J-A16005-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ELGIN ANTHONY MELTON                       :
                                               :
                       Appellant               :   No. 1554 MDA 2019

          Appeal from the Judgment of Sentence Entered June 6, 2019
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0005123-2018


BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.:                           FILED AUGUST 14, 2020

        Elgin Anthony Melton appeals from the judgment of sentence, entered

on June 6, 2019, of an aggregate term of 32 months’ to 10 years’

imprisonment, in the Court of Common Pleas of Lancaster County, after a jury

convicted him of one count each of delivery of cocaine,1 criminal conspiracy,2

and criminal use of a communication facility;3 and his non-jury conviction of

driving while operating privilege is suspended or revoked.4            On appeal,




____________________________________________


1   35 P.S. § 780-113(a)(30).

2   18 Pa.C.S.A. § 903(a).

3   18 Pa.C.S.A. § 7512(a).

4   75 Pa.C.S.A. § 1543(a).
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Appellant challenges the admission of certain testimony by an undercover

police officer and the sufficiency of the evidence. After review, we affirm.

      We take the underlying facts and procedural history in this matter from

the trial court’s October 4, 2019 opinion and our review of the certified record.

      . . . On February 6, 2018, members of the Lancaster City Bureau
      of Police Selective Enforcement Unit (SEU) conducted a
      “buy/walk” drug detail utilizing a confidential informant (Cl) and
      an undercover police officer, Officer Andrew Mease.              At
      approximately 3:20 p.m., the Cl spoke to a Carl Sprague
      [Sprague] via telephone to arrange for the purchase of crack
      cocaine at the corner of East Lemon Street and North Duke Street
      in the City of Lancaster.[a] Officer Mease and the Cl drove to that
      location and parked. The Cl called Sprague to tell him they had
      arrived at the pre-arranged location. Within minutes, Sprague
      arrived on foot and entered the passenger rear seat of the vehicle.
      Sprague advised Officer Mease and the Cl that he needed to “call
      his guy to get [the] stuff.”

            [a]Sprague was known to the SEU as a “middle man”
            from a prior drug investigation.

      Sprague then placed a phone call to a person believed to be
      [Appellant] and arranged for the purchase of cocaine at a Turkey
      Hill convenience store at 410 East Chestnut Street. Sprague drove
      in Officer Mease’s vehicle to the Turkey Hill, where Officer Mease
      parked the car to the left of the building. At that time, Officer
      Mease provided Sprague with $40.00 (documented “buy” money)
      for .4 grams of cocaine.

      Sprague exited the vehicle and ran towards a Chevrolet Traverse
      (Chevy), which was parked at the Turkey Hill gas pumps. Sprague
      entered the Chevy and a hand-to-hand transaction took place
      between Sprague and the driver of the Chevy. The Chevy then
      pulled away from the pumps, entered Chestnut Street and circled
      around the block. Sprague exited the vehicle at an alley just
      before the Turkey Hill, walked directly to the Turkey Hill parking
      lot and re-entered the passenger rear seat of Officer Mease’s
      vehicle. Once in the vehicle, Sprague hand-delivered one clear
      plastic corner tied bag containing .22 grams of crack cocaine to


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     Officer Mease.[b] The delivered substance field-tested positive for
     cocaine.

           [b] Sprague was charged as [Appellant’s]             co-
           conspirator at Information No. 4032-2018.

     During this controlled buy, [Appellant] was observed by Officer
     Mease operating the gold 2010 Chevy Traverse.[c] After Sprague
     exited [Appellant’s] vehicle, [Appellant] drove around the eastern
     part of the City for a few minutes “cleaning his tail”[d] before
     parking in a lot off of East Chestnut Street. There [Appellant]
     exited the Chevy, and entered the rear seat passenger side of a
     gray Nissan Altima that had a driver and a passenger in the front
     seat.

           [c]The vehicle being driven by [Appellant] was not
           owned or registered to [him]. Officer Adam Flurry
           with the SEU testified that it is common for drug
           dealers to “go to great lengths so the registration does
           not come back to their name.”            They want “a
           legitimate car [that] has good insurance, good
           registration, good inspection, so it lessens the chance
           that they will get stopped.” [Appellant] testified the
           Chevy belonged to a family member.

           [d]This term refers to the actions taken by a criminal
           to be sure he or she is not being followed, and to
           detect police surveillance vehicles.

     As the Nissan left the parking lot and turned right onto Reservoir
     Street, the driver failed to use a turn signal or proper hand signal.
     The decision was made by the SEU surveillance team to have the
     “contact car”[e] stop the Nissan so a positive identification could
     be made of the rear passenger. [Appellant’s] name, date of birth
     and ID card number were obtained, and his identification was
     confirmed by a Pennsylvania Department of Transportation
     (PennDOT) photograph.

             The “contact car” is a marked police car with lights
           [e]

           and sirens driven by police officers in full uniform

     Meanwhile, Officer Flurry called in K-9 Officer J. Hatfield with the
     Lancaster City Police to have his dog do a narcotics scan of the
     exterior of the Chevy that [Appellant] had left in the parking lot.

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     The dog exhibited a behavior change when he got to the driver’s
     side door at the seam by the “B” post, which is the post between
     the back of the vehicle and the front of the vehicle, which
     ultimately led to a final response for the presence of narcotics in
     the interior of the vehicle. Despite the narcotics hit, the SEU made
     the decision to leave the vehicle so as not to jeopardize the on-
     going drug investigation.

     A criminal complaint was eventually filed on August 7, 2018, and
     an arrest warrant was issued for [Appellant] on August 9, 2018.
     [Appellant] was arrested on August 13, 2018, and charged with
     [the aforementioned crimes].

                                   ****

     A jury trial commenced on March 20, 2019. After one-and-a-half
     days of testimony, the jury convicted [Appellant] of the
     [aforementioned charges]. Sentencing was deferred pending a
     pre-sentence investigation.

     On June 6, 2019, [Appellant] was sentenced to an aggregate
     sentence of 32 months’ to 1O years’ incarceration in a state
     correctional institution. . . .

     On June 14, 2019, [Appellant] filed a timely post-sentence
     motion. . . . The Commonwealth filed a response to [Appellant’s]
     post-sentence motion on June 25, 2019. The trial transcript was
     filed on July 10, 2019. By [o]pinion and [o]rder dated August 13,
     2019, [Appellant’s] post-sentence motion was denied.

     A timely appeal was filed with the Superior Court of Pennsylvania
     from the judgment of sentence imposed on June 6, 2019, as
     finalized by the denial of [Appellant’s] post-sentence motion on
     August 13, 2019. . . . [On September 12, 2019, the trial court
     ordered Appellant to file a concise statement of errors complained
     of on appeal. Appellant filed a timely Rule 1925(b) statement on
     October 3, 2019. On October 4, 2019, the trial court issued an
     opinion.].

Trial Court Opinion, 10/04/19, at 1-7 (record citations and some footnotes

omitted).




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      In his first claim, Appellant challenges the admission of large portions

of the testimony of undercover police officer Andrew Mease. See Appellant’s

Brief, at 19-30. Specifically, Appellant alleges the trial court should not have

admitted hearsay “testimony of a non-testifying CI and a non-testifying

[middle man] under the guise of course of conduct testimony, where the

testimony was actually offered for its truth and the jury was not given a

limiting instruction regarding the use of said testimony.” Id. at 19. For the

reasons discussed below, we find Appellant waived certain of his challenges

to the admission of the testimony; some of his claims lack merit because the

objected-to questions did not seek to elicit hearsay testimony; and the

remaining evidence was properly admitted to explain the police’s course of

conduct.   Moreover, while we find the trial court erred in failing to give a

limiting instruction to the jury, under the particular circumstances of this case,

such error was harmless.

      The following principles guide our review:

      With regard to evidentiary challenges, it is well established that
      [t]he admissibility of evidence is at the discretion of the trial court
      and only a showing of an abuse of that discretion, and resulting
      prejudice, constitutes reversible error. An abuse of discretion is
      not merely an error of judgment, but is rather the overriding or
      misapplication of the law, or the exercise of judgment that is
      manifestly unreasonable, or the result of bias, prejudice, ill-will or
      partiality, as shown by the evidence of record. Furthermore, if in
      reaching a conclusion the trial court overrides or misapplies the
      law, discretion is then abused and it is the duty of the appellate
      court to correct the error.




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Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013) (citation

and quotation marks omitted). Moreover, an appellate court may affirm an

order of the trial court on any basis if the decision is correct. See

Commonwealth v. Hernandez, 886 A.2d 231, 240 (Pa. Super. 2005).

       The Pennsylvania Rules of Evidence provide that:

       All relevant evidence is admissible, except as otherwise provided
       by law. Evidence that is not relevant is not admissible.

Pa.R.E. 402.

       Moreover,

       [h]earsay is a statement, other than one made by the declarant
       while testifying at the trial or hearing, offered in evidence to prove
       the truth of the matter asserted. Pa.R.E. 801(c). Thus, any out
       of court statement offered not for its truth but to explain the
       witness’s course of conduct is not hearsay. Commonwealth v.
       Rega, 593 Pa. 659, 933 A.2d 997, 1017 (Pa. 2007)[, cert. denied,
       128 S.Ct. 1879 (2008] (citing Commonwealth v. Sneed, 514
       Pa. 597, 526 A.2d 749, 754 (Pa. 1987)).

Commonwealth v. Johnson, 42 A.3d 1017, 1035 (Pa. 2012) (internal

quotation marks omitted).

       As discussed above, Officer Mease was the undercover officer in the

investigation. At trial, he testified to the events which led up to and through

the drug deal, which was recorded on video.5 See N.T. Trial, 3/20/19, at 65-



____________________________________________


5 The trial court admitted the video at trial as Commonwealth’s Exhibit 1. It
is an edited compilation taken from nine different video cameras maintained
by the Lancaster Safety Coalition. See Trial Ct. Op., at 2 n.2; N.T. Trial
3/20/19, at 92-94, 140-41.


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124. Office Mease supplied narration to various portions of the video. During

the approximately fifty-nine pages of Officer Mease’s direction examination,

Appellant objected twelve times. See id. at 81-84, 86, 87 (twice), 89, 90-91,

101-02, 109, 116.

       Our review of the record demonstrates three of the twelve objections

were not on the grounds of hearsay but rather on the grounds of non-

responsiveness and relevancy. See id. at 101,6 109,7 and 116.8 “Where a

specific objection is interposed, other possible grounds for the objection are

waived.” Commonwealth v. Shank, 883 A.2d 658, 672 (Pa. Super. 2005)

(citation omitted). Because Appellant did not object to the admission of this

evidence on the grounds of hearsay, he waived any claims regarding these

three objections. See id. at 672.



____________________________________________


6 The Commonwealth asked Officer Mease at what point he became aware
Sprague, the middle man, did not have drugs in his possession. Mease
responded, “As soon as he gets in the vehicle he lets me know that he has to
call someone to get it. Otherwise it would have occurred right then and there.”
N.T. Trial, 3/20/19, at 103. Appellant objected to the answer as non-
responsive and the trial court overruled the objection. See id.

7 Appellant objected on relevancy grounds to a question from the
Commonwealth concerning the length of time this drug deal took and under
what circumstances a quicker drug deal would take place. See id. at 109.
The trial court overruled this objection. See id.

8 Appellant objected to a question about how one ingested crack cocaine on
relevancy grounds and the trial court overruled the objection. See id. at 116.




                                           -7-
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       In another three instances, the trial court either sustained the objection

or directed the Commonwealth to rephrase the question and Appellant did not

object to rephrased questions. N.T. Testimony, 3/20/19, at 85-86,9 89,10 90-

91.11 Because in these three instances the trial court did not adversely rule

on   Appellant’s     objection    and    Appellant   did   not   place   any   further

contemporaneous objection on the record, his issue with respect to these

three objections is waived. See Commonwealth v. Leaner, 202 A.3d 749,

771 (Pa. Super. 2019) (finding issue waived where appellant failed to object

at trial), appeal denied, 216 A.3d 226 (Pa. 2019)); see also Epstein v. Saul




____________________________________________


9 The Commonwealth asked Officer Mease if the CI placed a telephone call to
Sprague to let him know they had arrived at the location of the meeting with
him. See id. Officer Mease replied the CI placed the phone call and Sprague
received it; when he started to testify as to what the CI told him Sprague said,
Appellant objected to the testimony as hearsay. See id. at 86. The trial court
sustained the objection and the Commonwealth moved on to another line of
questioning. See id.

10 The Commonwealth questioned Officer Mease about what actions he took
as a result of a telephone conversation between Sprague and Appellant. See
id. at 89. In his answer Officer Mease offered some speculative testimony
and Appellant objected on hearsay grounds. See id. The trial court ordered
the Commonwealth to rephrase the question, which it did, and Appellant did
not offer any further objection. See id.

11 The Commonwealth asked Officer Mease what happened after Sprague
ended a phone call with Appellant. See id. at 90. Appellant objected when
Officer Mease began to say what Sprague told him. See id. Again, the trial
court directed the Commonwealth to rephrase the question to avoid hearsay
and Appellant did not object to the rephrased question. See id.


                                           -8-
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Ewing, LLP, 7 A.3d 303, 314 (Pa. Super. 2010) (declining to address issue

where trial ruling benefitted appellant).

      In another two instances, while Appellant objected on hearsay grounds,

our review of the record reveals the questions at issue did not elicit hearsay.

See N.T. Trial, 3/20/19, at 83-84, and 86. Thus, Appellant’s claims regarding

these two instances fail.

      In the first instance, the Commonwealth asked Officer Mease to state

the purpose of having the CI make the phone call to Sprague.        Id. at 83.

Appellant objected on hearsay grounds. Id. at 84. However, this question

did not call for hearsay, but rather Officer Mease’s personal knowledge.

Officer Mease was part of the police team running this operation, it was within

his personal knowledge to testify having the CI make phone calls to a middle

man was for the purpose of trying to arrange a drug deal.

      In the second instance Appellant objected on hearsay grounds to the

Commonwealth’s question of whether Sprague made contact with Officer

Mease and the CI while they were in the undercover vehicle. See id. at 86.

Again, this question did not call for hearsay, Mease testified based upon his

personal observation, he heard the CI, who was sitting with him in the

undercover vehicle call out to Sprague, he watched Sprague walk towards the

car and get into their vehicle. See id.

      Accordingly, we are left with four instances where counsel objected to

testimony as hearsay and the trial court allowed it in either explicitly or


                                      -9-
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implicitly because the testimony went to course of conduct. See id. at 81-83,

87 (twice), 102. First, the trial court permitted Officer Mease to testify that

the CI called Sprague. See id. at 81-83. Second, it also accepted Officer

Mease’s testimony that Sprague introduced himself to Officer Mease as “Carl.”

Id. at 87. Third, it let in testimony Sprague informed Officer Mease he would

“have to call his guy to get stuff.” Id. Lastly, the trial court allowed testimony

when Sprague exited the car at the first meeting spot for the deal he told

Officer Mease where he would sit and he wasn’t abandoning him. Id. at 102.

      As noted above, the Rules of Evidence define hearsay as “a statement

that (1) the declarant does not make while testifying at the current trial or

hearing; and (2) a party offers in evidence to prove the truth of the matter

asserted in the statement.” Pa.R.E. 801(c). Again, we note “[a]n out of court

statement offered not for its truth but to explain the witness’s course of

conduct is not hearsay.” Rega, 933 A.2d at 1017.

      Multiple decisions have held that a police officer’s testimony concerning

an out of court statement is admissible to explain his course of conduct. See

id. (trooper’s testimony on morning following murder, codefendant had told

trooper he and defendant dropped defendant’s daughters off at defendant’s

mother’s home before leaving together, was not inadmissible hearsay, where

Commonwealth      introduced    testimony     to   explain   reason   for   further

investigating codefendant and defendant); Sneed, 526 A.2d at 754 (police

officer’s testimony describing radio call which prompted his trip to crime scene


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was not hearsay because it was introduced solely to explain why he went to

scene); Commonwealth v. Estepp, 17 A.3d 939, 945 (Pa. Super. 2011)

(police officer’s testimony regarding statements by confidential informant

admissible to explain officer’s course of conduct in investigating drug sales);

Commonwealth v. Dargan, 897 A.2d 496, 499, 501–02 (Pa. Super. 2006)

(officer’s testimony as to out-of-court statements made to him by confidential

informant, consisting of report heroin could be purchased from defendant,

description of defendant and his automobile, his address, and name of his

girlfriend, admissible for purpose of explaining officer’s acts in connection with

his investigation).

      Here, the Commonwealth did not present Officer Mease’s testimony for

its truth but simply to explain his course of conduct. This case involved several

actors, multiple cell phone calls, and trips to various parts of Lancaster. As

such, this testimony was not hearsay under the authorities listed above.

Accordingly, Appellant’s argument the trial court improperly admitted hearsay

testimony does not merit relief. See Rega, 933 A.2d at 1017.

      Appellant also maintains, even if the trial court properly admitted the

evidence, he is still entitled to relief because the trial court failed to give a

limiting instruction to the jury. See Appellant’s Brief, at 27-30. While we

agree with Appellant the trial court erred in failing to give a limiting instruction,

we find in the particular and unusual circumstances of this case, the error was

harmless.


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       Our Supreme Court recently reiterated where evidence is admitted for

a limited purpose, the trial court is required to give, “a limiting instruction to

focus the jury’s consideration of the evidence to its appropriate purpose.”

Commonwealth v. Coleman, — A.3d —, — 2020 WL 2529142, at *5 (Pa.

May 19, 2020).12 Thus, it is clear the trial court’s failure to instruct the jury

on the limited relevance of Officer Mease's testimony was error. However,

this does not end our inquiry as our review of the record shows defense

counsel neither requested such a limiting instruction nor objected to the trial

court’s failure to provide one. See N.T. Trial, 3/20/19, at 65-124.

       In Commonwealth v. Underwood, 500 A.2d 820, 822-24 (Pa. Super.

1985), this Court specifically addressed a situation where the trial court

admitted course-of-conduct testimony, failed to give a limiting instruction, and

defense counsel did not object. See id. After first finding the testimony in

question was properly admitted to show course of conduct, we addressed the

issue of defense counsel’s failure to either move for a limiting instruction or

object to the failure to give one. See id. at 823-24. We stated it was proper

to consider defense counsel’s failure to mitigate any damage caused by the


____________________________________________


12 Coleman was an appeal from the dismissal, without a hearing, of a petition
filed pursuant to Post-Conviction Relief Act. Our Supreme Court held there
was arguable merit to the appellant’s claim counsel was ineffective for failing
to object to the admission of testimony which appellant argued was hearsay
and the PCRA court believed was appropriately admitted to show course-of-
conduct, and, therefore, trial court should not have dismissed the PCRA
petition without a hearing. See id. It did not reach the underlying merits of
the appellant’s claim.

                                          - 12 -
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testimony in determining whether the defendant suffered prejudice. See id.

at 824.

      Moreover, in addressing the issue of whether the trial court’s error in

failing to instruct the jury prejudiced Appellant, we believe it is necessary to

look at the specifics of the testimony in question.    In Commonwealth v.

Dent, 837 A.2d 571, 578-82 (Pa. Super. 2003), this Court discussed at length

the issue of the proper admission of testimony which went to course of conduct

as opposed to impermissible hearsay used to bolster the prosecution’s case.

See id.   In distinguishing between the two, we focused on whether the

objected-to testimony implicated the defendant in the crime and/or went to

his identity in a case where identity was an issue, finding in those cases, the

trial court should not have admitted the testimony and such error was not

harmless. See id.

      Here, none of the objected-to statements directly implicated Appellant

in any criminal activity or even mentioned him. Moreover, Appellant’s defense

at trial was not: (1) mistaken identity, (2) a drug deal did not happen, or, (3)

he did not engage in cell phone calls with Sprague which resulted in a drug

deal. See N.T. Trial, 3/21/19, at 232-22. Instead, he claimed it was he who

was buying drugs from Sprague rather than vice-versa. See id. Under these

circumstances, particularly in light of defense counsel’s failure to act, we

cannot say the admission of the statements, even without a limiting




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instruction, prejudiced Appellant.13           See Underwood, 500 A.2d at 824.

Appellant’s first claim does not merit relief.

       In his second through fourth claims, Appellant challenges the sufficiency

of the evidence supporting his conviction for delivery of cocaine, conspiracy,

and criminal use of a communication facility.14 See Appellant’s Brief, at 31-

45. Specifically, Appellant argues: (1) the evidence did not show Appellant

actually delivered cocaine to Sprague absent improperly admitted testimony;

(2) there was no evidence Appellant and Sprague engaged in a conspiracy to

deliver cocaine; and (3) there was no evidence Sprague contacted Appellant

by telephone and no evidence Appellant delivered cocaine to Sprague. See

id.

       Our standard of review for a challenge to the sufficiency of the evidence

is well settled:

       Whether sufficient evidence exists to support the verdict is a
       question of law; our standard of review is de novo and our scope
       of review is plenary. When reviewing the sufficiency of the
       evidence, this Court is tasked with determining whether the
       evidence at trial, and all reasonable inferences derived therefrom,
       are sufficient to establish all elements of the offense beyond a
____________________________________________


13 We wish to make it abundantly clear, despite defense counsel’s failure to
request a limiting instruction or object, had the statements in question directly
implicated Appellant or had his defense been otherwise, we would have had
no hesitation in vacating the judgment of sentence and remanding the matter
for a new trial. It is incumbent upon a trial court when it admits evidence for
a limited purpose to instruct the jury in the proper consideration of such
evidence. See Coleman, supra.

14 Appellant does not challenge his conviction for driving with a suspended
license.

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      reasonable doubt when viewed in the light most favorable to
      the Commonwealth[.] The evidence need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented.

Commonwealth v. Walls, 144 A.3d 926, 931 (Pa. Super. 2016) (internal

citations and quotation marks omitted, emphasis added), appeal denied, 167

A.3d 698 (Pa. 2017).

      Delivery   of   a   controlled   substance   is   outlined   in   35   P.S.   §

780113(a)(30), as follows:

      Except as authorized by this act, the 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[.]

      Pursuant to its statutory definition, “‘delivery’ means the actual,

constructive, or attempted transfer from one person to another of a controlled

substance, other drug, device or cosmetic whether or not there is an agency

relationship.”   35 P.S. § 780–102(b). Thus, in order to obtain a conviction

for the delivery of a controlled substance, the Commonwealth must establish

beyond a reasonable doubt “[the actor] knowingly made an actual,

constructive, or attempted transfer of a controlled substance to another

person without the legal authority to do so.” Commonwealth v. Murphy,

844 A.2d 1228, 1234 (Pa. 2004). “A defendant actually transfers drugs [, inter

alia,] whenever he physically conveys drugs to another person.” Id.




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      The crime of conspiracy is set forth at 18 Pa.C.S.A. § 903, which

provides, in relevant part:

            (a) Definition of conspiracy.—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).

      Thus, to sustain a conviction for conspiracy, the Commonwealth must

prove:

            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.

      Circumstantial evidence may provide proof of the conspiracy. The
      conduct of the parties and the circumstances surrounding such
      conduct may create a “web of evidence” linking the accused to the
      alleged conspiracy beyond a reasonable doubt.

Commonwealth v. Jones, 874 A.2d 108, 121 (Pa. Super. 2005) (citations

and some quotation marks omitted).




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      When determining whether the evidence was sufficient to support a

conviction for conspiracy, we consider the following factors: (1) an association

between alleged conspirators; (2) knowledge of the commission of the crime;

(3) presence at the scene of the crime; and (4) in some situations,

participation in the object of the conspiracy.      See Commonwealth v.

Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002). Each co-conspirator is

liable for the acts of the other co-conspirators. See Commonwealth v. King,

990 A.2d 1172, 1178 (Pa. Super. 2010).

      To convict a defendant of criminal use of a communication facility, the

trier of fact must find the defendant “use[d] a communication facility to

commit, cause or facilitate the commission or the attempt thereof of any crime

which constitutes a felony under . . . The Controlled Substance, Drug, Device

and Cosmetic Act.”    18 Pa.C.S.A. § 7512(a).      Under Pennsylvania law, a

telephone constitutes a communication facility. 18 Pa.C.S.A. § 7512(c). As

noted above, 35 P.S. § 780–113(a)(30) prohibits the delivery of a controlled

substance.

      Initially, Appellant’s arguments suffer from several fatal flaws.      He

cherry picks the evidence at trial, viewing it in the light most favorable to

himself rather than the Commonwealth. Secondly, he provides no basis to

support his contention that, in order to convict him, the jury must have

improperly considered the course-of-conduct evidence for the truth of the




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matter asserted.15 Lastly, Appellant’s claim is, in essence, a contention the

jury should have credited his testimony rather than that of the police.

       However, such an argument goes to the weight of the evidence, not the

sufficiency of the evidence. See Commonwealth v. W.H.M., Jr., 932 A.2d

155, 160 (Pa. Super. 2007) (holding that claim jury should have believed

appellant’s version of event rather than victim’s goes to weight, not sufficiency

of evidence); Commonwealth v. Wilson, 825 A.2d 710, 713-14 (Pa. Super.

2003) (observing that review of sufficiency of evidence does not include

assessment of credibility of testimony; such claim goes to weight of evidence);

Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa. Super. 1997) (stating

that credibility determinations are made by finder of fact and challenges to

those determinations go to weight, not sufficiency of evidence).

       At trial, on cross-examination, Appellant admitted he used a cell phone

to contact Sprague, although Appellant claimed it was so he could buy drugs

not to sell them. See N.T. Trial 3/21/19, at 239-40. After initially claiming

he was solely a drug user, Appellant admitted he had two prior felony

convictions for drug dealing. See id. Appellant acknowledged he did not use

his personal vehicle for this drug deal. See id. at 241.




____________________________________________


15We note this Court has not considered the course-of-conduct testimony in
reaching the conclusion the evidence was sufficient to sustain the Appellant’s
conviction.

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      Further, as discussed in detail above, Police Officer Andrew Mease, who

had sixteen years of experience, seven of which were in the SEU, testified

about the events of February 6, 2019.        He also testified, based on his

experience, about the differences between drug deals when he purchased

drugs through a middle man rather than directly from a dealer, and about the

type of behavior typically engaged in by drug dealers. See N.T. Trial, 3/20/19,

at 109-11.

      Mease stated drug deals when done directly between himself and a

dealer were generally quite fast, “[t]here’s no — there’s no wiggle room there.

There’s no — because there’s other things they need to do, other deals they

need to make. So it’s very quick. They’ll get in the car, do the exchange, they

get out of the car.” Id. He continued explaining deals with middle men were

typically much lengthier because, “[w]e’re always operating off of the dealer’s

time and the middle man trying to get ahold of that person as opposed to me

just reaching [the dealer]. “ Id. He concluded,

      If [Sprague] would have had the drugs on him, he would have got
      in my car, delivered the drugs, I give him the money, he gets out
      and he goes about his business because there’s other people that
      he’s going to sell to. That didn’t happen in this case.

      In my experience, the seeker has always gone to them.
      Unfortunately, in the drug dealer world, it would be great if we as
      the undercover were able to dictate, okay, this is where I want to
      meet you, this is how much I want, you come see me.
      Unfortunately it doesn’t work that way. We’re at the call of the
      dealer. The dealer calls the shots. In times we’ve had to change
      locations three and four times because they’re that paranoid. So
      unfortunately, we’re the ones that go — have to go to them and
      follow their directions as to where they want to do this at. . . .

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Id.

      Police Officer Adam Flurry, who had five years’ experience working on

drug crimes and had participated in over 300 undercover drug transactions,

was the surveillance officer during the incident. N.T. Trial, N.T. Trial, 3/20/19,

at 132-33; N.T. Trial 3/21/19, at 180. He also testified, based on his training

and experience, about the differences between drug deals done directly with

dealers and those done through middle men. He reiterated deals done directly

with dealers were speedy transactions. Id. at 184-86.

      I’ve . . . contacted dealers and literally they have not even stopped
      walking. They just throw the drugs at me. . . [T]he average time
      if I could contact an actual person who has drugs on them that I
      would interact with them, 20, 30 seconds to a minute. They don’t
      want to be with me because they don’t want to arouse suspicion
      because they know police officers are looking for people who may
      not belong together or people who are driving around aimlessly,
      getting out of a car, looking around, that type of thing.

      However, if I contact someone [who will] go to somebody else, it
      becomes an event because this person’s calling someone else
      who’s telling them where to go. Sometimes the dealer doesn’t
      want to go to the other side of town. They change their mind or
      they have something else they want to do over here to say, no,
      you come over here. You are at the whim of a dealer. You don’t
      tell the dealer where to come. They tell you where to go because
      they have what you want . . . They dictate it.

      And they will change it [on] occasion. You’ll get to a spot, you’ll
      call them, hey, I’m here. All right, I’ll be right there. Couple
      minutes later, see me over here. Okay. Drive over there. It’s
      really degrading as a lifestyle to do that and be at the whim of a
      drug dealer, changing locations. . . .

      [Officer Flurry concluded because Officer Mease ends up driving
      to various locations instead of immediately getting drugs from
      Sprague after he enters Officer Mease’s vehicle, this indicated to

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          him] [t]hat [Sprague] doesn’t have drugs and [he] is going to
          meet someone to get the drugs.

Id.        Officer Flurry also discredited defense counsel’s theory that Sprague

having Officer Mease change locations was a “feint” or “move to confuse,”

stating simply this did not happen with street-level drug deals. Id. at 187-

89. He further explained in detail what a feint would look like and why it was

inconsistent with the events which occurred in February 2019. See id.

          Moreover, the jury was able to view the entire incident on video. Thus,

they were able to observe both the CI and Sprague make phone calls, the

different locations Office Mease had to drive to, the length of the time the deal

took, a hand-to-hand exchange between Sprague and Appellant in the vehicle

driven by Appellant, and Appellant’s actions after the deal.

          It was well within the province of the jury to credit the testimony of the

police officers, the fact Sprague was known to the police as a middle man, and

Appellant’s admission he used his cell phone to arrange a drug deal with

Sprague. It was also within their province to view the video and conclude

Appellant’s actions were those of a dealer not those of a user; and to not credit

Appellant’s self-serving testimony he was buying drugs not selling them.

          Our review of the record demonstrates the evidence was sufficient to

sustain Appellant’s convictions for drug delivery, conspiracy, and criminal use

of    a    communications     facility.    See     Murphy,   844   A.2d   at   1234;

Commonwealth v. Ellison, 213 A.3d 312, 318-19 (Pa. Super. 2019) (finding

evidence sufficient to sustain convictions for drug delivery and criminal use of

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communication facility where, under supervision of police, confidential

informant, used text messages and/or cell phone to contact defendant and

arrange controlled buy, police observed CI interact with defendant, and,

immediately following interaction CI gave bag with drugs to police), appeal

denied, 220 A.3d 521 (Pa. 2019); Commonwealth v. Gibson, 668 A.2d 552,

555 (Pa. Super. 1995) (holding appellant’s presence with co-conspirator

during entire criminal episode proved conspiracy); Commonwealth v.

Cooke, 492 A.2d 63, 68 (Pa. Super. 1985) (holding evidence sufficient to

sustain conviction of conspiracy where appellant was present at scene,

strongly associated with co-conspirator and personally participated in crime).

Appellant’s final three issues do not merit relief.

      Accordingly, for the reasons discussed above, we affirm the judgment

of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/14/2020




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