Com. v. Anderson, M. ( 2018 )


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  • J-S20016-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    MICHAEL N. ANDERSON                        :
    :
    Appellant               :   No. 1336 MDA 2017
    Appeal from the Judgment of Sentence June 22, 2017
    In the Court of Common Pleas of Dauphin County
    Criminal Division at No(s): CP-22-CR-0001507-2015
    BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.
    MEMORANDUM BY OTT, J.:                                        FILED JULY 24, 2018
    Michael N. Anderson appeals from the judgment of sentence imposed
    June 22, 2017, in the Dauphin County Court of Common Pleas. The trial court
    sentenced Anderson to an aggregate term of 16 to 36 months’ imprisonment,
    following his jury conviction of possession with intent to deliver controlled
    substances     (“PWID”),      criminal    conspiracy,   and    criminal   use   of    a
    communication facility,1 for his participation in a controlled drug buy.             On
    appeal, Anderson challenges the sufficiency and weight of the evidence
    supporting his convictions of PWID and criminal conspiracy. For the reasons
    below, we affirm.
    ____________________________________________
    1 See 35 P.S. § 780-113(a)(30), and 18 Pa.C.S. §§ 903 and 7512(a),
    respectively.
    J-S20016-18
    The facts presented during Anderson’s jury trial were summarized by
    the trial court as follows:
    The testimony at trial revealed that on February 10, 2015,
    the Pennsylvania Office[] of Attorney General, Bureau of Narcotics
    Investigation and Drug control were [sic] conducting a “buy/bust”
    operation.6 Agent Cynthia Pugh of the Pennsylvania Office of
    Attorney General testified that she received information from a
    confidential informant about a large quantity of heroin for sale in
    Harrisburg.     Agent Pugh conducted surveillance during the
    investigation on February 10, 2015. She was notified that one of
    the possible suspects lived at 4210 Williamsburg Court, Harrisburg
    PA (the apartments across from the Colonial Park Mall). As she
    was conducting surveillance, Agent Pugh noticed a Mr. Brown
    coming out of the residence and get into a silver Jeep with New
    Jersey tags. This jeep proceeded to the Colonial Park Mall. Here,
    Mr. Brown and the driver (later identified as [Michael] Anderson),
    proceed to enter the Colonial Park Mall near the food court. Agent
    Pugh followed Mr. Brown and [Anderson] into the mall. At this
    point, Agent Pugh did not notice Mr. Brown carrying anything in
    his hands nor was there anything bulging out of his clothing. Oscar
    Robinson8 and the other confidential informant (“Cl” ) sit down
    with Mr. Brown and [] Anderson for a couple of minutes and then
    proceed to exit the mall and go back to [] Anderson’s jeep.
    Through Agent Pugh, the Commonwealth introduced photographs
    of the investigation.
    __________
    6  A buy/bust operation is one where police officers go
    undercover or employ confidential informants (Cl’s) to set
    up a drug transaction.     Immediately after the drug
    transaction, the person selling or buying the drugs is
    arrested.
    8Mr. Robinson was also a confidential informant.
    __________
    James McBride, a Narcotics II agent with the Pennsylvania
    Office of Attorney General also assisted with the investigation.
    Agent McBride was assigned to help with the Cl’s during the buy-
    bust operation. Agent McBride searched the Cl’s and the Cl’s
    vehicles prior to the buy-bust to ensure that no money nor
    contraband was present. Additionally, Agent McBride testified
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    that he kept the Cl’s in his view the whole time to the mall and
    that there were no stops. Finally, Agent McBride testified that
    when Mr. Brown fled the scene, he gave pursuit and did not notice
    a phone being thrown by Mr. Brown. Michael Cranga, an agent
    with the Pennsylvania Office of Attorney General, Bureau of
    Narcotics Investigation and Drug Control, testified that he was
    also present at the buy-bust on February 10, 2015 and took
    [Anderson] into custody.        When Agent Cranga searched
    [Anderson], he recovered three (3) cell phones on his person.
    The Commonwealth next introduced the testimony of Oscar
    Robinson (one of the Cl’s). Mr. Robinson, who goes by the
    nickname Tim, testified that he contacted the Office of Attorney
    General in hopes of working off some of his pending charges.10
    Mr. Robinson testified how he went about setting up the drug buy
    with [Anderson] through messaging through Facebook and the cell
    phone messaging (who goes by the nickname Slick). Mr. Robinson
    testified to an early drug transaction involving [Anderson] that
    occurred at the Harrisburg East Mall. Mr. Robinson testified that
    he bought heroin from Slick ([Anderson]) and that Earl set up the
    deal.11 Mr. Robinson also testified to the transaction that took
    place at the Colonial Park Mall, including his communication with
    Earl and Slick. Mr. Robinson testified that it was [Anderson] who
    wanted to do the drug transaction at the Colonial Park Mall.
    Finally, Mr. Robinson testified that [Anderson] got into the front
    seat of the jeep and reached down the center console near the
    gear shift and pulled out a black bag containing the drugs.
    __________
    10 Mr. Robinson has several charges pending in Dauphin
    and Cumberland Count[ies].
    11Andrew Earl Brown, who sometimes goes by Earl, was
    with [Anderson] on the day of the investigation.
    __________
    Agent Lauren Hoffman of the Attorney General’s Office,
    Bureau of Narcotics and Drug Control, worked with the Cl, Mr.
    Robinson. It was decided that a buy-bust operation would be set
    up involving [Anderson]. Agent Hoffman maintained surveillance
    on Mr. Robinson during the course of the buy-bust transaction.
    After [Anderson] was arrested, the jeep was searched and a “black
    bag, grocery style type plastic bag with individual wrapped heroin”
    was discovered. Through Agent Hoffman, the Commonwealth also
    introduced Commonwealth’s Exhibit 11 which was an insurance
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    card and registration card belonging to [Anderson]. Finally, Agent
    Hoffman testified that three phones were removed from
    [Anderson] after he was arrested and inside one of these phones
    were two packets of heroin.
    The defense offered the testimony of Andrew Brown, the co-
    conspirator involved in this case. Mr. Brown is currently serving
    a sentence in SCl-Benner for being arrested with 30 bricks of
    heroin. Mr. Brown testified that [] Anderson lives in Newark, New
    Jersey and that [] Anderson and Mr. Brown were having lunch with
    each other. Mr. Brown is a personal assistant to [] Anderson. Mr.
    Brown also testified that he ran from the police on the day of the
    drug buy because he did not want to go to jail and that it was
    himself that brought the drugs back from Newark, New Jersey.
    Finally, Mr. Brown testified on direct that he plead guilty and is
    currently serving a four (4) to eight (8) year sentence. On cross,
    Mr. Brown testified that during his guilty plea colloquy, the
    charges and facts were read to him [implicating] his co-defendant,
    [] Anderson.
    Trial Court Opinion, 9/21/2017, 2-5 (record citations and some footnotes
    omitted).
    As noted above, Anderson was charged with PWID, criminal conspiracy,
    and criminal use of a communication facility. His case proceeded to a jury
    trial, and on June 22, 2017, the jury found him guilty of all charges. That
    same day, the trial court sentenced Anderson to concurrent terms of 16 to 36
    months’ imprisonment on the charges of PWID and conspiracy, as well as a
    concurrent term of 12 to 36 months’ imprisonment on the charge of criminal
    use of a communication facility. Anderson filed a timely post-sentence motion
    challenging the weight of the evidence, and requesting modification of his
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    sentence. The court denied the motion on August 14, 2017, and this timely
    appeal followed.2
    We have consolidated Anderson’s four issues on appeal into the
    following two claims: (1) whether the evidence was insufficient to support his
    convictions of PWID and conspiracy; and (2) whether his convictions of PWID
    and conspiracy were against the weight of the evidence.3
    When considering a claim that the evidence is insufficient to support a
    verdict, our standard of review is as follows:
    [W]hether 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 [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.
    ____________________________________________
    2 On August 23, 2017, the trial court ordered Anderson to file a concise
    statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).
    Anderson complied with the court’s directive, and filed a concise statement on
    September 18, 2017.
    3 We note Anderson does not challenge his conviction of criminal use of a
    communication facility.
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    Commonwealth v. Vargas, 
    108 A.3d 858
    , 867–868 (Pa. Super. 2014)
    (quotations omitted), appeal denied, 
    121 A.3d 496
     (Pa. 2015).
    “[T]he Commonwealth must prove both the possession of the controlled
    substance, and the intent to deliver the controlled substance” in order to
    sustain a conviction for PWID. Commonwealth v. Roberts, 
    133 A.3d 759
    ,
    767 (Pa. Super. 2016) (quotation omitted), appeal denied, 
    145 A.3d 725
     (Pa.
    2016).   Possession of the substance may be “actual, constructive or joint
    constructive possession.” 
    Id.
     (quotation omitted). Constructive possession,
    which may be proven by circumstantial evidence, “is an inference arising from
    a set of facts that possession of the contraband was more likely than not.”
    Id. at 768 (quotations omitted).
    Pursuant to 18 Pa.C.S. § 903, a conviction of criminal conspiracy
    requires proof that:
    a defendant entered into an agreement to commit or aid in an
    unlawful act with another person; that he and that person acted
    with a shared criminal intent; and that an overt act was taken in
    furtherance of the conspiracy. “An explicit or formal agreement
    to commit crimes can seldom, if ever, be proved and it need not
    be, for proof of a criminal partnership is almost invariably
    extracted from the circumstances that attend its activities.”
    Therefore, where the conduct of the parties indicates that they
    were acting in concert with a corrupt purpose in view, the
    existence of a criminal conspiracy may properly be inferred. This
    court has held that the presence of the following non-exclusive list
    of circumstances when considered together and in the context of
    the crime may establish proof of a conspiracy: (1) an association
    between alleged conspirators, (2) knowledge of the commission
    of the crime, (3) presence at the scene of the crime, and (4)
    participation in the object of the conspiracy.
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    Commonwealth v. Kinard, 
    95 A.3d 279
    , 293 (Pa. Super. 2014) (internal
    citations omitted).
    Conversely, a challenge to the weight of the evidence necessarily
    concedes      the    evidence      was    sufficient   to   support   the   verdict.4
    Commonwealth v. Lyons, 
    79 A.3d 1053
    , 1067 (Pa. 2013) (citations
    omitted), cert. denied, 
    134 S.Ct. 1792
     (U.S. 2014).            Rather, a defendant
    raising a weight claim “seeks a new trial on the ground that the evidence was
    so one-sided or so weighted in favor of acquittal that a guilty verdict shocks
    one’s sense of justice.” 
    Id.
    When considering a weight claim, our review is focused on the trial
    court’s exercise of discretion in granting or denying a new trial based on the
    weight of the evidence, and “not of the underlying question of whether the
    verdict is against the weight of the evidence.” Commonwealth v. Widmer,
    
    744 A.2d 745
    , 753 (Pa. 2000) (internal citations omitted).
    Because the trial judge has had the opportunity to hear and see
    the evidence presented, an appellate court will give the gravest
    consideration to the findings and reasons advanced by the trial
    judge when reviewing a trial court’s determination that the verdict
    is against the weight of the evidence. One of the least assailable
    reasons for granting or denying a new trial is the lower court’s
    conviction that the verdict was or was not against the weight of
    the evidence and that a new trial should be granted in the interest
    of justice.
    However, the exercise of discretion by the trial court in granting
    or denying a motion for a new trial based on a challenge to the
    weight of the evidence is not unfettered. The propriety of the
    ____________________________________________
    4 We note Anderson properly preserved his weight of the evidence claim in a
    timely filed post-sentence motion. See Pa.R.Crim.P. 607(A)(3).
    -7-
    J-S20016-18
    exercise of discretion in such an instance may be assessed by the
    appellate process when it is apparent that there was an abuse of
    that discretion.
    
    Id.
     “In order for an appellant to prevail on a challenge to the weight of the
    evidence, ‘the evidence must be so tenuous, vague and uncertain that the
    verdict shocks the conscience of the court.’” Roberts, supra, 133 A.3d at
    770.
    Here, with respect to his PWID conviction, Anderson contends there was
    no evidence he knew Brown had arranged to sell heroin to Robinson on the
    day in question. See Anderson’s Brief at 15. He notes the testimony revealed
    he stayed behind in the food court when Brown, Robinson, and the other
    confidential informant left to complete the transaction, and then remained
    outside of the Jeep when he subsequently joined them. See id. at 15-16.
    Furthermore, Anderson emphasizes Brown’s testimony that the flip phone
    recovered from him, which contained heroin in the battery compartment, was
    actually Brown’s phone that he left behind in the food court. See id. at 16.
    Anderson maintains the text messages recovered from the phone support this
    assertion. Moreover, Brown testified that the heroin was not stored in the
    Jeep, but rather, he had been carrying it on his person. See id. at 17.
    With regard to his conviction of criminal conspiracy, Anderson similarly
    insists “the Commonwealth did not show that Anderson had knowledge of the
    crime Brown was about to commit” and, in fact, “Brown testified that Anderson
    was not involved and did not know that he was going to sell heroin.” Id. at
    26. Although there were messages directed to Anderson on the flip phone,
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    Anderson maintains these messages would be expected since Brown was his
    “public relations officer.” Id. Further, other messages on the phone directed
    to “Ny” supported Brown’s testimony that the only other person who used the
    phone was Brown’s friend, Nyreek. Id. at 26-27.
    In arguing the verdicts were against the weight of the evidence,
    Anderson insists Brown’s testimony should have been given more weight than
    Robinson’s testimony.        See id. at 22, 27.   Anderson contends Robinson’s
    testimony was inconsistent and contradictory – Robinson testified the date he
    first met Anderson was six months after the drug deal at issue; Robinson
    deleted Facebook messages regarding an alleged prior transaction with
    Anderson; Robinson testified at trial that Anderson got in the Jeep during the
    transaction, but told police in his written statement taken the day of the
    transaction that Anderson stayed outside the Jeep; and Robinson changed his
    position in the Jeep during his testimony.          See id. at 19-21, 28-30.
    Moreover, Anderson emphasizes Robinson “specifically went to the Attorney
    General’s Office looking for leniency on his own charges,” while “Brown had
    much to lose by testifying for Anderson.” Id. at 19, 30. In fact, Anderson
    maintains Brown “could have obtained a favorable plea deal if he chose to
    testify against Anderson.”5 Id. at 24.
    After our independent review of the record, the parties’ briefs, and the
    relevant statutory and case law, we find the trial court thoroughly analyzed
    ____________________________________________
    5   We note there is absolutely no support for this claim in the record.
    -9-
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    and properly disposed of Anderson’s claims in its September 21, 2017,
    opinion.    See Trial Court Opinion, 9/21/2017, at 5-10 (concluding (1) the
    evidence was sufficient to support Anderson’s conviction of PWID because (a)
    Robinson testified “how he set up the drug buy and his involvement with
    [Anderson],”6 (b) police surveillance observed Anderson pick up Brown in his
    Jeep, (c) Brown was not carrying anything when he got in the Jeep, and there
    was no bulge in his clothing hiding 30 bricks of heroin, and (d) one of the
    three cell phones recovered from Anderson contained two packets of heroin;
    (2) the evidence was sufficient to support Anderson’s conviction of criminal
    conspiracy because (a) while Anderson did not “physically handle the drug
    transaction, he clearly took an active role in the illicit enterprise” 7 by driving
    from New Jersey (where Brown testified he obtained his supply), picking up
    Brown, and driving him to the location of the transaction, (b) he was seen
    driving a Jeep containing a large amount of heroin, and (c) he was carrying a
    cell phone that had two hidden packets of heroin; and (3) verdicts were not
    against the weight of the evidence because (a) it was “within the sole province
    of    the   jury    to   make   credibility    determinations   regarding   conflicting
    testimony,”8 and (b) Brown’s credibility was at issue because he had pled
    ____________________________________________
    6   Trial Court Opinion, 9/21/2017, at 7.
    7   Id. at 9.
    8   Id. at 8, 10.
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    guilty to the crimes, was Anderson’s personal assistant, and fled from police
    at the time of the incident).
    Accordingly, we affirm the judgment of sentence on the court’s well-
    reasoned bases.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 07/24/2018
    - 11 -
    Circulated 07/02/2018 02:12 PM
    

Document Info

Docket Number: 1336 MDA 2017

Filed Date: 7/24/2018

Precedential Status: Precedential

Modified Date: 7/24/2018