Com. v. Mays, D. ( 2017 )

J-S94032-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DWAYNE ORLANDO MAYS
Appellant No. 495 MDA 2016
Appeal from the Judgment of Sentence December 10, 2015
in the Court of Common Pleas of Lycoming County Criminal Division
at No(s): CP-41-CR-0000156-2015
BEFORE: LAZARUS, RANSOM, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 10, 2017
Appellant, Dwayne Orlando Mays, appeals from the judgment of
sentence entered in the Lycoming County Court of Common Pleas. 1 He
contends there was insufficient evidence to sustain his conviction for
possession with intent to deliver a controlled substance (“PWID”),2
conspiracy of PWID,3 and criminal use of a communication facility.4 We
affirm.
*
Former Justice specially assigned to the Superior Court.
1
We note that Appellant was subsequently convicted of possession with
intent to deliver a controlled substance, possession of a controlled
substance, and criminal use of a communication facility. The appeal from
the April 25, 2016 judgment of sentence is docketed at no. 745 MDA 2016.
2
35 P.S. § 780-113(a)(30).
3
18 Pa.C.S. § 903.
4
18 Pa.C.S. § 7512(a).
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The trial court summarized the facts of this case as follows:
These charges arose out of a grand jury investigation
centering on the distribution of heroin from a 2012 wiretap
investigation in Centre County.
* * *
At the non-jury trial of [Appellant], the Commonwealth
called as witnesses Laura Kalizewski (Kalizewski), Summer
Anise Love (Love), Brandy Bevan (Bevan), Officer Nathan
Dereamer (Dereamer) and Officer [Thomas] Bortz.
Kalizewski testified to a controlled drug buy she performed
as a confidential informant for the Lycoming County Drug
Task Force. Kalizewski testified that on February 26,
2013, she called [Appellant] on his cellular phone number
and arranged to meet him at 230 West Third St.
Williamsport, PA to make a heroin purchase. As she would
be purchasing one bundle i.e. ten bags, the price would be
the customary rate of $100. Lycoming County Drug Task
Force provided Kalizewski with the $100 to purchase the
heroin. Direct and cross examination established that
Kalizewski had a three bundle (i.e. 30 bags a day) heroin
habit. At the time of the controlled buy, she was five
months clean of heroin, after having served six months in
the Lycoming County Pre Release Center. Kalizewski was
on supervised bail on February 26, 201[3], and she
testified that she had not tested positive while on bail.
In addition to the controlled drug buy that Kalizewski
was a part of on February 26, 2013, she also testified that
she had been a regular customer of [Appellant]. She
testified that she would drive [Appellant] and one of his
colleagues to Philadelphia for them to acquire heroin. At
that time she would test the heroin for her drug dealers to
ensure that it was producing the desired effect. She
testified that she purchased heroin from [Appellant] 50
times. She testified that she had been purchasing heroin
for a year from [Appellant] prior to the controlled buy.
Love also testified to a similar relationship with
[Appellant]. He was one of her drug dealers. She had
contact with him every day. She would also drive him and
a few of his colleagues to Philadelphia and perform the
same drug testing services. She testified that the quality
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of [Appellant’s] heroin was “the best quality around.” Love
also identified [Appellant] as someone she would purchase
heroin from during the time period of May 2012, through
April 2013.
* * *
Kalizewski and Love . . . both testified that they
transported [Appellant] along with other dealers to
Philadelphia to pick up heroin.
Trial Ct. Op., 8/22/16, at 1, 3-5, 7 (citations to the record omitted).
The trial court found Appellant guilty of the above mentioned charges.
On December 10, 2015, Appellant was sentenced to fifty-four months’ to
twenty years’ imprisonment. The court found he was eligible for the
Recidivism Risk Reduction Incentive (“RRRI”) program5 and calculated his
RRRI minimum at forty-five months. Appellant filed a post-sentence motion
which was denied. This timely appeal followed. Appellant filed a court-
ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The
trial court filed a responsive opinion.
Appellant raises the following issues for our review:
1. Did the trial court err in finding the Appellant guilty of
the charge of [PWID] as the evidence was insufficient to
show the Appellant possessed heroin with the intent to
deliver the same between 2012 and 2013.
2. Did the trial court err in finding the Appellant guilty of
the charge of Conspiracy of [PWID] as the evidence was
insufficient to show the Appellant possessed heroin with
the intent to deliver the same between 2012 and 2013.
5
61 Pa.C.S. §§ 4501-4512.
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3. Did the trial court err in finding the Appellant guilty of
the charge of Criminal Use of a Communication Facility as
the evidence was insufficient to show the Appellant used a
cell phone and the Commonwealth failed to provide
evidence to show that any communication on the phone
was Appellant and was for the purposes of committing a
crime between 2012 and 2013.
4. Did the trial court err in finding the Appellant guilty of
the charge of [PWID] as the evidence was insufficient to
show the Appellant possessed heroin with the intent to
deliver the same on February 26, 2013.6
Appellant’s Brief at 7-8.
First, Appellant contends the evidence was insufficient to establish
PWID on February 26, 2013 and from 2012 through 2013 because
no evidence was offered as to the method of packaging
being consistent with the type the Appellant may have
distributed. Furthermore, no evidence was offered as to
the behavior of the Appellant, as no one observed the
Appellant.
Id. at 12.
Second, Appellant avers the evidence was insufficient to establish that
he “was engaged in a conspiracy.” Id. at 13. “No recordings of
conversations, photographic, or video evidence was presented, nor was [sic]
any of the other alleged individuals called to testify.” Id. Third, Appellant
argues the evidence was insufficient to sustain the guilty verdict on the
6
We note that Appellant addresses this issue contemporaneously with the
first issue raised on appeal.
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charges of criminal use of a communication facility because there was no
“evidence that the phone was registered to, belonged to, or was utilized by”
Appellant. Id. at 14.
Our review is governed by the following principles:
The standard we apply in reviewing the sufficiency of
evidence is whether, viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
and substitute our judgment for that of the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the trier of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Ratsamy, 934 A.2d 1233, 1236 n.2 (Pa. 2007).
In Commonwealth v. Little, 879 A.2d 293 (Pa. Super. 2005), this
Court
consider[ed] whether the Commonwealth presented
sufficient evidence to sustain [the defendant’s] conviction
for possession with intent to deliver. Section 780-
113(a)(30) of The Controlled Substance, Drug, Device and
Cosmetic Act prohibits the following acts:
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[T]he 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 knowingly creating,
delivering or possessing with intent to deliver, a
counterfeit controlled substance.
35 [P.S.] § 780-113(a)(30). The Commonwealth
establishes the offense of possession with intent to deliver
when it proves beyond a reasonable doubt that the
defendant possessed a controlled substance with the intent
to deliver it.
To determine whether the Commonwealth presented
sufficient evidence to sustain [the defendant’s] conviction
for possession with intent to deliver, all of the facts and
circumstances surrounding the possession are relevant and
the elements of the crime may be established by
circumstantial evidence. Furthermore, possession with
intent to deliver can be inferred from the quantity of the
drugs possessed along with the other surrounding
circumstances.
Id. at 297 (some citations omitted).
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 co-conspirator.”
As our Court has further explained with respect to
the agreement element of conspiracy:
The essence of a criminal conspiracy is a common
understanding, no matter how it came into 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
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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. Even if the conspirator did not act
as a principal in committing the underlying crime, he
is still criminally liable for the actions of his co-
conspirators in furtherance of the conspiracy.
Commonwealth v. McCall, 911 A.2d 992, 996-97 (Pa. Super. 2006)
(citations omitted).
Criminal use of a communication facility is defined as follows:
(a) Offense defined.─A person commits a felony of the
third degree if that person uses a communication facility to
commit, cause or facilitate the commission or the attempt
thereof of any crime which constitutes a felony under this
title or under the act of April 14, 1972 (P.L. 233, No. 64),1
known as The Controlled Substance, Drug, Device and
Cosmetic Act. Every instance where the communication
facility is utilized constitutes a separate offense under this
section.
18 Pa.C.S. § 7512(a).
After careful consideration of the parties’ briefs, the record and the
opinion of the Honorable Nancy L. Butts, we affirm on the basis of the trial
court’s decision.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2017
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