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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 of Sentence 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.: FILED AUGUST 02, 2019 

Appellant, Dwayne Juwan Ross, appeals from the judgment of sentence 

entered in the Court of Common Pleas of Lancaster County, after a jury found 

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 intent to deliver with sufficient evidence. We affirm. 

The trial court sets forth the procedural history and the facts pertinent 

to a challenge to the sufficiency of the 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 [the trial court] and a jury. On August 2, 2018, the 

jury returned a guilty verdict against Appellant. The court directed 

that sentencing be deferred pending the completion of a pre - sentence investigation report. 

Former Justice specially assigned to the Superior Court. 
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Following completion of the pre -sentence investigation report, 

Appellant appeared before [the trial court] for sentencing on 

September 28, 2018. At such time, Appellant was 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 of the 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 of the Toyota Prius . . . . N.T. at 64. 

Officer Goss . . . detected the odor of burnt marijuana emanating 

from the vehicle[, and of the three individuals 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 

subsequently obtained 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 the vehicle and found an opened zippered 

pouch that had a clear plastic bag containing suspected cocaine in 

the center console of the 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 

took Appellant into custody and turned him over to Detective Scott 

Eelman so that he could continue his search of Appellant's vehicle. 

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[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 he found the dollar bills, 

they were folded and shoved in the sun visor. N.T. at 128. 

[Officer] Goss subsequently charged Appellant with the offense of 

Possession with Intent to Deliver cocaine. N.T. at 74. [Detective 

Eelman testified and corroborated Officer Goss' account. N.T. 83- 

87.]. 

[Pennsylvania State Police Laboratory analysis of the suspected 

cocaine] determined the substance in one bag weighed 24.443 

grams and contained cocaine, a Schedule II substance. The other 

substance in the other bag . . . weighed approximately 1.22 grams 

and contained cocaine, a schedule II controlled substance. N.T. 

at 129-130. 

Anthony Lombardo, a police officer with Manheim Township 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 substance with the intent to deliver such substance, he 

considers all the attendant factors, such as: the quantity of drugs; 

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 ounce of 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 

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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 

vehicle was a little over three grams shy of an 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 of cocaine found in this case would 

cost approximately nine -hundred dollars. N.T. at 111. . . . The 

amount of cocaine found [in the present matter] is more common 

with what Officer Lombardo typically finds with a mid -level cocaine 

dealer. N.T. at 111. Additionally, there was 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, often found in the possession of dealers, 

did not change Officer Lombardo's opinion that Appellant 

possessed this amount of cocaine with the intent to 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 

covert operation so money is typically stashed in several locations 

to be hidden from plain view. N.T. at 112-113. 

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Trial Court Opinion, 12/21/18, at 1-2, 4-8. 

Appellant presents one question for this 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 to establish that evidence was 

insufficient as a matter of law with respect to the criminal 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 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 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 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 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. 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). 

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"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 that the 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 intent to 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 

Commonwealth v. Ratsamy, 594 Pa. 176, 182, 934 A.2d 1233, 

1237 (2007) (stating "if the quantity of the controlled substance 

is not dispositive as to the intent, the court may look to other 

factors."). The list of additional factors 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 of the defendant. The final 

factor to be considered is expert testimony. Expert 

opinion testimony is admissible concerning whether 

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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, or owe sheets, all of which are 

associated with an intent to deliver. Appellant's brief at 12. He also denies 

the significance of the 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 

verdict winner, however, we conclude the evidence proved the intent element 

of the PWID offense beyond a reasonable doubt. Here, the jury learned that 

Appellant possessed 24 grams of cocaine, an amount that is approximately 24 

to 48 times greater in weight than what a local user would typically purchase, 

but is essentially equal to what a mid -level dealer would 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. 

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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 consistent with the intent to deliver.' 

Accordingly, we conclude that the large amount of cocaine 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 of two bags containing approximately 42 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 of the evidence, therefore, fails. 

Judgment of sentence affirmed. 

' Appellant's argument essentially asks us to reweigh the evidence in a light 

most favorable to him and ascribe a legitimate business purpose to 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. 

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Judgment Entered. 

J seph D. Seletyn, 

Prothonotary 

Date: 8/2/2019 

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