Com. v. Rivera, D. ( 2017 )


Menu:
  • J-S02020-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    DAVID RIVERA
    Appellant                No. 3732 EDA 2015
    Appeal from the Judgment of Sentence Entered October 30, 2015
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No: CP-51-CR-0010239-2014
    BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ.
    MEMORANDUM BY STABILE, J.:                            FILED APRIL 13, 2017
    Appellant, David Rivera, appeals from the October 30, 2015 judgment
    of sentence imposing three to ten years of incarceration for possession with
    intent to deliver a controlled substance1 (“PWID”) and conspiracy.2 Counsel
    has filed a brief and petition to withdraw pursuant to Anders v. California,
    
    386 U.S. 738
    (1967) and Commonwealth v. Santiago, 
    978 A.2d 349
    (Pa.
    2009). We affirm the judgment of sentence and grant counsel’s petition to
    withdraw.
    The trial court summarized the facts in its Pa.R.A.P. 1925(a) opinion:
    ____________________________________________
    1
    35 P.S. § 780-113(a)(30).
    2
    18 Pa.C.S.A. § 903.
    J-S02020-17
    On July 8, 2014, at about 7:00 p.m., Philadelphia Police
    Officer John Seigafuse, a member of the 25th Police District’s
    Narcotics Enforcement Team, was assigned with other team
    members to conduct a drug investigation in the 3300 block of N.
    5th Street. Seigafuse and his partner, Officer Eric Crawford,
    commenced a surveillance of the 3300 block from inside their
    vehicle. Upon doing so, Officer Seigafuse observed Appellant
    speaking to a male later identified as Ronald Burke on the 3300
    block of N. 5th Street. During the conversation, Appellant and
    Burke were approached by one Carl Paris after which both
    Appellant and Burke removed United States currency from their
    pockets and handed it to Paris, who put the money into his
    pants. Paris then walked to a gold Chevy Tahoe parked on the
    500 block of Westmoreland Street.
    Paris stayed in the car for a short while before returning to
    the 3300 block of N. 5th Street where he handed Appellant a
    small object. Officer Seigafuse saw Appellant ball his hand
    around the object, cross the street, and then place the object
    behind steps along a wall of a residence situated on the east side
    of the street. Appellant then sat on the steps of that residence
    as Paris walked up and down the block. After approximately ten
    minutes, Burke was approached by another male identified as
    Juan Ramos, who handed him money. Burke put the money in
    his pants’ pocket, walked to a nearby abandoned property and
    retrieved small objects from a blue packet located in a pile of
    trash. Burke handed the objects to Ramos and then returned
    the blue packet to the trash pile. Ramos walked away and was
    stopped by members of the back-up team assisting Officer
    Seigafuse and his partner. From Ramos police recovered an
    orange-tinted Ziploc packet filled with what later testing revealed
    to be crack cocaine.
    About five minutes after Ramos engaged in the transaction
    with Burke a man named Hector Torres engaged Burke in a
    similar transaction after which he was stopped. Recovered from
    Torres was one orange-tinted crack filled packet.
    Shortly thereafter, a man named Angel Burros approached
    Appellant and began a short conversation during which Burgos
    handed Appellant money. After taking the money from Burgos,
    Appellant proceeded to the location where he earlier placed the
    object he received from Paris, picked up a clear plastic bag, and
    -2-
    J-S02020-17
    removed an item handing it to Burgos. Buros was stopped by
    police who recovered a clear packet filled with powdered cocaine.
    After observing this third transaction, Officer Seigafuse
    directed members of his back-up team to stop Appellant, Burke,
    and Paris. Police recovered $83.00 from Appellant. Police
    recovered $599.00 from Paris. Sergeant Wali Shabazz, who
    apprehended Appellant, then, proceeded, at Officer Seigafuse’s
    behest, to the location where Officer Seigafuse saw Appellant
    place the object he received from Paris. Shabazz recovered a
    clear plastic bag filled with eleven packets containing powdered
    cocaine. In addition, Officer Seigafuse directed Officer Czapor to
    the location of the trash pile where Burke was observed
    obtaining small objects that he gave to Ramos and Torres.
    Officer Czapor recovered a blue aluminum foil packet that, inter
    alia, contained two orange-tinted Ziploc packets of crack cocaine
    that were identical to the packets recovered from Torres and
    Ramos. All of the items collected by police were placed on
    property receipts.
    Following the apprehension of Appellant, Burke, and
    Torres, police obtained a search warrant to search the gold
    Tahoe. Upon executing the warrant, police seized $3,410 and a
    bag filled with seven bundles containing twelve clear packets of
    powdered cocaine, identical to the eleven clear packets
    recovered on 5th Street from behind the steps. In addition,
    Officer Seigafuse identified each of the males apprehended by
    his back-up officers.
    Trial Court Opinion, 6/20/2016, at 2-4 (record citations omitted).
    A jury found Appellant guilty of the aforementioned offenses after an
    August 2015 trial. The trial court imposed the aforementioned sentence on
    October 30, 2015. Appellant filed a timely post-sentence motion. The trial
    court denied the post-sentence motion on November 24, 2015. This timely
    appeal followed.
    -3-
    J-S02020-17
    Before we address the merits, we consider whether counsel’s brief and
    petition to withdraw comply with these requirements of Anders and
    Santiago:
    (1) provide a summary of the procedural history and facts, with
    citations to the record;
    (2) refer to anything in the record that counsel believes arguably
    supports the appeal;
    (3) set forth counsel’s conclusion that the appeal is frivolous;
    and
    (4) state counsel’s reasons for concluding that the appeal is
    frivolous. Counsel should articulate the relevant facts of record,
    controlling case law, and/or statutes on point that have led to
    the conclusion that the appeal is frivolous.
    
    Santiago, 978 A.2d at 361
    .
    Counsel must also advise the defendant of his rights to “(1) retain new
    counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any
    points that the appellant deems worthy of the court’s attention in addition to
    the points raised by counsel in the Anders brief.”       Commonwealth v.
    Nischan, 
    928 A.2d 349
    , 353 (Pa. Super. 2007), appeal denied, 
    936 A.2d 40
    (Pa. 2007).    We have reviewed counsel’s filings and found them in
    compliance with the foregoing. We will now consider the merits.
    The Anders brief addresses the sufficiency of the evidence in support
    of Appellant’s PWID and conspiracy convictions. In particular, the Anders
    brief addresses whether the Commonwealth proved that Appellant was in
    constructive possession of any controlled substances, and whether the
    Commonwealth proved that Appellant formed an agreement with another
    -4-
    J-S02020-17
    person to distribute controlled substances.     These are the same issues
    Appellant raised in his Pa.R.A.P. 1925 concise statement of errors.
    We review a challenge to the sufficiency of the evidence as follows:
    When evaluating a sufficiency claim, our standard is
    whether, viewing all the evidence and reasonable inferences in
    the light most favorable to the Commonwealth, the factfinder
    reasonably could have determined that each element of the
    crime was established beyond a reasonable doubt. This Court
    considers all the evidence admitted, without regard to any claim
    that some of the evidence was wrongly allowed. We do not
    weigh the evidence or make credibility determinations.
    Moreover, any doubts concerning a defendant's guilt were to be
    resolved by the factfinder unless the evidence was so weak and
    inconclusive that no probability of fact could be drawn from that
    evidence.
    Commonwealth v. Kane, 
    10 A.3d 327
    , 332 (Pa. Super. 2010), appeal
    denied, 
    29 A.3d 796
    (Pa. 2011).
    To sustain a conviction for PWID, “the Commonwealth must prove
    beyond a reasonable doubt only that, on a specific occasion, 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.” Commonwealth v. Griffin, 
    804 A.2d 1
    , 15 (Pa. Super. 2002),
    appeal denied, 
    868 A.2d 1198
    (Pa. 2005). “Intent may be inferred from an
    examination of the facts and circumstances surrounding the case.” 
    Id. Likewise, to
    sustain a conspiracy conviction, the Commonwealth must
    prove beyond a reasonable doubt the defendant:         “(1) entered into an
    agreement to commit or aid in an a criminal act with another person or
    persons (2) with a shared criminal intent and that (3) an overt act was done
    -5-
    J-S02020-17
    in furtherance of the conspiracy.”   Commonwealth v. Bostick, 
    958 A.2d 543
    , 560 (Pa. Super. 2008), appeal denied, 
    987 A.2d 158
    (Pa. 2009).
    We have reviewed the Anders brief, the Commonwealth’s brief, the
    record, and the trial court’s opinion.   Appellant did not file a response to
    counsel’s petition to withdraw. We conclude the trial court’s June 20, 2016
    opinion thoroughly and accurately addresses the sufficiency of the evidence,
    and we adopt the trial court’s analysis as our own. Our independent review
    of the record reveals no other issues of arguable merit. We therefore affirm
    the judgment of sentence and grant counsel’s petition to withdraw.
    Judgment of sentence affirmed. Petition to withdraw granted.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 4/13/2017
    -6-
    Circulated 03/22/2017 04:05 PM
    IN THE COURT OF COMMON PLEAS
    FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
    TRIAL DIVISION-CRIMINAL SECTION
    COMMONWEALTH OF PENNSYLVANIA                                   : PHILADELPIDA COURT
    : OF COMMON PLEAS
    : CRIMINAL TRIAL DIVISION
    v.                                        : CP·Sl·CR-0010239-2014
    CP·51·CR·0010239-2014 Comm. v. Rivera. David
    Opinion
    DAVID RIVERA
    I
    II I I II Ill 111111111111111
    7462612061
    FILED
    JUN 2 0 2016
    OPINION
    Criminal Appeals Unit
    First Judicial District 01 PA
    MCCAFFERY, J
    David Rivera (hereinafter "Appellant") appeals from the judgment of sentence imposed
    by this Court on October 30, 2015. For the reasons set forth below, it is suggested that the
    judgment of sentence be affirmed.
    PROCEDURAL HISTORY
    In August, 2015, Appellant was tried by a jury and found guilty of Manufacture,
    Delivery, or Possession With Intent to Manufacture or Deliver a Controlled Substance
    (hereinafter "PWID"), 35 P.S. § 780-113 § (A)(30),                      and Conspiracy to commit PWID, 18
    Pa.C.S. § 903. On October 30, 2015, this Court imposed concurrent sentences of three to ten
    years' incarceration upon Appellant.
    Following the imposition of sentence, Appellant filed a post-sentence motion which this
    Court denied on November 24, 2015. Appellant thereafter filed a notice of appeal and a court
    ordered Pa.R.A.P. 1925(b) statement. In his 1925(b) statement, Appellant asserts that the
    evidence is insufficient to sustain the PWID and Conspiracy convictions.
    1
    FACTUAL HISTORY
    On July 8, 2014, at about 7:00 p.m., Philadelphia Police Officer John Seigafuse, a
    member of the 25th Police District's Narcotics Enforcement Team, was assigned with other team
    members to conduct a drug investigation in the 3300 block of N. 5th Street.             Seigafuse and his
    partner, Officer Eric Crawford, commenced a surveillance of the 3300 block from inside their
    vehicle. (N.T. 8/12/15, 52-53). Upon doing so, Officer Seigafuse observed Appellant speaking
    to a male later identified as Ronald Burke on the 3300 block of N.5Lh Street. (N.T. 8/12/15, 57).
    During the conversation, Appellant and Burke were approached by one Carl Paris after which
    both Appellant and Burke removed United States currency from their pockets and handed it to
    Paris, who put the money into his pants. (N.T. 8/12/15, 57-58, 62-63). Paris then walked to a
    gold Chevy Tahoe parked on the 500 block of Westmoreland Street. (N.T. 8/12/15, 58).1
    Paris stayed in the car for a short while before returning to the 3300 block of N.51h Street
    where he handed Appellant a small object. (N.T. 8/12/15, 59). Officer Seigafuse saw Appellant
    ball his hand around the object, cross the street, and then place the object behind steps along a
    wall of a residence situated on the east side of the street. (Jg). Appellant then sat on the steps of
    that residence as Paris walked up and down the block. (N.T. 8/12/15, 60, 63).
    After approximately ten minutes, Burke was approached by another male identified as
    Juan Ramos, who handed him money. (N.T. 8/12/15, 64). Burke put the money in his pants'
    pocket, walked to a nearby abandoned property and retrieved small objects from a blue packet
    located in a pile of trash. (N.T. 8/12/15, 64). Burke handed the objects to Ramos and then
    returned the blue packet to the trash pile. (N.T. 8/12/15, 64). Ramos walked away and was
    stopped by members of the back-up team assisting Officer Seigafuse and his partner. (N.T.
    I
    When Paris walked to the Tahoe, he went out of Officer Seigafuse's view and was then observed by Officer
    Osvaldo Toribo, a member of the back-up team. (N.T. 8/12/15, 126).
    2
    8/12/15, 64, 130-131).        From Ramos police recovered an orange-tinted Ziploc packet filled with
    what later testing revealed to be crack cocaine. (N.T. 8/12/15, 64-65).
    About five minutes after Ramos engaged in the transaction with Burke a man named
    Hector Torres engaged Burke in a similar transaction after which he was stopped. (N.T. 8/12/15,
    67-68).     Recovered from Torres was one orange-tinted          crack filled packet    (N.T. 8/12/15, 68,
    139).
    Shortly thereafter, a man named Angel Burgos approached Appellant and began a short
    conversation during which Burgos handed Appellant money.'                 (N.T. 8/12/15, 68-69, 80). After
    taking the money from Burgos, Appellant proceeded to the location where he earlier placed the
    object he received from Paris, picked up a clear plastic bag, and removed an item handing it to
    Burgos. (N.T. 8/12/15, 69).        Burgos was stopped by police who recovered a clear packet filled
    with powdered cocaine. (N.T. 8/12/15, 69-70, 146).
    After observing this third transaction, Officer Seigafuse directed members of his back-up
    team to stop Appellant, Burke, and Paris.               (N.T. 8/12/15, 70).     Police recovered $83.00 from
    Appellant.        (N.T. 8/12/15, 72, 195). Police recovered $599.00 from Paris. (N.T. 8/12/15, 164).
    Sergeant Wali Shabazz, who apprehended                  Appellant,   then, proceeded, at Officer Seigafuse's
    behest, to the location where Officer Seigafuse saw Appellant place the object he received from
    Paris. Shabazz recovered            a clear plastic bag filled with eleven packets containing       powdered
    cocaine.         (N.T. 8/12/15,     73, 192-193, 200).      In addition, Officer Seigafuse directed Officer
    Czapor to the location of the trash pile where Burke was observed obtaining small objects that he
    gave to Ramos and Torres. (N.T. 8/12/15, 73). Officer Czapor recovered a blue aluminum foil
    packet that, inter alia, contained two orange-tinted Ziploc packets of crack cocaine that were
    identical to the packets recovered from Torres and Ramos. (N.T. 8/12/15, 73- 75, 177). All of the
    2
    Burgos was also referred to by the first name of Anthony.
    3
    items collected by police were placed on property receipts.
    Following the apprehension    of Appellant, Burke, and Torres, police obtained a search
    warrant to search the gold Tahoe. (N.T. 8/12115, 83). Upon executing the warrant, police seized
    $3,410 and a bag filled with seven bundles containing twelve clear packets of powdered cocaine,
    identical to the eleven clear packets recovered on 5th Street from behind the steps. (N.T. 8112115,
    84; 8/13/15, 21, 33). In addition, Officer Seigafuse identified each of the males apprehended by
    his back-up officers. (N.T. 8/12/15, 115, 188).
    Appellant's mother, Iccia Estrella, testified that on the morning of his arrest she gave
    Appellant $100.00 to buy sneakers. (N .T. 8/13/15, 64-65). Ms. Estrella conceded that she did
    not know what Appellant did for the rest of the day. (N .T. 8/13/15, 66).
    DISCUSSION
    In his 1925(b) statement, Appellant raises the following claims:
    1. WAS THE EVIDENCE INSUFFICIENT TO SUPPORT
    APPELLANT'S DRUG CONVICTION BECAUSE
    THE APPELLANT WAS MERELY PRESENT AND
    THE COMMONWEALTH FAILED TO PROVE
    BEYOND A REASONABLE        DOUBT THAT
    APPELLANT POSSESSED ANY DRUGS WITH
    INTENT TO DELIVER THEM EITHER DIRECTLY
    OR CONSTRUCTIVELYOR THAT HE WAS AS AN
    ACCOMPLICE OR CO-CONSPIRATOR OF THE
    POSSESSORS OF THE DRUGS OR THAT HE
    AGREED WITH ANYONE TO POSSESS THE
    DRUGS?
    2. WAS THE EVIDENCE INSUFFICIENT TO SUPPORT
    APPELLANT'S     CONSPIRACY    CONVICTION
    BECAUSE THE COMMONWEALTH FAILED TO
    PROVE BEYOND A REASONABLE DOUBT THAT
    DEFENDANT FORMED AN AGREEMENT WITH
    ANOTHER PERSON THE OBJECT OF WHICH WAS
    TO POSSESS OR DISTRIBUTE ILLEGAL DRUGS?
    Appellant's Pa.R.A.P. 1925(b) Statement.
    4
    Appellant first claims that the evidence was insufficient to sustain his PWID conviction
    because the Commonwealth       failed to prove that he possessed drugs or was an accomplice or co-
    conspirator. He also claims that the evidence was insufficient because it established only that he
    was merely present in the area where the investigation       took place. His second issue challenges
    the sufficiency of the Conspiracy conviction claiming that the Commonwealth            failed to prove
    that he entered an agreement with any other person the object of which was to possess illegal
    drugs.
    In reviewing a claim that alleges that the evidence was insufficient to support a verdict,
    the Pennsylvania Supreme Court provided the following standard of review:
    [Tjhe critical inquiry on review of the sufficiency of the
    evidence to support a criminal conviction ... does not require a
    court to 'ask itself whether it believes that the evidence at the trial
    established guilt beyond a reasonable doubt. Instead, it must
    determine simply whether the evidence believed by the fact-finder
    was sufficient to support the verdict ... [A]ll of the evidence and
    any inferences drawn therefrom must be viewed in the light most
    favorable to the Commonwealth as the verdict winner.
    Commonwealth v. Ratsamy, 
    934 A.2d 1233
    , 1235-1236 (Pa. 2007) (emphasis in original).
    The Commonwealth need not establish guilt to a mathematical certainty, and it may
    sustain its burden by means of wholly circumstantial evidence. Commonwealth v. Duncan, 
    932 A.2d 226
    , 231 (Pa. Super. 2007) (citation omitted). A reviewing court may not substitute its
    judgment for that of the fact finder, and where the record contains support for the convictions,
    they may not be disturbed. 
    Id. Lastly, the
    finder of fact is free to believe some, all, or none of the
    evidence presented. Commonwealth v. Hartle, 
    894 A.2d 800
    , 804 (Pa. Super. 2006).
    With regard to the PWID conviction our General Assembly has defined PWID as
    follows:
    5
    [T]he 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).
    · [T]o sustain a conviction [for PWID] the Commonwealth must
    prove beyond a reasonable doubt only that, on a specific occasion,
    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. Intent may be inferred from an
    examination of the facts and circumstances surrounding the case.
    Factors which may be relevant in establishing that drugs were
    possessed with the intent to deliver include the particular method
    of packaging, the form of the drug, and the behavior of the
    defendant.
    Commonwealth v. Griffin, 
    804 A.2d 1
    , 15 (Pa. Super. 2002).
    A "delivery" is "the actual, constructive, or attempted transfer from one person to another
    of a controlled substance,        other drug, device or cosmetic whether or not there is an agency
    relationship."   35 P.S. § 780-102.       To prove that a delivery occurred, the Commonwealth           must
    prove that the defendant         knowingly made an actual, constructive,      or attempted    transfer of a
    controlled substance to another person without the legal authority to do so. Conunonwealth                v.
    Murphy,     
    844 A.2d 1228
    ,    1234 (Pa.2004).      PWID      may be inferred    from    the facts and
    circumstances      surrounding      the   case.    Commonwealth      v. Daniels,    
    999 A.2d 590
    ,   595
    (Pa.Super.2010).     Factors that may be relevant to establish      PWID include packaging, the form of
    the drug, and the defendant's      behavior. 
    Id. Here, because
    the drugs were not found on Appellant's            person, the Commonwealth       was
    required to prove that he had constructive          possession over them. Commonwealth        v. Macolino,
    
    469 A.2d 132
    , 134 (Pa. 1983). To prove constructive possession, the Commonwealth                 must show
    6
    that   the   accused   "exercise] d]   a   conscious   dominion   over   the   illegal   [ contraband.]"
    Commonwealth      v. Valette, 
    613 A.2d 548
    , 550 (Pa. 1992). Conscious dominion is the "power to
    control the contraband    and the intent to exercise that control." 
    Id., citing Commonwealth
              v.
    Mudrick, 
    507 A.2d 1212
    , 1213 (Pa. 1986).
    Constructive   possession can be inferred from the totality of the circumstances.        Id,   In
    Commonwealth v. Macolino, 
    469 A.2d 132
    , (Pa. 1983), the court held that "it was reasonable for
    the fact-finder to conclude that the appellee maintained a conscious dominion over the cocaine
    found in the bedroom closet which he shared solely with his wife."        
    Id. at 136.
    The Court also
    noted that the law prohibiting possession of contraband would not make sense if a person could
    store the contraband in a shared space to avoid prosecution. 
    Id. Regardless, "the
    fact that another
    person may also have control and access does not eliminate the defendant's constructive
    possession; two actors may have joint control and equal access and thus both may constructively
    possess the contraband."      Commonwealth v. Haskins, 
    677 A.2d 328
    , 330 (Pa. Super. 1996)
    (citing 
    Mudrick, 507 A.2d at 1213-14
    ).
    Drawing all inferences in favor of the Commonwealth as the law requires, it is clear that
    the evidence was sufficient to sustain the verdict finding Appellant guilty of the charge of PWID.
    Here, the eleven packets of powdered cocaine were inside a bag Appellant received from Paris.
    Appellant was then observed placing the drugs against a building behind its stairs. Thus the jury
    concluded that he had actual possession of the cocaine packets, which was immediately
    accessible to Appellant and, in fact, was accessed by Appellant during his interaction with
    Burgos, who later was found in possession of a packet identical to those found inside the bag.
    The jury thus properly rejected the mere presence argument.
    The evidence was more than sufficient to sustain Appellant's drug conviction because
    7
    Appellant had constructive possession of the bag and its eleven packets of cocaine. In addition,
    because     the evidence was sufficient   to establish beyond a reasonable   doubt that Appellant
    possessed the drugs, his claim that he was not an accomplice or co-conspirator with the person or
    persons who possessed      the drugs lacks merit. Because Appellant engaged in drug sales, there
    clearly was sufficient evidence that he possessed cocaine with the intent to deliver regardless of
    the existence of a conspiracy. Appellant's PWID conviction rests solely on his actions on the day
    of the police investigation and was not predicated on a theory of vicarious liability.
    Accordingly, it is respectfully suggested that the instant claim be deemed lacking in
    merit.
    In his second and final claim, Appellant argues that the evidence was insufficient to
    sustain his Conspiracy to commit PWID conviction because the Commonwealth did not prove
    that Appellant entered into an agreement the object of which was to possess or distribute illegal
    drugs. "To sustain a conviction for Criminal Conspiracy, the Commonwealth must prove beyond
    a reasonable doubt that the defendant (1) entered into an agreement to commit or aid in an a [sic)
    criminal act with another person or persons (2) with a shared criminal intent and that (3) an overt
    act was done in furtherance of the conspiracy." Commonwealth v. Bostick, 
    958 A.2d 543
    , 560
    (Pa. Super. 2008) (quoting Commonwealth v. Johnson, 
    920 A.2d 873
    , 878 (Pa.Super.
    2007)).
    The Commonwealth may sustain its burden of proving a conspiracy wholly by means of
    circumstantial evidence. Commonwealth v. Perez, 
    931 A.2d 703
    , 708 (Pa. Super. 2007).
    An agreement to commit a criminal act may be proven by
    reasonable inferences, but not by suspicion or speculation. 
    Id. An agreement
    can be inferred from a variety of circumstances
    including, but not limited to, the relation between the parties,
    knowledge of and participation in the crime, and the circumstances
    and conduct of the parties surrounding the criminal episode. These
    8
    factors may coalesce to establish a .conspiratorial agreement
    beyond a reasonable doubt where one factor alone might fail.
    ***
    Circumstances like an association between alleged conspirators,
    knowledge of the commission of the crime, presence at the scene
    of the crime, and/or participation in the object of the conspiracy,
    are relevant when taken together in context, but individually each
    is insufficient to prove a conspiracy.
    Applying the foregoing to the evidence presented at trial leads ineluctably to the
    conclusion that the Commonwealth sustained its burden of proving that Appellant conspired
    with, inter alia, Paris to sell cocaine. Appellant was observed giving United States currency to
    Paris who thereafter gave Appellant a bag that upon recovery by police contained eleven packets
    of cocaine. Paris remained in the area where Burke and Appellant were selling drugs acting as an
    overseer. Moreover, the eleven packets of drugs found in the bag recovered by police were
    identical to packets found in the Tahoe Paris was seen entering. The bag containing the eleven
    packets Appellant received from Paris most likely contained twelve individual packets of cocaine
    when Paris gave it to Appellant, as did each of the seven bundles found inside the Tahoe. It
    contained eleven packets when seized by police because Appellant sold a packet to Burgos. This
    evidence was more than sufficient to establish that Paris and Appellant were acting pursuant to
    an arrangement formed between the two. Thus, the evidence was sufficient to sustain Appellant's
    PWID conviction and it is suggested that Appellant's claim with respect to this issue be denied.
    See Commonwealth v. Perez, 
    931 A.2d 703
    (Pa. Super. 2007) (evidence sufficient to prove
    appellant's guilt for PWID and conspiracy, where appellant sold drugs supplied to him by his
    cohort); Commonwealth v. McCall, 
    911 A.2d 992
    , 997 (Pa. Super. 2006) (evidence sufficient for
    9
    conspiracy to commit PWID where the appellant served as a lookout and held money for his
    cohort, even where he did not hold drugs).
    CONCLUSION
    Based on the foregoing, it is respectfully suggested that the judgment of sentence entered
    in this matter against Appellant be affirmed.
    BY THE COURT,
    Date:   fo / 1 7 / I ~                                y:1~   Daniel D. Mccaffery, J.
    10