J-A15027-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JONATHAN DOUGLAS CARPER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1007 MDA 2017

Appeal from the Judgment of Sentence June 13, 2017

In the Court of Common Pleas of Cumberland County Criminal Division at 

No(s): CP-21-CR-0002132-2016

BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.: FILED JULY 10, 2018

Jonathan Douglas Carper (Appellant) appeals from the judgment of 

sentence imposed after a jury convicted him of possession of a controlled 

substance and possession with intent to deliver a controlled substance

(PWID).

1

 Upon review, we affirm.

The trial court summarized the facts introduced at trial as follows:

On June 17, 2016, Patrolman Sturm and Corporal Bucher 

encountered [Appellant] in a parking lot in the 100 Block of East 

Louther Street. The parking lot was adjacent to an apartment 

complex in which [Appellant] lived. They recognized [Appellant] 

as a person for whom a warrant had been issued. Upon executing 

the warrant, Corporal Bucher performed a search of [Appellant]. 

He discovered what appeared to be heroin packaged in both 

bundles and loose bags. The heroin was hidden in [Appellant’s] 

shoe. Altogether, he seized thirty-three (33) bags of suspected 

heroin, some of which were stamped with the label “Versace.” He 

also seized a cellphone and $89 in cash. Testing later confirmed 

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1 35 P.S. §§ 780-113(a)(16), (30).
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that the “Versace” bags only contained heroin, whereas the 

unbranded bags contained heroin as well as fentanyl. [Appellant] 

did not have any paraphernalia with which to ingest the heroin.

At trial, Corporal Bucher testified as an expert in drug law 

enforcement and street-level drug activity. He opined that the 

large amount of heroin contained in bundles as well as loose bags 

possessed without a means of ingestion would indicate possession 

for the purpose of sale rather than for personal use. It is also 

significant that [Appellant] was wearing multiple layers of clothing 

despite the fact that it was nearly [s]ummer.

Trial Court Opinion, 10/19/17, at 1-2 (footnotes omitted).

On June 13, 2017, the trial court sentenced Appellant to 9 – 23 months 

of incarceration. Appellant filed this timely appeal on June 22, 2017. 

Appellant and the trial court have both complied with Pa.R.A.P. 1925.

Appellant presents a single issue for our review:

WAS THERE INSUFFICIENT EVIDENCE TO PROVE BEYOND A 

REASONABLE DOUBT THAT [APPELLANT] INTENDED TO DELIVER 

THE HEROIN IN HIS POSSESSION?

Appellant’s Brief at 5.

We review Appellant's sufficiency of the evidence claim under the 

following standard:

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 factfinder. 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 
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may sustain its burden of proving every element of the crime 

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. Vargas, 108 A.3d 858, 867–68 (Pa. Super. 2014) (en 

banc) (citations omitted), appeal denied, 121 A.3d 496 (Pa. 2015).

Appellant challenges his conviction of PWID under the Controlled 

Substance, Drug, Device and Cosmetic Act, which prohibits “the manufacture, 

delivery, or possession with intent to manufacture or deliver, a controlled 

substance by a person not registered under this act. . . ” 35 P.S. § 780-

113(a)(3). To prove Appellant guilty of PWID, the Commonwealth had to 

establish beyond a reasonable doubt that Appellant possessed a controlled 

substance and did so with the intent to deliver it. Commonwealth v. 

Bricker, 882 A.2d 1008, 1015 (Pa. Super. 2005) (citation omitted). In 

determining whether there is sufficient evidence to support a PWID conviction, 

all facts and circumstances surrounding the possession are relevant, and the 

Commonwealth may establish the essential elements of the crime by 

circumstantial evidence. Id. Factors to be considered in determining whether 

the drugs were possessed with the intent to deliver include the particular 

method of packaging, the form of the drug, and the behavior of the defendant.

Id.
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Appellant argues that the evidence was insufficient to support his 

conviction because he possessed only “a small amount of heroin; only one cell 

phone; an insignificant amount of money; and paraphernalia to ingest the 

heroin.” Appellant’s Brief at 12-13. Appellant contends that the heroin was 

“packaged in a manner consistent with personal use,” and his cash sufficed as 

paraphernalia based on Corporal Bucher’s testimony that heroin users snort 

heroin through rolled bills. Id. at 13-19. Appellant also notes that there was 

no testimony about his behavior at the time he encountered the police – in 

particular, Appellant “was not observed taking part in any drug transactions” 

– which would support the intent to distribute the heroin. Id.

In contrast, the Commonwealth asserts that Appellant was in possession 

of “a large quantity of heroin with no paraphernalia or means to facilitate 

personal use.” Commonwealth Brief at 5. The Commonwealth also argues 

that the jury acted properly in their role as fact-finder in crediting the expert

testimony of Corporal Bucher, who testified to his belief that Appellant was 

selling heroin. Id. at 4.

Our review confirms the trial court’s recitation of the facts. The 

Commonwealth presented testimony from three witnesses, while Appellant 

elected not to testify or present any defense witnesses.

Carlisle Borough Patrolman Michael Sturm testified to encountering 

Appellant on June 17, 2016, around 8:30 p.m., “standing next to a vehicle 

and another gentleman” in a parking lot. N.T., 3/7/17, at 19-20. As detailed 
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below from the testimony of his fellow officer, Patrolman Sturm aided in the 

recovery of 33 bags of heroin from Appellant. Id. at 59. 

Carlisle Borough Corporal Joshua Bucher was qualified to testify as an 

expert in the field of drug law enforcement in Pennsylvania, specifically 

Cumberland County and “street-level drug activity in the Borough of Carlisle.” 

Id. at 26, 33. Corporal Bucher, like Patrolman Sturm, encountered Appellant 

on the evening of June 17, 2016. Corporal Bucher conducted a lawful search 

of Appellant, from which he recovered a cell phone and $89 in cash in 

Appellant’s pants, and four partial bundles of heroin (a total of 33 bags) in 

Appellant’s left shoe. Id. at 35-36, 46. Corporal Bucher analogized a bundle 

of heroin, which contains individual bags of heroin, to a carton of cigarettes; 

he compared a bag of heroin to a pack of cigarettes. Id. at 36-37. Corporal 

Bucher also testified that Appellant was wearing two pairs of shorts. Id. at 

37. Significantly – and contrary to Appellant’s argument – Corporal Bucher 

opined that Appellant was not in possession of drug paraphernalia. Id. at 38. 

He based his conclusion on his view that “on occasion” heroin users will “have 

a small straw or even just roll up a bill and use that to snort it,” but “a majority 

of the time it’s through a needle.” Id. In this case, Corporal Bucher did not 

notice any drug residue on the cash recovered from Appellant, stating, “The 

money was all together. None of it looked rolled up when you took it out or 

anything like that to indicate that it had been previously rolled to be used to 
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snort.” Id. Corporal Bucher stated, “In my opinion, [Appellant] possessed 

[the heroin] with the intent to deliver.” Id. at 47. He elaborated:

Like I said before, there are several factors we look at. The 

quantity. The fact that there were 33 bags comprised of four 

bundles, indicating to me that a bag is being pulled out and sold. 

The two individual baggies, again, they were – you know, he’s 

pulling bags off and selling them.

A big one, also, is the lack of a means of ingestion. I think 

I said earlier, 90 percent of the heroin users will have a needle on 

them or another way to ingest it by snorting, either a straw or a 

rolled-up dollar bill. Again, like I said, none of these bills appeared 

to have been rolled to be used to snort. There was no way for 

him to actually ingest the heroin on his person.

. . .

The fact that it was in his shoe and the fact that he’s 

standing right next to his residence, if it was going to be used for 

personal use, in my opinion, that would have been kept in his 

residence rather than in his shoe. In my opinion, the reason it 

was in his shoe is because he was selling bags of heroin to people 

as they walked up to him standing outside of his house.

N.T., 3/7/17, at 48.

Finally, Rhonda Hirschl testified to being employed as a forensic chemist 

by the Cumberland County District Attorney’s Office and was qualified as an 

expert in forensic and analytical chemistry. Id. at 63. She analyzed the five 

bags recovered from Appellant and marked “Versace,” as well as 18 of the 28 

unmarked bags recovered from Appellant.

2

 The 18 unmarked bags tested 

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2 Ms. Hirschl explained that “we have a computer program that statistically 

analyzes how many we would have to analyze to get 95 percent confidence in 

our results. Because there were 28, the computer program shows that we 
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positive for heroin and fentanyl; the five bags tested positive for heroin only. 

Id. at 68-69.

On this record, the jury convicted Appellant of PWID. Viewing this 

evidence in the light most common to the Commonwealth as verdict-winner, 

and recognizing that the Commonwealth may sustain its burden of proving 

PWID by “wholly circumstantial evidence,” Bricker, supra, we find no merit 

to Appellant’s argument that there was insufficient evidence that he possessed 

the heroin with the intent to deliver it. Accordingly, we affirm the judgment 

of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/10/2018

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would have to fully test 18 of those, so I tested 18 of the 28 and then five of 

the five. That’s just time and money saved when you statistically analyze it 

rather than do all 28.” N.T., 3/7/17, at 67-68.