J-A24033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH WESLEY                              :
                                               :
                       Appellant               :   No. 3084 EDA 2018

      Appeal from the Judgment of Sentence Entered September 18, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0001606-2017


BEFORE:      BENDER, P.J.E., DUBOW, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                           FILED DECEMBER 12, 2019

        Appellant, Joseph Wesley, appeals from the judgment of sentence

imposed for his convictions, following a stipulated bench trial, of illegal sale or

transfer of firearms, conspiracy to commit the illegal sale or transfer of

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

possession of a controlled substance.1 We affirm.

        The trial court summarized the factual background of this case as

follows:

        On April 14, 2016, authorities met with a then confidential
        informant named Danielle Miller who informed them that
        [Appellant] had contacted her through text messages with respect
        to assault rifles he wished to sell. On April 15, 2016, authorities
        utilized Ms. Miller to effectuate a controlled purchase of these rifles
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 6111(c), 903(a), 35 P.S. § 780-113(a)(30) and (16),
respectively.
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      and supplied Ms. Miller with $3,500 in prerecorded buy money and
      a recording device. Authorities also set up video surveillance near
      Ms. Miller and [Appellant’s] designated meeting spot at Holland
      Avenue in Ardmore, Pa. At the initial stages of the transaction,
      [Appellant] had an interaction with an individual later identified to
      be Jasper Oliver. [Appellant] asked Mr. Oliver where the guns
      were and he responded that they were inside the residence [on]
      Holland Avenue. [Appellant] subsequently entered this residence
      with Ms. Miller and completed the transaction. Following the
      transaction, authorities confirmed the weapons Ms. Miller had
      purchased from [Appellant] were two assault rifles.

      On June 14, 2016, Danielle Miller informed authorities that she
      had received a text message from [Appellant] containing a picture
      of a semi-automatic rifle. The authorities instructed her to ask
      [Appellant] how much the gun would cost and he replied $2,500.
      On June 15, 2016, Ms. Miller met with [Appellant] to discuss the
      purchase of the rifle. On June 20, 2016, Ms. Miller received
      another text message offering the semi-automatic rifle for sale
      and a nine millimeter semi-automatic pistol for $2,700 total. Ms.
      Miller met with [Appellant] later that day and he discussed the
      purchase of the guns in addition to a half ounce of cocaine. On
      June 28, 2016, [Appellant] again contacted Ms. Miller via text
      message and offered to sell her the previously referenced guns.
      One of the text messages contained a picture of the nine
      millimeter semiautomatic pistol. The message itself emanated
      from the number 215-680-7461, which was later revealed to
      belong to Jasper Oliver. Later that day, authorities utilized Ms.
      Miller to effectuate a controlled purchase of these items and
      supplied her with $3,300 in prerecorded buy money and a
      recording device. The authorities also set up surveillance near Ms.
      Miller and [Appellant’s] designated meeting spot. Following the
      transaction, authorities confirmed [Appellant] had sold Ms. Miller
      a semi-automatic rifle, a Highpoint 9 millimeter semi-automatic
      pistol, and one clear bag containing two clear bags of cocaine.

Trial Court Opinion at 1-2.

      A criminal complaint was filed on October 13, 2016, and Appellant was

arrested in January 2017.      On June 13, 2018, Appellant proceeded to a

stipulated bench trial based on the facts set forth in the affidavit of probable

cause accompanying the criminal complaint and the laboratory report showing

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J-A24033-19



that the substance sold to Ms. Miller on June 15, 2016 was cocaine. On June

15, 2018, the trial court announced its verdict finding Appellant guilty of four

counts of illegal sale or transfer of firearms, three counts of conspiracy to

commit the illegal sale or transfer of firearms, and one count each of PWID

and possession of a controlled substance.2         N.T., 6/15/18, at 4-6; Order,

6/15/18. At the September 18, 2018 sentencing hearing, the Commonwealth

nolle prossed three of the illegal sale or transfer of firearms counts and two of

the conspiracy counts of which he was convicted; the nolle prossed counts

pertained to Appellant’s sale of rifles to Miller, and therefore the remaining

illegal sale or transfer of firearms and conspiracy convictions related solely to

the semi-automatic pistol Appellant sold to Ms. Miller on June 28, 2016.3 N.T.,

9/18/18, at 4-5, 16; Sentencing Order, 9/18/18. The trial court imposed an

aggregate sentence of 51 to 102 months of confinement followed by four years




____________________________________________


2Appellant was found not guilty of four counts of persons not to possess, use,
manufacture, control, sell, or transfer firearms, 18, Pa.C.S. § 6105(a)(1),
seven counts of conspiracy, two counts of possession of a firearm with altered
manufacturer’s number, 18 Pa.C.S. § 6110.2(a), one count of use or
possession of drug paraphernalia, 35 P.S. § 780-113(a)(32), and four counts
of criminal use of a communications facility, 18 Pa.C.S. § 7512(a).
3 Though not reflected in the record, the trial court explained in its Pa.R.A.P.
1925(a) opinion that the Commonwealth nolle prossed the convictions relating
to Appellant’s sale of rifles to Ms. Miller because the length of the rifles at issue
excluded them from the illegal sale or transfer of firearms statute. Trial Court
Opinion at 3; see 18 Pa.C.S. § 6111(f)(2).



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of probation. N.T., 9/18/18, at 30; Sentencing Order, 9/18/18. Appellant

filed a timely appeal of the judgment of sentence.4

       On appeal, Appellant raises the following issue:

       Whether the evidence was insufficient to sustain a conviction of
       conspiracy to commit the crime of Firearm Ownership–Duty of
       Other Persons, 18 Pa.C.S. [§] 903[,] inasmuch as there was
       insufficient evidence that [Appellant] agreed with another person
       to commit the crime.

Appellant’s Brief at 4.

       Before reaching the merits of this issue, we must address the

Commonwealth’s argument that Appellant’s appellate issue was waived

because he did not identify the specific elements that he was challenging in

his concise statement of errors filed pursuant to Rule of Appellate Procedure

1925(b).     This Court has held that “[i]n order to preserve a challenge to

the sufficiency of the evidence on appeal, an appellant’s [Rule] 1925(b)

statement must state with specificity the element or elements upon which the

appellant alleges that the evidence was insufficient.”    Commonwealth v.

Ellison, 213 A.3d 312, 320–21 (Pa. Super. 2019) (quoting Commonwealth

v. Stiles, 143 A.3d 968, 982 (Pa. Super. 2016)); see also Pa.R.A.P.

1925(b)(4)(ii) (“The Statement shall concisely identify each ruling or error

that the appellant intends to challenge with sufficient detail to identify all

pertinent issues for the judge.”). In addition, this Court has noted that the

____________________________________________


4Appellant filed his concise statement of errors complained of on appeal on
November 9, 2018, and the trial court filed its Pa.R.A.P. 1925(a) opinion on
November 14, 2019.

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fact that the trial court addressed the issue in a Rule 1925(a) opinion is “of no

moment to our analysis because we apply [Rule] 1925(b) in a predictable,

uniform fashion, not in a selective manner dependent on . . . a trial court’s

choice to address an unpreserved claim.” Commonwealth v. Tyack, 128

A.3d 254, 261 (Pa. Super. 2015) (quoting Commonwealth v. Williams, 959

A.2d 1252, 1257 (Pa. Super. 2008)).

      However, in Commonwealth v. Laboy, 936 A.2d 1058 (Pa. 2007) (per

curiam), our Supreme Court explained that waiver is not always required in

cases where the appellant presents broad sufficiency of the evidence claims

in a Rule 1925(b) statement. In that case, the appellant was charged with

several drug trafficking offenses related to allegations that he acted as a

lookout and money handler in connection with drug sales, and he asserted in

his Rule 1925(b) statement only that the “[e]vidence [as to his convictions]

was insufficient.”   Id. at 1058.     Though the trial court addressed the

arguments in its Rule 1925(a) opinion, this Court concluded that the claims

were waived based on an insufficiently specific Rule 1925(b) statement. Id.

at 1058-59. The Supreme Court disagreed, stating that

      [i]n the present, relatively straightforward drug case, the
      evidentiary presentation spans a mere thirty pages of transcript.
      It may be possible in more complex criminal matters that the
      common pleas court may require a more detailed statement to
      address the basis for a sufficiency challenge. Here, however, the
      common pleas court readily apprehended [the a]ppellant’s claim
      and addressed it in substantial detail.

Id. at 1060. The Court therefore reversed this Court’s decision and remanded

for a review of the sufficiency of the evidence claim.          Id.; see also

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Commonwealth v. Smyser, 195 A.3d 912, 916 (Pa. Super. 2018) (declining

to find waiver for boilerplate Rule 1925(b) statement of sufficiency challenges

pursuant to Laboy where issue pertaining to convictions was “a question of

law that the trial court readily apprehended”).

        Presently, Appellant’s Rule 1925(b) statement contained the following

issue: “[t]he evidence was insufficient to convict [Appellant] for conspiracy

to commit the crime of Firearm Ownership–Duty of Other Persons, Count XIII

of the Criminal Information.” Rule 1925(b) Statement, 11/9/18. The trial

court did not find waiver based on the Rule 1925(b) statement and addressed

Appellant’s challenge to the sufficiency of his conspiracy conviction, focusing

its analysis on whether Appellant entered into a conspiratorial agreement with

Oliver, the issue Appellant raises in his appellate brief. See Trial Court Opinion

at 3-8. We further observe that, as in Laboy, the factual history of this case

involved a straightforward sale of firearms and cocaine to a confidential

informant, and the stipulated evidentiary record is confined to the affidavit of

probable cause and a lab report. Therefore, we decline to find that Appellant

waived his sufficiency of the evidence challenge. See Laboy, 936 A.2d at

1060.

        Turning to the merits of this appeal,

        [w]hen reviewing the sufficiency of the evidence, we must
        determine whether the evidence admitted at trial and all
        reasonable inferences drawn therefrom, viewed in the light most
        favorable to the Commonwealth as verdict winner, were sufficient
        to prove every element of the offense beyond a reasonable doubt.
        The facts and circumstances established by the Commonwealth
        need not preclude every possibility of innocence. It is within the

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J-A24033-19


      province of the fact-finder to determine the weight to be accorded
      to each witness’s testimony and to believe all, part, or none of the
      evidence. The Commonwealth may sustain its burden of proving
      every element of the crime by means of wholly circumstantial
      evidence. As an appellate court, we may not re-weigh the
      evidence and substitute our judgment for that of the fact-finder.

Commonwealth v. Hill, 210 A.3d 1104, 1112 (Pa. Super. 2019) (citations,

quotation marks, and brackets omitted).

      Section 903 of the Crimes Code provides as follows:

      (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.

      ...

      (e) Overt act.--No person may be convicted of conspiracy to
      commit a crime unless an overt act in pursuance of such
      conspiracy is alleged and proved to have been done by him or by
      a person with whom he conspired.

18 Pa.C.S. § 903(a), (e).

      To sustain a conviction for criminal conspiracy, “the Commonwealth

must establish that 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.”   Commonwealth v. Fisher, 80 A.3d 1186, 1190 (Pa. 2013)

(citation omitted).

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        [T]he 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.

Commonwealth v. Johnson, 180 A.3d 474, 479 (Pa. Super. 2018) (citation

omitted).

        Appellant concedes that “[t]here is no question that [he] was guilty of”

the underlying illegal sale or transfer of firearms offense when he sold a

handgun to Danielle Miller on June 28, 2016.5           Appellant’s Brief at 12.

Appellant argues, however, that the evidence failed to establish beyond a

reasonable doubt that he entered into an agreement with Jasper Oliver to sell

the semi-automatic pistol to Miller because Oliver was not present when the

sale was consummated and there was no evidence that Oliver owned the


____________________________________________


5   Pursuant to Section 6111(c) of the Crimes Code:
     Any person who is not a licensed importer, manufacturer or dealer and
     who desires to sell or transfer a firearm to another unlicensed person
     shall do so only upon the place of business of a licensed importer,
     manufacturer, dealer or county sheriff’s office, the latter of whom shall
     follow the procedure set forth in this section as if he were the seller of
     the firearm.
18 Pa.C.S. § 6111(c).

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pistol, received proceeds from the sale, or was even aware of the sale of the

pistol to Miller.

      According to the affidavit of probable cause attached to the criminal

complaint – which Appellant stipulated to at his non-jury trial – Appellant’s

first sale of firearms to Miller occurred at Oliver’s residence in Ardmore,

Pennsylvania on April 15, 2016. Affidavit of Probable Cause, 10/13/16, at 1-

4, 14, 16.      As Miller and Appellant were approaching the residence to

consummate the sale, Appellant asked Oliver, who was standing by the

entrance, where the guns were, and Oliver responded that they were on the

couch inside the house. Id. at 4, 16. Furthermore, on June 28, 2016 as

Appellant and Miller were negotiating via text message the sale of the semi-

automatic pistol that forms the basis of the conviction challenged here,

Appellant forwarded Miller an image of the pistol that had been sent to

Appellant from the phone number 215-680-7431. Id. at 8. When Oliver was

later arrested on an unrelated charge, Oliver identified 215-680-7431 as his

phone number, which the authorities confirmed through a public records

search. Id. at 14-15.

      Viewed in the light most favorable to the Commonwealth as verdict

winner, this evidence was sufficient to establish beyond a reasonable doubt

that Appellant entered into a conspiratorial agreement with Oliver to sell the

semi-automatic pistol to Miller. See Hill, 210 A.3d at 1112. The evidence

demonstrates that Appellant and Oliver had direct communication regarding

the underlying unlawful sale of the pistol when Oliver sent the photograph of

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J-A24033-19



the pistol to Appellant that Appellant then forwarded to Miller.            This

communication regarding the pistol, particularly in light of the fact that the

prior sale of firearms to Miller occurred in Oliver’s home with Oliver present,

allowed for the trial court as fact-finder to reasonably infer that Appellant and

Oliver cooperated in the sale of the pistol with a shared criminal intent. While,

as Appellant maintains, Oliver was not present at the June 28, 2016

transaction and no evidence was presented that he profited from the sale of

the pistol, proof of an explicit or formal criminal agreement is not required and

instead the fact-finder may infer the existence of the agreement from the

attendant circumstances.      See Johnson, 180 A.3d at 479.         Accordingly,

Appellant is not entitled to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/19




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