Com. v. Garnett, R.

J-A32035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROY GARNETT,

Appellant No. 393 EDA 2016

Appeal from the Judgment of Sentence December 18, 2015

in the Court of Common Pleas of Delaware County

Criminal Division at No.: CP-23-CR-0003841-2015

BEFORE: DUBOW, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED MARCH 27, 2017

Appellant, Roy Garnett, appeals from the judgment of sentence

imposed on December 18, 2015, following his jury conviction of one count

each of possession with intent to deliver narcotics (PWID), possession of

narcotics, and possession of drug paraphernalia,1 as well as two counts of

criminal conspiracy.2 On appeal, Appellant challenges the sufficiency and

weight of the evidence and certain of the trial court’s evidentiary rulings.

For the reasons discussed below, we affirm the judgment of sentence.

____________________________________________

*

Retired Senior Judge assigned to the Superior Court.

1

35 P.S. §§ 780-113 (a)(30), (16), and (32), respectively.

2

18 Pa.C.S.A. § 903(a).

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We take the underlying facts and procedural history in this matter

from the trial court’s April 12, 2016 opinion.

Officer Marc Barag is currently employed as a narcotics

investigator for the City of Chester Police Department and has

been so employed since April of 2013 and a member of the

patrol unit since 2008. Prior to his employment with the City of

Chester Police, Officer Barag was employed for a year with the

Folcroft Borough Police Department.

In his current capacity as a narcotics investigator for

Chester Police and as a member of the Delaware County Criminal

Investigative Division, herein “CID” Task Force, Officer Barag

conducts investigations which include surveillance, debriefing

informants, as well as routine traffic stops to develop intel

throughout Delaware County.

On March 13, 2015, at approximately 2:00 [] p.m., Officer

Barag was working in the area of the 700 block of Caldwell

Street, in Chester, Delaware County. Specifically, Officer Barag

was conducting an undercover investigation by posing as a buyer

looking to purchase heroin at 721 Caldwell Street.[a] Officer

Barag was in plain clothes, in an unmarked police vehicle, acting

as a normal citizen trying to purchase drugs. Officer Barag was

given a number to text in order to purchase heroin from that

residence; Officer Barag texted the number asking if he could

buy heroin. Shortly thereafter, Officer Barag received a phone

call from a male, with a deep authoritative voice asking who he

was. Officer Barag recognized the male voice from prior contact,

as Roy Garnett, herein Appellant. Officer Barag had no doubt

that the voice was that of Appellant.

[a]

721 Caldwell Street is owned by Linda Garnett,

Appellant’s mother.

Although in an undercover location, Officer Barag’s

vantage point was in close proximity to Appellant during their

conversations, allowing him to clearly see Appellant. Appellant

was tall, wearing all black clothing, with a receding hair line and

braids, in his 30’s (sic). Officer Barag knew it was Appellant

from prior interactions.

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When Officer Barag texted Appellant, he observed

Appellant pull out his phone and begin typing, and a second

later, Officer Barag received a text message from Appellant.

During the conversations, Officer Barag observed Appellant

coming in and out of his residence, 712 Caldwell Street, which is

across the street from the target location of 721 Caldwell.

Appellant asked Officer Barag who he was; Officer Barag

replied: “Mike from Ridley.” Officer Barag told Appellant that he

wanted: “six bags of heroin for $50.00.” Appellant responded:

“no, $60.00 but if you wait twenty minutes for me to get it, I’ll

give you two on top of that for free.” Officer Barag took that to

mean that he would receive eight bags total for $60.00 if he

waited.

After twenty minutes, Officer Barag texted Appellant

saying, “Yo, it’s been twenty minutes” and Appellant texted

back, “it’s coming.”

During the interaction, Officer Barag observed Appellant

walk from his residence at 712 Caldwell into the target house of

721 Caldwell and back out. When Officer Barag asked how much

longer it would be, Appellant, texted him that he “was going to

get it now.” Shortly thereafter, Officer Barag observed Appellant

walk out of the target house with Marcus Dennis and get into a

white Nissan Armada[b] and drive away. Shortly thereafter,

Appellant arrived back at 712 Caldwell in the same white Nissan

Armada.

[b]

Prior to the day in question, Officer Barag had the

occasion to see Appellant driving the white Nissan

[A]rmada several times, as it was registered to his

girlfriend and then not again after March 13th.

At this point, Appellant was speaking with Officer Barag on

the phone when Marcus Dennis got on the phone and asked if he

wanted marijuana instead, to which Officer Barag said no. Then,

Appellant and Marcus Dennis exited 712 Caldwell and went into

the target house, 721 Caldwell. Prior to that day, Officer Barag

observed Appellant and Marcus Dennis together several times on

Caldwell Street.[]

At approximately 4:00 [] p.m., Officer Barag advised his

narcotics unit to proceed into the area by way of a private

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channel that cannot be picked up on scanners. When the unit

arrived thirty seconds later, they made entry into the front of

721 Caldwell, and Officer Barag observed Appellant and Marcus

Dennis run out of the rear side door which exits off the kitchen

of the home; Appellant ran across the street and into his 712

residence. Officer Barag advised the other office[r]s that

Appellant had fled into his residence across the street.

Officer Barag left his surveillance post and went into the

target house, 721 Caldwell Street. Inside the kitchen, Officer

Barag observed a black century safe, already open, that

contained numerous new and unused wax paper sleeves

commonly used to package heroin. Officer Barag was aware of

the bags because of his capacity as an undercover officer, he

sees heroin packaged all of the time and has made arrest or

dealt with heroin in these specific bags hundreds of times. In

addition to the bags, there was also a stamping kit with various

stamps and [inkpads], which was also indicative of the drug

trade because Officer Barag knew that once placed in a bag,

drugs are then stamped so that the product can be branded and

separated from the rest. There was also a bowl containing

heroin residue, a tile containing heroin residue underneath the

safe. The used bags were stamped with a red smiley face; a red

[inkpad] and a smiley face stamp were among the stamps

located.

After locating the items, Officer Barag went to assist

Officer William Murphy, a fellow officer with the canine unit of

the Chester Police Department who had initially gone to the rear

of the residence. Officer Murphy has been employed as a

patrolman for Chester City Police Department for the past

sixteen years, and has been an officer for a total of twenty-five

years. Officer Murphy and his canine partner tracked Marcus

Dennis to an abandoned house a few houses to the left from the

front of 721 Caldwell. Marcus Dennis was located in the

basement of the abandoned and dilapidated house. As Marcus

Dennis came up from the basement, Officer Barag went down

and observed four bags of heroin, each bag containing two

smaller bags, making it eight total bags of heroin marked with a

red smiley face stamp. The basement itself was dirty and

partially frozen; yet the bags were in mint condition.

While Officer Barag was securing Marcus Dennis, other

officers went across the street in order to locate Appellant.

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Sergeant James Nolan, a sergeant in the Narcotics Division, and

who has been with the Department for nineteen years, was also

working on March 13th. Sergeant Nolan assisted in executing the

warrant on 721 Caldwell and then made his way over to 712

Caldwell in order to locate Appellant. Other officers were let into

the residence by Appellant’s girlfriend who answered the door;

they related to Sergeant Nolan that Appellant was not in the

home. At that point, Sergeant Nolan searched a connecting

house that appeared to be abandoned, in total disarray.

Sergeant Nolan pushed in the front door, which revealed a

messy, dilapidated ruin of an old house. Sergeant Nolan and a

second officer walked up the rickety staircase to the second

floor. Sergeant Nolan could see that there was a third floor to

the residence but no staircase in order to get there; rather,

there was a hole that was closed off by relatively new drywall,

which didn't make sense to Sergeant Nolan as the rest of the

house was falling apart. Sergeant Nolan called for the fire

department to bring a ladder. As Sergeant Nolan was waiting,

he observed Appellant’s girlfriend leave 712 [Caldwell] and drive

away. When Sergeant Nolan was able to climb to the third floor

he could see that work had been done to it, there was some

newer drywall and was not as dilapidated as the rest of the

house. Sergeant Nolan looked out the back window, which

revealed that the second floor had a dark chocolate colored roof,

which had white sneaker like footprints in the dust leading to the

window of Appellant’s house. Sergeant Nolan came down from

the third floor and went over to Appellant’s residence but no one

answered the door.

That same day, Officer Barag had occasion to execute a

search warrant on Marcus Dennis’s vehicle, a Chevy brand car

that was parked in front of 721 Caldwell Street. Located within

the vehicle was court paperwork for [Appellant] for March 4,

2015.

After March 13th, Appellant was nowhere to be found in the

area, which was very different from Officer Barag’s prior

experiences in the area, always seeing Appellant on the 700

block of Caldwell. Despite Appellant’s best efforts to hide, he

was eventually picked up on a warrant in May.

A jury trial commenced on November 17, 201[5] and

concluded on November 18th. The Commonwealth proceeded

on: Count 1: [PWID]: Heroin; Count 2: Possession of a

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Controlled Substance: Heroin; Count 3: Possession of Drug

Paraphernalia; Count 4: Criminal Conspiracy to [PWID] with

Marcus Dennis; Count 5: Criminal Conspiracy to Possession of a

Controlled Substance with Marcus Dennis.

The Commonwealth presented testimony from Officer Marc

Barag, Officer William Murphy, and Sergeant James Nolan who

testified to the facts as outlined above.

The Commonwealth also presented testimony from Officer

Matthew Donohue, who is currently employed with the Chester

City Police Department Narcotics Division. Officer Donohue,

based on his extensive training and experience, was offered and

accepted as an expert in illegal drugs, drug distributions, and

drug investigations.[3] On March 13, 2015, Officer Donohue was

working in his capacity as a narcotics investigator and had

occasion to go to 721 Caldwell Street to help with the execution

of the search warrant. Once inside the home, Officer Donohue

observed a plethora of drug paraphernalia. Officer Donohue

explained to the jury the purpose of the wax bags that were

located and the stamps, and why the safe and bowl tested

positive for heroin residue. Most notably, Officer Donohue

explained why these items were possessed with the intent to

deliver and not for mere possession. Officer Donohue also

explained the purpose of a “trap house” and [] how 721 Caldwell

was being used as a trap house to package and sell drugs. In

conclusion, Officer Donohue opined that all facts taken into

consideration, the drugs were possessed with the intent to

distribute.

With the admission of several exhibits and stipulations, the

Commonwealth rested. The defense did not present any

evidence. After deliberating, the jury found Appellant guilty on

all five counts.

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3

During voir dire, defense counsel questioned Officer Donohue with respect

to his expertise “in the weight of heroin[.]” (N.T. Trial, 11/18/15, at 14-15).

After the trial court found “Officer Donohue to be an expert witness in the

field of illegal drugs, drug distribution and drug investigation[,]” defense

counsel then asked that Officer Donohue also be qualified as an expert in

“weight.” (Id. at 16). The Commonwealth requested a sidebar conference

and there is nothing further of record with respect to this issue. (See id.).

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On December 18, 2015, [the trial court] sentenced

Appellant [to an aggregate term of incarceration of not less than

seventy-two nor more than one hundred and forty-four] months

in a state correctional facility followed by [eleven] years of

probation.

On December 23, 2015, Appellant filed a motion to

reconsider sentence. After oral argument from the parties, [the

trial court] denied the motion on January [20], 201[6].

Appellant filed a timely notice of appeal.[4] [The trial court]

directed Appellant to file a 1925(b) statement, which counsel

requested additional time to file. [See Pa.R.A.P. 1925(b)]. [The

trial court] granted said request and the statement was timely

filed on March 16, 201[6]. [See id. On April 12, 2016, the trial

court issued an opinion. See Pa.R.A.P. 1925(a)].

(Trial Court Opinion, 4/12/16, at 1-8) (record citations omitted).

On appeal, Appellant raises the following questions for our review:

A. Did the trial court abuse its discretion by failing to qualify

Officer Donahue as an expert in illegal narcotics weight,

where the record supports his experience, knowledge, and

specialized skills and training would assist the trier of fact in

understanding the evidence or fact at issue?

B. Did the trial court abuse its discretion by failing to qualify

Officer Donahue as an expert in illegal narcotics weight thus

depriving [Appellant] of his right to compulsory process[?]

C. Was the evidence sufficient as a matter of law to convict

[Appellant] of the possessory offenses ([m]anufacture,

[d]elivery, or [p]ossession [w]ith [i]ntent to [m]anufacture or

[d]eliver; [i]ntentional [p]ossession of a [c]ontrolled

[s]ubstance; and [u]se/[p]ossession of [d]rug

[p]araphernalia), under the Controlled Substance, Drug,

Device, and Cosmetic Act, 35 P.S. § 780-113[?]

____________________________________________

4

While the notice of appeal is listed in the docket, we have been unable to

locate it in the certified record.

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D. Was the evidence sufficient as a matter of law to convict

[Appellant] of [c]riminal [c]onspiracy under 18 Pa.C.S.A. §

903?

E. Was the verdict against the weight of the evidence such to

shock one’s sense of justice?

(Appellant’s Brief, at 4).

Preliminarily, we note it is well-settled that:

[i]f an appellant has properly preserved an issue for

appellate review, the appellant must include in his or her brief a

“statement of the case” including a “statement of place of raising

or preservation of issues.” Pa.R.A.P. 2117(c). This information

must also be referenced in the argument portion of the appellate

brief. [See] Pa.R.A.P. 2119(e).

Commonwealth v. Baker, 963 A.2d 495, 502 n.5 (Pa. Super. 2008),

appeal denied, 992 A.2d 885 (Pa. 2010). Further, “it is not the responsibility

of this Court to scour the record to prove that an appellant has raised an

issue before the trial court, thereby preserving it for appellate review.” Id.

at 502 n.6 (citations omitted).

In this case, neither Appellant’s statement of the case nor the

argument section of his brief contains a specific “statement of place of

raising or preservation of [his] issues” and it is not this Court’s responsibility

to scour the certified record, including the lengthy trial transcript, to prove

that Appellant preserved them. Pa.R.A.P. 2117(c); see Baker, supra at

502 n.5, n.6; (Appellant’s Brief, at 5-9, 14-33). Accordingly, Appellant’s

first, second, and fifth issues are waived on this basis. See Baker, supra at

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502 n.5, n.6. Nonetheless, we will review their merits to the extent it is

possible to do so.

In his first and second issues,5 Appellant challenges the trial court’s

alleged refusal to qualify Officer Donohue as an expert in narcotics weight.

For the reasons discussed below, we find Appellant waived these issues.

We briefly note:

[o]ur standard of review in cases involving the admission of

expert testimony is broad: Generally speaking, the admission of

expert testimony is a matter left largely to the discretion of the

trial court, and its rulings thereon will not be reversed absent an

abuse of discretion. An expert’s testimony is admissible when it

is based on facts of record and will not cause confusion or

prejudice.

Commonwealth v. Watson, 945 A.2d 174, 176 (Pa. Super. 2008)

(quotation marks and citations omitted).

However, we observe that “[i]t is an appellant’s duty to ensure that

the certified record is complete for purposes of review.” Commonwealth v.

Reed, 971 A.2d 1216, 1219 (Pa. 2009) (citation omitted). “[A]n appellate

court cannot consider anything which is not part of the record in the case. . .

____________________________________________

5

Appellant addresses his first and second questions under a single heading

in his brief, contrary to our rules of appellate procedure. (See Appellant’s

Brief, at 14-22); see also Pa.R.A.P. 2119(a) (“The argument shall be

divided into as many parts as there are questions to be

argued[.]”). Nonetheless, we will address his issues because this

discrepancy does not hamper our review. See Donahue v. Fed. Express

Corp., 753 A.2d 238, 241 n.3 (Pa. Super. 2000).

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. because for purposes of appellate review, what is not of record does not

exist.” Commonwealth v. Johnson, 33 A.3d 122, 126 n.6 (Pa. Super.

2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citations and internal

quotation marks omitted).

In the instant matter, as discussed above, there is little information

contained in the record with respect to these issues. During cross-

examination of Officer Donohue with respect to qualifications, Appellant

briefly cross-examined him regarding his experience with narcotics weight.

(See N.T. Trial, 11/18/15, at 14-15). After the trial court qualified Officer

Donohue as an expert in “illegal drugs, drug distribution and drug

investigation[,]” defense counsel also requested that he be qualified as an

expert on “weight as well.” (Id. at 16). The Commonwealth then requested

a sidebar conference. (See id.). Following the conference, the trial court

reiterated its previous statement with respect to Officer Donohue’s

expertise. (See id.). There is nothing further of record with respect to

these issues.6 Thus, there is no record of the basis for Appellant’s request to

qualify Officer Donohue as an expert on weight.7 There is nothing that

____________________________________________

6

In his brief, Appellant admits that the sidebar conference was off the

record. (See Appellant’s Brief, at 18).

7

We note that, at trial, Appellant stipulated to the laboratory’s report

regarding the weight of the drugs. (See N.T. Trial, 11/18/15, at 45-46).

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demonstrates that he raised his claims of the exclusion of relevant evidence 8

and denial of the right to compulsory process below. The trial court’s ruling

on these issues is not of record and there is nothing that shows that

Appellant preserved them for our review.

Again, we note “our review is limited to those facts which are

contained in the certified record” and what is not contained in the certified

record “does not exist for purposes of our review.” Commonwealth v.

O'Black, 897 A.2d 1234, 1240 (Pa. Super. 2006) (citations omitted). Here,

because all discussions regarding the qualification of Officer Donohue as an

expert witness on drug weight are dehors the record, Appellant waived his

first and second issues on appeal.9 See O’Black, supra at 1240; see also

Reed, supra at 1219 (finding waiver and declining to review appellant’s

issue with an incomplete record); Johnson, supra at 126 (declining to

reach merits of appellant’s issue where it was deemed waived);

Commonwealth v. Rovinski, 704 A.2d 1068, 1073 (Pa. Super. 1997),

____________________________________________

8

We have thoroughly reviewed Appellant’s brief on this issue and it is not

clear, given that Appellant did not challenge the weight of the drugs as

found by the laboratory report, why he needed the trial court to qualify

Officer Donohue as an expert on weight. It is also not clear why he believed

Officer Donohue’s testimony on weight would benefit him. (See Appellant’s

Brief, at 14-22).

9

We note that, “[w]here portions of a proceeding are unrecorded,

appellant’s burden to supply a record may be satisfied through the

statement in absence of transcript procedures.” Rovinski, infra at 1073

(citing Pa.R.A.P. 1923). The record reflects that Appellant made no attempt

to comply with the requirements of Rule 1923.

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appeal denied, 723 A.2d 1024 (Pa. 1998) (waiving appellant’s claim of

counsel’s ineffective assistance based on his opening statement where he

failed to provide transcript of statement in certified record). Accordingly,

Appellant waived his first two issues.

In his third and fourth issues, Appellant claims the evidence was

insufficient to sustain his conviction. We disagree.

Our standard of review for sufficiency of the evidence claims is well

settled:

We must determine whether the evidence admitted at trial,

and all reasonable inferences drawn therefrom, when viewed

in a light most favorable to the Commonwealth as verdict

winner, support the conviction beyond a reasonable doubt.

Where there is sufficient evidence to enable the trier of fact to

find every element of the crime has been established beyond a

reasonable doubt, the sufficiency of the evidence claim must fail.

The evidence established at trial need not preclude every

possibility of innocence and the fact-finder is free to believe all,

part, or none of the evidence presented. It is not within the

province of this Court to re-weigh the evidence and substitute

our judgment for that of the fact-finder. The Commonwealth’s

burden may be met by wholly circumstantial evidence and any

doubt about the defendant’s guilt is to be resolved by the fact

finder unless the evidence is so weak and inconclusive that, as a

matter of law, no probability of fact can be drawn from the

combined circumstances.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citation

omitted) (emphasis added).

Appellant challenges the sufficiency of the evidence with respect to his

conviction for PWID, possession of a controlled substance, possession of

drug paraphernalia, and criminal conspiracy. Initially, we note that most of

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Appellant’s argument disregards our standard of review, which requires that

we view the evidence in a light most favorable to the Commonwealth as

verdict winner, because Appellant only discusses the expert testimony of

Officer Donohue and completely ignores the testimony of the other police

officers involved in the investigation. (See Appellant’s Brief, at 24-26).

Further, Appellant overlooks the fact that this Court does not re-weigh the

evidence nor do we engage in credibility determinations. (See id.).

We review a challenge to the sufficiency of the evidence underlying a

conviction for possession of a controlled substance and PWID under the

following standards. Evidence is sufficient to support a conviction for

possession of a controlled substance if the Commonwealth shows that the

defendant, “knowingly or intentionally possessed a controlled or counterfeit

substance[.]” 35 P.S. § 780-113(a)(16). For the evidence to be sufficient

to sustain a conviction for PWID, the Commonwealth must prove both that

Appellant possessed the controlled substance and that he intended to deliver

the controlled substance. See Commonwealth v. Bostick, 958 A.2d 543,

560 (Pa. Super. 2008), appeal denied, 987 A.2d 158 (Pa. 2009). All the

facts and circumstances surrounding the possession are relevant to this

inquiry. See id. In particular, relevant factors include, but are not limited

to, “the particular method of packaging, the form of the drug, and the

behavior of the defendant.” Commonwealth v. Goodwin, 928 A.2d 287,

292 (Pa. Super. 2007) (citations omitted). Further, we can infer the intent

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to deliver from the possession of a large quantity of the controlled

substance. See Bostick, supra at 560.

Because the police did not find drugs on Appellant’s person, the

Commonwealth was required to establish that he constructively possessed

them. This Court has stated that:

[c]onstructive possession requires proof of the ability to exercise

conscious dominion over the substance, the power to control the

contraband, and the intent to exercise such control.

Constructive possession may be established by the totality of the

circumstances. We have held that circumstantial evidence is

reviewed by the same standard as direct evidence — a decision

by the trial court will be affirmed so long as the combination of

the evidence links the accused to the crime beyond a reasonable

doubt.

Commonwealth v. Bricker, 882 A.2d 1008, 1014 (Pa. Super. 2005)

(citations and quotation marks omitted).

Appellant also claims that the evidence was insufficient to sustain his

conviction for possession of drug paraphernalia. Section 780-113(a)(32) of

The Controlled Substance, Drug, Device and Cosmetic Act prohibits the

following acts:

The use of, or possession with intent to use, drug paraphernalia

for the purpose of planting, propagating, cultivating, growing,

harvesting, manufacturing, compounding, converting, producing,

processing, preparing, testing, analyzing, packing, repacking,

storing, containing, concealing, ingesting, inhaling or otherwise

introducing into the human body a controlled substance in

violation of this act.

35 P.S. § 780-113(a)(32).

Further,

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[i]n determining whether an object is drug

paraphernalia, a court or other authority should

consider, in addition to all other logically relevant

factors, statements by an owner or by anyone in

control of the object concerning its use, prior

convictions, if any, of an owner, or of anyone in

control of the object, under any State or Federal law

relating to any controlled substance, the proximity

of the object in time and space, to a direct

violation of this act, the proximity of the object

to controlled substances, the existence of any

residue of controlled substances on the object,

. . . the existence and scope of legitimate uses for

the object in the community, and expert testimony

concerning its use.

To sustain a conviction for possession of drug

paraphernalia the Commonwealth must establish that items

possessed by defendant were used or intended to be used with a

controlled substance so as to constitute drug paraphernalia and

this burden may be met by Commonwealth through

circumstantial evidence.

Commonwealth v. Little, 879 A.2d 293, 299-300 (Pa. Super. 2005),

appeal denied, 890 A.2d 1057 (Pa. 2005) (citations omitted, emphasis in

original).

Lastly, Appellant challenges the sufficiency of the evidence underlying

his conviction for criminal conspiracy. (See Appellant’s Brief, at 27-30).

The crime of conspiracy is set forth at 18 Pa.C.S.A. § 903, which provides, in

relevant part:

(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

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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.A. § 903(a). Thus, to sustain a conviction for conspiracy, the

Commonwealth must prove 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.

Circumstantial evidence may provide proof of the conspiracy. 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.

Commonwealth v. Jones, 874 A.2d 108, 121 (Pa. Super. 2005) (citations

and some quotation marks omitted). When determining whether the

evidence was sufficient to support a conviction for conspiracy, we consider

the following factors: (1) an association between alleged conspirators; (2)

knowledge of the commission of the crime; (3) presence at the scene of the

crime; and (4) in some situations, participation in the object of the

conspiracy. See Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa.

Super. 2002), appeal denied, 805 A.2d 521 (Pa. 2002). Each co-conspirator

is liable for the acts of the other co-conspirators. See Commonwealth v.

King, 990 A.2d 1172, 1178 (Pa. Super. 2010), appeal denied, 53 A.3d 50

(Pa. 2012).

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Here, the record reflects that Officer Barag conducted an undercover

investigation into the sale of drugs on the 700 block of Caldwell Street.

(See N.T. Trial, 11/17/15, at 31-32). The investigation focused on the

house at 721 Caldwell Street, owned by Appellant’s mother. (See id. at 32,

70). Officer Barag texted a known telephone number seeking to purchase

heroin. (See id. at 32). A few moments later, Officer Barag received a

response; he recognized Appellant’s voice from prior contacts. (See id. at

34-35). Officer Barag also observed an individual he knew to be Appellant

talking on the phone and responding to texts sent by him. (See id. at 36-

39). During the conversation, Officer Barag observed Appellant walking

between his residence at 712 Caldwell and 721 Caldwell. (See id. at 39).

After some negotiation, Appellant agreed to sell Officer Barag eight

bags of heroin for sixty dollars, so long as Officer Barag could wait twenty

minutes. (See id. at 36-37). When twenty minutes elapsed, the text and

phone exchanges continued between Appellant and Officer Barag. (See id.

at 40-42). Appellant assured Officer Barag that he was going to get the

heroin and Officer Barag observed Appellant and Marcus Dennis drive away

together in a car owned by Appellant’s girlfriend. (See id. at 40-42, 56-57).

Officer Barag had seen Appellant drive that car on various past occasions

and had observed Appellant and Marcus Dennis together in the past. (See

id. at 56, 59). A few minutes later, during another telephone conversation,

Marcus Dennis joined in and asked if Officer Barag would be willing to

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purchase marijuana rather than heroin. (See id. at 41). Officer Barag

declined and then observed Appellant and Marcus Dennis enter 721 Caldwell.

(See id. at 42).

The police then entered the residence, and Appellant and Marcus

Dennis fled out a side door. (See id. at 43-45). The police discovered an

open safe containing unused wax paper sleeves, commonly used in heroin

packaging, a stamping kit with various ink stamps, including a red smiley

face, inkpads, a bowl containing heroin residue, and a tile containing heroin

residue. (See id. at 45-49). There were no indicia of personal use in the

house. (See N.T. Trial, 11/18/15, at 19-20).

The police located Marcus Dennis hiding in the basement of an

abandoned house a few doors down from 721 Caldwell. (See N.T. Trial,

11/17/15 at 52-54). The basement of the house was filthy and frozen;

however, the police found four clean bags of heroin, each bag containing two

smaller bags, all marked with a red smiley face stamp. (See id. at 52-54,

183-90). When the police searched a car rented by Marcus Dennis, they

found legal paperwork belonging to Appellant. (See id. at 57-58).

In total, the police found eights bags of heroin, as well as heroin

residue on the tile and bowl. They found no indicia that the drugs were for

personal use but rather found materials commonly used for packaging drugs.

The drugs found with Marcus Dennis in the basement were stamped with

one of the stamps found in the safe. Appellant’s mother owned the house at

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721 Caldwell, the police observed both men enter and depart the residence.

Both men participated in the conversation with Officer Barag about

purchasing heroin. Based on the packaging and amount of the drugs, the

absence of paraphernalia for personal consumption, the Commonwealth’s

expert concluded that the confiscated drugs were possessed with the intent

to deliver and not for personal use. (See N.T. Trial, 11/18/15, at 25). This

evidence was more than sufficient to sustain Appellant’s conviction. See,

e.g., Commonwealth v. Macolino, 469 A.2d 132, 136 (Pa. 1983) (holding

presence of cocaine and drug paraphernalia in room occupied by both

husband and wife sufficient to show constructive possession by either

spouse); Commonwealth v. Petteway, 847 A.2d 713, 716 (Pa. Super.

2004) (finding evidence sufficient to establish constructive possession even

though some of the drugs, weapons, and paraphernalia were found

throughout house, where defendant was in house where drugs were

discovered and defendant had weapon and drug paraphernalia in close

proximity to his person); Commonwealth v. Torres, 617 A.2d 812, 815-16

(Pa. Super. 1992), appeal denied, 629 A.2d 1379 (Pa. 1993) (holding

evidence sufficient to sustain conviction for possession of drug paraphernalia

where three unopened boxes of plastic sandwich bags were found next to

packets of crack cocaine); Commonwealth v. Potter, 504 A.2d 243, 246

(Pa. Super. 1986) (evidence was sufficient to sustain conviction for

possession of drug paraphernalia where recovered items had commonly

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recognized drug-related function). Appellant’s challenge to the sufficiency of

the evidence underlying his conviction for possession of a controlled

substance, PWID, and possession of drug paraphernalia lacks merit.

Moreover, the evidence demonstrated all four factors necessary to

sustain a conviction for criminal conspiracy. Appellant and Marcus Dennis

were together at 721 Caldwell street and both participated in the telephone

conversations about purchasing heroin. They drove off together to get the

heroin. When the police entered 721 Caldwell both Appellant and Marcus

Dennis fled the scene. (See N.T. Trial, 11/17/15 at 43). This evidence was

sufficient to establish criminal conspiracy. See Commonwealth v. Gibson,

668 A.2d 552, 555 (Pa. Super. 1995) (holding that appellant’s presence with

co-conspirator during entire criminal episode proved conspiracy);

Commonwealth v. Cooke, 492 A.2d 63, 68 (Pa. Super. 1985) (holding

evidence sufficient to sustain conviction of conspiracy where appellant was

present at scene, strongly associated with co-conspirator and personally

participated in crime). Appellant’s claim that the evidence was insufficient to

sustain his conviction for conspiracy lacks merit.

In his final claim, Appellant challenges the weight of the evidence.

However, Appellant has not preserved this claim for our review.

We have long held that this Court cannot consider, in the first

instance, a claim that the verdict is against the weight of the evidence. See

Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa. Super. 2003). Here,

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while Appellant did file a post-sentence motion, he challenged the

discretionary aspects of sentence, not the weight of the evidence. (See

Appellant’s Motion to Reconsider Sentence, 12/23/15, at unnumbered pages

1-2). Thus, the issue is not preserved for our review. See Commonwealth

v. Burkett, 830 A.2d 1034, 1036 (Pa. Super. 2003).

Moreover, even if we were to address the merits of the weight of the

evidence claim, it would fail.

Our scope and standard of review of a weight of the evidence claim is

as follows:

The finder of fact is the exclusive judge of the weight of

the evidence as the fact finder is free to believe all, part, or none

of the evidence presented and determines the credibility of the

witnesses.

As an appellate court, we cannot substitute our judgment

for that of the finder of fact. Therefore, we will reverse a jury’s

verdict and grant a new trial only where the verdict is so

contrary to the evidence as to shock one’s sense of justice. A

verdict is said to be contrary to the evidence such that it shocks

one’s sense of justice when the figure of Justice totters on her

pedestal, or when the jury’s verdict, at the time of its rendition,

causes the trial judge to lose his breath, temporarily, and causes

him to almost fall from the bench, then it is truly shocking to the

judicial conscience.

Furthermore, where the trial court has ruled on the weight

claim below, an appellate court’s role is not to consider the

underlying question of whether the verdict is against the weight

of the evidence. Rather, appellate review is limited to whether

the trial court palpably abused its discretion in ruling on the

weight claim.

Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en

banc) (citation and internal quotation marks omitted). “Thus, the trial

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court’s denial of a motion for a new trial based on a weight of the evidence

claim is the least assailable of its rulings.” Commonwealth v. Diggs, 949

A.2d 873, 879-80 (Pa. 2008), cert. denied, 556 U.S. 1106 (2009) (citation

omitted).

In its Rule 1925(a) opinion, the trial court explained that there was not

“a scintilla of evidence” to support Appellant’s contention that Officer Barag’s

testimony was not credible because he “made up Appellant’s involvement in

order to get a promotion[.]” (Trial Ct. Op., at 15). It further noted that the

“jury was free to believe all or part of Officer Barag’s testimony, which the

jury clearly determined was credible.” (Id.). It concluded, “[t]here is

nothing about the verdict, or any of the charges, that is contrary to evidence

that it would shock one’s sense of justice.” (Id.). We agree. “[I]t is for the

fact-finder to make credibility determinations, and the finder of fact may

believe all, part, or none of a witness’s testimony.” Commonwealth v.

Lee, 956 A.2d 1024, 1029 (Pa. Super. 2008), appeal denied, 964 A.2d 894

(Pa. 2009) (citation omitted). This Court cannot substitute our judgment for

that of the trier of fact. See Commonwealth v. Lyons, 79 A.3d 1053,

1067 (Pa. 2013), cert. denied, 134 S.Ct. 1792 (2014). This issue does not

merit relief.

Appellant’s issues are either waived or lack merit. Thus, we affirm the

judgment of sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/27/2017

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