J-A34014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

THEOPHILUS L. BALDWIN

                         Appellant                   No. 385 MDA 2015


        Appeal from the Judgment of Sentence December 18, 2014
             In the Court of Common Pleas of Centre County
           Criminal Division at No(s): CP-14-CR-0000302-2014


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                           FILED MARCH 01, 2016

      Appellant, Theophilus L. Baldwin, appeals from the judgment of

sentence entered by the Honorable Pamela A. Ruest, Court of Common Pleas

of Centre County. We affirm.

      The relevant facts and procedural history are as follows. Baldwin’s

convictions arise out of a conspiracy with several other individuals to possess

heroin with the intent to deliver it between August/September 2012 and

February 2013. Baldwin’s involvement was documented by enforcement

agents of the Office of Attorney General (OAG) pursuant to a wiretap

executed on a co-conspirator’s phone. Baldwin’s involvement was also

captured on video surveillance footage.

      Following a jury trial, Baldwin was convicted of possession with intent

to deliver (PWID), conspiracy—PWID, delivery of a controlled substance, and
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criminal use of a communication facility. The trial court sentenced Baldwin to

an aggregate term of 10 to 20 years’ imprisonment. Baldwin subsequently

filed a post-sentence motion for reconsideration of sentence, which the trial

court granted. Thereafter, the trial court amended the original sentence and

sentenced Baldwin to an aggregate term of 4 to 8 years’ imprisonment. This

timely appeal followed.

      On appeal, Baldwin raises four issues for us to consider. In his first

issue, Baldwin challenges the sufficiency of the Commonwealth’s evidence to

support his convictions for PWID, conspiracy—PWID, delivery of a controlled

substance, and criminal use of a communication facility. “The standard for

review is whether the evidence admitted at trial, and all reasonable

inferences drawn therefrom, when viewed in the light most favorable to the

Commonwealth as verdict winner, was sufficient to enable the factfinder to

conclude that the Commonwealth established all of the elements of the

offense beyond a reasonable doubt.” Commonwealth v. Thompson, 922

A.2d 926, 928 (Pa. Super. 2007) (citation omitted).

      Baldwin contends that the Commonwealth’s evidence was insufficient

to convict him of PWID. Specifically, Baldwin argues that the Commonwealth

failed to prove that he possessed with the intent to deliver over 50 grams of

heroin, as provided in the bill of particulars, because no evidence of drug

weights was presented at trial. See Appellant’s Brief, at 17. Thus, Baldwin

maintains that “because the Commonwealth failed to prove that [he]

delivered over the specified amount of heroin stated in their bill of

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particulars, the evidence was insufficient to convict [him] of Count I.” Id.

We disagree.

      To convict a person of PWID, the Commonwealth must prove beyond a

reasonable doubt that the person possessed a controlled substance with the

intent to deliver it and without legal authorization to do so.              See

Commonwealth v. Bricker, 882 A.2d 1008, 1015 (Pa. Super. 2005); see

also 35 P.S. § 780-113(a)(30). “The amount of the controlled substance is

not ‘crucial to establish an inference of possession with intent to deliver, if …

other facts are present.’” Commonwealth v. Ratsamy, 934 A.2d 1233,

1237 (Pa. Super. 2007) (citation omitted). “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.” Bricker, 882 A.2d at 1015 (citation omitted).

      Here, Agent Thomas J. Moore, a narcotics agent with the OAG,

testified regarding the intercepted phone calls, text messages, and video

surveillance implicating Baldwin in a conspiracy to sell heroin. See N.T.,

Trial, 11/3/14, at 59-71, 74-85. Five witnesses testified that they purchased

heroin from Baldwin. See id., at 116-119, 126, 135-136, 142-143, 157-158,

166-169, 195-197, 209-210, 290. All of the witnesses provided specific

details regarding their interactions with Baldwin, including the price,

quantity, and quality of the heroin they purchased, as well as the general

location where the transactions took place. See id. Thus, viewing the

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evidence in the light most favorable to the Commonwealth as the verdict

winner, we conclude that there was sufficient evidence for upholding

Baldwin’s PWID conviction. Based on the foregoing reasons, we also

conclude that the evidence presented was plainly sufficient to support

Baldwin’s convictions for delivery of a controlled substance 1 and criminal use

of a communication facility.2

        Baldwin’s final sufficiency challenge concerns his conspiracy to commit

PWID conviction. Baldwin argues that there was insufficient evidence to

convict him of PWID; thus, there was insufficient evidence to convict him of

conspiracy to commit PWID. See Appellant’s Brief, at 20-21. He further

maintains that the Commonwealth failed to prove that he was “acting in

concert [with others] under a prior agreement to deliver any heroin”; thus,

his conspiracy conviction cannot stand. Appellant’s Brief, at 21. We disagree.

        “To   sustain    a   conviction        of   criminal   conspiracy[,]   …   [t]he

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 done in

furtherance of the conspiracy.” Bricker, 882 A.2d at 1017 (citation




____________________________________________


1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S.A. § 7512(a).



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omitted); see also 18 Pa.C.S.A. § 903. Circumstantial evidence may suffice

as proof of the conspiracy. See Bricker, 822 A.2d at 1017.

      As we previously stated, the evidence presented was sufficient to

convict Baldwin of PWID. In viewing the evidence in the light most favorable

to the Commonwealth, we also conclude that the evidence presented was

sufficient to convict Baldwin of criminal conspiracy to commit PWID. The

intercepted   telephone    calls,   text   messages,     and   video   surveillance

established that Baldwin regularly communicated with others about the

possession and delivery of heroin. Thus, it was eminently reasonable for the

jury to infer that Baldwin conspired with these individuals to commit PWID.

Accordingly, the Commonwealth presented sufficient evidence of criminal

conspiracy. Because there was sufficient evidence to support all four

convictions, Baldwin’s first issue on appeal is meritless.

      In his second issue, Baldwin contends that the trial court erred when it

declined to deliver Jury Instruction 3.14 (Consciousness of Guilt, Flight, or

Concealment) with respect to Mandy Mabry’s failure to appear and testify at

trial. The record reflects that Ms. Mabry was to be called as a witness for the

Commonwealth; however, the Commonwealth was unable to locate her to

serve her with a subpoena to testify at trial. See N.T., Trial, 11/4/14, at 4-9.

Baldwin argues that the trial court should have granted his request to

provide the instruction to the jurors because there was evidence that Ms.

Mabry “fled” prior to trial. Appellant’s Brief, at 27.




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      “A trial court’s denial of a request for a jury instruction is disturbed on

appeal only if there was an abuse of discretion or an error of law.”

Commonwealth v. Johnson, 107 A.3d 52, 89 (Pa. 2014) (citation

omitted). “It is axiomatic that ‘jury instructions … are not warranted unless

there is evidence to support such instructions.’” Commonwealth v.

Milligan, 693 A.2d 1313, 1318 (citation omitted).

      The suggested instruction reads, in pertinent part, as follows:

      Generally speaking, when a crime has been committed and a person
      thinks he or she is or may be accused of committing it and he or she
      flees or conceals himself or herself, such flight or concealment is a
      circumstance tending to prove the person is conscious of guilt. Such
      flight or concealment does not necessarily show consciousness of guilt
      in every case. A person may flee or hide for some other motive and
      may do so even though innocent. Whether the evidence of flight or
      concealment in this case should be looked at as tending to prove guilt
      depends upon the facts and circumstances of this case and especially
      upon motives that may have prompted the flight or concealment.

Pa.S.S.J.I. (Crim) 3.14.

      Although Jury Instruction 3.14 was written specifically for the actions

of the defendant, not another actor, this Court has held that “once a

defendant properly introduces evidence that someone else fled the crime

scene, the trial court is duty bound to instruct the jury concerning the

significance of this evidence.” Milligan, 693 A.2d at 1317 (emphasis added).

In the instant case, there was no evidence presented showing that Ms.

Mabry fled a crime scene. Thus, there were no circumstances present

warranting a flight or consciousness of guilt jury instruction. Accordingly, the




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trial court properly declined Baldwin’s request to give Jury Instruction 3.14.

Baldwin’s second issue on appeal is meritless.

       Baldwin’s third issue on appeal was not included in his Rule 1925(b)

statement. In his Rule 1925(b) statement, Baldwin asserts that his

constitutional right to confrontation was violated when the trial court allowed

Agent Moore to testify regarding his interpretation of the wiretapped

discussions between Baldwin and Ms. Mabry. However, in his brief, Baldwin

argues that the wiretapped conversations constitute hearsay without a valid

exception. See Appellant’s Brief, at 27-28. Because Baldwin did not raise

this issue in his Rule 1925(b) statement, it is deemed waived. See

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not

raised in a 1925(b) statement will be deemed waived.”)

       In his fourth and final issue, Baldwin challenges the discretionary

aspects of his sentence. Baldwin contends that the trial court erred when it

determined that the weight of the heroin at issue for count I (PWID) and

count II (conspiracy—PWID) was more than 50 grams.3 See Appellant’s

Brief, at 30.



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3
  At first glance, it may appear as if this sentence violates the rule against
judicially imposed mandatory minimums set forth in Alleyne v. United
States, 133 S.Ct. 2151 (2013). However, this case does not violate Alleyne
because the sentence was imposed pursuant to advisory, rather than
mandatory, guidelines; thus, the Sixth Amendment is not implicated. See
United States v. Booker, 125 S.Ct. 738, 750 (2005).



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      Prior to addressing this issue, we must determine if Baldwin’s claim is

properly before us. Challenges to the discretionary aspects of sentencing are

not automatically reviewable as a matter of right. See Commonwealth v.

Hunter, 768 A.2d 1136, 1144 (Pa. Super. 2001). “When challenging the

discretionary aspects of a sentence, an appellant must invoke the appellate

court’s jurisdiction by including in his brief a separate concise statement

demonstrating that there is a substantial question as to the appropriateness

of the sentence under the Sentencing Code.” Commonwealth v. McNear,

852 A.2d 401, 407 (Pa. Super. 2004) (citations omitted); see also Pa.R.A.P.

2119(f). An appellant’s Rule 2119(f) statement is required to include an

articulation of “what particular provision of the [Sentencing] Code is

violated, what fundamental norms the sentence violates, and the manner in

which it violates the norm.” Commonwealth v. Zirkle, 107 A.3d 127, 132

(Pa. Super. 2014) (citation omitted). “If a defendant fails to include an issue

in his Rule 2119(f) statement, and the Commonwealth objects, then the

issue is waived and this Court may not review the claim.” Commonwealth

v. Karns, 50 A.3d 158, 166 (Pa. Super. 2012) (citation omitted).

      Baldwin failed to file a Rule 2119(f) statement in his brief, and the

Commonwealth objected to this failure. See Appellee’s Brief, at 26-27.

Consequently, Baldwin has waived this issue.

      Because we conclude that none of Baldwin’s issues on appeal merit

relief, we affirm the judgment of sentence.




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     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2016




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