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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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