J-S21016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

DONNIE RUDOLPH

                             Appellant                 No. 672 EDA 2014


           Appeal from the Judgment of Sentence February 20, 2014
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0005455-2011


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                             FILED APRIL 27, 2015

        Donnie Rudolph (“Appellant”) appeals the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his

conviction for possession of a controlled substance with intent to deliver,1

and conspiracy to deliver a controlled substance.2 We affirm.

        The trial court set forth the procedural posture of this matter as

follows:

               On December 9, 2013, in a jury trial [], [Appellant] was
        tried in absentia and found guilty of [p]ossession with [i]ntent to
        [d]eliver a [c]ontrolled [s]ubstance, crack cocaine, and
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S. § 903.
J-S21016-15


     [c]riminal [c]onspiracy to [d]eliver [c]rack [c]ocaine.       On
     February 4, 2014, this [c]ourt sentenced the Appellant to forty-
     two (42) to one-hundred and twenty (120) months of
     incarceration for [p]ossession with [i]ntent to [d]eliver a
     controlled substance and a consecutive thirty-three (33) to
     ninety (90) months of incarceration for [c]onspiracy to [d]eliver
     a controlled substance. The Appellant was also sentenced to a
     consecutive three (3) to six (6) months of incarceration for
     contempt of court for failing to appear for trial. In total, this
     [c]ourt sentenced Appellant to seventy-eight (78) to two-
     hundred and sixteen (216) months of incarceration.

            On February 7, 2014, [trial counsel] filed a Motion for
     Reconsideration of Sentence on behalf of Appellant, which this
     [c]ourt denied on February 20, 2014. On February 25, 2014,
     [trial counsel] filed a timely Notice of Appeal. On March 4, 2014,
     this [c]ourt ordered the Appellant to file a Statement of Errors
     Complained [of] on Appeal pursuant to Pa.R.A.P. 1925(b) within
     twenty-one (21) days. [Trial counsel] subsequently withdrew
     from representation of the Appellant. On April 4, 2011, this
     [c]ourt appointed [appellate counsel] to represent the Appellant
     for his appeal. On May 16, 2014, [appellate counsel], on behalf
     of the Appellant, filed a Statement of Errors Complained of on
     Appeal[.]

Trial Court Pa.R.A.P. 1925(a) Opinion, field October 21, 2014, pp. 1-2

(footnote omitted).

     Appellant raises the following issues for our review:

     I. Is the [A]ppellant entitled to a new sentenc[ing] hearing
     because the sentence imposed by the trial court of 6 years, 3
     months to 17 years, 5 months in prison is unreasonable?

     II. Did the trial court err in trying the [A]ppellant in absentia
     because the Commonwealth did not prove by a preponderance of
     the evidence that [Appellant] willfully, voluntarily and without
     ca[u]se absented himself from the trial?

     III. Was the evidence insufficient to find the [A]ppellant guilty of
     [p]ossession of a controlled substance with intent to deliver
     because at most the evidence showed that the [A]ppellant was a
     purchaser of illegal drugs not a seller of illegal drugs?


                                    -2-
J-S21016-15


      IV. Was the evidence insufficient to find the [A]ppellant guilty of
      [c]onspiracy to distribute drugs because at most the evidence
      showed that the [A]ppellant was a purchaser of illegal drugs, but
      did not enter into an agreement to distribute or sell illegal drugs?

Appellant’s Brief, p. 2.

      Regarding Appellant’s discretionary aspects of sentencing claim, we

observe:

      [T]he proper standard of review when considering whether to
      affirm the sentencing court's determination is an abuse of
      discretion. ...[A]n abuse of discretion is more than a mere error
      of judgment; thus, a sentencing court will not have abused its
      discretion unless the record discloses that the judgment
      exercised was manifestly unreasonable, or the result of
      partiality, prejudice, bias or ill-will. In more expansive terms,
      our Court recently offered: 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.

      The rationale behind such broad discretion and the
      concomitantly deferential standard of appellate review is that the
      sentencing court is in the best position to determine the proper
      penalty for a particular offense based upon an evaluation of the
      individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-70 (Pa.Super.2010)

(internal citations omitted).

      Further, we note that “[c]hallenges to the discretionary aspects of

sentencing    do   not     entitle   a   petitioner   to   review   as   of   right.”

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011).                    Before

this Court can address such a discretionary challenge, an appellant must

comply with the following requirements:



                                         -3-
J-S21016-15


       An appellant challenging the discretionary aspects of his
       sentence must invoke this Court’s jurisdiction by satisfying a
       four-part test: (1) whether appellant has filed a timely notice of
       appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was
       properly preserved at sentencing or in a motion to reconsider
       and modify sentence, see Pa.R.Crim.P. [720]; (3) whether
       appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4)
       whether there is a substantial question that the sentence
       appealed from is not appropriate under the Sentencing Code.

Allen, 24 A.3d at 1064.

       Here, Appellant filed a timely notice of appeal, and preserved his

issues in a post-sentence motion.              Further, Appellant’s brief includes a

concise statement of the reasons relied upon for allowance of appeal

pursuant to Pa.R.A.P. 2119(f).            See Appellant’s Brief, p. 3.            Further,

Appellant    has    raised   a   substantial     question   for   our   review.       See

Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa.Super.2002) (holding a

“claim that the sentencing court imposed an unreasonable sentence by

sentencing outside the guideline ranges presents a ‘substantial question’ for

the Superior Court’s review.”).        Thus, we can properly address Appellant’s

sentencing claim on appeal.3




____________________________________________


3
  We acknowledge and appreciate the Commonwealth’s argument that
Appellant submitted a deficient Pa.R.A.P. 2119(f) statement.            See
Commonwealth’s Brief, pp. 7-8. However, since the 2119(f) statement
succeeds in articulating the substantial question of whether the trial court
sentenced in the aggravated range without providing adequate reasons
therefor, we will review the claim despite the deficiencies noted by the
Commonwealth.



                                           -4-
J-S21016-15



       We review discretionary aspects of sentence claims under the following

standard of review:

             If this Court grants appeal and reviews the sentence, the
       standard of review is well-settled: sentencing is vested in the
       discretion of the trial court, and will not be disturbed absent a
       manifest abuse of that discretion.        An abuse of discretion
       involves a sentence which was manifestly unreasonable, or
       which resulted from partiality, prejudice, bias or ill will. It is
       more than just an error in judgment.

       Commonwealth        v.    Malovich,     903    A.2d    1247,    1252-53

(Pa.Super.2006) (citations omitted).

       This Court reviews a trial court’s determination to proceed with a trial

in absentia for an abuse of discretion.      Commonwealth v. Wilson, 712

A.2d 735, 738 (Pa.1998). An appellant who claims the trial court improperly

tried him in absentia bears the burden of establishing that his absence was

with   cause.     Commonwealth       v.   Johnson,    764    A.2d   1094,    1097

(Pa.Super.2000).

       Additionally, when examining a challenge to the sufficiency of

evidence, our standard of review is as follows:

       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. In applying [the above] test,
       we may not weigh the evidence and substitute our judgment for
       the fact-finder. In addition, we note that 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 combined

                                      -5-
J-S21016-15


     circumstances. The Commonwealth may sustain its burden of
     proving every element of the crime beyond a reasonable doubt
     by means of wholly circumstantial evidence. Moreover, in
     applying the above test, the entire record must be evaluated and
     all evidence actually received must be considered. Finally, 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. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011).

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Chris R.

Wogan, we conclude Appellant’s issues merit no relief.          The trial court

opinion comprehensively discusses the pertinent law and facts, and properly

disposes of the questions presented.          (See Trial Court Opinion, dated

October 21, 2014, at 2-5, 7-21) (finding: (1) the court properly tried

Appellant in absentia where Appellant was a fugitive for 22 months and

failed to give any credible reason for failing to appear in court; (2) the

evidence was sufficient to convict Appellant of possession of a controlled

substance with intent to deliver and conspiracy to deliver a controlled

substance where the evidence illustrated police observed Appellant and a co-

defendant working together to conduct hand-to-hand drug sales on a street

corner; and (3) the court properly deviated from the sentencing guidelines

and imposed consecutive sentences on Appellant after reviewing the

presentence   investigation   report,    examining   the   aggravating   factors




                                        -6-
J-S21016-15



involved, and considering Appellant’s age, family history, and rehabilitative

needs). Accordingly, we affirm on the basis of the trial court’s opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/2015




                                     -7-
                                                                                           )   Circulated 03/31/2015 04:02 PM




               IN TSE COURT         or
                               COMMON PLEAS OF PH'ILADELPHIA COUNTY
                     FIRST JUDICIAL DISTRICT OF PENNSYLVANIA


    COMMONWEALTH        OF PENNSYLVANIA
                                                                               CP-51-CR-0005455-2011
                             CP-51-CR-0005455-2011 Comm. v. Rudolph, Oon~le
                                                 OpinK>n




                                  11111111111111Bii 111111                     SUPERIOR COURT
                                          7213236751                           672 EDA 2014
         DO~IE         RUDOLPH




                                                 OP        I.N.     l O.N                  FILED
    CHRIS R. WOGAN,        J.                                                              ocr2 1 2014
                                                            . Fi' . mm.a!Appea1s U .
                                                                                       Cri ·
                                           Procadural Posture lrSfJLJd/C/BI Q' f · n,f
                                           --------·-                        is net ofPA
         On December         9,    2013,         in a jury trial before The Honorable

    Chris R. Wogan,        the Appellant,                    Donnie Rudolph,              was tried in

    absentia     and found guilty of Possession                                  with Intent to Deiiver              a

    Controlled Substance,              crack cocaine,                         and Criminal Conspiracy           to

    Deliver Crack Cocaine.1                on February 4,                      2014,   this Court sentenced

    the Appellant        to forty-two (42)                     to one-hundred and twenty _(120)

months of incarceration                     for Possession                      with Intent    to Deliver a

controlled            substance      and a c6nsecutive thirty-three                                (33)   to

ninety         (90)   months of incircetation                           for Conspiracy         to Deliver        a

controlled            substance.         The Appellant was also sentenced to a

consecutive three (3) to six (6) months                                         of incarceration          for

contempt of court for failing                             to appear for triai.                  In total,


1The    defendant was represented by Dolores Bbjazi,                              Esq. at trial.

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this    Court       sentenced        the Appellant              to     seventy-eight             (78)     to two-

hundred       and sixteen           (216)     months          of incarceration.

        On February          7,     2014     Ms.    Bojazi          filed a Motion              for

Reconsideration             of Sentence            on behalf           of the        Appellant,         which

this    Court       denied     on February            20,      2014.          On February         25,     2014,

Ms.    Bojazi       filed    a timely         Notice          of Appeal.            On March      4,    2014,

this Court ordered                the Appellant               to file         a Statement         of Errors

Complained          on Appeal        pursuant        to       Pa.    R.A.P.         1925(b)      within

twenty-one          (21)    days.     Ms.     Bojazi          subsequently            withdrew         from

representation             of the     Appellant.              On April         4,    2011,      this    Court

appointed          John Cotter,        Esq.        to represent               the Appellant            for his

appeal.            On May 16,        2014,     Mr~     Cotter,          on behalf             of the

Appellant,          filed    a Statement            of Errors Complained                       of on Appeal,

listing       five appellate           issues.         No relief              is due.



                                                   Discussion

A. Appellant's first error complained of on appeal is: "The
trial court erred in trying the Appellant in absentia. The
Appellant did not voluntarily absent himself from trial. The
Appellant was not absent without cause froin his trial."


        This       Court did not err in trying                           the Appellant                in absentia

due     to        the   fact       that      the      Appellant               was     voluntarily             absent

without cause               from    his      trial.             Rule      602        of the       Pennsylvania

Rules        of     Criminal         Procedure            provides             that      "the         Appellant's

absence without              cause at the               time         scheduled           for     the start         of

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trial     or    during        trial    shall    not      preclude       proceeding          with    the

trial,    including           the return of the verdict and the imposition                            of

sentence."        Pa.    R.    Crim.    P 602.          Furthermore;         the Supreme Court

of    Pennsylvani~            has     held    that      "whert      a   defend~nt        is    absent

without        cause    at the time his trial                    is scheduled        to begin,        he

may be     tried        in absentia."           Com..     v ..    Sullens,     533    Pa.     99,   104

(1992).

        With the exception             of situations             in which the defendant is

prevented       from attending          the proceedings             for reasons beyond his

other control,            the defendant         is expected to be present at all

stages of trial.              Com. v. Wilson,           551 Pa. 593,         600   (1998).

Moreover, a "defendant                owes the court an affirmative                  duty to

advise    [the court]          if he or she will be absent" and "if a

defendant has a valid reason for failing to appear ... then the

defendant can alert the court personally                           or through counsel of

the problem."           Id.     In the case of Comm. v. Wilson, the Supreme

Court of Pennsylvania               upheld a lower court's decision to try a

defendant       in absentia when there was proof that the defendant

knew the date and time of the trial, and the defendant                                   had

attended court proceedings                   leading up to the commencement                    of the

trial.    Id. The court found those two f~cts to be sufficient to

show that the defendant                voluntarily        absented himself from trial.

Id.



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           The Appellant   was a fugitive   for approximately    twenty-two

    (22}   months and failed to give any credible      reason for failing

    to appear in court.2    He claimed that a "fire" prevented him from

    showing up for court for twenty-two months; however, this Court

    found this to be ridiculous. When the Court asked the Appellant

    for details regarding the fire, the Appellant was unable to

    identify when the fire took place or even give a location of

    where the supposed fire took place.       The Appellant went on

    further to bizarrely blame his lack of attendance on the

    authorities for failing to find him while he was a fugitive!

 N.T. 02/04/2014 pg. 9-12. Additionally, the Appellant was aware

 of his trial date and time, and the Appellant had attended

previously scheduled court prbceedings.3            Furthermore, the

Appellant argued he was unable to attend his court dates because

he was caring for his child, as if this served as an excuse for

missing court appearances.         Appellant also has an outstanding

warrant in Monmouth County, New Jersey for failure to pay court

ordered child support.

           This Court found the Appellant's continual failure to

appear, his knowledge of various trial dates, and his lack of

credible explanation for his absences showed that he voluntarily


2   The defendant failed to appear to twelve court dates from April 2012 through
  January 2014 .
. 3 The defendant was present in court for arraignment on June 1, 2011, and
  scheduling conferences on June 30, 2011, July 25, 2011, and September 20,
  2011 ..
                                        4
                                                                 Circulated 03/31/2015 04:02 PM




absented    him$elf withbut         c~use from his trial. Therefore,        this

Court    did not err       in trying   the Appellant   in absentia.



B. Appellant's second error complained of on appeal is: "The
Appellant was denied both his Federal and State Constitutional
Rights to be present at his trial. See Pa.. Const Art 1 sec. 9,                     s=
Amendment U.S. constitution."


        Neither the United States Constitution nor the Pennsylvania

Constitution prohibits this Court from trying the Appellant in

absentia.     Although a defendant has an absolute right under both

the 6th Amendment of the U.S.            Constitution and Art. I,     sec. 9 of

the Pennsylvania          Constitution   to be present at trial, this right

can be waived implicitly or explicitly by a defendant's own

actions.     Com. v.      Hill, 737 A.2d 255,     261 (Pa. Super. Ct. 1999).

A defendant's repeated absence without cause constitutes a

voluntary waiver of this right, and tryirtg such a defendant in

absentia does not offend the defendant's con$titutional rights.

Id.,    at 261.

        A defendant should not be allowed to avert an unfavorable

judgment by simply absconding from trial, "otherwise there could

be no conviction of any defendant unless he wished to be present

at the time the verdict is rendered."             Diaz v. United States,

223 U.S.    442,    223    (1912)   (quoting Barton v. State, 67 Ga.        653).

As a result,       the Supreme Court has long held that:



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      'where the offense is not capital and the accused is
     not in custody, the prevailing rule has been that if,
     after the trial has begun in his presence,
     he voluntarily absents himself, this does not nullify
     what has been done or prevent the completion of
     the trial, but, on the contrary, operates as a waiver
     of his right to be present and leaves the court free
     to proceed with the trial in like manner and with like
     effect as if he were present.'

Id., at 455.

     The Supreme Court's decision in Diaz v. United States was

at one point limited to those situations where the defendant

voluntarily absented himself from trial after having appeared

for the commencement of the trial proceedings.   However, since

the Court's decision in Diaz, Pennsylvania courts have

interpreted the Court's holding to include defendants who fail

to appear without cause regardless of whether or not they were

present at the beginning of trial.   See Com. v. King, 695 A.2d

412 (Pa. Super. Ct. 1997} (The court properly tried the

defendant in absentia when the defendant was absent without

cause at the time his trial began.   The defendant was fully

aware of his trial date and had appeared in court for his

arraignment, preliminary hearing and scheduling conferences.}

See Com. v. Hill, 737 A.2d 255, 261 (Pa. Super. Ct. 1999) (The

defendant was not present during pretrial proceedings, the

Commonwealth attempted to locate him unsuccessfully, and he

never provided an explanation for his continued absence. The




                                6
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court properly     tried   the defendant   in absentia for being

voluntarily absent without cause.)

         The Appellant voluntarily absented himself without cause.

As a result,     this Court's   decision   to try the Appellant in

absentia did not violate the Appellant's         right to be present at

trial.



C. Appellant's third error complained of on appeal is: "The
evidence was insufficien-t to establish that the Defendant was
the perpetrator of the offenses of Criminal Conspiracy to
distribute controlled substances and possession with intent to
distribute controlled substance. The evidence was insufficient
to find that the Defendant possessed a controlled substance or
that the Defendant possessed a cont.rolled substance with intent
to distribute. The evidence was insufficient to find that the
defendant was involved in an agreement to distribute a
controlled substance."


         The evidence at trial was more than sufficient to convict

Appellant of criminal conspiracy to distribute           controlled

substances and of possession with intent to deliver controlled

substances, beyond a reasonable doubt,         and no relief     is due.

         In reviewing a clai~ regarding the sufficiency         of the

evidence,     an appellate court views all the evidence admitted at

trial in the light most favorable to the verdict winner and must

determine whether the evidence was sufficient           to allow the fact-

finder to find every element of the crime beyond a reasonable

doubt. Commonwealth v.       Jones, 874 A.2d   108,   120-21   (Pa.    Super.

2005) (citations omitted).      A reviewing court must also draw all

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reasonable    inferences     from the evidence    in the light most

favorable to the verdict        winner. Commonwealth.v.    Lacava,      666

A.2d 221,    226   (Pa.   1995) (citation omitted).

     To sustain Appellant's        convictions,    the Commonwealth      must

prove, beyond a reasonable        doubt, that he possessed      a controlled

substahce    with th~ intent to deliver it (35 P.S.        §   780-

113(a) (30)),and that he, with the intent of promoting or

facilitating the commission of a crime, "agreed with another

person or persons that they or one or more of them would engage

in conduct which would constitute such crime ..                and such

other person committed an overt act in pursuance of such

agreement.n (18 Pa.C.S. § 903).

     Here, the evidence clearly demonstrates that the Appellant

was part of an illicit drug dealing scheme with Mr. Shaheeed

Hall.

     "When contraband is not found on the defendant's person,

the Commonwealth must establish constructive possession ...                       "
Jones, supra at 121 (citing Commonwealth v. Haskins, 677 A.2d

328, 330 (Pa.Super. 1996), appeal denied, 692 A.2d 563 (Pa.

1997)). "Constructive poss~ssion is the ability to exercise

conscious control or dominion over the illegal substance and the

intent to exercise that control." Commonwealth v. Kirkland, 831

A.2d 607, 610 (Pa.Super. 2003). "The intent to exercise




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conscious         dominion        can be inferred         from the totality          of the

circumstances."             Id,

         However,       constructive         possession       is irrelevant         where the

defendant         is   convicted         of a conspiracy       with the person            in

possession         of the illegal           drugs.       Commonwealth       v.    Holt, 711 A.2d

1011,     1011     (Pa.Super.         1998) {"In other words,           when the appellant

was convicted           of conspir~cy          to possess with intent to deliver

the drugs         ...       he is also       culpable       for the crime         itself, that

is possession           with intent to deliver               cocaine.");         accord

Commonwealth           v.   Perez,       931 A.2d    703,    709   (Pa.Super. 2007).

Further, each           member       of a conspiracy         is liable      for the acts of

his co~conspirators                 committed    in furtherance         of their criminal

activity.          Commonwealth          v. Geiger,       944 A.2d    85,    91    (Pa.Super.

2008).      It follows            that   because     "the criminal       intent necessary

to establish           accomplice         liability      is identical       to the criminal

intent necessary             to establish        conspiracy,"        a co-conspiracy             can

be found         guilty of p6ssessing            a controlled        substance       with intent

to deliver         even without           having any direct contact with the

illegal drugs.              Commonwealth        v.   Hennigan,      753 A.2d 245,          254

(Pa.Super.         2000).         Here, Appellant         and Mr.    Hall can be charged

with each other's                 respective    offenses.

         To establish         possession        of a controlled         substance         with

intent to deliver,                 the Commonwealth         must prove beyond a

reasonable         doubt that the defendant                 possessed    a controlled

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substance         and intended           to deliver it.        Kirkland,      at 611 (citing

Commonwealth            v.    Conaway,     791 A.2d 359        (Pa.Super. 2002).               The

trier of fact may infer intent from the facts and circumstances

of the case,            such    as the packaging,         quantity     of the drugs

possessed,            form    of the drug, the behavior            of the offender,              and

lack     of paraphernalia              for consumption.        Jones, at 121 (citations

omitted).             Here, Appellant        was arrested       after being observ~d as

serving as a lookout                  for Mr. Hall's      drug transactions             and was

found     having three packets               of crack cocaine         on his person.

         To sustain the Appellant's                  conviction      for criminal

conspiracy,            the Commonwealth        must establish        that the Appellant:

(1)    entered into            an agreement     with another        to commit or aid in

an unlawful            act,    (2)    shared criminal      intent, and        (3)     an overt

act    was performed            in furtherance        of the    conspiracy.           Jones,         at

121 (citing Commonwealth                   v. Murphy,     795 A.2d     1025    (Pa.Super.

2002).          The conspiracy           may be proved by circumstantial                 evidence.

Jones, at 121.                The conduct of the parties            and the surrounding

circumstances            of their conduct           can create a web of evidence                     that

links the accused to the alleged                      conspiracy     beyond     a reasonable

doubt.          Id.     (citations        omitted),      A conspiracy      can be inferred

from the surrounding                  circumstances,      including,     but not limited

to:    " ( 1)    an association           between    alleged    conspirators;           ( 2)   the

knowledge         of the commission           of crime;        (3) presence     at the scene

of the crime; and               (4)    in some situations,        participation            in the

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object of the conspiracy."          Commonwealth   v .. McKeever,     689 A.2d

272,   274   (Pa.Super.    1997).

       On February   26,    2011, at approximately 6:40 p.m., Officer

Barry Stewart, part        of the 16th District Narcotics Enforcement

Team ("NETS"), was conducting a confidential surveillance for

illegal sales of n~rcotics in the area of the 3900 block of West

Reno Street in Philadelphia. (N.T. 12/6/13 pg. 50-51).                     Officer

Stewart has been a Philadelphia police officer for over 19 years

and over 15 years in the NETS team. Id. at pg. 48, 50. He has

specific training in narcotics and has taken part in over 300 to

400 narcotics investigations.           Id. at pg. 49-48.

       On February 26, Officer Stewart observed Donnie Rudolph and

Mr. Shaheed Hall standing together on the west end of the 3900

block of Reno Street.         After ten minutes of surveillance,

Officer Stewart observed a group of unknown black females,

males, and a white female begin to gather on the corner into a

group consisting     of ten or more.          Id. at pg. 53-54.       Upon

noticing the group, Appellant and Mr. Hall made a motion with

their hands, wave-like, and the group followed them up the

street into a vacant lot.           Id. at pg. 54.    Mr. Hall proceeded to

step into the lot with the group while Mr. Rudolph stood right

outside of the opening and began looking up and down the street,

left and right.      Id.



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        Officer      Stewart then noticed Mr.                      Hall begin to perform

hand-to~hand         motions          with the individuals,                receiving     United

States currency            from the individuals                   while providing        them with

unknown     small        objects.       Id.    at 54-55.           Officer    Stewart       stated

that Mr.        Hall's     hand-to-hand             motions       consisted    of him holding

something        in a bawled           up fist and each individual                   would then

catch     it.     Id.     at    55.     Officer       Stewart stated that upon

receiving        the object           from Mr.       Hall       the individuals       would

immediately        leave the lot.              Id.    at 56.

        While Mr.        Hall was exchanging                    items with these individuals,

Mr.    Rudolph was standing                  in front of the lot in the middle                      and

looking     up and down the street.                       Id.    at 57.     After the

individuals        dispersed,           Mr.    Hall came out of the lot and stood

next    to Mr.     Rudolph.            Id.    at    59.        They eventually       left    the lot

together, walking               westbbund          on Reno Street.           Mr.    Stewart

testified        that he        felt Mr.       Rudolph was serving as a lookout                         for

Mr.    Hall while he sold               drugs.       Id.       at 59.     Officer    Stewart,       based

on these        facts and circumstances                    and his own training             and

experience,        believed           that Hall       and Rudolph were involved                   in a

drug-dealing         scheme.           Id.    at 91.

        As the buyers            dispersed          from the lot,          Officer    Stewart

relayed     their descriptions                 to his backup officers                over his

police radio.             Id.    at 59-60.           Officer       Stewart    instructed          his




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backup officers    to arrest these individuals       along with Hall and

the Appellant.    Id.

     One of officer      Stewart's   backup officer,       Officer   Chitra

Sethuraman,   a 14-year veteran      with 8 years as part of the NETS

team, was directed      to stop and conduct a narcotics         investigation

on a white female who was wearing          a long black leather       coat.

Id. at 107-08. Officer Sethuraman approached the suspect and

identified himself as a police officer. Id. at 108-110. After

doing so he immediately observed her discard           a    small item from

her left hand.     Id. at 108-110.     As he got closer he noticed it

was a small blue tinted Ziploc packet containing a chunky off-

white powdery substance. Id. at 108. Officer Sethuraman

retrieved the package and placed the white female, later

identified as Ms. Cynthia Steel, under arrest for narcotics

violations. Id.

     At trial, Officer Sethuraman was provided Commonwealth

Exhibit-7, a Philadelphia property receipt number 2949957 and a

blue Ziploc packet containing an off-white chunky substance.

Id. at 110.   Officer Sethuraman testified that the crack cocaine

in the blue packet was a fair and accurate representation of the

crack cocaine that Ms. Steel discarded on the ground.                 Id.   at

110-11. Officer Sethurman also testified that in his ekperience

as a narcotics officer drug purchasers typically leave the



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location of the transaction           immediately     after it takes place.

Id. at 111.

        Another backup officer,        Justin Falcone,     was instructed        by

Officer Stewart to apprehend           a woman wearing an orange jacket

and blue jeans and recently           left the vacant lot following         a

meeting with Mr. Hall. Id. at 118.            The woman,     later identified

as Diane Gilchrist,           was stopped by Officer Falcone on 40th and

Parrish Street.         Id.     Officer Falcone recovered     one blue Ziploc

packet with crack cocaine           inside from Ms. Gilchrist's      left

jacket pocket.      Id. at 118-19.        The packet was identified         at

trial    by Officer Falcone and he stated that it was a fair and

accurate representation           of the packet he recovered     off of Diane

Gilchrist.     Id. at 120~21~ The crack cocaine was not included at

the trial presentation,           but residue remained in the packet.            Id.

        Officer Falcone is also part of the NETS unit and has

worked 150 to 200 narcotic           surveillances,    90% of them in a

backup capacity.        Id. at 123.     His role in these investigations

as a backup is to arrest drug addicts and drug dealers.                 Id. at

124.    Officer   Falcone testified       that drug purchasers     do not

typically hang out with their dealers after the transaction                      is

consummated.      Id.

        Shaheed Hall was arrested by Officer Patrick DiDomenico                   on

February 26, 2011, at approximately           7 p.m. Officer DiDomenico

was part of the NETS team and working in his backup role to

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Officer Stewart.            Id.    at 126-28.         Officer    DiDomenico       arrested

Mr.    Hall based on the location               and direction          of travel provided

by Officer     Stewart.           Id.    at 128-29.      Officer       DiDomenico

testified     that    wheh he arrested Mr.              Hall    he recovered,       from Mr.

Hallis mouth,        three blue-tinted              packets.     Id.    at 129.     Inside

these packets was an off-white                  chunky substance,          consistent          with

crack     cocaine.    Id.     Officer       DiDomenico     also recovered          $377 in

U.S.    currency     from Mr.       Hall. Id.        After searching        Mr.    Hall,

Officer DiDomenico           returned       to the lot on the 3900 block of Reho

Street and found an additional                 blue packet that matched              the

packets     recovered       from Mr.       Hall's    mouth.     Id.    at 130-31.    At trial

Officer     DiDomenico       was presented          the property        receipts    for the

three     packets    seized       from Mr~ Hall's mouth, the $377, and the

additional     blue bag that he found in the vacant lot.                           Id.    at

130-32.      Officer    DiDomenico          testified     that these were the             items

recovered     from Mr. Hall. Id.             at 131-32.

        Officer     DiDomenico          went on to testify        that usually       buyers

and sellers go their separate ways                    after a transaction.               Id. at

132-33.      He stated that this is because                    sellers don't like to be

amongst     the buyers       and buyers       like to go someplace           quickly       to

use their drugs.            Id.   at 133.

        The Commonwealth          also called police            officer Raymond          Kirk.

Officer    Kirk was part of the NETS team and was working                           the

aforementioned        investigation          as a backup to Officer           Stewart.

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Id. at 137-139.     Officer Kirk was the arresting officer of

Appellant.     Id. at 139~     Officer Kirk recovered three blue

tinted Ziplocs that contained an off-white chunk substance,

alleged crack cocaine, from Appellant's left jacket pocket.                Id.

Appellant was not with Mr, Hall when he was arrested, Mr. Hall

was about a half a block away.        Id.     Officer Kirk was presented

the property receipt at trial the three Ziploc packets

containing an off-white chunky substance of alleged crack

cocaine.     Id. at 14li     Officer Kirk identified the packets as

those recovered from Appellant at his arrest.

     Officer Kirk ~lso testified that drug buyers do not

typically congregate with their dealers after a transaction. Id.

at 144-45.      Typically they usually complete their purchase and

then go use their drugs.        Id. at 145.

     Viewing all of the evidence presented at trial and drawing

all inferences from such evidence in the light most favorable to

the Commonwealth, the verdict winner, it is clear that the

evidence was sufficient for the jury to find that the

Appellant's convictions must be upheld.

     Appellant was arrested with crack cocaine on his person and

his associate, Mr. Hall, was also apprehended with packets of

the drug as well as $377 in cash.           Further, Appellant was

observed by NETS officers as serving as a look-out for Mr. Hall

while he engaged in drug transactions.

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          Two of these buyers,        Ms.    Steel and Ms.        Gilchrist,    were

arrested and found to have packets                  of crack-Cocaine         that matched

the packets found on Appellant                 and Mr.    Hall.

          Viewing     this   evidence and drawing         all reasonable       inferences

from the evidence in the light most favorable                       to the

Commonwealth,          the jury    verdict   winner,      it is clear     that there         is

sufficient          evidence   to establish      that Appellant        was part    of a

drug-dealing          conspiracy    with Mr.     Hall    and his    convictions      for

possession          with intent to distribute           a controlled     substance and

conspiracy to deliver~              controlled      substance.

D. Appellant's fourth error complained of on appeal is: ·"The
trial court abused its discretion in the sentence it imposed and
the sentence was unreasonable. The trial court did not take into
consideration all the factors required by 42 Pa.CSA sec.
9721(b). The trial court did not take into consideration the
defendant's age family history and rehabilitative needs in
imposing the sentence. The trial court also ran the sentences
consecutively which also was unreasonable. The sentence was
outside the aggravated range of the sentence guidelines."


          This Court did not abuse its discretion in the sentence

imposed, nor did it violate the sentencing requirements of 42

Pa.C.S.      9721(b) of the Sentencing Code by failing to consider

the Appellant's          rehabilitative needs or mitigating

circumstances. To the contrary,                this Court did consider the

Appellant's          rehabilitative needs, mitigating circumstances,                    as

well as aggravating factors such as the potential danger the

Appellant poses to society.             In crafting        the Appellant's


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sentence,    this Court struck a balance between the Appellant's

potential    for rehabilitation             and the Court's duty to protect the

public.

      Allowance      of an ctppeal of a sentence is only permitted                     when

the appellate court determines               that there is a substantial

question in regard to the appropriateness                  of the sentence.

Commonwealth       v. Boyer,       856 A.2d 149, 151-52         (Pa. Super 2004).

This determination           is made on a case-by-case          basis and is made

in conjunction       with what is laid out in the Sentencing                  Code.

Id,   In selecting      from the alternatives            set forth in subsection

(a), the court shall follow the general principle                       that the

sentence imposed should call for confinement                    that is consistent

with the protection           of the public,        the gravity of the offense as

it relates to the impact on the life of the victim and on the

community,       and the rehabilitative            needs of the defendant.           42

Pa.C.S.A.    §    9721(b)

      This Court did address aggravating                 factors at the

sentencing hearing justifying               an above guideline         sentence.

These factors include: Appellant's                  thirteen    (13)   arrests and

seven (7)    convictions;          being a multi-state         offender and having

warrants in three           (3)   states,    including one in New Jersey for

failing to pay child support,               despite the Appellant's          contention

that supporting       his daughter was one of his reasons for not

showing up to court; his habit of being a chronic absconder

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evidenced     by twelve failures to appe~r for this case; his lying
to the Court during sentencing regarding alleged excuses why he

did not show up for his trial; and his lack of remorse and

failure to accept responsibility. In addition, being a fugitive

on this case for twenty~two (22) months is an aggravating

factor.

      Also1    this Court was equipped with a current Presentence

Investigation Report (PSI) .4      The evaluative summary of the

Appellant in the PSI indicates the Appellant "is a threat to the

community wherever he resides. He has incurred arrests and

convictions in four different states,        and he currently has

~arrants issued by three different states. He does not appear to

be amenable to community supervision as he fails to appear for

court indicating his disregard for the judicial order and

authority." Presentence Investigation Report, pg, 2. Based on

these aggravating factors, the Court properly sentenced the

Appellant.

4
  See Commonwealth v .. Devers, 519 Pa. 88, 101-102 (Pa. 1988) ("Where pre-
sentence reports exist, we shall continue to presume that the sentencing
judge was aware of relevant information regarding the defendant's character
and weighed those considerations along with mitigating statutory factors.
A pre-sentence report constitutes the record and speaks for itself. In order
to dispel any lingering doubt as to our intention of engaging in an effort of
legal purification, we state clearly that sentencers are under no compulsion
to employ checklists or any extended or systematic definitions of their
punishment procedure. Having. been fully informed by the pre-sentence report,
the sentencing court's discretion should not be disturbed. This is
particularly true, we repeat, in those circumstances where it can be
demonstrated that the judge had any degree of awareness of the sentencing
considerations, and there we will presume also that the weighing process took
place in a meaningful fashion. It would be foolish, indeed, to take the
position that if a court is in possession of the facts, it will fail to apply
them to the case at hand").
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        This Court did regard the Appellant's       age,   family history,

and rehabilitative      needs when it imposed its sentence.             These

factors and others were addressed at the sentencing               hearing on

February 4, 2014.      They were more than counter balanced by the

numerous aggravating      factors cited. The Court found that the

Appellant    lctcked almost any rehabilitative      potential.       This Court

did consider all factors the Appellant          claims were overlooked.

        Imposition of consecutive    sentences    is a choice left

completely up to the discretion       of the trial court and does not

in and of itself give rise to the level of a substantial

question.     Commonwealth    v. Boyer,    856 A.2d 149,   153    (Pa. Super

2004). This Court did just that.          It followed the guidelines              and

chose to impose consecutive       legal sentences based upon the

evidence presented      at trial and the Appellant's       history.          No

substantial question has been raised at any point in the present

case.     The sentence imposed was lawful and within this Court's

power and discretion      and should be affirmed.

        Therefore,   this Court did not abuse its discretion            in

sentencing the Appellant.       This Court's sentence is not

excessive,    unreasonable,    unsupported   by the Appellant's

character, nor did it fail to consider Appellant's

rehabilitative needs or mitigating circumstances. This Court

determined that the Appellant's criminal history, its duty to

protect the public, and the scant rehabilitative potential of

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    the Appellant     called for the sentences            imposed.    Th~ Appellant

    showed   no remorse   about his crimes,         nor    did he ever admit

    responsibility.    There    is no substantial         question     regarding the

    appropriateness    of these    sentences       as the requirements          of the

    Sentencing    Code were followed.      See 42 Pa.        c.s.    §9721.5

E. Appellant's fifth error complained of on appeal is: "The
defendant was denied his right to a prompt and speedy trial
under Rule 600(G) ."

         The Appellant was not denied his prompt and speedy trial

rights under Rule 600 because he waived these rights by

voluntarily        absenting    hi~self from trial.          "Rule 600 requires a

defendant to file a written motion to dismiss,                       and that, by

failing      to appear in court on the day his or her case is listed

for trial, a defendant waives his or her Rule 600 claim."                           Com.

v. Brock,        619 Pa. 278i    61 A.3d   1015,    1016 (2013).


5
  Under "42 Pa.C.S.    §9721(b) General standards. --In selecting from the
alternatives set forth in subsection (a), the court shall follow the general
principle that the sentence imposed should call for confinement that is
consistent with the protection of the public, the gravity of the offense as
it relates to the impact on the life of the victim and on the community, and
the rehabilitative needs of the defendant. ... "
       See Contrnonwealth v. McAfee, 849 A.2d 270 (Pa.Super.  2004),  appeal
denied, 580 Pa. 695, 860 A.2d 122 (2004) ("the trial court was correct in
determining that a sentence of total confinement was necessary to vindicate
the authority of the court because [a)ppellant had demonstrated a complete
lack of willingness to comply with the multiple court orders entered in this
case. We find no abuse of discretion in sentencing");     Commonwealth v. Sierra,
752 A.2d 9101 911 (Pa. Super. 2000) (sentence affirmed where parole and
probation revoked and appellant sentenced to statutory maximum for technical
violations); Conunonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super.
2010) (where "court considered the testimony at the VOP hearing regarding
[a]ppellant's    lack of success under probation, arrest while under
supervision,   failure to appear on numerous occasions, and flight from a
halfway house while under parole supervision",     "the record as a whole
reflects that the ttial court considered the facts of the crime and character
of [a]ppellant    in making its determination,  [and appellate court} cannot re-
weigh the sentencing factors to achieve a different result").

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         On September   20,   2011, the Appellant      rejected   a smart room

offer, and the case was given the earliest possible                  date    for

trial.     On April   12,   2012, this Court issued a bench          warrant

because     the Appellant     failed   to appear for trial. On December              9,

2013,    this Court began an in absentia           jury trial as the

Appellant     persisted     in failing to appear for listed court             dates.

The Appellant     remained     a fugitive     for twenty-two   months until

authorities     finally arrested       him. Therefore,    because     the

Appellant     voluntarily     absented   himself    from trial, his      claims

for relief under Rule 600 fail.




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                              Conclusion

      For all of the above reasons, the claims Appellant raises

on appeal should provide no relief.        Appellant's   sentences

should,   therefore, stand.




                                  23
