Public-domain · open source
OpenJurist

2006 Pa. Super. 63

895 A.2d 633

Commonwealth v. Clark

Superior Court of Pennsylvania

Decided March 24, 2006

This page is marked noindex.

Superior Court of Pennsylvania · decided 2006-03-24

Cited by 4 later decisions — most recently June 2008

4 state decisions

Key passage — most relied on by later courts

“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.”

quoted by 2 later decisions, including 2006 Pa. Super. 132 - Commonwealth v. Evans, 2006 Pa. Super. 233 - Commonwealth v. Kerry

Relies on 2004 Pa. Super. 269 - Commonwealth v. Ross

Good law ✅— No negative treatment on recordhow we know

Decided 2006-03-24

View the full empirical analysis of this case →

¶1DISSENTING OPINION BY

STEVENS, J.:

¶2¶ 1 I conclude the evidence was sufficient to establish that Appellant had the requisite intent to deliver a controlled substance, and, therefore, I would affirm his judgment of sentence. As such, I respectfully dissent.

¶3¶ 2 It is well-settled that the jury is free to believe all, part, or none of the testimony presented. Commonwealth v. Ross, 856 A.2d 93 (Pa.Super.2004). Here, as the Majority acknowledges, the Commonwealth’s expert opined that, based upon his experience, Appellant’s behavior was consistent with someone who is engaged in drug trafficking. The jury was free to accept this testimony. Ross, supra.

¶4¶ 3 Moreover, I disagree that the circumstantial evidence did not establish the requisite intent. In the light most favorable to the Commonwealth as the verdict winner, the evidence revealed that Appellant, who was the passenger in the vehicle, possessed 2.5 grams of cocaine, approximately $9.00, and a cell phone in a high crime area. In addition, his co-defendant, who was the driver of the vehicle, possessed crack cocaine, approximately $387.00, and a cell phone. When taken to the police station, both Appellant and his co-defendant admitted they were unemployed, and the police did not seize from either Appellant or his co-defendant drug paraphernalia which would be used to consume the crack cocaine. The Commonwealth’s expert testified that it was common practice for drug dealers to work in pairs, with one person holding the money and the other person holding the bulk of the narcotics. Based on all of the evidence, I would find the Commonwealth proved Appellant had the requisite intent.

¶5¶ 4 Finally, I note that, while I agree the possession of a cell phone in and of itself is insufficient to establish a criminal intent, when taken together with all of the evidence presented in this case, I conclude the possession of a cell phone was but one piece of evidence establishing Appellant’s intent. In addition, I note that there is no requirement in our law that the Commonwealth prove the existence of plastic baggies or rubber bands in establishing the intent to deliver.

/2006/pasuper/63 · .json · Public domain