Com. v. Preccia ( 2015 )


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  • J-S06002-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    KEVIN PRECCIA,
    Appellant                        No. 452 EDA 2013
    Appeal from the Judgment of Sentence Entered January 28, 2013
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0011678-2012
    BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
    MEMORANDUM BY BENDER, P.J.E.:                          FILED FEBRUARY 02, 2015
    Appellant, Kevin Preccia, appeals from the judgment of sentence of an
    aggregate term of three to six years’ incarceration, imposed after he was
    convicted of possession of a controlled substance, possession with intent to
    deliver a controlled substance (PWID), and conspiracy to commit PWID.
    Appellant    challenges     the   sufficiency   of   the   evidence   to   sustain   his
    convictions. We affirm.
    Appellant was charged with the above-stated offenses and proceeded
    to a nonjury trial on December 11, 2012.             At the close thereof, the court
    convicted Appellant of all offenses with which he was charged. On January
    28, 2013, he was sentenced to a term of three to six years’ imprisonment
    ____________________________________________
    *
    Former Justice specially assigned to the Superior Court.
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    for PWID, and a concurrent term of three to six years’ imprisonment for
    conspiracy to commit PWID.      His conviction for possession of a controlled
    substance merged with his PWID offense for sentencing purposes. Appellant
    filed a timely notice of appeal, as well as a timely Pa.R.A.P. 1925(b) concise
    statement of errors complained of on appeal.        Herein, he presents one
    question for our review:
    Did the trial court err when it found that there was sufficient
    evidence to prove beyond a reasonable doubt that Appellant …
    was guilty of the criminal offenses of [PWID], criminal conspiracy
    and knowing and intentional possession of a controlled
    substance?
    Appellant’s Brief at 2 (unnecessary capitalization omitted).
    To begin, we note our standard of review of a challenge to the
    sufficiency of the evidence:
    In reviewing a sufficiency of the evidence claim, 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
    elements of the offense. Commonwealth v. Moreno, 
    14 A.3d 133
     (Pa. Super. 2011). Additionally, we may not reweigh the
    evidence or substitute our own judgment for that of the fact
    finder. Commonwealth v. Hartzell, 
    988 A.2d 141
     (Pa. Super.
    2009). The evidence may be entirely circumstantial as long as it
    links the accused to the crime beyond a reasonable doubt.
    Moreno, 
    supra at 136
    .
    Commonwealth v. Koch, 
    39 A.3d 996
    , 1001 (Pa. Super. 2011).
    We will first address Appellant’s challenges to the sufficiency of the
    evidence to sustain his possession of a controlled substance and PWID
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    offenses.   In regard to both offenses, Appellant argues that the evidence
    failed to prove that he constructively possessed narcotics.
    Constructive possession requires proof of the ability to exercise
    conscious dominion over the substance, the power to control the
    contraband, and the intent to exercise such control.
    Commonwealth v. Petteway, 
    847 A.2d 713
    , 716 (Pa. Super.
    2004). Constructive possession may be established by the
    totality of the circumstances. Commonwealth v. Parker, 
    847 A.2d 745
    , 750 (Pa. Super. 2004). We have held that
    circumstantial evidence is reviewed by the same standard as
    direct evidence—a decision by the trial court will be affirmed “so
    long as the combination of the evidence links the accused to the
    crime beyond a reasonable doubt.” Commonwealth v.
    Johnson, 
    818 A.2d 514
    , 516 (Pa. Super. 2003) (citations
    omitted).
    Commonwealth v. Bricker, 
    882 A.2d 1008
    , 1014 (Pa. Super. 2005).
    In concluding that the evidence was sufficient to prove that Appellant
    constructively possessed drugs (and did so with the intent to deliver them),
    the trial court relied on the following facts, which Appellant does not dispute:
    The evidence established that on September 14[,] 2012,
    between approximately 8:00 p.m. to 9:00 p.m., Philadelphia
    Police conducted surveillance on the 3300 block of Mount Vernon
    Street in Philadelphia to investigate illegal narcotics activity.
    During the surveillance, Officer [Barry] Stewart testified that he
    observed two (2) males on location, one of the males was
    identified as [] Appellant, … and the second male was identified
    as [Jefferson] Young. [Appellant] … and Young were together
    and were standing in the street/sidewalk within a hand’s length
    from each other. Officer Stewart further observed [Appellant]
    and Young speaking with one another and engaging in
    conversations with the buyers involved in the observed drug
    transactions.
    Two (2) drug transactions took place during the
    surveillance.   The first transaction was observed at
    approximately 8:20 p.m. At that time, Officer Stewart saw a
    black male, later identified as Oral Bolten, approach …
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    [Appellant] and Young and engage them in a brief conversation.
    Mr. Bolten then gave an unknown quantity of United States
    currency to Appellant[]. After receiving the cash, [Appellant]
    walked across Mount Vernon [S]treet and towards the passenger
    side of a parked minivan and Young stayed on location with
    Bolten. A short time later, Appellant[] returned back to … Young
    and Bolten … and gave Bolten an unknown small object with a
    hand to hand motion. During the transaction, Young was seen
    looking around several times.          Officer Stewart relayed
    information to his back up officers and Bolten was stopped a
    short distance away from where the transaction took place.
    Police recovered three (3) blue heat sealed Ziplock packets from
    Bolten which tested positive for crack cocaine. In this first
    transaction, Appellant[] was the “seller-bank[,”] Young was the
    “lookout” and Bolten was the “buyer[.”]
    After the Bolton [sic] sale, Officer Stewart observed
    Appellant[] get into a gold color Buick and drive away and
    Stewart lost sight of him. During this time, Young remained at
    the location. [Appellant] returned about fifteen to twenty (15-
    20) minutes later and went back on location on the same side of
    the street as Young.
    Shortly after [Appellant’s] return, a second transaction
    took place at approximately 8:50 p.m.           In the second
    transaction, Officer Stewart observed a black female, later
    identified as Darnero Pembleton[,] approach … [Appellant] and
    Young and engage them in a brief conversation. Pembleton then
    gave an unknown quantity of United States currency to Young.
    During this transaction, Young walked across the street on the
    passenger side near the same minivan that Appellant had walked
    to during the first transaction and [Appellant] stayed with
    Pembleton.     A short time later, Young[] returned back to
    [Appellant] and Pembleton and gave Pembleton an unknown
    small object with a hand to hand motion. During the second
    transaction, [Appellant] was seen looking around several times.
    [Officer] Stewart again relayed information to his back up
    officers and Pembleton was stopped. Police recovered two (2)
    blue heat sealed Ziplock packets from Pemberton [sic] which
    tested positive for crack cocaine. In the second transaction,
    [Appellant] was the “lookout[,”] Young was the “seller” and
    Pemberton [sic] was the “buyer[.”]
    The drugs and packaging of the drugs that were recovered
    from Buyer-Bolton [sic] were the same color, shape and size as
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    the [drugs and] packaging of the drugs that were recovered
    from Buyer-Pemberton [sic].
    At approximately 9:00 p.m.[,] Officer Stewart observed
    Appellant[] begin counting an unknown quantity of United States
    currency. Flash information was given to [Officer] Stewart’s
    back[]up officers and [Appellant] and Young were arrested on
    location. Police recovered $441 from [Appellant’s] front pants
    pocket and $70 from Young.[1]         Officer Stewart identified
    [Appellant] and Young on location and later identified Bolton
    [sic] and Pemberton [sic] at police headquarters. No drugs were
    recovered from either [Appellant] or Young or the parked
    minivan near where [Appellant] and Young were seen going….
    Officer Stewart is an experienced narcotics officer and had been
    assigned to the Narcotics Strike Force for fourteen (14) years
    prior to this arrest.
    Trial Court Opinion (TCO), 5/7/13, at 2-4 (citations to the record omitted).
    Appellant argues that because no drugs were found near the minivan,
    or in his or Young’s actual possession, it was pure speculation to infer that
    Bolten and Pembleton acquired the drugs from Appellant and/or Young.
    Appellant’s argument disregards our standard of review. Namely, we must
    view the evidence in the light most favorable to the Commonwealth and
    accept all reasonable inferences that can be drawn therefrom.
    In addition, … 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.
    ____________________________________________
    1
    Regarding the denominations of the money recovered from Appellant,
    Officer Stewart testified “[i]t was $100 bill, one $50 bill, nine $20 bills, three
    $10 bills, five $5 bills, and 56 $1 bills.” N.T. Trial, 12/11/12, at 44.
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    Commonwealth v. Lambert, 
    795 A.2d 1010
    , 1014 (Pa. Super. 2002)
    (quoting Commonwealth v. Hennigan, 
    753 A.2d 245
    , 253 (Pa. Super.
    2000)).
    Applying these standards to the above-stated facts, it was reasonable
    for the trial court, as the fact-finder, to infer that Appellant accepted money
    from Bolten, retrieved packets of crack cocaine from near the minivan, and
    handed those drugs to Bolten.     Young then did the same with Pembleton,
    resulting in both Bolten’s and Pembleton’s possessing drugs in the exact
    same type of packaging. While neither Appellant nor Young possessed drugs
    at the time they were arrested, Appellant did have a large quantity of cash
    in small denominations on his person.       This fact, combined with Officer
    Stewart’s observations of the hand-to-hand transactions, were sufficient to
    prove that Appellant constructively possessed the drugs recovered in
    Bolten’s and Pembleton’s possession.       Thus, Appellant’s convictions for
    possession of a controlled substance and PWID must stand.
    Appellant next challenges his conviction for criminal conspiracy.
    A conviction for criminal conspiracy requires the trier of fact to
    find the following: (1) that the defendant intended to commit or
    aid in the commission of a criminal act; (2) that the defendant
    entered into an agreement with another, i.e., the co-conspirator,
    to engage in a crime; and (3) that the defendant or one or more
    of the other co-conspirators committed an overt act in
    furtherance of the agreed upon crime. See Commonwealth v.
    Murphy, 
    577 Pa. 275
    , 292, 
    844 A.2d 1228
    , 1238 (2004); see
    also, 18 [Pa.C.S.] § 903(a). “The essence of a criminal
    conspiracy ... is the agreement made between the co-
    conspirators.” Murphy, 
    577 Pa. at 292
    , 
    844 A.2d at 1238
    . The
    nature of the offense is such that more often than not there is no
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    direct evidence of the defendant's criminal intent or the
    conspiratorial  agreement.    See    
    id.
       “Consequently,    the
    defendant's intent as well as the agreement is almost always
    proven through circumstantial evidence, such as by the
    relations, conduct or circumstances of the parties or overt acts
    on the part of the co-conspirators.” 
    Id.
     (citation and internal
    quotation marks omitted); see also, Commonwealth v. Ruiz,
    
    819 A.2d 92
    , 97 (Pa. Super. 2003) (“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. Little, 
    879 A.2d 293
    , 298-299 (Pa. Super. 2005).
    Appellant’s entire argument regarding the sufficiency of the evidence
    to sustain his conspiracy conviction consists of the following two sentences:
    There was also insufficient evidence, circumstantial or direct,
    adduced at trial, to prove beyond a reasonable doubt that
    [Appellant] had a conspiracy or agreement with Mr. Young to
    possess cocaine with the intent to deliver it, even taking into
    account the “relations, conduct or circumstances” of these two
    individuals or “overt acts.” Most of the interaction between
    these two men involved merely standing together[] on the north
    side of the 3300 block of [Mount] Vernon Street.
    Appellant’s Brief at 12.
    Appellant’s argument is not only undeveloped, but it is unconvincing in
    light of the above-stated facts, which reasonably support the inference that
    Appellant and Young worked together to sell drugs to Bolten and Pembleton.
    Both men stood together on the street as Bolten and Pembleton approached.
    Appellant accepted money from Bolten and engaged in a hand-to-hand
    transaction with him, and seemingly acted as a lookout when Young did the
    same with Pembleton.        Both Bolten and Pembleton possessed drugs
    packaged in the exact same manner after their interactions with Appellant
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    and Young, and Appellant possessed a large quantity of cash in small
    denominations.    Based on these facts, it was reasonable for the court to
    infer that Appellant and Young intended, and agreed, to perpetrate the crime
    of PWID, and that they both committed overt acts in furtherance of that
    offense.   Accordingly, Appellant’s criminal conspiracy conviction also must
    stand.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/2/2015
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