J-S73020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TERRY L. COLEMAN                           :
                                               :
                       Appellant               :    No. 1106 MDA 2019

        Appeal from the Judgment of Sentence Entered December 8, 2016
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0005318-2015


BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                           FILED FEBRUARY 11, 2020

        Terry L. Coleman appeals from the judgment of sentence, entered in the

Court of Common Pleas of Dauphin County, after a jury convicted him of

conspiracy1 and criminal use of a communication facility.2               After careful

review, we affirm.

        On August 11, 2015, Harrisburg City police officers conducted a

bust/buy    operation3     wherein     undercover   Officer   Nicholas   Ishman,    in

conjunction with a confidential informant (CI), purchased heroin. First, Officer

Ishman ensured the CI began the operation without any money, drugs, or
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1   18 Pa.C.S.A. § 903.

2   18 Pa.C.S.A. § 7512(a).

3 “A bust/buy operation is one where police officers go undercover or employ
confidential informants (CIs) to set up a drug transaction. Immediately after
the drug transaction, the person selling or buying the drugs is arrested.”
Pa.R.A.P. 1925(a) Opinion, 3/9/17, at 2 n.5.
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paraphernalia of his own. The CI subsequently made a phone call and ordered

a bundle of heroin—around ten baggies—for $80. Officer Ishman provided

the CI with the necessary $80, which had been photographed to document

each bill’s serial number. Officer Ishman and the CI then drove to the corner

of Fifteenth and Herr Streets in Harrisburg to meet the seller.

        While waiting, Officer Ishman saw a Saab drive by with three

occupants—Kendle Zufall in the driver’s seat, Cody Riegle in the front

passenger seat, and Coleman in the rear seat. Riegel exited the Saab, walked

over, got in Officer Ishman’s car, and produced a bundle of heroin. After the

CI handed over the agreed-upon $80 dollars, Riegel counted the money and

returned to the Saab. The Saab then drove away, only to be pulled over by

the police. Coleman attempted to flee on foot, but officers apprehended him.

They recovered $750 in cash on Coleman’s person, and a cell phone discarded

along the path Coleman took while fleeing. Officer Ishman called the number

the CI used to set up the sale and the recovered cell phone rang. The police

also searched the Saab, recovering heroin, paraphernalia, and the purchase

money.

        In addition to the above-mentioned crimes, the police charged Coleman

with flight to avoid apprehension4 and possession with intent to deliver

(PWID).5 Before trial, the Commonwealth withdrew the charge of flight to

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4   18 Pa.C.S.A. § 5126.

5   35 P.S. § 780-113(a)(30).

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avoid apprehension.      At trial, Zufall testified that in 2015, she had an

arrangement whereby she would drive Coleman, who lacked a vehicle, in

exchange for money and heroin. Following trial, the jury was unable to come

to a verdict regarding PWID, but convicted Coleman of conspiracy and criminal

use of a communication facility. On December 8, 2016, the court sentenced

Coleman to concurrent terms of 40 to 120 months’ incarceration for conspiracy

and 36 to 72 months’ incarceration for criminal use of a communication

facility.

       On January 5, 2017, Coleman timely filed a notice of appeal. Coleman’s

appellate counsel failed to timely comply with Pa.R.A.P. 1925(b) or timely file

a brief with this Court. On July 30, 2018, Coleman filed a motion to restore

his appellate rights. On August 13, 2018, the trial court granted Coleman

leave to appeal nunc pro tunc, which this Court subsequently vacated, having

determined Coleman’s request for restoration of his “direct appeal rights

should have been treated as a petition under the Post Conviction Relief Act

[(PCRA)].”     Commonwealth v. Coleman, 1568 MDA 2018 (Pa. Super.

February 4, 2019).      Upon remand, the court appointed new counsel and

restored Coleman’s appellate rights after he petitioned for relief under the

PCRA. Coleman timely filed the instant direct appeal. Both Coleman and the

court complied with Rule 1925.

       Coleman raises the following claims for our review:

       [1)]   Whether there was insufficient evidence produced at trial to
              establish each and every element of criminal conspiracy to
              possession with intent to deliver where the co-defendant

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             was not available for trial and did not testify as to any
             conspiratorial relationship with the appellant?

      [2)]   Whether there was insufficient evidence produced at trial to
             establish each and every element of criminal use of a
             communication facility where there was no testimony
             presented which established that the appellant was the
             person on the other end of the cell phone called by the [CI]
             to set up the drug transaction?

Brief of Appellant, at 3 (capitalization adjusted).

      This Court evaluates the sufficiency of the evidence supporting

Coleman’s convictions under the following, well-established standard:

      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. 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.
      In conducting this review, the appellate court may not weigh the
      evidence and substitute its judgment for the fact-finder.

Commonwealth v. Strafford, 194 A.3d 168, 174 (Pa. Super. 2018)

(citations and quotations omitted).      “Because evidentiary sufficiency is a

matter of law, our standard of review is de novo and our scope of review is

plenary.”    Commonwealth v. Brooker, 103 A.3d 325, 330 (Pa. Super.

2014).

      The Crimes Code defines conspiracy, in relevant part, 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:




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            (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); see Commonwealth v. Fisher, 80 A.3d 1186, 1190

(Pa. 2013) (“[T]he 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, (3) an overt act was

done in furtherance of the conspiracy.”).

      Further,

      The essence of a criminal conspiracy is a common understanding,
      no matter how it came into being, that a particular criminal
      objective be accomplished. Therefore, a conviction for conspiracy
      requires proof of the existence of a shared criminal intent.

      An explicit or formal agreement to commit crimes can seldom, if
      ever, be proved and it need not be, for proof of a criminal
      partnership is almost invariably extracted from the circumstances
      that attend its activities. Thus, a conspiracy may be inferred
      where it is demonstrated that the relation, conduct, or
      circumstances of the parties, and the overt acts of the co-
      conspirators sufficiently prove the formation of a criminal
      confederation.

Commonwealth v. McCoy, 69 A.3d 658, 664 (Pa. Super. 2013) (citations

and quotations omitted); see Commonwealth v. McCall, 911 A.2d 992, 997

(Pa. Super. 2006) (finding evidence sufficient to support conviction for

conspiracy to deliver where “he clearly took an active role in the illicit

enterprise.”).

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         Coleman avers “nothing specific” connects him to Riegle, who physically

conducted the sale, thus rendering his conviction impermissibly based on his

“mere presence” at the scene of the crime. See Brief of Appellant, at 12–13.

His argument is clearly belied by the record. Not only was Coleman present

at the scene, Zufall, his co-conspirator, testified to the existence, aims, and

extent of the conspiracy. See N.T. Trial, 12/6/16, at 75–77 (stating Coleman

provided Zufall and Reigle with heroin; in exchange Zufall drove Coleman

around while he distributed heroin); see also id. at 77–81 (stating on day of

arrest, Coleman discussed heroin on cell phone in Zufall’s car, ordered Zufall

to stop at Herr Street, and promised Riegle heroin in exchange for making

sale).

         Zufall’s testimony in and of itself furnished sufficient evidence to prove

Coleman, Zufall, and Riegle intended to distribute heroin6 and that they not

only took an act in furtherance thereof, they consummated the act of

delivering heroin to the CI, thereby establishing all three elements of criminal

conspiracy. See Fisher, supra at 1190 (outlining elements of conspiracy).

The circumstantial evidence—namely, Coleman’s flight from the scene, the

connection between the cell phone recovered along his path of flight and the



____________________________________________


6 We note, though the jury could not reach a verdict as to Coleman’s PWID
charge, the jury was free to find Coleman guilty of conspiracy to commit PWID.
See Commonwealth v. Thoeun Tha, 64 A.3d 704, 711 (Pa. Super. 2013)
(asserting inconsistent verdicts do not constitute basis for reversal; affirming
conspiracy conviction where jury acquitted defendant of underlying offense).

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underlying purchase, and the quantity of cash on his person—further cements

Coleman’s role in this conspiracy.          See N.T. Trial, 12/6/16, at 40–41

(describing flight, cash, and fact that recovered cell phone rang when police

dialed number used to set up drug deal). Consequently, Coleman’s first claim

fails. See McCall, supra at 997.

      In his second claim, Coleman argues his conviction for criminal use of a

communication     facility   rests   upon   insufficient   evidence   because   the

Commonwealth failed to establish his identity as the individual who answered

the CI’s call and agreed to deliver heroin. Brief of Appellant, at 14.

      The Crimes Code defines criminal use of a communication facility as

follows: “A person commits a felony of the third degree if that person uses a

communication facility to commit, cause or facilitate the commission or the

attempt thereof of any crime which constitutes a felony under this title or

under [the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §

780-101 et seq.]” 18 Pa.C.S.A. § 7512(a). Thus, to sustain a conviction for

criminal use of a communication facility, the Commonwealth must prove the

following:    “(1) [the appellant] knowingly and intentionally used a

communication facility; (2) [the appellant] knowingly, intentionally or

recklessly facilitated an underlying felony; and (3) the underlying felony

occurred.” Commonwealth v. Moss, 853 A.2d 374, 382 (Pa. Super. 2004).

Further, though “the Commonwealth must also establish the identity of the

defendant as the perpetrator of the crimes . . . [d]irect evidence of identity is,


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of course, not necessary and a defendant may be convicted solely on

circumstantial evidence.” See Commonwealth v. Smyser, 195 A.3d 912,

915 (Pa. Super. 2018).

      Coleman exclusively argues the Commonwealth failed to provide

evidence, beyond mere conjecture, establishing his identity as the individual

who answered the CI’s phone call and arranged for the sale of heroin. See

Brief of Appellant, 14–18.        We limit our review accordingly.          See

Commonwealth v. Johnson, 33 A.3d 122, 126 (Pa. Super. 2011) (“[C]laims

not raised in the trial court may not be raised for the first time on appeal.”).

      Coleman’s argument is without merit. Again, Zufall’s testimony in and

of itself furnished sufficient evidence to identify Coleman as the perpetrator

and convict him. See N.T. Trial, 12/6/16, at 77–81 (stating on day of arrest,

Coleman discussed heroin on cell phone in Zufall’s car, ordered Zufall to stop

at Herr Street, and dispatched Reigle to complete sale of heroin); see also

Moss, supra at 382 (establishing elements of offense).             Further, the

Commonwealth offered strong circumstantial evidence identifying Coleman as

the perpetrator in the form of Officer Ishman’s testimony recounting the

recovery of a cell phone from the path Coleman took while fleeing and stating

the recovered cell phone rang when the police dialed the number the CI used




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to set up the drug deal.7 See id at 40; see Smyser, supra at 915. Taken

in the light most favorable to the Commonwealth, the above-mentioned

evidence furnished sufficient evidence to establish Coleman’s identity beyond

a reasonable doubt. See Smyser, supra at 915.

       Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/11/2020




____________________________________________


7 Coleman raises the dubious claim that it was “rank hearsay” for Officer
Ishman to assert that the “cell phone rang when the police used the number
the CI provided.” Brief of Appellant, at 15–16. He, however, provides no
citation in support of this proposition. Id. at 16. Further, he concedes “there
was no objection [raised] by trial counsel.” Id.

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