J-A16023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JULIAN VINCENT CROSBY                      :
                                               :
                       Appellant               :   No. 1793 MDA 2018

        Appeal from the Judgment of Sentence Entered August 20, 2018
      In the Court of Common Pleas of Clinton County Criminal Division at
                        No(s): CP-18-CR-0000030-2018


BEFORE:      LAZARUS, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY MURRAY, J.:                                 FILED JULY 17, 2019

       Julian Vincent Crosby (Appellant) appeals from the judgment of

sentence imposed after a jury convicted him of conspiracy to deliver heroin,

criminal use of a communication facility, and possession of heroin.1        Upon

review, we affirm.

       The trial court stated:

       A summary of the [trial] testimony, in a light most favorable to
       the Commonwealth, shows that Co-Conspirator Barzona had
       contact with [Appellant] earlier in the day on September 1, 2017.
       Co-Conspirator Barzona met [Appellant] in the City of Lock Haven
       at approximately 11:00 a.m., at which time [Appellant] provided
       Co-Conspirator Barzona with heroin to sell while [Appellant] was
       out of town and indicating [Appellant] would provide Co-
       Conspirator Barzona with instructions later.       Co-Conspirator
       Barzona testified that she received a phone call from [Appellant]
       in the afternoon hours at which time [Appellant] instructed her to
____________________________________________


118 Pa.C.S.A. § 903, 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 7512(a), and
35 P.S. § 780-113(a)(16).
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A16023-19


     sell Commonwealth Witness Conrad five (5) packets of heroin for
     Fifty—($50.00)—Dollars. Co-Conspirator Barzona testified that
     she followed the instructions by providing Commonwealth Witness
     Conrad with five (5) packets of heroin who, in exchange, provided
     her with Forty-five—($45.00)—Dollars.

           While under law enforcement observation, Co-Conspirator
     Barzona placed a phone call to [Appellant] on [Appellant’s] cell
     phone. [Appellant] answered the cell phone at which time Co-
     Conspirator Barzona advised that Commonwealth Witness Conrad
     had only given her Forty-five—($45.00)—Dollars instead of the
     agreed upon Fifty—($50.00)—Dollars.       [Appellant] told Co-
     Conspirator Barzona not to worry about the Five—($5.00)—
     Dollars and indicated that he would meet up with Co-Conspirator
     Barzona later. The next morning [Appellant] arrived at Co-
     Conspirator Barzona’s home.

           Commonwealth Witness Conrad testified that earlier in the
     week he placed a call to [Appellant] inquiring about purchasing
     heroin. [Appellant] told Commonwealth Witness Conrad to call
     the “bitch”, indicating Co-Conspirator Barzona. Commonwealth
     Witness Conrad met up later with Co-Conspirator Barzona and
     gave her Fifty—($50.00)—or Sixty—($60.00)—Dollars for four (4)
     yellow bags and owed money.

Trial Court Opinion, 12/6/18, at 3-4 (unnumbered).

     The jury convicted Appellant of three crimes:      conspiracy to deliver

heroin, criminal use of a communication facility, and possession of heroin. On

August 20, 2018, the trial court sentenced Appellant to an aggregate 45 to 96

months of incarceration. Appellant filed a post-sentence motion which the

trial court denied on October 5, 2018.    Appellant filed a timely appeal on

October 29, 2018.    Both the trial court and Appellant have complied with

Pennsylvania Rule of Appellate Procedure 1925.

     Appellant presents four issues on appeal:




                                    -2-
J-A16023-19


      1. WHETHER THE COMMONWEALTH FAILED TO PRODUCE
      EVIDENCE TO ESTABLISH ALL OF THE ELEMENTS OF A
      CONSPIRACY TO DISTRIBUTE CONTROLLED SUBSTANCE AND
      POSSESSION OF A CONTROLLED SUBSTANCE?

      2. WHETHER THE COMMONWEALTH FAILED TO PRODUCE
      EVIDENCE TO ESTABLISH ALL ELEMENTS OF CRIMINAL USE OF A
      COMMUNICATION FACILITY?

      3. WHETHER THE VERDICT IS AGAINST THE WEIGHT OF THE
      EVIDENCE?

      4. WHETHER THE COURT ERRED IN ADMITTING INTO EVIDENCE
      A CONSENSUAL TAPE RECORDED CONVERSATION?

Appellant’s Brief at 4.

      In his first two issues, Appellant assails the sufficiency of the evidence

with regard to his conspiracy to deliver heroin and criminal use of a

communications facility convictions. Our standard of review is well settled:

      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 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 finder 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.




                                     -3-
J-A16023-19


Commonwealth v. Roberts, 133 A.3d 759, 767 (Pa. Super. 2016) (citation

omitted).

      Appellant argues that the evidence was insufficient to support his

conspiracy to deliver heroin conviction because the Commonwealth did not

“produce any evidence that [Appellant] took any affirmative step to assist in

a drug delivery.” Appellant’s Brief at 8. Appellant asserts that “an addict

called [Appellant] asking if he knew where he could obtain drugs. As a friendly

gesture of accommodation, [Appellant] provided the addict of the name of an

individual who subsequently made a delivery to the addict.” Id. Appellant

claims that the Commonwealth failed to show any agreement between

Appellant and Ms. Barzona to deliver the heroin, and no act by Appellant “to

help achieve the goal of conspiracy.” Id. at 10. Appellant emphasizes that

the evidence merely shows that his “involvement was [no] more than an

accommodation to his friend Conrad.” Id. The record does not support this

argument.

      The Crimes Code defines conspiracy as follows:

      A person is guilty of conspiracy with another person . . . 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.A. § 903.


                                     -4-
J-A16023-19


     With regard to the delivery of heroin, we have explained:

     The following acts and the causing          thereof   within   the
     Commonwealth are hereby prohibited:

                                   ***

     (30) Except as authorized by this act, the manufacture, delivery,
     or possession with intent to manufacture or deliver, a controlled
     substance by a person not registered under this act, or a
     practitioner not registered or licensed by the appropriate State
     board, or knowingly creating, delivering or possessing with intent
     to deliver, a counterfeit controlled substance.
     35 P.S. § 780–113(a)(30).

     “To establish the offense of possession of a controlled substance
     with intent to deliver, the Commonwealth must prove beyond a
     reasonable doubt that the defendant possessed a controlled
     substance with the intent to deliver it.” Commonwealth v.
     Kirkland, 831 A.2d 607, 611 (Pa. Super. 2003), appeal denied,
     577 Pa. 712, 847 A.2d 1280 (2004). The intent to deliver can be
     inferred from an examination of the surrounding facts and
     circumstances. Id. (citing Commonwealth v. Conaway, 791
     A.2d 359, 362–63 (Pa. Super. 2002)).

Commonwealth v. Perez, 931 A.2d 703, 707–08 (Pa. Super. 2007).

     Circumstantial evidence may provide proof of conspiracy. Id. at 708.

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. Id. 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.




                                   -5-
J-A16023-19


Id. citing Commonwealth v. Jones, 874 A.2d 108, 121–22 (Pa. Super.

2005). “While the Commonwealth is not required to prove a written or express

agreement, a tacit agreement must be established by reasonable inferences

arising from the facts and circumstances and not by mere suspicion or

conjecture.”    Perez, 931 A.2d at 708.       Circumstances like an association

between alleged conspirators, knowledge of the commission of the crime,

presence at the scene of the crime, and/or participation in the object of the

conspiracy, are relevant when taken together in context, but individually each

is insufficient to prove a conspiracy. Id. at 708-09.

      Instantly, the testimony of Ms. Barzona contradicts Appellant’s claim

that he and Ms. Barzona did not share an agreement to deliver heroin. Ms.

Barzona stated that she physically “picked up” heroin from Appellant, who told

her he was going out of town, and later that day, called Ms. Barzona on her

land line and instructed her to deliver five packets of the heroin to Scott

Conrad. N.T., 8/10/18, at 41-42. As the trial court explained, the jury chose

to believe Ms. Barzona’s testimony, which was sufficient to show that

Appellant conspired with Ms. Barzona to deliver heroin. Trial Court Opinion,

12/6/18, at 3 (unnumbered).

      With     regard   to   Appellant’s   conviction   for   criminal   use   of   a

communication facility, Appellant argues that “the evidence fails to establish

that after Conrad contacted [Appellant,] that [Appellant] contacted Barzona

to complete the transaction.” Appellant’s Brief at 12. Appellant states “the


                                       -6-
J-A16023-19


telephone call evidence testimony of Conrad refutes any suggestion that he

contacted [Appellant] to arrange a delivery of heroin.” Id. at 12-13. As noted

by the trial court, Appellant’s argument “is not an accurate representation of

the Commonwealth’s evidence.”           Trial Court Opinion, 12/6/18, at 5

(unnumbered).

      The relevant statute provides:

      (a)   Offense defined.--A person commits a felony of the third
            degree if that person uses a communication facility to
            commit, cause or facilitate the commission or the attempt
            thereof of any crime which constitutes a felony under this
            title or under the act of April 14, 1972 (P.L. 233, No. 64),
            known as The Controlled Substance, Drug, Device and
            Cosmetic Act. Every instance where the communication
            facility is utilized constitutes a separate offense under this
            section.

                                     ***

      (c)   Definition.--As used in this section, the term
            “communication facility” means a public or private
            instrumentality used or useful in the transmission of signs,
            signals, writing, images, sounds, data or intelligence of any
            nature transmitted in whole or in part, including, but not
            limited to, telephone, wire, radio, electromagnetic,
            photoelectronic or photo-optical systems or the mail.

18 Pa.C.S.A. § 7512 (footnote omitted).

      Ms. Barzona’s testimony reads, in relevant part, as follows:

      [COMMONWEALTH]:         Did [Appellant] give you any instructions
                              with regard to that heroin?

      [BARZONA]:              Yes.
      ...

      [COMMONWEALTH]:         Did [Appellant] say why he was giving you
                              the heroin that particular day?

                                       -7-
J-A16023-19



      [BARZONA]:              He was going out of town.

      [COMMONWEALTH]:         Sometime later that day, did you
                              receive   a   phone    call from
                              [Appellant]?

      [BARZONA]:              Yes.

      [COMMONWEALTH]:         Where were you when you got that call?

      [BARZONA]:              My house.

      [COMMONWEALTH]:         What type of phone did you have at the
                              time?

      [BARZONA]:              A land line.

      ...

      [COMMONWEALTH]:         And did you have caller I.D. on your
                              phone?

      [BARZONA]:              Yes.

      [COMMONWEALTH]:         So are you sure that when he called you,
                              that was him that called you?

      [BARZONA]:              Yes.

      [COMMONWEALTH]:         What did [Appellant] tell you in this
                              first phone call?

      [BARZONA]:              He told me that Conrad would be
                              calling me to come and get stuff, and
                              I’m supposed to meet him and give
                              him stuff.

N.T., 8/10/18, at 41-42 (emphasis added).

      Based on this testimony, the evidence was sufficient for the jury to find

that Appellant was guilty of criminal use of a communication facility.


                                     -8-
J-A16023-19


      In his third issue, Appellant assails the weight of the evidence, which

pursuant to Pa.R.Crim. 607, Appellant preserved in his post-sentence motion,

and which the trial court subsequently denied. This Court recently reiterated:

      When reviewing a challenge to the weight of the evidence, we
      review the trial court’s exercise of discretion. A reversal of a
      verdict is not necessary unless it is so contrary to the evidence as
      to shock one’s sense of justice. The weight of the evidence is
      exclusively for the finder of fact, who is free to believe all, none
      or some of the evidence and to determine the credibility of the
      witnesses. The fact-finder also has the responsibility of resolving
      contradictory testimony and questions of credibility. We give
      great deference to the trial court’s decision regarding a weight of
      the evidence claim because it had the opportunity to hear and see
      the evidence presented.

Commonwealth v. Roane, 204 A.3d 998, 1001 (Pa. Super. 2019) (citations

omitted).

      In challenging the weight of the evidence, Appellant attempts to impugn

the trial testimony of Ms. Barzona by referencing the police discovery of heroin

and drug paraphernalia in Ms. Barzona’s purse, and the fact that Ms. Barzona

testified to being “an admitted heroin user.”      Appellant’s Brief at 13-14.

Conversely, Appellant references the testimony of Scott Conrad, specifically

citing Mr. Conrad’s testimony that Appellant “told him to try Barzona” for

heroin. Id. at 14. Appellant’s weight claim is meritless.

      The trial court explained:

      [Appellant] is essentially requesting that this Court reassess the
      credibility of the testimony of the witnesses, specifically the co-
      conspirator [Ms. Barzona], and other evidence and determine that
      the overall evidence is contrary to the verdict of guilty.

                                     ***

                                     -9-
J-A16023-19


            In the instant matter, the jury was free to believe all, part
      or none of the evidence. In the instant matter, the jury chose to
      believe the testimony of the Co-Conspirator, Kimberly Barzona . .
      .

                                       ***

      Based on the testimony of Co-Conspirator Barzona and
      Commonwealth Witness Conrad, the evidence can certainly not be
      characterized as determinative or incontrovertible. The jury was
      free to accept the testimony of the Commonwealth’s witnesses,
      which it clearly did in the matter at bar. The verdict rendered by
      the jury was clearly not contrary to the weight of the evidence or
      inconsistent with the weight of the evidence.

Trial Court Opinion, 12/6/18, at 3-5.     Upon review, we agree; Appellant’s

weight claim does not merit relief.

      Finally, Appellant takes issue with the trial court’s admission, over

Appellant’s objection on the basis of relevancy, of the “consensually recorded

phone call” between Appellant and Ms. Barzona.        Appellant’s Brief at 15.

Appellant recognizes that the admission of evidence “is at the sound discretion

of the trial court.” Id. However, Appellant argues:

            Nowhere in the phone call is there any discussion of Barzona
      making a delivery of heroin or that [Appellant] provided her with
      heroin. The only testimony is that Conrad gave her $45.00 as
      opposed to $50.00.

            The telephone call does not make any fact more likely
      believable than not and therefore, the Court erred in permitting
      the Commonwealth to play the consensually recorded
      conversation.

Id. at 16.

      The Commonwealth counters that the playing of the recording was

relevant because it “clearly established the elements of the Criminal Use of a

                                      - 10 -
J-A16023-19


Communication Facility, and assisted in the proof of the elements of the

Conspiracy to Deliver a Controlled Substance offense.” Commonwealth Brief

at 8-9. Consistent with the Commonwealth’s position, the trial court opined:

     [I]t is also extremely clear that the recorded conversation, which
     was permitted to be played for the jury, was more than relevant
     to the nature of the crimes charged, specifically, Count 2 of the
     Information, Conspiracy to Deliver a Controlled Substance. The
     conversation at issue was conducted under the supervision of law
     enforcement, involved Co-Conspirator Barzona and [Appellant],
     and provided the jury an opportunity to tie together the actions of
     Co-Conspirator Barzona with the instructions of [Appellant] which
     took place in the phone call. [Appellant] specifically responded to
     Co-Conspirator Barzona’s assertion that Commonwealth Witness
     Conrad had shorted [Appellant] by Five—($5.00)—Dollars,
     instructing Co-Conspirator Barzona “don’t worry about the $5.00.”

Trial Court Opinion, 12/6/18, at 5 (unnumbered).

     Once again, the trial court’s reasoning is supported by the record. In

the absence of any error by the trial court, we affirm the judgment of

sentence.

     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/17/2019



                                   - 11 -
