J-S39039-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JASON ELIJAH BETHUNE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 399 MDA 2023

Appeal from the Judgment of Sentence Entered November 8, 2022

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

No(s): CP-21-CR-0001161-2021

BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED DECEMBER 14, 2023

Jason Elijah Bethune (Appellant) appeals from the judgment of sentence 

entered in the Cumberland County Court of Common Pleas following his jury 

convictions for possession with intent to deliver (PWID), possession of a small 

amount of marijuana, and several driving under the influence (DUI) crimes.1 

Appellant argues (1) that the trial court improperly permitted the trial to 

proceed in his absence; (2) that the evidence was insufficient to establish that 

he possessed drugs and did so with the intent to deliver; and (3) that the 

weight of the evidence does not support the PWID verdict. We affirm. 

The trial court summarized the facts in its Pa.R.A.P. 1925 opinion as 

follows:

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1 35 P.S. § 780-113(a)(30), (31); 75 Pa.C.S § 3802(d)(1)(i),(iii); 75 Pa.C.S. 

§ 3802(d)(3).
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On April 8, 2021, Troopers Christina Fow and Anthony 

Panosetti were working in their capacity as Pennsylvania State 

Troopers assigned to monitor road construction on Interstate 81. 

The Troopers were operating a marked Ford Explorer equipped 

with a motor vehicle recording (“MVR”) device, one camera facing 

out toward the street, and one facing in toward the backseat of 

the vehicle. The recording device features microphones which the 

Troopers were wearing. Both Troopers were in uniform.

Around 1:00 a.m., Trooper Fow was travelling southbound 

on Interstate 81 around mile marker 31 in South Newton 

Township. While she was driving in the left lane, she noticed a 

vehicle slightly ahead of her in the right lane that was weaving 

“significantly.” As she tried to catch up to the vehicle, it began to 

weave in and out of the traffic lanes, at one point almost striking 

a tractor-trailer in the right lane before jerking back to the left 

lane. At that time, Trooper Fow began her MVR and initiated a 

traffic stop on the vehicle. She employed the use of lights and 

sirens, and the vehicle slowly came to a stop on the shoulder of 

Interstate 81.

Trooper Fow approached the vehicle on its driver’s side, and 

Trooper Panosetti approached the vehicle on the passenger side. 

Trooper Fow noted the odor of marijuana coming from the vehicle 

as she approached. Trooper Fow asked the driver for his license, 

registration, and insurance information, at which time the driver 

became confused as to the location of those documents and 

needed to call his wife. She eventually identified the driver by his 

Maryland driver’s license as [Appellant]. Upon speaking to 

[Appellant], Trooper Fow noticed that his eyes were watery and 

his pupils were constricted. At that point, she believed that 

[Appellant] was driving under the influence of either alcohol or a 

controlled substance.

While waiting for [Appellant] to locate his registration and 

insurance information, Trooper Fow noticed a burnt marijuana 

cigarette and two sealed bags of marijuana in the center console. 

She questioned [Appellant] as to those items, at which time he 

picked them up and handed them to Trooper Fow. She asked him 

if there were any other items in the vehicle, and he handed her a 

large amount of cash in response, which amounted to $1,800.

Trooper Fow directed [Appellant] to exit the vehicle to 

perform field sobriety tests. [Appellant] then responded that he 

had an injury to his ankle and was utilizing crutches. Because of 
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[Appellant]’s ankle injury, Trooper Fow was unable to perform the 

typical cadre of standard field sobriety tests. . . . Based on the 

indicators that she observed, Trooper Fow asked [Appellant] if he 

was driving under the influence of alcohol or controlled 

substances, to which [Appellant] admitted that he “had a sip” and 

that he “smoked” earlier in the day. [Appellant] then gave 

Trooper Fow consent to search his vehicle, during which she 

retrieved the marijuana cigarette.

While the search was being completed, [Appellant] stood 

outside the patrol vehicle with Trooper Panosetti. Trooper 

Panosetti engaged in a pat-down search of [Appellant] while 

Trooper Fow was searching the car with no results. After 

searching the car, Trooper Fow returned to the front of her patrol 

car where Trooper Panosetti and [Appellant] were standing. She 

noticed a clear plastic bag containing a white powdery substance 

positioned on the grill area of the patrol vehicle under the push 

bumper. Trooper Fow reviewed the MVR to determine where the 

bag had come from. She did not observe the bag prior to 

[Appellant] being positioned at the front of her car.

Trooper Fow placed [Appellant] under arrest, and 

transported him to the hospital, where [Appellant] consented to a 

blood draw. [Appellant]’s blood tested positive for Delta-9 THC in 

the amount of 12 ng/ml and for Delta-9-Carboxy-THC in the 

amount of 149 ng/ml. [Appellant]’s blood alcohol content was 

.021.

Trooper Fow then submitted the suspected controlled 

substances for testing. The white powdery substance was 

confirmed to be cocaine in the amount of 74.94 grams.

Trial Ct. Op., 6/6/23, at 1-4 (footnotes omitted).

The Commonwealth filed a criminal information on July 20, 2021, and 

Appellant filed a motion for a writ of habeas corpus, which the trial court 

denied following a hearing on November 30, 2021. At the conclusion of that 

hearing, the Commonwealth asked to “put this on for the January term. That’s 

when [Appellant’s] other DUI is on for.” N.T., 11/30/21, at 18. 
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The cases were postponed to the March trial term, and Appellant again

requested a postponement. The Commonwealth opposed, stating they had 

“been prepared for trial for the last two terms” and “both cases have 

previously been continued multiple times, with [the other case] being a 

defense continuance on [four] prior occasions.” N.T., 3/10/22, at 2. The trial 

court granted Appellant two weeks to obtain documentation regarding 

upcoming medical appointments and directed the parties to appear on March 

25, 2022, to discuss. It is unclear if that proceeding was transcribed. 

However, Appellant’s other case resulted in a guilty plea on May 13, 2022, 

with sentencing scheduled for July 12, 2022. Trial at this docket was listed

for July 18, 2022. 

Appellant failed to appear for sentencing at the other docket, and a 

bench warrant was issued. Meanwhile, on July 15, 2022, Appellant’s counsel 

and the Commonwealth appeared to discuss this trial. The Commonwealth 

informed the court that it was “asking to proceed in absentia on [July 18th].” 

N.T., 7/15/22, at 2. The Commonwealth cited Appellant’s failure to appear 

for sentencing and noted that Appellant was aware of the trial date as “this 

was most recently continued from the March term to this term . . . we 

specifically went over that in the courtroom in [Appellant]’s presence, that I 

would be looking to try this case in July, and I am asking to try him in 

absentia.” Id. 

The parties appeared for trial as scheduled. The prosecutor informed 

the court that it had checked databases to see if Appellant had been 
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apprehended on the warrants. “[Appellant] is not incarcerated anywhere in 

the Commonwealth of Pennsylvania. I searched Maryland which is his known 

last residence. He’s not incarcerated in Maryland. And I do know that he 

works in West Virginia. . . . [H]e is not incarcerated in West Virginia either.” 

N.T., 7/18-19/22, at 11. Appellant’s counsel asked for a postponement, 

arguing that the Commonwealth would not be burdened by rescheduling the 

case as the case did not involve civilian witnesses. The trial court allowed 

counsel until the following morning to contact Appellant or provide further 

information. The next morning, the court asked, “Do we have any new 

information that you can disclose?” Id. at 17. Counsel replied, “I don’t have 

anything to say other than argument at this time.” Id. The jury trial

proceeded in Appellant’s absence and he was convicted as previously stated. 

Appellant was apprehended approximately three months later. At 

sentencing, Appellant asked to set aside the verdict. Appellant alleged that 

he “was dealing with family issues” concerning his mother “and was traveling 

up to New York.” N.T., 11/8/22, at 4. The court responded, “that’s a 

presentence motion, and that’s denied because [counsel does not] present 

any new information except for traveling and dealing with [Appellant’s]

mother.” Id. The court expressed skepticism that this “would excuse the 

absence or constitute good cause at this point,” but afforded Appellant an 

opportunity to “renew it in post-sentence motion with more specific pleadings 

so that the Commonwealth has an opportunity to respond to that.” Id. 
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On November 16, 2022, Appellant filed a post-sentence motion, 

renewing his request for a new trial and requesting a hearing to present 

evidence regarding his absence. That proceeding is not transcribed, but the 

trial court’s opinion states that no evidence was presented. “At a hearing 

before this [t]rial [c]ourt, [Appellant] did not present any testimony or 

documentation as to his absence. He did not offer any explanation as to his 

absence.” Trial Ct. Op. at 8. 

Appellant filed a timely notice of appeal and complied with the trial 

court’s order to file a concise statement of matters complained of on appeal. 

The trial court filed its opinion in response and we now address Appellant’s 

three appellate issues.

I. Whether [Appellant]’s trial, held in absentia, violated 

[Appellant]’s constitutional rights under the fifth, sixth, and 

fourteenth amendments to the United States constitution and 

Article I, Section 9, of the Pennsylvania constitution?

II. Whether the evidence was insufficient to prove beyond a 

reasonable doubt that [Appellant] was guilty of possession with 

intent to deliver a controlled substance?

III. Whether the verdict was against the weight of the evidence so 

as to shock one’s sense of justice?

Appellant’s Brief at 7 (some capitalization omitted).

Appellant’s first issue contends that the trial court erred in trying him in 

absentia. See Appellant’s Brief at 21. Appellant discusses other cases 

upholding such trials, suggesting that those precedents signal that a trial in 

absentia is proper only “where a defendant’s repeated failure to appear, even 

after numerous efforts were made to secure their presence, threatened the 
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administration of justice.” Id. at 23 (emphases in original). Appellant argues 

that he “took no affirmative actions, such as cutting off an ankle monitor, to 

suggest that his absence was willful. Nor did [Appellant] repeatedly fail to 

appear” as he had been present at all prior listings. Id. at 26. Appellant also 

argues that the Commonwealth made “very few efforts . . . to inquire as to 

why [Appellant] was not present.” Id. at 26. 

Appellant also argues that, in addition to a repeated failure to appear, 

our Supreme Court “has considered the difficulty of rescheduling a trial and 

the burden doing so would place upon the government[.]” Appellant’s Brief 

at 25. Appellant agrees that “these considerations have not been explicitly 

adopted by our Supreme Court, [but] it has acknowledged them as reasonable 

and logical issues for a trial court to weigh in deciding whether to proceed in 

absentia.” Id. (citing Commonwealth v. Wilson, 712 A.2d 735, 737 (Pa. 

1998)). Appellant contends that those factors weigh in his favor, as the 

witnesses were all “Commonwealth employees” and rescheduling would be 

relatively simple and not burdensome. Appellant’s Brief at 25.

It is well-established Appellant had a constitutional right to be present 

for trial: “One of the most basic of the rights guaranteed by the Confrontation 

Clause is the accused’s right to be present in the courtroom at every stage of 

his trial.” Illinois v. Allen, 397 U.S. 337, 338 (1970). Federal law bars trial 

in absentia if the defendant is not present for the beginning of trial. “The 

language, history, and logic of [Federal Rule of Criminal Procedure 43] support 

a straightforward interpretation that prohibits the trial in absentia of a 
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defendant who is not present at the beginning of trial.” Crosby v. United

States, 506 U.S. 255, 262 (1993). In contrast, Pennsylvania law 

straightforwardly permits trial if the defendant’s absence is without cause. 

“The defendant’s absence without cause at the time scheduled for the start of 

trial or during trial shall not preclude proceeding with the trial, including the 

return of the verdict and the imposition of sentence.” Pa.R.Crim.P. 602. 

In Commonwealth v. Sullens, 619 A.2d 1349 (Pa. 1992), our 

Supreme Court interpreted this language and held that the trial court did not 

err in holding a bench trial in the defendant’s absence. Sullens argued that 

“the record failed to establish that he had been notified of the trial date.” Id.

at 1352. The Court disagreed.

Although [Sullens] characterizes the colloquy as reflecting 

“considerable” doubt that he had received notice of trial, the 

record establishes that there was very little doubt indeed. The 

judge’s recollection and defense counsel’s statements provided an 

adequate basis for the court to make a factual finding that 

[Sullens] had notice of his trial date. The only uncertainty was 

due to the fact that defense counsel could not find a copy of his 

letter to [Sullens] conveying the information.

In any event, we need not review the sufficiency of the evidence 

at the time the court found [Sullens] to be absent without cause 

and decided to proceed with a trial in absentia. The record 

establishes beyond any doubt that [Sullens] had notice of his trial, 

due to his admission at sentencing that he knew of his February 

27, 1989 trial date and that he willfully decided to absent himself 

without cause or justification. Accordingly, the trial court did not 

err in conducting a bench trial in [Sullens]’s absence.

Id. at 1352-53. 

We note that Sullens was decided by a six-Justice Court, and Justice 

Flaherty’s opinion was joined by Justices Larsen and Nix. Justices Zappala 
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and Cappy each filed dissents, joining each other. Justice Papadakos’

concurring opinion stated in full:

I join with the majority, but write separately to emphasize that no 

harm is done to a defendant whose case is heard in his absence 

because good cause has not been shown to the trial judge for the 

absence when, in fact, good cause exists for the absence. At 

sentencing, when the defendant appears, if he can establish that 

he had good cause for his absence at trial, he would be entitled to 

a new trial.

Id. at 1353 (Papadakos, J., concurring).

With the foregoing in mind, we initially deem waived any part of 

Appellant’s claim arguing that his constitutional rights were violated. The 

United States Supreme Court’s decision in Crosby explicitly refrained from 

deciding whether a trial may proceed in the accused’s absence: “Because we 

find Rule 43 dispositive, we do not reach Crosby’s claim that his trial in

absentia was also prohibited by the Constitution.” Id. at 262. Additionally, 

in Commonwealth v. Johnson, 734 A.2d 864, 867 (Pa. Super. 1999), a 

panel of this Court stated: “[A] review of Sullens indicates that, contrary to 

[Johnson]’s claim, the Supreme Court did in fact consider ‘constitutional 

limitations.’” Appellant has not developed an argument showing that 

subsequent caselaw has cast doubt on these holdings, and we are bound by 

them. Nor has he offered an argument that it is unconstitutional to proceed 

in absentia when the accused fails to appear at the start of trial. Accordingly,

we conclude that the only preserved argument concerns whether the trial

court’s decision satisfied the rule-based standard. 
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Sullens did not dictate what standard of review applies to a trial court’s

determination that the failure to appear was without cause. In Wilson, 712 

A.2d at 737, our Supreme Court stated: “Courts in this Commonwealth have 

consistently held that a trial court may, in its discretion, conduct a trial in

absentia when the defendant absconds without cause after the trial 

commences.” As developed in Crosby, there is arguably a constitutionally 

significant distinction between permitting a trial to begin in the accused’s 

absence versus continuing the trial when the defendant absconds during those 

proceedings. “As a general matter, the costs of suspending a proceeding 

already under way will be greater than the cost of postponing a trial not yet 

begun.” Crosby, supra at 261. In the absence of a developed argument 

supporting a constitutional limitation on Rule 602 and its authority to conduct 

a trial in absentia, we conclude that an abuse of discretion standard applies. 

Turning to that issue, we find no abuse of discretion. It is not disputed

that Appellant had personal notice of the trial date. The Sullens case 

indicates that this is itself sufficient, as in that case there was “an adequate 

basis for the court to make a factual finding that [Sullens] had notice of his 

trial date.” Sullens, 619 A.2d at 1352. Appellant is correct that the Wilson

Court approvingly stated that trial courts should consider other factors, such 

as difficulty of rescheduling. Wilson, 712 A.2d at 739. But this was not a 

mandate to do so. Thus, the mere failure to appear alone justifies the trial 

court’s ruling.
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Moreover, Appellant assumes that the Commonwealth bore the burden

of establishing that his absence was without cause and claims that it failed to

do so. This argument suggests that the trial court abuses its discretion if it

holds a trial in absentia regardless of whether the defendant knew of his trial

date. The lead opinion in Sullens rejected this argument, as the Court stated 

that the sufficiency of the evidence at the time the court decided to proceed 

was irrelevant since it was clear Sullens had notice. See Sullens, 619 A.2d 

at 1352. 

As this issue implicates Justice Papadakos’ concurrence in Sullens, we 

will address this point. In Commonwealth v. Bond, 693 A.2d 220 (Pa. 

Super. 1997), a case where the trial court proceeded in the defendant’s 

absence when he left after the trial started, we stated that the burden is on 

the defendant. “It is [Bond]’s burden to establish that his absence was ‘with 

cause.’” Id. at 224 (quoting Commonwealth v. Doleno, 594 A.2d 341 (Pa. 

Super. 1991)). Accord Commonwealth v. Johnson, 764 A.2d 1094, 1097 

(Pa. Super. 2000) (trial proceeded in absentia after defendant stopped 

attending trial; “Initially, we observe that it is [Johnson]’s burden to establish 

that his absence was with cause; it is not the Commonwealth’s burden to 

establish that [Johnson] did not have a good reason for failing to appear.”) 

(emphases in original). While those cases involve a defendant who was 

present at some point, the Sullens Court suggests that the burden flips to the 

defendant once the Commonwealth establishes that the defendant had notice 

of the actual trial date. Justice Papadakos’ concurring opinion placed the 
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burden on the defendant to show why his absence was justifiable. But see

Commonwealth v. Hill, 737 A.2d 255, 259 (Pa. Super. 1999) (stating, where 

trial proceeded after accused failed to appear for trial at all, that the 

Commonwealth must demonstrate “by a preponderance of the evidence that 

the defendant is absent ‘without cause’ and that he knowingly and intelligently 

waived his right to be present” before conducting a trial in absentia); 

Commonwealth v. DeCosta, 197 A.3d 813, 817 (Pa. Super. 2018) (applying 

Hill and granting new trial in case where defendant had been present for trial 

but failed to appear for deliberations due to hospitalization).

To the extent that our caselaw is in conflict on this point, we find that 

the Commonwealth met its burden. Appellant had notice of the July trial date 

and the record establishes that he accepted a guilty plea in May. Appellant 

then failed to show for sentencing at the other criminal docket, which was less 

than week before this trial was to commence. Unlike DeCosta, supra, where 

the defendant’s hospitalization supplied an explanation for his absence,2

Appellant’s failure to appear could logically be deemed to represent a

continued flight from the authorities. It is unclear what more the 

Commonwealth could do at that point to establish that Appellant’s failure to 

appear was not justifiable. Notably, the trial court afforded Appellant’s 

counsel an additional day to locate Appellant once he failed to appear for trial. 

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2 The trial court in DeCosta accepted that the defendant had been 

hospitalized, however, the court relied “on hearsay speculation by the family 

that they suspected [DeCosta]’s hospitalization resulted from a suicide 

attempt.” DeCosta, 197 A.3d at 818 (emphasis in original). 
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In today’s day and age, where virtually everyone has access to a smartphone 

and email, it strains credulity to believe that Appellant could not have apprised 

the court or his counsel of any emergency preventing his appearance.

Alternatively, we conclude that Appellant has failed to show that the 

ruling should be reversed. Even if we accept that the foregoing evidence was 

insufficient to establish a good reason for Appellant’s absence, we agree with 

Justice Papadakos’ concurring opinion in Sullens that a defendant can 

establish good cause after the trial has occurred. The trial court granted 

Appellant’s post-sentence request for an evidentiary hearing to present 

evidence concerning his failure to appear. Appellant declined to present 

evidence at that hearing, and thus cannot now complain that there was not 

good cause. 

Appellant’s second issue challenges the sufficiency of the evidence to 

convict him of PWID. See Appellant’s Brief at 29. Our standard of review is 

well-settled.

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 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 
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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. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014).

In his second issue, Appellant challenges two aspects of his PWID

conviction: whether he possessed the drugs and, if so, whether that 

possession was with the intent to deliver. Beginning with possession, 

Appellant argues that the Commonwealth failed to show that he constructively 

possessed the cocaine. “Constructive possession is a legal fiction, a pragmatic

construct to deal with the realities of criminal law enforcement. Constructive

possession is an inference arising from a set of facts that possession of the 

contraband was more likely than not.” Commonwealth v. Brown, 48 A.3d 

426, 430 (Pa. Super. 2012). The doctrine “usually comes into play when 

police find contraband somewhere other than on the defendant’s person.” 

Commonwealth v. Hall, 199 A.3d 954, 961 (Pa. Super. 2018). To establish 

constructive possession, the Commonwealth must show “the ability to 

exercise conscious control or dominion over the illegal substance and the 

intent to exercise that control.” Commonwealth v. Kirkland, 831 A.2d 607, 

610 (Pa. Super. 2003) (citation omitted). “[M]ere presence at a place where 

contraband is found or secreted is insufficient, standing alone, to prove that 

he exercised dominion and control over those items.” Commonwealth v.

Parrish, 191 A.3d 31, 37 (Pa. Super. 2018). 
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Because the evidence was not found on his person, the Commonwealth 

was required to prove constructive possession. On that point, Appellant 

argues that “no evidence of record suggested that he was aware of the 

substance’s presence and therefore, could not have intended to control it.” 

Appellant’s Brief at 30. He maintains that the Commonwealth only established 

mere presence. Id.

Appellant’s argument is limited to the cocaine where it was found. 

However, this is not a situation where the contraband had no obvious known 

possessor before its discovery. A rational fact-finder could credit Trooper 

Fow’s testimony that the contraband was not on her vehicle prior to 

Appellant’s presence, and that any drugs left from an earlier interaction would 

have fallen off while driving. Thus, the cocaine had to have come from 

Appellant or one of the troopers. Granting all inferences in favor of the 

Commonwealth as verdict winner, a rational fact-finder could conclude that 

Appellant placed the drugs there, presumably in an attempt to hide them from 

the investigators. Having previously been in physical possession of the item, 

the requisite dominion and control is satisfied by proof of prior possession. 

See Commonwealth v. Hutchinson, 947 A.2d 800, 806 (Pa Super. 2008) 

(concluding that evidence was sufficient to establish constructive possession 

where officer saw Hutchinson “walk to a pavilion and place his hand in the 

rafters where Officer Wise later recovered the crack cocaine”). 

Turning to whether Appellant possessed the drugs with an intent to

deliver, the following precepts apply.
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It is well settled that all the facts and circumstances surrounding 

possession are relevant in making a determination of whether 

contraband was possessed with intent to deliver.

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) (quoting 

Commonwealth v. Brown, 904 A.2d 925, 931-32 (Pa. Super. 2006)). 

Additionally, expert testimony is relevant evidence. Commonwealth v.

Robinson, 582 A.2d 14, 17 (Pa. Super. 1990) (“The jury was free to accept 

or reject the opinion testimony of the expert witness. If accepted by the jury, 

as it clearly was, it provided an adequate basis upon which to conclude that 

the Commonwealth proved the intent to deliver element of the crime 

charged.”). 

Appellant argues that the Commonwealth failed to show that the drugs 

were not for personal use, relying largely on Commonwealth v. Smagala, 

557 A.2d 347, 348 (Pa. Super. 1989). There, we determined that the 

Commonwealth failed to show that the drugs were not for personal use and 

discharged the PWID conviction. 

Instantly, the following evidence was seized from the garage 

and [Smagala]’s person: 0.8 gram of cocaine, a razor blade, a 

rolled up twenty dollar bill, a small amount of bicarbonate of soda, 

test tubes, a glass pipe, wire mesh screens, hundreds of burnt 
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matches, hundreds of used “Klennex,” four index cards with 

names and numerical amounts written on them (“tally sheets”), 

two bundles of used, reusable glassine baggies and $834.00 in 

cash. Also, a loaded handgun was found under the seat in the 

appellant’s locked vehicle.

A common sense review of the facts reveals unequivocally 

that [Smagala] possessed the cocaine for personal use, not 

distribution. [Smagala] possessed only 0.8 of a gram of cocaine, 

a small amount consistent with personal use. Expert testimony at 

trial indicated that test tubes and bicarbonate of soda are used to 

convert cocaine in the powder form into cocaine in the rock form, 

“crack.” The cocaine rock is then smoked in a glass pipe inside of 

which is a wire mesh screen. Instantly, the garage work bench

was covered with hundreds of burnt matches and [Smagala]

possessed all the necessary tools to create and smoke “crack.”

Those facts are consistent with personal use of cocaine. Also, a 

rolled up twenty dollar bill and a razor blade were found on 

[Smagala]’s person. The Commonwealth’s expert testified that 

the razor blade was used to divide the cocaine into “lines” and 

then the rolled currency was used to inhale those lines of cocaine 

through the user’s nostrils. Also, numerous used “Klennex” were 

found on top of the work bench where the glass pipe was located. 

Again, those facts are consistent with personal use. The totality 

of the evidence leads us to the unavoidable conclusion that 

[Smagala] intended either to smoke the cocaine or inhale it.

Id. at 352.

Appellant submits that the Smagala case involved a “profuse amount 

of direct evidence indicative of an intent to deliver — including expert 

testimony that the evidence was consistent with distribution,” yet the panel 

nonetheless discharged the conviction. Appellant’s Brief at 36. Appellant 

reasons that “if such copious amounts of direct evidence towards intent to 

deliver can be discredited, solely because of the small quantity . . . the 

alternative should equally apply where the only evidence the Commonwealth 

can present . . . is the sheer quantity of the drugs found.” Id. at 36-37. We 
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disagree. First, as quoted supra, the Smagala Court concluded that the 

various items were used to convert powder cocaine into crack cocaine. Thus, 

the Court did not deem the evidence insufficient solely due to the small 

amount. “[I]n Smagala, the small amount seized was taken along with all 

the necessary tools a drug user ordinarily would need to consume the cocaine 

either by inhaling it or converting it into crack for smoking.” Commonwealth

v. Harper, 611 A.2d 1211, 1217 (Pa. Super. 1992). Second, a small volume

of drugs paired with items indicative of drug dealing lends itself to a conclusion 

that the drugs are for personal use far more readily than it does in a scenario 

where a large quantity is paired with an absence of items indicative of drug 

dealing. A small quantity is consistent with personal use in a way that a large 

quantity is not. 

In this case, the Commonwealth’s expert, Corporal James Sohns, 

testified that, for personal cocaine use, “a gram would be a lot, more like 

probably half a gram.” N.T., 7/18-19/22, at 226. Anything above 50 grams 

of cocaine “is considered a high level drug dealer or trafficker[.]” Id. at 228. 

The corporal also cited the lack of “use” paraphernalia, which is a relevant 

factor. Commonwealth v. Torres, 617 A.2d 812, 814 (Pa. Super. 1992) 

(“In . . . Smagala and [Commonwealth v.] Gill, [415 A.2d 2 (Pa. 1980)],

unlike the instant case, the appellants possessed use paraphernalia, which 

indicated an intent to consume rather than distribute the controlled 

substances involved.”). Corporal Sohns added that the $1,800 in cash was 

“another factor . . . that could indicate that this was possession with intent to 
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deliver” the cocaine. Id. at 230. We conclude that this expert testimony and 

the weight of the drugs was sufficient to establish the drugs were possessed 

with an intent to deliver. 

Appellant’s third and final claim challenges the weight of the evidence. 

Our standard of review is well-settled.

Appellate review of a weight claim is a review of the exercise of

discretion, not of the underlying question of whether the verdict

is against the weight of the evidence. [Commonwealth v.]

Brown, [648 A.2d 1177,] 1189 [Pa. 1994]. Because the trial 

judge has had the opportunity to hear and see the evidence

presented, an appellate court will give the gravest consideration 

to the findings and reasons advanced by the trial judge when 

reviewing a trial court’s determination that the verdict is against 

the weight of the evidence. Commonwealth v. Farquharson, . 

. . 354 A.2d 545 (Pa. 1976). One of the least assailable reasons 

for granting or denying a new trial is the lower court’s conviction 

that the verdict was or was not against the weight of the evidence

and that a new trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (quoting 

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)). A new trial 

should be granted if “certain facts are so clearly of greater weight that to 

ignore them or to give them equal weight with all the facts is to deny justice.” 

Id. at 752.

Appellant argues that the piece of evidence entitled to greater weight is 

the MVR footage, which captured Trooper Panosetti’s pat-down of Appellant 

and Appellant retrieving his crutches and hoodie from the trunk during the 

stop. Appellant argues that the MVR footage shows that it was unlikely that 

he was able to retrieve the cocaine without the troopers noticing. We 
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disagree. As the Commonwealth explains in its discussion of the sufficiency 

of the evidence, the MVR did not capture everything. 

Because . . . Appellant and Trooper Panosetti were standing near 

the grill of the patrol car, the MVR was prevented from capturing 

the Appellant’s activity from the waist down. However, the jury 

observed MVR footage of Appellant bending over to put a pair of 

sweatpants on, returning to a seated position on Trooper Fow’s 

vehicle, and then standing and adjusting the sweatpants again 

moments later.

Commonwealth’s Brief at 25. 

The trial court, which observed the MVR footage, determined that the 

jury’s verdict did not shock its conscience. Additionally, Appellant’s argument 

does not account for where the cocaine came from if not him. We discern no 

abuse of discretion in the trial court’s denial of his weight claim. Therefore, 

his final claim is unavailing.

Judgment of sentence affirmed.3

Judge Dubow joins the Memorandum.

Judge McLaughlin Concurs in the Result.

____________________________________________

3 On November 15, 2023, Appellant filed a pro se application for bond. On 

December 4, 2023, this Court forwarded the request to counsel. See

Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) (“[W]e reiterate 

that the proper response to any pro se pleading is to refer the pleading to 

counsel, and to take no further action on the pro se pleading unless counsel 

forwards a motion.”). 
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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 12/14/2023