J-S70017-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellee              :
                                         :
             v.                          :
                                         :
MICHAEL SHIELDS,                         :
                                         :
                   Appellant             :   No. 1978 EDA 2014

             Appeal from the Judgment of Sentence June 9, 2014,
                Court of Common Pleas, Philadelphia County,
              Criminal Division at No. CP-51-CR-0001658-2013

BEFORE: DONOHUE, LAZARUS and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED DECEMBER 04, 2015

        Michael Shields (“Shields”) appeals from the judgment of sentence

entered following his convictions of firearms not to be carried without a

license, tampering     with public records, criminal conspiracy, unsworn

falsifications to authorities and violations of the Uniform Firearms Act

(“VUFA”).1 We affirm.

        In January 2012, Shields convinced his fiancée, Listeree Brickey

(“Brickey”) to purchase a gun. Shields told Brickey that he would pay for

the gun, but that she had to use her debit card to buy it. On March 1, 2012,

Brickey purchased a Hi-Point JHP .45 caliber gun online, which was shipped

to a store for her to pick up. When filling out the requisite state and federal

paperwork at the gun dealer’s store, Brickey falsely stated that she was not



1
    18 Pa.C.S.A §§ 6106(a)(1), 4911(a)(1), 903, 4904(a)(1), 6111(g)(1),(4).


*Retired Senior Judge assigned to the Superior Court.
J-S70017-15


buying the firearm for another person. This occurred two more times in May

2012, with Shields providing money to Brickey to purchase the firearms, and

with Brickey denying that she was buying them for another person.

        In July 2012, Antonio Pickney was arrested and found in possession of

the .45 caliber gun Brickey purchased on March 1, 2012. In August 2012,

Manuel Santiago, an agent with the Attorney General’s Gun Violence Task

Force, contacted Brickey regarding this firearm and asked to meet with her.

When Brickey mentioned this up-coming meeting to Shields, Shields told her

that if Agent Santiago asked if she lived with anyone, she should not use his

real name, but refer to him by a particular fake name. In her meeting with

Agent Santiago, Brickey stated that she did not know Antonio Pickney and

when asked if she lived with anyone, she gave Agent Santiago the fake

name designated by Shields.            During the meeting, Agent Santiago asked

Brickey if they could go to her apartment and to look for her guns. Brickey

contacted Shields while en route to their apartment and told Shields that she

and Agent Santiago were coming to their home to look for the guns she had

purchased.      Shields instructed her to tell Agent Santiago that she had

purchased the guns as gifts for her father.            Agent Santiago and Brickey

could    not   find   any   of   the    guns   in   Brickey’s   and   Shields’   home.

Subsequently, Shields told Brickey to file a police report for the .45 caliber

firearm that was recovered from Antonio Pickney.                On this police report,

Brickey identified Shields by his real name as a cohabitant of her home.



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      Brickey eventually admitted to Agent Santiago that she lied to him

about Shields’ identity and that she did not buy the guns for her father, but

that she had given them to Shields.      Agent Santiago arrested Brickey on

multiple VUFA charges for acting as a straw purchaser for firearms. While

she was in prison on these charges, Shields wrote to Brickey, telling her to

say that she bought the guns for protection and as gifts for her aunt and

mother.       Brickey turned these letters over to the Philadelphia District

Attorney’s Office, with whom she was cooperating, and also agreed to record

her phone calls with Shields. In these calls, Brickey tried to convince Shields

to get the guns back, and Shields indicated that he would need $250 to do

so.   In December 2012, Shields told Brickey that he succeeded in getting

one of the guns back and that he would deliver it to her mother’s house.

Brickey informed Agent Santiago of this and Agent Santiago retrieved the

gun from Brickey’s mother’s house.      Agent Santiago subsequently placed

Shields under arrest.

      Following a jury trial, Shields was convicted of the above-mentioned

crimes. He was sentenced to an aggregate term of six and a half to thirteen

years in prison. This timely appeal follows, in which Shields raises only one

question, “[w]hether the evidence was insufficient to support all of [his]

convictions, which were based on a theory of conspiracy liability, because

the evidence was insufficient to sustain the conspiracy conviction?” Shields’

Brief at 4.



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      Our standard of review for a claim challenging the sufficiency of the

evidence is as follows:

            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 proof 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 the evidence
            actually received must be considered. Finally, the
            trier of fact while passing on the credibility of
            witnesses and the weight of the evidence produced,
            is free to believe all, part[,] or none of the evidence.

Commonwealth v. Yong, 120 A.3d 299, 311 (Pa. Super. 2015) (quoting

Commonwealth v. Pappas, 845 A.2d 829, 835-36 (Pa. Super. 2004)).

      As stated above, Shields alleges that the evidence was insufficient to

support his conspiracy conviction, and therefore, none of his convictions can

stand because they all are premised on his participation in a conspiracy.

Shields’ Brief at 8.

      Section 903 of the Crimes Code defines conspiracy 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;
                 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.A. § 903(a). Furthermore,

           [o]nce the trier of fact finds that there was an
           agreement, and that 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.         See Commonwealth v.
           Wayne, [] 720 A.2d 456, 463–64 ([Pa.] 1998).

           The essence of a criminal conspiracy, which
           distinguishes it from accomplice liability, is an
           agreement between the co-conspirators. See
           Commonwealth v. Lambert, 795 A.2d 1010, 1016
           (Pa. Super. 2002). However, “[a]n 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.”
           Commonwealth v. Johnson, 719 A.2d 778, 785
           (Pa. Super. 1998) (en banc) (citations omitted).
           Therefore, where the conduct of the parties indicates
           that they were acting in concert with a corrupt
           purpose, the existence of a criminal conspiracy may
           properly be inferred. Commonwealth v. Snyder, []
           483 A.2d 933, 942 ([Pa. Super.] 1984). Non-
           exclusive circumstances that may establish proof of a



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           conspiracy include: (1) an association between
           alleged conspirators; (2) knowledge of the
           commission of the crime; (3) presence at the scene
           of the crime; and (4) participation in the object of
           the conspiracy. Commonwealth v. Swerdlow, []
           636 A.2d 1173, 1177 ([Pa. Super.] 1994).

Yong, 120 A.3d at 312.

     We begin with the 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

               (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.A. § 903(a).

     “A conviction for criminal conspiracy … is sustained where the

Commonwealth establishes that the defendant entered 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.”   Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa.

Super. 2002) (en banc) (citation omitted).

     Shields argues that “if Brickey believed that she was telling the truth

[on the paperwork required for the purchase of the guns], then it necessarily



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follows that she did not believe that she was involved in a criminal

enterprise.”   Shields’ Brief at 11.    He concludes that “if she was not a

knowing participant in a criminal conspiracy … then it is legally impossible

for a criminal conspiracy to have been formed.” Id. We agree with Shields

that an agreement between the actors is an essential element of conspiracy.

See 18 Pa.C.S.A. § 903.        However, Shield’s argument hinges on the

acceptance of Brickey’s claim that she did not share an agreement with

Shields to act as a straw purchaser for firearms that he would later sell.2

This argument speaks to a claim that the conviction was against the weight

of the evidence, not that the evidence was insufficient to support the

conviction. See Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super.

2009) (holding that argument that the finder of fact should have credited a

witness' testimony goes to the weight of the evidence, not the sufficiency of

the evidence). “[A] weight of the evidence claim must be preserved either

in a post-sentence motion, by a written motion before sentencing, or orally

prior to sentencing. Failure to properly preserve the claim will result in

waiver, even if the trial court addresses the issue in its opinion.”

Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014)


2
  As recounted above, the evidence establishes that on three occasions,
Brickey purchased firearms for Shields and at his request; that she lied on
the federal and state documentation that she was required to fill out; that
she lied to Agent Santiago about Shields’ identity and falsely claimed that
she gave two of the guns to her estranged father. The jury was free to
reject Brickey’s explanations for her actions, see Commonwealth v.
Pruitt, 951 A.2d 307, 313 (Pa. 2008), which it obviously did.


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(internal citations omitted); see also Pa.R.Crim.P. 607. The record reveals

that Shields’ only post-sentence motion was a request for reconsideration of

his sentence and that he did not raise this claim prior to sentencing in any

manner. See Trial Court Order, 6/16/14; N.T., 6/9/14, at 2-8. Accordingly,

Shields has not preserved this challenge for appeal.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/4/2015




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