Commonwealth v. Lewis

• Decision Date: 29 February 2012
• Docket Number: No. 2547 EDA 2009,2547 EDA 2009
• Citation: 45 A.3d 405
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Terrence M. LEWIS, Appellant.
• Court: Pennsylvania Superior Court

45 A.3d 405

COMMONWEALTH of Pennsylvania, Appellee

v.Terrence M. LEWIS, Appellant.

No. 2547 EDA 2009

Superior Court of Pennsylvania.

Argued Oct. 12, 2011.

Filed Feb. 29, 2012.

John J. McMahon, Jr., Philadelphia, for appellant.

Jennifer Lin, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., MUSMANNO, BENDER, GANTMAN, PANELLA, ALLEN, LAZARUS, and MUNDY, JJ.

OPINION BY MUSMANNO, J.:

Terrence M. Lewis("Lewis") appeals from the judgment of sentence imposed after he was convicted of possession with intent to deliver a controlled substance ("PWID").¹We affirm.

The trial court set forth the pertinent facts of the case as follows:

Pennsylvania State TrooperScott Miscannon("Miscannon") ... had been assigned to the Vice Narcotics Unit since 1995, primarily dealing with mid-to-upper level drug dealers.On July 1, 2008, Miscannon met with a confidential inform[ant](CI), who told him about a mid-to-upper level drug trafficker in Philadelphia, [Lewis], who dealt in up to nine ounces of cocaine and that he had purchased drugs from this person in the past.The CI described this man as a black male, approximately 25 years old, and that he drove a silver Dodge Ram truck or a green Lincoln Town Car.Based upon this information, Miscannon instructed the CI to call [Lewis] and order 4.5 ounces of "hard"(crack cocaine) and 4.5 ounces of "soft"(powder cocaine), for a total of nine ounces.The CI did so using speakerphone and they settled on a price of $8000 for these drugs.Miscannon then called State Trooper Javier Garcia["Garcia"] and instructed him to proceed undercover with the CI to purchase the drugs.The CI and [Lewis] engaged in several more phone calls while deciding where to meet.Miscannon testified that the CI always had the phone on "speaker" and he recognized the same voice on the other end each time.The CI and [Lewis] finally agreed to meet in a Pathmark Parking Lot at the intersection of Monument and Ford Road.Miscannon followed [the] CI and Garcia to that location in an unmarked police vehicle.At approximately 4:10 p.m., he saw [Lewis] arrive in a silver Dodge Ram pickup truck and pull up alongside the CI and Garcia's car.[Lewis] then drove to the intersection of Media and 60th Street, followed by the CI and Garcia in their own car.Miscannon remained in an unmarked police vehicle parked around the corner so that he could conduct surveillance.Approximately two minutes later, he observed [Lewis] walk onto the 1400 block of Redfield Street.He lost sight of [Lewis] for approximately 8–10 minutes when he entered and exited a residence, and then stopped to talk with an individual in a black Jeep.After receiving the pre-determined takedown signal from Garcia, Miscannon proceeded to where Garcia and the CI were located and arrested [Lewis] from inside the backseat of an undercover police vehicle.From [Lewis's] person, he recovered $6,310 and two cell phones.Miscannon called the phone number the CI had been using to communicate with [Lewis], and one of the cell phones rang.After [Lewis] was in custody, Garcia gave Miscannon a clear plastic bag filled with 4.5 ounces of powder cocaine, which Garcia had received from [Lewis].

Irina Aleshkevich("Aleshkevich"), a forensic scientist at the Pennsylvania State Police Lab, testified ... that she conducted two tests on the contents of [the] clear plastic bag containing a white substance and that she determined it to be 124 grams of cocaine.

[Garcia] ... had been assigned to the Vice Narcotics Unit for [a] year and a half.On July 1, 2008, Miscannon asked Garcia to perform undercover work and accompany the CI to purchase the nine ounces of cocaine he had ordered.While he was in the car with the CI, the CI had his phone on speakerphone and communicated several times with [Lewis] as to where they would meet.Once they arrived at the Pathmark grocery store parking lot, the agreed[-]upon location, Garcia and the CI pulled up alongside a silver Dodge pickup truck and the CI and [Lewis] spoke again on the phone.[Lewis] instructed them to follow him; he led them to 60th and Media Streets.Garcia testified that they were unable to park behind [Lewis's] truck so they parked in front of it, immediately in front of a daycare center on the corner.[Lewis] then approached the vehicle and had a conversation with the CI.He then looked into the backseat through the window and asked Garcia for $8000.Garcia asked him to show him the cocaine first.[Lewis] left the area for approximately 10 minutes and when he returned, he entered the vehicle and sat in the backseat.He reached into the left leg pocket of his cargo pants and produced a yellow bag of cocaine.Garcia stepped out of the vehicle, gave backup officers the predetermined "take-down" signal, and [Lewis] was taken into custody....

...

[Lewis] testified ... that on July 1, 2008, he borrowed a pickup truck and drove from Coatesville, PA to Philadelphia with his 16–year–old friend, Harvey.The truck belonged to Harvey's stepfather and Harvey needed to be dropped off somewhere in Philadelphia.[Lewis] called a friend, Tyree Waters("Waters"), and discussed purchasing a bicycle from him.He met with Waters and an unknown male in the parking lot of a Pathmark grocery store near City Line Avenue, but they did not have the bicycle with them.Waters called him on the phone and said they needed to go somewhere else to get the bicycle so [Lewis] followed his car to 60th and Media Streets.[Lewis] exited his vehicle and walked towards Redfield Street because he saw his cousin['s] car parked there.As he was walking towards Redfield Street, Waters called him and said that the man selling the bicycle, "Pedro," was in the backseat of the car and wanted to talk to him.[Lewis] spoke with Pedro in the backseat, and they agreed to a selling price of $4500.[Lewis] testified that Pedro told him the bicycle was around the corner and then he stepped out of the vehicle.A few moments later, two state troopers appeared and put [Lewis] in handcuffs.

Trial Court Opinion, 3/29/10, at 3–7(citations omitted).

After a jury trial, Lewis was found guilty of PWID.On April 16, 2009, the trial court sentenced him to a prison term of ten to twenty years.Lewis filed a post-sentence Motion, requesting a new trial and reconsideration of sentence.Lewis's post-sentence Motion was denied by operation of law, and he then filed this timely appeal.Lewis also filed a Concise Statement of matters complained of on appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), in accordance with a trial court Order.

Lewis raises the following issues for our review:

1.Whether the evidence was sufficient to support [Lewis's] conviction for [PWID]?

2.Whether the sentence was excessive and an abuse of discretion?

Brief for Appellantat 5.

Lewis first contends that the evidence was insufficient to support his conviction of PWID.He asserts that his version of the events at issue was more credible than the Commonwealth's, that the Commonwealth did not present testimony to reveal the identity of the CI, and that although Garcia testified that numerous telephone calls were made between him and the CI, these calls were not listed on the discovery provided to defense counsel.

The standard we apply in reviewing the sufficiency of the 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 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. Troy,832 A.2d 1089, 1092(Pa.Super.2003)(citations omitted).

The crime of PWID is defined as follows:

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:

...

(30) Except as authorized by this act, the 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 P.S. § 780–113(a)(30).

The trial court found that the evidence was sufficient to support Lewis's conviction of PWID, reasoning as follows:

The totality of the circumstances, taken in the light most favorable to the Commonwealth, was sufficient to sustain [Lewis's] conviction for [PWID].The record demonstrates that [ ] Miscannon, via a[CI], learned of a mid-level drug dealer[, Lewis,] who drove a silver Dodge pickup truck or Lincoln town car and sold up to nine ounces of cocaine.Based upon this credible information, Miscannon instructed the CI to contact [Lewis] and arrange a purchase of nine ounces of cocaine.[ ] Garcia, working undercover, accompanied the CI to the prearranged location—a Pathmark grocery store parking lot.Once there, Garcia saw [Lewis] in a silver Dodge pickup truck.[Lewis] instructed them to follow him and he led them to 60th and Media Streets, parking near a day care

...