J-A09007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DEMBO SANNOH,                              :
                                               :
                       Appellant.              :   No. 2441 EDA 2017


             Appeal from the Judgment of Sentence, May 18, 2017,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0013640-2014.


BEFORE:      KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY KUNSELMAN, J.:                              FILED JUNE 07, 2019

       Dembo Sannoh appeals from his judgment of sentence imposed

following a bench trial where he was convicted of aggravated assault, simple

assault, recklessly endangering another person, possession of an instrument

of a crime, possession with intent to deliver, and possession of a small amount

of marijuana.1 We affirm Sannoh’s drug-related convictions. However, for

the reasons stated below, we reverse his remaining convictions, vacate his

judgment of sentence, and remand for resentencing.

       The trial court summarized the facts presented at trial as follows:

              The complainant, Mr. Marquel Foy, testified that on the
          afternoon of August 10, 2014, he had gone with a “friend,”
          to a gas station located at 58th Street and Baltimore Avenue
          in the City of Philadelphia. The “friend” asked him to go and
____________________________________________


118 Pa.C.S.A. §§ 2702(a), 2701(a), 2705, and 907(a), and 35 Pa.C.S.A. §§
780-113(a)(30)-(31).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       see “about getting some weed” and also asked to bring a
       gun for his safety. Sometime after being driven to the
       location by his “friend’s” girlfriend, a silver Mercedes SUV
       pulled up and a male with “dreads,” later identified as
       [Sannoh], exited the driver seat. [Sannoh] instructed Mr.
       Foy to get in the front passenger seat of the car and “deal
       with my man.”

           While [Sannoh] waited outside, with his “friend”, Mr. Foy
       entered the vehicle and asked where the marijuana was.
       [Sannoh] lifted up the top of the center console, showing
       him a “little bud” of marijuana, which was less than the two
       ounces he was there to buy. He testified that when “I turned
       around toward the guy in the backseat to look for the weed.
       And that’s when I heard the shot go off.” Upon hearing the
       gunshots, Mr. Foy experienced a burning sensation in his
       left elbow. He got out of the car and began running. As he
       was running, Mr. Foy was shot in his right shin, breaking his
       right tibia, and in the left side of his stomach.

          Mr. Samuel Turner, the current manager of the
       Philadelphia Courts First Judicial District’s Electronic
       Monitoring Unit, testified that, on the afternoon of August
       10, 2014, he was a Lieutenant with the First Judicial District
       Warrant Unit, serving warrants with his team of officers in
       the vicinity, when he heard gun shots. On arriving at the
       scene, members of his unit pursued several individuals
       fleeing the scene. He also observed [Sannoh] sitting in the
       Mercedes SUV, with several windows shot out. On removing
       him from the vehicle, [Sannoh] stated “his friend had shot
       somebody and ran off.”

          Philadelphia Police Sergeant Jonathan Stralo testified
       that, on August 10, 2014, he was assigned to the warrant
       unit when he responded to the sound of gunfire at the gas
       station. On arriving, he observed Mr. Foy holding a gun,
       attempting to leave the scene. On taking Mr. Foy into
       custody, he observed that Mr. Foy had suffered “several
       gunshot wounds; leg, abdomen, and elbow.”

          Philadelphia Police Detective, Robert Conway, testified
       that he was the assigned detective investigating the
       shooting. As part of his investigation, Detective Conway
       took two handwritten statements from Mr. Foy at the
       Hospital of the University of Pennsylvania on August 11,


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        2014, which Mr. Foy reviewed and signed in Detective
        Conway’s presence.       He described Mr. Foy as being
        cooperative in talking to him.

            Detective Conway also testified that on arriving at the
        scene he observed [Sannoh’s] Mercedes SUV in the parking
        lot with the rear window and the passenger’s side windows
        shot out. On further inspection of the SUV, he discovered a
        9mm hand gun on the floor behind the passenger seat as
        well as several shell casings. He also described the car as
        having “a very strong odor of fresh Marijuana…” he testified
        that the odor was so strong that he “expected to find bulk
        amount or at least an ounce or so. As if there was marijuana
        out just in the car recently.” “Very Strong.”

           Mr. Antana Gray, [Sannoh’s] co-defendant, testified that
        [Sannoh], after calling him to hang out, picked him up at
        his home and drove to the gas station. On arriving, Mr.
        Gray got into the back seat, because they were “meeting
        with someone.” He sat behind the front passenger seat and
        placed the loaded gun he was carrying in the pocket in front
        of him. After Mr. Foy got into the front passenger seat,
        [Sannoh] remained outside talking to Mr. Foy through the
        driver’s side door. Listening to the conversation between
        them, it was clear to Mr. Gray that [Sannoh] knew who Mr.
        Foy was and was there to meet him. Mr. Gray also testified
        that at some point during [Sannoh’s] conversation with Mr.
        Foy, he saw a “bud” of marijuana, approximately an inch
        long, with Mr. Foy asking “where’s the rest of it?” It was at
        this point that Mr. Gray began shooting at Mr. Foy. Mr. Foy
        then exited the vehicle and Mr. Gray continued shooting at
        him.

           When the shooting ended, Mr. Gray testified that he left
        the scene and walked to his home, which was about three
        blocks from the scene of the shooting. He knew he was
        going to jail and wanted to get his affairs in order. He
        surrendered to police the next morning.

Trial Court Opinion, 6/16/18, at 8-11.

     Sannoh was arrested and charged the same day. Sannoh filed a motion

to quash the information which the trial court denied without a hearing after



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Sannoh’s former counsel did not appear.        After multiple continuances, the

matter went to a bench trial on March 3, 2017. The court convicted Sannoh

on the aforementioned charges. The court sentenced Sannoh to an aggregate

prison term of five to ten years.    Sannoh timely appealed, however, prior

counsel withdrew before complying with the trial court’s order to issue a

1925(b) statement. The court appointed current counsel on January 22, 2018

who submitted a 1925(b) statement on March 6, 2018. Both the trial court

and Sannoh have complied with Pa.R.A.P. 1925.

      Sannoh raises the following two issues on appeal:

         1. Whether the court’s verdict was based upon insufficient
         evidence so inherently unreliable that the resultant verdict
         was based on surmise and conjecture.

         2. Whether [Sannoh] was denied procedural due process
         when the court failed to conduct a hearing on his motion to
         quash the information.

See Sannoh’s Brief at 1.

      Sannoh challenges the verdicts for each of his convictions. We will first

address his sufficiency challenge for his drug convictions.

      In reviewing a challenge to the sufficiency of the evidence, we must

determine whether viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, together with all reasonable inferences

therefrom, the trier of fact could have found that each and every element of

the   crimes   charged     was   established   beyond   a     reasonable   doubt.

Commonwealth v. Lewis, 911 A.2d 558, 563–64 (Pa. Super. 2006). When

reviewing the evidence adduced at trial, the court may not weigh the evidence

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and substitute its judgment for that of the fact-finder. Commonwealth v.

Derr, 841 A2d 558, 560 (Pa. Super. 2004). The fact-finder, 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. Hunzer,

868 A.2d 498, 505 (Pa. Super 2005).

      However, if the facts relied on by the fact-finder are so weak or

inconclusive that, as a matter of law, no probability of fact may be drawn from

the   circumstances,    then   the   conviction   in   question   cannot   stand.

Commonwealth v. Kim, 888 A.2d 847, 851–52 (Pa. Super. 2005) (citations

omitted). Stated differently, “[a]lthough the Commonwealth does not have to

establish guilt to a mathematical certainty and may in the proper case rely

wholly on circumstantial evidence, the conviction must be based on more than

mere suspicion or conjecture.” Commonwealth v. Thomas, 561 A.2d 699,

704 (Pa. 1989) (citations omitted).

      Sannoh argues that the Commonwealth presented insufficient evidence

to convict him of either possession with intent to deliver or marijuana

possession. The Controlled Substances Act defines the relevant offenses as

follows:

           (a) the following acts and the causing thereof within the
           Commonwealth are hereby prohibited:

           (30) Except as authorized by this act, the manufacture,
           delivery, or with intent to manufacture or possession with
           intent to deliver, a controlled substance by a person not
           registered under this act . . .




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        (31) Notwithstanding other subsections of this section, (i)
        the possession of a small amount of [marijuana] only for
        personal use; (ii) the possession of a small amount of
        [marijuana] with the intent to distribute it but not to sell it;
        or (iii) the distribution of a small amount of [marijuana] but
        not for sale.

        For purposes of this subsection, thirty (30) grams of
        [marijuana] or eight (8) grams of hashish shall be
        considered a small amount of [marijuana].

35 P.S. § 780-113(30)-(31).

     In concluding the Commonwealth presented sufficient evidence to

convict Sannoh on these charges, the trial court reasoned:

           It is clear from the evidence at trial that the parties came
        together to consummate a drug sale. As noted, [Foy]
        testified he was driven to the scene in order to see “about
        getting some weed” and was asked to bring a gun for safety.
        [Gray] also testified that [Sannoh] drove him to the scene
        for the purpose of meeting with [Foy] and that he too was
        armed. They both testified that during the conversation
        between [Foy] and [Sannoh], [Sannoh] revealed a bud of
        marijuana in the center console of the car. Furthermore,
        Detective Conway testified that, in addition to discovering a
        9mm hand gun and shell casings in [Sannoh’s] car, he noted
        a “very strong odor of fresh Marijuana” and “expected to
        find bulk amount of or at least an ounce or so.” [Gray] also
        testified that he left the scene immediately after the
        shooting, to get his affairs in order, surrendering to police
        the following day.

            The [c]ourt, in weighing the evidence before it, found
        that it was reasonable to infer from the facts presented at
        trial, that [Sannoh] was not a mere bystander, but in fact
        went to the gas station with [Gray] for the purpose of
        engaging in the sale of drugs. Although no marijuana was
        recovered, both [Foy] and [Gray] testified that a “bud” of
        marijuana had in fact been present in [Sannoh’s] vehicle
        immediately before the shooting commenced, and that he
        knew [Foy], had in fact, actively participated in the



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         attempted transaction.        The evidence was therefore
         sufficient to sustain his conviction for PWID.

Trial Court Opinion, 8/16/18, at 15-16. We agree.

      Sannoh takes issue with the fact that the purported drugs were never

introduced into evidence, nor was there expert testimony to prove the narcotic

property of the drug “bud.” In other words, Sannoh mainly argues that the

Commonwealth failed to show he possessed drugs due to the lack of physical

evidence.   However, “circumstantial evidence may be used to establish a

defendant’s possession of drugs or contraband.” Commonwealth v. Vargas,

108 A.3d 858, 868 (Pa. Super. 2014), citing Commonwealth v. Macolino,

469 A.2d 132, 134-35 (Pa. 1983). “The Commonwealth need not prove [a

defendant] had actual possession of the drugs.      Instead it can prove [a

defendant] had constructive possession.” Commonwealth v. Brown, 701

A.2d 252, 254 (Pa. Super. 1997). “Constructive possession is an inference

arising from a set of facts that possession of the contraband was more likely

than not.” Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013)

(citation omitted). Constructive possession exists where a defendant has

power of control over the drugs and intends to exercise that control.     Id.

Further, such possession may be established by the totality of the

circumstances. Id.

      Here, the record establishes that Sannoh and Gray met with Foy to sell

him marijuana. Once Sannoh arrived at the gas station, he instructed Foy to

“deal with [his] man.” N.T. 3/3/17, 27-28, 43-44. After entering the vehicle,

Foy asked, “Where the weed at?” Id. at 44-45. In response, Sannoh lifted up

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the center console and pulled out a small amount of marijuana. Although

police did not recover the marijuana, both Gray and Foy confirmed these

events, and Detective Conway testified that he smelled a strong odor of

marijuana in the car. The totality of the circumstances establish that Sannoh

had control over the drugs and exercised such control.

      Accordingly, we find the trial court did not err in concluding the above

evidence   sufficiently established   that Sannoh      possessed a controlled

substance and did so with the intent to deliver, and that he knowingly

possessed a small amount of marijuana. 35 Pa.C.S.A. 780-113(a)(30)-(31).

      Next, we turn to       Sannoh’s sufficiency challenge regarding his

aggravated assault conviction. Sannoh argues that the trial court convicted

him based on the fact “that he owned the vehicle in which a shooting occurred,

he was seen on a video in the company of the victim of the shooting and he

spent an unknown amount of time in the company of the shooter.” Id. at 11.

He asserts that the record was completely devoid of any evidence of criminal

intent on his part.

      To prove Sannoh was guilty of aggravated assault, the Commonwealth

was required to show that he (1) attempted to cause serious bodily injury to

another or causes such injury intentionally, knowingly, recklessly under

circumstances manifesting extreme indifference to the value of human life.

18 Pa.C.S.A. § 2702(a)(1).

      The trial court provided the following rationale, relying on accomplice

liability, in support of the entirety of Sannoh’s convictions:

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        In Pennsylvania, 18 [Pa.C.S.A] 306(a) and (b)(3) provides
        that a person is guilty of a crime if he is an accomplice of
        another person in the commission of a crime. An accomplice
        is defined by 18 [Pa.C.S.A] 306(c)(1)(ii) as a person who
        “aids or agrees or attempts to aid such other person in
        planning or committing” the crime. It has long been
        recognized that an individual need not be charged as an
        accomplice in order to be found guilty under such a theory.
        Commonwealth v. McDuffie, 466 A.2d 660 (Pa. Super.
        1983). […] In Commonwealth v. Murphy, 844 A.2d
        1228, 1235 (Pa. 2004), our Supreme Court established a
        two prong test that must be employed to hold an accomplice
        liable, in holding that: “First, there must be evidence that
        the defendant intended to aid or promote the underlying
        offense. Second, there must be evidence that the defendant
        actively participated in the crime by soliciting, aiding, or
        agreeing to aid the principal. While these two requirements
        may be established by circumstantial evidence, a defendant
        cannot be an accomplice simply based on evidence that he
        knew about the crime or was present at the crime scene.
        There must be some additional evidence that the defendant
        intended to aid in the commission of the underlying crime,
        and then did or attempted to do so. With regard to the
        amount of aid, it need not be substantial so long as it was
        offered to the principal to assist him in committing or
        attempting to commit the crime.”

           [Sannoh] was initially charged with, and later found not
        guilty on the charge of criminal conspiracy to commit
        murder, which put him “on sufficient notice of the
        Commonwealth’s intention to argue a link between that
        defendant and another person in the commission of the
        crimes in question.” Commonwealth v. McDuffie, 466
        A.2d 660, 662 (Pa. Super. 1983). [Sannoh] is correct in
        asserting that there was no evidence placing Mr. Gray’s gun
        in his hands or that he actively participated in the shooting
        of Mr. Foy. There was, however, sufficient evidence to
        support his conviction on the charge of aggravated assault
        on the theory of accomplice liability. Andrews made it clear
        that the evidence also supports [Sannoh’s] conviction on the
        charge of PIC, even though his co-defendant actually
        possessed the gun.

Trial Court Opinion, 7/16/18, at 13-15. We cannot agree.

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      After review of the record, we agree with the Commonwealth’s

acknowledgement that Sannoh could not be convicted of aggravated assault

and the remaining charges based upon accomplice liability.                  As the

Commonwealth states, Sannoh’s “shared intent to sell drugs does not prove

a   shared   intent   to   commit   aggravated      assault   against   a   buyer.”

Commonwealth’s Brief at 11.         At most, the Commonwealth showed that

Sannoh was merely present at the crime scene when Gray shot Foy. Mere

presence is insufficient to support a conviction.

      To convict Sannoh under a theory of accomplice liability, the

Commonwealth needed to demonstrate that Sannoh aided or agreed to assist

Gray in shooting Foy. No such evidence exists. Indeed, Gray testified that he

had not told Sannoh he was armed. See N.T. 3/3/17, 146-55. To conclude

that Sannoh knowingly and voluntarily cooperated or aided Foy in the shooting

based on the record would be nothing more than conjecture. Therefore, we

find the trial court erred in concluding that sufficient evidence existed to

convict Sannoh of aggravated assault. Further, because simple assault and

REAP require the defendant have a requisite mens rea to commit harm,

Sannoh’s convictions cannot stand based on the evidence of record.

      Next, Sannoh argues that the evidence was insufficient to support his

conviction for possession of an instrument of a crime. We agree. One is guilty

of this offense “if he possesses any instrument of crime with intent to employ

it criminally.”   18 Pa.C.S.A. § 907.   Similarly, as we discussed above, the

Commonwealth did not present evidence that demonstrated Sannoh had any

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inclination the shooting would occur, or that he participated in it.          The

Commonwealth did not present evidence indicating that Sannoh even knew

Gray was carrying a firearm.        Accordingly, insufficient evidence exists to

convict Sannoh for possession of an instrument of a crime.

      In his last issue, Sannoh argues that he was denied procedural due

process when the court ruled on his motion to quash the information without

conducting a hearing. We find Sannoh has waived this claim.

      Sannoh filed a motion for reconsideration in response to the trial court’s

denial of his habeas corpus petition. This motion did not include a due process

violation claim. Sannoh does not indicate where in the record he preserved

this claim. “Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal.” Commonwealth v. Strunk, 953 A.2d

577, 579 (Pa. Super. 2008). We note, that even if Sannoh had preserved this

claim, it would be of no consequence. A defect in the preliminary hearing is

immaterial after a defendant has gone to trial and is convicted of the crimes

charged. Commonwealth Stultz, 114 A.3d 865, 882 (Pa. Super. 2015). We

therefore dismiss this claim.

      In sum, Sannoh’s convictions for possession with intent to deliver and

possession of marijuana are affirmed; Sannoh’s convictions for aggravated

assault,   simple   assault,   recklessly   endangering   another   person,   and

possession of an instrument of a crime are reversed, and Sannoh’s judgment

of sentence is vacated, and the case is remanded for resentencing.            See

Commonwealth v. Goldhammer, 517 A.2d 1280, 1283 (Pa. 1986) (stating

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generally if appellate court upsets sentencing scheme, then remand for

resentencing is warranted).

      Convictions affirmed in part and reversed in part. Case remanded for

resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/19




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