Com. v. Kozuch, M. ( 2017 )

J-S60010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL JOE KOZUCH, III,
Appellant No. 1805 WDA 2016
Appeal from the Judgment of Sentence October 31, 2016
In the Court of Common Pleas of Somerset County
Criminal Division at No(s): CP-56-CR-0000833-2015
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED OCTOBER 4, 2017
Appellant, Michael Joe Kozuch, III, appeals from the judgment of
sentence entered on October 31, 2016, following his jury trial convictions for
possession with intent to deliver a controlled substance (PWID), possession
of a controlled substance, and possession of drug paraphernalia. 1 We affirm.
We summarize the facts and procedural history of this case as follows.
The incident at issue took place on June 26, 2015 at Coalfield’s, a gas
station, market and diner, in Somerset County, Pennsylvania. Desiree
Fleegle was a server at Coalfield’s. Julie Phillip, a cashier at Coalfield’s,
worked three or four daily shifts per week with Fleegle. Phillip regularly
observed Fleegle’s drastic mood swings, poor eating habits, and frequent
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1 35 P.S. §§ 780-113(a)(30), 780-113(a)(16), and 780-113(a)(32),
respectively.
*Former Justice specially assigned to the Superior Court.
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breaks to go outside, to the basement, and to the men’s bathroom. 2 When
Fleegle began working at Coalfield’s in April of 2015, Phillip saw Appellant
almost every day that Fleegle worked.
Jeffrey Miele, owner and operator of Coalfield’s, observed Appellant
driving Fleegle daily to and from work in Fleegle’s car. According to Miele,
Appellant would come inside Coalfield’s, use the bathroom, and leave
without purchasing anything. Miele reviewed surveillance video after Phillip
reported her concerns about Fleegle’s behavior. In the surveillance videos,
Miele witnessed that when Fleegle started her shift, Appellant would come
into the store and go to the men’s bathroom. When Appellant left, Fleegle
would immediately go into the men’s bathroom.
On June 26, 2015, Miele observed Appellant driving Fleegle’s car with
an unknown man in the passenger seat. Miele watched and followed the
unknown man as he entered Coalfield’s. Phillip directed Miele to the men’s
bathroom. The unknown man exited the men’s restroom, avoided contact
with employees, and left the store without making a purchase. Miele,
suspicious of a drug delivery, went directly into the men’s bathroom, locked
the door, and began searching for narcotics. He found six stamp bags of a
substance, later identified as heroin, underneath the garbage can. When
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2 It was part of the servers’ job to make sure the men’s bathroom was
clean, so Phillip was not surprised when Fleegle entered the men’s restroom
on occasion.
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Miele confronted Fleegle, she grabbed her purse and tried to leave, but other
employees detained her and called police. Miele testified that Fleegle called
Appellant on her cellular phone and Fleegle eventually managed to flee the
store, but left her purse. Miele followed behind Fleegle in his automobile
and witnessed someone, driving Fleegle’s vehicle, pick her up less than a
mile from Coalfield’s.
When police arrived, Miele turned over the suspected narcotics and
Fleegle’s purse. After watching the surveillance video of the incident, the
police inventoried Fleegle’s purse, which contained an eyeglass case holding
two metal spoons, two syringes, and a cotton swab. Pennsylvania State
Police Trooper Matthew Montag went to Appellant’s residence where Fleegle
was sitting on the back porch. Her car was parked in the driveway. Fleegle
was unwilling to answer questions about the earlier incident and police
arrested her. Approximately an hour later, police interviewed Appellant who
denied involvement in the attempted delivery of narcotics. Appellant
claimed that he had been at his home babysitting Fleegle’s children. When
Appellant was told that he was observed driving away from the scene, he
became extremely nervous. Appellant admitted to police that he had driven
a man named Billy to Coalfield’s at Billy’s request. Appellant, however,
denied knowing Billy and claimed he had never driven him anywhere
previously. Police arrested Appellant and the Commonwealth charged him,
as an accomplice, with the aforementioned crimes.
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A jury convicted Appellant of all of the charges on August 18, 2016.
The trial court sentenced Appellant to concurrent sentences of one to two
years of incarceration for PWID, one year of probation for possession, and
one year of probation for possession of drug paraphernalia. This timely
appeal resulted.3
On appeal, Appellant presents the following issue for our review:
Whether the trial court erred by denying Appellant’s [m]otion for
[a]cquittal when the Commonwealth failed to prove all elements
of each crime?[4]
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3 On November 23, 2016, Appellant simultaneously filed a notice of appeal
and a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on March 21, 2017.
4 Ordinarily, when challenging the sufficiency of the evidence on appeal, an
appellant waives his claims when he fails to specify which elements of each
of the individual crimes were not sufficiently proven. See Commonwealth
v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (“[W]hen challenging the
sufficiency of the evidence on appeal, the [a]ppellant's 1925 statement must
‘specify the element or elements upon which the evidence was insufficient’ in
order to preserve the issue for appeal.”). In his sole issue presented on
appeal, as set forth above, Appellant did not specify what elements were not
established and generally challenged all of his convictions; however, upon
review of the certified record, Appellant’s Rule 1925(b) statement raised the
following issue:
1. Whether or not the [c]ourt erred as a matter of law or abused
its discretion by not granting [Appellant’s] [m]otion for
[a]cquittal when the Commonwealth presented no evidence to
prove that [Appellant] was in possession, distributed or was
otherwise a part of any drug transaction of the same.
Appellant’s Rule 1925(b) Statement, 11/23/2016, (unpaginated) at *1.
Appellant asserted that there was insufficient evidence that he possessed
(Footnote Continued Next Page)
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Appellant’s Brief at 1.
In sum, Appellant argues:
First, the Commonwealth failed to offer any evidence that []
Appellant intended on delivering drugs[.] [] Appellant was
charged as an accomplice, but the Commonwealth did not prove
that [] Appellant had any knowledge of the alleged crimes. []
Appellant did admit that he had dropped off the unknown male,
but for the Commonwealth to prove that [] Appellant was an
accomplice to the unknown male, the Commonwealth must first
prove that the unknown male had committed the underlying
crime. The Commonwealth did prove that the unknown male
was at the gas station on the day in question, but the
Commonwealth could not prove when the drugs arrived and by
whom the drugs arrived. The only evidence offered by the
Commonwealth was video of the day in question. There is no
testimony offered to show that the unknown male had ever been
to the gas station before or had allegedly made any prior deals.
As a result, the Commonwealth did not prove that the unknown
male had intent to commit a crime, and as such, failed to prove
that [] Appellant conspired to commit said crimes.
Second, [the] Commonwealth failed to offer any evidence that
showed that either [] Appellant or the unknown male were ever
in possession of said drugs. No drugs were found on []
Appellant or the unknown male.
Id. at 8-9.
We note our well-settled standard of review:
A motion for judgment of acquittal challenges the sufficiency of
the evidence to sustain a conviction on a particular charge, and
(Footnote Continued) _______________________
and/or delivered narcotics. These issues were preserved. However,
Appellant’s Rule 1925(b) statement failed to challenge elements related to
possession of paraphernalia and we find that aspect of Appellant’s current
claim waived. As such, we confine our review to Appellant’s convictions for
PWID and possession of narcotics and affirm Appellant’s judgment of
sentence for possession of paraphernalia.
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is granted only in cases in which the Commonwealth has failed
to carry its burden regarding that charge.
Commonwealth v. Richard, 150 A.3d 504, 514 (Pa. Super. 2016) (citation
omitted).
We examine a challenge to the sufficiency of the evidence to
determine
whether, when viewed in a light most favorable to the verdict
winner, the evidence at trial and all reasonable inferences
therefrom is sufficient for the trier of fact to find that each
element of the crimes charged is established beyond a
reasonable doubt. The Commonwealth may sustain its burden of
proving every element beyond a reasonable doubt by means of
wholly circumstantial evidence.
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. Any doubt
raised as to the accused's guilt is to be resolved by the
fact-finder. As an appellate court, we do not assess credibility
nor do we assign weight to any of the testimony of record.
Therefore, we will not disturb the verdict 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.
Commonwealth v. Von Evans, 163 A.3d 980, 983 (Pa. Super. 2017)
(citation omitted).
This Court has previously determined:
To convict a person of PWID, the Commonwealth must prove
beyond a reasonable doubt that the defendant possessed a
controlled substance and did so with the intent to deliver it. In
determining whether there is sufficient evidence to support a
PWID conviction, all facts and circumstances surrounding the
possession are relevant, and the Commonwealth may establish
the essential elements of the crime wholly by circumstantial
evidence. Factors to consider in determining whether the drugs
were possessed with the intent to deliver include the particular
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method of packaging, the form of the drug, and the behavior of
the defendant.
Commonwealth v. Bricker, 882 A.2d 1008, 1015 (Pa. Super. 2005)
(citations omitted). Simple possession of narcotics is defined as:
“[k]nowingly or intentionally possessing a controlled or counterfeit substance
by a person not registered[.]” 35 P.S. § 780-113(a)(16).
Moreover,
[i]n narcotics possession cases, the Commonwealth may meet
its burden by showing actual, constructive, or joint constructive
possession of the contraband. Actual possession is proven by
showing that the controlled substance was found on the
defendant's person. If the contraband is not discovered on the
defendant's person, the Commonwealth may satisfy its
evidentiary burden by proving that the defendant had
constructive possession of the drug.
Our Supreme Court has defined constructive possession as the
ability to exercise a conscious dominion over the illegal
substance: the power to control the contraband and the intent to
exercise that control. In the words of our Supreme Court,
constructive possession is a legal fiction, a pragmatic construct
to deal with the realities of criminal law enforcement. It is a
judicially created doctrine that enables law enforcement officials
to prosecute individuals in situations where the inference of
possession is strong, yet actual possession at the time of arrest
cannot be shown.
To find constructive possession, the power and intent to control
the contraband does not need to be exclusive to the defendant.
Our Supreme Court has recognized that constructive possession
may be found in one or more actors where the item at issue is in
an area of joint control and equal access. Nevertheless, where
more than one person has equal access to where drugs are
stored, presence alone in conjunction with such access will not
prove conscious dominion over the contraband. For the
Commonwealth to prove constructive possession where more
than one person has access to the contraband, the
Commonwealth must introduce evidence demonstrating either
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the defendant's participation in the drug related activity or
evidence connecting the defendant to the specific room or areas
where the drugs were kept. However, an intent to maintain a
conscious dominion may be inferred from the totality of the
circumstances and circumstantial evidence may be used to
establish a defendant's possession of drugs or contraband.
Commonwealth v. Vargas, 108 A.3d 858, 868–869 (Pa. Super. 2014) (en
banc) (internal citations and quotations omitted; original brackets and
ellipses omitted).
A person is an accomplice of another person in the commission of an
offense if:
(1) with the intent of promoting or facilitating the commission of
the offense, he:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other
person in planning or committing it; or
(2) his conduct is expressly declared by law to establish his
complicity.
(d) Culpability of accomplice.—When causing a particular result
is an element of an offense, an accomplice in the conduct
causing such result is an accomplice in the commission of that
offense, if he acts with the kind of culpability, if any, with
respect to that result that is sufficient for
the commission of the offense.
* * *
(g) Prosecution of accomplice only.--An accomplice may be
convicted on proof of the commission of the offense and of his
complicity therein, though the person claimed to have committed
the offense has not been prosecuted or convicted or has been
convicted of a different offense or degree of offense or has an
immunity to prosecution or conviction or has been acquitted.
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18 Pa.C.S.A. § 306(c)–(d), (g). “It is well-established [] that a defendant,
who was not a principal actor in committing the crime, may nevertheless be
liable for the crime if he was an accomplice of a principal actor.”
Commonwealth v. Murphy, 844 A.2d 1228, 1234, 577 Pa. 275, 285 (Pa.
2004), citing 18 Pa.C.S.A. § 306(g); Commonwealth v. Bradley, 392 A.2d
688, 690 (Pa. 1978) (the actor and his accomplice share equal responsibility
for commission of a criminal act).
Furthermore, this Court has concluded:
Accomplice liability may be established wholly by circumstantial
evidence. Only the least degree of concert or collusion in the
commission of the offense is sufficient to sustain a finding of
responsibility as an accomplice. No agreement is required, only
aid.
Commonwealth v. Mitchell, 135 A.3d 1097, 1102 (Pa. Super. 2016)
(internal citations and quotations omitted).
Accordingly,
two prongs must be satisfied for a defendant to be found guilty
as an accomplice. First, there must be evidence that the
defendant intended to aid or promote the underlying offense.
Second, there must be evidence that the defendant actively
participated in the crime by soliciting, aiding, or agreeing to aid
the principal. While these two requirements may be established
by circumstantial evidence, a defendant cannot be an accomplice
simply based on evidence that he knew about the crime or was
present at the crime scene. There must be some additional
evidence that the defendant intended to aid in the commission of
the underlying crime, and then did or attempted to do so. With
regard to the amount of aid, it need not be substantial so long as
it was offered to the principal to assist him in committing or
attempting to commit the crime.
Murphy, 844 A.2d at 1234 (internal citations and quotations omitted).
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Here, the trial court determined that there was sufficient
circumstantial evidence to convict Appellant of PWID and possession of
narcotics based upon the theory of accomplice liability. The trial court noted
Fleegle’s pattern of strange behavior at work, her possession of heroin
related paraphernalia in her purse, and her reaction when confronted with
the uncovered heroin as evidence of Fleegle’s drug use at Coalfield’s. Trial
Court Opinion, 3/21/2017, at 10-11. Moreover, evidence showed Appellant
drove Fleegle to and from work in her vehicle regularly, would frequently
meet Fleegle at Coalfield’s, and was often seen going in and out of the men’s
bathroom just prior to Fleegle entering. Furthermore, the Commonwealth
presented evidence that, on the day in question, Appellant admittedly drove
a man (he identified as Billy) to Coalfield’s in Fleegle’s car. Id. at 11. At
Coalfield’s, the man engaged in behavior substantially similar to Appellant’s
prior actions, going into the men’s bathroom without buying anything,
leaving quickly, and avoiding contact with Coalfield’s employees. The man
then left the area with Appellant in Fleegle’s car. The trial court determined
that the evidence further showed that “Fleegle attempted to gain entry to
the men’s restroom while Miele was inside finding the heroin hidden under
the trash can.” Id. The trial court also pointed to evidence that when
confronted, Fleegle tried to leave, called Appellant to come get her, and left
her purse when she eventually fled. Id. As such, the trial court concluded
that Appellant “knew Fleegle, used her car to drive an unknown person to
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Coalfield’s, where that unknown person delivered heroin to the men’s
restroom and Fleegle tried to retrieve the drugs[.]” Id. at 12. According to
the trial court, such evidence showed that Appellant “aided the unknown
person in the delivery of heroin with full knowledge of what the unknown
person was doing, which thereby demonstrate[d] [Appellant’s] intent to aid
in the commission of this crime.” Id.
Based upon our standard of review and the certified record, we discern
no abuse of discretion or error of law in denying Appellant’s motion for
acquittal. In this case, there was sufficient evidence that Appellant acted as
an accomplice to the unknown man who constructively possessed and
delivered the narcotics found in the men’s restroom. While it is true that
police did not recover narcotics from any person, the circumstantial evidence
showed the unknown man constructively possessed the heroin and deposited
six individual packets of heroin under the trashcan in the men’s bathroom
for Fleegle to retrieve. Fleegle’s immediate response in attempting to enter
the men’s restroom after the unknown man’s departure was circumstantial
evidence that a drug delivery had recently occurred.5 Moreover, Appellant’s
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5 Contrary to Appellant’s contention, Section 306(g) makes clear that he is
subject to criminal liability as an accomplice so long as the Commonwealth
proves the commission of an offense and his complicity therein. There is no
requirement that the Commonwealth prosecute or convict the principal in
order to convict an accomplice. The record in this case includes ample
circumstantial proof that Appellant aided in the commission of a drug
delivery. Accordingly, no relief is due.
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role in driving the unknown man to the location and waiting for his return
showed Appellant’s role in aiding the delivery.6 Fleegle’s subsequent
reaction to the discovery of the narcotics, 7 Appellant’s role in picking her up
thereafter, and Appellant’s nervous response to police questioning and
eventual admission that he drove the unknown man to Coalfield’s, further
demonstrate the presence of drug-related activity at Coalfield’s. In totality,
the evidence showed Appellant awareness of drug possession and delivery
by the unknown man and Appellant’s willingness to aid that individual in
bringing about an unlawful result. Hence, the Commonwealth presented
sufficient circumstantial evidence to support Appellant’s convictions and we
discern no abuse of discretion in denying Appellant’s motion for acquittal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/4/2017
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6 We have previously determined the driver of a getaway car used in
connection with a crime may be found guilty as an accomplice. See
Commonwealth v. Causey, 833 A.2d 165, 173 (Pa. Super. 2003); see
also Commonwealth v. Ross, 375 A.2d 113 (Pa. Super. 1977).
7Flight demonstrates a consciousness of guilt. See Commonwealth v.
Smith, 146 A.3d 257, 263 (Pa. Super. 2016) (citation omitted).
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