J-S94032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                        v.

DWAYNE ORLANDO MAYS

                               Appellant                   No. 495 MDA 2016


           Appeal from the Judgment of Sentence December 10, 2015
      in the Court of Common Pleas of Lycoming County Criminal Division
                       at No(s): CP-41-CR-0000156-2015

BEFORE: LAZARUS, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                             FILED MARCH 10, 2017

        Appellant, Dwayne Orlando Mays, appeals from the judgment of

sentence entered in the Lycoming County Court of Common Pleas. 1 He

contends there was insufficient evidence to sustain his conviction for

possession     with   intent   to   deliver   a   controlled   substance   (“PWID”),2

conspiracy of PWID,3 and criminal use of a communication facility.4               We

affirm.


*
    Former Justice specially assigned to the Superior Court.
1
  We note that Appellant was subsequently convicted of possession with
intent to deliver a controlled substance, possession of a controlled
substance, and criminal use of a communication facility. The appeal from
the April 25, 2016 judgment of sentence is docketed at no. 745 MDA 2016.
2
    35 P.S. § 780-113(a)(30).
3
    18 Pa.C.S. § 903.
4
    18 Pa.C.S. § 7512(a).
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     The trial court summarized the facts of this case as follows:

        These charges arose out of a grand jury investigation
        centering on the distribution of heroin from a 2012 wiretap
        investigation in Centre County.
                                 *    *    *

           At the non-jury trial of [Appellant], the Commonwealth
        called as witnesses Laura Kalizewski (Kalizewski), Summer
        Anise Love (Love), Brandy Bevan (Bevan), Officer Nathan
        Dereamer (Dereamer) and Officer [Thomas] Bortz.
        Kalizewski testified to a controlled drug buy she performed
        as a confidential informant for the Lycoming County Drug
        Task Force. Kalizewski testified that on February 26,
        2013, she called [Appellant] on his cellular phone number
        and arranged to meet him at 230 West Third St.
        Williamsport, PA to make a heroin purchase. As she would
        be purchasing one bundle i.e. ten bags, the price would be
        the customary rate of $100. Lycoming County Drug Task
        Force provided Kalizewski with the $100 to purchase the
        heroin. Direct and cross examination established that
        Kalizewski had a three bundle (i.e. 30 bags a day) heroin
        habit. At the time of the controlled buy, she was five
        months clean of heroin, after having served six months in
        the Lycoming County Pre Release Center. Kalizewski was
        on supervised bail on February 26, 201[3], and she
        testified that she had not tested positive while on bail.

           In addition to the controlled drug buy that Kalizewski
        was a part of on February 26, 2013, she also testified that
        she had been a regular customer of [Appellant]. She
        testified that she would drive [Appellant] and one of his
        colleagues to Philadelphia for them to acquire heroin. At
        that time she would test the heroin for her drug dealers to
        ensure that it was producing the desired effect. She
        testified that she purchased heroin from [Appellant] 50
        times. She testified that she had been purchasing heroin
        for a year from [Appellant] prior to the controlled buy.

           Love also testified to a similar relationship with
        [Appellant]. He was one of her drug dealers. She had
        contact with him every day. She would also drive him and
        a few of his colleagues to Philadelphia and perform the
        same drug testing services. She testified that the quality


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           of [Appellant’s] heroin was “the best quality around.” Love
           also identified [Appellant] as someone she would purchase
           heroin from during the time period of May 2012, through
           April 2013.

                                   *      *   *

           Kalizewski and Love . . . both testified that they
           transported [Appellant] along with other dealers to
           Philadelphia to pick up heroin.

Trial Ct. Op., 8/22/16, at 1, 3-5, 7 (citations to the record omitted).

        The trial court found Appellant guilty of the above mentioned charges.

On December 10, 2015, Appellant was sentenced to fifty-four months’ to

twenty years’ imprisonment.        The court found he was eligible for the

Recidivism Risk Reduction Incentive (“RRRI”) program5 and calculated his

RRRI minimum at forty-five months. Appellant filed a post-sentence motion

which was denied.       This timely appeal followed.    Appellant filed a court-

ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The

trial court filed a responsive opinion.

        Appellant raises the following issues for our review:

           1. Did the trial court err in finding the Appellant guilty of
           the charge of [PWID] as the evidence was insufficient to
           show the Appellant possessed heroin with the intent to
           deliver the same between 2012 and 2013.

           2. Did the trial court err in finding the Appellant guilty of
           the charge of Conspiracy of [PWID] as the evidence was
           insufficient to show the Appellant possessed heroin with
           the intent to deliver the same between 2012 and 2013.


5
    61 Pa.C.S. §§ 4501-4512.



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         3. Did the trial court err in finding the Appellant guilty of
         the charge of Criminal Use of a Communication Facility as
         the evidence was insufficient to show the Appellant used a
         cell phone and the Commonwealth failed to provide
         evidence to show that any communication on the phone
         was Appellant and was for the purposes of committing a
         crime between 2012 and 2013.

         4. Did the trial court err in finding the Appellant guilty of
         the charge of [PWID] as the evidence was insufficient to
         show the Appellant possessed heroin with the intent to
         deliver the same on February 26, 2013.6

Appellant’s Brief at 7-8.

      First, Appellant contends the evidence was insufficient to establish

PWID on February 26, 2013 and from 2012 through 2013 because

         no evidence was offered as to the method of packaging
         being consistent with the type the Appellant may have
         distributed. Furthermore, no evidence was offered as to
         the behavior of the Appellant, as no one observed the
         Appellant.

Id. at 12.

      Second, Appellant avers the evidence was insufficient to establish that

he “was engaged in a conspiracy.”          Id. at 13.      “No recordings of

conversations, photographic, or video evidence was presented, nor was [sic]

any of the other alleged individuals called to testify.” Id. Third, Appellant

argues the evidence was insufficient to sustain the guilty verdict on the


6
   We note that Appellant addresses this issue contemporaneously with the
first issue raised on appeal.




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charges of criminal use of a communication facility because there was no

“evidence that the phone was registered to, belonged to, or was utilized by”

Appellant. Id. at 14.

        Our review is governed by the following principles:

          The standard we apply in reviewing the sufficiency of
          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 that of 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 trier 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. Ratsamy, 934 A.2d 1233, 1236 n.2 (Pa. 2007).

        In Commonwealth v. Little, 879 A.2d 293 (Pa. Super. 2005), this

Court

          consider[ed] whether the Commonwealth presented
          sufficient evidence to sustain [the defendant’s] conviction
          for possession with intent to deliver.       Section 780-
          113(a)(30) of The Controlled Substance, Drug, Device and
          Cosmetic Act prohibits the following acts:




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           [T]he manufacture, delivery, or possession with
           intent to manufacture or deliver, a controlled
           substance by a person not registered under this act,
           or a practitioner not registered or licensed by the
           appropriate State board, or knowingly creating,
           delivering or possessing with intent to deliver, a
           counterfeit controlled substance.

        35 [P.S.] § 780-113(a)(30).           The Commonwealth
        establishes the offense of possession with intent to deliver
        when it proves beyond a reasonable doubt that the
        defendant possessed a controlled substance with the intent
        to deliver it.

            To determine whether the Commonwealth presented
        sufficient evidence to sustain [the defendant’s] conviction
        for possession with intent to deliver, all of the facts and
        circumstances surrounding the possession are relevant and
        the elements of the crime may be established by
        circumstantial evidence.    Furthermore, possession with
        intent to deliver can be inferred from the quantity of the
        drugs possessed along with the other surrounding
        circumstances.

Id. at 297 (some citations omitted).

           To sustain a conviction for criminal conspiracy, the
        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 was done in
        furtherance of the conspiracy. “This overt act need not be
        committed by the defendant; it need only be committed by
        a co-conspirator.”

              As our Court has further 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


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            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. McCall, 911 A.2d 992, 996-97 (Pa. Super. 2006)

(citations omitted).

      Criminal use of a communication facility is defined as follows:

         (a) Offense defined.─A person commits a felony of the
         third degree if that person uses a communication facility to
         commit, cause or facilitate the commission or the attempt
         thereof of any crime which constitutes a felony under this
         title or under the act of April 14, 1972 (P.L. 233, No. 64),1
         known as The Controlled Substance, Drug, Device and
         Cosmetic Act. Every instance where the communication
         facility is utilized constitutes a separate offense under this
         section.

18 Pa.C.S. § 7512(a).

      After careful consideration of the parties’ briefs, the record and the

opinion of the Honorable Nancy L. Butts, we affirm on the basis of the trial

court’s decision.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/10/2017




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