J-S41044-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LEWIS ALLEN, 

Appellant No. 3201 EDA 2015

Appeal from the Judgment of Sentence September 17, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0014063-2014

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 17, 2016

Appellant Lewis Allen appeals from the judgment of sentence entered 

in the Court of Common Pleas of Philadelphia County on September 17, 

2015, following a bench trial and conviction of Possession of a Controlled 

Substance (heroin) and Possession with Intent to Deliver a Controlled 

Substance (heroin) (“PWID”). 1 Following a review of the record, we affirm. 

The trial court set forth the relevant facts and procedural history 

herein as follows: 

Officer Ryan Pownall testified that on October 3, 2014, at 

8:11 PM, his tour of duty took him to the 4700 block of Marple 

Street in the city and county of Philadelphia. N.T. 6/30/15 7: 

11-13. From his marked vehicle, he observed a white female

approach the Appellant. N.T. 6/30/15 9:9-12. After a brief 

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1 35 P.S. §§ 780-113(a)(16) and (a)(30), respectively. 
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conversation, she attempted to hand the Appellant currency and 

he attempted to take it. N.T. 6/30/15 10:2-3. However, the 

white female and the Appellant spotted Officer Pownall and 

retracted their hands. N.T. 6/30/15 10:4-7.

Officer Pownall noted that he had approximately seven 

years of experience as a Philadelphia police officer in the 15th

district and knew the vicinity of the 4700 block of Marple Street 

to be a high narcotics and high crime area. N.T. 6/30/15 16:6-

19. Based on his experience, and on his observations, he 

believed that the white female and the Appellant were engaging 

in a narcotics transaction. N.T. 6/30/15 18:9-10. 

Accordingly, Officer Pownall exited his car and approached 

the white female and the Appellant. The Appellant ran away. 

N.T. 6/30/15 10:13. Officer Pownall chased after the Appellant 

and yelled at Appellant to stop. N.T. 6/30/15:12-16. After 

running two blocks, Appellant reached into his right pants pocket

and tossed out packets. N.T. 6/30/15 10:22-25. Officer Pownall 

ran past the packets, tackled, and arrested the Appellant. N.T. 

6/30/15 11:5-7. After arresting the Appellant, Officer Pownall 

walked back six or seven feet to where the Appellant tossed the 

packets. N.T. 6/30/15 12:20-22. There, he recovered fourteen 

clear baggies with blue inserts. N.T. 6/30/15 16:2. These 

baggies were later confirmed to be packets of heroin. N.T. 

6/30/15 29:11-13. Officer Pownall also recovered $457.00 from 

the Appellant’s person. N.T. 6/30/15 12:25-13:4. Despite the 

efforts of Officer Pownall and his partner, they were unable to 

locate the white female. N.T. 6/30/15 15:4-9.

At the conclusion of the bench trial, the Court found the 

Appellant guilty of [PWID] and Intentional Possession of a 

Controlled Substance. On September 17, 2015, this Court 

sentenced Appellant to 2 1⁄2 to 5 years of incarceration, to be 

followed by 5 years of reporting probation to be supervised by 

the state. On October 16, 2015, Appellant filed a Notice of 

Appeal to the Superior Court. On December 28, 2015, Appellant 

submitted a Statement of Matters Complained of on Appeal.

Trial Court Opinion, filed 2/5/16, at 1-2. 

In his brief, Appellant presents the following Statement of Question 

Involved: 
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Was the evidence insufficient to support the charge of 

possession with intent to deliver because the evidence failed to 

establish that Appellant intended to deliver drugs as the 

evidence showed simply that Appellant was observed appearing 

to accept currency and without more there was no evidence 

presented indicating that the packets he possessed were 

possessed for purposes of distributing them?

Brief for Appellant at 3.2 

The well-settled standard of review this Court applies to sufficiency of 

the evidence claims requires us to consider:

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 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 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 finder 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. Brooks, 7 A.3d 852, 856-57 (Pa.Super. 2010) 

(citations omitted).

The Crimes Code defines PWID as follows: 

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2 Appellant does not challenge his Possession of a Controlled Substance 

conviction. 
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Except as authorized by this act, the manufacture, delivery, or 

possession with intent to manufacture or deliver, a controlled 

substance by a person not registered under this act, or a 

practitioner not registered or licensed by the appropriate State 

board, or knowingly creating, delivering or possessing with intent 

to deliver, a counterfeit controlled substance.

35 P.S. § 780-113(a). 

To obtain a conviction for possession of narcotics with the intent to 

deliver, the Commonwealth must prove beyond a reasonable doubt both that 

the defendant possessed a controlled substance and that did so with the 

intent to deliver the same. Commonwealth v. Aguado, 760 A.2d 1181, 

1185 (Pa.Super. 2000) (en banc). All the facts and circumstances 

surrounding possession are relevant in determining whether one possessed 

contraband with an intent to deliver it, and the Commonwealth may 

establish the essential elements of the crime wholly by circumstantial 

evidence. Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa.Super. 2008), 

appeal denied, 964 A.2d 894 (Pa. 2009); Commonwealth v. Bricker, 882 

A.2d 1008, 1015 (Pa.Super. 2005).

In addition, our Supreme Court has explained that where the quantity 

of the controlled substance is not dispositive as to one’s intent to deliver it, a 

court may look to other factors, including: 

the manner in which the controlled substance was packaged, the 

behavior of the defendant, the presence of drug paraphernalia, 

and [large] 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 the facts 

surrounding the possession of controlled substances are 
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consistent with an intent to deliver rather than with an intent to 

possess it for personal use.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1237–38 (Pa. 2007) (citation 

and quotation marks omitted).

Instructive herein is this Court’s analysis set forth in In re Evans, 717 

A.2d 542 (Pa.Super. 1998). Therein, police observed Evans, a juvenile, and 

two other men standing on a street in a high crime area. Id. at 543. When 

Evans noticed the officers, he appeared startled and quickly turned away 

while holding the waistband of his pants. Id. After the officers exited their 

vehicle, Evans threw an object to the ground. Id. Police recovered the 

object, a clear plastic bag containing nine, individually wrapped pieces of 

crack cocaine and weighing a total of 1.03 grams. Id. at 543–44. 

Thereafter, the trial court adjudicated Evans delinquent, and he appealed 

challenging, inter alia, the sufficiency of the evidence to support his 

adjudication of delinquency for PWID. Id. at 544. This Court affirmed and in 

doing so found it had been reasonable for the trial court to infer Evans’ 

intent to deliver as he had been detained in a high crime area in possession 

of nine individually wrapped packets of crack cocaine and did not possess 

paraphernalia for personal use. Id. at 546.

Herein, Appellant does not dispute that he possessed fourteen, 

individually wrapped packets of heroin but rather maintains the evidence 

was insufficient to prove he possessed the requisite intent to deliver the 

drugs. Appellant asserts there was no testimony he ever exchanged the 
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contraband with the unidentified woman and that the “de minimus” amount 

of heroin he carried was consistent with an amount a user typically would 

possess and use in a day or two. Brief for Appellant at 8, 10, 13-15.3 Yet, 

while Appellant points out that the Commonwealth presented no evidence 

that Officer Pownall knew Appellant to be a drug dealer, he also stresses no 

evidence was offered that he used drugs. Id. at 17.

Appellant further argues his behavior does not support his conviction, 

states no drug paraphernalia was found on his person, and reasons that it is 

debatable whether the $457.00 he possessed qualifies as a large sum of 

money. Id. at 15-17. He also notes the drugs were not bundled together. 

Brief for Appellant at 8. Finally, Appellant contends the lack of any expert 

testimony to establish Appellant possessed the heroin with an intent to 

deliver it factors heavily in his favor. Id. at 17-18. 

Appellant essentially suggests this Court should view the record in the 

light most favorable to him and posits that the verdict was based on 

circumstantial evidence so weak that it cannot support a PWID conviction. 

In doing so, Appellant disregards this Court’s standard of review. See 

Brooks, 7 A.3d at 856. Applying that standard and after viewing the 

evidence in the light most favorable to the Commonwealth as the verdict 

winner, together with all reasonable inferences therefrom, we conclude the 

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3 The record does not reveal the total gram weight of the heroin or what 

amount was contained in each individual packet. 
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Commonwealth presented sufficient evidence to support Appellant’s PWID 

conviction. 

As in In re Evans, supra, Appellant’s behavior observed by Officer 

Pownall suggested an intent to deliver. At trial, Officer Pownall testified the 

notoriously high-crime area in which he encountered Appellant and the 

unidentified woman at night was known for drug activity. N.T., 6/30/15, at 

16-17, 22. When the pair observed Officer Pownall, who was dressed in full 

uniform, the woman withdrew the handful of money she was about to give 

Appellant and, along with Appellant, fled. Officer Pownall pursued Appellant 

and watched him discard the fourteen individually packaged portions of 

heroin after he pulled them from his right pants pocket. Id. at 10-11. 

When conducting a search pursuant to Appellant’s arrest, Officer 

Pownall discovered Appellant had a considerably large amount of cash, 

$457.00, on his person, although he did not recover any drug-use 

paraphernalia. Id. at 13. While Appellant argues the lack of drug 

paraphernalia weighs in his favor, this absence has been viewed as 

suggesting the opposite. See Commonwealth v. Ratsamy, 934 A.2d 

1233, 1238 (Pa. 2007) (stating “possession with intent to deliver can be 

inferred from the quantity of the drugs possessed and other surrounding 

circumstances, such as lack of paraphernalia for consumption”); see also

Commonwealth v. Torres, 617 A.2d 812, 814 (Pa.Super. 1992) (absence 
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of paraphernalia for consumption of cocaine provides inference of intent to 

deliver). 

Furthermore, Officer Pownall testified each heroin packet was of the 

same size, shape and color and packaged in a clear baggie with a blue insert 

N.T., 6/30/15 at 27. Although Appellant finds support in the fact the 

individual packages were not bundled together, to the contrary, “it is 

reasonable to infer that the individual wrappings facilitated their 

distribution.” In re Evans, 717 A.2d at 546. In addition, upon seeing 

police, Appellant attempted to run away. Appellant’s flight and that of the 

unidentified woman, who never was found, may be deemed as indicative of 

his consciousness of guilt. Commonwealth v. Hudson, 955 A.2d 1031 

(Pa.Super. 2008). 

Moreover, contrary to Appellant’s claims, expert testimony is not 

necessary to support a conviction when the facts established at trial proved 

beyond a reasonable doubt that defendant was guilty of each and every 

element of the crime charged. See Commonwealth v. Harper, 611 A.2d 

1211, 1217 (Pa.Super. 1992) (sufficiency question is determined by the 

evidence on the record, not supposed “missing” evidence). In light of the 

foregoing, expert testimony was unnecessary in the instant matter because 

the Commonwealth presented sufficient evidence to establish appellant's 

guilt beyond a reasonable doubt through the eyewitness testimony of Officer 

Pownall. 
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Based on the foregoing, there was sufficient evidence presented at 

trial for the trial court to convict Appellant of PWID (heroin). As such, 

Appellant’s claim lacks merit. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/17/2016