Com. v. Briscoe, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KEVIN BRISCOE
Appellant No. 740 EDA 2016
Appeal from the Judgment of Sentence March 3, 2016
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0012317-2014
BEFORE: MOULTON, RANSOM, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 24, 2017
Appellant, Kevin Briscoe, appeals from his judgment of sentence of
twenty-one to forty-two months’ imprisonment for possession with intent to
deliver a controlled substance (“PWID”),1 conspiracy to possess a controlled
substance with intent to deliver2 and bribery.3 Appellant challenges the
sufficiency of the evidence. We affirm.
The following evidence was adduced during Appellant’s non-jury trial.
Officer Patrick Banning testified that during his course of duty on the
afternoon of July 22, 2014, he engaged in narcotics surveillance in the area
of the intersection of D and Indiana Streets, Philadelphia, Pennsylvania, with
*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
2
18 Pa.C.S. § 903.
3
18 Pa.C.S. § 4701(a)(3).
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Sergeant Patrick Love and another officer. N.T., 12/18/15, at 8. Officer
Banning and the other officers sat in an unmarked parked car on the
northeast corner of D and Indiana Streets. Id. at 10. Between 2:30 and
2:53 p.m., Officer Banning observed Appellant and another man, later
identified as Spencer Platt, standing together on the southeast corner of D
and Indiana Streets. Id. at 20-21. Appellant and Platt spoke to one another
but never exchanged anything between them. Id.
Five transactions took place at the street corner during this twenty-
three minute period. Id. at 12-16. In the first transaction, an unknown
individual approached Appellant and Platt and handed Platt United States
currency. Id. at 11-12. Platt walked down Indiana Street to a grassy area
in front of a brown building, where he retrieved a Newport cigarette box.
Id. He took at least one green packet from the box and handed it to the
individual. Id. The second and third transactions were identical to the first
transaction. Id. at 13-14.
In the fourth transaction, an individual spoke with Appellant and Platt
and handed Appellant United States currency. Id. at 14-15. Appellant
walked down Indiana Street, obtained an object from a black plastic bag
near the brown building, and handed the object to the individual. Id.
In the fifth and final transaction, an unknown female approached Platt,
but not Appellant, and handed Platt United States currency. Id. at 15-16.
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Platt returned to the grassy area, retrieved his cigarette box, removed at
least one green packet from the box and handed it to the female. Id.
At 2:55 p.m., Officer Banning and back-up officers apprehended
Appellant and Platt. Id. at 16. Officers recovered $40.00 in United States
currency from Platt’s pocket and $251.00—one $100 bill, five $20 bills, three
$10 bills, two $5 bills, and eleven $1 bills—from Appellant’s pockets. Id. at
17, 19. Near the brown building on Indiana Street, officers recovered a
Newport cigarette box containing six clear Ziploc packets. Id. at 17-18.
Inside each packet was a green glassine packet stamped with the words “red
devil” and containing heroin. Id. Against the wall of the same building,
officers found a black plastic bag containing 24 clear vials of crack cocaine
and one clear Ziploc packet. Id. at 19. Inside the Ziploc packet was a
green glassine packet stamped with the words “red devil” and containing
heroin. Id. None of the five buyers were apprehended. Id. at 11-16.
While handcuffed in the backseat of a marked police car, Appellant
requested to speak with Sergeant Love. Id. at 20, 49. Appellant said to
Sergeant Love: “If you take the cuffs off me right now and let me go, you
can keep all the money you got off me.” Id. at 49. At the time of this
statement, the money recovered from Appellant was in police possession,
and Sergeant Love was working in his capacity as a Philadelphia police
officer and was wearing his badge. Id. at 50-51, 56.
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Appellant testified that police officers picked him at random out of a
group of people on the street and accused him of selling drugs. Id. at 67-
74. He claimed that he did not offer police officers money, and that another
unknown male in the police car might have offered money to the officers,
although he was unsure what the other male said. Id. at 71-72, 90.
During closing argument, defense counsel conceded that the trial court
was “possibly faced with a credibility call.” Id. at 92. Following argument,
the trial court found Appellant guilty of all charges. Id. at 95. On March 3,
2016, the trial court imposed sentence. Appellant filed a timely appeal, and
both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises three issues on appeal:
1. The evidence was insufficient as a matter of law to
sustain [Appellant’s] conviction for [PWID,] because the
Commonwealth did not offer testimony about what was
actually exchanged, expert testimony about what was
likely exchanged, expert testimony that the narcotics in
question were possessed under circumstances indicating
an intent to deliver[,] or testimony that the alleged buyers
were actually in possession of a controlled substance after
meeting with [Appellant].
2. The evidence was insufficient as a matter of law to
sustain [Appellant’s] conviction for conspiracy[,] as there
was insufficient evidence to show an unlawful agreement
to distribute controlled substances as there was no
evidence that [Appellant] was working in concert with
another and for the reasons set forth in ¶ 1 above.
3. The evidence was insufficient as a matter of law to
sustain [Appellant’s] conviction for [b]ribery[,] because the
money in question was already in the lawful custody of
police and thus could not be conferred as a benefit or
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pecuniary benefit upon the police officer within [the]
meaning [of] 18 Pa.C.S. § 4701.
Appellant’s Brief at 7.
Appellant first contends that the evidence was insufficient to sustain
his conviction for PWID. He admits that the evidence established his
“constructive possession” of the controlled substances, Id. at 14, but he
insists that the Commonwealth failed to prove what the buyers purchased,
because Officer Banning could not see what the buyers received, and the
officers did not stop any of the buyers. Id. at 16. In addition, Appellant
considers it “noteworthy that the Commonwealth did not rely on an expert’s
opinion for the proposition that (1) the narcotics in question were possessed
under circumstances indicating an intent to deliver or (2) the conduct
observed by [Officer] Banning was consistent with drug dealing.” Id. at 17.
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial the 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 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 [,]
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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. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)
(citation omitted), appeal denied, 138 A.3d 4 (Pa. 2016).
A person is guilty of PWID if he manufactures, delivers, or possesses
with intent to manufacture or deliver a controlled substance, absent legal
authorization. 35 P.S. § 780-113(a)(30). “Determining whether a person
possessed a drug with an intent to deliver is based upon the totality of
circumstances.” Commonwealth v. Coleman, 130 A.3d 38, 41 (Pa. Super.
2015) (citation omitted), appeal denied, 134 A.3d 54 (Pa. 2016). If the
quantity of the controlled substance is not dispositive as to the intent, the
court may look to other factors, including:
the manner in which the controlled substance was
packaged, the behavior of the defendant, the presence of
drug paraphernalia, and . . . [the] sums of cash found in
possession of the defendant. The final factor to be
considered is expert testimony. Expert opinion testimony
is admissible concerning whether the facts surrounding the
possession of controlled substances are consistent with an
intent to deliver rather than with an intent to possess it for
personal use.
Commonwealth v. Roberts, 133 A.3d 759, 768 (Pa. Super. 2016) (citation
omitted), appeal denied, 145 A.3d 725 (Pa. 2016). Although expert
testimony is admissible to prove PWID, it is not always necessary. See
Commonwealth v. Baker, 72 A.3d 652, 659 (Pa. Super. 2013)
(Commonwealth was not required to present expert testimony to prove
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intent to deliver; “[t]o the contrary, case law states that expert testimony is
important in cases where the other evidence does not establish that
defendant possessed the drugs with the intent to deliver”).
In this case, the trial court opined:
The most persuasive factor pointing to [PWID] is the
behavior of [Appellant] and his co-conspirator. Officer
Banning [testified] that five times after meeting unknown
individuals on the street, [Appellant] and his co-
conspirator retrieved small objects from a concealed
location. The officer testified credibly that [Appellant] and
Mr. Platt accessed the concealed locations after receiving
money from various unknown individuals who were not
apprehended. Officer Banning testified that he then
observed the two men hand small objects to the unknown
individuals who had given them money. While the officer
could not see the specific objects [Appellant] handed off,
the objects were small and consistent in size with the vials
recovered from the black plastic bag. Officer Banning did
not observe [Appellant] or Mr. Platt consume the
substances that were illegally possessed . . .
The amount and packaging of the contraband recovered
from both the Newport cigarette box and the black bag
also tend to show [PWID]. Including the six packets of
heroin in the cigarette box, the one in the black bag and at
least four Officer Banning observed Mr. Platt hand to
unknown individuals, there were at least [eleven] packets
of heroin in the cigarette box at the start of the
surveillance. With the [twenty-three] vials of cocaine, the
amount of narcotics recovered supports this Court’s
conclusion that they were possessed with intent to
distribute. The officers found no drug-use paraphernalia
on either conspirator or in the area surrounding the bag or
cigarette container. The fact that the drugs were
packaged in individual dosages and then contained in
larger packaging as a group is consistent with intent to
distribute.
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Trial Ct. Op. at 7-8. We agree with the trial court’s persuasive analysis.
Construed in the light most favorable to the Commonwealth, the evidence
was sufficient to establish the offense of PWID beyond a reasonable doubt.
Appellant next contends that the evidence was insufficient to prove
PWID because the officers failed to stop the buyers and thus “were unable to
confirm what was actually passed” or show that the buyers were “in
possession of something illegal.” Appellant’s Brief at 16. We disagree.
Appellant and Platt kept a cigarette box and a black bag around the
corner from where they met with the buyers. In five separate transactions
over a twenty-three minute span, (1) the buyers met with Appellant and/or
Platt and handed one of them United States currency; (2) Appellant or Platt
retrieved items from the cigarette box or bag, and (3) Appellant or Platt
handed these items to the buyers. Shortly after the fifth transaction, police
officers recovered small packets of heroin from the cigarette box and black
bag as well as individual vials of crack cocaine from the black bag. The
items given to the buyers were similar in size to the heroin packets and
crack vials. Collectively, this evidence establishes beyond a reasonable
doubt that the items handed to the buyers were controlled substances.
Appellant also argues that the evidence was insufficient due to the
Commonwealth’s failure to submit expert testimony. We disagree. Although
expert testimony often is helpful in establishing PWID, we have declined to
hold that it is necessary in all cases. Baker, 72 A.3d at 659. In this case,
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Appellant’s guilt is clear enough to make expert testimony unnecessary.
Officer Banning observed Appellant and Platt engage in five hand-to-hand
drug sales in broad daylight over the space of twenty-three minutes. Officer
Banning did not observe Appellant consuming any controlled substances; nor
is there other evidence in the record suggesting that Appellant possessed
heroin or crack cocaine for personal use. This evidence clearly demonstrates
that Appellant possessed the heroin and crack cocaine with intent to
distribute them to other individuals.
In his second argument, Appellant asserts that the evidence was
insufficient to establish criminal conspiracy. A person is guilty of conspiracy
with another person or persons to commit a crime
if with the intent of promoting or facilitating its commission
he: (1) agrees with such other person or persons that they
or one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or (2) agrees to aid such other person
or persons in the planning or commission of such crime or
of an attempt or solicitation to commit such crime.
18 Pa.C.S. § 903.
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 that (3) an overt act was done in
furtherance of the conspiracy.
Commonwealth v. McCall, 911 A.2d 992, 996 (Pa. Super. 2006) (citation
omitted). The overt act necessary to establish criminal conspiracy need not
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be committed by the defendant; it need only be committed by a co-
conspirator. Id. Furthermore,
[c]ircumstantial evidence may provide proof of the
conspiracy. The conduct of the parties and the
circumstances surrounding such conduct may create a
“web of evidence” linking the accused to the alleged
conspiracy beyond a reasonable doubt. Additionally:
An agreement can be inferred from a variety of
circumstances including, but not limited to, the
relation between the parties, knowledge of and
participation in the crime, and the circumstances and
conduct of the parties surrounding the criminal
episode. These factors may coalesce to establish a
conspiratorial agreement beyond a reasonable doubt
where one factor alone might fail.
Commonwealth v. Irvin, 134 A.3d 67, 76 (Pa. Super. 2016) (citations
omitted).
The trial court reasoned:
The Commonwealth offered through Officer Banning
that [Appellant] and Mr. Platt were standing near each
other on the same corner. Officer Banning testified that
the two men were talking together and that individuals
approached them and conversed with them together as
well. While Officer Banning testified that the men each
retrieved narcotics from different sources on the sides of
the same building, heroin packets with the same labeling
and coloring were recovered from both the cigarette
packet Mr. Platt was accessing and the bag [Appellant]
was accessing. Although there is no evidence of an
express agreement between the two men, their actions
engaging narcotics buyers together as well as the presence
of the heroin in the same packaging at locations accessed
by both defendants all are sufficient to prove a conspiracy
to sell narcotics beyond a reasonable doubt.
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Trial Ct. Op., at 9-10. We agree with the trial court that this evidence is
sufficient to sustain Appellant’s conviction for conspiracy to possess
controlled substances with intent to deliver. See Commonwealth v.
Johnson, 920 A.2d 873, 879 (Pa. Super. 2007), rev’d on other grounds, 26
A.3d 1078 (Pa. 2011) (evidence was sufficient to support conviction for
criminal conspiracy, where “each time [officer] contacted [defendant] to buy
drugs, [defendant] met [officer] at prearranged location, took his order, and
obtained drugs from others positioned nearby”); cf. Commonwealth v.
Murphy, 844 A.2d 1228, 1238-39 (Pa. Super. 2004) (evidence was
sufficient to sustain defendant’s conviction for conspiracy to deliver a
controlled substance; when defendant brought drug dealer over to
undercover officer, dealer asked defendant whether officer was a cop, and
defendant replied that he was not, and then dealer immediately asked officer
how much he was willing to spend and how many bags he wanted, and this
indicated that dealer already knew, without having to ask, the sole reason
that defendant had brought him over to officer, namely that officer was a
prospective heroin buyer).
Appellant insists that there was no conspiracy because Appellant and
Platt “kept drugs in separate locations and were interacting with separate
people.” Appellant’s Brief, at 19. Appellant is incorrect. Appellant and Platt
worked together at the same street corner. They met jointly with
approaching buyers, kept their drugs in the same vicinity around the corner
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and collected money from buyers in one another’s presence. Police officers
discovered heroin packets with the same labeling and coloring in both
Appellant’s bag and Platt’s cigarette box. This evidence demonstrates that
Appellant and Platt acted in concert to distribute controlled substances.
In his final argument, Appellant contends that the evidence was
insufficient to sustain his conviction for bribery. The Crimes Code provides:
“A person is guilty of bribery . . . if he offers, confers or agrees to confer
upon another, or solicits, accepts or agrees to accept from another . . . (3)
any benefit as consideration for a violation of a known legal duty as public
servant or party official.” 18 Pa.C.S. § 4701(a)(3). “[O]nce the offer to
confer the proscribed benefit, or once an agreement is made, the crime is
complete.” Commonwealth v. D’Angelo, 585 A.2d 525, 528 (Pa. Super.
1991) (citation omitted).
[I]t is sufficient if the actor believes that he has agreed
to confer or agreed to accept a benefit for the proscribed
purpose, regardless of whether the other party actually
accepts the bargain in any contract sense . . . . The evils of
bribery are fully manifested by the actor who believes
that he is conferring a benefit in exchange for official
action, no matter how the recipient views the transaction. .
. . Each defendant should be judged by what he thought
he was doing and what he meant to do, not by how his
actions were received by the other party.
Commonwealth v. Schauffler, 580 A.2d 314, 316 (Pa. Super. 1990)
(emphasis in original; quotation marks omitted).
The trial court reasoned:
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Under [Schauffler], the driving inquiry is whether
[Appellant] was attempting to confer the [pro]posed
benefit. The fact that the money [Appellant] was
attempting to confer was [already] in the custody of the
Philadelphia Police does not change his intent. This Court
believed the testimony of Sergeant Love that [Appellant]
intended to convey money upon the police to avoid
criminal charges. Furthermore, the Court found
[Appellant]’s testimony that another individual in the police
car may or may not have offered Sergeant Love a bribe
incredible.
Trial Ct. Op., at 10-11. We agree with the trial court that the evidence is
sufficient to sustain Appellant’s conviction for bribery. In the words of
section 4701(a)(3), Appellant “offer[ed] . . . to confer” money upon
Sergeant Love “as consideration” for Sergeant Love’s “violation of [his]
known legal duty as [a] public servant” to arrest Appellant for possession
with intent to deliver and conspiracy. Id. The fact that Sergeant Love
rejected Appellant’s offer or that the money was already in the hands of the
police is of no moment. Schauffler, 580 A.2d at 316. The critical
consideration is that Appellant believed that he was conferring a benefit on
Sergeant Love in exchange for Sergeant Love’s violation of his duties as a
police officer.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2017
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