J-S94033-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

DWAYNE ORLANDO MAYS

 Appellant No. 745 MDA 2016

Appeal from the Judgment of Sentence April 25, 2016

in the Court of Common Pleas of Lycoming County Criminal Division

at No(s): CP-41-CR-0001107-2014

BEFORE: LAZARUS, RANSOM, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED MARCH 10, 2017

Appellant, Dwayne Orlando Mays, appeals from the judgment of 

sentence entered in the Lycoming County Court of Common Pleas.1 

Appellant contends the trial court erred in denying his pre-trial motion to 

dismiss the charges pursuant to 18 Pa.C.S. § 110 and challenges the 

sufficiency of the evidence. We affirm.

The trial court summarized the facts as follows:

A confidential informant testified that he arranged by cell 

phone call to meet with [Appellant] in order to purchase 

heroin from him, that he did meet with him on two 

separate occasions and did purchase heroin from him on 

those occasions, that he used buy money to make the 

 

*

Former Justice specially assigned to the Superior Court.

1 We note that Appellant was previously convicted of possession with intent 

to deliver (“PWID”) a controlled substance, conspiracy of PWID, and criminal 

use of a communication facility. The appeal from the December 10, 2015 

judgment of sentence is docketed at no. 495 MDA 2016.
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purchases and that he turned over the heroin to police 

after the transactions were completed. The informant 

testified that he was familiar with [Appellant] as they had 

a business history (prior purchases). A state police 

trooper testified that he observed [Appellant] walking into 

the building where the informant had arranged to meet 

[Appellant], shortly before the informant entered the 

building and then returned with the heroin. Another 

trooper testified that he also observed [Appellant] entering 

the building. Finally, it was stipulated that the substances 

recovered from the informant after the purchases were in 

fact heroin.[2]

Trial Ct. Op., 7/22/16, at 1-2. 

Matthew Switzer testified to the following: He worked for Trooper 

Kenneth Fishel as a confidential informant (“CI”) for approximately three 

years. N.T., 2/29/16, at 6. He was working for Trooper Fishel on March 13, 

2013. Id. at 8. He was buying heroin from Appellant. Id. The CI got in 

touch with Appellant “through cell phone.” Id. at 9. He “believed” the cell 

phone number was 916-0117. Id. Trooper Fishel gave the CI money to 

make the buy. Id. The Trooper watched him make the cell phone call to 

Appellant. Id. at 10. He purchased 30 or 33 bags of heroin for $300 from 

Appellant at 230 West Third Street. Id. at 11. After the transaction, he 

handed the drugs to Trooper Fishel. Id. at 12. On April 2, 2013, he met 

with Trooper Fishel. Id. The same procedure followed as for the March 13th 

buy. Id. The CI contacted Appellant with the same cell phone number. Id. 

Trooper Fishel gave $200 to Appellant for “two bundles” of heroin. Id. at 

 

2 See N.T., 2/29/16, at 3.
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14. The CI met Appellant at 230 West Third Street and exchanged the 

money for heroin. Id. at 13-14.

Trooper John Wipple testified that he is employed by the “Pennsylvania 

State Police out of Montoursville.” Id. at 24. He was a member of the Vice 

Narcotics Unit. Id. He was involved with the investigation of Appellant on 

April 2, 2013. Id. at 25. His role in the investigation was to assist “Trooper 

Fishel by conducting surveillance and security of a controlled purchase.” 

Id. He took photographs of the CI “that was being utilized for the controlled 

purchase.” Id. at 26. 

Corporal Mitchell McMunn testified. Id. at 28. On April 2, 2013, he 

was involved with the investigation of Appellant. Id. at 29. His role was to 

provide “[s]urveillance and security for an undercover buy that Trooper 

Fishel had set up.” Id. He observed Appellant “during the course of the 

controlled buy.” Id. He saw Appellant go into 230 West Third Street. Id.

at 30. He saw the CI exit Trooper Fishel’s car and walk “up to the door that 

[Appellant] just entered.” Id. at 31. The CI knocked on the door, went in 

and within 20 seconds came out and got back into the Trooper’s car. Id.

Trooper Fishel testified that he was employed in the Vice and Narcotics 

Unit of Troop F Montoursville. Id. at 34. He was involved in the 

investigation of Appellant on March 13, 2013. Id. at 35. “During this 

investigation [he] conducted two controlled purchases of heroin using a 

[CI]”. Id. at 36. He observed the CI make the cell phone call to Appellant 
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on March 13, 2013. Id. at 37. He believed the cell phone number was 570-

916-0117. Id. at 38. After the CI made contact with Appellant, he saw 

Appellant enter “the doorway to 230 West Third Street . . . .” Id. at 39. 

The CI “exited [the Trooper’s] vehicle and proceeded to walk to that same 

entrance to meet [Appellant.]” Id. The CI “exited the same door and 

walked back to [Trooper Fishel’s] vehicle, giving [him] the purchased heroin 

. . . .” Id. at 40. The CI gave Trooper Fishel thirty-three bags of heroin. 

Id. at 41. The Trooper described the April 2nd controlled buy from 

Appellant by the CI. Id. at 42. The Trooper observed the CI contact 

Appellant at the same cell phone number. Id. The CI arranged to buy 20 

bags of heroin for $200. Id.

Following a non-jury trial, Appellant was convicted of two counts of 

possession with intent to deliver a controlled substance,3two counts of 

possession of a controlled substance,4 and two counts of criminal use of a 

communication facility.5 Appellant was sentenced to an aggregate term of 

two to seven years’ incarceration. N.T. Sentencing, 4/25/16 at 8-9. The 

sentence was to run consecutively to any sentence Appellant was presently 

serving. Id. at 9. The court found that Appellant was eligible for the 

 

3 35 P.S. § 780-113(a)(30).

4 35 P.S. § 780-113(a)(16).

5 18 Pa.C.S. § 7512(a).
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Recidivism Risk Reduction Incentive (“RRRI”) program6and his minimum 

sentence was reduced to eighteen months. Id. This timely appeal followed. 

Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors 

complained of on appeal. 

Appellant raises the following issues for our review:

1. Did the trial court erred [sic] in denying the Appellant’s 

pre-trial motion to dismiss the charges pursuant to 18 

Pa.C.S.[ ] § 110, as the charges stemmed from the same 

criminal episode.

2. Did the trial court erred [sic] in finding the Appellant 

guilty of the charge of [PWID] as the evidence was 

insufficient to show the Appellant possessed heroin with 

the intent to deliver the same on March 13, 2013.

3. Did the trial court erred [sic] in finding the Appellant 

guilty of the charge of [PWID] as the evidence was 

insufficient to show the Appellant possessed heroin with 

the intent to deliver the same on April 2, 2013.

4. Did the trial court erred [sic] in finding the Appellant 

guilty of the charge of Criminal Use of a Communication 

Facility as the evidence was insufficient to show the 

Appellant used a cell phone and the Commonwealth failed 

to provide evidence to show that any communication on 

the phone was Appellant and was for the purposes of 

committing a crime on March 13, 2013.

5. Did the trial court erred [sic] in finding the Appellant 

guilty of the charge of Criminal Use of a Communication 

Facility as the evidence was insufficient to show the 

Appellant used a cell phone and the Commonwealth failed 

to provide evidence to show that any communication on 

the phone was Appellant and was for the purposes of 

committing a crime on April 4, 2013.

 

6 61 Pa.C.S. §§ 4501-4512.
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6. Did the trial court erred [sic] in finding the Appellant 

guilty of the charge of Possession of a Controlled 

Substance as the evidence was insufficient to show the 

Appellant possessed a controlled substance on March 13, 

2013.

7. Did the trial court erred [sic] in finding the Appellant 

guilty of the charge of Possession of a Controlled 

Substance as the evidence was insufficient to show the 

Appellant possessed a controlled substance on March 13, 

2013.

Appellant’s Brief at 8-9.7

First, Appellant contends the trial court erred in denying his pre-trial 

motion pursuant to 18 Pa.C.S. § 110. He avers that the charges in the 

instant case are barred by the compulsory joinder rule. Appellant argues 

that “[i]t stands to reason that when an individual is convicted of being part 

of network [sic] that deals drugs from May 1, 2012, through July 2013, and 

then is tried for specific transactions during those dates, Section 110 should 

stand as a safeguard to protect a Defendant.” Appellant’s Brief at 18.

Since the statutory claim asserted herein is purely a matter of law, our 

scope of review is plenary. Commonwealth v. Barber, 940 A.2d 369, 376 

(Pa. Super. 2007). Our standard of review is de novo. Commonwealth v. 

Martin, 97 A.3d 363, 364 (Pa. Super. 2014). After careful consideration of 

Appellant’s brief,8the record and the opinion of the Honorable Marc F. 

 

7 We note the typographical error in the recitation of the date in issue five. 

8 The Commonwealth did not file a brief.
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Lovecchio, we affirm the denial of the pre-trial motion to dismiss on the 

basis of the trial court’s decision. See Trial Ct. Op., 12/24/15, at 1-6.

Next, Appellant contends the evidence was insufficient to sustain the

guilty verdict on the charges of PWID, possession of a controlled substance, 

and criminal use of a communication facility on March 13, 2013 and April 2, 

2013. We address Appellant’s issues together because they are interrelated.

Appellant argues that 

[f]actors to consider 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. In the instant matter, the 

Appellant submits that the Commonwealth has failed to 

establish these facts, as no evidence was offered as to the 

method of packaging being consistent with the type the 

Appellant may have distributed. Furthermore, no evidence 

was offered as to the behavior of the Appellant, as no one 

observed the Appellant. 

Appellant’s Brief at 20 (citation omitted). 

Appellant claims the evidence was insufficient to sustain his conviction 

for possession of a controlled substance. He contends that 

[i]n the instant matter the Commonwealth failed to link the 

accused to the crime, insomuch as no testimony was 

presented that any individual officer witnessed the 

Appellant possessing anything. No testimony was offered 

that any of the drugs or their packaging were finger 

printed to match the appellant. No evidence of 

photographs, videos or the like was admitted that depicted 

the Appellant possessing the same.

Id. at 21. 
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Appellant contends the evidence was insufficient to sustain his guilty 

verdict on the charges of criminal use of a communication facility because

[t]he Commonwealth did not introduce evidence that the 

phone was registered to, belonged to, or was utilized by 

[Appellant]. The Commonwealth did not introduce 

recordings of the call. The Commonwealth did not 

introduce evidence that the calls were made on a speaker 

phone. The Commonwealth did not introduce evidence 

that the Appellant was the individual on the phone.

Id. at 23. We find no relief is due.

Our review is governed by the following principles:

The standard we apply in reviewing the sufficiency of 

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. Ratsamy, 934 A.2d 1233, 1236 n.2 (Pa. 2007) (citation 

omitted). Furthermore,
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[T]he critical inquiry on review of the sufficiency of the 

evidence to support a criminal conviction . . . does not 

require a court to ask itself whether it believes that the 

evidence at the trial established guilt beyond a reasonable 

doubt. Instead, it must determine simply whether the 

evidence believed by the fact-finder was sufficient to 

support the verdict.

Id. at 1235-36 (quotation marks and citation omitted).

In Commonwealth v. Little, 879 A.2d 293 (Pa. Super. 2005), this 

Court 

consider[ed] whether the Commonwealth presented 

sufficient evidence to sustain [the defendant’s] conviction 

for possession with intent to deliver. Section 780-

113(a)(30) of The Controlled Substance, Drug, Device and 

Cosmetic Act prohibits the following acts:

[T]he 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 [Pa.C.S.] § 780-113(a)(30). The Commonwealth 

establishes the offense of possession with intent to deliver 

when it proves beyond a reasonable doubt that the 

defendant possessed a controlled substance with the intent 

to deliver it.

Id. at 297 (some citations omitted).

If the contraband is not found on the appellant’s person, 

the Commonwealth must prove that the appellant had 

constructive possession of the contraband, which has been 

defined as the ability and intent to exercise control over 

the substance. The Commonwealth may establish 

constructive possession through the totality of the 

circumstances.
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Commonwealth v. Estepp, 17 A.3d 939, 944 (Pa. Super. 2011) (citations 

and quotation marks omitted).

The Crimes Code defines possession of a controlled substance as 

follows:

(16) Knowingly or intentionally possessing a controlled or 

counterfeit substance by a person not registered under this 

act, or a practitioner not registered or licensed by the 

appropriate State board, unless the substance was 

obtained directly from, or pursuant to, a valid prescription 

order or order of a practitioner, or except as otherwise 

authorized by this act.

35 Pa.C.S. § 780-113(a)(16).

Criminal use of a communication facility is defined as follows:

(a) Offense defined.─A person commits a felony of the 

third degree if that person uses a communication facility to 

commit, cause or facilitate the commission or the attempt 

thereof of any crime which constitutes a felony under this 

title or under the act of April 14, 1972 (P.L. 233, No. 64),1 

known as The Controlled Substance, Drug, Device and 

Cosmetic Act. Every instance where the communication 

facility is utilized constitutes a separate offense under this 

section.

 * * *

(c) Definition.─As used in this section, the term 

“communication facility” means a public or private 

instrumentality used or useful in the transmission of signs, 

signals, writing, images, sounds, data or intelligence of 

any nature transmitted in whole or in part, including, but 

not limited to, telephone, wire, radio, electromagnetic, 

photoelectronic or photo-optical systems or the mail.

18 Pa.C.S. § 7512(a), (c). 
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In Commonwealth v. Moss, 852 A.2d 374 (Pa. Super. 2004), this 

Court found the evidence was sufficient to support a conviction for criminal 

use of a communications facility where the CI spoke to the defendant on the 

telephone and the conversations led to a controlled buy between the 

defendant and the CI. Id. at 382-83.

In the instant case, the trial court found that “[a] review of the 

evidence presented at trial shows that the evidence was sufficient to support 

the conviction.” Trial Ct. Op., 7/22/16, at 1. We agree no relief is due. The 

evidence adduced at trial established that the CI testified that he had prior 

dealings with Appellant. The CI arranged via telephone to make controlled 

buys from Appellant. See 18 Pa.C.S. § 7512(a), (c); Moss, 852 A.2d at 

382-83. On March 13, 2013, the trooper watched the CI make the phone 

call. The CI purchased heroin from Appellant and after the transaction, 

handed the drugs to Trooper Fishel. See 35 P.S. § 780-113(a)(16), (30); 

Estepp, 17 A.3d at 944; Little, 879 A.2d at 297. 

On April 2, 2013, the CI again met with Trooper Fishel and the same 

procedure followed. Trooper Fishel testified to the same facts. Corporal 

McMunn testified that he conducted the surveillance for the April 2, 2016 

buy. He saw Appellant go into 230 West Third Street, saw the CI exit the 

Trooper’s car and go into the premises that Appellant had just entered. He 

saw the CI exit the building a return to Trooper Fishel’s car. See 35 P.S. § 

780-113(a)(16), (30); Estepp, 17 A.3d at 944; Little, 879 A.2d at 297. 
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Viewing the evidence in the light most favorable to the Commonwealth 

as verdict winner, the evidence established at trial was sufficient to sustain 

Appellant’s convictions for PWID, possession of a controlled substance, and 

criminal use of a communication facility. See Ratsamy, 934 A.2d at 1235-

36.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/10/2017