Opinion
J-S35031-16 No. 382 EDA 2015
05-11-2016
COMMONWEALTH OF PENNSYLVANIA v. LAMONT ANTHONY CARROL, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence March 9, 2012 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0012280-2008 BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E. and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
Lamont Anthony Carrol ("Carrol") appeals from the judgment of sentence imposed following his convictions of possession with intent to deliver a controlled substance, possession of a controlled substance, and criminal use of a communication facility. We affirm.
35 P.S. §§ 780-113(a)(30), (a)(16); 18 Pa.C.S.A. § 7512.
The trial court aptly summarized the factual and procedural history of this case, which we adopt for the purpose of this appeal. See Trial Court Opinion, 7/6/15, at 1-4.
Carrol entered a separate negotiated guilty plea for possession of a firearm by a prohibited person. See Trial Court Opinion, 7/6/15, at 1 n.1. However, the firearms charge is not at issue in this case.
Following a jury trial, Carrol was convicted of the above-mentioned crimes. On March 9, 2012, the trial court sentenced Carrol to 45 to 90 months in prison.
On appeal, Carrol raises the following questions for our review:
I. Whether the verdict was contrary to law as to the charge of criminal use of a [communication] facility[?]Brief for Appellant at 8 (capitalization omitted).
II. Whether the verdict was contrary to law as to the charge of possession with intent to deliver[?]
III. Whether the trial court abused its discretion in not allowing the identity of the confidential informant to be revealed[?]
Carrol's first two claims challenge the sufficiency of the evidence. We apply the following standard of review when considering a challenge to the sufficiency of the evidence:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial the 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 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. Talbert , 129 A.3d 536, 542-43 (Pa. Super. 2015) (citation omitted).
In his first claim, Carrol argues that the evidence was insufficient to sustain his conviction of criminal use of a communication facility. Brief for Appellant at 15, 17. Carrol concedes that the Commonwealth satisfied its burden as to the first two elements, because he had used a cell phone in the commission of the crimes and the underlying charge is a felony. Id. at 16. Carrol asserts that his conversation with Officer Jeffrey Galazka ("Officer Galazka") does not constitute a substantial step toward the commission of the underlying crime. Id.
In its Opinion, the trial court addressed Carrol's claim, set forth the relevant law regarding criminal use of a communication facility, and determined that the Commonwealth presented sufficient evidence to sustain the conviction. See Trial Court Opinion, 7/6/15, at 5-7. We adopt the sound reasoning of the trial court for the purpose of this appeal. See id.
In his second claim, Carrol argues that the evidence was insufficient to sustain his conviction of possession with intent to deliver. Brief for Appellant at 17. Carrol claims that his possession of a large number of individual packets containing crack cocaine is not sufficient, without more, to show an intent to deliver. Id. at 18. Carrol asserts that there was insufficient evidence to prove an intent to deliver, even when considering other factors in a totality of the circumstances analysis, such as the four jars found in his house, a lack of other paraphernalia, the use of a confidential informant, and inconsistencies between Officer Galazka's description and Carrol's physical appearance. Id. at 18-19.
In its Opinion, the trial court addressed Carrol's claim, set forth the relevant law regarding possession with intent to deliver, and determined that the Commonwealth presented sufficient evidence to sustain his conviction. See Trial Court Opinion, 7/6/15, at 7-10. We adopt the sound reasoning of the trial court for the purpose of this appeal. See id.; see also Commonwealth v. Daniels , 999 A.2d 590, 595 (Pa. Super. 2010) (stating that "intent to deliver may be inferred from an examination of the facts and circumstances surrounding the case[,]" including the form and packaging of the drug, and the behavior of the defendant); Commonwealth v. Morrow , 650 A.2d 907, 912 (Pa. Super. 1994) (stating that there was sufficient evidence to sustain appellant's conviction for possession with intent to deliver where appellant sold marijuana to an informant, who subsequently turned the marijuana over to the police).
With regard to Carrol's claim regarding inconsistencies in Officer Galazka's description of Carrol, this claim goes to the weight of the evidence. The fact-finder was free to weigh the evidence and make a credibility determination, and we will not disturb the fact-finder's judgment. See Commonwealth v. Hanible , 836 A.2d 36, 40 (Pa. 2003).
In his third claim, Carrol asserts that the trial court erred in denying his Motion to compel disclosure of the identity of the confidential informant. Brief for Appellant at 19. Carrol argues that he should have had the opportunity to examine and question the confidential informant because the confidential informant was the only disinterested witness, and because the confidential informant was an active participant in the transaction. Id. at 21-22.
"Our standard of review of claims that a trial court erred in its disposition of a request for disclosure of an informant's identity is confined to abuse of discretion." Commonwealth v. Washington , 63 A.3d 797, 801 (Pa. Super. 2013). "The Commonwealth enjoys a qualified privilege to withhold the identity of a confidential source." Commonwealth v. Watson , 69 A.3d 605, 607 (Pa. Super. 2013). The trial court has the discretion to require the Commonwealth to reveal the names of confidential informants where a defendant makes a showing that "they are material to the preparation of the defense, and that the request is reasonable." Pa.R.Crim.P. 573(B)(2)(a).
In its Opinion, the trial court addressed Carrol's claim and determined that Carrol did not demonstrate that the confidential informant's identity was material to the preparation of his defense. See Trial Court Opinion, 7/6/15, at 11-12. We adopt the sound reasoning of the trial court for the purpose of this appeal. See id.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/11/2016
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