256 A.3d 432
Pa. Super. Ct.2021Background
- On June 28, 2017, Pottstown police arranged a controlled buy: a confidential informant called a phone number tied to Appellant’s address and met at a Rite Aid parking lot to buy two baggies of narcotics for $20.
- Officers surveilled the meeting from multiple undercover positions and observed the informant enter Appellant Victor Rojas‑Rolon’s red Chevy Cobalt (Appellant driving) and speak with him inside and outside the vehicle; a female passenger was present but unidentified.
- The informant returned to officers with two yellow baggies; lab testing later identified fentanyl and methamphetamine. Officers never observed the hand-to-hand transfer itself.
- Appellant was charged with PWID, possession, and possession of paraphernalia; motions to compel the CI’s identity and to suppress were denied; he was convicted by a jury and sentenced to 2–4 years’ incarceration plus 2 years’ probation and court costs.
- On appeal, Appellant challenged (1) sufficiency of evidence (arguing mere presence and an unidentified passenger could have supplied the drugs) and (2) imposition of court costs without an ability‑to‑pay determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to convict of PWID, possession, paraphernalia | Commonwealth: circumstantial evidence (phone tied to Appellant’s address, informant entered Appellant’s car, officers saw informant speak only with Appellant, informant left with drugs) supports constructive possession and intent to deliver | Rojas: mere presence in car insufficient; unidentified female passenger could have transferred the drugs; no witness observed the transfer | Affirmed convictions. Court held constructive possession/delivery proven by totality of circumstances (power and intent to control the drugs), so mere presence did not control. |
| Imposition of court costs without ability‑to‑pay hearing | Commonwealth: Rule 706 does not require an ability‑to‑pay hearing at sentencing unless defendant faces incarceration for failure to pay previously imposed costs | Rojas: trial court erred by imposing costs without first determining ability to pay under Pa.R.Crim.P. 706(c) | Affirmed sentence. Following precedent, Rule 706 does not mandate an ability‑to‑pay hearing at sentencing absent a threat of incarceration for nonpayment. |
Key Cases Cited
- Commonwealth v. Toritto, 67 A.3d 29 (Pa. Super. 2013) (discussing standards for reviewing sufficiency issues)
- Commonwealth v. Walls, 144 A.3d 926 (Pa. Super. 2016) (scope and standard of appellate review)
- Commonwealth v. Trinidad, 96 A.3d 1031 (Pa. Super. 2014) (articulating de novo review and sufficiency principles)
- Commonwealth v. Katona, 191 A.3d 8 (Pa. Super. 2018) (mere presence cannot sustain possession finding)
- Commonwealth v. Murphy, 844 A.2d 1228 (Pa. 2004) (delivery requires actual, constructive, or attempted transfer; mere presence insufficient for delivery)
- Commonwealth v. Parrish, 191 A.3d 31 (Pa. Super. 2018) (constructive possession defined as conscious dominion; may be proven by totality of circumstances)
- Commonwealth v. Johnson, 26 A.3d 1078 (Pa. 2011) (constructive possession can be joint where contraband is in area of joint control and equal access)
- Commonwealth v. Lehman, 201 A.3d 1279 (Pa. Super. 2019) (challenge to imposition of costs implicates legality of sentence)
- Commonwealth v. White, 193 A.3d 977 (Pa. Super. 2018) (standard of review for legality of sentence is de novo)