Com. v. Brown, C.

J-S57044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CRAIG BROWN, :
:
Appellant : No. 1176 EDA 2016
Appeal from the Judgment of Sentence February 12, 2014
in the Court of Common Pleas of Delaware County,
Criminal Division, No(s): CP-23-CR-0004144-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CRAIG BROWN, :
:
Appellant : No. 1181 EDA 2016
Appeal from the Judgment of Sentence February 12, 2014
in the Court of Common Pleas of Delaware County,
Criminal Division, No(s): CP-23-CR-0004178-2013
BEFORE: PANELLA, SOLANO and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 16, 2017
Craig Brown (“Brown”) appeals from the judgment of sentence
imposed following his convictions of two counts of delivery of a controlled
substance. See 35 P.S. § 780-113(a)(30).1 We affirm.
1
Brown was charged on three separate dockets, which were consolidated for
trial. Brown was convicted of one count of delivery of a controlled substance
at each of the above-mentioned dockets. Brown was found not guilty of the
charges at No. CP-23-CR-0004149-2013.
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On March 26, 2013, Chester City Police Officer Calvin Butcher (“Officer
Butcher”), a member of the Narcotics Division, was conducting surveillance
in the 900 block of West 3rd Street. Officer Butcher observed Brown at
Roland Walston’s (“Walston”) residence, located at 921 West 3rd Street.
Officer Butcher observed Brown and Walston enter and exit the residence
several times throughout the day, stand in front of the residence together,
and walk across the street to the convenience store together.
At approximately 3:00 p.m., Officer Butcher observed a blue vehicle,
occupied by a female driver, pull up in front of the residence. At that time,
Walston exited the residence, walked to the vehicle and opened the
passenger side door, and had a brief conversation with the driver. Walston
then returned to the residence, where he stayed for one to two minutes
before returning to the vehicle. Officer Butcher observed Walston hand the
driver a “red tint dark object” in exchange for cash. The driver placed the
item in her bra and drove away. Walston then walked directly to Brown and
handed him the cash.
Officer Butcher notified assisting units that a drug transaction had
taken place, described the vehicle, and provided the woman’s direction of
travel. Officer German Sabillon (“Officer Sabillon”) stopped the blue vehicle.
The driver admitted that she had drugs in her bra, and handed Officer
Sabillon the red-tinted plastic bag, which contained a white, powdery
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substance. Officer Sabillon identified the substance as cocaine based on a
field test, and the subsequent laboratory report confirmed the result.
At approximately 3:45 p.m., Officer Butcher observed an individual on
a bicycle approach Walston in front of the residence. After a brief
conversation, the bicyclist handed Walston cash. Walston then walked
directly to Brown, handed the cash to Brown, and returned to the residence.
About a minute or two later, Officer Butcher observed Walston exit the
residence, and hand the bicyclist several red-tinted plastic bags. The
bicyclist left with the bags in his left hand.
Officer Butcher notified the assisting units that a second drug
transaction had taken place. Officer Sabillon stopped the bicyclist, who
attempted to enter a residence as Officer Sabillon approached. When the
bicyclist opened the door, Officer Sabillon saw the bicyclist retrieve the bags
and toss them inside the house, near a television stand. Officer Sabillon told
the assisting officer where the bicyclist had thrown the bags, and the
assisting officer retrieved two red-tinted plastic bags containing a white
substance. Based on a field test, Officer Sabillon identified the substance as
cocaine, and a subsequent laboratory report confirmed the result.
Based on the investigation, Officer Sabillon obtained a search warrant
for the residence at 921 West 3rd Street. Several officers executed the
search warrant on March 27, 2013, at which time Brown was arrested.
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Following a bench trial, Brown was convicted of the above-mentioned
crimes. The trial court sentenced Brown to an aggregate term of one to five
years in prison.
On April 21, 2014, Brown, pro se, filed a Petition pursuant to the Post
Conviction Relief Act (“PCRA”),2 asserting that his trial counsel was
ineffective for failing to file post-sentence motions and a direct appeal on his
behalf, despite Brown’s requests. The PCRA court appointed Brown counsel,
who filed an Amended Petition and an Application to Withdraw as counsel.
In its Answer, the Commonwealth agreed that Brown had timely requested
his trial counsel to file a direct appeal on his behalf, but disputed Brown’s
right to reinstatement of his right to file post-sentence motions. By Order
dated March 29, 2016, the PCRA court granted Brown leave to file, nunc pro
tunc, post-sentence motions and a notice of appeal from his judgment of
sentence, and denied, without prejudice, PCRA counsel’s Application to
Withdraw as counsel.
Brown, through counsel, filed a post-sentence Motion, which the trial
court denied. Brown filed separate Notices of Appeal3 and court-ordered
Pa.R.A.P. 1925(b) Concise Statements of errors complained of on appeal
2
See 42 Pa.C.S.A. §§ 9541-9546.
3
After filing the Notices of Appeal, Brown’s appointed PCRA counsel filed an
Application for Appointment of Direct Appeal Counsel and Withdrawal of
Appearance. By Order dated April 27, 2016, the trial court allowed PCRA
counsel to withdraw, and appointed Brown counsel for his direct appeal.
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under each docket number. This Court, sua sponte, consolidated Brown’s
appeals.
On appeal, Brown raises the following issue for our review: “Was the
evidence sufficient to support the convictions?” Brief for Appellant at 5.
“Our well-settled standard of review when evaluating a challenge to
the sufficiency of the evidence mandates that we assess the evidence and all
reasonable inferences drawn therefrom in the light most favorable to the
verdict-winner.” Commonwealth v. Evans, 901 A.2d 528, 532 (Pa. Super.
2006) (citation omitted).
In applying the above test, we may not weigh the evidence and
substitute our prior judgment for 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 finder 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. Furness, 153 A.3d 397, 401 (Pa. Super. 2016) (citation
and brackets omitted).
Brown argues that he cannot be held liable as an accomplice because
he did not enter the residence from which the drugs were retrieved during
the sales; he had no contact with the buyer; and he did not touch the drugs.
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Brief for Appellant at 18-19. Brown also claims that he was across the street
when the drug sales took place, and therefore, “his ability to even know
what was occurring was suspect.” Id. at 18. Additionally, Brown asserts
that the fact that Walston gave Brown the money after the drug sales were
completed is insufficient to establish that Brown aided in the transaction.
Id. at 18-19.
The Controlled Substance, Drug, Device and Cosmetic Act (“the Act”)
prohibits “the manufacture, delivery, or possession with intent to deliver, a
controlled substance by a person not registered under this [A]ct….” 35 P.S.
§ 780-113(a)(30). The Act defines “delivery” as “the actual, constructive, or
attempted transfer from one person to another of a controlled substance,
other drug, device or cosmetic whether or not there is an agency
relationship.” Id. § 780-102 (emphasis added). “Thus, for a defendant to
be liable as a principal for the delivery of a controlled substance[,] there
must be evidence that he knowingly made an actual, constructive, or
attempted transfer of a controlled substance to another person without the
legal authority to do so.” Commonwealth v. Murphy, 844 A.2d 1228,
1234 (Pa. 2004).
It is well-established, however, that a defendant, who is
not a principal actor in committing the crime, may nevertheless
be liable for the crime if he was an accomplice of a principal
actor. See 18 Pa.C.S.[A.] § 306; see also Commonwealth v.
Bradley, 481 Pa. 223, 392 A.2d 688, 690 (1978) (the actor and
his accomplice share equal responsibility for commission of a
criminal act). A person is deemed an accomplice of a principal if
“with the intent of promoting or facilitating the commission of
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the offense, he: (i) solicit[ed the principal] to commit it; or (ii)
aid[ed] or agree[d] or attempt[ed] to aid such other person in
planning or committing it.” 18 Pa.C.S.[A.] § 306[.] 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 (some citations omitted); see also
Commonwealth v. Mitchell, 135 A.3d 1097, 1102 (Pa. Super. 2016)
(stating that “[a]ccomplice liability may be established wholly by
circumstantial evidence. … No agreement is required, only aid.” (citation
omitted)).
Here, the trial court considered Brown’s claim and concluded that the
evidence presented at trial was sufficient to support his conviction of
delivery of a controlled substance as an accomplice because Brown and
Walston were long-time friends; Brown “could enter and exit [] Walston’s
home … unfettered[;]” Brown and Walston spent the afternoon of March 26,
2013 together; Brown was in “close, watchful proximity” to Walston while
Walston sold cocaine to the female driver and the bicyclist; and Brown was
the “immediate financial beneficiary of [] Walston’s illegal activities.” See
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Trial Court Opinion, 10/26/16, at 22-24. The trial court additionally
reasoned that Brown and Walston “aided each other in the facilitation of
their drug dealing operation” by keeping the cocaine separate from the
proceeds of its sale. See id. at 24.
At trial, Officer Butcher testified that he was conducting surveillance in
the 900 block of West 3rd Street on March 26, 2013. See N.T., 11/13/13, at
30. Officer Butcher observed Brown enter and exit the residence several
times throughout the day. See id. at 33. Officer Butcher also observed
Brown and Walston together throughout the afternoon—exiting the
residence, standing in front of the residence, and walking across the street
to the convenience store. See id. at 108.
Officer Butcher testified that, at approximately 3:00 p.m., a blue
vehicle, occupied by a female driver, pulled up in front of the residence.
See id. at 35. Officer Butcher stated that Walston exited the residence and
walked to the car, opened the passenger side door, and had a brief
conversation with the driver. See id. at 36. According to Officer Butcher,
Walston then returned to the residence, where he remained for one to two
minutes. See id. at 40. Officer Butcher testified that Walston handed the
driver a “red tint dark object in exchange for green paper money.” Id. at
40-41; see also id. at 100. Additionally, Officer Butcher testified that as
soon as the driver pulled away, Walston walked directly to Brown and
handed Brown the cash he had just received from the driver. See id. at 42.
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Officer Butcher stated that, at approximately 3:45 p.m., an individual
on a bicycle approached Walston in front of the residence. See id. at 47-48,
102. According to Officer Butcher, the bicyclist engaged Walston in a brief
conversation and then handed Walston cash. See id. at 47-48, 102. Officer
Butcher testified that Walston handed the cash to Brown before returning to
the residence. See id. at 48, 102-03. Officer Butcher stated that Walston
remained in the residence for one to two minutes, then returned to the
bicyclist and handed him several red-tinted plastic bags. See id. at 48, 102-
03.
Additionally, Walston indicated during trial that he had kept the drugs
in his residence. See N.T., 11/13/13, at 155 (wherein Walston testified that
when he first met the bicyclist on the street, he “didn’t bring out exactly
what he wanted” and had to return to the house “to get the other piece”);
see also id. at 166 (wherein Walston stated that the bicyclist paid for two
packets of drugs, but he had only brought one, so he had to return to the
house).
Upon review, we conclude that it was reasonable for the trial court to
infer that Brown intentionally aided Walston in the sale of cocaine. Brown
was in close proximity to Walston while Walston conducted the drug sales,
and Brown immediately received and secured the proceeds of the sales.
Additionally, Brown and Walston were together throughout the afternoon,
and Brown entered and exited the residence, where the drugs were kept,
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several times throughout the day. See Commonwealth v. Toritto, 67
A.3d 29, 35 (Pa. Super. 2013) (en banc) (concluding that evidence was
sufficient to sustain conviction delivery of a controlled substance under an
accomplice theory, where appellant drove the seller to a bar to meet with
the buyer and was intermittently present during the seller’s discussions with
the buyer, even though appellant did not participate directly in the
transaction); see also Commonwealth v. McCall, 911 A.2d 992, 997 (Pa.
Super. 2006) (concluding that there was sufficient evidence to sustain
conviction of conspiracy to deliver a controlled substance where, “[e]ven
though [a]ppellant did not physically handle the drugs transacted,” there
was evidence that appellant ”took an active role in the illicit enterprise,” i.e.,
appellant immediately received money from two sales, and served as a
lookout during the transactions). Further, because Brown received the
financial benefit of the sales, and therefore had an active interest in the
sales, we cannot agree with Brown’s contention that he was merely present
in the area at the time Walston sold cocaine. See Murphy, 844 A.2d at
1234. But see Commonwealth v. Flowers, 387 A.2d 1268, 1271 (Pa.
1978) (concluding that there was insufficient evidence to sustain conviction
as an accessory to the sale of marijuana, where defendant was “present only
passively” during the negotiations and transfer and did not handle either
cash or marijuana, and there was no evidence that the defendant had any
interest in, or benefited from, the sale). Thus, the evidence presented at
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trial, and the reasonable inferences drawn therefrom, viewed in the light
most favorable to the Commonwealth as the verdict-winner, was sufficient to
sustain Brown’s convictions. See Evans, supra; see also Mitchell, supra.
Accordingly, we affirm Brown’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2017
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