Com. v. Dalessio, K. ( 2016 )

J-S82038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KELLY MARIE DALESSIO,
Appellant No. 866 MDA 2016
Appeal from the Judgment of Sentence April 27, 2016
in the Court of Common Pleas of Schuylkill County
Criminal Division at No.: CP-54-CR-0000165-2015
BEFORE: OTT, J., DUBOW, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 06, 2016
Appellant, Kelly Marie Dalessio, appeals from the judgment of
sentence imposed following her non-jury conviction of conspiracy to deliver a
controlled substance, possession with intent to deliver a controlled substance
(PWID), possession of drug paraphernalia, and possession of a controlled
substance.1 Specifically, Appellant challenges the sufficiency of the evidence
to support her conspiracy and PWID convictions. We affirm.
The trial court aptly set forth the facts of this case in its June 17, 2016
opinion, as follows.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 903(a)(1); 35 P.S. §§ 780-113(a)(30), (32), and (16),
respectively.
J-S82038-16
On May 1, 2014, members of the Tamaqua Police
Department and Schuylkill County Drug Task Force set up and
conducted a controlled buy of cocaine in Tamaqua Borough,
Schuylkill County. Although the quoted purchase price was
[eighty dollars], the confidential informant was given $100.00 in
marked money and purchased cocaine from [Appellant’s]
daughter, Ashley Weirich, on a street in the borough. Police
were watching the entire time as Weirich left the home where
she resided, which was rented to [Appellant], met and dealt with
the informant and returned to the home. Forty minutes later,
police searched the residence pursuant to a warrant. No one
beside Weirich had left or entered the residence between the
time she exited to meet the informant and the search.
Upon arriving, police announced their identity and yelled
“search warrant” numerous times at the door to the residence.
After waiting some[]time for someone to answer the door, police
entered and found Weirich in the first floor living room with a
child. Sergeant Duane Frederick’s assignment was to secure the
second floor of the residence. As he was ascending the stairs,
he called “police, search warrant” numerous times. Frederick
heard water running in a toilet and the handle to the toilet
jiggling as if someone were attempting to flush the toilet after it
had flushed but before the tank had refilled. He told the
occupant of the bathroom, who was [Appellant], to exit. She
responded by saying she would “be out soon.” After Frederick
said he would kick in the door, [Appellant] exited.
When Frederick entered the bathroom, he saw a portion of
a plastic baggie spinning in the toilet bowl. The bowl was coated
with a thick layer of a white substance. The substance was later
removed by police with a paper towel. A field test of the
substance indicated a positive result for the presence of cocaine.
A wastebasket by the toilet contained another baggie with
cocaine, a cut baggie with cocaine residue, a spoon with residue
and a digital scale with residue. While the substance removed
from the toilet was not sent to a laboratory for examination, the
baggies in the wastebasket tested positive for the presence of
cocaine in an analysis by a forensic scientist. Police found many
corner ends of cut baggies used to package illegal controlled
substances, the remaining portions of baggies after the ends had
been removed[,] and a box of baggies on top of the bed in the
room occupied by [Appellant]. Additionally, the bedroom
contained a video monitor exhibiting outside views of the areas
-2-
J-S82038-16
by the residence’s entrances. Police also found many cut
corners of plastic baggies together with uncut baggies in the
kitchen.
Tamaqua Police Chief Richard Weaver, qualified as an
expert in drug law investigation, identification, packaging and
distribution, opined that the digital scale, baggies, cut corners of
baggies, spoon and excessive residue in the toilet were
indicative of a person being in the business of selling drugs. No
evidence indicating simple personal use of the drug was located
in the home.
The only people in the home at the time of the search were
[Appellant], Weirich and the young child. Upon questioning,
Weirich provided police [twenty dollars] of the buy money
utilized in the cocaine transaction and claimed that she did not
know where the rest of the money was. [Appellant], who had
$924.00 in her wallet, claimed that she did not know what police
were talking about when they asked her where the buy money
was. When told that police would “tear the house apart” to look
for the money, [Appellant] then said “here” and removed [sixty
dollars] from a pocket and placed the money─two ten and two
twenty dollar bills─on the kitchen table. Police identified the
serial numbers of the money as having been utilized in the drug
buy because they had documented the information prior to
providing the money to the confidential informant to purchase
the cocaine.
(Trial Court Opinion, 6/17/16, at 3-5) (footnotes omitted).
At the conclusion of Appellant’s February 5, 2016 bench trial, the court
convicted her of the previously stated charges. On April 27, 2016, the court
sentenced Appellant to an aggregate term of incarceration of not less than
-3-
J-S82038-16
three nor more than six years, with an RRRI2 minimum sentence of twenty-
seven months. Appellant timely appealed.3
Appellant raises two issues for this Court’s review.
A. Whether the evidence presented by the Commonwealth
was sufficient to support a verdict of guilty on the charge of
[PWID]?
B. Whether the evidence presented by the Commonwealth
was sufficient to support a verdict of guilty on the charge of
[c]onspiracy to [commit PWID]?
(Appellant’s Brief, at 4).
In Appellant’s issues, she challenges the sufficiency of the evidence to
support her PWID and conspiracy convictions. (See id. at 9-24).
Appellant’s issues are waived and would lack merit, even if not waived.
It is well-settled that:
when challenging the sufficiency of the evidence on appeal, the
Appellant’s 1925 statement must “specify the element or
elements upon which the evidence was insufficient” in order to
preserve the issue for appeal. [Commonwealth v.] Williams,
959 A.2d [1252,] 1257 [(Pa. Super. 2008)] ([quotation
omitted]). . . . Here, Appellant . . . failed to specify which
elements he was challenging in his 1925 statement . . . . While
the trial court did address the topic of sufficiency in its opinion,
we have held that this is “of no moment to our analysis because
we apply Pa.R.A.P. 1925(b) in a predictable, uniform fashion, not
in a selective manner dependent on an appellee’s argument or a
____________________________________________
2
Recidivism Risk Reduction Incentive, 61 Pa.C.S.A. §§ 4501-4512.
3
Pursuant to the court’s order, Appellant filed a timely statement of errors
complained of on appeal on June 8, 2016. See Pa.R.A.P. 1925(b). The
court filed an opinion on June 17, 2016. See Pa.R.A.P. 1925(a).
-4-
J-S82038-16
trial court’s choice to address an unpreserved claim.” Id. at
1257 ([quotation omitted]).
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009), appeal
denied, 3 A.3d 670 (Pa. 2010).
In the case before us, Appellant’s Rule 1925(b) statement does not
identify which element or elements of PWID and conspiracy the
Commonwealth allegedly failed to prove. (See Statement of Matters
Complained of on Appeal, 6/08/16, at 1). Specifically, her statement merely
claims that “[t]he evidence presented by the Commonwealth was insufficient
to support a verdict of guilty on the charge of [PWID] . . . [and c]onspiracy .
. . .” (Id.). Accordingly, because she fails to identify which specific
elements the Commonwealth allegedly failed to prove, Appellant’s challenge
to the sufficiency of the evidence is waived. See Gibbs, supra at 281.
Moreover, Appellant’s issues would lack merit.
Our standard of review of a challenge to the sufficiency of the evidence
is well-settled:
In reviewing sufficiency of evidence claims, we 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 circumstantial
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
-5-
J-S82038-16
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) (citations omitted).
In her first issue, Appellant claims that the Commonwealth failed to
prove PWID because it “failed to present any evidence that [she] actually
possessed any cocaine,” “that she knew that drugs were present in her
home,” or that she “intend[ed] to deliver” them. (Appellant’s Brief, at 11,
15, 17). We disagree.
Pursuant to section 780-113(a)(30) of The Controlled Substance,
Drug, Device, and Cosmetic Act, “the manufacture, delivery, or possession
with intent to manufacture or deliver, a controlled substance by a person not
registered under this act,” is prohibited. 35 P.S. § 780-113(a)(30).
To sustain a conviction for PWID, the Commonwealth must
prove both the possession of the controlled substance and the
intent to deliver the controlled substance. It is well settled that
[i]n narcotics possession cases, the Commonwealth may meet
its burden by showing actual, constructive, or joint constructive
possession of the contraband. . . .
This Court has defined constructive possession
as follows: Constructive possession is a legal fiction,
a pragmatic construct to deal with the realities of
criminal law enforcement. Constructive possession is
an inference arising from a set of facts that
possession of the contraband was more likely than
not. We have defined constructive possession as
“conscious dominion.” We subsequently defined
“conscious dominion” as “the power to control the
contraband and the intent to exercise that control.”
-6-
J-S82038-16
To aid application, we have held that constructive
possession may be established by the totality of the
circumstances.
* * *
With regard to the intent to deliver, we must examine the
facts and circumstances surrounding the possession. [T]he
intent to deliver may be inferred from possession of a large
quantity of controlled substances. It follows that possession of a
small amount of a controlled substance supports the conclusion
that there is an absence of intent to deliver. If the quantity of
the controlled substance is not dispositive as to the intent, the
court may look to other factors.
Other factors to consider when determining
whether a defendant intended to deliver a controlled
substance include the manner in which the controlled
substance was packaged, the behavior of the
defendant, the presence of drug paraphernalia, and .
. . [the] sums of cash found in possession of the
defendant. The final factor to be considered is
expert testimony. Expert opinion testimony is
admissible concerning whether the facts surrounding
the possession of controlled substances are
consistent with an intent to deliver rather than with
an intent to possess it for personal use.
Commonwealth v. Roberts, 133 A.3d 759, 767-68 (Pa. Super. 2016),
appeal denied, ____ A.3d ____ (Pa. filed Sept. 6, 2016) (citations and most
quotation marks omitted).
In this case, the police executed a search warrant on Appellant’s home
approximately forty minutes after her daughter left the residence, engaged
in a controlled buy with a confidential informant, and then returned to the
dwelling. (See N.T. Trial, 2/05/16, at 59, 128-31). While securing the
home, Sergeant Frederick heard a toilet flushing behind a closed door and
-7-
J-S82038-16
ordered the room’s occupant to come outside. (See id. at 43). When
Appellant exited the room, Sergeant Frederick “could see a piece of plastic
with a white substance in it just spinning around on the top of the water.”
(Id. at 44; see also id. at 63). Also from the bathroom, police retrieved
three items with cocaine residue: another ripped off baggie, a spoon, and a
scale. (See id. at 66). In Appellant’s room, the police discovered “a box of
Ziploc baggies [and] multiple ends of baggies that were already cut off.”
(Id. at 70).
Chief Weaver, the Commonwealth’s expert in drug investigations,
identification, enforcement, packaging, and distribution, testified to a
reasonable degree of professional certainty that the items seized in the
home, combined with the “excessive” amount of cocaine left in the toilet
bowl after it flushed, and the lack of any paraphernalia for personal use,
“[a]bsolutely [indicated] someone dealing.” (Id. at 122, 142; see id. at
123-28). Finally, Chief Weaver observed that the $924.00 found in
Appellant’s wallet also signaled that she was in the narcotics trade. (See id.
at 141).
Viewing the foregoing evidence in the light most favorable to the
Commonwealth as verdict winner, we conclude that it demonstrates that
Appellant possessed cocaine in her home with the intent to distribute it.
See Roberts, supra at 767-68. Therefore, the evidence was sufficient to
-8-
J-S82038-16
support Appellant’s PWID conviction, and her first issue would lack merit,
even if not waived. See Moreno, supra at 136.
In her second claim, Appellant maintains that the evidence was
insufficient to support her conspiracy conviction. (See Appellant’s Brief, at
20-23). Specifically, she argues that the evidence failed to establish that
she was “an active participant in the criminal enterprise, or that there was
an agreement with Ashley to sell drugs.” (Id. at 21). We disagree.
Section 903 of the Crimes Code provides, in pertinent 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 conduct which constitutes
such crime or an attempt or solicitation to commit such crime[.]
* * *
(e) Overt act.─No person may be convicted of conspiracy to
commit a crime unless an overt act in pursuance of such
conspiracy is alleged and proved to have been done by him or by
a person with whom he conspired.
18 Pa.C.S.A. § 903(a)(1), (e).
To sustain a conviction for criminal conspiracy, the
Commonwealth must establish that the defendant (1) entered
into an agreement to commit or aid in an unlawful act with
another person or persons, (2) with a shared criminal intent and
(3) an overt act was done in furtherance of the conspiracy. This
overt act need not be committed by the defendant; it need only
be committed by a coconspirator. With respect to the
agreement element, we have explained:
The essence of a criminal conspiracy is a
common understanding, no matter how it came into
-9-
J-S82038-16
being, that a particular criminal objective be
accomplished. Therefore, a conviction for conspiracy
requires proof of the existence of a shared criminal
intent. 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. Thus, a conspiracy may be
inferred where it is demonstrated that the relation,
conduct, or circumstances of the parties, and the
overt acts of the co-conspirators sufficiently prove
the formation of a criminal confederation. The
conduct of the parties and the circumstances
surrounding their conduct may create a web of
evidence linking the accused to the alleged
conspiracy beyond a reasonable doubt.
Commonwealth v. Melvin, 103 A.3d 1, 42-43 (Pa. Super. 2014) (citations
and quotation marks omitted).
In the case sub judice, Appellant’s daughter, Ashley, sold cocaine to
the confidential informant approximately forty minutes before police
executed the search warrant of her home. (See N.T. Trial, 2/05/16, at 59,
128-31). When the police entered the home, Ashley was downstairs, and
Appellant was upstairs flushing cocaine down the toilet. (See id. at 43-44,
63, 124). The police recovered several items indicating the sale of cocaine
from the bathroom and Appellant’s bedroom. (See id. at 66, 70, 123-28).
Finally, Appellant had sixty-dollars of the pre-recorded buy money used by
the confidential informant to purchase cocaine from her daughter. (See id.
at 133-34).
Viewing the foregoing evidence in the light most favorable to the
Commonwealth, and after an independent review of the complete record, we
- 10 -
J-S82038-16
conclude that the evidence was sufficient to support Appellant’s conviction of
conspiracy to commit PWID. See Melvin, supra at 42-43; Moreno, supra
at 136. Appellant’s second issue would not merit relief, even if not waived.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/6/2016
- 11 -