J-S28004-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

ANDRE SUTTON,

                         Appellant                   No. 3444 EDA 2014


        Appeal from the Judgment of Sentence November 24, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0003508-2014


BEFORE: BOWES, LAZARUS AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                                  FILED May 11, 2016

      Andre Sutton appeals from the judgment of sentence of eleven and

one-half to twenty-three months incarceration and five years of probation.

The court imposed the sentence after Appellant was convicted of drug-

related offenses following a non-jury trial. We affirm.

      At approximately 5:00 p.m. on January 14, 2014, Philadelphia Police

Officer Reginald Graham used a confidential informant (CI-1) to conduct a

purchase of narcotics from Appellant utilizing the controlled buy procedure.

Officer Graham observed the following.     The CI-1 knocked on the door of

3831 North 8th Street, Philadelphia, Appellant answered the door, and, after

they conversed briefly, Appellant allowed CI-1 to enter the residence. CI-1

exited 3831 North 8th Street after “a minute or so,” and handed Officer


* Retired Senior Judge assigned to the Superior Court.
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Graham four blue-tinted Ziploc packets containing cocaine.        N.T. Trial

(Waiver), 9/16/14, at 11.

     On January 22, 2014, Officer Graham conducted another controlled

buy using a different confidential informant (“CI-2”). CI-2 knocked on the

door of 3831 North 8th Street, Appellant “came to the door and had a brief

conversation with [CI-2] and then they both went inside that location.” Id.

at 12.   After about two minutes, Appellant left 3831 North 8th Street and

began to walk down the street.

     Philadelphia Police Officer Carlos Buitrago, who was operating as back

up for Officer Graham, followed Appellant on foot, and watched the

following. Appellant walked two and one-half blocks to a location around the

corner, 3909 Percy Street, where Chevel Harris was standing on the porch.

“As soon as [Appellant and Harris] made eye contact, Mr. Harris came down

from the steps and met [Appellant] on the sidewalk in front of 3909 and

gave [Appellant] small objects.”     Id. at 46-47.     Officer Buitrago saw

Appellant place the objects in his pocket and head back toward North 8 th

Street, and the officer then radioed Officer Graham.

     Officer Graham soon observed Appellant return to and enter 3831

North 8th Street and CI-2 leave shortly thereafter.    CI-2 handed Officer

Graham three clear baggies containing cocaine. Officer Buitrago remained

at 3909 Percy Street, and watched Harris exchange items for cash with two

females.

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     On the afternoon of January 23, 2014, police executed search

warrants at 3831 North 8th Street and 3909 Percy Street.        Appellant was

alone at 3831 North 8th Street, where police recovered Endocet, Percocet,

and Xanax pills as well as numerous used and unused Ziploc packets that

were tinted blue, black, or red. Neither cash nor cocaine was found at 3831

North 8th Street.   At 3909 Percy Street, Harris was arrested on the front

steps.   Inside, police found fourteen bags of marijuana and twenty-nine

packets of cocaine in clear bags that had purple markings.

     Based upon this proof, Appellant was convicted of possession of a

controlled substance with intent to deliver (“PWID”), conspiracy to commit

PWID, possession of a controlled substance, and possession of drug

paraphernalia. The matter proceeded to sentencing on November 24, 2014.

Appellant was given two concurrent terms of eleven and one-half to twenty-

three months imprisonment on the PWID and conspiracy offenses as well as

five years probation. No sentence was imposed on the other two crimes.

     Appellant had prior PWID convictions, and the sentence in question

was below     the   mitigated range   of the   applicable    guidelines, which

recommended twenty-one to twenty-seven months in jail plus or minus six

months. The court ordered Appellant, who already had served over nine

months in jail, to be evaluated by the Philadelphia forensic intensive

recovery project for both mental health and substance abuse issues and to




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be immediately paroled into the program recommended following that

evaluation.

      This appeal followed imposition of the judgment of sentence, and

Appellant complied with the court’s directive to file a Pa.R.A.P. 1925(b)

statement, wherein this issue presented on appeal was preserved: “Did the

trial court err when it convicted appellant of criminal conspiracy because the

evidence was insufficient to establish any agreement to sell a controlled

substance?” Appellant’s brief at 3.

      Initially, we note: “In performing a sufficiency review, we . . . . view

the evidence in a light most favorable to the Commonwealth as the verdict

winner, drawing all reasonable inferences from the evidence in favor of the

Commonwealth.” Commonwealth v. Coleman, 130 A.3d 38, 41 (Pa.Super.

2015) (citation omitted).     The Commonwealth’s proof “need not preclude

every possibility of innocence and the fact-finder is free to believe all, part,

or none of the evidence presented.”         Id. (citation and quotation marks

omitted).     Moreover,     “the   Commonwealth    can   prove   its   case   by

circumstantial evidence” so that only where “the evidence is so weak and

inconclusive that, as a matter of law, no probability of fact can be drawn

from the combined circumstances” will a defendant be accorded relief. Id.

(citation and quotation marks omitted). We are not permitted to “re-weigh

the evidence and substitute our judgment for that of the fact-finder.” Id.

(citation and quotation marks omitted).

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      Appellant singularly claims that there was insufficient evidence to

establish the existence of an agreement between Appellant and Harris to sell

drugs.   To convict a defendant of conspiracy, the Commonwealth must

prove: “1) an intent to commit or aid in an unlawful act, (2) an agreement

with a co-conspirator and (3) an overt act in furtherance of the conspiracy.”

Commonwealth v. Thoeun Tha, 64 A.3d 704, 710 (Pa.Super. 2013).

Proof of an explicit agreement to commit a crime, which is the element of

the crime that Appellant challenges, is rarely directly available. The law thus

provides that “such an act may be proved inferentially by circumstantial

evidence, i.e., the relations, conduct or circumstances of the parties or overt

acts on the part of the co-conspirators.”      Id.   The factors pertinent to

establishing the existence of a conspiracy include, but are not limited to,

“the relationship between the parties, the knowledge of and participation in

the crime, and the circumstances and conduct of the parties surrounding the

criminal episode.” Id.

      Herein, the evidence reveals that Harris and Appellant knew each

other since, as soon as Harris saw Appellant, Harris came down from the

porch and, without even speaking with Appellant, gave Appellant items. The

circumstantial evidence infers that those items were the packages of cocaine

that Appellant sold to CI-2. Specifically, CI-2 entered 3831 North 8th Street,

Appellant left two minutes later and traveled to Harris, Harris handed

Appellant items, Appellant promptly returned to 3831 North 8 th Street, and

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CI-2 soon exited that building with packets of cocaine.     Thus, both Harris

and Appellant actively participated in the PWID.       Harris engaged in two

apparent drug transactions after giving Appellant the cocaine.     When the

search warrants were executed, Appellant had no cocaine or money at 3831

North 8th Street, even though he sold cocaine therein on two prior occasions

to two different CIs and had many used and new Ziploc baggies of various

colors in his possession. On the other hand, Harris had numerous packets

of cocaine at 3909 Percy Street. The conduct of Harris and Appellant, as well

as the location of the cocaine discovered when the warrants were executed,

support the factfinder’s conclusion that Harris and Appellant were engaged in

a drug trafficking enterprise together and that Harris supplied Appellant with

the cocaine that Appellant was selling.

      Appellant suggests that Commonwealth v. Derr, 462 A.2d 208 (Pa.

1983), mandates reversal of his conspiracy conviction.      In that case, the

defendant agreed to sell hashish to an undercover narcotics agent for

$1,100. The undercover officer and the defendant drove to the residence of

Eugene Szoka. After they arrived, the defendant took the money from the

agent, went inside, purchased hashish from Szoka, and, upon returning to

the car, gave the hashish to the undercover officer.

      Our Supreme Court reversed the defendant’s conspiracy conviction on

the basis that there was no proof that Szoka was aware of the agreement

between the defendant and the undercover agent for the purchase of the

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hashish.   It viewed the selling of the hashish by the defendant to the

undercover agent as an independent transaction from the defendant’s act of

buying the hashish from Szoka.     Under the outlined facts, our Supreme

Court refused to impute any knowledge to Szoka that the hashish in

question would be sold pursuant to the separate arrangement between the

defendant and the undercover agent. It thus found no agreement between

the defendant and Szoka to sell the drug to another person.

     The facts in the present case are clearly distinguishable from those

analyzed by the Derr Court. CI-2 asked to purchase cocaine from Appellant

while they were located at 3831 North 9th Street. Appellant immediately left

and walked two and one-half blocks away to Harris. Harris and Appellant did

not even speak to one another. Rather, once Harris saw Appellant, Harris

immediately exited his porch and gave Appellant small items. Significantly,

Appellant did not buy the drugs from Harris in that Appellant did not give

cash to him. Officer Buitrago reported that Harris merely handed the objects

to Appellant, who put the items in his pocket and promptly returned to North

8th Street to sell them to CI-2. Thereafter, Harris engaged in what appeared

to be two drug sales of his own. On the same day that Harris was found in

possession of numerous packets of cocaine, Appellant had none in his

possession despite the fact that he was engaged in selling cocaine from 3831

North 8th Street.    The proof adduced herein supports the factfinder’s




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conclusion that the evidence was sufficient to prove beyond a reasonable

doubt that Harris and Appellant agreed to engage in cocaine sales together.

      The facts in Commonwealth v. Bostick, 958 A.2d 543 (Pa.Super.

2008), are analogous to those in the present case. Therein, police observed

the defendant exit 3018 North 8th Street, Philadelphia, and approach a man,

whom police were never able to identify.       The defendant immediately

handed objects to the unknown male, who had just engaged in a drug

transaction with a buyer found in possession of packets of heroin/fentanyl

stamped “High class the best.” Id. at 561.        Police then watched the

defendant, while standing next to this man, sell drugs twice. Those drugs

were similarly-stamped packets of heroin/fentanyl.   Before and after each

transaction, the defendant would enter 3018 North 8th Street. Police found

drugs and cash in 3018 North 8th Street, which was occupied by several

individuals.   We concluded that this proof was sufficient to establish the

existence of a conspiracy.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/2016


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