J-S06004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

JARED OAKES,

                            Appellant                    No. 1798 EDA 2013


        Appeal from the Judgment of Sentence Entered January 14, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011721-2011


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                         FILED JANUARY 20, 2015

        Appellant, Jared Oakes, appeals from the judgment of sentence of an

aggregate term of three years’ probation, imposed after he was convicted,

following a nonjury trial, of possession with intent to deliver (PWID) and

criminal conspiracy. Appellant challenges the sufficiency and weight of the

evidence to sustain his convictions. We affirm.

        The trial court set forth the facts of this case as follows:

              At trial, the Commonwealth presented the testimony of
        Philadelphia Police Officers Greg Barber and Rick Williams.
        Viewing the evidence in the light most favorable to the
        Commonwealth as the verdict winner, the police officer[s’]
        testimony established the following. On July 29, 201[1], with
        the aid of a confidential informant (“CI”), Officer Barber began a
        narcotics investigation in the area of 5800 Race Street in
        Philadelphia, Pennsylvania. On August 3, 2011[,] the Officer and
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     his team set up surveillance at 147 North 59th Street, dialed the
     telephone number provided by the CI and remained present
     while instructing the CI to engage the male who answered the
     call in a conversation related to the sale of narcotics, “preferably
     crack cocaine[.”] The male who answered the call directed the
     CI to the 200 block of North Salford Street. Officer Barber
     continued his surveillance at 147 North 59th Street, while backup
     officers, William and Francis, were directed to the 200 block of
     North Salford Street to observe the CI make this “controlled drug
     buy[.”] Prior to the buy, police searched the CI for narcotics,
     contraband, and currency (with negative results) and provided
     him with $40.00 pre-recorded buy money to use for the
     purchase.

           While under constant surveillance, the backup officers
     observed the CI come in contact with the operator of a black
     Cadillac that had driven into the area. The officers observed the
     CI hand the driver, later identified as co-defendant James
     Scruggs (“co-defendant”), the $40.00 prerecorded buy money in
     exchange for small objects. Within minutes, the CI returned to
     the officers and turned over four blue-tinted Ziploc packets, each
     containing an off-white[,] chunky substance, believed to be
     crack cocaine, that later tested positively for cocaine base.
     Officer Barber, who stayed at the previous location but remained
     in constant radio contact with the officers at the scene,
     instructed the backup officers to maintain their surveillance on
     the black Cadillac before stopping it at the 5900 block of Sansom
     Street.

           The operator of the vehicle, co-defendant James Scruggs,
     was placed in custody and police recovered from his person
     $147.00, a black wallet containing a PA driver’s license, one set
     of keys and three (3) cellular telephones, one verified as
     matching the telephone number previously provided to and
     dialed by police to make the call for the CI initiating the sale.
     The officers had also taken [Appellant] out of the passenger seat
     and confiscated from him a cell phone, $1,195.00 in US
     currency, in addition to the $40.00 in prerecorded buy money
     that was given to the CI for the narcotics purchase. No drugs
     were confiscated from [Appellant] or [his] co-defendant and a
     search of the vehicle resulted in no findings or confiscations of
     any contraband.




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Trial Court Opinion (TCO), 6/13/14, at 2-4 (citations to the record and

emphasis omitted).

      Based on this evidence, the court convicted Appellant of PWID and

criminal conspiracy.      Appellant was subsequently sentenced to concurrent

terms of three years’ probation for each offense. He filed a timely notice of

appeal, as well as a timely concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Herein, he raises two questions for

our review:

      I. Was the evidence presented at trial sufficient to find []
      Appellant guilty beyond a reasonable doubt of [PWID] … and
      [c]riminal [c]onspiracy?

      II. Did the [t]rial [c]ourt abuse its discretion by holding that the
      verdicts of guilty against Appellant were [not] against the weight
      of the evidence?

Appellant’s Brief at 3.

      Appellant first argues that the evidence presented at trial was

insufficient to sustain his convictions.    To begin, we note our standard of

review:

            In reviewing a sufficiency of the evidence claim, 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
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.



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Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

      In regard to both of his convictions, Appellant essentially maintains

that the evidence proved only his mere presence at the scene when Scruggs

sold narcotics to the CI. More specifically, Appellant argues that “[t]he fact

that [he] was present for the sale by his co-defendant to the informant, and

then was subsequently in possession of the pre-recorded buy money,

without further evidence, is insufficient to find beyond a reasonable doubt

that he was a member of a criminal conspiracy to sell narcotics, or that he

constructively possessed the narcotics sold by the co-defendant to the

informant.” Appellant’s Brief at 7.

      In concluding that the evidence was sufficient to sustain Appellant’s

convictions, the trial court analogized the facts of this case to those in

Commonwealth v. McCall, 911 A.2d 992 (Pa. Super. 2006). There, police

officers observed McCall and his co-defendant, Spencer Rogers, standing

“about five feet away from a drainpipe” on a Philadelphia street. Id. at 994.

As the officers watched, four different individuals approached Rogers and

handed him money, after which Rogers walked to the drainpipe, removed

items believed to be drugs, and handed the suspected drugs to the buyer.

Id. While these transactions were occurring, McCall “stood watch, looking

up and down the length of [the] [s]treet.”    Id.   Following two of the four

sales, Rogers handed the proceeds to McCall.            Id.    When officers

subsequently arrested Rogers and McCall, Rogers had $64 on his person,




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while McCall possessed $1,508, which was “mostly in small denominations.”

Id.

      Based on this evidence, we affirmed McCall’s convictions for conspiracy

and PWID. We stated:

      As our Court has … 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. 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. 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. Johnson,              719   A.2d   778,    784–85
      (Pa.Super.1998) (en banc).

             The totality of the evidence taken in a light most favorable
      to the Commonwealth was sufficient to sustain [McCall’s]
      convictions for PWID and conspiracy to deliver. Even though
      [McCall] did not physically handle the drugs transacted, he
      clearly took an active role in the illicit enterprise. [McCall] was
      observed working as a lookout … during three of the transactions
      in question, and he received money from his cohort seller
      immediately after two sales. Indeed, when arrested, [McCall]
      possessed a copious amount of money ($1,508) in small



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      denominations consistent with drug sale proceeds, while, in
      comparison, the seller possessed only $64.

             In contrast to the passive bystander or acquaintance
      merely present at the scene of a crime, roles which will not
      sustain a conviction for conspiracy, [McCall] actively participated
      in several crucial respects to enable his cohort to sell crack
      cocaine to numerous buyers. It was thus appropriate for the
      fact-finder to infer an agreement between [McCall] and his
      cohort to deliver crack cocaine based upon [McCall’s]
      participation in the enterprise carrying out the deliveries.
      Accordingly, we conclude that all three elements to a criminal
      conspiracy were sufficiently proven to sustain [McCall’s]
      conviction for conspiracy to deliver crack cocaine.

              Because [McCall] is criminally liable for the actions of his
      coconspirators, it follows that the evidence sufficed to convict
      him of PWID as well. Given the evidence of his conspiracy with
      Mr. Rogers, it is not exculpatory that [McCall] never actually
      handled the drugs or received the buy money directly from
      buyers when his co-conspirator Mr. Rogers did. As noted above,
      all conspirators are liable for the actions of other conspirators.
      Id. at 785. As [McCall’s] co-conspirator clearly delivered the
      illicit drugs in question, [McCall’s] conviction for PWID was
      proven beyond a reasonable doubt. [McCall’s] sufficiency
      challenge, therefore, is without merit.

McCall, 911 A.2d at 996 -997.

      In this case, the trial court concluded that “[t]he facts in McCall are

sufficiently similar to the facts in the instant matter” to uphold Appellant’s

convictions for PWID and conspiracy. TCO at 6. The court emphasized that

“[l]ike the appellant in McCall, [Appellant] in the instant case was not only

present for the sale of the drugs, but also immediately received the $40.00

proceeds from the sale, while already in possession of a copiously large

amount of U.S. currency - $1,195.00 – while the actual seller in this case

only possessed $147.00.” Id.


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      Appellant, however, argues that McCall is “factually distinguishable”

from the present case because he did not take an ‘active role’ as did McCall.

Appellant’s Brief at 9.   Appellant emphasizes that he did not possess the

phone used to set up the sale with the CI, he did not drive to the location,

the CI spoke only to Scruggs and handed Scruggs the money, and Appellant

“gave nothing to Scruggs prior to the transaction.” Id. at 10. Appellant also

points out that police did not find any drugs on Scruggs, Appellant, or in the

car, thus “indicating that Scruggs made this single trip to sell four packets of

crack.” Id. (emphasis added).

      Appellant further argues that the facts of this case are comparable to

those in Commonwealth v. Mercado, 617 A.2d 342 (Pa. Super. 1992).

We summarized the evidence presented in Mercado as follows:

      [T]he police observ[ed] … [Mercado], leaning out the third floor
      window of a house where a planned “buy” was made, watching a
      drug transaction transpire [at the door to the home] between
      police and [Mercado’s] alleged co-conspirator; the observation of
      [Mercado] and his alleged co-conspirator in the same position
      fifteen minutes later, at which time there was no sight of
      criminal dealing; and the presence of [Mercado] between the
      first and second floor of the house at the time police uncovered
      contraband in [an unlocked] third floor apartment.

Id. at 344.   We concluded that this evidence was insufficient to sustain

Mercado’s convictions for PWID or criminal conspiracy.        In regard to the

conspiracy conviction, we noted:

      [Mercado] was not observed handling any money or
      communicating in any way with Colon. After the police searched
      the premises, they found no drugs on [Mercado], nor was [he] in
      the room where the drugs were found.        [Mercado’s] mere

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      presence at the location of the drug transaction is not sufficient
      to implicate him in a criminal conspiracy.

Id. at 346.

      After careful consideration of the facts of Appellant’s case, we conclude

that his conduct falls somewhere in between that of the appellants in McCall

and Mercado. McCall’s active role in the conspiracy was more pronounced

than Appellant’s, as officers observed McCall acting as a lookout for his

cohort during the drug transactions.        However, we reject Appellant’s

assertion that he was merely present at the scene, as was Mercado.

Instead, Appellant was in close proximity to the drug sale as it took place,

he immediately received the proceeds of that sale, and he possessed a large

quantity of cash (much more than that possessed by Scruggs) on his person

at the time of his arrest. The totality of these circumstances convinces us

that Appellant’s case is more analogous to McCall, and it was reasonable for

the court to infer that Appellant and Scruggs had a “common understanding

… that a particular criminal objective be accomplished[,]” as well as “a

shared criminal intent.” McCall, 911 A.2d at 996 (citation omitted). Thus,

as in McCall, we conclude that Appellant’s criminal conspiracy conviction

was supported by sufficient evidence.       Consequently, Appellant is also

criminally liable for Scruggs’ sale of narcotics to the CI, which supports his

conviction for PWID.

      Appellant next challenges the weight of the evidence to support his

convictions.



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      A claim alleging the verdict was against the weight of the
      evidence is addressed to the discretion of the trial court.
      Accordingly, an appellate court reviews the exercise of the trial
      court's discretion; it does not answer for itself whether the
      verdict was against the weight of the evidence. It is well settled
      that the jury is free to believe all, part, or none of the evidence
      and to determine the credibility of the witnesses, and a new trial
      based on a weight of the evidence claim is only warranted where
      the jury's verdict is so contrary to the evidence that it shocks
      one's sense of justice. In determining whether this standard has
      been met, appellate review is limited to whether the trial judge's
      discretion was properly exercised, and relief will only be granted
      where the facts and inferences of record disclose a palpable
      abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations

and internal quotation marks omitted).

      Here, the trial court rejected Appellant’s weight argument, instead

concluding that “[t]he evidence outlined above plainly established that

[Appellant] both conspired to and did constructively possess drugs with the

intent to deliver.” TCO at 10.     While Appellant argues that the evidence

“indicates that Appellant’s co-defendant, James Scruggs, acted alone in

selling drugs to the informant[,]” for the above-stated reasons, we disagree.

Appellant’s Brief at 12. Therefore, we ascertain no abuse of discretion in the

trial court’s denial of Appellant’s challenge to the weight of the evidence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2015




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