J-S85022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                                :          PENNSYLVANIA
                                                :
               v.                               :
                                                :
                                                :
    JAIME FRANCESCHI JR .                       :
                                                :
                      Appellant                 :     No. 1936 EDA 2014

             Appeal from the Judgment of Sentence June 27, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003127-2013


BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY RANSOM, J.:                                FILED JANUARY 10, 2017

        Appellant Jaime Franceschi, Jr. appeals from the judgment of sentence

imposed on June 27, 2014, following a bench trial resulting in his conviction

of possession of a controlled substance, possession with intent to deliver

(PWID),     and     conspiracy    to   commit       PWID.1   We   affirm   Appellant’s

convictions. However, based upon an Alleyne violation, we are constrained

to vacate the sentence imposed and remand for resentencing.2

        The relevant facts and procedural history are as follows.          In August
____________________________________________


1
 Respectively, 35 P.S. § 780-113(a)(16), 35 P.S. § 780-113(a)(30), and 18
Pa.C.S. § 903.
2
  See Alleyne v. United States, 133 S.Ct. 2151 (2013); Commonwealth
v. Fennell, 105 A.2d 13 (Pa. Super. 2014). The trial court and the
Commonwealth both agree that a remand is necessary. See Trial Court
Supplemental Opinion (T.C.S.), 4/13/2016, at 16; Commonwealth’s Br. at 7.
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2012, the Philadelphia Narcotics Field Unit employed a confidential informant

(“CI”) to assist with their undercover surveillance of the house located at

855 East Shiller Street. See Trial Ct. Op., 3/2/2015, at 1. On two separate

occasions over the course of two days, the police observed the CI meet with

a male by the name of Jose Alicea outside of the house. See id. at 1-2. On

each occasion, the CI gave Alicea some cash that the police had

prerecorded.    See Notes of Testimony (“N.T.”), 4/10/2014, at 27.       Alicea

would enter the house, return with an object, and hand it to the CI. N.T.,

4/10/2014, at 27.      The CI then turned over two, clear Ziploc packs

containing marijuana to the police. See id.

      On the third day of surveillance, police observed Alicea and another

male (“Rivera”) enter the garage.    See id. at 29.      Rivera exited from the

garage carrying a black backpack, and together they returned to the house.

See id. Shortly after, Alicea exited the house he met with Appellant outside

of the house.   See id. at 29.   Police observed Alicea hand a big, ball-like

object to Appellant. See id. at 29, 50-52. Appellant used a key tied around

his neck to open the doors to a white van parked on the street, and he

placed the object inside on the driver’s side. See id.

      Shortly thereafter, the CI approached Appellant to make a buy in front

of the house. See id. at 30. After a brief conversation, Appellant opened

the van’s doors and exchanged objects with the CI.            See id.   The CI

returned and handed the officers two bags of marijuana. See id. Appellant


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was arrested on the street. See id. On Appellant’s person, police recovered

a prerecorded, twenty dollar bill. See id. at 30, 74.

      Thereafter, the police executed a search and seizure warrant on the

house and garage. See id. The following items were seized:

      The police searched the white van and recovered two (2)
      bundles of marijuana, each containing 12 packets of marijuana
      and $618.00. The police searched 855 East Schiller Street and
      recovered 25 bags of package[d] marijuana, as well as 383
      grams of lose marijuana; numerous new and unused baggies; a
      scale; and [sic] $1,816.00. The police searched the garage and
      recovered 6.88 pounds of marijuana. The packets of marijuana
      recovered on August 24, 2012, including the two packets turned
      over by the CI, were all the same in size, color, shape and
      design.

T.C.S., 4/13/2016, at 15-16.

      Following a bench trial, Appellant was found guilty of the crimes

enumerated above. The trial court sentenced Appellant to two to four years

of incarceration followed by three years of reporting probation.

      Appellant timely filed an appeal in June 2014. Counsel for Appellant

filed a motion to withdraw on the basis that he does not do appellate work.

See Motion to Withdraw as Counsel, 6/30/2014.           The court issued an

Pa.R.A.P. 1925(b) order on July 8, 2014. Appellant failed to file the required

court-ordered 1925(b) statement, and counsel failed to appear at his

hearing to withdraw from Appellant’s representation.       See Trial Ct. Op.,

3/18/2015, at 5. Thus, the trial court found all appellate claims waived by

virtue of Appellant’s failure to timely file a 1925(b) statement. See id. at 6.

Similarly, this Court dismissed Appellant’s appeal on June 9, 2015.       See

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Super. Ct. Order, 6/9/2015.

      In July 2015, Appellant pro se filed an application for reinstatement of

his direct appeal rights. This Court reinstated those rights nunc pro tunc and

remanded with instructions directing the trial court to appoint substitute

counsel. See Super. Ct. Order, 7/29/2015.

      In August 2015, Appellant filed a counseled motion for remand

wherein Appellant claimed abandonment of trial counsel resulted in the

unintentional waiver of challenges to the weight of the evidence and/or the

discretionary aspects of sentencing. See Motion for Remand, 8/14/2015, at

2 ¶¶ 13, 17, 19-21. This Court denied Appellant’s request for remand for

the purpose of filing a post-sentence motion, without prejudice to Appellant’s

right to raise the issue in Appellant’s brief. See Super. Ct. Order, 9/1/2015.

In addition, this Court remanded the case with instructions for the trial court

to permit Appellant to submit a 1925(b) statement and to issue a responsive

opinion.   See id.   Thereafter, Appellant timely filed a 1925(b) statement,

and the trial court issued a responsive opinion. See T.C.S., 4/13/2016, at 2.

      On appeal, Appellant raises the following issues:

 I.   Whether the Court erred when it did not sua sponte correct
      ineffective assistance of counsel evident on the face of the
      record where after the Appellant was sentenced counsel failed to
      advise the Appellant that he had the right to file a post sentence
      motion challenging the weight and credibility of the evidence,
      the discretionary aspects of sentencing and other issues within
      10 days of the imposition of sentence or that he had the right to
      be represented by counsel and that one could be and had been
      appointed to represent him.


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 II.   Whether the adjudication of guilt is against the weight and
       credibility of the evidence where the Appellant was never
       identified as the person who was arrested for engaging in illegal
       conduct until after the Commonwealth rested, where the
       Appellant testified credibly that he was not engaged in illegal
       conduct, and where no contraband is found on the Appellant or
       in areas that one could reasonably conclude were within his
       dominion and control.

III.   Whether the adjudication of guilt is based upon insufficient
       evidence because the inferences drawn from the evidence were
       unreasonable and because the evidence offered to support the
       verdict contravened human experience and human behavior.

IV.    Whether the Court erred when it illegally sentenced the
       Appellant outside of the guidelines to an unduly harsh and
       unjustified sentence.

Appellant’s Br. at 6.

       Based on our order reinstating Appellant’s right to file a 1925(b)

statement nunc pro tunc, the trial court concluded that Appellant’s failure to

file a post-sentence motion did not waive his discretionary challenge to the

sentence.    See T.C.S., 4/13/2016, at 8; Super. Ct. Order, 9/1/2015.

Further, the court found that trial counsel did preserve a challenge to the

weight and sufficiency of the evidence when trial counsel moved for a

judgment of acquittal at the close of the Commonwealth’s case in chief. See

T.C.S., 4/13/2016, at 8-9 (citing N.T., 4/10/2014, at 68-71). Because the

trial court concluded Appellant could preserve those claims in his 1925(b)

statement, his ineffective assistance of counsel claim is now moot.

       In his second issue, Appellant claims that the verdict was against the

weight of the evidence. See Appellant’s Br. at 19. Appellant maintains that


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he “testified credibly that he was not engaged in illegal conduct.” Id. at 14.

       Our standard of review is well settled.

       When the challenge to the weight of the evidence is predicated
       on the credibility of trial testimony, our review of the trial court's
       decision is extremely limited. Generally, unless the evidence is
       so unreliable and/or contradictory as to make any verdict based
       thereon pure conjecture, these types of claims are not
       cognizable on appellate review. “Moreover, where the trial court
       has ruled on the weight claim below, an appellate court's role is
       not to consider the underlying question of whether the verdict is
       against the weight of the evidence.”           Commonwealth v.
       Champney, 832 A.2d 403, 408 (Pa. 2003). “Rather, appellate
       review is limited to whether the trial court palpably abused its
       discretion in ruling on the weight claim.” Id.

Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007) (citation

omitted).

       Although Appellant concedes that he “knows co-defendant Alicea,” and

possessed “prerecorded buy money” and was “seen opening a stash vehicle

with a key around his neck,” Appellant claims this evidence “does not

conclusively establish that [he] was knowingly engaging in a [c]onspiracy to

possess or sell contraband.”           Appellant’s Br. at 19.   Rather, Appellant

suggests that his testimony, in which he purported to enter the van at “the

behest of its owner” and explained his presence on the block was “to visit his

girlfriend,” was credible and “unrebutted.” Id. at 19-20.3

____________________________________________


3
  In support of Appellant’s challenge to the weight of the evidence, he
argues that he was “never seen” engaging in an illegal narcotics transaction,
on the block during the first two days of surveillance, going in or out of the
stash house or garage. Appellant’s Br. at 19. He claims that he was never
(Footnote Continued Next Page)


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      We are unconvinced by Appellant’s argument, which he premises on

the credibility of his testimony. See Appellant’s Br. at 19-20. Here, the trial

court accepted the testimony of the Commonwealth’s three witnesses as

credible and rejected Appellant’s testimony as not credible.        See T.C.S.,

4/13/2016, at 11-12.          The trial court was free to disbelieve Appellant’s

testimony. See Trippett, 932 A.2d at 199 (“The weight of the evidence is

exclusively for the finder of fact who is free to believe all, part, or none of

the evidence and to determine the credibility of the witnesses.”) (quoting

Champney, 832 A.2d at 408). After reviewing the record in this case, we

conclude that the evidence was “not so unreliable as to warrant a new trial,”

as the verdict does not “shock one’s sense of justice.” Trippett, 932 A.2d

at 199. Accordingly, Appellant’s argument is without merit.

      Appellant next purports to challenge the sufficiency of the evidence to

convict him of conspiracy and PWID. See Appellant’s Br. at 20-21.

      In order to preserve a challenge to the sufficiency of the
      evidence on appeal, an appellant's Rule 1925(b) statement must
      state with specificity the element or elements upon which the
      appellant alleges that the evidence was insufficient.      Such
      specificity is of particular importance in cases where, as here,
      the appellant was convicted of multiple crimes each of which
      contains numerous elements that the Commonwealth must
      prove beyond a reasonable doubt.

Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (internal

                       _______________________
(Footnote Continued)

“conclusively identified” until the Judge allowed the Commonwealth to re-
open its case to allow an officer to “clarify” their testimony. Id.



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citations and quotation marks omitted); see also Commonwealth v. Gibbs,

981 A.2d 274 (Pa. Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010).

        Here, Appellant fails to analyze with particularity the elements of the

charges against him. For example, to prove PWID, the Commonwealth must

prove: (1) that the defendant possessed or constructively possessed a

controlled substance, and (2) with the intent to manufacture, distribute, or

deliver it. Commonwealth v. Brown, 48 A.3d 426, 42 (Pa. Super. 2012);

see also 35 P.S. § 780–113(a)(30); 35 P.S. § 780–113(a)(16).                To

establish conspiracy to commit PWID, the Commonwealth must prove: “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.” Commonwealth

v. Jones, 874 A.2d 108, 121 (Pa. Super. 2005) (internal quotation marks

and citation omitted)).4           However, Appellant neither identifies these

elements nor argues how the Commonwealth’s evidence failed to establish

them.    See Appellant’s Pa.R.A.P. 1925(b) Stmt.; Appellant’s Br. at 20-21.

Accordingly, Appellant’s claim is waived. See Garland, supra.
____________________________________________


4
  The Commonwealth can establish “constructive possession” by the totality
of the circumstances. Brown, 48 A.3d at 42.4 “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.” Jones, 874 A.2d at 121. “The intent to deliver
can be inferred from an examination of the surrounding facts and
circumstances.” Perez, infra, 931 A.2d at 707. “Circumstantial evidence
may provide proof of the conspiracy.” Id. at 708.



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      Absent waiver, Appellant’s claim is devoid of merit. Our standard of

review of a challenge to sufficiency of the evidence is well settled.

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying [the above] test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder.    In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant's guilt may be resolved by the 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 Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.         Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      [finder] of fact 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. Perez, 931 A.2d 703, 706–07 (Pa. Super. 2007)

(quoting Jones, 874 A.2d at 120-21) (citation omitted).

      Here, Appellant suggests that his presence at the scene of the crime,

relationship   with   Alicea,   and   possession    of   prerecorded   money     are

“insufficient as a matter of law that he conspired to possess or that he

participated in a conspiracy to sell marijuana.”         See Appellant’s Br. at 21.

Even accepting his premise, Appellant nonetheless fails to account for the

overwhelming     direct   and   circumstantial     evidence   that   establish   that

Appellant participated in a conspiracy to sell narcotics.

      Appellant was not only present at the scene of the crime; officers saw

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Alicea, the owner of the stash house, give an object to Appellant on the

street in front of the stash house.        See N.T., 4/10/2014, at 29, 50-52.

Next, they saw Appellant put the object into the van on the driver’s side and

watched him distribute marijuana to the CI in exchange for cash. See id. at

29-30, 50-52. When the police searched the van, they found marijuana on

the driver’s side that was identical in packaging size, shape, color, and

design to the marijuana recovered inside the house. See id. at 30, 37, 39-

40, 74; see also T.C.S., 4/13/2016, at 15.

     With regard to the PWID charge, the evidence established that

Appellant had control of the van in which officers found marijuana.         This

gives rise to the inference of (A) constructive possession, over the marijuana

found inside the van, and (B) the intent to deliver. Brown, 48 A.3d at 430;

Perez, supra, 931 A.2d at 707-708; Jones, 874 A.2d at 121.

     In drug cases, “expert testimony is important where the other

evidence may not conclusively establish that the drugs were intended for

distribution.” Commonwealth v. Ratsamy, 934 A.2d 1233, 1236–37 (Pa.

2007)   (citing   Commonwealth        v.    Kirkland,   831   A.2d   607,   612

(Pa.Super.2003), alloc. denied, 577 Pa. 712, 847 A.2d 1280 (2004)).          In

Ratsamy, our Supreme Court clarified that the Superior Court should

consider “all of the evidence introduced at the time of trial, and apparently

believed by the factfinder, including the expert’s testimony.” Ratsamy, 934

A.2d at 1237.


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        In this case, an officer and an expert in drug packaging and

distribution of narcotics testified. The officer testified that the packaging of

the marijuana turned over by the CI was similar to what was found on table

inside of the house.

        Q. Did you compare the packets that were turned over by the
        confidential informant that were alleged containing marijuana
        with the packets that were recovered from the van that were
        also alleged to contain marijuana?
        A. It was the same in size, color and shape and design, also to
        the 25 that were recovered from the table.
        Q. Okay. They were all the same in addition to the ones that
        were recovered from the table?
        A. That’s correct…. The table where they were allegedly bagged.

See id. at N.T., 4/10/2014, at 40-41.              According to the expert in drug

packaging, the two bags that Appellant sold to the CI had a blue devil logo;

police recovered two bundles of marijuana in clear plastic bags from inside

the van, each containing 24 clear Ziploc packets with a blue devil logo, each

containing between 2.53 and 2.38 grams of marijuana. See id. at 43, 67-

68.5 Police recovered one Ziploc bag in which there were 25 Ziploc packets

with blue devils on them, each containing between 2.24 to 3.17 grams of

marijuana from inside the house on the table. See id. at 42, 68.6 Police

recovered seven clear zip bags containing approximately seven pounds of

marijuana from the garage.7 See id. at 31, 43.               The expert, however,

____________________________________________


5
    Property Receipt No. 306478
6
    Property Receipt No. 306480
7
    Property Receipt No. 369486



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testified that the manufacturers would never sell the marijuana from the

“stash garage where they had the bulk marijuana” until after it was

packaged up. Id. at 59.

     With regard to a conspiracy to commit PWID, the evidence established

a tacit agreement between Appellant and his co-conspirators based on

circumstantial evidence such as: Appellant’s relationship with Alicea, his

presence near the stash house, and participation in the criminal activity.

Perez, 931 A.2d at 708-09.      The marijuana in the van was packaged

similarly to the marijuana found in the house. The circumstances suggest

that the co-conspirator retrieved that marijuana directly from the stash

garage, and further, that Appellant shared criminal intent to distribute the

additional marijuana, which they stashed in the garage.          See N.T.,

4/10/2014, at 40, 59-60, 62; see also Jones, supra. Finally, Appellant’s

sale of marijuana to the CI and acceptance of prerecorded buy money

constituted an overt act in furtherance of the conspiracy to commit PWID.

T.C.S., 4/12/2016, at 16.

     Here, there was sufficient direct and circumstantial evidence for the

trial court to find Appellant complicit in a conspiracy to sell all of the

contraband seized.   “[S]uccessful proof of a conspiracy [to commit PWID]

makes each coconspirator fully liable for all of the drugs recovered without

the necessity of proving constructive possession.” Perez, 931 A.2d at 709.

We discern no abuse of the trial court’s discretion or legal error.


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Accordingly, Appellant’s argument is without merit.

      Finally, Appellant asserts that his sentence is illegal.   In the instant

case, the trial court imposed a mandatory minimum sentence pursuant to 18

Pa.C.S. § 7508.    See T.C.S., 4/13/2016, at 16.      The sentence imposed is

unconstitutional. Alleyne, 133 S.Ct. at 2163-64; Fennell, 105 A.3d at 20.

Accordingly, we remand for resentencing.

      Judgement of sentence vacated.         Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/2017




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