Com. v. Lippi, N. ( 2018 )

J-S10025-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NICOLE LIPPI :
:
Appellant : No. 3605 EDA 2016
Appeal from the Judgment of Sentence October 18, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004500-2016
BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY OLSON, J.: FILED MAY 04, 2018
Appellant, Nicole Lippi, appeals from the judgment of sentence entered
on October 18, 2016, following her bench trial conviction for criminal
conspiracy to possess a controlled substance.1 We affirm.
The relevant historical facts are as follows:
[Philadelphia] Police Officer Raymond Sima testified that on
October 13, [] 2015, at approximately [9:00 p.m.], he and a
partner were working as part of a team conducting a narcotics
surveillance on 1545 South 30th Street in Philadelphia when they
were alerted by radio that a white female, a passenger in a gold
Infiniti G35, had just made a [drug] purchase at the surveillance
location after which the vehicle proceeded northbound towards
Tasker Street. [Officer Sima and his partner] spotted the
vehicle, pulled it over and observed the driver, a Michael Nelson
who was later identified as [Appellant’s] brother, trying to stuff
something in[to the left pocket of his hooded sweat shirt. After
Nelson was asked] to remove his hand from the pocket, the
____________________________________________
1 18 Pa.C.S.A. § 903 and 35 P.S. § 780-113(a)(16).
J-S10025-18
officer could see blue glassine inserts that were inside the
pocket, which field tested positive for heroin, and arrested him.
Police Officer Von Williams testified that she was one of the team
that responded to the call, observed [Appellant] in the passenger
seat and, based on information she had received from fellow
officers, placed her under arrest. While she was doing so[,
Appellant] stated that she purchased the narcotics for her
brother. [Officer Williams] did not recover any narcotics from
[Appellant’s] person.
Trial Court Opinion, 5/22/17, at 1-2, citing N.T., 10/18/16, at 5-9 and
10-12.
Based upon the foregoing events, Appellant was arrested and charged
with simple possession of a controlled substance and criminal conspiracy.
Appellant was found guilty of both charges at the conclusion of trial on April
8, 2016 in the Philadelphia Municipal Court. Thereafter, Appellant appealed
to the trial court. Following a nonjury trial de novo on October 18, 2016,2
the court found Appellant guilty of conspiracy and not guilty of simple
possession. On the same day, the court ordered Appellant to serve nine
months’ probation for her conviction.
____________________________________________
2 At the trial de novo, Appellant denied that she told Officer Williams that
she purchased narcotics for her brother. Trial Court Opinion, 5/22/17, at 2,
citing N.T. Trial, 10/18/16, at 14-20. When reviewing sufficiency claims,
appellate courts are required to view the evidence in the light most favorable
to the Commonwealth as the verdict winner, thereby giving the prosecution
the benefit of all reasonable inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). Thus, under
the applicable standard of review, we must accept the testimony of Officer
Williams and disregard Appellant’s self-serving version of events.
-2-
J-S10025-18
Appellant filed a timely pro se appeal on November 17, 2016. After
many procedural developments, including the appointment of two
replacement counsel and the filing of two substitute concise statements
under Pa.R.A.P. 1925, Appellant presented the instant appeal in which she
challenges the sufficiency of the evidence offered to show that she conspired
to purchase contraband and pass it along to her brother. See Appellant’s
Brief at 8.
We have carefully reviewed the certified record, the submissions of the
parties, the opinions of the trial court, and the pertinent case law. Based
upon our review, we conclude for the reasons expressed by the trial court
that Appellant is not entitled to relief. See Trial Court Opinion, 11/1/17, at 6
(conspiracy established here in view of: 1) “the association between
[A]ppellant and her brother and the joint use of his vehicle in executing the
transactions (acquisition and transfer of possession [of contraband]), 2)
[Appellant’s] obvious knowledge of the commission of those transactions, 3)
[Appellant’s] presence at the scene of the crime, and 4) [Appellant’s]
observed participation in the object of the conspiracy, [i.e.] the acquisition
of an illegal drug). Moreover, as we find that the trial court has adequately
and accurately addressed the issues raised in this appeal, we adopt the trial
court’s opinion as our own. Accordingly, the parties are directed to attach a
copy of the trial court’s November 1, 2017 opinion to all future filings
relating to our disposition in this appeal.
Judgment of sentence affirmed.
-3-
J-S10025-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/18
-4-
Circulated 04/19/2018 01:34 PM
FILED
IN THE COURT OF COMMON PLEAS 2.0i7
NOV 0
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CRIMINAL SECTION Office of Judicial Records
Appeals/Post Trial
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0004500-2016
VS.
SUPERIOR COURT
NICOLE LIPP! NO. 3605 EDA 2016
SUPPLEMENTAL PA.R.A.P. 1925(a) OPINION
MAZZOLA, WILLIAM, J. OCTOBER ell , 20t7
The court submits this supplement to its R 1925(a) opinion of May 18, 2017, pursuant to
the Superior Court's order of September 66 directing it to do so. To reiterate, the defendant,
Nicole Lippi, filed this appeal from a judgment of sentence. She was arrested on October 14,
2015, and charged with the unlawful purchase and possession of a controlled substance and
conspiracy.' On April 8, 2016, at a trial in the Philadelphia Municipal Court, where she was
represented by appointed counsel, the Commonwealth withdrew the purchase charge, she was
found guilty of possession and conspiracy and was sentenced to nine (9) month's reporting
probation on the former and no further penalty on the latter.? She appealed pro se to this court,
new counsel was appointed and at a nonjury trial on October 18th she was found not guilty of the
possession but guilty of conspiracy and given the same sentence. No post sentence motions were
filed and this timely appeal was filed pro se on November 17'h The issues presented therein, as
stated by newly appointed counsel, were, in essence, that the evidence was insufficient as a
matter of law to convict and that the conviction was against the weight of the evidence In its
original 1925(a) opinion the trial court offered its view that, since counsel did not indicate En the
R 1925(b) Statement of Errors Complained of on Apperal how or why the evidence could be
C P51 -CR-0004500-2016 Comm v Uppi, N mole
Opine
Pa C S. §§ 780-113(a)(16)& (a)(19) & 18 Pa CS § 901
1..35 1111113M(111 1111
MC-51-CR-0032107-2015
1
consideredinsuMcientand lacking appropriate weight to convict, the claims should.have been
considered waived pursuant to the gide andthe:cited appellate deeisions interpreting it, and
'because theweight claim was not presented to the trial court as required. by .Pa R.Crim P 607(A)
The court did..go on,, however,, to thoroughly summarize and eValuate. the evidence in order to
demonstrate that it was generally.sufficient and of more than enough weight to convict
Prio.r...to the:submission of that opinion, on January 30, 2017, Superior tourt.entered an
order noting that on two occasions Appellant's appointed appellate counsel had failed to file a
timely docketing statement arid remanded, the matter to the.trial court for a determination as to
Whether counsel had abandoned Appellant: and to take further action as required to protect her
right to appeal,..includin.g but not limited to, the appointmentofnew counsel. That attorney filed
applications to withdraw,, on March 29th in Superior Court and March 30th in the trial: court, the
latter.granted the motion on that date:and. appointed another attorney on April 3.. On the 24'"
the Superior Court dismissed the applicatiOn to withdraw as moot, newly appointed counsel
having filed a docketing statement on April 191'.. However; on June 26th, 'after that attorney had
.0).Stptemipt. described :above.and the trial, court filed its opinion and
filed the Rule 1925
transmitted the record, that attorney filed an application to withdraw which the Court granted on
July' 17th.and again:remanded to the:trial patirtinstr4ting it to determine whether Appellant was
eligible.for.court appointed counscland take.the.appropriate. actions. The court did so and.
present counsel was appointed who'on August20th.filed a request for a remand to. allowhini to
file. another 1925(b,.)Statemeht which resulted in the .ourt's-September :6th order; The. new,
Statement did hone the. issue somewhat and *limited it to insufficiency:
.).The evidence was. insufficient to .slipportap.pellant'scrininal conspiracy
conviction because the commonwealth failed 'to prove beyond .4 reasonable doubt.
:that appellant or her alleged co -actor entered into an agreement with the other person
the object of which was to jointly possess or:purchase .a controlled'. substance
2
MATTERS COMPLAINED OF ON APPEAL NUNCPRO TUNC, September. 7,2O17.That.
is a slight probably unintended Mischaracterization...ofan..elt of the crime as it implies there
must have been an agreement to. continue a joint possession as opposed to a transfer from one
conspirator to the other at some point
To more tersely summarize the Commonwealth's evidence as cited to and described. in.
the court's previous opinion; it showed that the Appellant was observed by police,. who were..
conducting a surveillance of a residence from which they suspected drug sales were being. made,
to. have Made a purchase and get in a motor vehicle being operated by her. brother.. Other officers
to. whom that was reported.stopped.the vehicle and observed the drug on the brother's person.
While he and the .appellant were being searched and arrested, the latter stated to one of the.
Officers that she had purchased the narcotics for her brother The officer elaborated on how that
admission came about on cross examination:
Q. And you pulled her out of the car and arrested her based .on.information..from
other officers; is that correct?
,A Yes, there were other officers...op.location; she was a female, got her out, I
checked her .for any contraband which she did not have anything On. her. She
stated that she did not have it. She purchased it amt.gaVe it to her brother
Q How was this statement made? After, you put the cuffs on her when was [sic]
the statement made?
A I was checking her person, asked her did she have anything on her that I
needed to know about, she said no, she purchased it and what she bought she gave
to her brother, and that was it.
N.T.,. 10/18/.10, p. 12-13. As demonstrated by the court's summarization in its: previous .opininn,
though she denied purchasing or. handing any drugs to her brother, her trial testimony actually
fUrthetinferentially implicated her in the joint endeavor to acquire the drug. She claimed that,
on the evening in.question,she..was in the car with her brother and that they had gone to.. her
friend Carolann's:.house, the residence at which the police had observed her rriakethe purchase,.
to pick up her food stamp card and phone charger which she had left there earlier. When she. was
told that Caralann was not. home they left.and went..to her mOther-iri-law's.hoUse to borrow
money to go food :shopping and were arrested. When they....stopped. there She claimed she did not
at any point on that. date have any narcotics interpossetsion.. On cross .examination, when
asked if her brother had driven all.the.Way. over from New Jersey where .he lived to take:. her food
shopping, she stated..that:he had come over to."hang out", that they had visited Carolarin earlier
that day when..she. left hex things there, .and denied telling the.ar.resting officer that shehad
purchased the drugs for.her brother. The irial court., as the fact finder, simply chose to believe.
'the Commonwealth's 'version of facts Over hers as. being the more credible, considering in
particular her admission tO.the officer that she had purchased the drugs forher brother to have
been a rashly..ill-conceived lame: attempt.t0 dispel the ramifications of her observed involvement
in the events.
The.standard of review for 'sufficiency Of the evidence claims is. well. settled:
The standard we apply in reviewing the sufficiency of the 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. finctevery element of the crime beyond areasOnable
doubt In applying the above test,, we may not weigh the evidence and
substitute our judgment for thefatt-finder: In addition we note that
the 'fact and circumstances established by 'the CommonWealth, need
not preclude every possibility .Ofinnocence Any doubts regarding a
defendant's suilt may 17e. resolved by the, fact-fihder. unless the
evidence is. so weak and inconclusive that as a matter of law no
'probability offact.may be drawn from the combined circurnstariees.
The Commonwealth may sustain its burden of proof or proving every
element of the. crime beyond a reasonabledbubt by: mans of wholly
circumstantial evidence. Moreover, in applying the above test the
entirerecord must be evaluated and all the evidence actually 'received
must be considered. Finally, the trier.offa.a.whi le. passing upon the..
credibility of witnesses and the weight of the evidence produced, is
free to believe all, part or none of the evidence.
Commoriwea/.4h.v; Le,hazar4 .820 A. 2d .766,. 772 (Pa. Super ..2003) (citations. omitted),.
* *
The Commonwealth 'presented sufficient evidence to establish these crimes
The crime of delivery was, completed upon appellant's delivery of the 'heroin to.
4
Thomas l(trchoff. Appellant completed the conspiracy in Shamokin when. he
agreed.totravel to Reading: to purchase the drugs. The receipt of the money and.
the trip to Reading were sufficient overt acts in furtherance of that conspiracy..
Finally, appellant's possession of the drugs as a result of his purchase in Reading
provided sufficient evidence for the crime of possession with intent to deliver.
Commonwealth v Nahavandicin, 2004 PA. Super 136; 849 A 2d1221. 1229-30:(2004), :conviction
for Drug Delivery Resulting in Death vacated and remandedfor reconsideration, 585Pa 460,
888 A 2d81.5.(2006), Although the appellant was acquitted of possession,eVidenCe*tendingito
show that she acquired.possession.at some point also supports an element of a conspiracy.
As appellant ..was not in .physical possession of the contraband,. the
Commonwealth was required to establish that he had constructive possession of
the seized items to support his convictions;
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.
possess ion 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 To aid
application, we have held that constructive possession may be
established. by the totality .of the circumstances
Commonwealth v Brown, 48 A 3d 426, 430 (Pa Super 2012) appeal: denied; 61.9
Pa. 697, 63 A 3d 1243 (2013). (internal quotation marks and citation omitted)
Additionally, it is possible for two people to have joint: constructive possession of
an item of contraband. Commonwealth v Bricker, 882 A.:2d 1008, 1016-1017
(Pa Super 2005).
Commonwealth v Kinard, 2014 PA Super 41, 95.A. 3d 279, 292 (2014) The facts that appellant
was,obserVed obtaining the drug which ended up in her brother's Possession.. at some point after.
she returned to his vehicle after she Was. seen to have purchased it were by themselves sufficient
to support a conclusion beyond :a reasonable doubt that she had agreed to obtain it. for him
Pursuant.to.our standard of review, we find the testimony sufficient to support
appellant's conviction for PWD See also Commonwealth v Nelson, 399 Pa Super
618, 582 A.2d 1115, 1119 (Pa.Super.1990),..appeal denied, 527 Po 664; 5P3.A 2d
840 (1991). (constructive possession may be found where no individual factor
esiablishes.possession:but the totality of circumstances infer such).
5
To prove criminal conspiracy,.. the Commonwealth must show a defendant
entered into an agreement to commit or aid. in an unlawful act with another.
person; that heal* that person acted. with a shared criminal intent; and that an
overt act was taken in furtherance of the conspiracy .18 Pa CS A § 903. "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," Commonwealth v Johnson, 719
2d 778; 785 (Pa Super 1998) (en banO),..qppeal denied, 559 Pa 689; 739. A 2d
.1056 (1999) (citations omitted). Therefore, where the conduct of the patties.
indicates that they were acting in concert with A corrupt purpose in view, the
existence of a.eriminal conspiracy may properly be inferred. Commonwealth v
Snyder; 335 Pa Super 19, 483..A2d93.3, 942. (Pa..Super 1984): This court has
held that the presence of the following non-exclusive list of circumstances when
considered together and in the context of the crime may establish proof of a.
conspiracy (1) an association between alleged conspirators,.(2) knowledge of the
commission of the crime, (3) presence at the scene, of the crime, and (4).
participation in the object of the conspiracy. Commonwealth v Swerdlow, 431
PaSuper 453., 636 A.2d. 1173, 1177 (Pa Super 1994)
Id A 3d at 292-93 The non-exclusive list of circumstances in this case were (1) the association
between appellant and her brother and the joint use of his vehicle in executing the transactions
(acquisition and transfer of possession),. (2) her obvious knowledge of the commission of those'
transactions, (3) her presence at the scene of the crime, and (4). Observed.participation.ut the
Object of conspiracy, the of an illegal drug.
In reviewing a challenge to the sufficiency of the evidence, we must determine:
...whether, viewing all the evidence admitted at trial,. together with all
reasonable inferences therefrom, in the light most favorable to the
Commonwealth, the trier of fact could have found that .eadh element
of the offenses charged was supported by evidence and inferences
:sufficient in law to prove guilt beyoncla reasonable doubt;
Commonwealth v, Jackson, 506 Pa. 469, 472-473, 485 A 2d 1102, 1103 (1984)
(citation omitted).
Under existing law in Pennsylvania, the Commonwealth need notproVe.an
explicit .or fornial agreement in order to establish the existence of a criminal.
.conspirpcy..C9mmonwealth v. Mahltn, 270 Pa Super 290, 411 A 2d 532 (1979).
Agreement may be shown inferentially by showing the relation, conduct or
circumstances of the parties. Commonwealth v Jackson, 1.upr.O. Overt acts of
alleged. co-conspirators are sufficient proof of a conspiracy Commonwealth v
.Kennedy. 499. Pa .189, 453 A 2d 927. (1982)
6
Commonwealth v Rogers, 419 Pa. Super 122, .615 A 2d 55, 63 (1992) "Direct proof of the
corrupt agreement, lioweer,. is.. not necessary. Commonwealth v Brown, 351 Pa Super 119, 505
A 2d 295 (1986)" comnibrOealikV,.Anderson, 381 Pa. Super 1, 552 A 2d 1064, 1071 (1988),
appeal denied 524Pa, .616, 571 A 24.379 (1989) Although Present counsel did specify in the
revised R. 1925(b) Statement that the Commonwealth's evidence failed to establish the element
of an agreement,. he did not indicate how or. why that evidence could not be considered to have
allowed ..the fact finder to justifiably draw the obvious inference that appellant had agreed to get
some heroin for her brother. The only very weakly disputed evidence as more thoroughly cited
in the trial court's previous opinion .Was more than sufficient to establish each and every element
.of a, wholly executed conspiracy to illegally obtain and possess a drug Wherefore, the judgment
of sentence should be affirmed.
BY THE COURT:
WILLIAMi AZZOLA,
7