Com. v. Hawkins, I.

J-S43013-22 and J-S43014-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
IRVIN HAWKINS :
:
Appellant : No. 38 EDA 2022
Appeal from the Judgment of Sentence Entered July 9, 2021
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0000979-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
IRVIN HAWKINS :
:
Appellant : No. 39 EDA 2022
Appeal from the Judgment of Sentence Entered July 9, 2021
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0001494-2019
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY DUBOW, J.: FILED JANUARY 11, 2023
Appellant, Irvin Hawkins, appeals from the Judgment of Sentence
imposed after a jury convicted him of several counts of Possession with Intent
to Deliver a Controlled Substance (heroin/fentanyl) (“PWID”) and Conspiracy.
He challenges the denial of his Motion to Suppress, the sufficiency of the
evidence supporting his convictions, and the application of an Offense Gravity
Score (“OGS”) of nine.
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A.
We glean the factual and procedural history from the trial court’s
detailed Pa.R.A.P. 1925(a) Opinion, which is supported by the record.1
Chester County and City of Coatesville detectives conducted extensive
surveillance of a house in Coatesville that Appellant leased, as well as cars
that Appellant and others drove. In February 2019, the detectives began
working with a Confidential Informant (“CI”).
On February 1, 2019, the CI met with Detective Kristin Lund of the
Chester County Drug and Organized Crime Unit and then contacted Appellant
(a/k/a “Gotti”) to purchase heroin. Appellant instructed the CI to go to the
Wawa in Parkesburg for the transaction. Meanwhile, Detective Joseph Nangle
observed Appellant exit the front passenger seat of a gold Mercury vehicle
parked in front of Appellant’s Coatesville house, enter the house, and return
a short time later to the front passenger seat of the Mercury. The driver of the
Mercury then drove Appellant to the Wawa.
Detective Thomas Hyland, working undercover, drove the CI to the
Wawa. The driver of the Mercury then entered the backseat of the undercover
vehicle while Appellant remained in the Mercury. Detective Hyland observed
the CI give the driver $100 in marked bills in exchange for 12 small blue wax
paper baggies containing heroin/fentanyl mix. After the Mercury driver
returned to his vehicle, Detective Jonathan Shave observed Appellant, whom
____________________________________________
1 See Tr. Ct. Op., dated May 5, 2022, at 1-12.
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he recognized as “Gotti,” exit the Mercury, go into the Wawa briefly, then
enter another vehicle for a few seconds, before returning to the front
passenger seat of the Mercury.2
On February 4, 2019, after meeting with Detective Lund again, the CI
contacted Appellant by calling a cell phone ending in “8057” to purchase more
heroin. Appellant directed the CI to meet him at the Dollar General store in
Valley Township. Detective Hyland again drove the CI to the meeting place.
Meanwhile, Detective Nangle observed Appellant leave the Coatesville house
and drive away in his Buick, returning shortly thereafter, and entering the
house. Another individual then exited the house and drove a green Audi to
the Dollar General store.3 Once there, the driver of the Audi waved the CI
over to the vehicle and the CI entered the front seat. Detective Hyland
watched as the CI purchased from the Audi’s driver another twelve baggies
containing heroin/fentanyl mix.
The packaging from this sale was identical to the packaging of the
heroin/fentanyl mix that the CI had purchased three days earlier. Later testing
revealed that each batch contained the same unique chemical composition of
heroin and fentanyl.
Following the two controlled buys, detectives obtained a search warrant
for Appellant’s Coatesville house. On February 8, 2019, at 6:03 A.M., the
____________________________________________
2 N.T. Trial, 3/9/21, at 14.
3 Two different drivers were involved in these transactions.
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Chester County Regional Emergency Response Team (“CERT”), including
Detective Sergeant Jeremy Rubincan, Detective Paul Trautman and Police
Officer Paul Kemme, executed the search warrant.
Once inside Appellant’s home, the officers had to breach a locked
bathroom door. The officers then found Appellant hunched over the toilet
where his hands were wet and hovering above the toilet. Behind a shower
curtain next to Appellant, Officer Nangle found cocaine and heroin/fentanyl
mixture in the bathtub. Officer Nangle also found drug paraphernalia in the
kitchen, including blue wax baggies matching those obtained in the two
controlled buys, and other smaller baggies stamped with the word “Apple” or
with a picture of an apple.
In addition, officers found fourteen cell phones in the house, including
the phone ending in “8057.” Four of the cell phones contained Appellant’s
personal information and his personal photographs.4 Text conversations
retrieved from the phones indicated that Appellant identified himself as “Gotti”
in text messages.
The officers also found in different rooms of Appellant’s house three
other men and five women. In each of their rooms, officers found “different
____________________________________________
4 Officers were unable, however, to access the information on the device
ending in “8057.” Tr. Ct. Op. at 9.
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quantities of money, different quantities of drugs, and different types of
paraphernalia.”5
The Commonwealth arrested and charged Appellant under two different
docket numbers with twenty-two offenses, including PWID, conspiracy, and
the criminal use of a communication facility.
B.
Appellant filed a pre-trial motion seeking suppression of the evidence
obtained from the house based on an allegation that officers executed the
search warrant before 6:00 A.M.6
The court held a hearing on Appellant’s pre-trial motions on November
18, 2020, and March 8, 2021. CERT Officer Matt Williams testified that he
used his cellphone and wristwatch to confirm the time of the search, stating
that CERT did not leave the nearby staging area until 6:00 A.M. and that
____________________________________________
5 N.T. Trial, 3/9/21, at 237.
6 Appellant also filed a Motion for Discovery seeking the metadata recorded
from the helmet cameras officers used during the execution of the search
warrant. The court denied the motion, noting that pursuant to police
department policies in place in February 2019, the metadata was erased after
the images/videos were converted to a Windows compatible format. The court
further noted that it found credible testimony that the images and sound
retained in the Windows format are identical to those in the original metadata
recording. Finally, the court observed that the deletion of the original
recording goes to the weight, not the admissibility, of the recordings. Order,
dated 3/9/21, at n.2.
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officers executed the search warrant at 6:03 A.M.7 Detective Trautman
testified that the officers went into the home after 6:00 A.M. Time-stamped
video from body camera footage presented at the suppression hearing
confirmed that officers executed the warrant at approximately 6:03 A.M. The
trial court denied the suppression motion.
C.
On March 9, 2021, the matter proceeded to a consolidated jury trial at
which the investigating police officers and detectives testified to the above
facts. In addition, Detective Sgt. Rubincan, supervisor of the Chester County
Drug and Organized Crime Unit, testified as an expert.8 He testified that the
heroin/fentanyl mixture found in the bathroom of Appellant’s house matched
the composition of the mixture sold to the CI on February 1 and 4, 2019. Also,
the packaging of the heroin/fentanyl mix from the controlled buys was
identical to the packaging of the heroin/fentanyl the officers found in
Appellant’s bathroom and kitchen.
Detective Sgt. Rubincan also concluded that the quantity of the cocaine
and the heroin/fentanyl found in the bathroom was too great to be for
Appellant’s personal use.
Finally, Detective Sgt. Rubincan testified that he reviewed Appellant’s
bank statements and Xfinity customer information and concluded that
____________________________________________
7 N.T. Suppression, 3/8/21, at 23.
8 See N.T. Trial, 3/9/21, at 197-214.
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Appellant had two other residences. This conduct, of having multiple
residences, is a common practice that dealers in charge of drug enterprises
use to facilitate drug trafficking and avoid criminal prosecution. He also
testified that drug traffickers often use multiple cell phones, “flop houses” or
“trap houses” where groups of people live and work to facilitate the drug
trafficking enterprise. Drug traffickers also use “runners” to conduct the hand-
to-hand transactions.
The jury found Appellant guilty of four counts of PWID, 35 P.S. § 780-
113(a)(30), and two counts of Conspiracy, 18 Pa.C.S. 903.9 On July 9, 2021,
the court sentenced Appellant to an aggregate term of six to twelve years’
incarceration.10 Appellant filed post-sentence motions, which the trial court
denied on December 9, 2021. Appellant filed a notice of appeal on December
21, 2021. Both Appellant and the court complied with Pa.R.A.P. 1925.
D.
Appellant raises the following issues for our review, consolidated and
ordered for ease of disposition:
____________________________________________
9 The jury found Appellant not guilty of two counts of Criminal Use of a
Communication Facility, and the Commonwealth withdrew all remaining
charged offenses.
10 Specifically, at docket CP-15-CR-0001494-2019, the court sentenced
Appellant to two to four years’ incarceration on each PWID conviction, to be
served consecutively. The court imposed concurrent terms of two to four
years’ incarceration on each of the conspiracy convictions. At docket CP-15-
CR-0000979-2019, the court sentenced Appellant to two to four years’
incarceration on each PWID conviction to be served concurrently with one
another, but consecutive to the sentences imposed at docket no. 1494-2019.
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1. Did the lower court err in failing to make findings of fact and
conclusions of law [ ] before ruling on [Appellant’s] suppression
motion?
2. Did the lower court err in denying [Appellant’s] motion to suppress
evidence seized pursuant to a search warrant which authorized a
search between 6:00 a.m. and 10:00 p.m., when the
Commonwealth could not corroborate its witness’s testimony that
the warrant was executed after 6:00 a.m. because the police
destroyed the metadata of their video recordings of the search?
3. Was the evidence sufficient to prove beyond a reasonable doubt
that [Appellant] conspired to deliver fentanyl to a confidential
informant on February 1 and February 4, 2019?
4. Was there insufficient evidence to prove beyond a reasonable
doubt that [Appellant] constructively possessed the cocaine and
fentanyl with the intent to deliver, when other people had greater
access and control over the drugs and the amount was consistent
with personal use?
5. Did the lower court abuse its discretion and impose an excessive
sentence when it applied an offense gravity score of nine for
delivery of less than one gram of fentanyl?
Appellant’s Brief (38 EDA 2022) (“Appellant’s Br. 1”) at 4-5; Appellant’s Brief
(39 EDA 2022) (“Appellant’s Br. 2”) at 5-6.
E.
Appellant’s first two issues challenge the trial court’s denial of his Motion
to Suppress. Our review of a grant of a suppression motion is limited to
determining “whether the record supports the trial court’s factual findings and
whether the legal conclusions drawn from those facts are correct.”
Commonwealth v. Carmenates, 266 A.3d 1117, at 1122-23 (Pa. Super.
2021) (en banc) (citation omitted). “We may only consider evidence presented
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at the suppression hearing.” Id. at 1123 (citation omitted). Additionally,
because the Commonwealth prevailed on this issue before the suppression
court, we consider only the Commonwealth’s evidence and so much of the
defendant’s evidence as remains uncontradicted when read in the context of
the suppression record as a whole. Id.This Court is highly deferential to the suppression court’s factual findings
and credibility determinations. Commonwealth v. Batista, 219 A.3d 1199,
1206 (Pa. Super. 2019). “It is within the suppression court’s sole province as
factfinder to pass on the credibility of witnesses and the weight to be given to
their testimony. The suppression court is free to believe all, some or none of
the evidence presented at the suppression hearing.” Commonwealth v.
Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003) (internal citation omitted).
If the record supports the suppression court’s findings, we may not substitute
our own findings. Bastista, 219 A.3d at 1206. However, we give no such
deference to the suppression court’s legal conclusions and, instead, review
them de novo. Id. Once a defendant files a Motion to Suppress, “it is the
Commonwealth's burden to prove, by a preponderance of the evidence, that
the challenged evidence was not obtained in violation of the defendant's
rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047–48 (Pa. 2012)
(citation omitted); see also Pa.R.Crim.P. 581(H).
***
In his first issue, Appellant contends that the suppression court erred by
failing to state its findings of fact and conclusions of law on the record at the
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conclusion of the hearing, as required by Pa.R.Crim.P. 581(I). Appellant’s Br.
1 at 14-15. His lone argument, without citation to relevant case law, is that
this Court “is therefore precluded from its appellate function of determining
whether the record supports the trial court’s factual findings and whether the
legal conclusions drawn are correct.” Id. at 15. He acknowledges, however,
that this Court may conduct its review based on the trial court’s discussion of
its findings of fact in its Rule 1925(a) Opinion. Id. (citing Commonwealth
v. Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002) (en banc)).
Appellant did not raise this claim of suppression court error in his
Pa.R.A.P. 1925(b) Statement. Pursuant to our Rules of Appellate Procedure,
Appellant, thus, failed to preserve this issue for appellate review. Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement . . . are waived.”). As
a result, Appellant waived this claim of error.11
***
In his second issue, Appellant contends that the Commonwealth failed
to prove that the police properly executed the search warrant after 6:00 A.M.
____________________________________________
11 Moreover, Appellant’s argument that this Court is not able to conduct
appellate review without the suppression court’s record statement of its
findings of fact is meritless. In its Rule 1925(a) Opinion, the trial court
provided its findings in detail and explained why it denied Appellant’s
suppression motion. This Court was, thus, able to review the record pursuant
to our standard of review and conclude that the record supports the court’s
findings. See, e.g., Reppert, 814 A.2d at 1200 (reversing denial of
suppression motion by addressing the findings of fact that the suppression
court detailed in its Rule 1925(a) Opinion, notwithstanding lack of suppression
court’s statement of findings on the record). Thus, Appellant’s claim of error,
even if preserved, would garner no relief.
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Appellant’s Br. 1 at 15. He acknowledges, however, that one of the body
camera video recordings had a time stamp of 6:02:03 A.M., but avers that
“those things could be manually manipulated” so the actual time of the
execution could only be proven with the “metadata” from the recordings. Id.
at 16. He argues that because the Commonwealth could not produce the
metadata, the evidence that was presented at the suppression hearing failed
to prove that the police properly executed the warrant after 6:00 A.M. Id. at
15-16. Appellant nonetheless acknowledges that a deviation from the time
parameters set forth in the warrant “is technical” and unless the defendant
shows disadvantage, “the error does not require suppression.” Id. at 16.
Appellant does not argue that he suffered a disadvantage arising from the
alleged untimely service of the search warrant.
“Pursuant to the so-called exclusionary rule, ‘evidence discovered as a
result of a search that violates the fundamental constitutional guarantees
of Article I, Section 8 will be suppressed.’” Commonwealth v. Ruey, 892
A.2d 802, 808 (Pa. 2006) (citation and emphasis omitted). The courts,
however, distinguish between constitutional violations and mere technical
violations of search warrants:
Thus, it is important to distinguish between a violation of the
fundamental constitutional guarantees of Article I, Section 8 and
mere technical noncompliance with the Pennsylvania Rules of
Criminal Procedure. We have, in fact, specifically “rejected the
automatic application of the exclusionary rule to suppress
evidence seized pursuant to a search which in some way violates
the Pennsylvania Rules of Criminal Procedure relating to the
issuance and execution of search warrants.”
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Id. (citation omitted).
Here, Appellant is not challenging on constitutional grounds the legal
basis for the issuance of the search warrant or the manner of the search, nor
is he alleging that the search warrant was lacking any technical requirements.
See Pa.R.Crim.P. 205 (regarding contents of search warrant); Pa.R.Crim.P.
206 (regarding contents of application for a search warrant). Rather, he
challenges only the suppression court’s finding that the police executed the
search warrant after 6:00 A.M.
The trial court addressed Appellant’s claim in its Rule 1925(a) Opinion
as follows:
Looking at the record made at the suppression hearing, we
continue to find that the Commonwealth met its burden to show
that the police officers did not attempt to enter the [Coatesville]
house prior to 6:00 a.m.
The Commonwealth presented the testimony of Officer Matt
Williams, the Commander of the Chester County Regional
Emergency Response Team[.] He testified that he was present
when his team executed the warrant and it was his role to oversee
the operation on February 8, 2019, including the timing of the
entry. He testified that he used his cell phone and watch to
confirm the time prior to giving the command to proceed. The
CERT team did not approach the [Coatesville] house until he gave
his command at 6:03 a.m. (N.T., 11/18/2020, [at] 11-14). We
found this testimony credible and persuasive. Further, at the
suppression hearing, the Commonwealth’s witness explained that
the loss of the metadata was the result of the conversion process
in place at the time, not any malfeasance on the part of law
enforcement or the Commonwealth. No contradictory evidence
was provided by Appellant.
Tr. Ct. Op.. at 15.
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Our review of the record supports the court’s finding that the police
officers executed the warrant after 6:00 A.M. There is nothing in the record
contradicting that finding. In addition, the suppression court found Officer
Williams’ testimony credible and, as noted above, credibility determinations
are within the sole province of the suppression court. Elmobdy, 823 A.2d at
183. Accordingly, Appellant’s second issue garners no relief.
F.
Appellant’s next two issues challenge the sufficiency of the evidence
supporting his PWID and conspiracy convictions. Our review of challenges to
the sufficiency of the evidence is well-settled. “A claim challenging the
sufficiency of the evidence is a question of law.” Commonwealth v.
Widmer, 744 A.2d 745, 751 (Pa. 2000). “We review claims regarding the
sufficiency of the evidence by considering 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 find every element of the crime
beyond a reasonable doubt.” Commonwealth v. Miller, 172 A.3d 632, 640
(Pa. Super. 2017) (citation and quotation marks omitted). “Further, a
conviction may be sustained wholly on circumstantial evidence, and the trier
of fact—while passing on the credibility of the witnesses and the weight of the
evidence—is free to believe all, part, or none of the evidence.” Id. “In
conducting this review, the appellate court may not weigh the evidence and
substitute its judgment for the fact-finder.” Id.- 13 -
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***
Appellant first challenges the sufficiency of the evidence supporting
PWID convictions for the drugs found in the bathtub. See Appellant’s Br. 1 at
17-18. He contends that “eight other people arguably had access to the
drugs” found in the bathtub and opines that “one could be in the bathroom
and not be aware the drugs were there.” Id. at 18. He asserts that “[h]ad
he known that the drugs were in the tub, he would have been trying to dispose
of them, yet there was no evidence that the police heard the toilet flush as
they entered.” Id. He concludes that the totality of the circumstances here
supports the conclusion that it is just as likely that Appellant did not know the
drugs were in the bathtub. Id. at 18-19.
In order the establish the elements of the charge of PWID, the
Commonwealth must present evidence that a defendant possessed a
controlled substance with the intent to deliver it. 35 P.S. § 780-113(a)(30);
Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa. Super. 2008). If the
contraband is not found on the defendant’s person, the Commonwealth must
prove that the defendant had constructive possession of the contraband, i.e.,
the “ability and intent to exercise control or dominion over the
substance.” Commonwealth v. Hutchinson, 947 A.2d 800, 806 (Pa. Super.
2008). “Constructive possession is an inference arising from a set of facts
that possession of the contraband was more likely than
not.” Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012)
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(citation omitted). The Commonwealth may establish constructive possession
through the totality of the circumstances. Commonwealth v. Muniz, 5 A.3d
345, 349 (Pa. Super. 2010).
“For the Commonwealth to prove constructive possession where more
than one person has access to the contraband, the Commonwealth must
introduce evidence demonstrating either the defendant's participation in the
drug-related activity or evidence connecting the defendant to the specific
room or areas where the drugs were kept.” Commonwealth v. Hall, 199
A.3d 954, 961 (Pa. Super. 2018) (citation and quotation marks omitted).
Appellant challenged only the possession element of the PWID offense.
In addressing Appellant’s claim, the trial court summarized the evidence,
relevantly noting that “a significant amount of the heroin/fentanyl mixture was
found in the bathroom of the [Coatesville] house with Appellant;” “the
composition of the heroin/fentanyl mixture [that Appellant’s workers sold to
the CI] was the same as the composition of the heroin/fentanyl mixture seized
at the [Coatesville] house;” and the CI arranged the drug purchases with
Appellant. Trial Ct. Op., at 17-18.
In addressing the issue of whether Appellant had constructive
possession of the drugs in the bathroom at Appellant’s house, the trial court
highlighted Appellant’s actions to prevent the police from entering the
bathroom and his efforts to flush the drugs down the toilet:
In determining whether [ ] Appellant had possession of the
controlled substances found in the bathroom, the jury was able to
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consider all the facts and circumstances that shed light on the
question of whether he had the intent and power to control the
drugs.
We find that on February 8, 2019[,] Appellant’s actions show his
awareness of the drugs in the bathroom. It may be inferred from
the evidence presented that Appellant rushed to the bathroom
when law enforcement started knocking on the front door to the
[Coatesville] house. He locked the door to delay entrance into the
bathroom by the police, and he was disposing the drugs or
attempting to flush the drugs down the toilet when the bathroom
door was breached, and he was seen hovering over the toilet with
wet hands.
The trial court further noted that the composition of the drugs the police found
in the bathroom was the same as the drugs that the CI purchased from
Appellant and the quantity of drugs were for sale of drugs and not personal
use:
[Further,] Detective Sgt. Rubincan [ ] opined that the chemical
composition of the drugs found in the bathtub was the same as
the drugs sold to the CI on two separate occasions, and that the
packaging was also the same as the packaging of the
heroin/fentanyl mixture found in the bathroom. He also testified
that the quantity of the controlled substances found was too
voluminous to be possessed for personal use. He explained that
the number of heroin/fentanyl mixture packets found in the
bathroom could not be consumed by one individual, even one who
has the gravest addiction. As a result, after considering the
evidence in its totality and drawing all reasonable inferences in
the light most favorable to the Commonwealth, we find that is
sufficient evidence to show beyond a reasonable doubt that
Appellant was in possession of cocaine and the heroine/fentanyl
mixture with the intent to distribute them for sale.
Id. at 21-22.
Our review of the record supports the trial court’s conclusion that the
Commonwealth presented sufficient evidence to prove that Appellant
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constructively possessed the drugs found in the bathtub. As noted above,
appellate courts review the evidence presented to the jury in the light most
favorable to the verdict winner and it is solely within the jury’s province to
weigh the evidence and draw reasonable inferences from that evidence. We
do not consider “just-as-likely” speculative scenarios in addressing sufficiency
of the evidence claims as Appellant suggests we should do.
Viewing the evidence in the light most favorable to the Commonwealth
as verdict winner and the reasonable inferences drawn therefrom, we conclude
the evidence was sufficient to prove that Appellant constructively possessed
the drugs found in the bathtub.
***
Appellant also challenges the sufficiency of the evidence supporting his
convictions of conspiracy to deliver the drugs based on the CI’s controlled
buys on February 1 and 4, 2019. Appellant’s Br. 2 at 16. He contends that he
was merely “in the vicinity of the controlled buys,” and no other evidence
proved that he was involved in a conspiracy to deliver drugs. Id. at 19-20.
We disagree.
Conspiracy is defined in our Crimes Code as follows:
(a) Definition of 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
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(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(a).
“In order to prove the existence of a criminal conspiracy, the
Commonwealth must demonstrate that the defendant: (1) entered an
agreement to commit or aid in an unlawful act with another person or persons,
(2) with a shared criminal intent and, (3) an overt act was done in furtherance
of the conspiracy.” Commonwealth v. Chambers, 188 A.3d 400, 409–10
(Pa. 2018) (citation omitted). “At the heart of every conspiracy lies the
common understanding or agreement between the actors. Implicit in
any conspiracy is proof that an accused agrees to participate in the alleged
criminal activity.” Id. at 410 (citations, quotation marks, and ellipses
omitted).
The existence of a conspiracy agreement is rarely proven with direct
evidence. Commonwealth v. Spotz, 716 A.2d 580, 592 (Pa. 1998).
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. Indeed,
a conspiracy may be proven inferentially by showing the relation,
conduct, or circumstances of the parties, and the overt acts of
alleged co-conspirators are competent as proof that a criminal
confederation has in fact been formed.
Chambers, 188 A.3d at 410 (citations and quotation marks omitted;
emphasis added). Rather, the Commonwealth may prove a conspiracy
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agreement by circumstantial evidence. Commonwealth v. Feliciano, 67
A.3d 19, 23 (Pa. Super. 2013) (en banc). These circumstances include “the
relation between the parties, knowledge of and participation in the crime, and
the circumstances and conduct of the parties surrounding the criminal
episode.” Id. (citation omitted). See also Commonwealth v. Bricker, 882
A.2d 1008, 1017-18 (Pa. Super. 2005) (affirming PWID conspiracy conviction
where overt act was committed by co-conspirator and not the defendant).
In addressing Appellant’s conspiracy challenge, the trial court
emphasized that Appellant, using the alias “Gotti,” arranged the meeting time
and place with the CI on February 1, 2019. Additionally, the officers observed
him exit from the gold Mercury, briefly enter his house, and then return to the
passenger seat of the vehicle. At this point, another man immediately drove
Appellant to the Wawa to meet the CI. Tr. Ct. Op. at 19. See also N.T. Trial,
3/9/21, at 14 (Det. Shave), 73-74 (Det. Nangle). The court also noted that
both Appellant and the driver exhibited the same conduct at the Wawa, getting
into the back seat of other vehicles for a brief transaction before returning to
the Mercury and driving away. Tr. Ct. Op. at 18.
Further, after the CI set up the February 4th controlled buy with “Gotti,”
surveilling officers observed Appellant immediately leave the Coatesville
house, drive away in his vehicle, and return a short time later. Appellant then
re-entered the house and another man immediately exited and drove a green
Audi to the Dollar General store to meet the CI. The drugs the other man sold
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the CI were in the same packaging and with the same chemical composition
as the CI had purchased from Appellant a few days earlier. Id. at 7-8. The
trial court concluded that the Commonwealth presented sufficient
circumstantial evidence from which the jury reasonably inferred that Appellant
was part of a conspiracy to sell heroin/fentanyl.
After viewing the record evidence and considering all reasonable
inferences in the light most favorable to the Commonwealth, we agree with
the trial court’s conclusion. Moreover, it is reasonable to infer from Detective
Sgt. Rubincan’s expert testimony—regarding Appellant’s use of an alias,
multiple cell phones, a home where multiple people lived, runners to conduct
the transactions, and identical packaging containing a heroin/fentanyl mixture
of the same unique chemical composition in both sales—that Appellant and
others had “an agreement to commit or aid in an unlawful act with another
person or persons, [] with a shared criminal intent and, [] an overt act was
done in furtherance of the conspiracy.” Chambers, 188 A.3d at 410 (citation
omitted).
In light of our standard of review, we conclude that sufficient evidence
supports the jury’s conspiracy conviction. Accordingly, Appellant’s sufficiency
challenges fail.
G.
In his final issue, Appellant asserts that the “sentencing court abused
its discretion by applying an [OGS] of nine instead of eight[.]” Appellant’s Br.
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2 at 20. He contends that the court incorrectly applied an OGS of nine
“because the OGS for the offenses was reduced to eight in 2020, prior to his
sentencing in 2021.” Id. at 14-15. He asserts, without citation to supporting
authority, that since the “Sentencing Commission realized an OGS of nine was
too harsh for these offenses, the sentencing court should have come to that
conclusion as well.” Id. at 20.
“A claim that the sentencing court used an incorrect OGS is a challenge
to the discretionary aspects of one’s sentence.” Commonwealth v.
Williams, 151 A.3d 621, 625 (Pa. Super. 2016). An appellant raising such a
challenge is not entitled to review as of right; rather, a challenge in this regard
is properly viewed as a petition for allowance of appeal. 42 Pa.C.S. § 9781(b);
Commonwealth v. Tuladziecki, 522 A.2d 17, 18-19 (Pa. 1987);
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).
In order to obtain this Court’s review, an appellant challenging the
discretionary aspects of his sentence must comply with the following
requirements: (1) file a timely notice of appeal; (2) preserve the issue at
sentencing or in a motion to reconsider and modify sentence; (3) include
within his brief a concise statement of the reasons relied upon for allowance
of appeal as required by Pa.R.A.P. 2119(f); and (4) raise a substantial
question that the sentence is inappropriate under the Sentencing Code.
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa. Super. 2013).
Here, Appellant timely appealed, preserved his challenge in a post-
sentence motion to modify sentence, and included a Pa.R.A.P. 2119(f)
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Statement in his brief. His allegation that the sentencing court applied an
incorrect OGS resulting in an excessive sentence raises a substantial question.
Commonwealth v. Archer, 722 A.2d 203, 210-11 (Pa. Super. 1998) (en
banc). Accordingly, we proceed to consider the merits of Appellant’s claim.
In 2018, the Sentencing Commission amended the sentencing
guidelines to include crimes involving fentanyl, making the OGS nine for
offenses involving less than one gram of fentanyl. 204 Pa. Code § 303.15(June 1, 2018).
On December 6, 2019, the Sentencing Commission again amended the
guidelines and reduced the OGS from nine to eight for an offense involving
less than one gram of fentanyl. Id. (Dec. 6, 2019).
As the trial court aptly noted and of critical importance to our review of
this issue, amendments to the sentencing guidelines “apply to all offenses
committed on or after the effective date [of] the amendment[.]” 204 Pa. Code
§ 303.1(c); Tr.Ct.Op. at 25-26. Since Appellant committed his offenses in
February 2019 and the Sentencing Commission amended the OGS for fentanyl
in December 2019, the trial court properly used the OGS in effect when
Appellant committed the crime and applied an OGS of nine.
Thus, we conclude the sentencing court did not abuse its discretion or
err as a matter of law in applying an OGS of nine to Appellant’s crimes.
H.
In conclusion, none of the issues Appellant raises on appeal have merit.
Accordingly, we affirm his Judgment of Sentence.
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Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2023
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