J-S82038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

KELLY MARIE DALESSIO,

                            Appellant                   No. 866 MDA 2016


             Appeal from the Judgment of Sentence April 27, 2016
              in the Court of Common Pleas of Schuylkill County
              Criminal Division at No.: CP-54-CR-0000165-2015


BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                           FILED DECEMBER 06, 2016

        Appellant, Kelly Marie Dalessio, appeals from the judgment of

sentence imposed following her non-jury conviction of conspiracy to deliver a

controlled substance, possession with intent to deliver a controlled substance

(PWID), possession of drug paraphernalia, and possession of a controlled

substance.1 Specifically, Appellant challenges the sufficiency of the evidence

to support her conspiracy and PWID convictions. We affirm.

        The trial court aptly set forth the facts of this case in its June 17, 2016

opinion, as follows.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. § 903(a)(1); 35 P.S. §§ 780-113(a)(30), (32), and (16),
respectively.
J-S82038-16


           On May 1, 2014, members of the Tamaqua Police
     Department and Schuylkill County Drug Task Force set up and
     conducted a controlled buy of cocaine in Tamaqua Borough,
     Schuylkill County. Although the quoted purchase price was
     [eighty dollars], the confidential informant was given $100.00 in
     marked money and purchased cocaine from [Appellant’s]
     daughter, Ashley Weirich, on a street in the borough. Police
     were watching the entire time as Weirich left the home where
     she resided, which was rented to [Appellant], met and dealt with
     the informant and returned to the home. Forty minutes later,
     police searched the residence pursuant to a warrant. No one
     beside Weirich had left or entered the residence between the
     time she exited to meet the informant and the search.

            Upon arriving, police announced their identity and yelled
     “search warrant” numerous times at the door to the residence.
     After waiting some[]time for someone to answer the door, police
     entered and found Weirich in the first floor living room with a
     child. Sergeant Duane Frederick’s assignment was to secure the
     second floor of the residence. As he was ascending the stairs,
     he called “police, search warrant” numerous times. Frederick
     heard water running in a toilet and the handle to the toilet
     jiggling as if someone were attempting to flush the toilet after it
     had flushed but before the tank had refilled.       He told the
     occupant of the bathroom, who was [Appellant], to exit. She
     responded by saying she would “be out soon.” After Frederick
     said he would kick in the door, [Appellant] exited.

           When Frederick entered the bathroom, he saw a portion of
     a plastic baggie spinning in the toilet bowl. The bowl was coated
     with a thick layer of a white substance. The substance was later
     removed by police with a paper towel. A field test of the
     substance indicated a positive result for the presence of cocaine.
     A wastebasket by the toilet contained another baggie with
     cocaine, a cut baggie with cocaine residue, a spoon with residue
     and a digital scale with residue. While the substance removed
     from the toilet was not sent to a laboratory for examination, the
     baggies in the wastebasket tested positive for the presence of
     cocaine in an analysis by a forensic scientist. Police found many
     corner ends of cut baggies used to package illegal controlled
     substances, the remaining portions of baggies after the ends had
     been removed[,] and a box of baggies on top of the bed in the
     room occupied by [Appellant].           Additionally, the bedroom
     contained a video monitor exhibiting outside views of the areas


                                    -2-
J-S82038-16


     by the residence’s entrances.    Police also found many cut
     corners of plastic baggies together with uncut baggies in the
     kitchen.

            Tamaqua Police Chief Richard Weaver, qualified as an
     expert in drug law investigation, identification, packaging and
     distribution, opined that the digital scale, baggies, cut corners of
     baggies, spoon and excessive residue in the toilet were
     indicative of a person being in the business of selling drugs. No
     evidence indicating simple personal use of the drug was located
     in the home.

            The only people in the home at the time of the search were
     [Appellant], Weirich and the young child. Upon questioning,
     Weirich provided police [twenty dollars] of the buy money
     utilized in the cocaine transaction and claimed that she did not
     know where the rest of the money was. [Appellant], who had
     $924.00 in her wallet, claimed that she did not know what police
     were talking about when they asked her where the buy money
     was. When told that police would “tear the house apart” to look
     for the money, [Appellant] then said “here” and removed [sixty
     dollars] from a pocket and placed the money─two ten and two
     twenty dollar bills─on the kitchen table. Police identified the
     serial numbers of the money as having been utilized in the drug
     buy because they had documented the information prior to
     providing the money to the confidential informant to purchase
     the cocaine.

(Trial Court Opinion, 6/17/16, at 3-5) (footnotes omitted).

     At the conclusion of Appellant’s February 5, 2016 bench trial, the court

convicted her of the previously stated charges. On April 27, 2016, the court

sentenced Appellant to an aggregate term of incarceration of not less than




                                    -3-
J-S82038-16


three nor more than six years, with an RRRI2 minimum sentence of twenty-

seven months. Appellant timely appealed.3

        Appellant raises two issues for this Court’s review.

        A.   Whether the evidence presented by the Commonwealth
        was sufficient to support a verdict of guilty on the charge of
        [PWID]?

        B.    Whether the evidence presented by the Commonwealth
        was sufficient to support a verdict of guilty on the charge of
        [c]onspiracy to [commit PWID]?

(Appellant’s Brief, at 4).

        In Appellant’s issues, she challenges the sufficiency of the evidence to

support her PWID and conspiracy convictions.               (See id. at 9-24).

Appellant’s issues are waived and would lack merit, even if not waived.

        It is well-settled that:

        when challenging the sufficiency of the evidence on appeal, the
        Appellant’s 1925 statement must “specify the element or
        elements upon which the evidence was insufficient” in order to
        preserve the issue for appeal. [Commonwealth v.] Williams,
        959 A.2d [1252,] 1257 [(Pa. Super. 2008)] ([quotation
        omitted]). . . . Here, Appellant . . . failed to specify which
        elements he was challenging in his 1925 statement . . . . While
        the trial court did address the topic of sufficiency in its opinion,
        we have held that this is “of no moment to our analysis because
        we apply Pa.R.A.P. 1925(b) in a predictable, uniform fashion, not
        in a selective manner dependent on an appellee’s argument or a

____________________________________________


2
    Recidivism Risk Reduction Incentive, 61 Pa.C.S.A. §§ 4501-4512.
3
  Pursuant to the court’s order, Appellant filed a timely statement of errors
complained of on appeal on June 8, 2016. See Pa.R.A.P. 1925(b). The
court filed an opinion on June 17, 2016. See Pa.R.A.P. 1925(a).



                                           -4-
J-S82038-16


         trial court’s choice to address an unpreserved claim.”      Id. at
         1257 ([quotation omitted]).

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009), appeal

denied, 3 A.3d 670 (Pa. 2010).

         In the case before us, Appellant’s Rule 1925(b) statement does not

identify    which   element    or   elements   of   PWID   and   conspiracy    the

Commonwealth allegedly failed to prove.             (See Statement of Matters

Complained of on Appeal, 6/08/16, at 1). Specifically, her statement merely

claims that “[t]he evidence presented by the Commonwealth was insufficient

to support a verdict of guilty on the charge of [PWID] . . . [and c]onspiracy .

. . .”     (Id.).   Accordingly, because she fails to identify which specific

elements the Commonwealth allegedly failed to prove, Appellant’s challenge

to the sufficiency of the evidence is waived.        See Gibbs, supra at 281.

Moreover, Appellant’s issues would lack merit.

         Our standard of review of a challenge to the sufficiency of the evidence

is well-settled:

                In reviewing sufficiency of evidence claims, we must
         determine whether the evidence admitted at trial, as well as all
         reasonable inferences drawn therefrom, when viewed in the light
         most favorable to the verdict winner, are sufficient to support all
         the elements of the offense.           Additionally, to sustain a
         conviction,   the     facts   and    circumstances     which   the
         Commonwealth must prove, must be such that every essential
         element of the crime is established beyond a reasonable doubt.
         Admittedly, guilt must be based on facts and conditions proved,
         and not on suspicion or surmise.            Entirely circumstantial
         evidence is sufficient so long as the combination of the evidence
         links the accused to the crime beyond a reasonable doubt. Any
         doubts regarding a defendant’s guilt may be resolved by the

                                        -5-
J-S82038-16


     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 fact finder is free to believe all,
     part, or none of the evidence presented at trial.

Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa. Super. 2011), appeal

denied, 44 A.3d 1161 (Pa. 2012) (citations omitted).

     In her first issue, Appellant claims that the Commonwealth failed to

prove PWID because it “failed to present any evidence that [she] actually

possessed any cocaine,” “that she knew that drugs were present in her

home,” or that she “intend[ed] to deliver” them. (Appellant’s Brief, at 11,

15, 17). We disagree.

     Pursuant to section 780-113(a)(30) of The Controlled Substance,

Drug, Device, and Cosmetic Act, “the manufacture, delivery, or possession

with intent to manufacture or deliver, a controlled substance by a person not

registered under this act,” is prohibited. 35 P.S. § 780-113(a)(30).

           To sustain a conviction for PWID, the Commonwealth must
     prove both the possession of the controlled substance and the
     intent to deliver the controlled substance. It is well settled that
     [i]n narcotics possession cases, the Commonwealth may meet
     its burden by showing actual, constructive, or joint constructive
     possession of the contraband. . . .

                  This Court has defined constructive possession
           as follows: 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.”

                                    -6-
J-S82038-16


            To aid application, we have held that constructive
            possession may be established by the totality of the
            circumstances.

                                 *    *    *

            With regard to the intent to deliver, we must examine the
      facts and circumstances surrounding the possession.         [T]he
      intent to deliver may be inferred from possession of a large
      quantity of controlled substances. It follows that possession of a
      small amount of a controlled substance supports the conclusion
      that there is an absence of intent to deliver. If the quantity of
      the controlled substance is not dispositive as to the intent, the
      court may look to other factors.

                  Other factors to consider when determining
            whether a defendant intended to deliver a controlled
            substance include the manner in which the controlled
            substance was packaged, the behavior of the
            defendant, the presence of drug paraphernalia, and .
            . . [the] sums of cash found in possession of the
            defendant.    The final factor to be considered is
            expert testimony.       Expert opinion testimony is
            admissible concerning whether the facts surrounding
            the possession of controlled substances are
            consistent with an intent to deliver rather than with
            an intent to possess it for personal use.

Commonwealth v. Roberts, 133 A.3d 759, 767-68 (Pa. Super. 2016),

appeal denied, ____ A.3d ____ (Pa. filed Sept. 6, 2016) (citations and most

quotation marks omitted).

      In this case, the police executed a search warrant on Appellant’s home

approximately forty minutes after her daughter left the residence, engaged

in a controlled buy with a confidential informant, and then returned to the

dwelling.   (See N.T. Trial, 2/05/16, at 59, 128-31).     While securing the

home, Sergeant Frederick heard a toilet flushing behind a closed door and


                                     -7-
J-S82038-16


ordered the room’s occupant to come outside.        (See id. at 43).    When

Appellant exited the room, Sergeant Frederick “could see a piece of plastic

with a white substance in it just spinning around on the top of the water.”

(Id. at 44; see also id. at 63). Also from the bathroom, police retrieved

three items with cocaine residue: another ripped off baggie, a spoon, and a

scale. (See id. at 66). In Appellant’s room, the police discovered “a box of

Ziploc baggies [and] multiple ends of baggies that were already cut off.”

(Id. at 70).

      Chief Weaver, the Commonwealth’s expert in drug investigations,

identification, enforcement, packaging, and distribution, testified to a

reasonable degree of professional certainty that the items seized in the

home, combined with the “excessive” amount of cocaine left in the toilet

bowl after it flushed, and the lack of any paraphernalia for personal use,

“[a]bsolutely [indicated] someone dealing.”    (Id. at 122, 142; see id. at

123-28).       Finally, Chief Weaver observed that the $924.00 found in

Appellant’s wallet also signaled that she was in the narcotics trade. (See id.

at 141).

      Viewing the foregoing evidence in the light most favorable to the

Commonwealth as verdict winner, we conclude that it demonstrates that

Appellant possessed cocaine in her home with the intent to distribute it.

See Roberts, supra at 767-68. Therefore, the evidence was sufficient to




                                    -8-
J-S82038-16


support Appellant’s PWID conviction, and her first issue would lack merit,

even if not waived. See Moreno, supra at 136.

     In her second claim, Appellant maintains that the evidence was

insufficient to support her conspiracy conviction. (See Appellant’s Brief, at

20-23).   Specifically, she argues that the evidence failed to establish that

she was “an active participant in the criminal enterprise, or that there was

an agreement with Ashley to sell drugs.” (Id. at 21). We disagree.

     Section 903 of the Crimes Code provides, in pertinent part:

     (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[.]

                                 *    *    *

     (e) Overt act.─No person may be convicted of conspiracy to
     commit a crime unless an overt act in pursuance of such
     conspiracy is alleged and proved to have been done by him or by
     a person with whom he conspired.

18 Pa.C.S.A. § 903(a)(1), (e).

     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 coconspirator.          With respect to the
     agreement element, we have explained:

                The essence of a criminal conspiracy is a
            common understanding, no matter how it came into

                                     -9-
J-S82038-16


              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.        The
              conduct of the parties and the circumstances
              surrounding their conduct may create a web of
              evidence linking the accused to the alleged
              conspiracy beyond a reasonable doubt.

Commonwealth v. Melvin, 103 A.3d 1, 42-43 (Pa. Super. 2014) (citations

and quotation marks omitted).

      In the case sub judice, Appellant’s daughter, Ashley, sold cocaine to

the   confidential   informant   approximately   forty   minutes   before   police

executed the search warrant of her home. (See N.T. Trial, 2/05/16, at 59,

128-31).   When the police entered the home, Ashley was downstairs, and

Appellant was upstairs flushing cocaine down the toilet. (See id. at 43-44,

63, 124). The police recovered several items indicating the sale of cocaine

from the bathroom and Appellant’s bedroom. (See id. at 66, 70, 123-28).

Finally, Appellant had sixty-dollars of the pre-recorded buy money used by

the confidential informant to purchase cocaine from her daughter. (See id.

at 133-34).

      Viewing the foregoing evidence in the light most favorable to the

Commonwealth, and after an independent review of the complete record, we

                                     - 10 -
J-S82038-16


conclude that the evidence was sufficient to support Appellant’s conviction of

conspiracy to commit PWID. See Melvin, supra at 42-43; Moreno, supra

at 136. Appellant’s second issue would not merit relief, even if not waived.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/6/2016




                                    - 11 -
