J-S41021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DARIUS WALKER

                            Appellant                  No. 157 MDA 2015


            Appeal from the Judgment of Sentence October 31, 2014
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0000823-2014


BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED AUGUST 21, 2015

        Appellant, Darius Walker, appeals from the judgment of sentence

imposed following his conviction1 of one count each of possession with intent

to deliver (heroin) (PWID),2 possession of drug paraphernalia,3 corruption of

minors,4 and two counts of criminal use of a communications facility (F-3).5

After careful review, we affirm.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    A charge of intimidation of a witness was dismissed before trial.
2
    35 P.S. § 780-113(a)(30).
3
    35 P.S. § 780-113(a)(32).
4
    18 Pa.C.S.A. § 6301(a)(1)(i).
5
    18 Pa.C.S.A. § 7512.
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       At trial, Brandon Love testified that Appellant paid him to drive him

and three other passengers in Love’s car from Williamsport to Philadelphia

on March 24, 2014.             When they arrived in Philadelphia, Love dropped

Appellant and A.P., a juvenile passenger, off at a house. When they entered

the house, Appellant was carrying a black duffle bag; when they emerged

from the house, fifteen to twenty minutes later, he was carrying only a

plastic bag.

       On the way back to Williamsport, in the early morning hours of March

25, 2014, Love’s vehicle was stopped by police for speeding. Police officers

uncovered 30 unmarked bundles (421 bags) of heroin from the left front

coat   pocket     of   A.P.,    the   back-seat   driver-side   passenger.   Drug

paraphernalia, consisting of a stamp, wax wrappers and rubber bands, was

also found in the trunk of the vehicle. Police found cellphones and a small

amount of currency on Appellant; he did not have any drugs on his person at

the time of the stop.

       On October 30, 2014, a jury convicted Appellant of the previously

noted offenses. He was sentenced (at his request) the next day to a term of

not less than three nor more than seven years’ incarceration. Appellant filed

an unsuccessful post-sentence motion. Appellant also filed a timely notice of

appeal.6

____________________________________________


6
  Appellant filed a concise statement of errors, on Feb 19, 2015. See
Pa.R.A.P. 1925(b). The trial court filed an opinion on February 23, 2015,
(Footnote Continued Next Page)


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      On appeal, Appellant presents four questions for our review:

      (1)    Did the court err when it allowed the Commonwealth to
             introduce improper propensity evidence in violation of
             Pa.R.E[]. 404(b), specifically the recorded telephone
             conversations between [Appellant] and unknown parties
             during his incarceration?

      (2)    Did the court err when it denied the motion for judgment
             of acquittal as the evidence was insufficient to prove
             [Appellant] possessed controlled substances with the
             intent to deliver when the controlled substances in
             question were not in [Appellant’s] possession but in
             physical possession of another?

      (3)    Did the court err when it denied the motion for judgment
             of acquittal as the evidence was insufficient to prove the
             Criminal Use of a Communication Facility when the
             Commonwealth failed to show that the text messages were
             related to the commission or attempted commission of any
             crime?

      (4)    Did the court err when it denied the motion for judgment
             of acquittal as the evidence was insufficient to prove the
             Corruption of Minors charge as [Appellant] was merely
             present in the vehicle and did not entice the minor to
             engage in criminal activity?

(See Appellant’s Brief, at 12).

      In his first issue, Appellant contends that the trial court erred in

admitting the content of phone conversations recorded after his arrest, while

he was incarcerated at the Lycoming County Prison. Specifically, he asserts

that the conversations were inadmissible under Pa.R.E. 404(b), as their


                       _______________________
(Footnote Continued)

referencing its order and opinion filed January 20, 2015.     See Pa.R.A.P.
1925(a).



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probative value was substantially outweighed by the unfair prejudice.      We

disagree.

     Appellate courts typically examine a trial court’s decision
     concerning the admissibility of evidence for abuse of discretion.
     An abuse of discretion may not be found merely because an
     appellate court might have reached a different conclusion, but
     requires a result of manifest unreasonableness, or partiality,
     prejudice, bias, or ill-will, or such lack of support so as to be
     clearly erroneous. Typically, all relevant evidence, i.e., evidence
     which tends to make the existence or non-existence of a
     material fact more or less probable, is admissible, subject to the
     prejudice/probative value weighing which attends all decisions
     upon admissibility. See Pa.R.E. 401; Pa.R.E. 402[.]

            A long-accepted exception to this general rule of
     admissibility, which is reflected in Rule 404(b)(1) of the
     Pennsylvania Rules of Evidence, states that “[e]vidence of other
     crimes, wrongs, or acts is not admissible to prove the character
     of a person in order to show action in conformity therewith.”
     Character evidence (whether good or bad) is, of course,
     relevant in criminal prosecutions; that is why an accused has
     the right to introduce evidence of good character for relevant
     character traits. See Pa.R.E. 404(a)(1). Evidence of separate
     or unrelated “crimes, wrongs, or acts,” however, has long been
     deemed inadmissible as character evidence against a criminal
     defendant in this Commonwealth as a matter not of relevance,
     but of policy, i.e., because of a fear that such evidence is so
     powerful that the jury might misuse the evidence and convict
     based solely upon criminal propensity. Because the fear against
     which     this    exception    to    the    general    rule   of
     relevance/admissibility is aimed concerns use of prior crimes to
     show bad character/propensity, a series of “exceptions to the
     exception” (to the rule of relevance) have been recognized.
     Thus, as Rule 404(b)(2) reflects, evidence of “other crimes,
     wrongs, or acts” may be admitted when relevant for a purpose
     other than criminal character/propensity, including: proof of
     motive, opportunity, intent, preparation, plan, knowledge,
     identity, or absence of mistake. This list is not exhaustive.
     Pa.R.E. 404(b) Comment.           For instance, this Court has
     recognized a res gestae exception to Rule 404(b) which allows
     admission of other crimes evidence when relevant to furnish the


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      context or complete story of the events surrounding a crime. [ ]
      see [ ] Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491,
      497 (1988) (evidence of other crimes may be relevant and
      admissible to show “part of the chain or sequence of events
      which became part of the history of the case and formed part of
      the natural development of the facts”).


Commonwealth v. Dillon, 925 A.2d 131, 136-37 (Pa. 2007) (most case

citations omitted) (emphasis in original).   Pennsylvania Rule of Evidence

404(b) provides in pertinent part:

        (b) Crimes, Wrongs or Other Acts.

            (1) Prohibited Uses. Evidence of a crime, wrong, or
         other act is not admissible to prove a person’s character in
         order to show that on a particular occasion the person
         acted in accordance with the character.

            (2) Permitted Uses. This evidence may be admissible
         for another purpose, such as proving motive, opportunity,
         intent, preparation, plan, knowledge, identity, absence of
         mistake, or lack of accident. In a criminal case this
         evidence is admissible only if the probative value of the
         evidence outweighs its potential for unfair prejudice.

Pa.R.E. 404(b) (1), (2).

      Here, the relevant jailhouse conversations include Appellant discussing

who the “good” customers are and also requesting that other people work

the phone to contact customers on his behalf. (See Commonwealth Exhibit

21, at 6-8).

      In Commonwealth v. Kinard, 95 A.3d 279 (Pa. Super. 2014) (en

banc), the defendant was also convicted of PWID. At trial, the court granted

the Commonwealth’s motion, filed pursuant to Pa.R.E. 404(b), to admit into

evidence recordings of several telephone conversations defendant made to


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unidentified individuals while incarcerated and awaiting trial.      See id. at

282. In those conversations, defendant used code language to discuss the

sale of narcotics. Also at trial, a police officer testified as an expert on the

code or slang terms used by drug dealers in conversations in order to avoid

detection and apprehension by law enforcement.         See id. On appeal, our

Court affirmed the court’s admission of the recordings, finding that:

      [T]he telephone calls demonstrate appellant’s knowledge and
      awareness of drug trafficking and support [the co-defendant’s]
      testimony that appellant is the supplier and that he was not
      innocently in the [co-defendant’s] house, but rather was there
      conducting business. The calls also reveal a common plan,
      scheme, and design.        As the trial court stated, the calls
      demonstrated that appellant was engaged in ongoing drug
      transactions even after he was arrested. The drug transactions
      were similar, if not identical, to the drug transactions for which
      he was charged. The calls also reveal appellant's knowledge of
      and use of coded language. Again, the [co-defendant] testified
      that she used coded language when she asked appellant for
      drugs. [The co-defendant] asked appellant for "ten twenties."
      Appellant, in turn, met her request and supplied the drugs. The
      coded language used during the taped phone calls was similar
      and demonstrated not only that appellant understood the code
      used by others but appellant also used the language himself.

      Furthermore, the bad acts occurred in a pattern over three
      months after his arrest.        The testimony was relevant in
      establishing the chain of events and course of criminal conduct
      of appellant. . . . We find no abuse of discretion in the trial
      court's finding that the calls fell within the parameters which
      define admissible limits of other criminal activity.

Id. at 285 (footnote and citations omitted).

      Here,   similar   to   Kinard,   Appellant’s   recorded   jailhouse   phone

conversations with unidentified individuals are relevant and admissible under

Rule 404(b)(2) because they establish Appellant’s consciousness of guilt for


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PWID, and intent to continue to sell, showing his active involvement in the

distribution of narcotics.   Moreover, the content of the conversations

supports the fact that Appellant constructively possessed the heroin found

during the car stop.

      The calls were also bolstered by the expert testimony of Detective

Alberto Diaz, who translated the slang used during the calls, testifying that

such terminology is typically used by drug dealers to avoid suspicion by law

enforcement and who concluded that Appellant possessed with intent to

deliver, noting that “[Appellant’s] got a couple people that he was talking to

from prison running his business and collecting money for him.” (N.T. Jury

Trial, 10/30/14, at 180; see also id. at 180-83).

      While the content of the calls may have been “prejudicial,” as all

evidence against a defendant commonly is, when balancing the probative

value versus the prejudicial nature of the evidence, the trial court properly

admitted them to establish a common scheme, knowledge, intent, plan or

design, and absence of mistake under Rule 404(b). Appellant’s first claim

does not merit relief.

      In his second issue, Appellant claims that because the Commonwealth

failed to show that he had drugs in his possession or that he had equal

access to or joint control over the heroin found in A.P.’s possession, there

was insufficient evidence to convict him of possession with the intent to

deliver. (See Appellant’s Brief, at 18-20). We disagree.




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      In evaluating a challenge to the sufficiency of the evidence, we
      must determine whether, viewing the evidence in the light most
      favorable to the Commonwealth as verdict winner, together with
      all reasonable inferences therefrom, the trier of fact could have
      found that each and every element of the crimes charged was
      established beyond a reasonable doubt.

Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000), appeal

denied, 764 A.2d 1067 (Pa. 2000) (citations omitted).

      “[I]n order to prevail on a charge of possession of a controlled

substance with intent to deliver, the Commonwealth must prove, beyond a

reasonable doubt, that the accused possessed a controlled substance and

that the accused had the intent to deliver the controlled substance."

Commonwealth v. Taylor, 33 A.3d 1283, 1288 (Pa. Super. 2011), appeal

denied, 47 A.3d 847 (Pa. 2012) (emphasis omitted).

      Because Appellant was not in actual possession of the heroin, the

Commonwealth had to establish that he constructively possessed the

contraband.     Constructive possession has been defined as “the power to

control   the   contraband   and   the   intent   to   exercise   that   control.”

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012), appeal

denied, 63 A.3d 1243 (Pa. 2013) (citation omitted).

      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.” Commonwealth v. Drummond,

775 A.2d 849, 853-54 (Pa. Super. 2001), appeal denied, 790 A.2d 1013 (Pa.

2001) (citation omitted).

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      Here, Appellant, a co-passenger in a car with A.P., had access to the

drugs. Moreover, evidence at trial established that: (1) Appellant had gone

to Philadelphia to get drugs; (2) Appellant traded a rifle for the drugs; (3)

Appellant had asked A.P. to hold the drugs for him since A.P. was a juvenile

and “would get less time” if he were caught; (4) Appellant and A.P. were

planning to sell the drugs in Williamsport; and (4) it is common for heroin

traffickers to go to a source city like Philadelphia and then bring the drugs

back to Williamsport to sell at higher prices. (See N.T. Jury Trial, 10/30/14,

at 54-56, 172).

      In addition, Appellant’s recorded jailhouse telephone conversations,

(see id. at 125; see also this memorandum, supra at 3-5), established

that he had been selling drugs prior to his incarceration and continued to

supervise the sale of drugs through others while he was in prison.        (See

Trial Ct. Op., at 8; see also Commonwealth’s Brief, at 8). This was relevant

to the finding that Appellant constructively possessed the heroin with intent

to continue to sell to his regular customers, thus supporting his PWID

conviction.

      Accordingly, based on this evidence, viewed in the light most favorable

to the Commonwealth, it was reasonable for the jury to conclude that

Appellant had constructive possession of the heroin, was planning to sell it in

Williamsport, and was guilty of PWID.         See Taylor, supra at 1288.

Appellant’s second claim does not merit relief.




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      In his third claim, Appellant asserts that because the Commonwealth

failed to present corroborating evidence that the text messages sent and

received by him were related to the commission or attempted commission of

any crime, there was insufficient evidence for his conviction of criminal use

of a communication facility. (See Appellant’s Brief, at 20-21). We disagree.

      Preliminarily, beyond the mere bald assertion, Appellant fails to

develop any argument supported by pertinent authority that additional

corroboration or evidence of “physical interactions” was required.               (Id. at

21; see also id. at 20-21.)         See 18 Pa.C.S.A. § 7512.               Accordingly,

Appellant’s claim is waived. See Pa.R.A.P. 2119(a), (b). Moreover, it would

not merit relief.

      The Crimes Code defines the offense of criminal use of communication

facility in relevant part 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), 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.A. § 7512(a) (emphasis added).                    A cellular telephone is

considered a communication facility under section 7512. See 18 Pa.C.S.A.

§   7512(c)   (communication      facility   defined   as    “a   public    or   private




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instrumentality used or useful in the transmission of signs, signals, writing,

images, sounds, data . . . including a telephone.”).

      Instantly, the Commonwealth charged Appellant with violating section

7512, alleging that he used a telephone to facilitate drug transactions that

were to occur in Williamsport following his purchase of heroin in Philadelphia

on March 24.      Specifically, two text messages, sent and received by

Appellant on his cell phone on the evening of March 23, 2014, indicated he

was planning to sell drugs to third persons on his return to Williamsport.

      The texts included the term “grab” and “bun,” which are drug jargon

for “getting the product that is being sold” and “ten bags of heroin,”

respectively.

      When viewed in the context of the totality of the evidence presented at

trial, the text messages show that Appellant knowingly used his cellphone in

an effort to facilitate or in an attempt to complete drug transactions.

      The trial court found that the text messages sent and received by

Appellant on March 23, 2014, constituted evidence of two people requesting

drugs from Appellant and his making arrangements to deliver them. (See

Commonwealth Exhibits 25, 26; see also Trial Ct. Op., at 4-7).               On

independent review, we find that the record supports the trial court’s finding

that the reported conversations, while informal and colloquial in the manner

of text messages, both plainly document attempts to buy drugs.




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      Accordingly, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, together with all reasonable inferences,

we conclude that the jury as the trier of fact properly found that each and

every element of the offense of criminal use of a communications facility as

charged was established beyond a reasonable doubt. See Randall, supra

at 674. Appellant’s third claim does not merit relief.

      In his fourth and final claim, Appellant contends that there was

insufficient evidence to convict him of the charge of corruption of minors.

(See Appellant’s Brief, at 22-23). He maintains that he neither enticed nor

encouraged A.P. to possess the heroin or to smoke marijuana. (See id.).

Appellant claims that his “mere presence in the vehicle did not corrupt A.P.’s

morals.” (Id. at 22). We disagree.

      The crime of corruption of minors is defined in pertinent part as

follows:

      (a)   (1) (i) Except as provided in subparagraph (ii), whoever,
            being of the age of 18 years and upwards, by any act
            corrupts or tends to corrupt the morals of any minor less
            than 18 years of age, or who aids, abets, entices or
            encourages any such minor in the commission of any
            crime, or who knowingly assists or encourages such minor
            in violating his or her parole or any order of court, commits
            a misdemeanor of the first degree.

18 Pa.C.S.A. § 6301(a)(1)(i).

      The record confirms that Appellant was not “merely present.” At trial,

A.P. testified that Appellant arranged with him, and others, to drive to

Philadelphia to buy drugs. (See N.T. Jury Trial, 10/30/14, at 52-60). When


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they arrived in Philadelphia, only Appellant and A.P. entered a house. (See

id. at 53).   In A.P.’s presence, Appellant exchanged a gun for heroin and

then handed the heroin, packaged in a black bag, to A.P. and told him to

hold it. They returned in Love’s car to Williamsport. (See id. at 54).

      On the return trip to Williamsport, Love’s car was stopped by the

police and A.P. was arrested for possessing heroin. At trial, A.P.’s mother

testified that Appellant told her that he had A.P. carry the heroin he

(Appellant) had bought in Philadelphia because if they were arrested, A.P.

would get less jail time since he was only sixteen. (See id., at 81-82).

      Viewing this evidence in the light most favorable to the Commonwealth

as verdict winner, we conclude it was more than sufficient to enable the jury

to decide that Appellant, at minimum, enticed and encouraged A.P. to aid

him in the purchase and transport of heroin with intent to deliver after their

return to Williamsport.    We further conclude that there was more than

sufficient evidence to sustain the jury’s conviction of Appellant for corruption

of a minor. See Commonwealth v. Barnette, 760 A.2d 1166, 1173 (Pa.

Super. 2000), appeal denied, 781 A.2d 138 (Pa. 2001) (evidence sufficient

for corruption of minors conviction where appellant asked juvenile to sign for

package containing drugs); see also Commonwealth v. Slocum, 86 A.3d

272, 277 (Pa. Super. 2014) (concluding evidence sufficient if knowing,

intentional acts of perpetrator tend to have effect of corrupting morals of

minor).

      Judgment of sentence affirmed.

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     Judge Allen joins the Memorandum.

     Judge Lazarus files a Concurring and Dissenting Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2015




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