J-S06002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

KEVIN PRECCIA,

                            Appellant                        No. 452 EDA 2013


        Appeal from the Judgment of Sentence Entered January 28, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011678-2012


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED FEBRUARY 02, 2015

        Appellant, Kevin Preccia, appeals from the judgment of sentence of an

aggregate term of three to six years’ incarceration, imposed after he was

convicted of possession of a controlled substance, possession with intent to

deliver a controlled substance (PWID), and conspiracy to commit PWID.

Appellant    challenges     the   sufficiency   of   the   evidence   to   sustain   his

convictions. We affirm.

        Appellant was charged with the above-stated offenses and proceeded

to a nonjury trial on December 11, 2012.             At the close thereof, the court

convicted Appellant of all offenses with which he was charged. On January

28, 2013, he was sentenced to a term of three to six years’ imprisonment

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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for PWID, and a concurrent term of three to six years’ imprisonment for

conspiracy to commit PWID.      His conviction for possession of a controlled

substance merged with his PWID offense for sentencing purposes. Appellant

filed a timely notice of appeal, as well as a timely Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.        Herein, he presents one

question for our review:

      Did the trial court err when it found that there was sufficient
      evidence to prove beyond a reasonable doubt that Appellant …
      was guilty of the criminal offenses of [PWID], criminal conspiracy
      and knowing and intentional possession of a controlled
      substance?

Appellant’s Brief at 2 (unnecessary capitalization omitted).

      To begin, we note our standard of review of a challenge to the

sufficiency of the evidence:

            In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

      We will first address Appellant’s challenges to the sufficiency of the

evidence to sustain his possession of a controlled substance and PWID




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offenses.   In regard to both offenses, Appellant argues that the evidence

failed to prove that he constructively possessed narcotics.

      Constructive possession requires proof of the ability to exercise
      conscious dominion over the substance, the power to control the
      contraband, and the intent to exercise such control.
      Commonwealth v. Petteway, 847 A.2d 713, 716 (Pa. Super.
      2004). Constructive possession may be established by the
      totality of the circumstances. Commonwealth v. Parker, 847
      A.2d 745, 750 (Pa. Super. 2004). We have held that
      circumstantial evidence is reviewed by the same standard as
      direct evidence—a decision by the trial court will be affirmed “so
      long as the combination of the evidence links the accused to the
      crime beyond a reasonable doubt.” Commonwealth v.
      Johnson, 818 A.2d 514, 516 (Pa. Super. 2003) (citations
      omitted).

Commonwealth v. Bricker, 882 A.2d 1008, 1014 (Pa. Super. 2005).

      In concluding that the evidence was sufficient to prove that Appellant

constructively possessed drugs (and did so with the intent to deliver them),

the trial court relied on the following facts, which Appellant does not dispute:

             The evidence established that on September 14[,] 2012,
      between approximately 8:00 p.m. to 9:00 p.m., Philadelphia
      Police conducted surveillance on the 3300 block of Mount Vernon
      Street in Philadelphia to investigate illegal narcotics activity.
      During the surveillance, Officer [Barry] Stewart testified that he
      observed two (2) males on location, one of the males was
      identified as [] Appellant, … and the second male was identified
      as [Jefferson] Young. [Appellant] … and Young were together
      and were standing in the street/sidewalk within a hand’s length
      from each other. Officer Stewart further observed [Appellant]
      and Young speaking with one another and engaging in
      conversations with the buyers involved in the observed drug
      transactions.

            Two (2) drug transactions took place during the
      surveillance.   The first transaction was observed at
      approximately 8:20 p.m. At that time, Officer Stewart saw a
      black male, later identified as Oral Bolten, approach …

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     [Appellant] and Young and engage them in a brief conversation.
     Mr. Bolten then gave an unknown quantity of United States
     currency to Appellant[]. After receiving the cash, [Appellant]
     walked across Mount Vernon [S]treet and towards the passenger
     side of a parked minivan and Young stayed on location with
     Bolten. A short time later, Appellant[] returned back to … Young
     and Bolten … and gave Bolten an unknown small object with a
     hand to hand motion. During the transaction, Young was seen
     looking around several times.          Officer Stewart relayed
     information to his back up officers and Bolten was stopped a
     short distance away from where the transaction took place.
     Police recovered three (3) blue heat sealed Ziplock packets from
     Bolten which tested positive for crack cocaine. In this first
     transaction, Appellant[] was the “seller-bank[,”] Young was the
     “lookout” and Bolten was the “buyer[.”]

           After the Bolton [sic] sale, Officer Stewart observed
     Appellant[] get into a gold color Buick and drive away and
     Stewart lost sight of him. During this time, Young remained at
     the location. [Appellant] returned about fifteen to twenty (15-
     20) minutes later and went back on location on the same side of
     the street as Young.

            Shortly after [Appellant’s] return, a second transaction
     took place at approximately 8:50 p.m.           In the second
     transaction, Officer Stewart observed a black female, later
     identified as Darnero Pembleton[,] approach … [Appellant] and
     Young and engage them in a brief conversation. Pembleton then
     gave an unknown quantity of United States currency to Young.
     During this transaction, Young walked across the street on the
     passenger side near the same minivan that Appellant had walked
     to during the first transaction and [Appellant] stayed with
     Pembleton.     A short time later, Young[] returned back to
     [Appellant] and Pembleton and gave Pembleton an unknown
     small object with a hand to hand motion. During the second
     transaction, [Appellant] was seen looking around several times.
     [Officer] Stewart again relayed information to his back up
     officers and Pembleton was stopped. Police recovered two (2)
     blue heat sealed Ziplock packets from Pemberton [sic] which
     tested positive for crack cocaine. In the second transaction,
     [Appellant] was the “lookout[,”] Young was the “seller” and
     Pemberton [sic] was the “buyer[.”]

          The drugs and packaging of the drugs that were recovered
     from Buyer-Bolton [sic] were the same color, shape and size as

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       the [drugs and] packaging of the drugs that were recovered
       from Buyer-Pemberton [sic].

              At approximately 9:00 p.m.[,] Officer Stewart observed
       Appellant[] begin counting an unknown quantity of United States
       currency. Flash information was given to [Officer] Stewart’s
       back[]up officers and [Appellant] and Young were arrested on
       location. Police recovered $441 from [Appellant’s] front pants
       pocket and $70 from Young.[1]         Officer Stewart identified
       [Appellant] and Young on location and later identified Bolton
       [sic] and Pemberton [sic] at police headquarters. No drugs were
       recovered from either [Appellant] or Young or the parked
       minivan near where [Appellant] and Young were seen going….
       Officer Stewart is an experienced narcotics officer and had been
       assigned to the Narcotics Strike Force for fourteen (14) years
       prior to this arrest.
Trial Court Opinion (TCO), 5/7/13, at 2-4 (citations to the record omitted).

       Appellant argues that because no drugs were found near the minivan,

or in his or Young’s actual possession, it was pure speculation to infer that

Bolten and Pembleton acquired the drugs from Appellant and/or Young.

Appellant’s argument disregards our standard of review. Namely, we must

view the evidence in the light most favorable to the Commonwealth and

accept all reasonable inferences that can be drawn therefrom.

       In addition, … 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.


____________________________________________


1
  Regarding the denominations of the money recovered from Appellant,
Officer Stewart testified “[i]t was $100 bill, one $50 bill, nine $20 bills, three
$10 bills, five $5 bills, and 56 $1 bills.” N.T. Trial, 12/11/12, at 44.



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Commonwealth v. Lambert, 795 A.2d 1010, 1014 (Pa. Super. 2002)

(quoting Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super.

2000)).

      Applying these standards to the above-stated facts, it was reasonable

for the trial court, as the fact-finder, to infer that Appellant accepted money

from Bolten, retrieved packets of crack cocaine from near the minivan, and

handed those drugs to Bolten.     Young then did the same with Pembleton,

resulting in both Bolten’s and Pembleton’s possessing drugs in the exact

same type of packaging. While neither Appellant nor Young possessed drugs

at the time they were arrested, Appellant did have a large quantity of cash

in small denominations on his person.       This fact, combined with Officer

Stewart’s observations of the hand-to-hand transactions, were sufficient to

prove that Appellant constructively possessed the drugs recovered in

Bolten’s and Pembleton’s possession.       Thus, Appellant’s convictions for

possession of a controlled substance and PWID must stand.

      Appellant next challenges his conviction for criminal conspiracy.

      A conviction for criminal conspiracy requires the trier of fact to
      find the following: (1) that the defendant intended to commit or
      aid in the commission of a criminal act; (2) that the defendant
      entered into an agreement with another, i.e., the co-conspirator,
      to engage in a crime; and (3) that the defendant or one or more
      of the other co-conspirators committed an overt act in
      furtherance of the agreed upon crime. See Commonwealth v.
      Murphy, 577 Pa. 275, 292, 844 A.2d 1228, 1238 (2004); see
      also, 18 [Pa.C.S.] § 903(a). “The essence of a criminal
      conspiracy ... is the agreement made between the co-
      conspirators.” Murphy, 577 Pa. at 292, 844 A.2d at 1238. The
      nature of the offense is such that more often than not there is no


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      direct evidence of the defendant's criminal intent or the
      conspiratorial  agreement.    See    id.   “Consequently,    the
      defendant's intent as well as the agreement is almost always
      proven through circumstantial evidence, such as by the
      relations, conduct or circumstances of the parties or overt acts
      on the part of the co-conspirators.” Id. (citation and internal
      quotation marks omitted); see also, Commonwealth v. Ruiz,
      819 A.2d 92, 97 (Pa. Super. 2003) (“The conduct of the parties
      and the circumstances surrounding their conduct may create a
      web of evidence linking the accused to the alleged conspiracy
      beyond a reasonable doubt.”).

Commonwealth v. Little, 879 A.2d 293, 298-299 (Pa. Super. 2005).

      Appellant’s entire argument regarding the sufficiency of the evidence

to sustain his conspiracy conviction consists of the following two sentences:

      There was also insufficient evidence, circumstantial or direct,
      adduced at trial, to prove beyond a reasonable doubt that
      [Appellant] had a conspiracy or agreement with Mr. Young to
      possess cocaine with the intent to deliver it, even taking into
      account the “relations, conduct or circumstances” of these two
      individuals or “overt acts.” Most of the interaction between
      these two men involved merely standing together[] on the north
      side of the 3300 block of [Mount] Vernon Street.

Appellant’s Brief at 12.

      Appellant’s argument is not only undeveloped, but it is unconvincing in

light of the above-stated facts, which reasonably support the inference that

Appellant and Young worked together to sell drugs to Bolten and Pembleton.

Both men stood together on the street as Bolten and Pembleton approached.

Appellant accepted money from Bolten and engaged in a hand-to-hand

transaction with him, and seemingly acted as a lookout when Young did the

same with Pembleton.        Both Bolten and Pembleton possessed drugs

packaged in the exact same manner after their interactions with Appellant



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and Young, and Appellant possessed a large quantity of cash in small

denominations.    Based on these facts, it was reasonable for the court to

infer that Appellant and Young intended, and agreed, to perpetrate the crime

of PWID, and that they both committed overt acts in furtherance of that

offense.   Accordingly, Appellant’s criminal conspiracy conviction also must

stand.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2015




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