J

### -A16045-19
NON-PRECEDENTIAL DECISION - SEE 

### SUPERIOR COURT 

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

DWAYNE JUWAN ROSS 

### Appellant : No. 1753 MDA 2018 Appeal

### from the Judgment ofSentence Entered 

### September 28, 2018 In the Court of Common Pleas

### of Lancaster County Criminal Division at No(s): 

### CP-36-CR-0006567-2017
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS*, P.J.E. MEMORANDUM BY STEVENS, P.J.E.: 

### FILEDAUGUST 

### 02, 

### 2019 Appellant, DwayneJuwan Ross, appeals 

### from the

### judgment of sentence entered in 

### the Court of Common Pleasof Lancaster County, 

### after a

### juryfound him 

### guilty of one 

### count of Possession 

### with 

### Intent to 

### Deliver a Controlled Substance ("PWID") based on cocaine and 

### other items recovered 

### from his 

### vehicle during a 

### traffic stop. Herein, 

### Appellant contends 

### the Commonwealth failed to prove his 

### intentto 

### deliverwith sufficient evidence. We

### affirm. The 

### trial court sets 

### forth the procedural 

### history and 

### the facts 

### pertinent to a challenge to 

### the sufficiency ofthe evidence, as

### follows: Defendant 

### [hereinafter "Appellant"] was charged 

### with allegedly having 

### committed the offense of [PWID 

### (cocaine), 35 P.S. § 

### 780- 

### 113(a)(30)]. Trial in 

### the 

### instant 

### matter commenced on

### August 1, 2018, before 

### [thetrial court] and a

### jury. On 

### August 2, 2018, the 

### juryreturned a

### guiltyverdictagainstAppellant. The

### courtdirected 

### that sentencing be 

### deferred pending 

### the completion of a pre- sentence 

### investigation report.

Former Justice 

### specially assigned to 

### the Superior Court.J

### -A16045-19 Following 

### completion of the pre

### -sentence 

### investigation report, Appellant appeared before 

### [the trial court] for sentencing on 

### September 28, 2018. At such

### time, Appellantwas sentenced to a period of 

### incarceration of not less 

### tha[n] thirty-one months nor more 

### than six 

### years in 

### the state correctional system and ordered to pay

### the costs 

### of prosecution.

[The 

### underlying facts, adduced at 

### trial, established] Officer Sam Goss 

### ofthe East 

### Lampeter Township Police 

### Department testified 

### that he was 

### running a speed 

### detail in a marked police 

### cruiser

. . .

. N.T., 

### 8/1/18, at 3. At

### approximately 2:00 p.m. on 

### that date, a 

### gray or 

### silver Toyota Prius, which had

. . . 

### NLancaster Cab Company["] 

### written on 

### the side 

### of the car, was 

### traveling east at 55 miles per hour in a 35 mile per 

### hour zone. N.T, at 

### 63-64. Officer Goss

. . . 

### initiated a 

### traffic stop 

### ofthe Toyota Prius

. . . . N.T. at 64. Officer Goss

. . . 

### detected the odorof 

### burnt marijuana emanating from the

### vehicle[, and ofthe

### threeindividuals inside, he] 

### identified the 

### driver

. . . as 

### [Appellant]. N.T. 

### at 64. [The 

### officer] observed 

### remnants of 

### marijuana in 

### the laps and on 

### the shirts of the rear passengers 

### of Appellant's vehicle and 

### identified a baggie 

### with marijuana sticking out of the 

### floorboards of the 

### left passenger seat. N.T. 

### at 65. Officer Goss requested 

### that Appellant step 

### out of

### the vehicle and 

### subsequentlyobtained consent to search 

### the vehicle. N.T. at 66. 

### [He] placed both passengers 

### under 

### arrest[, and a 

### subsequent search uncovered a small bag of 

### marijuana on one person and a pipe and 

### marijuana located by 

### the 

### other person's 

### feet in 

### the 

### vehicle]. N.T. at 

### 66-67. [Officer] Goss searched

### thevehicle andfound an opened zippered pouch

### that had a clear plastic bag 

### containing suspected cocaine in 

### the center console 

### ofthe vehicle. N.T. at 

### 66-67. [Officer] Goss also found a 

### zipper 

### wallet with Appellant's Lancaster County business cards in 

### the center console. N.T. at 69. 

### [Officer] Goss 

### tookAppellantinto 

### custody and

### turned him

### overto 

### DetectiveScott Eelman so 

### that he could 

### continue his search of

### Appellant'svehicle.


## -2J

### -A16045-19 [Officer] Goss found 

### another 

### quantity of suspected cocaine in a 

### knotted clear plastic sandwich bag in 

### the map pocket of the 

### driver's side 

### compartment. N.T. at 71.

. . . 

### [Officer] Goss also 

### retrieved one

### -hundred 

### eighty-one dollars in cash 

### stuffed in 

### the sun

### visor, along

### with

### thirty-nine dollars in 

### Appellant's wallet. N.T. at 79. 

### [Officer] Goss 

### testified 

### that, when hefound the 

### dollar bills, 

### they were folded and shoved in 

### the sun 

### visor. N.T. at 128. 

### [Officer] Goss 

### subsequently charged

### Appellantwith the offense of Possession 

### with 

### Intent to 

### Deliver cocaine. N.T. at 74. 

### [Detective Eelman 

### testified and 

### corroborated OfficerGoss'account. N.T. 

### 83- 

### 87.]. [Pennsylvania State Police 

### Laboratory analysis of the suspected cocaine] 

### determined the substance in one bag weighed 

### 24.443 gramsand contained cocaine, a Schedule 

### II substance. The 

### other substance in

### the 

### otherbag

. . . weighed 

### approximately 1.22 grams and contained cocaine, a schedule 

### II controlled substance. N.T. at 

### 129-130.
Anthony Lombardo, a police 

### officer with ManheimTownship Police 

### Department, has been assigned to 

### the Lancaster County Drug Task Force since 2008. N.T. at 101.

. . . He 

### testified 

### that, when he reviews a case to 

### determine whether a person is possessing a 

### controlled substancewith the 

### intentto 

### deliversuch 

### substance, he considersall

### the

### attendantfactors,such as: 

### the

### quantityofdrugs; the presence 

### of any currency; the 

### amount of 

### currency; the presence of a 

### cellular telephone; the presence 

### of any packing 

### materials; and, 

### the presence 

### of any use 

### paraphernalia. N.T. 

### at 106-107. Officer Lombardo 

### testified 

### that use 

### paraphernalia 

### for cocaine includes

. . . small 

### mirrors, cut-up straws, rolled-up 

### dollar bills 

### with residue used to ingest the drug 

### typically through the nose. N.T. at 107.


### [Officer Lombardo] testified 

### that cocaine is 

### typically sold on 

### the 

### street by

### the gram or half gram and 

### that a gram of cocaine costs one

### -hundred dollars in Lancaster. N.T. at 108. A mid

### -level dealer would purchase an ounceof cocaine

### from another dealer, which is 

### twenty-eight grams, at a cost of one

### -thousand to one

### -thousand two-hundred dollars. N.T. at 

### 108-109. Selling a gram 

### for one 

## -3J

### -A16045-19
hundred dollars would then net a 

### profit for the mid

### -level dealer. N.T. at 109. The 

### 24.43 grams of cocaine 

### that was seized 

### from Appellant's vehiclewas a 

### littleover

### three grams shy ofan ounce. N.T. 

### at 109. Officer Lombardo also examined

. . . 

### the envelope containing 1.22 grams compressed powder cocaine. N.T. at 109. Upon review of the lab 

### report and considering the 

### amount of drugs, Officer Lombardo's opinion was 

### that these drugs were possessed 

### with intent to 

### deliver and he 

### memorialized his opinion in an 

### expert report, which was marked as 

### Commonwealth Exhibit 6. N.T. at 

### 109-110. Officer Lombardo explained 

### that the 

### amount was

### just under an ounce of cocaine,which is not

### typical 

### for a user 

### of cocaine in 

### this area. N.T. at 111. The

### amount ofcocainefound in 

### thiscasewould cost 

### approximately nine

### -hundred dollars. N.T. at 111.

. . . The 

### amount ofcocaine found [in the 

### present 

### matter] is more common 

### withwhatOfficer Lombardo

### typicallyfindswith a mid

### -level cocaine dealer. N.T. at 111. 

### Additionally, therewas no use 

### paraphernalia.

. . . N.T. at 111. Officer Lombardo

### testified 

### that cocaine users

### typically buy

### smaller amounts,which are used 

### quickly

### after purchase. N.T. at 

### 111-112. [He opined 

### that a] user 

### typically uses 

### what is purchased 

### within ten to 

### fifteen minutes of 

### their purchase. N.T. at 112. 

### Officer Lombardo also 

### testified 

### that he has 

### never seen a user

### that had a 

### bulk

### amount of

### twenty-four grams and then have a 

### separate bag 

### with

### just one 

### gram. N.T. 

### at 112. There would be no purpose 

### for this, other than breaking down the 

### larger 

### amount into gram sizes 

### for 

### distribution[, he 

### opined]. N.T. at 112. [The absence of packaging 

### paraphernalia, oftenfound in 

### the possession 

### ofdealers, did not change Officer Lombardo's opinion 

### that Appellant possessed 

### this amount ofcocaine

### with the 

### intentto 

### deliver]. N.T. at 113. Officer Lombardo 

### testified 

### that finding two cell phones, one 

### for personal use and one

### for work is

### very common 

### for drug dealers. N.T. at 112. Officer Lombardo also placed 

### significance in 

### the fact 

### that there were 

### different amounts of money located in 

### different places on

### Appellant's person and in 

### Appellant's vehicle.

. . . N.T. at 112.

. . . Again, 

### this is because dealing drugs is a 

### fast-paced 

### covertoperation so 

### money is 

### typicallystashed in several locations to be hidden 

### from plain 

### view. N.T. at 

### 112-113.

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### -A16045-19

Trial Court Opinion, 

### 12/21/18, at 1-2, 

### 4-8. Appellant presentsone 

### question 

### forthis Court's consideration: Whether the Honorable Trial Court erred in 

### holding, 

### pursuant to 

### the 1925(a) Opinion in 

### support of 

### the sentencing order, 

### that Appellant did not 

### satisfy his burden toestablish 

### thatevidence was 

### insufficient as a 

### matterof law

### with respectto 

### thecriminal 

### element of 

### intent to sustain his 

### conviction 

### for possession 

### with 

### intent to 

### deliver a 

### controlled substance? 

### Appellant's brief, at 6. We review 

### Appellant's sufficiency of the evidence claim under the 

### following standard: The

### standard we

### apply in 

### reviewing thesufficiency oftheevidence is 

### whether viewing all 

### the evidence 

### admitted at 

### trial in 

### the light most favorable to 

### the 

### verdict winner, there is 

### sufficient evidence to enable

### thefact

### -findertofind 

### everyelementofthecrime beyond a reasonabledoubt. In applying the above

### test,we 

### may notweigh the evidence and 

### substitute our 

### judgmentfor 

### [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

### thefact

### -finder unless 

### theevidence is so 

### weak and inconclusive

### that as a 

### matterof law no 

### probability of

### fact may be drawn 

### from thecombined circumstances. The 

### Commonwealth 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 ofwitnesses and 

### the 

### weight ofthe evidence produced, is 

### free to believe all, 

### part or none 

### ofthe evidence. 

### Commonwealth v. 

### Brown, 23 A.3d 544, 

### 559-560 (Pa.Super. 

### 2011) (en 

### banc), 

### quoting 

### Commonwealth v. 

### Hutchinson, 947 A.2d 

### 800, 

### 805-806 (Pa.Super. 

### 2008).


## -5J

### -A16045-19

"To sustain a 

### conviction 

### for [PWID], the Commonwealth 

### must establish the 

### defendant knowingly or 

### intentionally possessed a 

### controlled substance 

### without being 

### properly registered to do so, 

### with the 

### intent to 

### manufacture, 

### distribute, or 

### deliver it. 

### See 35 P.S. § 

### 780-113(a)(30); 

### Commonwealth v. 

### Brown, 48 A.3d 

### 426, 430 (Pa.Super. 

### 2012)." 

### Commonwealth v. 

### Dix, 207 A.3d 383 (Pa.Super. 

### 2019). Appellant argues 

### thatthe Commonwealth failed to 

### present 

### sufficient evidence of one 

### element of the PWID charge, namely, 

### intent to 

### deliver. When 

### determining whether an 

### individual in possession 

### of drugs intended to 

### deliver them, the 

### starting point is 

### the 

### quantity possessed. In Pennsylvania, the 

### intentto 

### deliver may be 

### inferred from possession 

### of a large 

### quantity of 

### controlled substance. 

### It follows 

### that possession 

### of a small 

### amount of a 

### controlled substance supports the conclusion 

### that there is an absence 

### of 

### intent to 

### deliver. Notably, if, when considering 

### only the 

### quantity of a 

### controlled substance, it is not clear 

### whether the substance is being used 

### for personal 

### consumption or 

### distribution, it then becomes necessary to analyze 

### other factors. 

### Commonwealth v. 

### Lee, 956 A.2d 1024, 1028 (Pa.Super. 

### 2008) 

### (citation and 

### quotation marks 

### omitted). See 

### also 

### Commonwealthv. 

### Ratsamy, 594 Pa. 176, 182, 934 A.2d 1233, 1237 

### (2007) (stating 

### "ifthe 

### quantity of the 

### controlled substance is not 

### dispositive as to 

### the 

### intent, the 

### court may look to 

### other factors."). The list of 

### additionalfactors includes: the 

### manner in which 

### the controlled substance was packaged, 

### the behavior of the 

### defendant, the presence 

### of drug 

### paraphernalia, and 

### [the] sums 

### of cash found in possession 

### ofthe defendant. The 

### final 

### factor to be considered is 

### expert testimony. Expert opinion 

### testimony is 

### admissible concerning 

### whether 

## -6J

### -A16045-19
the facts surrounding the possession 

### of controlled substances are 

### consistent with an 

### intent to 

### deliver rather than with an 

### intent to possess it 

### for personal use. 

### Id. at 183, 934 A.2d at 

### 1237-38 (quotation and 

### internal quotation marks 

### omitted). 

### Commonwealth v. 

### Brockman, 167 A.3d 29, 39 (Pa.Super. 

### 2017). Appellant maintains the Commonwealth failed to 

### present 

### sufficient evidence of 

### intent because he complied 

### with the 

### traffic stop, acted 

### "normal[ly]" during his 

### interaction with Officer Goss, and possessed no weapons, unused packaging 

### materials, scales, orowe sheets, all ofwhich are associated 

### with an 

### intent to 

### deliver. Appellant's brief at 12. He also denies 

### the significance ofthe large 

### amount of cash and two cell phones found in his possession, as he claims he possessed these items 

### within the scope of his 

### employment as a cab 

### driver. Viewing 

### the evidence in a 

### light most favorable to 

### the Commonwealth as 

### verdictwinner, however, we conclude

### the evidence proved 

### the 

### intent element ofthe PWID offense beyond a reasonable doubt. Here, 

### the

### jury learned 

### that Appellant possessed 24 grams ofcocaine, an 

### amount

### that is 

### approximately 24 to 48 

### times greater in 

### weightthan 

### what a local userwould 

### typically purchase, but is 

### essentiallyequal to 

### what a mid

### -level dealerwould purchase 

### from a large dealer. On 

### this point, Detective Lombardo 

### testified 

### that never in his 

### nearly ten 

### years of drug 

### task force service had he 

### encountered someone who had purchased 

### this amount for personal use.



## -7J

### -A16045-19

Detective Lombardo also 

### testified 

### that the lack of unused packaging or 

### paraphernalia in 

### this 

### matter was of 

### little significance considering 

### Appellant
was in his car 

### with the 

### equivalent of a mid

### -level dealer's 

### starting supply, suggesting he had 

### recently purchased 

### the cocaine. N.T. 

### at 112. Finally, 

### the detective explained also 

### that Appellant's possession 

### of 

### multiple cell phones and of separate stores of cash was 

### consistentwith the 

### intent to 

### deliver.' Accordingly, weconclude

### thatthe large

### amount ofcocaine in

### Appellant's possession, combined 

### with the additional factors discussed, was 

### sufficient to 

### support an 

### inference of 

### intent to 

### deliver. See 

### Commonwealth v. 

### Roberts, 133 A.3d 759, 

### 768-69 (Pa.Super. 

### 2016) (holding 

### intent to 

### deliver inferable from possession oftwo bags

### containing 

### approximately42 grams and 36 grams of cocaine, no small baggies, two cell phones, and no 

### money, which 

### collectively suggested 

### defendant had 

### just "re-upped" supply 

### for sale). 

### Appellant's challenge to 

### the sufficiency ofthe evidence,

### therefore, fails. 

### Judgment of sentence 

### affirmed.



### ' Appellant's 

### argument essentially asks us to reweigh the evidence in a 

### light mostfavorableto him and ascribe a 

### legitimate business purposeto

### the phones and cash in his possession. While such a purpose 

### may be 

### theoretically possible, 

### the fact

### -finder clearly rejected this 

### possibility, and it is well

### -settled 

### that we may not 

### substitute our 

### judgment for 

### that of the 

### fact-finder. See 

### Brockman,supra. 

## -8J

### -A16045-19 Judgment Entered.

J seph D. 

### Seletyn, Prothonotary Date: 

### 8/2/2019



## -9