Commonwealth v. Koch

2011 PA Super 201

39 A.3d 996

COMMONWEALTH of Pennsylvania, Appellee

v.Amy N. KOCH, Appellant.

Superior Court of Pennsylvania.

Submitted July 18, 2011.Filed Sept. 16, 2011.Reargument Denied Nov. 22, 2011.

Michael O. Palermo, Jr., Carlisle, for appellant.

Matthew P. Smith, Assistant District Attorney, Carlisle, for Commonwealth, appellee.

BEFORE: BOWES, FREEDBERG, and COLVILLE,^* JJ.OPINION BY BOWES, J.:

Amy N. Koch appeals the July 20, 2010 judgment of sentence of twenty-three months probation imposed following her conviction of possession with intent to deliver (“PWID”) (marijuana) and possession of a controlled substance (marijuana) as an accomplice. After careful review, we reverse and remand for a new trial.

The evidence revealed the following course of events. A confidential informant apprised police that Norman Koch, a/k/a Matt Koch, was selling cocaine and that Koch resided with his sister, Appellant herein, and Dallas Conrad, her paramour, at an address on Aeronca Street in North Middleton Township. Based on that information, police conducted two trash pulls at the residence, which yielded two baggies, one containing cocaine residue, the other marijuana residue. N.T. Trial, 5/26–27/10, at 15. Detective Timothy Lively applied for and obtained a search warrant for Appellant's residence and on March 25, 2009, at approximately 6:05 p.m., members of the Cumberland County Drug Task Force executed the search warrant on Appellant's home. The officers, after identifying themselves and stating their purpose, were granted access to the house. Id. at 17. Present were Appellant, her brother Norman Koch, and Dallas Conrad.

Officer Richard Grove of the North Middleton Police Department and assigned to the task force testified that he was involved in the search of the master bedroom. He found two individual baggies of marijuana and seven hundred dollars in a dresser drawer containing male underwear and socks. On top of another longer dresser located in the room, he found a men's shoebox containing a bong, two pipes for smoking marijuana, a grinder used to separate stems and seeds from the leaves, Phillies Blunts cigars, and sandwich bags. In a basement freezer, other officers recovered a small bag of marijuana and a marijuana bud. Id. at 31. Scales containing residue of marijuana were located on top of the refrigerator, along with a marijuana pipe.

The task force also seized two cell phones, one of which Appellant identified as hers. The other phone was subsequently identified as her brother's. The text messages on Appellant's phone were transcribed, and the Commonwealth offered, over objections as to authenticity and hearsay, testimony and a transcript of what it described as thirteen drug-related text messages.

The jury returned a verdict of guilty as an accomplice on the PWID charge, guilty as an accomplice on the possession charge, and acquitted Appellant of conspiracy to commit possession with intent to deliver. Appellant's timely post-trial motions raising weight and sufficiency issues were denied. Post-sentence motions also were denied. Appellant timely appealed and complied with the trial court's order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The trial court issued its opinion pursuant to Rule 1925(a), and the matter is ripe for our review.

Appellant raises two issues for our consideration:

1. Did the trial court err in admitting text messages and transcripts of text messages over the objection of defense counsel, where the text messages were not authenticated, the author of the text messages could not be ascertained and were ultimately offered for the truth of the matter asserted?

2. Whether the finder of fact erred in finding there was sufficient evidence to prove all the requisite elements of possession with intent to deliver a controlled substance and simple possession beyond a reasonable doubt, where the evidence presented was that of text messages whose sender was unknowable and there was no other evidence that Appellant engaged in possessing drugs for delivery or the simple possession of drugs?

Appellant's brief at 7.

As Appellant's second issue challenging the sufficiency of the evidence, if meritorious, would result in discharge, we turn to that issue first. Furthermore, in conducting our analysis, we consider all of the evidence actually admitted at trial and do not review a diminished record. Commonwealth v. Smith, 523 Pa. 577, 568 A.2d 600, 603 (1989); Commonwealth v. Dale, 836 A.2d 150 (Pa.Super.2003). Consequently, our examination is unaffected by our subsequent resolution of the evidentiary issues raised by Appellant.

In reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all elements of the offense. Commonwealth v. Moreno, 14 A.3d 133 (Pa.Super.2011). Additionally, we may not reweigh the evidence or substitute our own judgment for that of the fact finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa.Super.2009). The evidence may be entirely circumstantial as long as it links the accused to the crime beyond a reasonable doubt. Moreno, supra at 136.

In order to convict an accused of PWID under 35 P.S. § 780–113(a)(30), the Commonwealth must prove that he “both possessed the controlled substance and had an intent to deliver that substance.” Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa.Super.2003). Pennsylvania courts interpreting § 780–113(a)(30), as it applies to PWID, have concluded that the Commonwealth must establish mens rea as to the possession element. Commonwealth v. Mohamud, 15 A.3d 80 (Pa.Super.2010). When determining whether a defendant had the requisite intent to deliver, relevant factors for consideration are “the manner in which the controlled substance was packaged, the behavior of the defendant, the presence of drug paraphernalia, and large sums of cash[.]” Commonwealth v. Ratsamy, 594 Pa. 176, 934 A.2d 1233, 1237–1238 (2007). Additionally, expert opinion testimony is also admissible “concerning whether 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 1238. We held in Commonwealth v. Bull, 422 Pa.Super. 67, 618 A.2d 1019, 1021 (1993), aff'd, 539 Pa. 150, 650 A.2d 874 (1994), cert. denied, 515 U.S. 1141, 115 S.Ct. 2577, 132 L.Ed.2d 827 (1995), that such expert testimony, coupled with the presence of drug paraphernalia, is sufficient to establish intent to deliver.

Appellant assails the sufficiency of evidence that she possessed the controlled substance with intent to deliver. Viewing the evidence in the light most favorable to the Commonwealth, the quantity of drugs recovered at her home, scales and packaging materials, the text messages, in addition to the expert testimony of Detective Lively, we find that the Commonwealth established PWID beyond a reasonable doubt. Officer Grove testified that he searched the master bedroom of the home and it contained both male and female clothing and mail addressed to Appellant and her paramour/co-defendant, Dallas Conrad. In a dresser drawer containing male underwear and socks, the officer located two baggies containing marijuana adjacent to approximately seven hundred dollars in cash. N.T. Trial, 5/26–27/10, at 21. A man's shoebox located on a longer dresser contained a bong, two pipes, a grinder, sandwich bags, and the Phillies Blunts cigars. Search of the basement freezer yielded a small bag of marijuana and a marijuana bud. Id. at 31.

Detective Lively testified that he had been a member of the Cumberland County Drug Task Force since 2003 or 2004 and that he had training and experience in narcotics and drug-trafficking. Id. at 60. He participated in the search and personally recovered a pipe and electronic scales from the top of the refrigerator and two cellular phones. He continued that the purpose of searching for cellular phones is that “more often than not, [they] are used to communicate between dealers and users.” Id. at 71. The detective stated that he seized an AT & T cell phone that Appellant identified as her phone and that he transcribed the text messages stored in the phone. He segregated those messages that were drug-related from those that were just general communications. Id. at 82. The detective related that thirteen of the text messages were drug-related and he explained to the jury what each meant. He “located these texts back and forth with regard to what appeared to be the delivery or intent to deliver controlled substances.” Id. at 99. He then opined, based on his experience with the way marijuana is delivered, as opposed to personal use, that the large amount of cash, the fact that there was more than one bag of marijuana, and scales saturated with marijuana residue, were indicative of drug sellers rather than users. He further suggested that the nice house, expensive furniture and electronics also were more characteristic of dealers. Id. at 98. He opined that the text messages, together with the pipes and bongs, also indicated possession. Id. at 101. We find such evidence sufficient to sustain convictions for PWID and possession, and no relief is due on this basis.

Appellant's remaining issue is a challenge to the admissibility of the text message evidence. Our standard of review of such a claim is as follows:

Admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion. Admissibility depends on relevance and probative value. Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact....