Com. v. Milhouse, N.

J-S68014-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NATHAN MILHOUSE,

Appellant No. 116 EDA 2015

Appeal from the Judgment of Sentence Entered November 19, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-46-CR-0008755-2013

BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 17, 2015

Appellant, Nathan Milhouse, appeals from the judgment of sentence of

2-10 years’ incarceration, and a consecutive term of 3 years’ probation,

imposed following his conviction for possession of a controlled substance,

possession with intent to deliver a controlled substance (PWID), and

conspiracy. Herein, Appellant claims the evidence was insufficient to support

his conviction(s), and presents a challenge to the discretionary aspects of his

sentence. After careful review, we affirm.

The trial court summarized the facts adduced at trial as follows:

On May 29, 2013, Philadelphia Police Officer Stephen

Shippen was conducting surveillance in the area of [the] 1400

Block of North Edgley Street in Philadelphia. At about 7:45[,1]

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1

The trial court does not indicate whether this occurred in the morning or

the evening.

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PO Shippen observed [Appellant] approach a black male and

engage in a brief conversation, after which [Appellant] entered a

residence at 1402 North Edgley for about 15-20 seconds, before

returning to the male and handing him a jar with a black lid. As

the male left the area, PO Shippen notified his back-up officers.

At about 8:05[,] another black male, identified as Brandon

Brown, arrived at the location and approached a black male later

identified as James Hayes. After a brief conversation, Hayes

handed Brown an[] unknown amount of United States Currency

(USC), whereupon Brown handed Hayes a clear plastic baggie.

Hayes was stopped by [a] back-up officer shortly thereafter and

[w]as found in possession of six green tinted packets of

marijuana.

At approximately 8:24[, Appellant] entered the residence

at 1402 N. Edgley. At about 8:40[,] co-defendant Martin arrived

on the scene, spoke briefly with Mr. Brown, then knocked on the

door at 1402 N. Edgley, before entering the property for 15-20

seconds. [Appellant] and Martin then exited the property. As

they did so, [Appellant] handed Martin a bottle with a black lid

containing a yellow liquid.

At about 8:45[,] James Ayres approached Martin,

[Appellant,] and Brown, handing Martin USC. Martin opened the

jar [Appellant] had just given him and allowed Ayres to dip a

cigarette into the yellow liquid.

PO Shippen then notified his backup. [Appellant] was

arrested with a clear plastic bag containing 2 vials of codeine,

and Ziploc packets of marijuana, and $16 USC. Martin was

arrested and recovered from him was a clear glass jar with a

black top containing a yellow liquid.

A search warrant was obtained for 1402 N. Edgley, and

recovered from the basement were 200 clear glass jars with

black caps, and clear Ziploc baggies. The contents of the six

packets seized from Hayes tested positive for marijuana. The

liquid recovered from co-defendant Martin tested positive for

PCP. The substances recovered from Brown tested positive for

marijuana. The substances recovered from [Appellant] tested

positive for codeine and promethazine.

Trial Court Opinion, 3/13/15, at 2-3 (citations to the record omitted).

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After a non-jury trial, Appellant was convicted of possession of a

controlled substance, 35 P.S. § 780–113(a)(16); PWID, 35 P.S. § 780–

113(a)(30); and conspiracy to commit PWID, 18 Pa.C.S. § 903. Prior to

sentencing, Appellant filed a motion for extraordinary relief on November 18,

2014. That motion was heard, and ultimately denied, at Appellant’s

sentencing hearing on November 19, 2014. At that hearing, the trial court

sentenced Appellant to 2-10 years’ incarceration for PWID, and a

consecutive term of 3 years’ probation for conspiracy. Appellant filed post-

sentence motions on November 21, 2014, which were denied on December

9, 2014. Appellant subsequently filed a timely notice of appeal on January

5, 2015.

Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement on

February 20, 2015.2 The trial court issued its Rule 1925(a) opinion on March

13, 2015. Appellant now presents the following questions for our review:

A. Was it error for the court to deny Appellant’s timely motions

for extraordinary relief, reconsideration, and post-sentence

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2

The trial court ostensibly excused Appellant’s failure to file a timely Rule

1925(b) statement by order dated February 24, 2015. See Order, 2/24/15,

at 1 (“the [Rule 1925(b) statement] served on the [c]ourt on February 20,

2015 … shall be deemed timely”). Whether or not the trial court possessed

the authority to do so, this Court will overlook the waiver of Appellant’s

claims due to the untimely filing of his 1925(b) statement, based on our

authority in Commonwealth v. Burton, 973 A.2d 428 (Pa. Super. 2009),

where we stated, “if there has been an untimely filing, this Court may decide

the appeal on the merits if the trial court had adequate opportunity to

prepare an opinion addressing the issues being raised on appeal.” Id. at

433.

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motions, the gravamen of which were complaints of

insufficient evidence?

B. Was the totality of the evidence presented at the trial below

sufficient, as a matter of law, to sustain the convictions

beyond a reasonable doubt?

C. Has Appellant sufficiently preserved his sentencing complaint

in accordance with Rule 2119(f) of the Pennsylvania Rules of

Appellate Procedure?

D. Was Appellant’s sentence of 2 to 10 years[’] incarceration,

plus 3 years[’] consecutive probation, under the

circumstances, consistent with the fundamental norms

underlying the sentencing process?

Appellant’s Brief, at 2.

With regard to Appellant’s first claim, he abandons allegations of

ineffective assistance of counsel (IAC) raised in his motions for extraordinary

relief, his motion for reconsideration, and in his post-sentence motion.

Appellant’s Brief, at 6 (“Preliminarily, [A]ppellant here withdraws so much of

his instant appeal as is based on ineffective assistance of counsel. It must

be conceded that the required relief should be obtained via a Post Conviction

Relief Act (P.C.R.A.) Petition.”). According to Appellant, the only remaining

non-sentencing issues from those motions are sufficiency issues. Thus,

Appellant’s first and second claims (A and B, above), are challenges to the

sufficiency of the evidence. Appellant concedes that the evidence was

sufficient to convict him of possession of a controlled substance. See

Appellant’s Brief, at 8 (“It is conceded that [A]ppellant was found in

possession of a substance containing codeine and promethazine.”).

Sufficiency Claims

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The Commonwealth asserts that Appellant has waived his sufficiency

claims, as he did not directly raise any sufficiency claims in his Rule 1925(b)

Statement. In his Rule 1925(b) Statement, Appellant alleged that the trial

court had erred in denying his motions for extraordinary relief, his motion

for reconsideration, and his post-sentence motions. Rule 1925(b)

Statement, 2/23/15, at 1-3. In Appellant’s motion for reconsideration, he

claimed that “the evidence was insufficient to support the verdict(s) and that

the determination of guilt was against the weight of the evidence.” Motion

for Reconsideration, 11/21/14, at 4 ¶ 6.

However, as this Court has repeatedly held, “[i]f Appellant wants to

preserve a claim that the evidence was insufficient, then the 1925(b)

statement needs to specify the element or elements upon which the

evidence was insufficient.” Commonwealth v. Flores, 921 A.2d 517, 522

(Pa. Super. 2007). Here, Appellant failed to assert the nature of his claim in

his Rule 1925(b) Statement, and therein only vaguely referenced a

sufficiency claim raised in a prior motion. In that prior motion, Appellant

failed to identify what elements of which offenses had been unproven by the

Commonwealth. Accordingly, we conclude that Appellants’ first two claims

have been waived. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.

1998) (“Any issues not raised in a 1925(b) statement will be deemed

waived.”).

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Nevertheless, were we to address Appellant’s sufficiency claim(s), we

would find that they are meritless. Our standard of review of sufficiency

claims is well-settled:

A claim challenging the sufficiency of the evidence is a

question of law. Evidence will be deemed sufficient to support

the verdict when it establishes each material element of the

crime charged and the commission thereof by the accused,

beyond a reasonable doubt. Where the evidence offered to

support the verdict is in contradiction to the physical facts, in

contravention to human experience and the laws of nature, then

the evidence is insufficient as a matter of law. When reviewing a

sufficiency claim[,] the court is required to view the evidence in

the light most favorable to the verdict winner giving the

prosecution the benefit of all reasonable inferences to be drawn

from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

As noted above, Appellant conceded the sufficiency of the evidence

with regard to his conviction for possession pertaining to the codeine and

promethazine found on his person. As to the charges of PWID and

conspiracy, Appellant was observed engaging in multiple transactions where

he distributed jars with black lids out of a residence at 1402 North Edgley

Street. One such jar was given to Martin, who in turn accepted money from

Ayres and allowed Ayres to dip a cigarette in that jar. When seized, that jar

was found to contain PCP. A search of 1402 North Edgley Street revealed

200 similar, empty jars, and other drug packaging materials.

Appellant first claims that the evidence was insufficient to support his

conviction for PWID because the police did not recover the first glass jar that

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Appellant was observed distributing. Appellant asserts that “it is not known

what, if anything, was in the said jar. Therefore, [A]ppellant respectfully

submits it is not even appropriate to refer to this person as a ‘buyer.’ It

appears that [A]ppellant made someone a gift of an empty glass jar – hardly

a sale.” Appellant’s Brief at 7.

This aspect of Appellant’s sufficiency claim ignores our standard of

review by simply offering an alternative inference arising out of the observed

behavior. It is, of course, possible that Appellant was a Good Samaritan

who generously distributed empty glass jars to all needy visitors. Yet, such

an interpretation of the facts fails to “view the evidence in the light most

favorable to the verdict winner[,]” and it fails to give “the prosecution the

benefit of all reasonable inferences to be drawn from the evidence.”

Widmer, 744 A.2d at 751. However, it is also a reasonable inference that,

given the subsequent transaction involving Martin and Ayres, that Appellant

had also distributed PCP on this earlier occasion. In any event, the

transaction that gave rise to Appellant’s single PWID conviction was the later

one involving Martin and Ayres, and thus Appellant’s sufficiency argument is

misplaced. The complained-of transaction was not the basis of his

conviction but, rather, circumstantial evidence that supported it.

Appellant also complains that the subsequent search of 1402 North

Edgley Street did not reveal the presence of a stash of PCP. However, the

substance seized immediately after the transaction involving Martin and

Ayres did contain PCP and, thus, the Commonwealth’s failure to find any

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more PCP is irrelevant to Appellant’s conviction, as he was not charged in

relation to any substances found at that address.

Next, Appellant contends that the police’s failure to find a substantial

amount of currency on Appellant or Martin, or in the search of 1402 North

Edgley Street, undermines the Commonwealth’s theory that the two were

engaged in the sale of PCP. We disagree. Possession of currency is not an

element of PWID, nor is a sale required. A conviction for PWID only requires

that one “deliver,” or that one “possess with the intent to … deliver,” a

controlled substance. 35 P.S. § 780–113(a)(30). The Controlled Substance,

Drug, Device and Cosmetic Act defines “deliver” as “the actual, constructive,

or attempted transfer from one person to another of a controlled substance

….” 35 P.S. § 780–102 (emphasis removed). Thus, a conviction for PWID

does not require any proof of a sale at all, let alone evidence of the proceeds

of a sale. Proof of a sale may serve as evidence that controlled substances

have been delivered, but it simply does not follow that a delivery must be

proven by evidence of a sale.3

____________________________________________

3

In any event, the evidence in this case demonstrated that Martin,

Appellant’s coconspirator, accepted currency in exchange for allowing Ayres

to dip his cigarette in the jar of PCP. “[T]he basic principle of conspirator

liability [is] that once there is evidence of the presence of a conspiracy, the

conspirators are liable for the acts of co-conspirators committed in

furtherance of the conspiracy.” Commonwealth v. Stocker, 622 A.2d 333,

342 (Pa. 1993).

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Finally, Appellant contends there was insufficient evidence of a

conspiracy between him and Martin. “To sustain a conviction for criminal

conspiracy, the Commonwealth must establish that the defendant (1)

entered into 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.” Commonwealth v. Hennigan, 753

A.2d 245, 253 (Pa. Super. 2000) (quoting Commonwealth v. Rios, 684

A.2d 1025, 1030 (Pa. 1996)). The overt act may be committed by any of

the conspirators. Id. Moreover,

Proof of a conspiracy is almost always extracted from

circumstantial evidence. The Commonwealth may present a

“web of evidence” linking the defendant to the conspiracy

beyond a reasonable doubt. The evidence must, however, “rise

above mere suspicion or possibility of guilty collusion.” Mere

association, presence at the scene, or knowledge of the crime is

insufficient; the Commonwealth must prove that the defendant

“became an active participant in the criminal enterprise and that

he had knowledge of the conspiratorial agreement.”

Hennigan, 753 A.2d at 253 (internal citations omitted).

Here, the evidence demonstrated that Appellant answered the door at

1402 North Edgley Street, greeted Martin, and the two went inside. When

they reemerged, Appellant handed Martin the jar containing PCP and,

immediately thereafter, Martin allowed Ayres to dip his cigarette in the PCP

in exchange for currency. This was circumstantial evidence of an agreement

between Appellant and Martin to distribute PCP, and Martin’s interaction with

Ayres was an overt act in furtherance of that conspiracy.

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Appellant complains that “there is no evidence that [A]ppellant

benefited from any transaction.” Appellant’s Brief at 9. As noted previously,

there is no requirement for the Commonwealth to prove that one received a

tangible benefit, financial or otherwise, in order to secure a conviction for

PWID. Consequently, there is also no ‘benefit’ requirement to secure a

conviction for a related conspiracy. If a financial arrangement could be

proven, that would be circumstantial evidence of a conspiracy. However, the

absence of such evidence is not fatal to a conspiracy conviction, because a

financial arrangement to commit a crime is not an element of conspiracy.

The Commonwealth only needs to prove that there was an implicit

agreement which, in this case, was an agreement to coordinate the

distribution of PCP. We conclude the evidence was sufficient in this regard,

and that Appellant’s claim to the contrary is meritless. Thus, even had

Appellant preserved his sufficiency claims for our review, we would have

concluded that they lack merit.

Sentencing Claim

Appellant’s remaining two claims concern the discretionary aspects of

his sentence. Initially, we note that, although Appellant lists two claims in

his statement of the questions, Appellant’s Brief at 2, he only presents one

related argument thereafter, Appellant’s Brief at 10-11. Upon further

inspection, that argument presents only a single issue for our review:

whether the maximum portion of Appellant’s 2-10 year sentence violates a

fundamental norm underlying the sentencing process. Appellant’s Brief, at

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11. However, before we reach this claim at all, we must address the

Commonwealth’s contention that Appellant has waived review of his

sentencing claim due to his failure to provide a Pa.R.A.P. 2119(f) statement

in his brief.

“Criminal defendants do not have the automatic right to challenge the

discretionary aspects of their sentence. Rather, they must seek permission.”

Pa.R.A.P. 2119(f); Commonwealth v. Robinson, 931 A.2d 15, 19 (Pa.

Super. 2007). For this Court to review a discretionary-aspects-of-sentencing

claim, the following four-prong test must be satisfied:

(1) the appellant preserved the issue either by raising it at the

time of sentencing or in a post[-]sentence motion; (2) the

appellant filed a timely notice of appeal; (3) the appellant set

forth a concise statement of reasons relied upon for the

allowance of his appeal pursuant to Pa.R.A.P. 2119(f); and (4)

the appellant raises a substantial question for our review.

Commonwealth v. Tejada, 107 A.3d 788, 797-98 (Pa. Super. 2015),

appeal denied, 119 A.3d 351 (Pa. 2015). Rule 2119(f) states:

An appellant who challenges the discretionary aspects of a

sentence in a criminal matter shall set forth in a separate

section of the brief a concise statement of the reasons relied

upon for allowance of appeal with respect to the discretionary

aspects of a sentence. The statement shall immediately precede

the argument on the merits with respect to the discretionary

aspects of the sentence.

Pa.R.A.P. 2119(f) (emphasis added). “If a defendant fails to include an issue

in his Rule 2119(f) statement, and the Commonwealth objects, then the

issue is waived and this Court may not review the claim.” Robinson, 931

A.2d at 19.

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Here, Appellant references Rule 2119(f) in his statement of the

questions, but he does not provide a separate Rule 2119(f) statement

anywhere in his brief. He also fails to offer any discussion as to why his

discretionary-aspects-of-sentencing claim presents a substantial question for

our review. The Commonwealth has objected to these deficiencies in

Appellant’s brief; thus, we are compelled to conclude that Appellant has

waived his discretionary-aspects-of-sentencing claim. Tejada, supra;

Robinson, supra.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/17/2015

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