Com. v. Evans, J. ( 2020 )

J-S40015-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JABREE EVANS :
:
Appellant : No. 593 EDA 2019
Appeal from the Judgment of Sentence Entered February 8, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002726-2016
BEFORE: SHOGAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 21, 2020
Appellant, Jabree Evans, appeals nunc pro tunc from the judgment of
sentence entered by the Court of Common Pleas of Delaware County on
February 8, 2017. We affirm.
Based upon an investigation by Tinicum Township Police, the Delaware
County Narcotics Task Force (“Task Force”) executed a search warrant at 1102
Thomas Street in Chester, Delaware County, on March 23, 2016, at
approximately 2:30 p.m. Appellant and his confederate, John Moreno, were
present and standing in the kitchen at the top of the basement stairs when
apprehended. N.T., 12/14/16, at 23–25, 30–32, 65–67, 72, 81–82.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S40015-20
From the basement steps, police seized ninety-two bags of heroin that
were bound into seven bundles with black rubber bands packed in a rubber
glove, and a Glock 23 firearm with eleven rounds and one in the chamber. A
search of Appellant yielded two mobile telephones, $3,000 sorted by
denomination, “stacked in individual thousand dollar stacks” bound with black
rubber bands, and “$620 in another stack that was folded up” in Appellant’s
pocket. Moreno also possessed money, heroin, and mobile telephones in his
pocket. N.T., 12/14/16, at 32–35.
Throughout the rest of the house, police found ammunition, new
baggies, black rubber bands, $295, and $3,291, bound with the black rubber
bands in $1,000 bundles. The search of Moreno’s car yielded a loaded 9 mm
Caltech firearm. The house was filthy with non-functional appliances and
scarce furnishings. Dog feces suggested a dog was kept in the basement.
The search yielded no evidence of drug use. N.T. 12/14/16, 35-38, 49, 55–
56, 95, 109.
Appellant proceeded to a jury trial on December 14, 2016. The jury
found Appellant guilty of persons not to possess firearms, firearms not to be
carried without a license, and conspiracy to manufacture, deliver, or possess
with intent to manufacture or deliver a controlled substance.1 The jury
acquitted Appellant of manufacture, delivery, or possession with intent to
____________________________________________
1 18 Pa.C.S. §§ 6105, 6106(A)(1), 903, and 35 P.S. § 780-113(a)(30).
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manufacturer or deliver a controlled substance. The trial court imposed an
aggregate sentence of imprisonment of ninety to 180 months.
Appellant filed an untimely motion to reconsider sentence that was
denied on January 4, 2019. Appellant filed a pro se petition pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546, and counsel
was appointed, who filed an amended petition. On January 22, 2019, the trial
court granted the PCRA petition and reinstated Appellant’s direct-appeal rights
nunc pro tunc. Appellant filed a timely notice of appeal on February 21, 2019.
Appellant raises the following issues on appeal:
Whether the evidence was insufficient to sustain the conviction of
Persons not to possess, use, manufacture, control, sell or transfer
firearms because the Commonwealth failed to prove beyond a
reasonable doubt that Appellant possessed firearms?
Whether the evidence was insufficient to sustain the conviction of
Persons not to possess, use, manufacture, control, sell or transfer
firearms because the Commonwealth failed to prove beyond a
reasonable doubt that Appellant controlled firearms?
Whether the evidence was insufficient to sustain the conviction of
Firearms not to be carried without a license because the
Commonwealth failed to prove beyond a reasonable doubt that
Appellant carried a firearm in any vehicle without a valid and
lawfully issued license?
Whether the evidence was insufficient to sustain the conviction of
Firearms not to be carried without a license because the
Commonwealth failed to prove beyond a reasonable doubt that
Appellant carried a firearm concealed on or about his person
without a valid and lawfully issued license?
Whether the evidence was insufficient to sustain the conviction of
Firearms not to be carried without a license because the
Commonwealth failed to prove beyond a reasonable doubt that
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1102 Thomas Street, Chester, Pennsylvania was not Appellant’s
place of abode?
Whether the evidence was insufficient to sustain the conviction of
Firearms not to be carried without a license because the
Commonwealth failed to prove beyond a reasonable doubt that
1102 Thomas Street, Chester, Pennsylvania was not Appellant's
fixed place of business?
Whether the evidence was insufficient to sustain the conviction of
Conspiracy with another to Possess a controlled substance with
the intent to deliver because the Commonwealth failed to prove
beyond a reasonable doubt that Appellant intended to promote or
facilitate the crime’s commission?
Whether the evidence was insufficient to sustain the conviction of
Conspiracy with another to Possess a controlled substance with
the intent to deliver because the Commonwealth failed to prove
beyond a reasonable doubt that Appellant agreed with others that
they or one or more of them would commit, attempt or solicit the
crime?
Whether the evidence was insufficient to sustain the conviction of
Conspiracy with another to Possess a controlled substance with
the intent to deliver because the Commonwealth failed to prove
beyond a reasonable doubt that Appellant agreed to aid another
in planning, committing, attempting or soliciting the crime?
Appellant’s Brief at 6–8.
Despite his delineation of nine issues in his brief on appeal, Appellant
presents two brief arguments in violation of Pa.R.A.P. 2119, which provides,
“The argument shall be divided into as many parts as there are questions to
be argued; and shall have at the head of each part—in distinctive type or in
type distinctively displayed—the particular point treated therein, followed by
such discussion and citation of authorities as are deemed pertinent.” Pa.R.A.P.
2119(a). Although Appellant’s organization of his argument does not
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correspond with the issues presented and does not facilitate our review, it
does not impair our review to the extent that we would decline to address the
issues on this basis.
First, however, we observe that Appellant begins his argument with a
claim that was not presented in his statement pursuant to Pa.R.A.P. 1925(b)
(“Issues not included in the Statement and/or not raised in accordance with
the provisions of this paragraph (b)(4) are waived”) and was not included in
Appellant’s statement of questions involved pursuant to Pa.R.A.P. 2116 (“No
question will be considered unless it is stated in the statement of questions
involved or is fairly suggested thereby.”). He suggests, inartfully, that there
was a mistaken statute citation in the Information filed against him.
Appellant’s Brief at 15. While he attempts to claim its preservation by
suggesting it is an issue relating to an illegal sentence,2 without any support,
id. at 16, his description of the issue proves otherwise. Id. at 15. Rather,
Appellant states that the Bill of Information is defective, asserting that he was
entitled to “accurate notice” of the charge against him. Id. Thus, the issue
is waived. Pa.R.A.P. 1925; Pa.R.A.P. 2116.
Even if not waived, the claim lacks merit. Appellant notes that the body
of the Bill of Information accurately describes the charge under 18 Pa.C.S. §
____________________________________________
2 As we stated in Commonwealth v. Robinson, 931 A.2d 15, 21 (Pa. Super.
2007) (en banc), “[W]e have established the principle that ‘the term “illegal
sentence” is a term of art that our Courts apply narrowly, to a relatively small
class of cases.’”
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6105(a)(1), for which he was found guilty and sentenced; however, the
statute is erroneously cited in the Bill of Information as 18 Pa.C.S. §
6105(a)(2)(i). Thus, Appellant contends that this citation error renders the
Bill of Information defective, resulting in an illegal sentence on this charge.
Pennsylvania Rule of Criminal Procedure 560 provides, in pertinent part,
that the Bill of Information shall contain “a plain and concise statement of the
essential elements of the offense substantially the same as or cognate to the
offense alleged in the complaint[.]” Pa.R.Crim.P. 560(B)(5); see also
Commonwealth v. Weigle, 997 A.2d 306, 312 (Pa. 2010). While Rule 560
provides that a Bill of Information shall include “the official or customary
citation of the statute and section thereof, or other provision of law that the
defendant is alleged therein to have violated[,]” Pa.R.Crim.P. 560(C), it also
states that “the omission of or error in such citation shall not affect the
validity or sufficiency of the information.” Id. (emphasis added).
The Information for the charge of Persons Not to Possess Firearms,
states as follows:
COUNT 4: Person Not To Possess Use, Etc. Firearms–(F2)
Offense Date: 03/23/2016 18 § 6105 §§ A2i
The District Attorney of Delaware County by this information
charges that on (or about) 11-16-2012, in said County JABREE
EVANS defendant, having been convicted of a certain crime to wit:
DELIVERY MANUFACTURE A CONTROLLED SUBSTANCE before the
Honorable GREGORY MALLON, Judge of Common Pleas Court of
the County of and was thereupon sentenced to 9-23 MONTHS
PRISON, as a Bill of Information Number 12-6593 AND THAT
THEREAFTER, to wit: on 3/23/2016 in Delaware County, JABREE
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EVANS, defendant, unlawfully did then and there own or have in
his possession and under his control a certain firearm, to wit:
GLOCK 23 40 CAL FIREARM, contrary to the Act of the General
Assembly in such case made and provided, and against the peace
and dignity of the Commonwealth of Pennsylvania.
Information, Commonwealth v. Evans, Docket No.: CP-23CR-0002726-
2016. The Information is not defective, nor does the record reflect any
confusion about the nature of the charges filed against Appellant. Thus,
notwithstanding the citation error, the Information provides no grounds to
vacate the sentence. Therefore, if the issue were not waived, we would
conclude it lacks merit.
Appellant’s final issues argue that his convictions are against the
sufficiency of the evidence. In reviewing the sufficiency of the evidence, we
must determine whether the evidence admitted at trial and all reasonable
inferences drawn therefrom, viewed in the light most favorable to the
Commonwealth as verdict winner, were sufficient to prove every element of
the offense beyond a reasonable doubt. Commonwealth v. Green, 203 A.3d
250, 253 (Pa. Super. 2019), appeal denied, 216 A.3d 1036, 54 WAL 2019 (Pa.
July 30, 2019). “[T]he facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence.”
Commonwealth v. Colon-Plaza, 136 A.3d 521, 525–526 (Pa. Super. 2016)
(quoting Commonwealth v. Robertson-Dewar, 829 A.2d 1207, 1211 (Pa.
Super. 2003)). It is within the province of the fact-finder to determine the
weight to be accorded to each witness’s testimony and to believe all, part, or
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none of the evidence. Commonwealth v. Tejada, 107 A.3d 788, 792–793
(Pa. Super. 2015). The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial evidence.
Commonwealth v. Mucci, 143 A.3d 399, 409 (Pa. Super. 2016). Moreover,
as an appellate court, we may not re-weigh the evidence and substitute our
judgment for that of the fact-finder. Commonwealth v. Rogal, 120 A.3d
994 (Pa. Super. 2015).
We have considered the arguments of the parties, the relevant law, and
the complete record. The trial court conducted a thorough review of the
evidence presented, described its relevance to Appellant’s convictions, and
correctly concluded that Appellant’s issues lack merit. Thus, we rely upon the
trial court’s July 18, 2019 opinion in affirming the judgment of sentence. In
the event of future proceedings, the parties are directed to attach a copy of
the trial court’s opinion.
Judgment of sentence affirmed.
Judge Colins joins this Memorandum.
Judge King concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/20
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1 cOpilniohl 120t413072151
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY,
-
COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA NO.: CP-23-CR-2726-2016
NO.: CP-23-CR-3693-2016'
v.
JABREE EVANS 593 EDA 2019
OPINION
Mon. Richard M. Cappelli July 18, 2019
Appellant, Jabree Evans, appeals from his February 8, 2017 Judgment of
Sentence.
The charges at GP-23-CR-No, 272646 against the Appellant, Jabree Evans,
arise out of the execution of a search warrant by officers of the Delaware County
Narcotics Task Force at 1102 Thomas Street in Chester, Delaware County on
Wednesday March 23, 2016 at approximately 2:30 pm. As a result, the Appellant,
Jabree Evans, was charged with illegal drug manufacture and delivery as well as the
On case No. CP-23-CR-3693-2016 the Appellant received the following sentence:
Charge Grading Statute/Crimes Sentence
Code
Receiving Stolen F3 18§3925§§A 15 to 30 Months
Property incarceration'
To run concurrent to his sentence at 2726-2016.
illegal possession of drugs, drug paraphernalia and charges related to illegal firearms
possession.2
On case No. CP-23-0?-2726,2016 the Appellant received the following
sentence on February 8, 2017
Charge Grading Statute/Crimes Sentence
Code
Person not to F2 18 §6105 A(2)(1) 60 to 120 months
Possess a Firearm incarceration
Conspiracy to OF 18 §903 30 to 60 months
PWID w/John consecutive
Moreno incarceration
Firearms not to be F3 18 §6106 §§A. 1 42 to 84 months
carried without a concurrent
license incarceration
It is from this February 8, 2018 Judgment of Sentence that Appellant appeals
contending reversible error on the following grounds:
(1) Insufficiency of the evidence of Appellant's possession of a
firearm to sustain his conviction for Persons Not to Possess
firearms;
(2) Insufficiency of the evidence of Appellant's "control of a firearm"
to sustain his conviction for Persons Not to Possess firearms;
2 Charges included: Possession with the intent to manufacture and/or deliver heroin; Conspiracy
to manufacture or manufacture and/or deliver heroin; Possession of heroin; Possession of drug
paraphernalia; (clear plastic bags);Possession of a firearm without a license; Unlawfully
Possessing a firearm;
3 Additional Conditions: Comply with Rules of Probation and Parole, pay cost assessment, submit
to DNA testing, pay lab fee, and forfeit property, not RRRI eligible, Not Boot Camp Eligible with
credit for time served.
2
(3) Insufficiency of the evidence of Appellant's carrying of a firearm
in any vehicle without a valid license to sustain his conviction for
Firearms not to be carried without a license;
(4) Insufficiency of the evidence of Appellant's carrying of a firearm
on his person without a valid license to sustain his conviction for
firearms not to be carried without a license;
(5) Insufficiency of the evidence that 1162 Thomas Street Chester,
Pennsylvania was not Appellant's abode such that evidence was
insufficient to sustain his conviction of firearms not to be carried
without a license;
(6) Insufficiency of the evidence that 1102 Thomas Street, Chester,
Pennsylvania was not Appellant's fixed place of business such that
evidence was insufficient to sustain his conviction of Firearms not to
be carried without a license;
(7) Insufficiency of the evidence of the Appellant's promotion of or
facilitation of Conspiracy to Possess a Controlled Substance With the
Intent to Deliver (PWID) with another person to sustain his conviction
for Conspiracy to PWID;
(8) Insufficiency of the evidence of the Appellant's agreement with
others to sustain his conviction for Conspiracy to PWID;
(9) Insufficiency of the evidence of the Appellant's agreement with
another to aid in the planning, committing, attempting or soliciting
the crime to sustain his conviction for Conspiracy to PWID;
The Appellant's appeal lacks legal merit, Judgment of Sentence should
be affirmed.
The Controlled Substance, Drug, Device and Cosmetic Act defines PWID, in
relevant part, as follows: § 780-113. Prohibited acts; penalties (a) The following acts
and the causing thereof within the Commonwealth are hereby prohibited: * * * (30)
3
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
lcnowingly creating, delivering or possessing with intent to deliver, a counterfeit
controlled substance. * * * $5 P.S. § 780-113(a)(30),
Thus, "[t]o establish the offense of possession of a controlled substance with
intent to deliver, the Commonwealth must prove beyond a reasonable doubt that the
defendant possessed a controlled substance with the intent to deliver it."
Commonwealth v. Perez, 931 A.2d 703, 707-08 (Pa. Super. 2007). The
Commonwealth can establish the identity of the controlled substance at trial by
circumstantial evidence. Commonwealth v, Riekahattgh, 706 A.2d 826, 844 (Pa.
Super. 1997), appeal denied, 558 Pa. 607, 736 A.2d 603 (1999).
See also Commonwealth v. Bricker, 882 A.2d 1008, 1015 (Pa. Super. 2005)
(holding Commonwealth can establish all elements of PWID by circumstantial
evidence). "Factors to consider in determining whether the 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. Kirkland, 831 A.2d
607, 611 (Pa. Super. 2003), appeal denied, 577 Pa. 712, 847 A.2d 1280 (2004).
4
The standard of review for a challenge to the sufficiency of the evidence is
well -settled:
In reviewing sufficiency of evidence claims, the Pennsylvania
Superior Court must determine whether the evidence admitted at trial,
as well as all reasonable inferences drawn therefrom, when viewed in
the light most favorable to the verdict winner, are sufficient to support
all the elements of the offense. Additionally, to sustain a conviction, the
facts and circumstances which the Commonwealth must prove, must be
such that every essential element of the crime is established beyond a
reasonable doubt. Admittedly, guilt must be based on facts and
conditions proved, and not on suspicion or surmise.
Entirely circwnstantial evidence is sufficient so long as the
combination of the evidence links the accused to the crime beyond a
reasonable doubt. 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 fact finder is free to believe all,
part, or none of the evidence presented at trial. Commonwealth v.
Moreno, 14 A.3d 133, 136 (Pa. Super. 2011), appeal denied, 44 A.3d
1161 (Pa. 2012).
The record of the jury trial in this matter reveals that the Commonwealth
presented a clear, compelling and succinct case for the Appellant's guilt and
convictions.
The Commonwealth elicited testimony from skilled drug interdiction law
enforcement officers' who appeared to be expertly trained, experienced and
knowledgeable of the ways of illegal drug trafficking. The Commonwealth
4Officer Kevin Wiley, Tinicum Township Police Department, Kevin Gaul, Tinicum Township Police Department,
Steven Bannar, Delaware County Criminal Investigation Division, Narcotics and Timonth Gavel of the Pennsylvania
State Police DNA Laboratory.
5
presented a highly cogent theory of the case against the Appellant woven together
from the direct observations of the officers, the totality of the circumstances they
found upon executing a search warrant and presented to the jury 92 bags of heroin,
stamped ("Need for Speed") in bags and bundles that are typically utilized for illegal
heroin distribution, thousands of dollars in U.S. currency folded and handed in the
very same bands that the seized heroin bundles were wrapped, Over three thousand
dollars on the person of the Appellant at the time of his arrest,
The Delaware County Narcotics Task force team engaged in what appeared
at trial to be a textbook illegal drug supply interdiction operation utilizing
confidential informants, surveillance, controlled purchases of heroin, a
Constitutionally compliant duly authorized search warrant, and a "boots on the
ground" operation to surround the target "trap house" properly from which the
heroin was being sold and distributed, and captured the distributors and related tools
of their heroin dealing trade including weapons, cash and packaging and bundled
branded heroin stamped "Need for Speed".
At trial, the Commonwealth presented the testimony of the Officers Wiley,
Gaul, Bannar and the Pennsylvania State Police DNA laboratory expert Timothy
Gavel. Additionally, the Commonwealth introduced and entered the actual physical
evidence into the record, including: search warrant; Caltech 9mm handgun;
photograph of a handgun in the console of a vehicle; ammunition in a gun magazine;
6
"apple" baggies; black rubber bands; clear plastic glove; 92 bags of heroin; Glock
23, firearm; 11 rounds 40 caliber ammunition; photo of the Glock on the basement
floor; photograph of the U.S.currency in the bedroom; photograph of the U.S.
currency in the bedroom closet; 2 cell phones. Various factual and legal stipulations
were read to the jury.
Review of the pertinent trial record reveals the following:
a. The Testimony of 0'/flee Kevin Wiley of the Tin/cam Township Police
Department
Officer Wiley testified that at or about 2:30 p.m. on March 23, 2016 while
armed with a valid search, after receiving no response to the police knock and
announce, the members of the Delaware County Narcotics Task Force team utilizing
a ram rod ("the door guys") crashed through the front door of 1102 Thomas Street
through which Officer Wiley was the first to run through into the small row home
residence followed by other members of the Narcotics Task Force team. (See, NT,
TRIAL, 12/14/16, pp. 24-32). Officer Wiley explained that two groups races into the
home, one heading up to the second floor to make it safe and clear for other officers
to conduct their search. Id.
Officer Wiley testified that after he made entry through the front door he was
able to see straight through to the kitchen at the back of the house where he observed
7
the Appellant along with another person standing against the wall next to the
entrance to the cellar door trying to stand out of direct view. Id. at 3f.
Once the Appellant and the other person (John Moreno)5 were secured, the
search of the premises continued. Officers went to the cellar area and discovered:
the 92 heroin bags packaged up, banded into 7 bundles and stuffed in a rubber glove;
the Glock 23 9 mm handgun loaded with 11 rounds and one round chambered. Id.
at 33.
A search of Moreno's person turned up money, four bags of heroin in his pants
pocket, and two cell phones. a at 35. In Appellant's pants pocket Three Thousand
Six Hundred and Twenty Dollars ($3,620.00) in U.S. currency separated and banded
with the same bands used to bundle the heroin turned up the search of his person. Id.
A search of the second floor turned up two hundred ninety five dollars
($295.00) and brand new apple haggles in the front bedroom. Id. at 36. A search of
the back bedroom turned up Three Thousand Two Hundred Dollars ($3,200.00)
stacked and bound and banded in the same "heroin bands" in Thousand Dollar
increments.
5The Commonwealth's theory of the case was that Moreno was a lower level street dealer supplied
by Appellant who occupied a higher level (possessing and packaging larger quantities for
distribution and sale) in the heroin distribution scheme.
8
A search of the vehicle' identified in the search warrant turned up another
handgun in the console, that is, a Caltech 9 mm. Id. a4 36-43.
Officer Wiley identified the all of the evidence of the heroin distribution
conspiracy that he and the Narcotics Task Force exposed on March 23, 2016 being
conducted by the Appellant at 1102 Thomas Street Chester, Pennsylvania. He
identified all of the weapons and currency and packaging and heroin including the
stamped "Need for Speed" bundles and black rubber bands.
Officer Wiley testified that based on his experience, training and background,
the heroin found was packaged in a manner commonly used for sale and distribution.
fa', at 45. He also identified the loaded Glock 23 40 cal. firearm with one live round
chambered and eleven additional rounds7 in the magazine that was found on the floor
at the bottom of the cellar stairs in plain view. Id. at 46.
Officer Wiley also testified that the basement or "cellar" was disgusting with
dog feces piled all around (a pit bull dog was living in those conditions) and a
disconnected washer and dryer set was not hooked up to any utility. Id. at 49. Officer
Wiley noted that the Glock 23 handgun was essentially clean but for a scuff mark
from striking the ground. Id.
6 Officer Wiley testified that John Moreno had been surveilled operating the Chevrolet Malibu. Id.
at 40.
7Testimony was elicited indicating these were exploding "hollow point" rounds designed to cause
extra damage on impact.
9
Evidence including testimony, physical evidence actually seized at the scene
was presented to the jury including photographs of the scene and the actual items
seized. far. at 52. The Commonwealth elicited that the money found in the upstairs
closet was bundled and banded in the same manner as the money found on the
Appellant's person. M at 56. Cross -Examination did little to impugn Officer
Wiley's clear and candid testimony. Tr/ at 56-59.
At the scene, a buccal swab of the inside of the Appellant's cheek was
obtained from the Appellant for purposes of matching his DNA with any DNA on
the Glock 23 40 caliber handgun. Ed. at 50-59. The parties also stipulated to the chain
of custody of the Glock and the bullets and entered their stipulation on the record to
the jury. ld, at 60. The Commonwealth and the Appellant stipulated that the
Appellant did not possess any valid firearms license as of March 23, 2016. Id. at 60-
61. The Commonwealth and the Appellant also stipulated that on March 29, 2016
and April 22, 2016 the DNA samples were taken from the Glock 23 handgun and
John Moreno and the proper chain of custody of those samples respecting the testing
of all the samples at the Pennsylvania State Police DNA laboratory. Id at 62-63.
10
b. regeiTnoiliy of Officer Kevin Gaul of Elae Tinicion Township Police epartinent
Officer Gaul has been a police officer for fifteen years. Presently he has been
assigned to the Delaware County Narcotics Task Force for approximately a year and
a half Over his career he describes attending multiple narcotics and drug
enforcement training provided by the Pennsylvania State Police.
Officer Gaul has worked with drug enforcement investigations along with the
Pennsylvania State Police. He has been trained by both the Arizona and California
High Patrol in narcotics trafficking interdiction. He also belongs to the Southeastern
Pennsylvania Criminal Investigation Group which is a professional association
among members of the Federal Drug Enforcement Agency and local law
enforcement who meet monthly to discuss the developing and evolving trends in
narcotics trafficking and undercover interdiction techniques. He also is regularly
involved in training in undercover narcotics operations. Id. at 75-76. He routinely
prepares and executes drug search warrants as well as making drug related arrests.
Id. at 78.
On March 23, 2016 he was a member of the team serving and executing the
search warrant at the 1102 Thomas Street row home in the Summerville section of
the Chester, Delaware County. Officer Gaul explained that the team of narcotics
officers split into two groups as they approached the residence located at 1102
Thomas Street. One team performs the knock and announce and the second group
11
covers the rear door to reign in and cover any persons inside who attempt to flee out
the back door.
Officer Gaul along with other team members covering the rear door took up
positions along the edge of the property from where they could observe and cover
the back door of the residence. Officer Gaul could hear the "knock and announce"
team.' At that time Officer Gaul observed two occupants attempt to flee out the back
door but when they encountered Officer Gaul and the members of his team yelling
"police, stop" the two occupants quickly slammed the back door and retreated inside
the row house. Id. at 81, Officer Gaul was able to identify the Appellant as one of
the persons attempting to flee out the back door after the "knock and announce". Id.
Officer Gaul observed that the back door was immediately in front of the
basement stairway separated by approximately three feet. Id. at 23. The Appellant
was apprehended in this space. Ida Cross examination did not significantly
undermine Officer Gaul's testimony. Id, at 83-29.
Testimony of Detective Sieve Bannar of the Delaware County District
Attorney's Office Criminal Investigation Division
Detective Bannar is a sixteen (16) year law enforcement veteran with seven
years narcotics investigation experience. He has been a Narcotics Instructor for ten
Officer Gaul testified he heard the officers of the front door team repeatedly lcnocking and yelling "police..search
warrant..open up". Id. at 81.
12
years at the Delaware County Police Acaderny. File is a graduate of the DEA's
narcotics school and the FBI narcotics detective training school, He has graduated
from the Top Gun narcotics training school and he fulfills his annual training and
education requirements with education related to illegal drug interdiction including
the heroin epidemic, pills and other controlled substances, and related illegal
distribution. Id. at 92.
Detective Bannar has investigated, seized, purchased, and tested controlled
substances such as heroin on thousands of occasions. He has prepared and executed
hundreds of search warrants related to illegal drug interdiction. He is well aware of
the paraphernalia' and operations of illegal drug manufacture and distribution and
the sale there of Id, at 92-95,
Detective Bannar explains that the evidence demonstrates the heroin is in a
wax bag (.03 grams), packaged in a clear bag. He testified that in a distribution
operation you are going to find bundles of these wax bags containing the heroin
typically 12 to 14 separate wax bags inside a clear plastic baggie. He also testified
there would typically be a stamp or label of some kind identifying the producer. And
the bundles are banded together by "tiny tiny" rubber bands. Id. at 96.1°
9Detective Bannar explains that with users, verses distributors and sellers, you are going to find
needles or a straw every time. Id. at 95.
1° The tiny rubber bands are typically black, pink and purple. Id.
13
 Also, Detective Banner testified that if you are going to a property where you
are buying heroin, there usually is protection including a pit bull dog and/or firearms.
id. Detective Banner also testified you are not typically going to find too much
paraphernalia related to actually ingesting the heroin because larger possessors,
producers and distributor of heroin do not actually use the heroin themselves. Mil
Detective Bannar's testimony was particularly compelling. He testified that
that heroin and narcotics traffickers use their own counter-measures to detect
undercover operatives such as himself by providing counterfeit heroin to see if the
purchaser returns claiming the product was excellent or good all the while knowing
that a counterfeit was sold. He also testified that the number of abusers is so great
that dealers actually lose track of their customers such that the undercover detective
can gain access to a supplier/seller because the seller/supplier simply presumes he
has sold to the person on a prior occasion. Detective Bannar testified that as in
Appellant's case he routinely utilizes information from heroin abusers and
confidential informants to make controlled heroin purchases utilizing pre-marked
money. Id. at 97-98.12
I IDetective Bannar testified one bag can kill you, that is, one 30 milligram wax bag is potentially lethal. "So they
typically don't use their own product". Id. at 97.
12 To underscore the pervasiveness of the heroin epidemic, Detective Bannar testified that he can dress up in a
ridiculous outfit to appear as a heroin abuser and within five (5) minutes of walking around the City of Chester find a
heroin seller. Id. at 98.
14
 Detective Banner testified to these additional pertinent qualifications:
He is routinely contacted by other members of law enforcement for his
opinions regarding the packaging of illegal controlled substances in furtherance of
determining whether the manner of packaging is sufficient indicia of the intent to
distribute or indicative of personal use; a et 99. He is sufficiently familiar with the
manner of/and preparation, cost(s), packaging, appearance, consistency, sale and the
weights of which heroin is distributed. Pd. He is absolutely familiar with the manner
in which sellers of heroin purchase, package, store, protect, sell and deliver these
drugs in the City of Chester, Delaware County. lido at 99.
Detective Banner was qualified as an expert in illegal drug trafficking, drug
investigations and generally in the field of illegal drugs. let at 110. He testified that
there is a hierarchy, that is, a vertical organization chart that can be drawn based on
quantities of heroin being sold, such that, where anyone ranks depends on the
quantity of heroin they purchase and/or re -sell. it at 101, He testified that the large
sums of money from heroin comes from the abusers who need the product and will
do anything to get money to buy heroin once addicted to it.
Additionally, as the kilo quantities are passed down through the distribution
chain the heroin gets "stepped on", that is, diluted just like cutting a full bottle of
whiskey into four bottles by pouring off and adding different liquids. He also
15
testified to the violence involved and the fact that guns are rampantly used by dealers
in the protection of their extremely valuable heroin dealing (4,3 grams estimated to
be worth $1,000). rda at 103-10,4,
Detective Banner testified that these dealers will sometimes utilize an
abandoned home for dealing or rent a property where persons live and carry out their
illegal drug sales in the midst of the residence. When showed the 92 bags of heroin
recovered in the instant case, Detective Bannar emphatically testified that it was not
a quantity associated with personal use. He also explained that the "apple bags"
which are legally intended for coin collections are cross -purposed for bagging
cocaine, heroin, crystal methamphetamine, and marijuana. Detective Bannar also
testified to the use of the "tiny" rubber bands to bind 12-14 heroin bags to make a
bundle. Ida
Ultimately, Detective Bannar rendered his opinion that the drugs and weapons
and paraphernalia in this case all lead to the conclusion that this was a heroin
distribution operation. kit at 108e
Detective Bannar testified to the basis of his opinion as follows:
The quantity itself is far beyond the amount used daily by abusers. Id.
at 109. Users keep the heroin on their person. "A user doesn't have 92
bags on his person, a dealer does". Id. If the Appellant was a user there
would be evidence of use scattered about including needles and straws.
Also the quantity of money is indicative of selling. Detective Bannar
testified "you don't have to be an expert to understand. No one has
$3,600.00 in their pocket, right. I don't." Id, at 110.
16
Testimony of Timothy Gavel of the Pennsylvania State Police DNA
Laboratory
Ms, Gavel holds an undergraduate degree in Biology and General Science
Education with course work in human genetics. He has received training on
population statistics as it applies to forensic DNA analysis at the State Police DNA
Laboratory. He has two years' experience as a research specialist at the University
of Pittsburgh in the Department of Pathology specializing in prostate cancer
research. Id. at
Mr. Gavel works at the State Police DNA Laboratory performing DNA
analysis on case work samples. In addition, he performs technical reviews of DNA
case records and quality control as assigned. Id. at 116. Mr. Gavel has previously
been qualified as an expert in court in 33 counties across Pennsylvania including
Delaware County two prior occasions. He has also testified in Federal Court. Id.
Mr. Gavel was asked to explain DNA evidence.' Essentially, DNA samples
are compared for similarity between a "known" subject and a "Q" sample for which
13 Mr. Gavel testified that DNA is found in chromosomes which are found in the nucleus or
"control center" of the cell. He explained that DNA is the genetic blue print for our bodies. He
described it as a tiny instruction manual inside our cells. DNA tells us how our body works and
looks. All the physical traits of an individual such as hair color, eye color, height, and gender as
well as all the chemical characteristics are determined by an individual's DNA. Id. at 117. He
explained our bodies have 23 pairs and are inherited from our mother and father variously. DNA
is found in every cell in the human body except red blood cells. Id. He explained that DNA research
has shown that certain areas of our DNA vary greatly between individuals with the exception being
identical twins. Id. at 177.
17
there is a question whether the known subject's DNA appears on the item of
evidence, hence, the "Q (question) sample". Id. at I tg, The test compares 24 areas
on the DNA which are locations known to show differences from person to person.
The combined results of those 24 areas are referred to as the "DNA profile". Id. at
IIb. The DNA profiles of the question items are compared to the DNA profiles of
the known items. lithe DNA profile of a question item and that of a known item are
the same we determine that those profiles match. If a match is declared, a statistical
calculation is applied to determine how common or how rare that profile is in our
population. id. at li R-11 9..
Mr. Gavel explained that he compared the DNA profiles from the Glock (Q-
1) to DNA profiles collected from the Appellant (K-1) and his co-conspirator, John
Moreno (K-2). He explained that the first test did not yield sufficient genetic material
to perform the DNA test on the Glock. rd. at 121.
Mr. Gavel further testified there is a secondary test that is done which looks
only at the "Y" clromosome which is present only in male individuals. Using the
secondary test, Mr. Gavel was able to develop three partial DNA profiles from the
Glock 23 40 caliber handgun. Mr. Gavel's supporting DNA evidence is, first, there
was sufficient genetic material or DNA to malce an interpretation. Id. at 122. Second
Mr. Gavel opined that it was sufficient genetic material and that most of the DNA
came from one person, that is, Jabree Evans. The import of the DNA testimony is
18
that not only did it implicate Appellant, Jabree Evans but tended to exonerate the co-
conspirator, John Moreno, because none of the genetic material could be matched
with his DNA profile which undermined the Appellant's "wrong place, wrong time"
defense. At the close of the testimony of Mr. Gravel, the Commonwealth rested, and
the trial concluded.
e. Stipulations"
i. The Appellant stipulated that the Appellant was convicted on
November 26, 2012 of Title XXXV, Section 780-113 Subsection A30,
possession with intent to delliier, an ungraded felony under transcript
CP-23-CA-6593-2012 and that the Appellant was convicted on
January 29, 2013 of Title XXXV, Section 780-1135 Subsection A30,
possession with intent to deliver, an ungraded felony.
ii. The Appellant stipulated that his prior PW1D convictions were
enumerated offenses under Title XXXV, Section 6105, Subsection Al,
persons not possess, use, manufacture, control, sell or transfer firearms.
See Frd at 1.76.'5
iii. The Appellant stipulated that on March 23, 2016 he did not have
a valid license to carry a firearm issued under the provision of 6109 of
the crimes code. The Appellant further stipulated that on March 23,
2016 he did not have a valid sportsman firearm permit issued under the
provisions of Section 6106C of the crimes code.I6
Other Stipulations were read into the record that are not pertinent to the disposition of this
14
Appeal.
The significance of the stipulation is that if convicted of possessing a firearm he was Maher
16
guilty of possessing, using, controlling or transferring a firearm because he had been convicted of
an enumerated offense.
16This stipulation appears to refer to the Pennsylvania Sportsman's Permit: An individual who is
age 18 or older and is licensed to hunt, trap or fish, or who has been issued a permit relating to
hunting dogs, may apply for a Sportsman's Firearm Permit by submitting a completed application
along with the required fee to the county treasurer's office. The permit shall be issued immediately
19
Appellant's challenge to the sufficiency of his conviction, for carrying a
firearm without a license lacks legal merit and judgment of conviction:
should he affirmed,
Appellant's challenges to the sufficiency of the evidence of carrying a firearm
without a license are devoid of merit when considered against the jury's verdict in
light of all of the evidence presented at trial. Appellant challenges sufficiency of the
carrying a firearm without a license conviction the following grounds:
(I) Insufficiency of the evidence ofAppellant's possession of a firearm
to sustain his conviction for Persons Not to Possess firearms;
(2) Insufficiency of the evidence of Appellant's "control of a firearm"
to sustain his conviction for Persons Not to Possess firearms;
(3) Insufficiency of the evidence of Appellant's carrying of a firearm
in any veiticie without a valid license to sustain his conviction for
Firearms not to be carried without a license;
(4) Insufficiency of the evidence of Appellant's carrying of a firearm
on his person without a valid license to sustain his conviction for
firearms not to be carried without a license;
(5) Insufficiency of the evidence that 1162 Thomas Street Chester,
Pennsvivania was not Appellant's abode such that evidence was
insufficient to sustain his conviction of firearms not to be carried
without a license;
and be valid throughout this Commonwealth for a period of five years from the date of issue for
any "legal firearm", when carried in conjunction with a valid hunting, fu taking or fishing license,
or permit relating to hunting dogs. The issuances of a Sportsman's Firearm Permit allows the
individual to carry a firearm if such persons are actually hunting, taking furbearers, fishing or
training dogs, or are going to the places where they desire to hunt, take furbearers, fish, or train
dogs during the regular training season, or returning from such places. A Sportsman's Firearm
Permit is not a License to Carry a firearm concealed.
20
(6) insufficiency of the evidence that 1102 Thomas Street, Chester,
PenitSylvatula was not Appeetant5c fixed jittee of business such that
evidence was insufficient to sustain his conviction of Firearms not to
be carried. without a license;
Appellant's first six (6) challenges to his conviction center on the conviction
for carrying a firearm without a license. Variously, the Appellant attacks the
sufficiency of the evidence that Appellant "possessed' the Clock 23 handgun, the
sufficiency of the evidence of the Appellant's "control' of the Clock 23 handgun,
the sufficiency of the evidence of the Appellant's carrying the handgun in any
veiricle,17 the sufficiency of the Appellant's carrying a firearm on his person, the
sufficiency of the evidence that 1102 Thomas Street was not Appellant's place of
abode or place of business.
The Commonwealth's theory (NT, 12/14/16, p,145) as to Appellant's illegal
carrying and possession of the Clock 23 firearm found in the basement at 1102
Thomas Street is that he was carrying the gun on his person just before the warrant
was executed and then took his handgun (the Clock 23 firearm) which he was
carrying on his person and his heroin (92 bundled bags stuffed in a rubber glove)
and threw them down the basement stairs' as the Drug Task Force performed their
knock and announce and as they crashed through the front door of 1102 Thomas
17There was no evidence the Glock 23 handgun was carried in a vehicle.
" The Commonwealth produced evidence of skid markings on the floor of the basement where the Glock 23 handgun
purportedly struck the ground after being thrown down the basement steps. The basement was deplorable with dog
feces littered all around but the Glock 23 was described as "clean" but for the skid mark evidence.
21
Street, Chester, Delaware County. There was evidence that the Appellant was
observed along with his co-conspirator attempting to flee through the back door of
the premises beforerealizing that law enforcement had that escape route covered.
Important to note, the back door s in proximity to the basement or cellar door where
the Appellant was discovered by Officer Wiley attempting to conceal himself.
Officer Wiley testified he had a straight line of sight to the kitchen and back
door after breaching the front door of the small row home. There was also testimony
that the premises vas not a place of abode but a heroin "trap" house and the basement
floor was littered with dog feces and the washer and dryer were not hooked-up to
any utility for routine or regular use. Adding to that, the jury heard the expert DNA
testimony cotmecting the Clock 23 handgun to matching the Appellant's DNA and
excluding the co-conspirator, John Moreno. The illegal heroin operation testimony
elicited from the Commonwealth's expert made clear that the premises was being
used for the heroin enterprise not as "an abode" or "place of business".
The Pennsylvania Superior Court applies the following standard of review to
challenges to the sufficiency of the evidence:
[W]hether[,] viewing all the evidence admitted at trial in the light
most favorable to the [Commonwealth as 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
22
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. Comm onweal:eh v.
Gonzalez, 109 A.3d 711, 716 (Pa.Super.2015). A. person is guilty
of carrying a firearm without a license "if he carries a firearm in
any vehicle or concealed on or about his person, except in his
place of abode or fixed place of business, without a valid and
lawfully issued license." 18 Face& § 6106(a)(1). The
Commonwealth may prove the "carrying" element either with
evidence that the defendant carried a firearm in a vehicle or
concealed a firearm on or about his person. Id. In this case, the
Commonwealth furnished circumstantial proof that the
Appellant concealed a firearm on or about his person in the time
prior to the execution of the search warrant. Proof of
concealment of a firearm on the defendant's person depends on
the particular circumstances of the case and is a question for the
trier of fact. Commonwealth v. Scott, 436 A.2d 607, 608
(Pa.1981).
"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. crown, 23 A.3d 544, 559-560 (Pa. Super.
2011) (enbanc).
23
Here, the jury concluded based on the evidence presented that the Glock 23
handgun was thrown down the basement steps by the Appellant as the Narcotics
Task Force executed the search warrant. The DNA on the Clock 23 matched the
Appellant. The DNA on the Glock handgun did not match John Moreno's DNA. The
handgun was found clean at the bottom of the cellar staircase in a cellar that was
filthy dirty from which one could reasonably infer the firearm was recently thrown
there. Further, there was a "skid" mark on the floor in the area where the handgun
was alleged to have struck the filthy basement floor when thrown in haste down the
basement. The contraband was located just short of the handgun.
This court concludes, as in the cases' where handguns inside a vehicle are
found within reach of a defendant, the evidence is sufficient to demonstrate
possession of the firearm. In this case the Clock 23 handgun certainly was within
reach of the Appellant, should he have darted down the cellar steps where he threw
the gun in an attempt to conceal and distance himself from the firearm he knew he
was not to possess.
19Proof of partial concealment ... is sufficient to demonstrate that the defendant carried a firearm
on his person. See Commonwealth v. Butler, 150 A.2d 172, 173 (Pa. Super.1959) (evidence of
concealment sufficient where defendant carried gun in pocket; fact that part of gun was visible to
witnesses did not undermine conviction). Also, The Commonwealth can prove that the defendant
carried a firearm inside a vehicle through evidence of either actual or constructive possession. See
Commonwealth v. Hopkins, 67 A.3d 817, 821 (Pa. Super.2013) (evidence was sufficient to show
that defendant constructively possessed firearm found in vehicle he was driving, as required to
support convictions for carrying a firearm without a license; firearm was found within arms
length of where defendant was seated).
24
For all of the foregoing reasons, Appellant's challenge to the sufficiency of
the evidence of his possession of a firearm without a license is devoid of merit.
IL Under the totality of the circumstances, the evidence at trial sufficiently,
clearly, convincingly and beyond a reasonable doubt demonstrated the
Appellant promoted, facilitated, conspired with others and planned and
solicited the crime of Possession with Intent to Deliver Heroin, and
therefore, Appellant's various sufficiency challenges must fail.
Appellant's conviction should be affirmed,
The Appellant raises the following challenges to his Possession with Intent to
Deliver Heroin conviction as follows:
(7) Insufficiency of the evidence of the Appellant's promotion of or facilitation of
Conspiracy to PWID with another person to sustain his conviction for Conspiracy
to PWID;
(8) Insufficiency of the evidence of the Appellant's agreement with others to
sustain his conviction for Conspiracy to PWID;
(9) Insufficiency of the evidence of the Appellant's agreement with another to aid
in the planning, committing, attempting or soliciting the crime to sustain his
conviction for Conspiracy to PWID.
The Pennsylvania Superior Court determines whether, when viewed in the
light most favorable to the verdict winner, the evidence at trial and all reasonable
inferences therefrom are sufficient for the trier of fact to find that each element of
the crime charged is established beyond a reasonable doubt when reviewing
sufficiency challenges. See Commonwealth v. Brown, 23 A.3d 544, 559 (Pa. Super.
2011) (en bane). "The Commonwealth may sustain its burden of proving every
25
element of the crime beyond a reasonable doubt by means of wholly circumstantial
evidence." Id. (quoting Corsrmarewsealth v. Ilurchinsan, 947 A.2d 800, 805-06 (Pa.
Super. 2008)).
To sustain a conviction for possession of a controlled substance with intent to
deliver, the Commonwealth must establish the defendant knowingly or intentionally
possessed a controlled substance without being properly registered to do so, with the
intent to manufacture, distribute, or deliver it. See 35 P.S. § 780-113(a)(30);
Commonwealth vo Brown 48 A.3d 426, 430 (Pa.Super. 2012).
The Commonwealth was required to establish that Appellant had, at least,
constructive possession. Co mmonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.Super.
2013). To establish constructive possession of contraband, the Commonwealth must
show that the defendant has "conscious dominion" over the contraband, that is, "the
power to control the contraband and the intent to exercise that control." Brown, 48
A.3d at 430 (quoting Commonwealth tic Parker, 847 A.2d 745, 750 (Pa.Super.
2004)). The "intent to maintain a conscious dominion may be inferred from the
totality of the circumstances," and "constructive possession may be found in one or
more actors where the item in issue is in an area of joint control and equal access."
Commonwealth Johnson, 26 A.3d 1078, 1094 (Pa. 2011).
Instantly, the evidence of Appellant's guilt for committing the crime of
Possession with Intent to Deliver is overwhelming. Through surveillance, controlled
26
purchases, execution of a duly authorized search ant and the evidence and
testimony at trial, members of the Delaware County Narcotics and Drug Task Force
uncovered the heroin distribution network Appellant was operating from the row
home at 1102 Thomas Street in Chester, Delaware County.
The Commonwealth elicited expert testimony at trial that highlighted and
underscored that Appellant was the head of the heroin distribution operation at 1102
Thomas Street. The Appellant offered no rebuttal or critical attack on Detective
Bannar's testimony. Additionally, expert DNA evidence was produced that
connected the Appellant to the Clock 23 handgun discovered on the premises in
proximity to the Appellant as well as the heroin. The Appellant had thousands of
dollars in his pocket when searched incident to his arrest which was, of course,
bundled in the same rubber bands used to bundle the heroin baggies that were seized
at the scene. Importantly, the DNA evidence not only tended to implicate the
Appellant but ruled -out the Appellant's co-conspirator, John Moreno, as the
possessor of the Glock 23 handgun.
In his testimony, Detective Bannar pointed out that pit bull dogs are utilized
as guards and protection for the illegal operations. Here, dog feces were littered
about the basement where the Glocic 23 handgun and 92 baggies of bound heroin
were found. There was evidence of "branding" with the name "Need for Speed"
stamped on the heroin baggies.
27
Also, there was expert testimony as to the hierarchy as between Appellant and
John Moreno, the other individual present on the premises when the search warrant
was executed. The Commonwealth's expert opined that the Appellant was higher on
the heroin distribution ladder than Moreno and evidence proved as much, where
Appellant possessed Thousands of Dollars in his pocket and Moreno possessed
materially less money and was in possession of only four (4) baggies of heroin all of
which tended to corroborate that Moreno was a street dealer for Appellant's heroin.
in his challenge to the sufficiency, Appellant appears to take issue with the
evidence of the conspiracy in this case, compelling this court to examine the
evidence of conspiracy elicited at trial.
Section 903 of the Pennsylvania Crimes Code sets forth the crime
of conspiracy as follows:
(a) Definition of conspiracy. A person is guilty of conspiracy
with another person or persons to commit a crime if with the
intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or
more of them will engage in conduct which constitutes such
crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or
commission of such crime or of an attempt or solicitation to
commit such crime. 18 Pa.C.S. § 903.
"To sustain a conviction for criminal conspiracy, the
Commonwealth must establish the defendant: I) entered into
28
an agreement to commit or aid in an unlawful act with another
person or persons; 2) with a shared criminal intent; and 3) an
overt act was done in furtherance of the conspiracy."
COIMPECTiweaddi p, neWile, 2011 Pa. Super. 163, 26 A.3d 1139,
1147 (Pa. Super. 2011). "The conduct of the parties and the
circumstances surrounding such conduct may create a web of
evidence linking the accused to the alleged conspiracy beyond a
reasonable doubt." Id. The conspiratorial 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
ofthe parties surrounding the criminal episode." kb
Commonwealth v, Feliciano, 67 /1.3d 19, 25-26 (Pa. Super.
2013).
In this case, the jury chose to believe that the operation being run from 1102
Thomas Street in Chester Delaware County was a heroin enterprise, from which
heroin was being stashed and "trapped". In the 1102 Thomas Street row house,
heroin was bundled, sold, and possessed for branding, pacicaging, and sale on the
streets. The Appellant's possession of the Glock 23 handgun, evidence of the guard
dog, the thousands of US Dollars in his pocket bound in the same rubber bands as
used in the bundling of the heroin, the bagging materials, the actual bundled 92 wax
baggies, the branding, the fact that there were no indicia of personal use and all of
the evidence at trial set forth all of the evidence of promotion, facilitation,
agreement, common plan and overt acts20 necessary to sustain conviction for
20The conviction for conspiracy is plain here as the evidence of agreement is obvious, a shared
purpose and an overt act. The Appellant acted with the intent of promoting or facilitating the
commission of the offense. Commonwealth v. Allen, 625 A.2d 1266, 1268 (Pa. Super. 1993).
29
Possession with Intent to Deliver heroin, It is clear the jury properly accepted the
testimony of the law enforcement officers, police drug distribution experts, and a
DNA expert who testified on behalf of the Commonwealth. The quantity of heroin
seized, together with the fact there was no drug paraphernalia necessary for use, as
well as the expert testimony that a user would have the heroin on his person along
with syringes or needles, made the entire scene inconsistent with any "personal use"
defense.
Therefore, the facts and circumstances here, taken in a light most favorable to
the Commonwealth as the verdict winner, were sufficient to sustain the Appellant's
convictions for PWID and related offenses. The testimony and evidence at trial
established that the quantity of heroin was not for personal use but was possessed
with the intent to deliver on the streets.
CONCLUSIGN
For all the foregoing reasons, the Appellant's Judgment of Sentence should
be affirmed,
BY THE COURT
30