J-A05035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DONTAE R. DOWNES,

                            Appellant                No. 898 EDA 2015


           Appeal from the Judgment of Sentence November 7, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010315-2013


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

MEMORANDUM BY STEVENS, P.J.E.:

        This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Philadelphia County after the court, sitting as finder of

fact in Appellant’s bench trial, convicted him of Robbery, graded as a felony

of the first degree, 18 Pa.C.S. § 3701, Conspiracy to Commit Robbery, 18

Pa.C.s. § 903, Theft by Unlawful Taking, 18 Pa.C.S. § 3921, Simple Assault,

18 Pa.C.S. § 2701, Possessing an Instrument of Crime (“PIC”), Generally, 18

Pa.C.S. § 907, and Possession of a Small Amount of Marijuana, 35 P.S. §

780-113(a)(31). Sentenced to an aggregate sentence of three to six years’

incarceration for his robbery, conspiracy, and PIC offenses,1 Appellant now



____________________________________________


1
    No further penalties were imposed on the remaining charges.



*Former Justice specially assigned to the Superior Court.
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challenges the sufficiency of evidence offered to support his convictions. We

affirm.

      The trial court provides the following apt factual and procedural history

of the case:

      On July 29, 2013, Dr. Hussanifat Habiburrahman and Abdul
      Khaleque were working inside the Discount Plus variety store
      located at 5135 Chestnut Street in Philadelphia. Between 10:00
      and 10:30 a.m., two men entered the store and looked at the
      items for sale for approximately one-half hour. N.T. [9/4/14 at]
      14. As the two men walked around the store they examined the
      merchandise together and separately and were observed
      speaking to one another. N.T. at 14-15. Eventually, the taller of
      the two men, who[m] the doctor identified as Appellant,
      purchased approximately $30.00 in merchandise and exited the
      store.   N.T. at 14-15, 20.     Once outside, Appellant began
      examining items that were displayed on tables situated outside
      the store. N.T. 14-15, 20. After [Appellant] made his purchase,
      the shorter man[, co-defendant,] made a purchase from Abdul
      Khaleque.        During the transaction, the shorter male and
      Khaleque had a discussion that evolved into an argument about
      [how much money had been tendered for the purchase]. N.T. at
      14-15. Dr. Habiburrahman went outside for a short time to
      watch Appellant[, who was looking at merchandise on an
      outdoor display,] while the [co-defendant] and Khaleque
      continued to argue. N.T. at 16-17.

      When the doctor reentered the store, the [co-defendant]
      removed a pistol from his waistband and place[d] cartridges
      inside it. The doctor told Khaleque [in Bengali] to give the [co-
      defendant] the money or he would be killed. N.T. at 17.

      ***
      [At the same time,] Appellant, who was outside the store, re-
      entered the premises and took up a position near his co-
      defendant, a position from which he had a clear view of what
      was occurring. When his co-defendant pointed the gun at Mr.
      Khaleque, Appellant moved behind the counter, standing next to
      Mr. Khaleque as he handed the co-defendant money. N.T. at
      48-58.


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     When his co-defendant left the store, Appellant accompanied
     him after which both men went to a nearby store where they
     were arrested. At the time of the arrest, Appellant had a
     weapon similar to the one used by his co-defendant to commit
     the robbery[] [and possessed $129.00 and five plastic baggies
     with a “green weed and seed substance” the police officer
     “believed to be marijuana.” N.T. at 34. Officers arrested co-
     defendant in a dressing room where he was attempting to hide
     his firearm. N.T. at 41-43.].

     ***
     On September 4, 2014, following a waiver trial, Appellant was
     found guilty of Robbery, graded as a felony of the first degree,
     18 Pa.C.S. § 3701, Conspiracy to Commit Robbery, 18 Pa.C.s. §
     903, Theft by Unlawful Taking, 18 Pa.C.S. § 3921, Simple
     Assault, 18 Pa.C.S. § 2701, Possessing an Instrument of Crime,
     Generally, 18 Pa.C.S. § 907, and Possession of a Small Amount
     of Marijuana, 35 P.S. § 780-113(a)(31). On November 7, 2014,
     [the trial court] imposed an aggregate sentence of three to six
     years[’] incarceration followed by six years’ probation.


Trial Court Opinion, filed June 24, 2015, at 2, 6, and 1. This timely appeal

followed.

     Appellant presents the following three questions for our review:

     1. Was not the evidence insufficient to convict appellant of
        conspiracy to commit robbery where the Commonwealth
        failed to establish that appellant intended to facilitate or
        promote the commission of the robbery and that appellant
        was a party to an agreement to commit the robbery?

     2. Was not the evidence insufficient to convict appellant of
        robbery, theft, simple assault, and possession of instrument
        of crime under a theory of accomplice liability where the
        Commonwealth failed to prove that appellant intended to
        facilitate or promote the commission of the crimes, and that
        appellant either aided or agreed or attempted to aid the co-
        defendant in planning or committing the crimes?




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      3. Was not the evidence insufficient to convict appellant of
         possession of a small amount of marijuana where the
         Commonwealth failed to prove that the substance he
         possessed was marijuana?

Appellant’s brief at 3.

      Our standard of review for challenges to the sufficiency of the evidence

is well-settled.

      We must determine whether the evidence admitted at trial, and
      all reasonable inferences derived therefrom, when viewed in the
      light most favorable to the Commonwealth as verdict winner,
      supports all of the elements of the offense beyond a reasonable
      doubt. In making this determination, we consider both direct
      and circumstantial evidence, cognizant that circumstantial
      evidence alone can be sufficient to prove every element of an
      offense. We may not substitute our own judgment for the jury's,
      as it is the fact finder's province to weigh the evidence,
      determine the credibility of witnesses, and believe all, part, or
      none of the evidence submitted.

Commonwealth v. Cooper, 941 A.2d 655, 662 (Pa. 2007).

      Appellant first challenges the sufficiency of evidence to prove he

conspired with, or was an accomplice to, Co-Defendant in carrying out the

crimes perpetrated in the Discount Plus variety store.    He argues he was

merely present at the store when Co-Defendant “spontaneously” pulled a

gun from his waistband and decided to transform a dispute into a robbery.

Appellant’s brief at 9.   Neither testimonial evidence nor the Discount Plus

security video of the robbery allow for the inference that Appellant either

agreed to commit or aided in the robbery or that he shared Co-Defendant’s

intent in so doing, he maintains. We disagree.

      The Pennsylvania Crimes Code defines conspiracy as follows:



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          A person is guilty of conspiracy with another person
          or persons to commit a crime if with the intent of
          promoting or facilitating its commission he:

          (1) agrees with such other person or persons that
          they or one or more of them will engage in conduct
          which constitutes such crime or an attempt or
          solicitation to commit such crime; or

          (2) agrees to aid such other person or persons in the
          planning or commission of such crime or of an
          attempt or solicitation to commit such crime.

     18 Pa.C.S.A. § 903(a).       This requires proof that: 1) the
     defendant entered into an agreement with another to commit or
     aid in the commission of a crime; 2) he shared the criminal
     intent with that other person; and 3) an overt act was
     committed in furtherance of the conspiracy. Commonwealth v.
     Devine, 26 A.3d 1139, 1147 (Pa.Super. 2011). “This overt act
     need not be committed by the defendant; it need only be
     committed by a co-conspirator.” Commonwealth v. Murphy,
     795 A.2d 1025, 1038 (Pa.Super. 2002) (citation omitted).

          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
          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.

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J-A05035-16



       Commonwealth v. McCall, 911 A.2d 992, 996–97 (Pa.Super.
       2006) (citation omitted).2

              An accomplice is also legally accountable for the conduct of
       the other person involved in committing the crimes.             18
       Pa.C.S.A. § 306(b)(3). The Crimes Code defines an accomplice
       as follows:

              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.

       18 Pa.C.S.A. § 306(c). “Both requirements 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.
       Kimbrough, 872 A.2d 1244, 1251 (Pa.Super. 2005) (en banc )
       (citations and quotations omitted).      “[P]roof of a criminal
       partnership    is   almost    invariably  extracted    from     the
       circumstances that attend its activities.”      Id. at 1253–54
       (citation omitted).

              To establish complicity, mere presence at the scene
              of a crime and knowledge of the commission of
              criminal acts is not sufficient. Nor is flight from the
              scene of a crime, without more, enough. However,
              those factors combined, along with other direct or
____________________________________________


2
  See also Commonwealth v. French, 578 A.2d 1292, 1311 (Pa. Super.
1990) (Wieand, Concurring) (“An agreement to engage in illegal activity may
be tacit; it requires no extended period of time but can be formed almost
instantaneously.”).



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            circumstantial evidence may provide a sufficient
            basis for a conviction, provided the conviction is
            predicated upon more than mere suspicion or
            conjecture.

      Commonwealth v. Rosetti, 469 A.2d 1121, 1123 (Pa.Super.
      1983) (citations omitted).

Commonwealth v. Knox, 50 A.3d 749, 755-56 (Pa.Super. 2012), aff'd

but criticized on other grounds, 105 A.3d 1194 (Pa. 2014).

      The trial court, acting as finder of fact, reasonably inferred from the

evidence a tacit agreement between Appellant and Co-Defendant to commit

robbery and related offenses at the Discount Plus store. Appellant and Co-

Defendant, both carrying firearms, had spent one half-hour together in the

store before Co-Defendant pulled a gun on the cashier, Mr. Khaleque.

Appellant immediately joined Co-Defendant by positioning himself behind

the counter where Mr. Khaleque stood, adding to the intimidation of Mr.

Khaleque.       When Mr. Khaleque turned over the money as Co-Defendant

demanded, both men left the store together and remained together until

authorities arrested them in a nearby sneaker store.

      The totality of this evidence, therefore, belies Appellant’s claim that he

was simply a companion of Co-Defendant’s who was merely present and

unaware of Co-Defendant’s criminal intent when the robbery occurred.

Rather, his obvious relationship with Co-Defendant and his immediate

participation    in   the   commission    of   the   crime   evinced   a   common

understanding between the two that they would work together in robbing

the store. It was reasonable for the finder of fact to conclude that Appellant


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J-A05035-16



and Co-Defendant had tacitly agreed to act in concert in robbing the

Discount Plus store. Accordingly, we find the evidence sufficed to support

the Commonwealth’s case against Appellant for conspirator and accomplice

liability.

       In his final issue, Appellant contends evidence was insufficient to

convict him of possession of a small amount of marijuana where the

Commonwealth never established the identity of the substance he possessed

through chemical analysis. At trial, evidence directly addressing the issue of

drug identification consisted solely of the arresting officer testifying “I

recovered five clear Ziploc plastic baggies with a green weed and seed

substance I believed to be marijuana.” N.T. at 34.

       In support of the conviction, the trial court correctly recites precedent

that it is “well-established in this Commonwealth that the identity of illegal

narcotic substances may be established by circumstantial evidence alone,

without any chemical analysis of the seized contraband.” Commonwealth

v. Minott, 577 A.2d 928, 932 (Pa.Super. 1990).               Minott, the trial court

explicates,   did   not   limit    the   fact-finding   function   relating   to   drug

identification to a strict scientific analysis, but instead acknowledged “the

use of common sense and reasonable inferences in the determination of the

identity of substances”      Id.    The trial court also relies on several other

decisions upholding convictions for possession of controlled substances

absent laboratory seizure analyses or any test at all on the substance. See,

e.g., Commonwealth v. Stasiak, 451 A.2d 520 (Pa.Super. 1982);

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Commonwealth v. Williams, 428 A.2d 165 (Pa.Super. 1981).                         See

generally Commonwealth v. Boyd, 763 A.2d 421, 424 (Pa.Super. 2000)

(collecting   cases)     (recognizing   “the   Commonwealth         may   rely     on

circumstantial evidence to prove the identity of the fluid or material”).

      Appellant, however, attempts to distinguish such cases on their facts.

Minott, he argues, held results from chemical testing of two of fifty packets

of suspected drugs seized could serve to establish the chemical composition

of the other 48 packets.       In Stasiak, the court held the identity of pills

contained in unopened, labeled bottles in defendant’s possession could be

reasonably    inferred    where   arrest   occurred   just   four   minutes      after

defendant’s burglary of a drug store.          In Boyd, we held that sufficient

circumstantial evidence as to the identity of a cup of liquid thrown on a

prison guard was sufficient to obviate the need for chemical analysis. The

prisoner threatened to throw urine on the guard earlier that day, stated it

would be “[feces] next time” as he threw the liquid, and the guard testified

the liquid was warm, yellow, and smelled like urine. Compared with this line

of authority, Appellant posits, the officer’s belief based merely on the

appearance of the substance fell well short of establishing Appellant's

possession of marijuana beyond a reasonable doubt.

      To sustain a conviction for possession of a small amount of marijuana,

the Commonwealth must prove that defendant had knowing or intentional

possession of an amount of marijuana less than 30 grams.             35 Pa.C.S. §

780-113(a)(31). As noted supra, a trained police officer's observations, by

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themselves, can establish the identity of drugs such as marijuana and

support      a    conviction.    Minott,      supra     (citing    Stasiak,     supra);

Commonwealth v. Leskovic, 307 A.2d 357 (Pa. Super. 1973) (same).

      Here, Officer Ronald Jackson of the Philadelphia Police Department was

conducting a pat down of Appellant when he discovered what he would later

describe at trial as a “green weed and seed substance [he] believed to be

marijuana[]” concealed in Appellant’s right front pants pocket. N.T. at 34.

Neither the officer’s reliance on his professional experience to identify

marijuana nor his discerning description of the substance he observed in

Appellant’s possession was contested at trial.               Moreover, circumstances

informing the officer’s opinion were not limited to the physical appearance of

the substance itself, as he also observed the substance had been divided

and packaged in five clear Ziploc baggies and was carried alongside $129

cash and a loaded firearm in Appellant’s possession, circumstances

associated       with   the     intent   to   deliver    a    controlled      substance.

Commonwealth            v.    Hutchinson,     947     A.2d   800   (Pa.Super.     2008)

(recognizing factors suggesting possession with intent to deliver a controlled

substance include possession of a loaded handgun, packaging, and quantity

of U.S. currency).           Such circumstantial evidence sufficed to support

Appellant’s conviction for a small amount of marijuana.

      Judgment of sentence is AFFIRMED.




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J-A05035-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/2016




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