J-S60010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

MICHAEL JOE KOZUCH, III,

                            Appellant                       No. 1805 WDA 2016


           Appeal from the Judgment of Sentence October 31, 2016
              In the Court of Common Pleas of Somerset County
             Criminal Division at No(s): CP-56-CR-0000833-2015


BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                                  FILED OCTOBER 4, 2017

       Appellant, Michael Joe Kozuch, III, appeals from the judgment of

sentence entered on October 31, 2016, following his jury trial convictions for

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

of a controlled substance, and possession of drug paraphernalia. 1 We affirm.

       We summarize the facts and procedural history of this case as follows.

The incident at issue took place on June 26, 2015 at Coalfield’s, a gas

station, market and diner, in Somerset County, Pennsylvania.                   Desiree

Fleegle was a server at Coalfield’s.           Julie Phillip, a cashier at Coalfield’s,

worked three or four daily shifts per week with Fleegle.              Phillip regularly

observed Fleegle’s drastic mood swings, poor eating habits, and frequent
____________________________________________


1    35 P.S. §§ 780-113(a)(30), 780-113(a)(16), and 780-113(a)(32),
respectively.



*Former Justice specially assigned to the Superior Court.
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breaks to go outside, to the basement, and to the men’s bathroom. 2 When

Fleegle began working at Coalfield’s in April of 2015, Phillip saw Appellant

almost every day that Fleegle worked.

       Jeffrey Miele, owner and operator of Coalfield’s, observed Appellant

driving Fleegle daily to and from work in Fleegle’s car. According to Miele,

Appellant would come inside Coalfield’s, use the bathroom, and leave

without purchasing anything. Miele reviewed surveillance video after Phillip

reported her concerns about Fleegle’s behavior. In the surveillance videos,

Miele witnessed that when Fleegle started her shift, Appellant would come

into the store and go to the men’s bathroom.          When Appellant left, Fleegle

would immediately go into the men’s bathroom.

       On June 26, 2015, Miele observed Appellant driving Fleegle’s car with

an unknown man in the passenger seat.             Miele watched and followed the

unknown man as he entered Coalfield’s.           Phillip directed Miele to the men’s

bathroom. The unknown man exited the men’s restroom, avoided contact

with employees, and left the store without making a purchase.                Miele,

suspicious of a drug delivery, went directly into the men’s bathroom, locked

the door, and began searching for narcotics. He found six stamp bags of a

substance, later identified as heroin, underneath the garbage can.            When


____________________________________________


2   It was part of the servers’ job to make sure the men’s bathroom was
clean, so Phillip was not surprised when Fleegle entered the men’s restroom
on occasion.



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Miele confronted Fleegle, she grabbed her purse and tried to leave, but other

employees detained her and called police. Miele testified that Fleegle called

Appellant on her cellular phone and Fleegle eventually managed to flee the

store, but left her purse.   Miele followed behind Fleegle in his automobile

and witnessed someone, driving Fleegle’s vehicle, pick her up less than a

mile from Coalfield’s.

      When police arrived, Miele turned over the suspected narcotics and

Fleegle’s purse.   After watching the surveillance video of the incident, the

police inventoried Fleegle’s purse, which contained an eyeglass case holding

two metal spoons, two syringes, and a cotton swab.        Pennsylvania State

Police Trooper Matthew Montag went to Appellant’s residence where Fleegle

was sitting on the back porch. Her car was parked in the driveway. Fleegle

was unwilling to answer questions about the earlier incident and police

arrested her. Approximately an hour later, police interviewed Appellant who

denied involvement in the attempted delivery of narcotics.         Appellant

claimed that he had been at his home babysitting Fleegle’s children. When

Appellant was told that he was observed driving away from the scene, he

became extremely nervous. Appellant admitted to police that he had driven

a man named Billy to Coalfield’s at Billy’s request.    Appellant, however,

denied knowing Billy and claimed he had never driven him anywhere

previously. Police arrested Appellant and the Commonwealth charged him,

as an accomplice, with the aforementioned crimes.




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       A jury convicted Appellant of all of the charges on August 18, 2016.

The trial court sentenced Appellant to concurrent sentences of one to two

years of incarceration for PWID, one year of probation for possession, and

one year of probation for possession of drug paraphernalia.       This timely

appeal resulted.3

       On appeal, Appellant presents the following issue for our review:

       Whether the trial court erred by denying Appellant’s [m]otion for
       [a]cquittal when the Commonwealth failed to prove all elements
       of each crime?[4]
____________________________________________


3 On November 23, 2016, Appellant simultaneously filed a notice of appeal
and a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on March 21, 2017.

4 Ordinarily, when challenging the sufficiency of the evidence on appeal, an
appellant waives his claims when he fails to specify which elements of each
of the individual crimes were not sufficiently proven. See Commonwealth
v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (“[W]hen challenging the
sufficiency of the evidence on appeal, the [a]ppellant's 1925 statement must
‘specify the element or elements upon which the evidence was insufficient’ in
order to preserve the issue for appeal.”). In his sole issue presented on
appeal, as set forth above, Appellant did not specify what elements were not
established and generally challenged all of his convictions; however, upon
review of the certified record, Appellant’s Rule 1925(b) statement raised the
following issue:

       1. Whether or not the [c]ourt erred as a matter of law or abused
          its discretion by not granting [Appellant’s] [m]otion for
          [a]cquittal when the Commonwealth presented no evidence to
          prove that [Appellant] was in possession, distributed or was
          otherwise a part of any drug transaction of the same.

Appellant’s Rule 1925(b) Statement, 11/23/2016, (unpaginated) at *1.
Appellant asserted that there was insufficient evidence that he possessed
(Footnote Continued Next Page)


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Appellant’s Brief at 1.

      In sum, Appellant argues:

      First, the Commonwealth failed to offer any evidence that []
      Appellant intended on delivering drugs[.]      [] Appellant was
      charged as an accomplice, but the Commonwealth did not prove
      that [] Appellant had any knowledge of the alleged crimes. []
      Appellant did admit that he had dropped off the unknown male,
      but for the Commonwealth to prove that [] Appellant was an
      accomplice to the unknown male, the Commonwealth must first
      prove that the unknown male had committed the underlying
      crime. The Commonwealth did prove that the unknown male
      was at the gas station on the day in question, but the
      Commonwealth could not prove when the drugs arrived and by
      whom the drugs arrived. The only evidence offered by the
      Commonwealth was video of the day in question. There is no
      testimony offered to show that the unknown male had ever been
      to the gas station before or had allegedly made any prior deals.
      As a result, the Commonwealth did not prove that the unknown
      male had intent to commit a crime, and as such, failed to prove
      that [] Appellant conspired to commit said crimes.

      Second, [the] Commonwealth failed to offer any evidence that
      showed that either [] Appellant or the unknown male were ever
      in possession of said drugs.     No drugs were found on []
      Appellant or the unknown male.

Id. at 8-9.

      We note our well-settled standard of review:

      A motion for judgment of acquittal challenges the sufficiency of
      the evidence to sustain a conviction on a particular charge, and
(Footnote Continued) _______________________

and/or delivered narcotics.    These issues were preserved.      However,
Appellant’s Rule 1925(b) statement failed to challenge elements related to
possession of paraphernalia and we find that aspect of Appellant’s current
claim waived. As such, we confine our review to Appellant’s convictions for
PWID and possession of narcotics and affirm Appellant’s judgment of
sentence for possession of paraphernalia.



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      is granted only in cases in which the Commonwealth has failed
      to carry its burden regarding that charge.

Commonwealth v. Richard, 150 A.3d 504, 514 (Pa. Super. 2016) (citation

omitted).

      We examine a challenge to the sufficiency of the evidence to

determine

      whether, when viewed in a light most favorable to the verdict
      winner, the evidence at trial and all reasonable inferences
      therefrom is sufficient for the trier of fact to find that each
      element of the crimes charged is established beyond a
      reasonable doubt. The Commonwealth may sustain its burden of
      proving every element beyond a reasonable doubt by means of
      wholly circumstantial evidence.

      The facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. Any doubt
      raised as to the accused's guilt is to be resolved by the
      fact-finder. As an appellate court, we do not assess credibility
      nor do we assign weight to any of the testimony of record.
      Therefore, we will not disturb the verdict 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.


Commonwealth v. Von Evans, 163 A.3d 980, 983 (Pa. Super. 2017)

(citation omitted).

      This Court has previously determined:

      To convict a person of PWID, the Commonwealth must prove
      beyond a reasonable doubt that the defendant possessed a
      controlled substance and did so with the intent to deliver it. 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. Factors to consider in determining whether the drugs
      were possessed with the intent to deliver include the particular


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      method of packaging, the form of the drug, and the behavior of
      the defendant.

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

(citations   omitted).   Simple   possession   of   narcotics   is   defined   as:

“[k]nowingly or intentionally possessing a controlled or counterfeit substance

by a person not registered[.]” 35 P.S. § 780-113(a)(16).

      Moreover,

      [i]n narcotics possession cases, the Commonwealth may meet
      its burden by showing actual, constructive, or joint constructive
      possession of the contraband. Actual possession is proven by
      showing that the controlled substance was found on the
      defendant's person. If the contraband is not discovered on the
      defendant's person, the Commonwealth may satisfy its
      evidentiary burden by proving that the defendant had
      constructive possession of the drug.

      Our Supreme Court has defined constructive possession as the
      ability to exercise a conscious dominion over the illegal
      substance: the power to control the contraband and the intent to
      exercise that control. In the words of our Supreme Court,
      constructive possession is a legal fiction, a pragmatic construct
      to deal with the realities of criminal law enforcement. It is a
      judicially created doctrine that enables law enforcement officials
      to prosecute individuals in situations where the inference of
      possession is strong, yet actual possession at the time of arrest
      cannot be shown.

      To find constructive possession, the power and intent to control
      the contraband does not need to be exclusive to the defendant.
      Our Supreme Court has recognized that constructive possession
      may be found in one or more actors where the item at issue is in
      an area of joint control and equal access. Nevertheless, where
      more than one person has equal access to where drugs are
      stored, presence alone in conjunction with such access will not
      prove conscious dominion over the contraband.           For the
      Commonwealth to prove constructive possession where more
      than one person has access to the contraband, the
      Commonwealth must introduce evidence demonstrating either


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      the defendant's participation in the drug related activity or
      evidence connecting the defendant to the specific room or areas
      where the drugs were kept. However, an intent to maintain a
      conscious dominion may be inferred from the totality of the
      circumstances and circumstantial evidence may be used to
      establish a defendant's possession of drugs or contraband.

Commonwealth v. Vargas, 108 A.3d 858, 868–869 (Pa. Super. 2014) (en

banc) (internal citations and quotations omitted; original brackets and

ellipses omitted).

      A person is an accomplice of another person in the commission of an

offense if:

      (1) with the intent of promoting or facilitating the commission of
      the offense, he:

              (i)    solicits such other person to commit it; or

              (ii)   aids or agrees or attempts to aid such other
                     person in planning or committing it; or

      (2) his conduct is expressly declared by law to establish his
      complicity.

      (d) Culpability of accomplice.—When causing a particular result
      is an element of an offense, an accomplice in the conduct
      causing such result is an accomplice in the commission of that
      offense, if he acts with the kind of culpability, if any, with
      respect to that result that is sufficient for
      the commission of the offense.

                          *           *           *

      (g) Prosecution of accomplice only.--An accomplice may be
      convicted on proof of the commission of the offense and of his
      complicity therein, though the person claimed to have committed
      the offense has not been prosecuted or convicted or has been
      convicted of a different offense or degree of offense or has an
      immunity to prosecution or conviction or has been acquitted.



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18 Pa.C.S.A. § 306(c)–(d), (g). “It is well-established [] that a defendant,

who was not a principal actor in committing the crime, may nevertheless be

liable for the crime if he was an accomplice of a principal actor.”

Commonwealth v. Murphy, 844 A.2d 1228, 1234, 577 Pa. 275, 285 (Pa.

2004), citing 18 Pa.C.S.A. § 306(g); Commonwealth v. Bradley, 392 A.2d

688, 690 (Pa. 1978) (the actor and his accomplice share equal responsibility

for commission of a criminal act).

      Furthermore, this Court has concluded:

      Accomplice liability may be established wholly by circumstantial
      evidence. Only the least degree of concert or collusion in the
      commission of the offense is sufficient to sustain a finding of
      responsibility as an accomplice. No agreement is required, only
      aid.

Commonwealth v. Mitchell, 135 A.3d 1097, 1102 (Pa. Super. 2016)

(internal citations and quotations omitted).

      Accordingly,

      two prongs must be satisfied for a defendant to be found guilty
      as an accomplice.      First, there must be evidence that the
      defendant intended to aid or promote the underlying offense.
      Second, there must be evidence that the defendant actively
      participated in the crime by soliciting, aiding, or agreeing to aid
      the principal. While these two requirements may be established
      by circumstantial evidence, a defendant cannot be an accomplice
      simply based on evidence that he knew about the crime or was
      present at the crime scene. There must be some additional
      evidence that the defendant intended to aid in the commission of
      the underlying crime, and then did or attempted to do so. With
      regard to the amount of aid, it need not be substantial so long as
      it was offered to the principal to assist him in committing or
      attempting to commit the crime.

Murphy, 844 A.2d at 1234 (internal citations and quotations omitted).

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      Here,   the    trial     court   determined    that   there   was   sufficient

circumstantial evidence to convict Appellant of PWID and possession of

narcotics based upon the theory of accomplice liability. The trial court noted

Fleegle’s pattern of strange behavior at work, her possession of heroin

related paraphernalia in her purse, and her reaction when confronted with

the uncovered heroin as evidence of Fleegle’s drug use at Coalfield’s. Trial

Court Opinion, 3/21/2017, at 10-11. Moreover, evidence showed Appellant

drove Fleegle to and from work in her vehicle regularly, would frequently

meet Fleegle at Coalfield’s, and was often seen going in and out of the men’s

bathroom just prior to Fleegle entering.         Furthermore, the Commonwealth

presented evidence that, on the day in question, Appellant admittedly drove

a man (he identified as Billy) to Coalfield’s in Fleegle’s car. Id. at 11. At

Coalfield’s, the man engaged in behavior substantially similar to Appellant’s

prior actions, going into the men’s bathroom without buying anything,

leaving quickly, and avoiding contact with Coalfield’s employees. The man

then left the area with Appellant in Fleegle’s car.     The trial court determined

that the evidence further showed that “Fleegle attempted to gain entry to

the men’s restroom while Miele was inside finding the heroin hidden under

the trash can.”     Id.      The trial court also pointed to evidence that when

confronted, Fleegle tried to leave, called Appellant to come get her, and left

her purse when she eventually fled. Id.          As such, the trial court concluded

that Appellant “knew Fleegle, used her car to drive an unknown person to

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Coalfield’s, where that unknown person delivered heroin to the men’s

restroom and Fleegle tried to retrieve the drugs[.]” Id. at 12.   According to

the trial court, such evidence showed that Appellant “aided the unknown

person in the delivery of heroin with full knowledge of what the unknown

person was doing, which thereby demonstrate[d] [Appellant’s] intent to aid

in the commission of this crime.” Id.

       Based upon our standard of review and the certified record, we discern

no abuse of discretion or error of law in denying Appellant’s motion for

acquittal. In this case, there was sufficient evidence that Appellant acted as

an accomplice to the unknown man who constructively possessed and

delivered the narcotics found in the men’s restroom.     While it is true that

police did not recover narcotics from any person, the circumstantial evidence

showed the unknown man constructively possessed the heroin and deposited

six individual packets of heroin under the trashcan in the men’s bathroom

for Fleegle to retrieve. Fleegle’s immediate response in attempting to enter

the men’s restroom after the unknown man’s departure was circumstantial

evidence that a drug delivery had recently occurred.5 Moreover, Appellant’s


____________________________________________


5  Contrary to Appellant’s contention, Section 306(g) makes clear that he is
subject to criminal liability as an accomplice so long as the Commonwealth
proves the commission of an offense and his complicity therein. There is no
requirement that the Commonwealth prosecute or convict the principal in
order to convict an accomplice. The record in this case includes ample
circumstantial proof that Appellant aided in the commission of a drug
delivery. Accordingly, no relief is due.



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role in driving the unknown man to the location and waiting for his return

showed Appellant’s role in aiding the delivery.6             Fleegle’s subsequent

reaction to the discovery of the narcotics, 7 Appellant’s role in picking her up

thereafter, and Appellant’s nervous response to police questioning and

eventual admission that he drove the unknown man to Coalfield’s, further

demonstrate the presence of drug-related activity at Coalfield’s. In totality,

the evidence showed Appellant awareness of drug possession and delivery

by the unknown man and Appellant’s willingness to aid that individual in

bringing about an unlawful result.             Hence, the Commonwealth presented

sufficient circumstantial evidence to support Appellant’s convictions and we

discern no abuse of discretion in denying Appellant’s motion for acquittal.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/4/2017
____________________________________________


6  We have previously determined the driver of a getaway car used in
connection with a crime may be found guilty as an accomplice. See
Commonwealth v. Causey, 833 A.2d 165, 173 (Pa. Super. 2003); see
also Commonwealth v. Ross, 375 A.2d 113 (Pa. Super. 1977).

7Flight demonstrates a consciousness of guilt. See Commonwealth v.
Smith, 146 A.3d 257, 263 (Pa. Super. 2016) (citation omitted).



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