Com. v. Oakes, J.

J-S06004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JARED OAKES,
Appellant No. 1798 EDA 2013
Appeal from the Judgment of Sentence Entered January 14, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011721-2011
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 20, 2015
Appellant, Jared Oakes, appeals from the judgment of sentence of an
aggregate term of three years’ probation, imposed after he was convicted,
following a nonjury trial, of possession with intent to deliver (PWID) and
criminal conspiracy. Appellant challenges the sufficiency and weight of the
evidence to sustain his convictions. We affirm.
The trial court set forth the facts of this case as follows:
At trial, the Commonwealth presented the testimony of
Philadelphia Police Officers Greg Barber and Rick Williams.
Viewing the evidence in the light most favorable to the
Commonwealth as the verdict winner, the police officer[s’]
testimony established the following. On July 29, 201[1], with
the aid of a confidential informant (“CI”), Officer Barber began a
narcotics investigation in the area of 5800 Race Street in
Philadelphia, Pennsylvania. On August 3, 2011[,] the Officer and
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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his team set up surveillance at 147 North 59th Street, dialed the
telephone number provided by the CI and remained present
while instructing the CI to engage the male who answered the
call in a conversation related to the sale of narcotics, “preferably
crack cocaine[.”] The male who answered the call directed the
CI to the 200 block of North Salford Street. Officer Barber
continued his surveillance at 147 North 59th Street, while backup
officers, William and Francis, were directed to the 200 block of
North Salford Street to observe the CI make this “controlled drug
buy[.”] Prior to the buy, police searched the CI for narcotics,
contraband, and currency (with negative results) and provided
him with $40.00 pre-recorded buy money to use for the
purchase.
While under constant surveillance, the backup officers
observed the CI come in contact with the operator of a black
Cadillac that had driven into the area. The officers observed the
CI hand the driver, later identified as co-defendant James
Scruggs (“co-defendant”), the $40.00 prerecorded buy money in
exchange for small objects. Within minutes, the CI returned to
the officers and turned over four blue-tinted Ziploc packets, each
containing an off-white[,] chunky substance, believed to be
crack cocaine, that later tested positively for cocaine base.
Officer Barber, who stayed at the previous location but remained
in constant radio contact with the officers at the scene,
instructed the backup officers to maintain their surveillance on
the black Cadillac before stopping it at the 5900 block of Sansom
Street.
The operator of the vehicle, co-defendant James Scruggs,
was placed in custody and police recovered from his person
$147.00, a black wallet containing a PA driver’s license, one set
of keys and three (3) cellular telephones, one verified as
matching the telephone number previously provided to and
dialed by police to make the call for the CI initiating the sale.
The officers had also taken [Appellant] out of the passenger seat
and confiscated from him a cell phone, $1,195.00 in US
currency, in addition to the $40.00 in prerecorded buy money
that was given to the CI for the narcotics purchase. No drugs
were confiscated from [Appellant] or [his] co-defendant and a
search of the vehicle resulted in no findings or confiscations of
any contraband.
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Trial Court Opinion (TCO), 6/13/14, at 2-4 (citations to the record and
emphasis omitted).
Based on this evidence, the court convicted Appellant of PWID and
criminal conspiracy. Appellant was subsequently sentenced to concurrent
terms of three years’ probation for each offense. He filed a timely notice of
appeal, as well as a timely concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Herein, he raises two questions for
our review:
I. Was the evidence presented at trial sufficient to find []
Appellant guilty beyond a reasonable doubt of [PWID] … and
[c]riminal [c]onspiracy?
II. Did the [t]rial [c]ourt abuse its discretion by holding that the
verdicts of guilty against Appellant were [not] against the weight
of the evidence?
Appellant’s Brief at 3.
Appellant first argues that the evidence presented at trial was
insufficient to sustain his convictions. To begin, we note our standard of
review:
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.
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Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
In regard to both of his convictions, Appellant essentially maintains
that the evidence proved only his mere presence at the scene when Scruggs
sold narcotics to the CI. More specifically, Appellant argues that “[t]he fact
that [he] was present for the sale by his co-defendant to the informant, and
then was subsequently in possession of the pre-recorded buy money,
without further evidence, is insufficient to find beyond a reasonable doubt
that he was a member of a criminal conspiracy to sell narcotics, or that he
constructively possessed the narcotics sold by the co-defendant to the
informant.” Appellant’s Brief at 7.
In concluding that the evidence was sufficient to sustain Appellant’s
convictions, the trial court analogized the facts of this case to those in
Commonwealth v. McCall, 911 A.2d 992 (Pa. Super. 2006). There, police
officers observed McCall and his co-defendant, Spencer Rogers, standing
“about five feet away from a drainpipe” on a Philadelphia street. Id. at 994.
As the officers watched, four different individuals approached Rogers and
handed him money, after which Rogers walked to the drainpipe, removed
items believed to be drugs, and handed the suspected drugs to the buyer.
Id. While these transactions were occurring, McCall “stood watch, looking
up and down the length of [the] [s]treet.” Id. Following two of the four
sales, Rogers handed the proceeds to McCall. Id. When officers
subsequently arrested Rogers and McCall, Rogers had $64 on his person,
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while McCall possessed $1,508, which was “mostly in small denominations.”
Id.
Based on this evidence, we affirmed McCall’s convictions for conspiracy
and PWID. We stated:
As our Court has … 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 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. Johnson, 719 A.2d 778, 784–85
(Pa.Super.1998) (en banc).
The totality of the evidence taken in a light most favorable
to the Commonwealth was sufficient to sustain [McCall’s]
convictions for PWID and conspiracy to deliver. Even though
[McCall] did not physically handle the drugs transacted, he
clearly took an active role in the illicit enterprise. [McCall] was
observed working as a lookout … during three of the transactions
in question, and he received money from his cohort seller
immediately after two sales. Indeed, when arrested, [McCall]
possessed a copious amount of money ($1,508) in small
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denominations consistent with drug sale proceeds, while, in
comparison, the seller possessed only $64.
In contrast to the passive bystander or acquaintance
merely present at the scene of a crime, roles which will not
sustain a conviction for conspiracy, [McCall] actively participated
in several crucial respects to enable his cohort to sell crack
cocaine to numerous buyers. It was thus appropriate for the
fact-finder to infer an agreement between [McCall] and his
cohort to deliver crack cocaine based upon [McCall’s]
participation in the enterprise carrying out the deliveries.
Accordingly, we conclude that all three elements to a criminal
conspiracy were sufficiently proven to sustain [McCall’s]
conviction for conspiracy to deliver crack cocaine.
Because [McCall] is criminally liable for the actions of his
coconspirators, it follows that the evidence sufficed to convict
him of PWID as well. Given the evidence of his conspiracy with
Mr. Rogers, it is not exculpatory that [McCall] never actually
handled the drugs or received the buy money directly from
buyers when his co-conspirator Mr. Rogers did. As noted above,
all conspirators are liable for the actions of other conspirators.
Id. at 785. As [McCall’s] co-conspirator clearly delivered the
illicit drugs in question, [McCall’s] conviction for PWID was
proven beyond a reasonable doubt. [McCall’s] sufficiency
challenge, therefore, is without merit.
McCall, 911 A.2d at 996 -997.
In this case, the trial court concluded that “[t]he facts in McCall are
sufficiently similar to the facts in the instant matter” to uphold Appellant’s
convictions for PWID and conspiracy. TCO at 6. The court emphasized that
“[l]ike the appellant in McCall, [Appellant] in the instant case was not only
present for the sale of the drugs, but also immediately received the $40.00
proceeds from the sale, while already in possession of a copiously large
amount of U.S. currency - $1,195.00 – while the actual seller in this case
only possessed $147.00.” Id.
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Appellant, however, argues that McCall is “factually distinguishable”
from the present case because he did not take an ‘active role’ as did McCall.
Appellant’s Brief at 9. Appellant emphasizes that he did not possess the
phone used to set up the sale with the CI, he did not drive to the location,
the CI spoke only to Scruggs and handed Scruggs the money, and Appellant
“gave nothing to Scruggs prior to the transaction.” Id. at 10. Appellant also
points out that police did not find any drugs on Scruggs, Appellant, or in the
car, thus “indicating that Scruggs made this single trip to sell four packets of
crack.” Id. (emphasis added).
Appellant further argues that the facts of this case are comparable to
those in Commonwealth v. Mercado, 617 A.2d 342 (Pa. Super. 1992).
We summarized the evidence presented in Mercado as follows:
[T]he police observ[ed] … [Mercado], leaning out the third floor
window of a house where a planned “buy” was made, watching a
drug transaction transpire [at the door to the home] between
police and [Mercado’s] alleged co-conspirator; the observation of
[Mercado] and his alleged co-conspirator in the same position
fifteen minutes later, at which time there was no sight of
criminal dealing; and the presence of [Mercado] between the
first and second floor of the house at the time police uncovered
contraband in [an unlocked] third floor apartment.
Id. at 344. We concluded that this evidence was insufficient to sustain
Mercado’s convictions for PWID or criminal conspiracy. In regard to the
conspiracy conviction, we noted:
[Mercado] was not observed handling any money or
communicating in any way with Colon. After the police searched
the premises, they found no drugs on [Mercado], nor was [he] in
the room where the drugs were found. [Mercado’s] mere
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presence at the location of the drug transaction is not sufficient
to implicate him in a criminal conspiracy.
Id. at 346.
After careful consideration of the facts of Appellant’s case, we conclude
that his conduct falls somewhere in between that of the appellants in McCall
and Mercado. McCall’s active role in the conspiracy was more pronounced
than Appellant’s, as officers observed McCall acting as a lookout for his
cohort during the drug transactions. However, we reject Appellant’s
assertion that he was merely present at the scene, as was Mercado.
Instead, Appellant was in close proximity to the drug sale as it took place,
he immediately received the proceeds of that sale, and he possessed a large
quantity of cash (much more than that possessed by Scruggs) on his person
at the time of his arrest. The totality of these circumstances convinces us
that Appellant’s case is more analogous to McCall, and it was reasonable for
the court to infer that Appellant and Scruggs had a “common understanding
… that a particular criminal objective be accomplished[,]” as well as “a
shared criminal intent.” McCall, 911 A.2d at 996 (citation omitted). Thus,
as in McCall, we conclude that Appellant’s criminal conspiracy conviction
was supported by sufficient evidence. Consequently, Appellant is also
criminally liable for Scruggs’ sale of narcotics to the CI, which supports his
conviction for PWID.
Appellant next challenges the weight of the evidence to support his
convictions.
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A claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the trial
court's discretion; it does not answer for itself whether the
verdict was against the weight of the evidence. It is well settled
that the jury is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses, and a new trial
based on a weight of the evidence claim is only warranted where
the jury's verdict is so contrary to the evidence that it shocks
one's sense of justice. In determining whether this standard has
been met, appellate review is limited to whether the trial judge's
discretion was properly exercised, and relief will only be granted
where the facts and inferences of record disclose a palpable
abuse of discretion.
Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations
and internal quotation marks omitted).
Here, the trial court rejected Appellant’s weight argument, instead
concluding that “[t]he evidence outlined above plainly established that
[Appellant] both conspired to and did constructively possess drugs with the
intent to deliver.” TCO at 10. While Appellant argues that the evidence
“indicates that Appellant’s co-defendant, James Scruggs, acted alone in
selling drugs to the informant[,]” for the above-stated reasons, we disagree.
Appellant’s Brief at 12. Therefore, we ascertain no abuse of discretion in the
trial court’s denial of Appellant’s challenge to the weight of the evidence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2015
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