Com. v. Markle, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JOSEPH ROBERT MARKLE :
:
Appellant : No. 1030 MDA 2021
Appeal from the Judgment of Sentence Entered October 4, 2018
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000643-2017
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED: MAY 4, 2023
Joseph Robert Markle (Appellant) appeals nunc pro tunc from the
judgment of sentence entered in the Bradford County Court of Common Pleas
after his jury conviction of conspiracy to commit possession with intent to
distribute (PWID) methamphetamine.1 On appeal, he challenges the
admission of his recorded prison phone calls and the sufficiency of the
evidence supporting his conviction. We affirm.
On November 10, 2016, Appellant and Carol Westefer, his girlfriend,
sold methamphetamine to Sayre Borough confidential informant (CI) Harry
Smith during a controlled buy. Appellant and Westefer were arrested for this
transaction approximately 10 months later, and charged with conspiracy to
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 903(a)(1); 35 P.S. § 780-113(a)(30).
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commit PWID.2 Appellant elected to proceed pro se during his preliminary
hearing and throughout pre-trial proceedings.
Meanwhile, after the November 10, 2016, drug sale, but before he was
charged criminally for that offense, Appellant was arrested for other unrelated
drug offenses. In March 2017, while incarcerated for these unrelated offenses,
Appellant made phone calls to his mother in which he stated that he sold
narcotics. See Commonwealth’s 404(b) Notice and Motion to Admit Evidence,
5/30/18, at 1-2 (unpaginated). On May 30, 2018, the Commonwealth filed a
Pa.R.E. 404(b) notice seeking to admit, inter alia, these phone calls, arguing
the evidence demonstrated “identity, intent to deliver controlled substances,
consciousness of guilt, and to prove [Appellant’s] participation in the
[November 10th] sale . . . was not that of an unwilling bystander.” Id. at 1.
The trial court scheduled a hearing on the admission of the Rule 404(b)
evidence for July 17, 2018. See Order, 6/4/18. The court also granted
Appellant’s request for the appointment of standby counsel.3 Id.
During the July 17th hearing, Appellant was assisted by standby counsel
Carrie Donald, Esquire, but continued to proceed pro se. He informed the trial
court that he would be asserting an innocent bystander defense at trial. N.T.,
2 Westefer was charged as a co-defendant but pleaded guilty to conspiracy to
commit PWID. Trial Ct. Op., 2/8/19, at 2. She later sought to withdraw her
guilty plea, but the trial court denied her motion. Id. As we discuss infra,
she testified as a Commonwealth witness at Appellant’s trial, but contradicted
the admissions in her guilty plea.
3 It is not apparent from the record when Appellant made this request.
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7/17/18, at 10. Based on this information, the trial court granted the
Commonwealth’s motion to admit the Rule 404(b) evidence on the following
conditions: (1) “the Commonwealth [must] first introduce evidence relevant
to the [November 10, 2016,] drug transaction[;]” and (2) Appellant must then
be afforded the opportunity to supplement the statements for “completeness
and context.” Order, 7/23/18; see N.T., 7/17/18, at 7, 10-11. The court also
stated: (1) it would provide a limiting instruction to the jury explaining the
evidence was not admitted to prove Appellant’s character, but instead only to
prove opportunity, intent, knowledge, lack of coincidence, or consciousness of
guilt; and (2) based on Appellant’s purported innocent bystander defense, the
probative value of the evidence outweighed any potential prejudice. Order,
7/23/18. At the end of the hearing, Appellant informed the court that that
standby counsel, Attorney Donald, would be taking over at trial. N.T.,
7/17/18, at 25.
On August 8, 2018, this matter proceeded to a two-day jury trial, where
the Commonwealth presented the testimony of CI Smith. See N.T., 8/8/18,
at 115-16. Smith stated that Sayre Borough Police Officer Bruce Hoffman
used his cell phone contact list to develop a list of potential drug dealers in
the area. See id. at 116-17. Based on this information, Officer Hoffman
coordinated Smith’s controlled purchase of methamphetamine from Carol
Westefer. See id. at 118-19. On November 10, 2016, Smith went to
Westefer’s home “between 2 and 6” in the afternoon to purchase
methamphetamine. Id. at 118-20, 126. Westefer told Smith she did not have
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any narcotics at that time, but to come back later that evening because “Joe[4]
would be coming down” and she would “get it from him[.]” Id. at 120-21.
Smith stated that he knew Appellant before November 10th because he had
purchased methamphetamine from him between 10 to 15 times. N.T., 8/9/18,
at 22. It does not appear these previous sales took place in Westefer’s home.
Id. Smith then testified that he returned to Westefer’s home later that night
after she told him “[Appellant] is here[,] you better hurry up cause . . . he’s
leaving.” N.T., 8/8/18, at 121.
Before going to Westefer’s home, Smith met with Officer Hoffman to
retrieve pre-recorded buy money. N.T., 8/8/18, at 123. When Smith arrived
at Westefer’s home, Appellant and Westefer were in the kitchen and the
narcotics were on the kitchen table. Id. at 123-24, 127. Smith noted that
Appellant was “pretty nervous” during the encounter. Id. at 123. When Smith
“went to hand [Appellant] the money[,]” Appellant “just shook his head[.]”
Id. at 124, 127. Smith “believe[d]” that Appellant then pointed to Westerfer,
so he handed her the money, which she proceeded to hand to Appellant. Id.
at 124, 127. Appellant then stated, “I got to get the fuck out of here this
place makes me uncomfortable as fuck. I don’t like it down here” and left.
Id. at 124, 128.
4The Commonwealth did not ask Smith or any other witnesses to identify
Appellant at trial. Appellant, however, does not raise any claim related to
mistaken identity.
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On cross-examination, Attorney Donald asked Smith if Appellant sold
Smith drugs on November 10, 2016. N.T., 8/8/18, at 132. The below
interaction followed:
[Smith]: Him personally[,] I mean he never gave it to me, . . . it
was on the table, . . . I just assumed it was his. . . .
[Attorney Donald]: You had no conversation with him though,
correct?
[Smith]: No, no, not prior to this[,] no.
[Attorney Donald]: All your conversations . . . about that purchase
of meth were with [Westefer?]
[Smith]: Correct.
[Attorney Donald]: And she took the money?
[Smith]: She took the money.
Id. at 132-33. Smith also stated that there was a third man in Westefer’s
home that he did not know, but was not “100% sure” if that man was present
during both interactions that day. Id. at 135.
The Commonwealth then presented the testimony of Westefer. She
acknowledged she entered a guilty plea to conspiracy on October 18, 2017.
The facts provided as the basis for her guilty plea stated that on November
10, 2016, she “entered into an agreement with [Appellant] to deliver . . .
methamphetamine to another individual[,]” and that she “was dealing with”
Appellant. N.T., 8/8/18, at 168-69. Westefer did not contest the factual basis
of her plea at the time it was entered. Id. at 168-70.
At Appellant’s trial, Westefer recanted her admission and testified she
was in a relationship with Appellant on November 10, 2016, and on that day,
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he was in her home to “collect some money that [she] owed him for helping
with the rent[;]” however, she claimed Appellant did not provide her with the
methamphetamine sold to Smith. N.T., 8/8/18, at 165, 188.
The Commonwealth then played for the jury the recorded prison phone
calls, in which Appellant spoke about past drug dealing activity. N.T., 8/8/18,
at 222, 225-28. After this, the Commonwealth read into the record, the
testimony of Bradford County Probation Officer Molly Murphy.5 Id. at 231.
Officer Murphy had interviewed Appellant in July 2017, in order to prepare a
presentence investigation (PSI) report for Appellant on a separate matter. Id.
at 234. During the interview, Appellant told Officer Murphy he “sold drugs for
income but not for use.” Id. at 236. The Commonwealth argued Officer
Murphy’s testimony was admissible for the same purpose as the recorded
phone calls. See N.T., 8/7/18, at 2-3. Attorney Donald objected at the
hearing, but the trial court stated it would admit the testimony under the same
circumstances as the recorded phone calls. See id. at 2-3, 5.
At the conclusion of trial, the jury found Appellant guilty of conspiracy
to commit PWID. On October 4, 2018, the trial court sentenced Appellant to
27 to 72 months’ incarceration. Appellant filed a timely post-sentence motion,
5 Officer Murphy was unavailable on the date of trial. The trial court allowed
the Commonwealth to preserve her testimony at a hearing the day before.
N.T., 8/7/18, at 1.
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which was denied on February 8, 2019.6 On March 8, 2019, Attorney Donald
filed a timely notice of appeal, but later failed to file an appellate brief. This
Court then dismissed Appellant’s appeal. See 430 MDA 2019, Order, 9/25/19.
Subsequently, Appellant filed a timely Post Conviction Relief Act (PCRA)7
petition alleging Attorney Donald was ineffective for failing to file an appellate
brief. See Appellant’s Pro Se Motion for Post Conviction Collateral Relief,
5/10/21. The trial court appointed the Bradford County Public Defender’s
office to represent Appellant and thereafter entered an order, by way of
stipulation, wherein the parties agreed that Appellant’s appeal rights shall be
reinstated, and he had 30 days from that order to file a notice of appeal nunc
pro tunc. See Order, 5/17/21; Stipulation of Counsel as to PCRA, 7/15/21.
On August 30, 2021, the Bradford County Public Defender’s office filed a
motion to withdraw from representation, which the trial court granted after a
Grazier8 hearing. The court then appointed Jason Beardsley, Esquire, to
represent Appellant. With new counsel, Appellant filed a timely notice of
appeal and concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b).
Appellant raises the following claims:
6 The trial court’s order is dated February 8, 2019, but was not sent to
Appellant until February 14, 2019. See Criminal Docket No. CP-08-CR-
0000643-2017, at 19.
7 42 Pa.C.S. §§ 9541-9546.
8 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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[1.] Did the [trial c]ourt commit reversible error by admitting
impermissible character/propensity evidence/bad acts evidence —
over trial counsel’s objection — in the form of jailhouse recordings
purportedly to show that . . . Appellant was familiar with the drug
industry and that Appellant was not at a drug deal by mistake
when in fact those recordings were admitted to show that . . .
Appellant had acted in conformity with past drug dealing behavior
and those instances that were spoken of in the recordings were
not in any way related or shown to be similar to the drug deal that
formed the basis of the conspiracy that . . . Appellant was
convicted of, and when the prejudicial effect of that evidence so
far outweighed any probative value that it should have been
excluded and the recordings did not meet all of the requirements
as a matter of law to be properly admitted as “bad acts” evidence?
[2.] Must . . . Appellant’s conviction for conspiracy to commit
[PWID] be vacated because there was insufficient evidence as a
matter of law to sustain the conviction?
Appellant’s Brief at 4.
In his first claim, Appellant argues the trial court abused its discretion
when it admitted phone calls he made to his mother while incarcerated on an
unrelated matter. Appellant’s Brief at 10. By way of background, in a March
9, 2017, recorded prison phone call, the following exchange occurred: 9
[Appellant’s] Mother: . . . at the jail, I can’t help ya.
[Appellant]: I know I’m at the jail Mom, you can’t sell the heroin.
[Appellant’s] Mother: Ya, well[.]
[Appellant]: What?
[Appellant’s] Mother: You can’t do the things you do.
9 The Commonwealth presented additional phone call recordings, but they
were inaudible or only partially audible. As such they were not accurately
recorded in the transcripts. See N.T., 8/8/18, at 227-28. Appellant does not
raise a challenge to the inaudible phone calls. See Appellant’s Brief at 7-8, 9
n.2.
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[Appellant]: Well I was selling drugs mom[.] I wasn’t doing them,
I’m sorry.
[Appellant’s] Mother: Okay. . . . Well that makes it better? No.
[Appellant]: No it doesn’t make it better[,] but don’t make it sound
like I’m in jail because I’m on drugs.
N.T., 8/8/18, at 225. In a March 17, 2017, recorded prison phone call,
Appellant stated the following:
[Appellant]: [D]on’t yell at me mom, Jesus this fucking shit is
getting ridicul[ous], so what I fucked up, I sold drugs, I’m in
fucking jail . . . for [three] months with nothing[.]
Id. at 227.
Before playing the above recordings, the trial court issued the following
instruction to the jury:
. . . You’re [going] to be hearing evidence in the form of a
statement made by [Appellant] while on the phone while he was
incarcerated. The statements do not specifically relate to the
conduct for which he is on trial here, but they do involve the sale
of drugs and given that he was incarcerated at the time they tend
to support the notion that he may have been separately charged
for offenses. [T]his evidence is being offered for [the] limited
purpose [that] it tends to show [Appellant] was an intentional
participant in the alleged drug sale and was not present at the
alleged drug sale by accident, by mistake or coincidence. This
evidence must not be considered by you in any way other than for
that limited purpose. You must not regard this evidence as
showing [Appellant] is a person of bad character or criminal
tendencies from which you might be inclined to infer guilt in this
particular case. [T]here is an issue as to whether [Appellant] was
present at this drug sale, by coincidence or if he was there as part
of a conspiracy. [T]hat’s what they are being offered for, to tend
to show that it was not just a coincidence. They are not being
offered to show he has . . . bad character, or that he is a drug
dealer, or that he has used drugs in the past.
N.T., 8/8/18, at 223-24.
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We review a challenge to the admissibility of evidence by the following
standard:
Questions concerning the admissibility of evidence are within the
sound discretion of the trial court, and its discretion will not be
reversed absent a clear abuse of discretion. An abuse of discretion
is not merely an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will or
partiality, as shown by the evidence of record. Furthermore, if in
reaching a conclusion the trial court over-rides [sic] or misapplies
the law, discretion is then abused and it is the duty of the appellate
court to correct the error.
Commonwealth v. Thompson, 106 A.3d 742, 754 (Pa. Super. 2014)
(quotation marks & citations omitted).
Only relevant evidence is admissible at trial. Pa.R.E. 402. Evidence is
relevant if it “has any tendency to make a fact more or less probable” and
“the fact is of consequence in determining the action.” Pa.R.E. 401(a)-(b).
We note, though, that the Pennsylvania Rules of Evidence generally prohibit
the admission of evidence of other crimes or bad acts “to prove a person’s
character in order to show that on a particular occasion the person acted in
accordance with the character.” Pa.R.E. 404(b)(1). However, character
evidence may be admitted for another purpose:
This evidence may be admissible [to prove] motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident. In a criminal case this evidence is
admissible only if the probative value of the evidence outweighs
its potential for unfair prejudice.
Pa.R.E. 404(b)(2).
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Returning to Appellant’s argument, he avers the above recordings were
“only admitted to blacken” his character and demonstrate that “based upon
his prior drug dealing activities[,]” he was guilty of the present offense.
Appellant’s Brief at 10. He maintains that the Commonwealth needed to show
a “logical connection or nexus” between the present matter and the subject of
the phone calls to admit such evidence to prove intent or absence of mistake.
Id. at 10-12. Appellant insists the evidence only consisted of general
statements that he dealt drugs on other occasions and were inadmissible
under the rules of evidence. Id. at 11. He contends that “no evidence
presented at . . . trial . . . made absence of mistake relevant.” Id. at 12-13.
Lastly, he argues that any probative value the evidence offered was “vastly
outweighed by its potential for prejudice,” as the jury would assume that
because “he was a drug dealer before[,] he must have been a drug dealer”
during the incident at issue. Id. at 13.
The trial court concluded the evidence was admissible to show that
Appellant was not merely present during the drug transaction by mistake.
Trial Ct. Op. at 5. Specifically, it opined that the evidence was admissible
because Appellant was asserting to the court that he was not involved in the
drug transaction, even if only through Commonwealth witness Westefer. Id.
at 5-6. Further, the court concluded the probative value of the evidence
outweighed any potential for unfair prejudice, and the phone calls were not
character evidence. Id. at 7-8. Instead, the trial court determined, and
instructed the jury, that the calls went directly to whether Appellant was
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present by accident or coincidence. Id. at 8-9. Lastly, the court relied on the
fact that it required the Commonwealth to present evidence of the crime
charged before it admitted the phone calls. Id. at 8. Upon our review, we
conclude the trial court did not abuse its discretion when it admitted the prison
phone calls.
The Commonwealth may offer other bad acts evidence under Rule
404(b)(2), which requires the Commonwealth to demonstrate that there was
a “logical connection” between the proffered conduct and the crime at issue.
See Commonwealth v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017) (holding
that evidence of other crimes is admissible where its probative value
outweighs its potential for prejudice and “show a logical connection between
them and the crime currently charged.”). Here, one can arguably draw a line
between this evidence and the present crime. The trial court concluded that
the evidence was not presented to establish Appellant’s propensity to
participate in such similar crimes, but instead was offered to merely show
“motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident[,]” as permitted by Rule 404(b). See Pa.R.E.
404(b), Trial Ct. Op. at 8. We agree.
In making this determination, the trial court relied on this Court’s
decision in Commonwealth v. Kinard, 95 A.3d 279 (Pa. Super. 2014) (en
banc). See Trial Ct. Op. at 10-11 n.2. In Kinard, the defendant’s co-
conspirator, his cousin, sold drugs in three controlled purchases to a CI in her
home. Kinard, 95 A.3d at 281. After the transactions, the police executed a
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search warrant at the co-conspirator’s home, where the defendant was the
only person present at the time. Id. Upon searching the defendant’s person,
police found evidence indicative of his involvement in the sales. Id. at 282.
At trial, the defendant’s co-conspirator testified that the defendant provided
her narcotics to sell and that they often spoke in code to elude the police,
using such terms as “cat food,” “cream of wheat,” “to get it ready,” and
“chicken” when discussing drug transactions. Id.The Commonwealth sought to admit evidence that while the defendant
was incarcerated and awaiting trial on this matter, he made phone calls in
which he used this same coded language to discuss the sale of narcotics.
Kinard, 95 A.3d at 282. The trial court admitted the evidence to show
absence of mistake and a common scheme. Id. at 285. At trial, the
Commonwealth presented an expert witness to further discuss the coded
language the defendant used in these phone calls. Id. at 282-83. This Court
noted that though the defendant did not present a defense, it “was clear” that
he was asserting “he was merely present” during the search of the co-
conspirator’s home and had no connection to the sale of drugs. Id. at 283.
The jury convicted the defendant of PWID and conspiracy.
On appeal, the defendant argued the phone calls constituted
inadmissible character evidence. Kinard, 95 A.3d at 284. This Court affirmed
his judgment of sentence, concluding the phone calls: (1) demonstrated the
defendant’s “knowledge and awareness of drug trafficking[;]” (2) showed he
was not in his co-conspirator’s home innocently, but was conducting business;
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(3) revealed a common plan, scheme, and design; (4) “demonstrated that
[the defendant] was engaged in ongoing drug transactions even after he was
arrested” that were “were similar, if not identical, to the drug transactions for
which he was charged[;]” and (5) because the phone calls happened after his
arrest, they established “the chain of events and course of criminal conduct[.]”
Id. at 285.
We conclude the above case is similar enough to the present matter that
we may conclude the trial court did not abuse its discretion. In Kinard, the
Commonwealth admitted evidence that showed the defendant was engaging
in “similar, if not identical” drug transactions while incarcerated even after his
arrest. See Kinard, 95 A.3d at 285. The evidence demonstrated the
defendant was using the same coded language during these phones calls that
his co-conspirator confirmed he used while dealing drugs. It was evident that
while the defendant was awaiting trial on those charges at issue, he was also
continuing to orchestrate further transactions in the same way he did before
his arrest.
Here, Appellant’s phone calls with his mother demonstrate a similar
connection. While incarcerated on unrelated drug charges, Appellant admitted
that he previously sold “heroin.” N.T., 8/8/18, at 225. The phone calls
established Appellant’s general “knowledge and awareness of drug
trafficking[,]” and that he was not an innocent bystander who just happened
to be at Westefer’s home when these drug transactions took place — similar
to the conversations of the defendant in Kinard. Further, the trial court
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specified on more than one occasion that these statements were not to be
offered to show Appellant’s propensity to commit similar crimes, but again to
merely show whether Appellant was present by accident or coincidence. See
N.T. 7/17/18, at 10-11, 18-20; Order, 7/23/18; N.T. 8/18/18, at 223-24. The
trial court then gave the jury a limiting instruction. “Juries are presumed to
follow instructions given by the court.” Commonwealth v. Hairston249
A.3d 1046, 1068 (Pa. 2021) (citation omitted). For these reasons, we
determine Kinard is similar to the present facts, and therefore applicable to
our determination. We conclude no relief is due.
Nevertheless, in the event the phone calls did amount to inadmissible
evidence, we would still conclude no relief is due because the trial court’s
admission constituted harmless error. Harmless error may be found where
“the erroneously admitted evidence was merely cumulative of other untainted
evidence which was substantially similar to the erroneously admitted
evidence.” Commonwealth v. Brown, 185 A.3d 316, 330 (Pa. 2018). While
we acknowledge that to reach a harmless error analysis, normally the
Commonwealth must raise the argument, this Court may affirm a valid
judgment on any basis in the record. See Commonwealth v. Moore, 937
A.2d 1062, 1073 (Pa. 2007) (holding that even though the Commonwealth
did not raise the argument, the admission of hearsay testimony was harmless
error because the appellate courts may affirm “a valid judgment based on any
reason appearing as of record, regardless of whether it is raised by the
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appellee”) (citation omitted); see also Commonwealth v. Hamlett, 234
A.3d 486, 492 (Pa. 2020).
Here the Commonwealth presented the testimony of Probation Officer
Murphy, who stated Appellant told her that he “sold drugs for income but not
for use.” N.T., 8/8/18, at 236. This evidence was admitted at trial and
Appellant does not challenge it on appeal. Officer Murphy’s testimony
demonstrated that Appellant had a general history of drug dealing, similar to
Appellant’s statements in the recorded phone calls. Because the contents of
the phone calls were merely cumulative of Officer Murphy’s testimony, we
would conclude the court’s improper admission of the prison phone calls
amounted to harmless error. See Brown, 185 A.3d at 330. We note that
Officer Murphy’s testimony was offered under the same argument and
circumstances as the recorded phone calls. Further, Appellant’s statements
to Officer Murphy also occurred after he was incarcerated for unrelated drug
offenses happening before he was charged for the present offense. Akin to
the recorded phone calls, this evidence is similarly problematic. However,
Appellant did not raise a challenge to this testimony on appeal, and therefore,
the jury heard testimony relaying that Appellant previously was involved in
drug sales.
In his second claim on appeal, Appellant challenges the sufficiency of
the evidence. Appellant’s Brief at 13. Our standard when reviewing a
challenge to the sufficiency is well-settled:
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The standard we apply in reviewing the sufficiency of the evidence
is 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. 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 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. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014) (citation
omitted).
Here, Appellant avers the Commonwealth failed to prove that he and
Westefer had a shared criminal intent or made an agreement to deliver drugs
to Smith during the November 10, 2016, transaction. Appellant’s Brief at 14-
15. Appellant maintains that Smith did not testify that he saw Appellant
provide drugs to Westefer. Id. Instead, he insists the evidence
demonstrated: (1) Smith stated only that Westefer told him Appellant would
provide the drugs; (2) Appellant did not handle the drugs during the
transaction; and (3) at trial, Westefer testified “she did not receive the drugs
. . . from Appellant.” Id. at 15.
Criminal conspiracy is defined, in relevant part, as follows:
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(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 . . . .
18 Pa.C.S. § 903(a)(1). This Court has summarized the following factors to
be analyzed in determining the sufficiency of the evidence supporting the
existence of a conspiracy:
Among the circumstances which are relevant, but not sufficient by
themselves, to prove a corrupt confederation are: (1) an
association between alleged conspirators; (2) knowledge of the
commission of the crime; (3) presence at the scene of the crime;
and (4) in some situations, participation in the object of the
conspiracy. The presence of such circumstances may furnish a
web of evidence linking an accused to an alleged conspiracy
beyond a reasonable doubt when viewed in conjunction with each
other and in the context in which they occurred.
Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002)
(citation omitted). Additionally,
[m]ere association with the perpetrators, mere presence at the
scene, or mere knowledge of the crime is insufficient to establish
that a defendant was part of a conspiratorial agreement to commit
the crime. There needs to be some additional proof that the
defendant intended to commit the crime along with his co-
conspirator. Direct evidence of the defendant’s criminal intent or
the conspiratorial agreement, however, is rarely available.
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. Once the trier of fact finds that there was an
agreement and the defendant intentionally entered into the
agreement, that defendant may be liable for the overt acts
committed in furtherance of the conspiracy regardless of which
co-conspirator committed the act.
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Commonwealth v. Dunkins, 229 A.3d 622, 633 (Pa. Super. 2020) (citation
omitted & emphasis added).
In finding there was sufficient evidence that Appellant conspired with
Westefer to sell methamphetamine, the trial court, relied on the
Commonwealth’s argument, and determined the Commonwealth sustained its
burden through the testimony of both Smith and Westefer. Trial Ct. Op. at 4.
We agree.
Viewing the evidence in the light most favorable to the Commonwealth,
as verdict winner, we find it was reasonable for the jury to conclude that the
“relations, conduct[,] circumstances[,] or overt acts” between Appellant and
Westefer demonstrated that Appellant conspired with Westefer to sell drugs
to Smith. See Dunkins, 229 A.3d at 633; Lambert, 795 A.2d at 1016; see
also Antidormi, 84 A.3d at 756. The Commonwealth presented the
testimony of Smith, which established that Westefer told him she would
retrieve drugs from Appellant and directed Smith to return to her home later
that evening to complete a drug transaction. See N.T., 8/8/18, at 118-20.
Further, Smith’s testimony established that Westefer told him to “hurry up”
and arrive before Appellant left so that Smith could retrieve the narcotics, and
that Westefer handed Appellant the money after the completed transaction.
See id. at 121, 124, 127. The Commonwealth also presented evidence that
at Westefer’s guilty plea hearing for the same offense, she agreed that she
and Appellant entered an agreement to deliver drugs on November 10th and
that she “was dealing [drugs] with” Appellant. N.T., 8/8/19, at 168-69.
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J-S26021-22
Though Westefer later recanted these admissions, the jury was free to credit
the admissions she made at her guilty plea hearing over those she made at
trial. See Antodormi, 84 A.3d at 756. No relief is due.
We agree the trial court did not abuse its discretion when it admitted
the recorded phone calls, and moreover, this evidence was cumulative.
Further, Appellant cannot establish the evidence was insufficient to support
his conviction, and as such, he is not entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/04/2023
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