J-A29041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICHARD COOK                               :
                                               :
                       Appellant               :   No. 616 EDA 2017

            Appeal from the Judgment of Sentence January 20, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0008509-2015


BEFORE:      OTT, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                      FILED DECEMBER 10, 2018

       Appellant, Richard Cook, appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County following his

conviction at a bench trial on the charges of possession with the intent to

deliver a controlled substance (“PWID”), possession of a controlled substance,

criminal conspiracy (simple assault), possession of firearms prohibited,

firearms not to be carried without a license, criminal trespass, carrying

firearms in public in Philadelphia, possession of an instrument of crime, simple

assault, recklessly endangering another person, and resisting arrest.1 After a

careful review, we affirm.




____________________________________________


135 P.S. §§ 780-113(a)(30) and (a)(16); 18 Pa.C.S.A. §§ 903, 6105, 6106,
3503, 6108, 907, 2701, 2705, and 5104, respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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      The relevant facts and procedural history are as follows: Appellant was

arrested, and on October 14, 2016, represented by counsel, he proceeded to

a bench trial. At trial, Niketta Burnside testified that, on June 23, 2015, she

was living at 45th and Market Streets in Philadelphia with her children and then

paramour, Dennis Scott. N.T., 10/14/16, at 11.     At 4:30 a.m., she awoke to

feed her infant and discovered the residence had no electrical power. Id. She

heard someone outside yelling, “Power outage. Power outage.” Id.

      Ms. Burnside proceeded downstairs to the area where Mr. Scott was

asleep and spoke to him about the lack of electricity in the residence. Id.

Suddenly, someone knocked on the front living room window, and Mr. Scott

opened the front door. Id. A man, who Ms. Burnside identified in court as

Appellant, informed the couple that he was “letting the neighbors know that

there was a power outage.” Id. at 12.

      Ms. Burnside testified she shut the front door, and the couple sat in the

living room. Id. at 13. Ms. Burnside noticed the houses across the street

appeared to have electricity, so Mr. Scott went into the backyard to investigate

further. Id. The backyard was illuminated by a security light in the complex’s

courtyard. Id. at 13, 53, 59. As Mr. Scott stood outside the back door, Ms.

Burnside observed as a man, who Ms. Burnside identified in court as

Appellant’s co-defendant, Jerome Livingston, entered the backyard and

pointed a gun at Mr. Scott. Id. Mr. Livingston came within ten feet of Mr.

Scott and said, “Don’t move.” Id. at 15.


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      Ms. Burnside ran upstairs with her infant, locked herself in a bedroom

with her other child, and called 911. Id. at 16. The police arrived within five

or ten minutes. Id. at 23, 56. The police presented her with Mr. Livingston,

who the police had apparently captured, and she positively identified him as

the person who had been in her backyard. Id. at 22-23.

      The next day, Ms. Burnside examined her property to determine the

reason her residence had no electrical power.        Id. at 23-24, 54.      She

discovered that a main breaker box in the backyard had its power switched to

the “off” position. Id. at 24. When she flipped the switch to the “on” position,

electrical power was restored to her home. Id. She testified that the breaker

box controlled the electricity solely to her residence. Id.

      Ms. Burnside testified that, prior to the incident on June 23, 2015, she

had never met Appellant or Mr. Livingston, and neither man had permission

to be on her property. Id. at 27. She also testified that Mr. Scott showed no

indication that he was acquainted with either man prior to June 23, 2015, and

Mr. Scott did not invite the men over at 4:30 a.m. Id. at 54-55. Ms. Burnside

confirmed there was “no doubt” in her mind that Appellant was the person

who knocked on her front door on June 23, 2015, and announced there was a

power outage in the neighborhood. Id. at 67.

      Sergeant Arthur Anderson testified that he was the first supervising

officer on the scene, and he, along with another officer, approached the

backyard of the subject property, where they were met by Mr. Scott. Id. at


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74. Sergeant Anderson testified Mr. Scott was afraid and announced that he

had just been robbed at gunpoint. Id. at 81. Mr. Scott told the Sergeant that

“the males were at the back of the residence [and] [t]hey fled out the back of

the property upon police arrival.” Id.

      Sergeant Anderson testified that the police had been provided with

information that they “were looking for two suspects. Suspect number one

was a [] black male wearing all black clothing. Second suspect was a black

male, muscular build, wearing a gray shirt with a white shirt underneath.” Id.

at 87. Sergeant Anderson set up a perimeter around the scene to look for the

suspects.

      Police Officer Joseph Digangi testified that he was directed by Sergeant

Anderson to check the area for suspects, and he found Mr. Livingston hiding

in a bush in the backyard of the subject premises. Id. at 114-15.

      Police Officer Christopher Campbell testified that he was part of the

police perimeter ordered by Sergeant Anderson. Id. at 120. He confirmed

that Mr. Livingston was hiding under a bush behind the subject house and was

arrested by Officer Digangi.    Id. at 120-21.     He also testified that, at

approximately 5:35 a.m., he went to the rear of the courtyard of the houses

on the 4500 block of Market Street, and he climbed onto construction

scaffolding and ladders that were in the yard at 20 South 45th Street. Id. at

121. He observed Appellant, who was texting on a cellphone, squatting down

and leaning against a fence in the backyard of 22 South 45th Street. Id. at


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122,   133.   Officer   Campbell   testified   that   Appellant’s   location   was

approximately twelve or fifteen feet from where Mr. Livingston was found

hiding in a bush. Id.

       Officer Campbell ordered Appellant to “show his hands[,]” and Appellant

responded, “Fuck that. You’re just going to have to shoot me.” Id. at 122.

Appellant then jumped over the fence into the rear yard of 24 South 45 th

Street and started to climb the fence to proceed out of that rear yard. Id.

Apparently seeing that officers were positioned on the other side of the fence,

Appellant retreated back into the rear yard of 24 South 45th Street, ripped the

screen off the residence’s back window, opened the window, and then climbed

into the window. Id. at 122-23. As Appellant climbed through the window, a

fellow police officer deployed his taser; however, it had no effect on Appellant

who continued fleeing into the house. Id. at 123.

       Officer Campbell heard a female voice screaming for help inside of 24

South 45th Street, and a female occupant stuck her head out the window

screaming “There’s somebody in my house. There’s somebody in my house.”

Id. at 124. Officer Campbell told her to lock the door of the room and officers,

including Officer Campbell, entered the residence from the rear and front. Id.

at 123. Officer Campbell discovered Appellant hiding in a closet in a second

floor bedroom.    Id.   Appellant was hit with the taser again; however, it

appeared to have no effect on Appellant. Id. After a struggle, the police

handcuffed Appellant. Id.


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      Following the capture of Appellant, Officer Campbell proceeded to the

rear yard of 22 South 45th Street. Id. at 124. He seized a cellphone. Id. He

also observed a small gap in the wooden picket fence between the houses on

20 and 22 South 45th Street, and inside the gap he “observe[d] a black

handgun, and a clear plastic bagg[ie] with a large amount of off-white, chunky

substance[.]” Id. at 124-25. He testified that it would have been easy to

reach from the rear yard of 22 South 45th Street and drop the items into the

gap. Id. at 125. The gun and baggie were right beside each other. Id. at

91.   Officer Campbell testified that, when he initially observed Appellant

squatting down in the rear yard of 22 South 45th Street, he was “less than

arm’s reach [and] snugged up against” the gap in the fence from which the

gun and baggie were recovered. Id. at 142-43.

      Detective Rudolph Valentine testified that he processed the scene and

the baggie testified positive for crack cocaine. N.T., 10/17/16, at 33-34. He

also testified the firearm seized from the fence was a loaded .40 caliber

firearm. Id. at 34-36. Mr. Livingston had $3,000 in cash on his person at the

time of his arrest. Id. at 37. Detective Valentine testified the crack cocaine

was actually a “brick.” Id. at 45.

      The parties placed numerous stipulations on the record, including the

fact Appellant was ineligible and not licensed to possess a gun on June 23,

2015; the substance in the baggie tested positive for cocaine and weighed

99.046 grams; and the seized firearm was operable. Id. at 69-74. Further,


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the parties stipulated that, if the Commonwealth called Police Officer Craig

Perry to testify, he would testify that he attempted to lift latent fingerprints

from the firearm but the results were negative for fingerprints. Id. at 69.

Officer Perry would further testify that he swabbed the firearm for DNA. Id.

at 70.

         Moreover, the parties stipulated that, if the Commonwealth called

Lisette Vega, who is assigned to the Philadelphia Police Department DNA Lab,

to testify, she would testify that she analyzed samples of DNA taken from

Appellant and Mr. Livingston. Id. at 71-72. She found partial DNA in the

handle, magazine release, and trigger area of the firearm; however, due to

insufficient data, the samples were inconclusive as to Appellant and Mr.

Livingston. Id. at 72. She also found DNA in the empty magazine, which is

located inside the firearm, but Appellant and Mr. Livingston were excluded as

contributors for the DNA. Id. Furthermore, the parties stipulated that, if the

Commonwealth called Police Officer Melvin Floyd as an expert, he would opine

that the cocaine was possessed with the intent to distribute it.2 Id. at 74.

         Based on the aforementioned, the trial court convicted Appellant of the

offenses indicated supra.       On January 20, 2017, Appellant proceeded to a

sentencing hearing, at the conclusion of which the trial court imposed an


____________________________________________


2As the trial court noted in its opinion, Mr. Scott did not testify at trial. Trial
Court Opinion, filed 10/11/17, at 2 n.1. Following the incident at issue, Ms.
Burnside and Mr. Scott “broke up,” and the police were unable to maintain
contact with him. Id.

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aggregate of six years to twelve years in prison.     Appellant filed a timely

motion for reconsideration of his sentence, which the trial court denied. This

timely, counseled appeal followed.    On February 13, 2017, the trial court

directed Appellant to file a Pa.R.A.P. 1925(b) statement, Appellant complied,

and the trial court filed a responsive Pa.R.A.P. 1925(a) opinion.

      On appeal, Appellant sets forth the following issues in his Statement of

Questions Presented (verbatim):

      1. Did not the lower court err in finding Appellant guilty of
         conspiracy on insufficient evidence where he was proved only
         to be merely present at the scene of a crime ten minutes before
         it was committed?
      2. Did not the lower court err in finding Appellant guilty of
         possession of a controlled substance with intent to deliver and
         possession of a firearm on insufficient evidence of possessing
         either the drugs or the gun where he was never seen in
         possession of either item, was never seen occupying or
         reaching into the backyard where they were found, and was
         excluded as a source of the DNA found on the gun?

Appellant’s Brief at 3.

      In his first issue, Appellant contends the evidence was insufficient to

sustain his conviction for conspiracy. Specifically, he avers the evidence was

insufficient to demonstrate that he had the intent of promoting or facilitating

a crime or that he agreed to commit a crime. In this vein, he avers he was

“merely present ten minutes before the commission of Mr. Livingston’s

crimes[.]” Id. at 11. Appellant further contends:

      The only association between Appellant and Mr. Livingston in this
      trial record is that [Appellant] was coincidentally at the front of
      the complainant’s house, going through his trash, drawing

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      attention to himself and the house, sometime before Mr.
      Livingston was at the back of the house pointing a gun at the
      complainant.

Id.

      Initially, we note our standard of review:

      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. Best, 120 A.3d 329, 341 (Pa.Super. 2015) (quotations

and citations omitted).

      Appellant challenges the sufficiency of the evidence as to his conviction

for conspiracy.

            To sustain a conviction for criminal conspiracy, the
      Commonwealth must establish that the defendant (1) entered into
      an agreement to commit or aid in an unlawful act with another
      person or persons, (2) with a shared criminal intent and (3) an
      overt act was done in furtherance of the conspiracy. “This overt
      act need not be committed by the defendant; it need only be
      committed by a co-conspirator.”


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           As our Court has further explained with respect to the
      agreement element of conspiracy:
            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. . . .Even
            if the conspirator did not act as a principal in
            committing the underlying crime, he is still criminally
            liable for the actions of his co-conspirators in
            furtherance of the conspiracy.

Commonwealth v. McCall, 911 A.2d 992, 996-97 (Pa.Super. 2006)

(quotations and citation omitted). See 18 Pa.C.S.A. § 903(a)(1) (defining

conspiracy).

      In rejecting Appellant’s claim, and finding the evidence was sufficient,

the trial court relevantly indicated the following:

            Because direct evidence of the defendant’s intent or the
      conspiratorial agreement is seldom available in a prosecution for
      conspiracy, conspiracy can be established entirely through
      circumstantial evidence.
                                     ***

            In the present case, [Appellant] knocked on the front door
      of the house under the guise of alerting the occupants to a power
      outage. One or both of the [d]efendants had manually turned off
      the power, which only affected Ms. Burnside’s residence. While
      [Appellant’s] actions were targeted to the front of the house, his
      co-conspirator approached the back door of the house, through
      the gate, [and] armed with a gun[,] which he used to hold Mr.
      Scott hostage. [Mr.] Livingston was positively identified by Ms.
      Burnside as the man she witnessed with the gun[.] [Appellant]
      was positively identified as the man knocking on their door in the
      middle of the night about a power outage. The specificity of the
      feigned power outage, the late hour, the knock at the front door
      and windows, the intrusion into the backyard, and the flight from
      police, all allowed the [trial court judge] to reasonably infer that



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        [Appellant] and Mr. Livingston conspired together in committing
        these crimes.

Trial Court Opinion, filed 10/11/17, at 9-10 (citations omitted).

        We agree with the trial court’s analysis. We specifically disagree with

Appellant’s claim the evidence reveals, at most, that he was “merely present”

at the scene of the crime. We note that, in developing his argument, Appellant

views the evidence in the light most favorable to him. However, applying the

appropriate standard of review, the evidence supports the trial court’s

conclusion that Appellant was not “merely present;” but rather, he was an

active participant who assisted Mr. Livingston in committing a rouse to lure

the victims out of their home. See Best, supra. Thus, we reject Appellant’s

sufficiency of the evidence claim.

        In his second claim, Appellant contends the evidence was insufficient to

sustain any of his convictions related to the possession of the cocaine or the

firearm. In this vein, Appellant contends there was insufficient evidence to

demonstrate that he actually or constructively possessed the baggie of cocaine

or firearm, which was seized from the gap in the fence in the backyard of 20

South 45th Street.

        As Appellant notes, the crimes of PWID, possession of a controlled

substance, and possession of an instrument of crime, as well as the crimes for

which Appellant was convicted under the VUFA,3 “all have one thing in


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3   Appellant was convicted of violating 18 Pa.C.S.A. §§ 6105, 6106, and 6108.

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common: In order to sustain a conviction, the Commonwealth must prove that

the accused actually or constructively possessed the contraband.” Appellant’s

Brief at 16 (citing 35 P.S. §§ 780-113(a)(30) and (a)(16); 18 Pa.C.S.A. §§

6105, 6106, 6108, and 907) (other citations omitted).

      Here, there is no evidence that Appellant was observed in actual

possession of either the baggie of cocaine or firearm.              Thus, the

Commonwealth was required to establish that he had constructive possession

of the seized items to support his convictions.       See Commonwealth v.

Brown, 48 A.3d 426, 430 (Pa.Super. 2012).

            Constructive possession is a legal fiction, a pragmatic
      construct to deal with the realities of criminal law enforcement.
      Constructive possession is an inference arising from a set of facts
      that possession of the contraband was more likely than not. We
      have defined constructive possession as conscious dominion. We
      subsequently defined conscious dominion as the power to control
      the contraband and the intent to exercise that control. To aid
      application, we have held that constructive possession may be
      established by the totality of the circumstances.

Id. (quotation marks and quotation omitted).

      Here, in rejecting Appellant’s claim the evidence was insufficient to

demonstrate that he had constructive possession of the baggie of cocaine and

firearm, the trial court relevantly indicated the following:

            In the instant case, the Commonwealth’s evidence
      established, beyond a reasonable doubt, that [Appellant] had
      constructive possession of the crack cocaine and gun. The
      contraband was discovered right next to where [Appellant] was
      hiding in the [] courtyard. Though it was a semi-public area for
      the residents of the complex, . . .there were no other people
      around the stashed contraband. Additionally, an officer had
      observed [Appellant] presumably texting on his cell phone, and

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       the drugs, gun, and cell phone were all found [in the same area].
       When discovered by police officers in his hiding place, [Appellant]
       jumped, shouted “Fuck that. You’re just going to have to shoot
       me,” then hopped the fence into the next yard and proceeded to
       break into another house in an attempt to evade the police
       capture. Finally, [Appellant’s] co-conspirator was found with
       $3,000 on his person. In summary, the evidence and reasonable
       inferences drawn therefrom indicate that [Appellant] knew of the
       existence of the crack cocaine and gun, and concealed it or was
       aware of its concealment in a place to which he would have future
       access. The ability to exercise domain or control and the intent to
       do so are thus present, establishing constructive or joint
       constructive possession.

Trial Court Opinion, filed 10/11/17, at 12-13.

       We agree with the trial court’s analysis.      Applying our standard of

review, and examining the totality of the circumstances, we agree with the

trial court that the evidence was sufficient to establish Appellant constructively

possessed the baggie of crack cocaine and firearm.4 See Commonwealth v.

Hutchinson, 947 A.2d 800 (Pa.Super. 2008) (holding evidence sufficient to

demonstrate constructive possession of cocaine found in rafters of a park


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4 We note that Appellant repeatedly asserts on appeal that he was “excluded
as a source of the DNA found on the gun.” Appellant’s Brief at 16, 18.
Appellant has mischaracterized the parties’ stipulation as to the DNA evidence.
The parties stipulated that partial DNA was found on the outside of the firearm
(i.e., the handle, magazine release, and trigger area of the firearm); however,
due to insufficient data, the samples relative to Appellant and Mr. Livingston
were inconclusive. N.T., 10/17/16, at 70-72. While Appellant and Mr.
Livingston were excluded as contributors of the DNA found inside the firearm
on the empty magazine, id. at 72, such evidence is not dispositive and does
not render the evidence of constructive possession against Appellant
insufficient. Rather, based on the totality of the circumstances and applying
the appropriate standard of review, such evidence tends to suggest, at most,
that someone other than Appellant or Mr. Livingston loaded the gun at some
point prior to the incident. See Brown, supra.

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pavilion where police observed the defendant in the park after closing hours,

the defendant reached into the rafters, and the defendant sat on a park bench

counting money).

     For all of the foregoing reasons, we reject Appellant’s sufficiency of the

evidence claims, and we affirm his judgment of sentence.

     Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/18




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