J-S21008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    MARTIN HERNANDEZ

                             Appellant               No. 1106 EDA 2018


             Appeal from the Judgment of Sentence June 13, 2012
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at Nos: CP-51-CR-0000280-2012

BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                              FILED MAY 10, 2019

       Appellant, Martin Hernandez, appeals from his judgment of sentence for

possession of a controlled substance with intent to deliver (“PWID”), criminal

conspiracy and intentional possession of a controlled substance by an

unregistered person.1 Appellant raises challenges to the sufficiency and the

weight of the evidence. We affirm.

       The trial court summarized the evidence as follows:

       On October 27, 2011, at approximately 8:15 p.m., Philadelphia
       Police Officer James Crown was on patrol in plain clothes near the
       200 block of East Stella Street in Philadelphia, Pennsylvania.
       Officer Crown observed [Appellant] being approached by
       numerous pedestrians asking for “rock” or “dope,” which is street
       slang for crack cocaine and heroin. After being approached,
       [Appellant] would direct the prospective buyers to Mr. Medina and
       Mr. Murphy. Officer Crown observed [Appellant] directing five
____________________________________________


135 Pa.C.S.A. § 780-113(a)(30), 18 Pa.C.S.A. § 903, and 35 Pa.C.S.A. § 780-
113(a)(16), respectively.
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      different pedestrians towards Mr. Medina, who would then engage
      the prospective clients, go to a lot on the north side of the street,
      remove something from underneath the rock, and exchange it for
      cash. One of the individuals directed towards Mr. Medina, Gloria
      Perez, was later stopped and found in possession of narcotics.
      After these exchanges, Officer Crown witnessed [Appellant]
      directing other individuals, who approached him for crack cocaine
      and heroin, towards Mr. Murphy. Once Mr. Murphy spoke to these
      individuals, he would go to the lot, pick up an object and do an
      exchange for cash. One of the individuals directed towards Mr.
      Murphy, George Scripnicenu, was later stopped and found in
      possession of a blue packet stamped with “first blood” containing
      an off-white power substance.

      Around 8:30 p.m., Officer Crown observed Appellant, Mr. Medina,
      and Mr. Murphy standing near the alleyway on the south side of
      200 Stella Street. [Appellant] then left the area and came back
      in a black Mercedes. At 8:40 p.m., two white males approaching
      [Appellant] asking for dope were told to wait ten minutes. At this
      time, Officer Crown called for backup and stopped Mr. Medina, Mr.
      Murphy, and [Appellant]. A total of $33.00 was confiscated from
      Mr. Medina, and $1,751.00 from [Appellant]. Narcotics that later
      tested positive for heroin and cocaine were discovered in the lot
      that Mr. Medina, Mr. Murphy, and [Appellant] were frequently
      visiting.

Trial Court Opinion, 7/10/18, at 1-2 (record citations omitted). The record

further shows that Officer Crown observed Medina and Murphy hand cash to

Appellant after the transactions with other individuals. N.T., 5/12/12, at 14.

      Appellant was charged with PWID and related offenses.          Following a

bench trial, the court found Appellant guilty on all charges. On June 13, 2012,

the court sentenced Appellant to two to four years’ imprisonment for PWID

and concurrent terms of four years’ probation on the other counts. Appellant

did not initially appeal, but on June 6, 2013, he filed a Post Conviction Relief

Act petition seeking leave to file a direct appeal nunc pro tunc. On March 15,


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2018, the court granted leave to appeal nunc pro tunc. On April 13, 2018,

Appellant filed a timely notice of appeal. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      Appellant raises two issues in this appeal:

      1. Is [Appellant] entitled to an Arrest of Judgment where, as here,
      the evidence is insufficient to sustain the verdict?

      2. Is [Appellant] entitled to a new trial where, as here, the verdict
      is not supported by the greater weight of the evidence?

Appellant’s Brief at 3.

      In reviewing the sufficiency of the evidence, we must determine whether

the evidence admitted at trial and all reasonable inferences drawn therefrom,

viewed in the light most favorable to the Commonwealth as verdict winner,

were sufficient to prove every element of the offense beyond a reasonable

doubt. Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013). “[T]he

facts and circumstances established by the Commonwealth need not preclude

every possibility of innocence.” Commonwealth v. Colon-Plaza, 136 A.3d

521, 525–26 (Pa. Super. 2016). It is within the province of the fact-finder to

determine the weight to be accorded to each witness’s testimony and to

believe all, part, or none of the evidence. Commonwealth v. Tejada, 107

A.3d 788, 792–93 (Pa. Super. 2015). The Commonwealth may sustain its

burden of proving every element of the crime by means of wholly

circumstantial evidence.   Commonwealth v. Crosley, 180 A.3d 761, 767

(Pa. Super. 2018). As an appellate court, we may not re-weigh the evidence


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

Rogal, 120 A.3d 994, 1001 (Pa. Super. 2015).

      Appellant claims the evidence was insufficient to prove criminal

conspiracy because it did not establish he was acting with Medina and Murphy

to sell narcotics. An individual is guilty of criminal conspiracy if he (1) agreed

with another person or persons to commit or aid in an unlawful act, (2) while

sharing a criminal intent, and (3) an overt act was committed in furtherance

of the conspiracy. 18 Pa.C.S.A. § 903; Commonwealth v. Chambers, 188

A.3d 400, 410 (Pa. 2018). The Commonwealth does not have to show that

an explicit or formal agreement exists in order to prove conspiracy.

Commonwealth v. Kennedy, 453 A.2d 927, 930 (Pa. 1982). Instead, the

existence   of   a   criminal   conspiracy   may   be   inferred   from   evidence

demonstrating the relation, conduct, or circumstances of the parties. Id. In

addition, the necessary overt act can be committed by any of the co-

conspirators.    Commonwealth v. McCall, 911 A.2d 992, 996 (Pa. Super.

2006).

      The evidence shows that Appellant coordinated with Medina and Murphy

to possess and deliver controlled substances to various individuals. Officer

Crown observed multiple individuals approach Appellant and ask for crack

cocaine or heroin. Depending on their request, Appellant directed potential

purchasers to Medina or Murphy. Medina and Murphy, in turn, spoke with

each of these individuals, picked up certain objects from a nearby lot and


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exchanged these objects with the individuals for cash. Two individuals who

acquired items from Medina and Murphy were subsequently apprehended with

narcotics, and police found additional heroin and cocaine in the lot frequented

by Medina and Murphy.       After observing a number of these transactions,

Officer Crown saw Medina and Murphy hand cash to Appellant. At the time of

Appellant’s arrest, the police confiscated $1,751.00 in cash from him.

      Viewed in the light most favorable to the Commonwealth, this evidence

demonstrates that Appellant, Medina and Murphy agreed to work together to

possess and sell controlled substances to various individuals.         Although

Appellant did not directly exchange narcotics for cash, he directed customers

to Medina or Murphy and received at least some of the sales proceeds. Such

evidence is sufficient to sustain a conviction for criminal conspiracy. McCall,

911 A.2d at 997. In McCall, officers observed the defendant looking up and

down a street on which his cohorts were selling narcotics.         After several

transactions, the defendant received some cash from his cohorts.              He

ultimately was apprehended with $1,508 in cash.        This Court declared the

evidence was sufficient to sustain the defendant’s convictions for criminal

conspiracy and PWID, reasoning “[e]ven though [the defendant] did not

physically handle the drugs transacted, he clearly took an active role in the

illicit enterprise” by acting as a lookout and receiving proceeds from sales. Id.

      As in McCall, Appellant took an active role in a drug-selling enterprise

with Medina and Murphy by directing customers to the appropriate


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salesperson and collecting sales proceeds.       In addition, police observed

appellant “looking up and down” the street while Murphy and Medina sold

narcotics. N.T. 5/2/2012, at 15.     Thus, the evidence is sufficient to sustain

Appellant’s conviction for conspiracy.

      The evidence is also sufficient to sustain Appellant’s conviction for PWID.

An individual is guilty of possessing a controlled substance if he knowingly or

intentionally possesses a controlled substance with intent to deliver.        35

Pa.C.S.A. §780-113(a)(30).      Where, as here, the Commonwealth proves

conspiracy, the evidence is also sufficient to establish PWID without the

necessity for the Commonwealth to prove constructive possession of the

controlled substances. Commonwealth v. Perez, 931 A.2d 703, 709 (Pa.

Super. 2007) (because Commonwealth proved conspiracy between defendant

and his companion to sell heroin, it did not have to prove defendant’s

constructive possession of drugs found in companion’s home, since drugs in

companion’s home were fully attributable to defendant as result of

conspiracy).

      In his second argument, Appellant contends that the trial court abused

its discretion by denying his motion for a new trial on the ground that the

verdict was against the weight of the evidence. We disagree.

      An appellate court’s role in reviewing the weight of the evidence is

limited; a new trial may only be granted where the verdict was “so contrary

to the evidence as to shock one’s sense of justice.”       Commonwealth v.


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Fletcher, 861 A.2d 898, 908 (Pa. 2004). The trial court determines the

disposition of challenges to the weight of the evidence, and an appellate court

will not disturb the trial court’s decision absent an abuse of discretion.

Commonwealth v. Benson, 10 A.3d 1268, 1274 (Pa. Super. 2010).                  An

“abuse of discretion” is more than simply an error in judgment and instead

involves an overriding or misapplication of the law or judgment that is

manifestly unreasonable or results from partiality, prejudice, bias, or ill-will,

as demonstrated by evidence in the record. Commonwealth v. Widmer,

744 A.2d 745, 754 (Pa. 2001). As explained by the Pennsylvania Supreme

Court, “[t]he weight of the evidence is exclusively for the finder of fact, which

is free to believe all, part of none of the evidence and assess the credibility of

the witnesses.” Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. 2004).

      The trial court acted within its discretion by denying Appellant’s

challenge to the weight of the evidence. Officer Crown testified to observing

Appellant direct various individuals asking for narcotics to Medina or Murphy

He then saw Murphy and Medina speak with such customers, retrieve some

items from the nearby lot, and exchange these items with the customers for

cash. Police subsequently recovered narcotics from two of the customers and

found additional contraband at the lot frequented by Murphy and Medina.

Officer Crown also saw Murphy and Medina give cash to Appellant after

completing a number of transactions. Appellant had $1,751.00 in cash on him

at the time of his arrest. The trial court, acting as factfinder, was free to find


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the testimony of Officer Crown credible and infer from his testimony that

Appellant, Murphy and Medina were parties to a criminal conspiracy to sell

narcotics on East Stella Street, and that Medina and Murphy possessed

controlled substances intending to deliver them in furtherance of the

conspiracy.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/19




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