Com. v. Preccia

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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*
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.
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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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