J-A05017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

TERRELL MOTEN

                            Appellant                  No. 1057 EDA 2015


             Appeal from the Judgment of Sentence March 9, 2015
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009285-2011


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

MEMORANDUM BY OTT, J.:                                  FILED APRIL 07, 2016

        Terrell Moten brings this appeal from the judgment of sentence

imposed on March 9, 2015, in the Court of Common Pleas of Philadelphia

County. A jury found Moten guilty of criminal conspiracy, but deadlocked on

the underlying charge of possession with intent to deliver (PWID). The trial

court sentenced Moten to 18 to 36 months’ incarceration, followed by three

years’ probation on the conspiracy charge. The trial court’s sentencing order

also granted the Commonwealth’s motion for nolle prosequi on the charge of

simple possession, and declared a “mistrial hung jury” on the PWID charge.

Order of Sentence, 3/9/2015.              Moten contends (1) the evidence was

insufficient to convict him of conspiracy to distribute a controlled substance,
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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and (2) the trial court erred in sentencing Moten for criminal conspiracy

based upon a specific amount of crack cocaine, where the jury deadlocked

on the PWID charge and made no finding that Moten possessed or conspired

to distribute any amount of crack cocaine.       Based upon the following, we

affirm.

        We adopt the trial court’s factual summary, which we have amended

based upon the trial record, as follows:

        The trial testimony established that at approximately 5:20 p.m.
        on April 8, 2011, Police Officers William Phillips and Leonard
        Wright set up surveillance on the 200 block of Seymour Street in
        Philadelphia. The officers observed a juvenile standing on the
        100 block of Seymour when he was approached by a female.
        These two engaged in a brief conversation after which the
        juvenile walked to the southwest corner of Seymour and Knox.
        The young man proceeded to the alleyway behind the corner
        house and was out of the officer’s view for approximately sixty
        seconds. The juvenile returned and handed small objects to the
        woman in exchange for currency. The woman left the area but
        the police were not able to stop her.

        A couple of minutes passed and the juvenile got into the
        passenger side of a burgundy Cadillac parked on the corner.
        [The juvenile left the car at 6 o’clock and stood outside again.1]
        A short while later, [at 6:15 p.m.2] a male, later identified as
        Terrence Thompson, approached the driver’s window of the
        Cadillac, and had a brief conversation with the defendant driver
        [Moten]. [Moten] then exited the vehicle and proceeded to the
        same alleyway the juvenile had previously entered. Likewise,
        Moten was out of the officer’s sight for about a minute. [Moten]
        returned and exchanged small objects for currency with Mr.
____________________________________________


1
    Id. at 41.
2
    Id. at 154.



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        Thompson, who then left the area. Thompson was stopped
        around the corner and recovered from his person was one clear
        vile with an orange top containing [83 milligrams (.083)3] of
        crack cocaine. Moten then returned to the Cadillac.

        [Moten] and the juvenile [sat4] in the vehicle for a while [after5]
        another vehicle pulled alongside and gave [Moten’s] Cadillac a
        jump start and left the area. The juvenile exited [Moten’s]
        vehicle and stood on the same corner that he had previously
        been standing. [Moten] started to leave the area when he was
        stopped at the intersection of Green and Queen Lanes. Officers
        recovered 2.567 grams of crack cocaine from the alleyway that
        both the juvenile and [Moten] had been observed frequenting.
        Five hundred ninety-nine dollars was subsequently recovered
        from the defendant as well as one hundred fifty one dollars from
        the juvenile.

Trial Court Opinion, 7/1/2015, at 3–4 (record citations omitted).

        Moten was convicted and sentenced as set forth above. The trial court

thereafter denied Moten’s motion for reconsideration of sentence, and this

appeal followed.6

        Moten first contends the evidence was insufficient to convict him of

conspiracy of possession to distribute crack cocaine.        Specifically, Moten

argues that “the Notes of Testimony do not reflect ‘unity of purpose or

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3
    N.T., 5/21/2014, at 54; Commonwealth Exhibit C-14.
4
  Id. at 61 (“[A]fter the vehicle was – after they got maintenance on the
vehicle, the vehicle was jumped, [the juvenile], actually did go back and sit
in the vehicle for approximately – for a couple of minutes.”).
5
    Id. at 61.
6
  Moten timely complied with the order of the trial court to file a statement
of errors complained of pursuant to Pa.R.A.P. 1925(b).



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action’ between Moten and his alleged juvenile co-conspirator[.]”           See

Moten’s Brief at 18.

       The Commonwealth takes the position that this issue is waived

because Moten filed a deficient Pa.R.A.P. 1925(b) statement that did not

sufficiently identify this issue.

       Here, Moten filed a concise statement in which the first ten paragraphs

were preceded by the heading, “Procedural and Factual Background.” The

following ten paragraphs, Paragraphs 11 to 21, were preceded by the

heading, “Matters Complained of on Appeal,” and the following sub-heading:

       A. The Trial Court erred by sentencing Moten for conspiracy to
          distribute a specific amount of crack cocaine, where the jury
          deadlocked on the PWID charge that had been filed against
          Moten, his co-conspirator was acquitted of PWID and
          conspiracy, and the jury made no finding that Moten
          conspired to distribute any specific amount of crack cocaine.

Moten’s Pa.R.A.P. 1925(b) Statement, 4/22/2015, at 3. In Paragraph 19,

Moten alleged:

       In the absence of: (i) a conviction of Moten for PWID; (ii) a
       conviction of his co-conspirator, B.J.A., of either PWID or
       Conspiracy;[7] and/or (iii) a factual finding by the jury that the
       object of the conspiracy of which Moten was convicted was to
       distribute 3.3 grams of crack cocaine, or any lesser amount
____________________________________________


7
  Contrary to Moten’s position in his Pa.R.A.P. 1925(b) statement, we note
that “the express language of the [conspiracy] statute [18 Pa.C.S. § 903]
does not require that an alleged co-conspirator be charged or convicted of
the conspiracy. Moreover, our Courts have held that the acquittal of a
defendant’s sole alleged co-conspirator does not preclude prosecution and
conviction of that defendant on a conspiracy.” Commonwealth v. Fremd,
860 A.2d 515, 521 (Pa. Super. 2004).



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      above zero, the evidence was insufficient for the jury to convict
      Moten of Criminal Conspiracy.         See Commonwealth v.
      Pappas, 845 A.2d 829, 835–36 (Pa. Super. 2004) (“The
      standard we apply in reviewing the sufficiency of the evidence is
      whether viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact-finder to find every element of the crime
      beyond a reasonable doubt.”).

Id. at ¶19 (underlining in original).

      We note the trial court did not address Moten’s sufficiency issue in its

Rule 1925(a) opinion, and find no fault with the trial court in light of the fact

that Paragraph 19 was stated beneath Moten’s sub-heading indicating he

was challenging the trial court’s error in “sentencing Moten for conspiracy to

distribute a specific amount of cocaine[.]”     However, to the extent Moten

worded Paragraph 19 in terms of sufficiency of the evidence, included case

citation regarding the standard of review for sufficiency of the evidence, and

identified the requested relief as discharge of Moten, or in the alternative,

resentencing, see ¶¶20–21, we decline to find waiver.

      “A claim challenging the sufficiency of the evidence is a question of

law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

      The standard we apply in reviewing the sufficiency of evidence is
      whether, viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact finder to find every element of the crime
      beyond a reasonable doubt. In applying the above test, we may
      not weigh the evidence and substitute its judgment for that of
      the fact-finder. The facts and circumstances established by the
      Commonwealth need not preclude every possibility of innocence.
      Any doubts regarding a defendant’s guilt may be resolved by the
      fact-finder unless the evidence is so weak and inconclusive that
      as a matter of law no probability of fact may be drawn from the

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     combined circumstances. The Commonwealth may sustain its
     burden of proving every element of the crime beyond a
     reasonable doubt by means of wholly circumstantial evidence.
     The entire record must be evaluated and all evidence actually
     received must be considered. The trier of fact while passing upon
     the credibility of witnesses and the weight of the evidence
     produced, is free to believe all, part or none of the evidence.

Commonwealth v. Ratsamy, 934 A.2d 1235-36, 1237 (Pa. 2007)

(citations and quotation marks omitted).

     The Pennsylvania Crimes Code defines conspiracy as follows:

     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. § 903(a).

     Moten states that “[t]o sustain a conviction of 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 done in

furtherance   of   the   conspiracy.”         Moten’s   Brief   at   16–17,   citing

Commonwealth v. Bricker, 882 A.2d 1008, 1016 (Pa. Super. 2005).

Moten continues:    “The primary element of criminal conspiracy is an illicit

agreement, and the Commonwealth had the burden to prove, beyond a

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reasonable doubt, that Moten was ‘part of an agreement in furtherance of

criminal activity.’” Moten’s Brief at 17, citing Commonwealth v. Ocasio,

619 A.2d 352, 355 (Pa. Super. 1993).

      Moten relies on Commonwealth v. Lamb, 455 A.2d 678, 685 (Pa.

Super. 1983), wherein “this Court observed that ‘a mere association

between several alleged co-conspirators or their mere presence at the scene

of the crime is not enough to establish that there has been a criminal

conspiracy.’” Moten’s Brief at 17. Moten cites Commonwealth v. Pitman,

393 A.2d 759, 761 (Pa. Super. 1978) for the principle that “evidence

sufficient to prove a criminal conspiracy must show ‘unity of purpose or

action.’”   Moten’s Brief, at 17.   According to Moten, the Commonwealth

failed to show a “unity of purpose or action” between himself and the

juvenile. Moten maintains:

      The evidence in this case can be accurately summarized as
      follows: Police Officers see a teenager, B.J.A., engage in a
      suspected drug deal in Germantown, but his customer
      disappears and the teenager gets in Moten’s car, out of the rain.
      Forty-five minutes later, Moten engages in a suspected drug
      deal, where the customer, Terrence Thompson, is later
      apprehended with a vial of crack in his coat pocket. Moten took
      no visible part in the teenager’s suspected deal, and 45 minutes
      later, the teenager took no part in Moten’s suspected deal. As
      for the sandwich bag filled with 35 vials of crack that Officer
      Toland recovered from the alley behind the corner house, there
      was no testimony as to who put it there, and no officer was able
      to observe what B.J.A. or Moten did in the back alley. … Two
      suspected transactions, separate in time and participants and
      without evidence of concerted action, do not add up to a
      conspiracy.

Moten’s Brief at 19–20. We find no merit in this argument.

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     Recently, we stated:

     As to the sufficiency of evidence offered to prove conspiracy, this
     Court has observed:

         [c]ircumstantial 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. Additionally:

           An agreement can be inferred from a variety of
           circumstances including, but not limited to, the
           relation between the parties, knowledge of and
           participation in the crime, and the circumstances and
           conduct of the parties surrounding the criminal
           episode. These factors may coalesce to establish a
           conspiratorial agreement beyond a reasonable doubt
           where one factor alone might fail.

Commonwealth v. Irvin, ___ A.3d ___, ___ [2016 PA Super 27] (Pa.

Super. 2016) (citations omitted).   Here, viewing the evidence in the light

most favorable to the Commonwealth as verdict winner, we conclude the

evidence was sufficient to establish the conspiracy charge.

     The transactions by the juvenile and Moten occurred in the presence of

each other, at the same place, within approximately 45 minutes.       In each

instance, the juvenile and Moten, after being approached by an individual,

left and entered the same alleyway, returned within about a minute, and

handed over objects in exchange for currency.           After the juvenile’s

transaction, and after Moten’s transaction, the juvenile sat with Moten in

Moten’s vehicle. Furthermore, a single clear sandwich bag, filled with 35




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vials of crack cocaine (26 of which matched the vial recovered from Moten’s

buyer) was recovered from the alleyway.8 On this record, we find there was

sufficient circumstantial evidence to prove an agreement between Moten and

the juvenile to coordinate the distribution of the crack cocaine.

       In his second issue, Moten argues the court erred in sentencing him

for conspiracy to commit PWID based upon the weight of the cocaine, where

the jury deadlocked on the PWID charge and made no finding that Moten

possessed or conspired to distribute any amount of cocaine.9 In this appeal,

Moten claims the sentencing court erred by using an offense gravity score

(OGS) of “7” in applying the sentencing guidelines.10     He maintains “there

was essentially no OGS for the lower court to apply.” Moten’s Brief at 22.



____________________________________________


8
  See N.T., 5/20/2014, at 71–72, 188; N.T., 5/21/2014, at 13–24. The
clear vial with crack cocaine recovered from Moten’s buyer had an orange
cap; of the clear vials containing crack cocaine that were found in the plastic
bag in the alleyway, 26 had orange caps and 9 had yellow caps.
9
  We note this case does not involve a violation of the rule against judicially
imposed mandatory minimum sentences set forth in Alleyne v. United
States, 133 S. Ct. 2151 (2013). Here, the sentence was imposed pursuant
to advisory, rather than mandatory, guidelines; therefore, the Sixth
Amendment is not implicated. See United States v. Booker, 543 U.S. 220
(2005).
10
   With an OGS of “7”, and Moten’s prior record score (PRS) of “2”, the
standard range for PWID (2.5 <10 gms) is 12 to 18 months, plus or minus 6
months. N.T., 3/9/2015, at 6. The trial court sentenced Moten to 18 to 36
months, plus three years’ probation. Id. at 17.




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        A claim of improper calculation of offense gravity score implicates the

discretionary aspects of sentencing. Commonwealth v. Archer, 722 A.2d

203, 210–211 (Pa. Super. 1998) (en banc).

        The Commonwealth, in its brief, takes the position that Moten did not

preserve the claim he now raises on appeal — i.e., that there is no OGS for

the trial court to apply — because in his motion to reconsider sentence

Moten only claimed that the OGS “should have been calculated as a 5.” See

Commonwealth’s Brief at 12–13; Moten’s Motion to Reconsider Sentence,

3/13/2015, at ¶3.        In addition, the Commonwealth contends Moten has

waived his claim because he failed to include a Rule 2119(f) statement in his

brief.11   See Commonwealth’s Brief at 13–14.       We need not address the

Commonwealth’s position that the claim was not preserved in Moten’s

motion to reconsider sentence, since we agree with the Commonwealth that




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11
     Rule 2119(f) provides:

        An appellant who challenges the discretionary aspects of a
        sentence in a criminal matter shall set forth in a separate
        section of the brief a concise statement of the reasons relied
        upon for allowance of appeal with respect to the discretionary
        aspects of a sentence. The statement shall immediately precede
        the argument on the merits with respect to the discretionary
        aspects of the sentence.

Pa.R.A.P. 2119(f) (emphasis supplied).




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we are precluded from addressing the discretionary aspects claim due to the

lack of a Rule 2119(f) statement. 12

       “When challenging the discretionary aspects of a sentence, an

appellant must invoke the appellate court’s jurisdiction by including in his

brief a separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code.” Commonwealth v. McNear, 852 A.2d 401, 407 (Pa. Super. 2004)

(citations omitted); see also Pa.R.A.P. 2119(f).     “If a defendant fails to

include an issue in his Rule 2119(f) statement, and the Commonwealth

objects, then the issue is waived and this Court may not review the claim.”

Commonwealth v. Karns, 50 A.3d 158, 166 (Pa. Super. 2012) (citation

omitted).

       Here, given the Commonwealth’s objection to the absence of the Rule

2119(f) statement, we may not review the claim. 13       See id.    See also

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12
   We reject Moten’s argument in his reply brief that his claim implicates the
legality of his sentence in that the sentence imposed by the trial court
exceeded the mandatory minimum sentence for drug offenses provided in 18
Pa.C.S. § 7805, which was held unconstitutional in Commonwealth v.
Mosley, 114 A.3d 1072 (Pa. Super. 2015). See Moten’s Reply Brief at 5–6.
As we have noted, the sentence under appeal was not imposed pursuant to
a mandatory minimum statute, but rather the trial court applied the
sentencing guidelines. As such, Moten’s claim implicates the discretionary
aspects of sentencing, thereby necessitating a Rule 2119(f) statement.
13
  Moten’s argument in his reply brief that this Court can overlook his failure
to include in his brief a concise statement of reasons relied upon in
challenging discretionary aspects of sentencing fails in light of the
(Footnote Continued Next Page)


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Commonwealth v. Batts, 125 A.3d 43–44 (Pa. Super. 2015), citing Karns,

supra; Commonwealth v. Dawson, ___ A. 3d ___ [2015 PA Super 256]

(Pa. Super. 2015) (denying appellant’s petition for permission to appeal the

discretionary   aspects      of   her   sentence,   where   Commonwealth   lodged

objection to appellant’s failure to include a Rule 2119(f) statement in her

brief).   Accordingly, Moten’s discretionary aspects of sentencing claim is

waived.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2016




                       _______________________
(Footnote Continued)

Commonwealth’s objection. See Commonwealth v. Krum, 533 A.2d 134,
138 (Pa. Super. 1987) (when objection has not been made by the appellee,
“failure to comply with Rule 2119(f) may be overlooked.”) (emphasis
added).



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