In re R.N.

951 A.2d 363

In the Interest of R.N., Jr., a Minor

Appeal of R.N., Jr., a Minor

No. 1572 MDA 2007.

Superior Court of Pennsylvania.

Filed June 2, 2008.

Suzanne S. Smith, York, for appellant.

Seth F. Bortner, Assistant District Attorney, York, for Commonwealth, appellee.

BEFORE: STEVENS, PANELLA and HUDOCK, JJ.

OPINION BY HUDOCK, J.:

¶ 1 This is an appeal from the dispositional order imposed following Appellant's adjudication as delinquent for drug and firearm-related offenses. We affirm.

¶ 2 On May 4, 2007, a juvenile petition was filed alleging that Appellant possessed marijuana with intent to deliver (PWID), received stolen property, carried a firearm without a license, and was a minor in possession of a firearm.¹ The charges stem from an incident in which police officers found Appellant in possession of 5.3 grams of marijuana and a loaded handgun. West York Borough Police Officer David Kahley testified that on October 7, 2006, at approximately 3:50 p.m., he saw the vehicle in which Appellant was a passenger fail to stop at a stop sign. N.T., 7/23/07, at 38-39. Officer Kahley was in full uniform in an unmarked vehicle. Id. at 38. Even though Officer Kahley activated his emergency lights, the vehicle did not stop. Id. at 38-39. West York Borough Police Officer Justin Seibel, in uniform and driving a marked police vehicle, joined Officer Kahley shortly thereafter. Id. at 14-16. Although Officers Kahley and Seibel activated their sirens, the vehicle accelerated. Id. at 41. The vehicle then attempted to make a turn, lost control, ran over a fence, and struck the rear porch of a residence. Id. at 17, 39. Officer Seibel stated that, as the vehicle ran over the fence and prior to crashing into the rear porch, he saw Appellant throw two items from the passenger side window. Id. at 19, 20, 35. Officer Seibel testified that one of the items appeared to be a plastic bag and the other item appeared to be a metal object. Id. at 20. Officer Kahley was driving behind the vehicle, and Officer Seibel was driving parallel with the vehicle as it drove over the fence and into the porch. Id. at 18. Officer Seibel testified that he was about ten feet away when he observed Appellant throw the items out of the window. Id. at 20.

¶ 3 The officers arrested Appellant and the driver of the vehicle. Officer Seibel then recovered one large plastic bag containing six bags of marijuana from the ground approximately three feet from the passenger side of the vehicle. Id. at 22, 26, 50, 52, 53. The substance in the bags, which had a combined weight of 5.3 grams, later tested positive for marijuana. Id. at 46, 52. Officer Seibel also recovered a loaded semi-automatic pistol, which was found on top of debris under the front bumper of the vehicle. Id. at 25-26, 35. After being read his Miranda² rights and afforded the opportunity to speak to his parents, Appellant stated to Officer Kahley that he had thrown marijuana out of the window, that the marijuana was his, and that it was for personal use. Id. at 45, 58. Officer Kahley also testified that Appellant denied knowledge of the handgun. Id. at 59. During the adjudication hearing, the owner of the weapon identified the handgun at issue as his and testified that it had been stolen from his car two months prior to the incident. Id. at 8, 70.

¶ 4 On July 23, 2007, at the conclusion of the hearing, Appellant was adjudicated delinquent for PWID (marijuana), possession of a firearm by a minor, and carrying a firearm without a license. Id. at 106-07.³ The trial court also found that Appellant failed to pay fines and costs for a citation stemming from an unrelated offense. Id. at 106. The trial court dismissed the charge of receiving stolen property. Id. at 105. On August 14, 2007, after a dispositional hearing, the trial court ordered that Appellant be placed in a residential treatment facility, attend rehabilitative and educational programs, and pay requisite fees. The court also ordered supervised probation and community service.

¶ 5 On September 11, 2007, Appellant filed a timely notice of appeal from the dispositional order. See Commonwealth v. S.F., 912 A.2d 887, 888-89 (Pa.Super.2006) (explaining that a direct appeal lies from the order of disposition entered after an adjudication by a juvenile court). On September 26, 2007, Appellant filed a timely Rule 1925(b) statement of the matters complained of on appeal in accordance with the trial court's order. Appellant asks us to review the following questions:

A. Whether the evidence was insufficient to show that the marijuana was possessed with intent to distribute?

B. Whether the evidence was insufficient to show "possession" of the firearm as required in the Possession of a Firearm by Minor charge as well as Possession of a Firearm without a license charge?

C. Whether the finding of adjudication as to the charge of Possession with Intent to Distribute Marijuana was against the weight of the evidence?

Appellant's Brief, at 4.

¶ 6 We first consider Appellant's claim that the evidence was insufficient to prove PWID. The Superior Court will not disturb the lower court's disposition absent a manifest abuse of discretion. In the Interest of J.D., 798 A.2d 210, 213 (Pa.Super.2002). When a juvenile is charged with an act that would constitute a crime if committed by an adult, the Commonwealth must establish the elements of the crime by proof "beyond a reasonable doubt." In the Interest of A.D., 771 A.2d 45, 48 (Pa.Super.2001) (en banc). When considering a challenge to the sufficiency of the evidence following an adjudication of delinquency, we must review the entire record and view the evidence in the light most favorable to the Commonwealth. Id.

In determining whether the Commonwealth presented sufficient evidence to meet its burden of proof, the test to be applied is whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences therefrom, there is sufficient evidence to find every element of the crime charged. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by wholly circumstantial evidence.

In re J.D., 798 A.2d at 212 (citations omitted). The facts and circumstances established by the Commonwealth need not be absolutely incompatible with a defendant's innocence. Id. at 212-13. Questions of doubt are for the hearing judge, unless the evidence is so weak that, as a matter of law, no probability of fact can be drawn from the combined circumstances established by the Commonwealth. Id. at 213.

¶ 7 Evidence is sufficient to prove PWID where the Commonwealth proves beyond a reasonable doubt that the defendant possessed a controlled substance he was not licensed to possess, and that he did so under circumstances demonstrating an intent to deliver that substance. In the Interest of C.C.J., 799 A.2d 116, 118, 120 (Pa.Super.2002); Commonwealth v. Griffin, 804 A.2d 1, 15 (Pa.Super.2002); Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa.Super.2000) (en banc). All of the facts and circumstances surrounding the possession of a controlled substance are relevant in making a determination of intent to deliver. In the Interest of Evans, 717 A.2d 542, 546 (Pa.Super.1998). The amount of the controlled substance involved is not crucial to establishing an inference of possession with the intent to deliver, if other facts are present. Id. Factors which may be relevant in establishing PWID include the form of the drug, the particular method of packaging, the behavior of the defendant, the presence of a handgun, the absence of drug use paraphernalia, large sums of cash found on the individual, and expert testimony concerning whether the facts in the case are consistent with an intent to deliver rather than an intent to possess for personal use. Commonwealth v. Ratsamy, 594 Pa. 176, 934 A.2d 1233, 1237-38 (2007); Commonwealth v. Jackson, 435 Pa.Super. 410, 645 A.2d 1366, 1368 (1994).

¶ 8 In the instant case, Officer Seibel testified that, prior to the vehicle in which Appellant was a passenger crashing into a house, he saw Appellant throw a plastic bag and a metal object out of the passenger side window of the vehicle. N.T., 7/23/07, at 19, 20, 35. Shortly after arresting Appellant, Officer Seibel recovered one large plastic bag containing six bags of marijuana from the ground, approximately three feet from the passenger side of the vehicle. Id. at 22, 26, 50, 52, 53. The substance in the bags, which had a combined weight of 5.3 grams, tested positive for marijuana. Id. at 46, 52. Officer Seibel also recovered a loaded semi-automatic pistol, which was found on top of debris under the front bumper of the vehicle. Id. at 25-26, 35. In addition, Appellant told Officer Kahley that the marijuana belonged to him and that he had thrown it out of the vehicle. Id. at 45, 58. The Commonwealth's expert witness, Detective James McBride of the York County District Attorney's Office, testified that, based on the packaging of the marijuana, the lack of use paraphernalia found at the scene and the presence of a handgun, it was his expert opinion that the drugs were possessed with the intent to deliver. Id. at 84-86. In viewing the evidence in the light most favorable to the Commonwealth, we find that the evidence sufficiently demonstrates that Appellant possessed marijuana with the intent to deliver.

¶ 9 Appellant argues that the evidence was insufficient to adjudicate him because there was no direct evidence demonstrating that he sold or delivered marijuana, or attempted to sell or deliver marijuana. Appellant's Brief, at 13. He also argues that the evidence is insufficient to prove PWID because he possessed only a small amount of marijuana, a small amount of cash was found at the scene of the incident, and because paraphernalia to use marijuana could be easily obtained. Id. at 13-14. However, the lack of testimony that Appellant was actually seen delivering...