circuit Court of Appeals rejected the Commonwealth’s argument that 

these facts were sufficient to establish probable cause to search the 

defendant’s residence, noting that, “whether an affidavit establishes a proper 
J. S11046/19

- 13 -

nexus is a fact-intensive question resolved by examining the totality of the 

circumstances presented.” Id. at 382. The Brown court held that “if the 

affidavit fails to include facts that directly connect the residence with the 

suspected drug dealing activity, . . . it cannot be inferred that drugs will be 

found in the defendant’s home—even if the defendant is a known drug dealer.” 

Id. at 384. 

Brown is factually distinguishable from the instant matter. Unlike 

Brown, the affidavit in this case did not fail to “draw some plausible 

connection to the residence” or his vehicle. See id., 828 F.3d 385. Appellant’s 

vehicle was parked in the driveway directly outside of the residence and not 

at the home of an unrelated, third party. (“Application for Search Warrant –

Affidavit of Probable Cause,” 4/4/16 at 3, ¶ 10.) Moreover, the arresting 

officers’ knowledge of appellant’s extensive criminal history in drug trafficking 

was but one factor set forth in the affidavit of probable cause in support of the 

search warrant. (See id. at ¶ 11.)

Similarly, Flaherty is distinguishable. Flaherty involved an informant 

who told police that the defendant will “deliver pills to special customers using 

his car” that he had just purchased with profits from his drug dealing. 

Flaherty, 583 A.2d at 1176. Based on these allegations, the police obtained 

and executed a warrant while defendant was washing his car. Id. at 1177. 

The Flaherty court affirmed the trial court’s order suppressing evidence of 

drugs seized from the defendant’s automobile. Id. at 1176. In reaching this 
J. S11046/19

- 14 -

decision, the Flaherty court held that there was no probable cause to believe 

that there were drugs in the car at the time the warrant was issued, as the 

informant did not indicate that he had ever seen drugs in the car and only 

implicated the defendant in future conduct. Id. at 1178-1179.

Unlike in Flaherty, the warrant in this case was not executed without 

independent corroboration that any illegal drug activity was occurring on the 

premises. See id., 583 A.2d at 1178-1179. As noted, upon arriving at the 

scene, Officers Gupko and Ackerman detected a “strong odor of marijuana” 

emanating from both appellant’s person and the residence itself. (“Application 

for Search Warrant – Affidavit of Probable Cause,” 4/4/16 at 3, ¶ 8.) 

Additionally, appellant was observed moving an armload of personal 

belongings from the residence to his vehicle. (Id. at ¶ 6.)

Based on the foregoing, appellant’s contention that the evidence seized 

by police should have been suppressed pursuant to Brown and Flaherty must 

fail.

II. Officer Gupko’s Testimony

Appellant next argues that the trial court abused its discretion in 

permitting Officer Gupko to render an expert opinion on drug trafficking when 

he was not admitted as an expert. (Appellant’s brief at 41.) The record belies 

this claim.
J. S11046/19

- 15 -

“[T]he admission of evidence is within the sound discretion of the trial 

court and will be reversed only upon a showing that the trial court clearly 

abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106 

(Pa.Super. 2012) (citation omitted), appeal denied, 76 A.3d 538 (Pa. 2013). 

“An abuse of discretion is not merely an error of judgment; rather discretion 

is abused when the law is overridden or misapplied, or the judgment exercised 

is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, 

as shown by the evidence or the record.” Commonwealth v. Antidormi, 84 

A.3d 736, 745 (Pa.Super. 2014) (citation omitted), appeal denied, 95 A.3d 

275 (Pa. 2014).

Pennsylvania Rule of Evidence 701 governs the admission of opinion 

testimony by lay witnesses and provides as follows:

If a witness is not testifying as an expert, testimony 

in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s 

perception;

(b) helpful to clearly understanding the 

witness’s testimony or to determining a 

fact in issue; and

(c) not based on scientific, technical, or other 

specialized knowledge within the scope of 

Rule 702.

Pa.R.E. 701(a)-(c).

Rule 702, in turn, governs the admission of expert witness testimony 

and provides as follows:
J. S11046/19

- 16 -

A witness who is qualified as an expert by knowledge, 

skill, experience, training, or education may testify in 

the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other 

specialized knowledge is beyond that 

possessed by the average layperson;

(b) the expert’s scientific, technical, or other 

specialized knowledge will help the trier of 

fact to understand the evidence or to 

determine a fact in issue; and

(c) the expert’s methodology is generally 

accepted in the relevant field.

Pa.R.E. 702(a)-(c).

We have explained that,

[a] witness can qualify as both a fact and expert 

witness and an expert may base an opinion on fact or 

data in the case that the expert has personally 

observed. . . . [a] law-enforcement officer’s testimony 

is a lay opinion if it is limited to what he observed ... 

or to other facts derived exclusively from [a] 

particular investigation. On the other hand, an officer 

testifies as an expert when he brings the wealth of his 

experience as [an] officer to bear on those 

observations and ma[kes] connections for the jury 

based on that specialized knowledge.

Commonwealth v. Huggins, 68 A.3d 962, 969 (Pa.Super. 2013) (citations 

and internal quotation marks omitted; brackets in original), appeal denied, 

80 A.3d 775 (Pa. 2013).

Here, Officer Gupko testified at great length with regards to his training 

and experience in narcotics investigations, his response to the scene on 

April 4, 2016, and his subsequent execution of a search warrant at appellant’s
J. S11046/19

- 17 -

residence. At trial, Officer Gupko was questioned about the significance of the 

cash found on appellant’s person following his arrest, and opined, over 

appellant’s objection, as follows: 

Q. So the large denominations -- did the large 

denominations of money or a large sum of 

money have significance to you as a whole in 

this scenario?

A. Yeah, it would.

Q. And what would that significance be?

A. That would -- drug dealers, when we deal 

with them, they carry a lot of money with 

them, whether it’s from dealing all day or 

if they go [to] what we call “re-up,” which 

is [to] go to wherever they go to get more 

drugs. They would have a bunch of money 

with them. Most of the time they have a 

large sum of cash with them.

. . . .

Q. Did that quantity of the denominations of money 

-- does that have significance to you to the 

quantity of heroin that was found in the vehicle?

A. The particular amount of money versus 

what was found in the vehicle -- what was 

found in the vehicle would be worth way 

more than what was found on [appellant]. 

The street value of the exact -- I guess you 

would have to break it down into if it was 

sold in individual packets or all together. 

But the actual value of what was recovered 

versus what he had in his pocket or any 

correlation between it -- the best answer I 

can give you is that drug dealers carry a lot 

of money, and that’s just part of the game.

Notes of testimony, 11/14/17 at 106-107 (emphasis added). 
J. S11046/19

- 18 -

Upon review, we discern no abuse of discretion on the part of the trial 

court in permitting this testimony to be admitted into evidence. The record 

indicates that Officer Gupko was present at the scene when Officer Ackerman 

searched appellant incident to his arrest and found $770 in cash on his person. 

(See notes of testimony, 11/14/17 at 105.) Officer Gupko’s testimony was 

clearly based upon his investigation of the crime scene and his nine years’ 

experience as part of the Monroe County Drug Task Force. (See notes of 

testimony, 11/14/17 at 45-55.) Contrary to appellant’s contention, this is not 

the type of “scientific, technical, or other specialized knowledge within the 

scope of Rule 702.” Pa.R.E. 701(c). As the trial court properly recognized, 

the fact that “drug dealers often are found with large sums of cash . . . is not 

a novel concept, and the jurors knew exactly how much cash [appellant] had 

and the circumstances at the time of his arrest[.]” (Trial court Rule 1925(a) 

opinion, 8/17/18 at 4-5.) Accordingly, appellant’s evidentiary challenge must 

fail.

III. Scope of Officer Shelly’s Expert Testimony

Appellant next contends that the trial court abused its discretion in 

allowing Officer Shelly to improperly “render an opinion on who possessed 

narcotics[,]” when his testimony was limited to that as an expert on drug 

trafficking. (Appellant’s brief at 42.) We disagree.
J. S11046/19

- 19 -

“[T]he rules [of evidence] governing expert and lay testimony do not 

preclude a single witness from testifying, or offering opinions, in the capacity 

as both a lay and an expert witness on matters that may embrace the ultimate 

issues to be decided by the fact-finder.” Commonwealth v. Yocolano, 169 

A.3d 47, 62 (Pa.Super. 2017) (citation omitted). Rule 704 states that “[a]n 

opinion is not objectionable just because it embraces an ultimate issue[]” to 

be decided by the trier of fact. Pa.R.E. 704. Moreover, we recognize that

the witness’[s] association to the evidence controls 

the scope of admissible evidence that he or she may 

offer. . . . [S]hould a single witness testify in dual 

capacities, the trial court must instruct the jurors 

regarding lay versus expert testimony and [tell] them 

that they [are] solely responsible for making 

credibility determinations. 

Yocolano, 169 A.3d at 62, quoting Huggins, 68 A.3d at 967, 973 (internal 

quotation marks omitted). 

At trial, Officer Shelly was qualified as an expert in the field of narcotics 

investigation and drug trafficking and testified at length with regard to how 

“bricks” of heroin are packaged by various dealers in Monroe County. (Notes 

of testimony, 11/14/17 at 142-150.) Officer Shelly was also asked to render 

his expert opinion based upon the testimony he heard from Officer Ackerman 

and Officer Gupko and his observation of the evidence seized in this case. (Id.

at 151.) In doing so, Officer Shelly opined that both the quantity and 

particular packaging of the “bricks” of heroin that were found in appellant’s 
J. S11046/19

- 20 -

dresser drawer and rental vehicle indicated that he was buying the bricks of 

heroin for resale:

A. There is [sic] 770 bags of heroin. Twenty of the 

bags were located in [appellant’s] residence. 

The other 750 bags were located in a rental car 

under his name. That is a substantial amount 

of heroin.

. . . .

There’s no way, in my opinion, that any type of 

this amount of heroin could ever be used for 

personal use. . . .

. . . .

Q. As it relates to the packaging of the narcotics in

this case, can you tell the jury why that is 

significant to you as it relates to trafficking[?]

A. Sure. Once again, he has this packaged -- so 

the 750 individual bags of heroin -- we talk 

about packaging. When you have several little 

packets, it’s already broken up for sale. In this 

case, 770 bags of heroin is [sic] broken up 

individually for sale or to sell by bundle, which 

is 10 bags, or to sell by brick, which is 50 bags.

And that’s the way his packaging was set up.

Q. In reviewing all of the evidence displayed here, 

were you able to draw any other conclusions as 

it relates to the heroin obtained in this case?

A. Yes. One thing I didn’t touch on -- and I’m sorry 

-- it’s actually not in this photo, but the brick 

wrappers that were located also in the drawer 

with the heroin. Again, New Jersey packages of 

heroin -- I don’t know why they package it this 

way, but they do. It’s been that way for my last 

15 years.
J. S11046/19

- 21 -

They will take a magazine, they will rip a page 

out of the magazine, they will put the brick of 

heroin in there and they’ll wrap it up like a

present. They will put that -- whether it’s 

20 bricks, 30 bricks, 40 bricks, or whatever it’s

going to be, and they will use tape and they’ll 

tape the heroin. It’s usually in pornographic 

magazines. I’m not sure why. It’s just usually 

the way it comes. I’ve also seen it with lottery 

tickets.

But that was located in the drawer with 

[appellant’s] ID, as well with the heroin, which 

is showing he’s buying bricks of heroin at a time.

Id. at 151-154.

Appellant’s counsel objected to Officer Shelly’s “conclusions about who 

possessed or sold the drugs” as beyond the scope of his expertise, and the 

trial court overruled his objection, indicating that appellant’s counsel could 

address this point on cross-examination. (Id. at 154-155.) The record 

reflects that appellant’s counsel did not question Officer Shelley at length on 

this point during cross-examination. (See id. at 156-158.)

Upon review, we discern no abuse of the trial court’s discretion in 

allowing this testimony to be admitted into evidence. Officer Shelly’s

testimony was properly admitted pursuant to Yocolano and Rule 704. 

Officer Shelly utilized evidence discovered during the course of the 

investigation to render his expert opinion on the quantity and packaging of 

the heroin found during the investigation. Although Officer Shelly did not

personally observe appellant purchase the 20 bricks of heroin found in his

bedroom, Officer Shelly’s inference from the heroin’s packaging that it had 
J. S11046/19

- 22 -

been purchased for resale by appellant “embrace[d] the ultimate issue[] to be 

decided by the fact-finder.” See Yocolano, 169 A.3d at 62. Moreover, the 

record reflects that the trial court properly instructed the jury pursuant to 

Yocolano on the differences between lay and expert testimony and how to 

evaluate each. (See notes of testimony, 11/14/17 at 188-191.) Accordingly, 

appellant’s claim of trial court error must fail.

IV. Sufficiency of the Evidence

Appellant next argues that there was insufficient evidence to sustain his 

convictions for possession of a controlled substance and PWID. (Appellant’s 

brief at 43.) 

In reviewing the sufficiency of the evidence, we must 

determine whether the evidence admitted at trial and 

all reasonable inferences drawn therefrom, viewed in 

the light most favorable to the Commonwealth as 

verdict winner, is sufficient to prove every element of 

the offense beyond a reasonable doubt. As an 

appellate court, we may not re-weigh the evidence 

and substitute our judgment for that of the factfinder. Any question of doubt is for the fact-finder 

unless the evidence is so weak and inconclusive that 

as a matter of law no probability of fact can be drawn 

from the combined circumstances. 

Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009) (citations 

omitted), appeal denied, 4 A.3d 1054 (Pa. 2010). 

To sustain a conviction for the crime of possession of a controlled 

substance, the Commonwealth must prove that appellant “knowingly or 

intentionally possess[ed] a controlled or counterfeit substance” without being 
J. S11046/19

- 23 -

properly registered to do so under the act. 35 P.S. § 780-113(a)(16). The 

crime of PWID requires the Commonwealth to prove an additional element: 

that appellant possessed the controlled substance with the intent to 

manufacture, distribute, or deliver it. 35 P.S. § 780-113(a)(30). 

Here, the crux of appellant’s claim is that the Commonwealth failed to 

prove that “[he] was the individual in possession or control of the narcotics” 

found in his vehicle and the bedroom he shared with his girlfriend. 

(Appellant’s brief at 43-45.) In situations where it cannot be proven that a 

suspect had the narcotics on his person, the Commonwealth is required to 

prove constructive possession. See Commonwealth v. Hopkins, 67 A.3d 

817, 820 (Pa.Super. 2013), appeal denied, 78 A.3d 1090 (Pa. 2013).

Constructive possession is a legal fiction, a pragmatic 

construct to deal with the realities of criminal law 

enforcement. Constructive possession is an inference 

arising from a set of facts that possession of the 

contraband was more likely than not. We have 

defined constructive possession as conscious 

dominion. We subsequently defined conscious 

dominion as the power to control the contraband and 

the intent to exercise that control. 

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super. 2012) (citations 

and internal quotation marks omitted), appeal denied, 63 A.3d 1243 (Pa. 

2013). As with any other element of a crime, the Commonwealth may sustain 

its burden of proving constructive possession by means of wholly 

circumstantial evidence. Hopkins, 67 A.3d at 820. 
J. S11046/19

- 24 -

Courts in this Commonwealth have long recognized that two persons 

may constructively possess narcotics at the same time. Commonwealth v. 

Katona, 191 A.3d 8, 12 (Pa.Super. 2018), appeal granted, 200 A.3d 8 (Pa. 

2019); see also Commonwealth v. Johnson, 26 A.3d 1078, 1094 (Pa. 

2011) (“constructive possession may be found in one or more actors where 

the item [at] issue is in an area of joint control and equal access.” (citation 

and internal quotation marks omitted)). A marital relationship between the 

parties is not necessary. See Commonwealth v. Jackson, 659 A.2d 549, 

550 (Pa. 1995), citing Commonwealth v. Mudrick, 507 A.2d 1212, 1213-

1214 (Pa. 1986).

Viewing the evidence in the light most favorable to the Commonwealth 

as the verdict winner, we conclude that there was sufficient evidence to 

establish that appellant constructively possessed the narcotics found in his 

vehicle and the bedroom he shared with Armstrong-Woods. The record 

establishes that police found the following items in a dresser located in the 

master bedroom of Armstrong-Woods’ residence: appellant’s expired 

temporary Pennsylvania driver’s license; a Pennsylvania driver’s license 

belonging to Armstrong-Woods; rubber bands; packets of heroin; a plastic 

bag full of smaller plastic bags; and a taped-up magazine cover similar to 

those typically used to package bricks of heroin. (Notes of testimony, 

11/14/17 at 62.) The record further establishes that police also found a small 

bag of what they believed to be cocaine, marijuana cigar papers, and two 
J. S11046/19

- 25 -

small bags of marijuana in the master bedroom. (Id. at 58-59.) Additionally, 

no paraphernalia for the ingestion of heroin was found in the residence. (Id.

at 71.)

The Commonwealth presented evidence at trial to establish that there 

were two closets in the residence’s master bedroom, one that contained 

women’s clothing and the other of which was empty. (Id. at 83.) Additionally, 

Officer Ackerman testified that when he arrived on the scene, he observed 

appellant exiting the residence and walking towards his vehicle with an armful

of personal belongings and clothing. (Id. at 29, 33.) Officer Ackerman opined 

that appellant was trying to leave in said vehicle, and Armstrong-Woods later 

informed the officers that appellant had rented this vehicle from Hertz. (Id. 

at 33, 76.) A subsequent search of this vehicle yielded a large ziplock bag 

sitting in plain view on top of a pile of men’s clothing in the back seat, which 

contained 15 “bricks” of heroin consisting of 750 individual glassine packets. 

(Id. at 72-73.)

Based on the foregoing, we find that the Commonwealth presented 

sufficient evidence for the jury to conclude that appellant possessed “the

power to control the [narcotics] and the intent to exercise that control.” See 

Brown, 48 A.3d at 430. Accordingly, appellant’s sufficiency claim must fail. 
J. S11046/19

- 26 -

V. After-Discovered Evidence

In his final issue, appellant contends that the trial court should have 

granted his motion for a new trial based upon after-discovered evidence “that 

[Armstrong-Woods] was dealing in large amounts of heroin from the 

residence” with another individual. (Appellant’s brief at 8, 45-50.)

After-discovered evidence is the basis for a new trial 

when it: 1) has been discovered after the trial and 

could not have been obtained at or prior to the 

conclusion of trial by the exercise of reasonable 

diligence; 2) is not merely corroborative or 

cumulative; 3) will not be used solely for impeaching 

the credibility of a witness; and 4) is of such nature 

and character that a new verdict will likely result if a 

new trial is granted. Further, the proposed new 

evidence must be producible and admissible. 

Commonwealth v. Chamberlain, 30 A.3d 381, 414 (Pa. 2011) (citations 

and internal quotation marks omitted), cert. denied, 566 U.S. 986 (2012).

Here, the trial court authored a comprehensive and well-reasoned 

opinion that thoroughly addresses and disposes of appellant’s after-discovered 

evidence claim. Specifically, we agree with the trial court that appellant failed 

to present any evidence that “[Armstrong-Woods] was involved with 

drug-dealing with another person besides [appellant] at the time of [his]

arrest.” (Trial court opinion, 6/22/18 at 9-10.) Additionally, we agree that 

“evidence of [Armstrong-Woods’] actions in January 2018 would not be 

relevant in a trial of [appellant] for his actions on April 4, 2016.” (Id. at 10.) 

Accordingly, we adopt the pertinent portions of the trial court’s well-reasoned 
J. S11046/19

- 27 -

June 22, 2018 opinion as our own for purposes of this appellate review. (See

id. at 8-10.)6 

For all the foregoing reasons, we affirm the trial court’s January 2, 2018 

judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/9/20

 

6 The trial court’s opinion also addresses appellant’s sufficiency of the evidence 

claim, which we addressed in detail at Subsection IV, infra.