J-S53020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT
                                                    OF PENNSYLVANIA
                             Appellee

                        v.

    JOSE RAMON

                             Appellant              No. 1976 EDA 2018


        Appeal from the Judgment of Sentence imposed June 21, 2018
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0001608-2017


BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

MEMORANDUM BY STABILE, J.:                     FILED DECEMBER 31, 2019

       Appellant, Jose Ramon, appeals from the judgment of sentence imposed

June 21, 2018 in the Court of Common Pleas of Philadelphia County after a

jury convicted him of possession with intent to deliver (“PWID”), possession

of a controlled substance, conspiracy to commit PWID, carrying a firearm

without a license, and carrying a firearm on a public street.1      Appellant

contends the evidence was insufficient to support the verdicts and that the

verdicts were against the weight of the evidence. Following review, we affirm.

       The trial court provided a thorough summary of testimony from

Appellant’s trial as follows:


____________________________________________


135 P.S. § 780-113(A)(30), 35 P.S. § 780-113(A)(16), 18 Pa.C.S.A. § 903,
18 Pa.C.S.A. § 6106 and 18 Pa.C.S.A. § 6108. The trial judge found Appellant
guilty of possession of a firearm by a prohibited person, 18 Pa.C.S.A. § 6105.
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     At about 11:30 a.m., December 15, 2016, Philadelphia Police
     Officer Charles Harron, an experienced and trained narcotics
     officer assigned to the Narcotics Enforcement Team, along with
     other narcotics officers, went to the 1900 block of East Wishart
     Street in Philadelphia, a location known for drug trafficking, to
     investigate drug dealing. Officer Harron and his partner began
     surveilling the area from inside a parked car. Upon arrival at the
     location, Officer Harron observed, with the aid of binoculars,
     Appellant sitting inside a white Ford Explorer parked on the south
     side of Wishart Street talking to a male later identified as Nicholas
     Dagostino through the vehicle’s driver’s side window.

     At about 11:35 a.m., a male later identified as Charles Fritz came
     into the officer’s view. Fritz engaged Dagostino, who was standing
     across the street from where Appellant was parked, in a short
     discussion following which Dagostino removed a clear plastic bag
     containing small green tinted objects, took an object from the bag
     and handed it to Fritz, who gave [] Dagostino U.S. currency. Fritz
     left the area and Officer Harron directed members of his backup
     team to stop Fritz, which they did a short time later.

     After conducting the transaction with Fritz, Dagostino walked over
     to Appellant, who was still sitting in the Explorer, and handed him
     U.S. currency which Dagostino removed from his pocket while
     walking toward Appellant’s vehicle. Appellant exited the vehicle
     after accepting the money from Dagostino and walked out of the
     officer’s view, into an alleyway situated between two houses.
     Appellant walked out of the alleyway a couple of minutes later,
     walked over to Dagostino, and handed Dagostino an object he put
     into his sleeve. Appellant then returned to the Explorer and
     Dagostino returned to the spot where Officer Harron first saw him.

     Shortly thereafter, two males, later identified as Robert Quintua
     and David Esworthy, separately approached Dagostino and
     engaged in [] transactions with them identical to the one
     Dagostino engaged in with Fritz. Quintua and Esworthy then left
     the area and were stopped by members of Officer Harron’s backup
     team.

     After Esworthy left, Dagostino again walked over to Appellant,
     removing money from his pocket and gave the money to
     Appellant. Dagostino then began walking eastbound on Wishart
     Street and Officer Harron directed members of his back-up team
     to apprehend Appellant and Dagostino. Both men were then

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     placed under arrest, Dagostino in the 2000 block of Wishart
     Street, and Appellant, who had gotten in the Explorer and had
     begun driving from the area, at the intersection of Wishart and
     Jasper Street. Following their arrests, Officer Harron instructed
     back-up Officer Gerald Logan to go into the same alleyway
     Appellant had earlier been seen entering. Officer Harron joined
     Officer Logan in the alleyway soon thereafter and recovered a
     black bag. Officer Harron then identified each of the persons
     mentioned above before he returned to police headquarters to
     complete paperwork.

     Officer Jonathan Czapor, also an experienced narcotics officer,
     stopped Fritz and had him surrender a small green container filled
     with what later testing revealed to be cocaine base. The officer
     also stopped Quintua together with Police Officer Logan. Finally
     Officer Harron stopped Esworthy as he drove away from the
     location where he had engaged in the transaction with Dagostino.
     Esworthy handed over a green container, which also had what
     turned out to be cocaine base inside it identical to the container
     seized from Fritz.

     When Officer Harron directed that Appellant be apprehended after
     he began driving off the block, Officer Czapor drove to the
     intersection of Wishart and Jasper Streets and blocked Appellant’s
     vehicle from driving away. The officer then had Appellant exit the
     vehicle and placed Appellant under arrest. A search of Appellant’s
     person yielded $378.00. A search of the Explorer [Appellant] was
     driving was negative for contraband.

     As noted above Officer Logan participated in the stop of Quintua.
     Quintua handed over a green container of what turned out to be
     crack cocaine, which packet was identical to the container seized
     from Fritz.

     As previously mentioned, following the stop of Quintua, Officer
     Harron had instructed Officer Logan to go into the alleyway where
     the Officer observed Appellant enter earlier that morning. In that
     alleyway, Officer Logan recovered a black drawstring school bag
     that contained three separate bags one of which contained
     numerous green containers that testing showed had cocaine base
     inside them and that were identical to the containers seized from
     the three buyers, and another that contained numerous packets
     of white powder suspected to be cocaine. The school bag also


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       contained an operable .45 caliber Hi-Point handgun loaded with
       eight rounds.

       Philadelphia Police Officer Oswaldo Toribio apprehended
       Dagostino in the 2000 block of Wishart Street. From inside a
       sleeve of the sweatshirt Dagostino was wearing, Officer Toribio
       recovered a plastic bag that contained eighteen green containers
       filled with what turned out to be cocaine base and $40.00.

Trial Court Rule 1925(a) Opinion, 1/4/19, at 2-5 (footnotes2 and citations to

notes of testimony omitted).3

       On June 21, 2018, the trial court sentenced Appellant to an aggregate

term of seven to fifteen years’ incarceration. Appellant did not file a post-

sentence motion but did file a timely appeal.       Both he and the trial court

complied with Pa.R.A.P. 1925.

       Appellant raised one issue in his Rule 1925(b) statement:

       1. The evidence adduced at trial was insufficient as a matter of
          law to support convictions on the charges of [PWID],
          conspiracy, and possession of a firearm without a license.

Appellant’s Rule 1925(b) Statement at 1.4

       In his brief filed with this Court, Appellant presents two issues:


____________________________________________


2  The omitted footnotes reflected the parties’ stipulation that testing of
contents of all containers confirmed that the substance in the green containers
was cocaine base and the powder was cocaine powder. The parties also
stipulated that the handgun was operable and that Appellant was not licensed
to carry a firearm.

3We have taken the liberty of correcting several misspellings of police officer
names in the trial court’s opinion.

4We remind Appellant’s counsel of the requirement to append a copy of the
Rule 1925 statement to Appellant’s brief. Pa.R.A.P. 2111(a)(11) and (d).

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       I.     Was the evidence sufficient as a matter of law to convict
              appellant beyond a reasonable doubt on the charges of
              [PWID]; conspiracy; possession of a controlled substance,
              as well as possession of a firearm in violation of Sections
              6105, 6106, and 6108 of the Uniform Firearms Act?

       II.    Was the jury’s verdict against the weight of the evidence?

Appellant’s Brief at 4.

       It is well-settled that issues not preserved in a party’s Rule 1925(b)

statement are deemed waived. Commonwealth v. Lord, 719 A.2d 306, 309

(Pa. 1998).      Therefore, Appellant’s sufficiency challenges in relation to

possession of a controlled substance, carrying a firearm on a public street,

and possession of a firearm by a prohibited person are waived and we shall

not consider them.        Similarly, Appellant’s weight of the evidence claim is

waived.5




____________________________________________


5 Even if raised in Appellant’s Rule 1925(b) statement, his weight of evidence
claim would be deemed waived for failure to preserve it in a post-sentence
motion or in either a written motion or an oral motion prior to sentencing.
See Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa. Super. 2013);
Pa.R.Crim.P. 607. Moreover, as phrased in his brief, Appellant contends the
trial court erred by denying his motion for acquittal because the verdict was
against the weight of the evidence. Appellant’s Brief at 23. “A motion for
judgment of acquittal challenges the sufficiency of the evidence to sustain a
conviction on a particular charge, and is granted only in cases in which the
Commonwealth has failed to carry its burden regarding that charge.”
Commonwealth v. Emanual, 86 A.3d 892, 894 (Pa. Super. 2014) (emphasis
added) (citation omitted). Therefore, Appellant has not presented a proper
weight of the evidence claim in any event.


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      The only sufficiency claims preserved in Appellant’s 1925(b) statement

relate to PWID, conspiracy, and possession of a firearm without a license. Our

standard of review for a sufficiency challenge is as follows:

      When reviewing the sufficiency of the evidence, an appellate court
      must determine whether the evidence, and all reasonable
      inferences deducible from that, viewed in the light most favorable
      to the Commonwealth as verdict winner, are sufficient to establish
      all of the elements of the offense beyond a reasonable doubt. It
      [is] incumbent upon the Superior Court to consider all of the
      evidence introduced at the time of trial, and apparently believed
      by the fact finder, including the expert’s testimony. In applying
      this standard, [the reviewing court must] bear in mind that: the
      Commonwealth may sustain its burden by means of wholly
      circumstantial evidence; the entire trial record should be
      evaluated and all evidence received considered, whether or not
      the trial court’s ruling thereon were correct; and the trier of fact,
      while passing upon the credibility of witnesses and the weight of
      the proof, is free to believe all, part, or none of the evidence.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1237 (Pa. 2007) (internal

citations and quotations omitted; second alteration in original).

      Before considering the merits of Appellant’s sufficiency challenges, we

acknowledge that his sufficiency issues could be deemed waived for failure to

“specify the element or elements of each crime upon which the evidence was

insufficient” so this Court “can then analyze the element or elements on

appeal.” Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super.

2008) (citation omitted). In Commonwealth v. Roche, 153 A.3d 1063 (Pa.

Super. 2017), this Court considered whether the appellant waived his

sufficiency challenges. The Court examined Williams and observed that the

appellant in that case filed a Rule 1925(b) statement simply averring there


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was insufficient evidence to sustain his various convictions. Roche, 153 A.3d

at 1072. Even in the absence of an objection from the Commonwealth and

despite the fact the trial court addressed the issues in its Rule 1925(a) opinion,

a finding of waiver was appropriate.          Therefore, the Court in Roche

determined the appellant’s issues were waived.       Id. (citing Williams, 959

A.2d at 1257).

      Just as in Roche and Williams, Appellant’s Rule 1925(b) statement

simply avers the evidence was insufficient to support his convictions.         In

keeping with those decisions, we could find Appellant’s issues waived.

However, we are also cognizant that our Supreme Court has determined that

review of a sufficiency claim may be appropriate under certain circumstances,

despite a vague Rule 1925(b) statement. See Commonwealth v. Laboy,

936 A.2d 1058 (Pa. 2007).          Characterizing the case as a “relatively

straightforward drug case,” the Court determined an analysis of appellant’s

challenges to his drug trafficking and conspiracy convictions was proper, while

recognizing that “in more complex criminal matters [] the common pleas court

may require a more detailed statement to address the basis for a sufficiency

challenge.” Id. at 1060. In Laboy, as in the instant case, “the common pleas

court readily apprehended Appellant’s claim and addressed it in substantial

detail.” Id.     Therefore, guided by Laboy, we shall undertake a review of

Appellant’s preserved sufficiency challenges, despite his failure to identify the

element or elements of the crimes that he believes were insufficiently proven.


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Again, the sole challenges preserved in Appellant’s Rule 1925(b) statement

relate to his convictions of PWID, conspiracy, and possession of a firearm

without a license.

      In Commonwealth v. Bricker, 882 A.2d 1008 (Pa. Super. 2005), this

Court explained:

      To convict a person of PWID, the Commonwealth must prove
      beyond a reasonable doubt that the defendant possessed a
      controlled substance and did so with the intent to deliver it. In
      determining whether there is sufficient evidence to support a
      PWID conviction, all facts and circumstances surrounding the
      possession are relevant, and the Commonwealth may establish
      the essential elements of the crime wholly by circumstantial
      evidence. Factors to consider in determining whether the drugs
      were possessed with the intent to deliver include the particular
      method of packaging, the form of the drug, and the behavior of
      the defendant.

Id. at 1015 (citations omitted). With respect to conspiracy, the trial court

noted:

      [A] person is guilty of conspiracy if, with the intent of promoting
      or facilitating the commission of a crime, he agrees with another
      person: (1) that one or more of them will engage in conduct which
      constitutes such crime; or (2) to aid in the planning or commission
      of such crime or of an attempt or solicitation to commit such
      crime. Proof of a formal or explicit agreement is unnecessary to
      prove the existence of a conspiracy.

Trial Court Rule 1925(a) Opinion, at 6 (citing 18 Pa.C.S.A. § 903 and

Commonwealth v. Garcia, 847 A.2d 67, 70 (Pa. Super. 2004)). The court

then considered Appellant’s argument that he should not be convicted of PWID

or weapons offenses because the drugs and guns “were not found in his




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possession and the Commonwealth failed to prove that he possessed those

items constructively.” Trial Court Rule 1925(a) Opinion, 1/4/19, at 6.

      As this Court explained in Commonwealth v. Hopkins, 67 A.3d 817

(Pa. Super. 2013):

      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 psession
      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. at 820 (quoting Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super.

2012) (internal quotation marks and citation omitted)). “Additionally, it is

possible for two people to have joint constructive possession of an item of

contraband.” Id. at 820-21 (citation omitted).

      Based on the evidence presented at trial, the court concluded:

      The evidence, when viewed in the light most favorable to the
      Commonwealth, clearly established that Appellant and Dagostino
      conspired to sell drugs and that Appellant constructively
      possessed the drugs found in the alleyway. The facts show that
      Appellant twice received money from Dagostino after Dagostino
      engaged in transactions on a public street involving small objects
      and U.S. currency. The fact that Dagostino exchanged small items
      for U.S. currency on a public street was itself sufficient to prove
      PWID.

Trial Court Rule 1925(a) Opinion, 1/4/19, at 7 (citations omitted). Therefore,

because Dagostino shared the proceeds of those sales with Appellant,

Appellant was a co-conspirator and was as guilty of selling the drugs as


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Dagostino. Id. at 8. The court also recounted that Appellant entered the

alleyway where the bag containing drugs and the gun were found.          When

Appellant exited that alleyway, he handed an object that Dagostino put into

his shirtsleeve. “Under these circumstances, it was clearly reasonable for the

jury to infer that the object Appellant retrieved from the alleyway and gave to

Dagostino, who clearly transferred drugs to other persons[,] was taken out of

the crack and cocaine filled bag found by Officer Logan in the alleyway.” Id.

It was equally reasonable, the court concluded, for the jury to infer that the

money given by Agostino to Appellant represented proceeds from the sales.

“Thus, Appellant’s relationship with Dagostino both as a supplier of drugs and

a repository of the money flowing from those sales was sufficient to prove

Appellant guilty of the drug crimes.” Id. Further, the methods employed in

the transactions demonstrated Appellant’s dominion and control, i.e.,

constructive possession, over the bag that contained drugs and the gun. Id.

      Appellant relies heavily on this Court’s decision in Commonwealth v.

Ocasio, 619 A.2d 352 (Pa. Super. 1993), in support of his claim the

Commonwealth failed to establish Appellant had constructive possession of

the drugs. Ocasio is factually distinguishable. In that case, Ocasio was a

resident of a house in which drugs were discovered and was one of six

individuals in the house at the time of the search leading to discovery of the

drugs. As this Court explained, there was no evidence Ocasio even knew of

drug activity in the house and no evidence connecting him to drug


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paraphernalia located on the premises.       “After carefully examining all the

circumstances[,] we find that the Commonwealth has established no more

than a mere suspicion that appellant agreed to participate or aid in the drug

distribution.” Id. at 355. By contrast, in the instant case, Appellant received

currency from Dagostino that Dagostino exchanged for packets containing

drugs. Further, upon Appellant’s return from the alleyway where the bag with

drugs was located, Appellant handed an object to Dagostino that Dagostino

put into his shirtsleeve.    In other words, in the instant case, there was

evidentiary proof of Appellant’s involvement in the transactions, unlike in

Ocasio where the Commonwealth proved nothing more than mere suspicion

of Ocasio’s participation.

      Based on the evidence and reasonable inferences from that evidence,

the trial court determined that the Commonwealth proved Appellant was guilty

of PWID and conspiracy beyond a reasonable doubt. Considering “all of the

evidence introduced at the time of trial, and apparently believed by the fact

finder,” Ratsamy, 934 A.2d at 1237, we likewise conclude the Commonwealth

proved Appellant’s guilt of those crimes beyond a reasonable doubt.

      With respect to the gun, the above analysis also supports a finding that

Appellant constructively possessed the gun retrieved from the bag that also

contained the cocaine and cocaine powder. Therefore, based on the evidence

and reasonable inferences drawn from that evidence, along with the parties’

stipulation that Appellant did not have a license to carry a firearm, see Notes


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of Testimony, Trial, 2/18/18, at 155, we find the Commonwealth proved

beyond a reasonable doubt that Appellant was guilty of possessing a gun

without a license.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/19




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