J-S12005-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

HOWARD LEE CAMPBELL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1003 MDA 2022

Appeal from the Judgment of Sentence Entered March 14, 2022,

in the Court of Common Pleas of York County,

Criminal Division at No(s): CP-67-CR-0002424-2020.

BEFORE: KUNSELMAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED: MAY 12, 2023

Howard Lee Campbell appeals from the judgment of sentence entered 

following his conviction for possessing fentanyl with the intent to deliver.

1

 He 

challenges the sufficiency and weight of the evidence. We affirm.

The trial court summarized the evidence surrounding the controlled drug 

purchase operation that gave rise to the case against Campbell:

[I]n February of 2020[, a] confidential informant represented to 

Detective Cody Myers that they could purchase heroin from an 

individual located in Baltimore. The confidential informant could 

not provide a name of the individual, only a phone number. The 

confidential informant then met with Detective Craig 

Fenstermacher, who directed the informant to broker a deal with 

the alleged dealer.

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* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30).
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Thereafter, the confidential informant called the known 

phone number, spoke with a male individual on the other end of 

the call, and brokered a deal to purchase roughly $1,300.00 in 

what was believed to be heroin. Arrangements were then made 

between the parties for the unknown male individual to meet with 

the confidential informant at a Turkey Hill convenience store in 

York, Pennsylvania. Due to a miscommunication, the individual 

first arrived at an incorrect Turkey Hill and required redirection by 

the confidential informant to the correct Turkey Hill.

At the correct Turkey Hill, Detective[s Fenstermacher, 

Myers, and Vincent] Monte were set up to surveil the parking lot 

of the convenience store. During the redirection by the 

confidential informant, the suspect noted that he would be arriving 

to the correct Turkey Hill in a gray Nissan. Shortly thereafter, a 

gray Nissan arrived at the Turkey Hill, drove around the parking 

lot as if [the driver was] looking for something, and eventually 

parked by the air pump. At this point, the arrest team moved in 

to pull the suspect from the vehicle.

The arrest team then searched the car. They found three 

cell[ ]phones[. Using another phone, they] made a phone call to 

the number that was used by the confidential informant to set up 

the buy. One of the three phones found in the car then illuminated 

in response to the call. In addition to the cell phones, the arrest 

team also located a bag in the backseat of the car which contained 

88 capsules of what appeared to be heroin. The capsules were 

later tested and proven to be fentanyl.

[Campbell] was then arrested upon completion of the search 

of his vehicle. [Campbell] was then taken to the police station 

where he proceeded to give a statement to the police. In his 

statement, [Campbell] indicated that he was in Baltimore when 

two people whom he did not really know offered him $250.00 to 

drive to York City. [Campbell] stated that someone was supposed 

to give him $1,300.00, and he would then drive the money back

to Baltimore. [Campbell] further indicated that he believed that 

the money probably had something to do with drugs, but not that 

he was carrying said drugs.

Trial Court Opinion, 9/13/22, at 1–3 (record citations omitted).

Police charged Campbell with possession of fentanyl with intent to 

deliver under 35 P.S. § 780-113(a)(30). The case proceeded to trial beginning 
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January 31, 2022. On February 2, 2022, the jury returned a guilty verdict. 

On March 14, 2022, the trial court sentenced Campbell to 8 to 16 years of 

imprisonment followed by 1 year of probation. Campbell filed a post-sentence 

motion for a new trial based on the weight of the evidence. The trial court 

heard and denied the motion on June 15, 2022. Campbell timely appealed.2 

Campbell and the trial court complied with Pennsylvania Rule of Appellate 

Procedure 1925.

Campbell presents two issues for our review:

1. Whether the Commonwealth failed to present sufficient 

evidence to show [Campbell] possessed with the intent to 

deliver fentanyl, when the evidence failed to show he actually 

possessed the drugs?

2. Whether the jury’s verdict of possession with the intent to 

deliver a controlled substance was against the weight of the 

evidence as the verdict shocked one’s sense of justice wherein 

the Commonwealth failed to show that [Campbell] possessed 

the drugs?

Campbell’s Brief at 5.

Campbell first argues that the evidence was insufficient to prove that he 

possessed fentanyl. He contends there was insufficient evidence that he knew

that the drugs were in his car. He notes that mere presence at the scene of 

a crime is not enough to establish guilt beyond a reasonable doubt. See

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2 Campbell’s trial counsel withdrew after sentencing. Present counsel entered 

an appearance two days later and received an extension of time to file a postsentence motion. See Commonwealth v. Moore, 978 A.2d 988, 991 (Pa. 

Super. 2009) (recognizing a trial court’s authority to extend the time to file a 

post-sentence motion). Campbell filed his notice of appeal on July 5, 2022, 

within 30 days of the denial of his timely post-sentence motion. 
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Commonwealth v. Goodman, 350 A.2d 810, 811 (Pa. 1976). In the same 

vein, Campbell disputes his identity as the man with whom the confidential 

informant arranged a drug deal. See Commonwealth v. Crews, 260 A.2d 

771, 772 (Pa. 1970) (holding a generic description of a perpetrator to be 

insufficient to prove identity); Commonwealth v. Orr, 38 A.3d 868 (Pa. 

Super. 2011) (en banc) (finding circumstantial evidence sufficient to 

corroborate a victim’s initial identification of the perpetrator, despite inability 

to identify the defendant at trial).

The Commonwealth counters that the evidence of possession was 

overwhelming. It submits that the totality of the circumstances established 

that Campbell constructively possessed the drugs that were in his car when 

he was arrested. See Commonwealth v. Hopkins, 67 A.3d 817 (Pa. Super. 

2013) (finding sufficient evidence that a car driver constructively possessed a 

firearm that was within arms-length of where he was seated).

We follow a well-settled standard in reviewing a claim that the evidence 

was not sufficient to sustain a conviction:

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 fact-finder. 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.
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Commonwealth v. Smith, 288 A.3d 126, 131 (Pa. Super. 2022) (quoting 

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

Possession with intent to deliver is defined: “The following acts . . . are 

hereby prohibited: . . . possession with intent to . . . deliver . . . a controlled 

substance . . . .” 35 P.S. § 780-113(a)(30). To secure a conviction, “the 

Commonwealth must prove beyond a reasonable doubt that the defendant 

possessed a controlled substance and did so with the intent to deliver it.” 

Commonwealth v. Bricker, 882 A.2d 1008, 1015 (Pa. Super. 2005) (citing 

Commonwealth v. Conaway, 791 A.2d 359, 362 (Pa. Super. 2002)).

When controlled substances are found not on a defendant’s person, the 

Commonwealth must prove constructive possession. Id. “Constructive 

possession requires proof of the ability to exercise conscious dominion over 

the substance, the power to control the contraband, and the intent to exercise 

such control.” Id. (citing Commonwealth v. Petteway, 847 A.2d 713, 716 

(Pa. Super. 2004)). The Commonwealth can prove constructive possession 

based on the totality of the circumstances. Id.

Here, the evidence was sufficient to prove that Campbell constructively 

possessed the fentanyl in his car. When he arrived in York, Campbell was the 

only occupant of the car. The drugs were within reaching distance of his seat. 

Although Campbell denied that he knew about the drugs and provided an 

alternative explanation, the jury was free to reject his narrative and infer that 

Campbell intended to exercise control over the drugs. Notably, the 

confidential informant called the same number to talk with the person who 
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was delivering the drugs, and the person on the other end of the call described 

the gray Nissan he was driving. Notwithstanding the detective’s lack of 

positive identification, it was reasonable for the jury to infer that the person 

was Campbell, the same person who had arranged to exchange the purported 

heroin for $1,300.00 at the Turkey Hill. See N.T., 2/1/22, at 155–160. 

Therefore, the evidence was sufficient to establish that Campbell 

constructively possessed the drugs in his car.3

Campbell next argues that the trial court abused its discretion in denying 

his post-sentence motion for a new trial because the verdict was against the 

weight of the evidence. He emphasizes his testimony, consistent with his 

statements to police, that “Little James” and another man sat in his car and 

arranged to pay him $250 to collect money from Pennsylvania, that they 

provided the third cell phone, and that he was unaware that there were drugs 

in the bag in his car. Campbell submits that the jury overlooked the lack of 

direct evidence that he was the person who arranged the drug deal with the 

confidential informant. He concludes that the evidence was so unreliable and 

contradictory that the guilty verdict was based on conjecture, not reason.

Appellate review of a challenge to the weight of the evidence is subject 

to the following standard:

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3 Campbell’s arguments—and our analysis—focus on Campbell’s identity as 

the individual who possessed the fentanyl capsules. The evidence was also 

sufficient to establish that the drugs were possessed with the intent to deliver. 

See N.T., 2/1/22, at 196–199 (expert testimony of Detective Noel Velez).
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The weight given to trial evidence is a choice for the 

factfinder. If the factfinder returns a guilty verdict, and if a 

criminal defendant then files a motion for a new trial on the basis 

that the verdict was against the weight of the evidence, a trial 

court is not to grant relief unless the verdict is so contrary to the 

evidence as to shock one’s sense of justice.

When a trial court denies a weight-of-the-evidence motion, 

and when an appellant then appeals that ruling to this Court, our 

review is limited. It is important to understand we do not reach 

the underlying question of whether the verdict was, in fact, 

against the weight of the evidence. We do not decide how we 

would have ruled on the motion and then simply replace our own 

judgment for that of the trial court. Instead, this Court determines 

whether the trial court abused its discretion in reaching whatever 

decision it made on the motion, whether or not that decision is the 

one we might have made in the first instance.

Moreover, when evaluating a trial court’s ruling, we keep in 

mind that an abuse of discretion is not merely an error in 

judgment. Rather, it involves bias, partiality, prejudice, ill-will, 

manifest unreasonableness or a misapplication of the law. By 

contrast, a proper exercise of discretion conforms to the law and 

is based on the facts of record.

Commonwealth v. Arnold, 284 A.3d 1262, 1277 (Pa. Super. 2022) (quoting 

Commonwealth v. West, 937 A.2d 516, 521 (Pa. Super. 2007)).

The trial court denied Campbell’s post-sentence motion at a hearing on 

June 15, 2022. It explained the basis for its decision:

Okay. With regard to this matter, we are denying the 

motion at this time. The Court was present for the trial. The 

Court’s impression of [Campbell] is that he tried to play stupid like 

a fox. It is likely that the jury came to the same conclusion.

The drugs were in his car. It is inconceivable that he did not 

know that those drugs were in his car[. H]e absolutely had 

constructive possession of those drugs, as it was his car and there 

was no one else there, constructive possession was proven 

beyond a reasonable doubt such that a jury could absolutely find 

that that was the case.
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N.T., 6/15/22, at 2–3.

We discern no abuse of discretion. The trial court observed that the jury 

could reject Campbell’s self-serving testimony and find that he constructively 

possessed the fentanyl in his car. Id.; see also Trial Court Opinion, 9/13/22, 

at 5, 8. We agree that based on the trial evidence, the verdict was not based 

on conjecture, and the trial court did not abuse its discretion by denying 

Campbell’s motion for a new trial.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/12/2023