Com. v. Evans, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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J-S40015-20

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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J-S40015-20

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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J-S40015-20

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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J-S40015-20

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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J-S40015-20

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