J-S10025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    NICOLE LIPPI                               :
                                               :
                      Appellant                :   No. 3605 EDA 2016

             Appeal from the Judgment of Sentence October 18, 2016
     In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0004500-2016


BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                                   FILED MAY 04, 2018

        Appellant, Nicole Lippi, appeals from the judgment of sentence entered

on October 18, 2016, following her bench trial conviction for criminal

conspiracy to possess a controlled substance.1 We affirm.

        The relevant historical facts are as follows:

        [Philadelphia] Police Officer Raymond Sima testified that on
        October 13, [] 2015, at approximately [9:00 p.m.], he and a
        partner were working as part of a team conducting a narcotics
        surveillance on 1545 South 30th Street in Philadelphia when they
        were alerted by radio that a white female, a passenger in a gold
        Infiniti G35, had just made a [drug] purchase at the surveillance
        location after which the vehicle proceeded northbound towards
        Tasker Street.      [Officer Sima and his partner] spotted the
        vehicle, pulled it over and observed the driver, a Michael Nelson
        who was later identified as [Appellant’s] brother, trying to stuff
        something in[to the left pocket of his hooded sweat shirt. After
        Nelson was asked] to remove his hand from the pocket, the
____________________________________________


1   18 Pa.C.S.A. § 903 and 35 P.S. § 780-113(a)(16).
J-S10025-18


       officer could see blue glassine inserts that were inside the
       pocket, which field tested positive for heroin, and arrested him.

       Police Officer Von Williams testified that she was one of the team
       that responded to the call, observed [Appellant] in the passenger
       seat and, based on information she had received from fellow
       officers, placed her under arrest. While she was doing so[,
       Appellant] stated that she purchased the narcotics for her
       brother. [Officer Williams] did not recover any narcotics from
       [Appellant’s] person.

Trial Court Opinion, 5/22/17, at 1-2, citing N.T., 10/18/16, at 5-9 and

10-12.


       Based upon the foregoing events, Appellant was arrested and charged

with simple possession of a controlled substance and criminal conspiracy.

Appellant was found guilty of both charges at the conclusion of trial on April

8, 2016 in the Philadelphia Municipal Court. Thereafter, Appellant appealed

to the trial court. Following a nonjury trial de novo on October 18, 2016,2

the court found Appellant guilty of conspiracy and not guilty of simple

possession.     On the same day, the court ordered Appellant to serve nine

months’ probation for her conviction.


____________________________________________


2 At the trial de novo, Appellant denied that she told Officer Williams that
she purchased narcotics for her brother. Trial Court Opinion, 5/22/17, at 2,
citing N.T. Trial, 10/18/16, at 14-20. When reviewing sufficiency claims,
appellate courts are required to view the evidence in the light most favorable
to the Commonwealth as the verdict winner, thereby giving the prosecution
the benefit of all reasonable inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). Thus, under
the applicable standard of review, we must accept the testimony of Officer
Williams and disregard Appellant’s self-serving version of events.



                                           -2-
J-S10025-18



       Appellant filed a timely pro se appeal on November 17, 2016.           After

many    procedural    developments,     including    the   appointment   of    two

replacement counsel and the filing of two substitute concise statements

under Pa.R.A.P. 1925, Appellant presented the instant appeal in which she

challenges the sufficiency of the evidence offered to show that she conspired

to purchase contraband and pass it along to her brother.         See Appellant’s

Brief at 8.

       We have carefully reviewed the certified record, the submissions of the

parties, the opinions of the trial court, and the pertinent case law. Based

upon our review, we conclude for the reasons expressed by the trial court

that Appellant is not entitled to relief. See Trial Court Opinion, 11/1/17, at 6

(conspiracy established here in view of:            1) “the association between

[A]ppellant and her brother and the joint use of his vehicle in executing the

transactions (acquisition and transfer of possession [of contraband]), 2)

[Appellant’s] obvious knowledge of the commission of those transactions, 3)

[Appellant’s] presence at the scene of the crime, and 4) [Appellant’s]

observed participation in the object of the conspiracy, [i.e.] the acquisition

of an illegal drug). Moreover, as we find that the trial court has adequately

and accurately addressed the issues raised in this appeal, we adopt the trial

court’s opinion as our own. Accordingly, the parties are directed to attach a

copy of the trial court’s November 1, 2017 opinion to all future filings

relating to our disposition in this appeal.

Judgment of sentence affirmed.

                                      -3-
J-S10025-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/18




                          -4-
                                                                                                Circulated 04/19/2018 01:34 PM


                                                                                                                       FILED
                         IN THE COURT OF COMMON PLEAS                                                                             2.0i7
                                                                                                                    NOV 0
                    FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                       TRIAL DIVISION - CRIMINAL SECTION                                                  Office of Judicial Records
                                                                                        Appeals/Post Trial
COMMONWEALTH OF PENNSYLVANIA                                       CP-51-CR-0004500-2016

                        VS.
                                                                   SUPERIOR COURT
               NICOLE LIPP!                                        NO. 3605 EDA 2016

                        SUPPLEMENTAL PA.R.A.P. 1925(a) OPINION

MAZZOLA, WILLIAM, J.                                               OCTOBER                      ell             ,   20t7

        The court submits this supplement to its   R   1925(a) opinion of May 18, 2017, pursuant to

the Superior Court's order of September 66 directing it to do so. To reiterate, the defendant,

Nicole Lippi, filed this appeal from a judgment of sentence. She was arrested on October 14,

2015, and charged with the unlawful purchase and possession of a controlled substance and

conspiracy.' On April 8, 2016, at a trial in the Philadelphia Municipal Court, where she was

represented by appointed counsel, the Commonwealth withdrew the purchase charge, she was

found guilty of possession and conspiracy and was sentenced to nine (9) month's reporting

probation on the former and no further penalty on the latter.? She appealed pro se to this court,

new counsel was appointed and at a nonjury trial on October         18th   she was found not guilty of the

possession but guilty   of conspiracy and given the same sentence. No post sentence motions                                were

filed and this timely appeal was filed pro se on November 17'h The issues presented therein, as

stated by newly appointed counsel, were, in essence, that the evidence was insufficient as a

matter of law to convict and that the conviction was against the weight of the evidence In its

original 1925(a) opinion the trial court offered its view that, since counsel did not indicate                        En   the

R   1925(b) Statement   of Errors Complained of on Apperal how or why the evidence could be
                                                           C P51   -CR-0004500-2016 Comm   v   Uppi,   N mole
                                                                              Opine




   Pa C S. §§ 780-113(a)(16)& (a)(19) & 18 Pa CS § 901
1..35                                                          1111113M(111 1111
 MC-51-CR-0032107-2015

                                                   1
consideredinsuMcientand lacking appropriate weight to convict, the claims should.have been

considered waived pursuant to the gide andthe:cited appellate deeisions interpreting it, and

'because theweight claim was not presented to the trial court as required. by .Pa R.Crim P 607(A)

The court did..go on,, however,, to thoroughly summarize and eValuate. the evidence in order to

demonstrate that it was generally.sufficient and of more than enough weight to convict

       Prio.r...to   the:submission of that opinion, on January 30, 2017, Superior tourt.entered an

order noting that on two occasions Appellant's appointed appellate counsel had failed to file a

timely docketing statement arid remanded, the matter to the.trial court for a determination as to

Whether counsel had abandoned Appellant: and to take further action as required to protect her

right to appeal,..includin.g but not limited to, the appointmentofnew counsel. That attorney filed

applications to withdraw,, on March 29th in Superior Court and March 30th in the trial: court, the

latter.granted the motion on that date:and. appointed another attorney on April        3..   On the 24'"

the Superior Court dismissed the applicatiOn to withdraw as moot, newly appointed counsel

having filed a docketing statement on April      191'..   However; on June 26th, 'after that attorney had

                  .0).Stptemipt. described :above.and the trial, court filed its opinion and
filed the Rule 1925

transmitted the record, that attorney filed an application to withdraw which the Court granted on

July' 17th.and again:remanded to the:trial patirtinstr4ting it to determine whether Appellant was

eligible.for.court appointed counscland take.the.appropriate. actions. The court did so and.

present counsel was appointed who'on August20th.filed a request for a remand to. allowhini to

file. another 1925(b,.)Statemeht    which resulted in the .ourt's-September :6th order; The. new,

Statement did hone the. issue somewhat and *limited it to insufficiency:

              .).The evidence was. insufficient to .slipportap.pellant'scrininal conspiracy
        conviction because the commonwealth failed 'to prove beyond .4 reasonable doubt.
       :that appellant or her alleged co -actor entered into an agreement with the other person
        the object of which was to jointly possess or:purchase .a controlled'. substance



                                                      2
MATTERS COMPLAINED OF ON APPEAL NUNCPRO TUNC, September. 7,2O17.That.

is a slight probably unintended Mischaracterization...ofan..elt of the crime as it implies there

must have been an agreement to. continue a joint possession as opposed to a transfer from one

conspirator to the other at some point

        To more tersely summarize the Commonwealth's evidence as cited to and described. in.

the court's previous opinion; it showed that the Appellant was observed by police,. who were..

conducting a surveillance of a residence from which they suspected drug sales were being. made,

to. have Made a   purchase and get in a motor vehicle being operated by her. brother.. Other officers

to. whom   that was reported.stopped.the vehicle and observed the drug on the brother's person.

While he and the .appellant were being searched and arrested, the latter stated to one   of the.
Officers that she had purchased the narcotics for her brother The officer elaborated on how that

admission came about on cross examination:

        Q. And you pulled her out of the car and arrested her based .on.information..from
        other officers; is that correct?
       ,A Yes, there were other officers...op.location; she was a female, got her out, I
        checked her .for any contraband which she did not have anything On. her. She
        stated that she did not have it. She purchased it amt.gaVe it to her brother
       Q How was this statement made? After, you put the cuffs on her when was [sic]
       the statement made?
       A I was checking her person, asked her did she have anything on her that I
       needed to know about, she said no, she purchased it and what she bought she gave
       to her brother, and that was it.

N.T.,. 10/18/.10, p. 12-13. As demonstrated by the court's summarization in its: previous .opininn,

though she denied purchasing or. handing any drugs to her brother, her trial testimony actually

fUrthetinferentially implicated her in the joint endeavor to acquire the drug. She claimed that,

on the evening in.question,she..was in the car with her brother and that they had gone    to..   her

friend Carolann's:.house, the residence at which the police had observed her rriakethe purchase,.

to pick up her food stamp card and phone charger which she had left there earlier. When she. was
told that Caralann was not. home they left.and went..to her mOther-iri-law's.hoUse to borrow

money to go food :shopping and were arrested. When they....stopped. there She claimed she did not

at any point on that. date have any narcotics interpossetsion.. On cross .examination, when

asked if her brother had driven all.the.Way. over from New Jersey where .he lived to take:. her food

shopping, she stated..that:he had come over to."hang out", that they had visited Carolarin earlier

that day when..she. left hex things there, .and denied telling the.ar.resting officer that shehad

purchased the drugs for.her brother. The irial court., as the fact finder, simply chose to believe.

'the Commonwealth's 'version     of     facts Over hers as. being the more credible, considering in

particular her admission tO.the officer that she had purchased the drugs forher brother to have

been a rashly..ill-conceived lame: attempt.t0 dispel the ramifications of her observed involvement

in the events.

            The.standard of review for 'sufficiency Of the evidence claims     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. finctevery element of the crime beyond areasOnable
                  doubt In applying the above test,, we may not weigh the evidence and
                  substitute our judgment for thefatt-finder: In addition we note that
                  the 'fact and circumstances established by 'the CommonWealth, need
                  not preclude every possibility .Ofinnocence Any doubts regarding a
                  defendant's suilt may 17e. resolved by the, fact-fihder. unless the
                  evidence is. so weak and inconclusive that as a matter of law no
                 'probability offact.may be drawn from the combined circurnstariees.
                 The Commonwealth may sustain its burden of proof or proving every
                 element of the. crime beyond a reasonabledbubt by: mans of wholly
                 circumstantial evidence. Moreover, in applying the above test the
                 entirerecord must be evaluated and all the evidence actually 'received
                 must be considered. Finally, the trier.offa.a.whi le. passing upon the..
                 credibility of witnesses and the weight of the evidence produced, is
                 free to believe all, part or none of the evidence.

       Commoriwea/.4h.v; Le,hazar4 .820 A. 2d .766,. 772 (Pa. Super ..2003) (citations. omitted),.
                                                  * *

          The Commonwealth 'presented sufficient evidence to establish these crimes
       The crime of delivery was, completed upon appellant's delivery of the 'heroin to.


                                                    4
       Thomas l(trchoff. Appellant completed the conspiracy in Shamokin when. he
       agreed.totravel to Reading: to purchase the drugs. The receipt of the money and.
       the trip to Reading were sufficient overt acts in furtherance of that conspiracy..
       Finally, appellant's possession of the drugs as a result of his purchase in Reading
       provided sufficient evidence for the crime of possession with intent to deliver.

Commonwealth v Nahavandicin, 2004 PA. Super 136; 849        A   2d1221. 1229-30:(2004), :conviction

for Drug Delivery Resulting in Death vacated and remandedfor reconsideration, 585Pa            460,

888 A 2d81.5.(2006), Although the appellant was acquitted       of possession,eVidenCe*tendingito

show that she acquired.possession.at some point also supports an element of a conspiracy.

           As appellant ..was not in .physical possession of the contraband,. the
       Commonwealth was required to establish that he had constructive possession of
       the seized items to support his convictions;

                 Constructive possession is a legal fiction, a pragmatic construct
               to deal with the realities of criminal law enforcement. Constructive
               possession is an inference arising from a set of facts that.
               possess ion of the contraband was more likely than not. We. have:
               defined constructive possession as conscious dominion. We
               subsequently defined conscious dominion as the power to control
               the contraband and the intent to exercise that control To aid
               application, we have held that constructive possession may be
               established. by the totality .of the circumstances

       Commonwealth v Brown, 48 A 3d 426, 430 (Pa Super 2012) appeal: denied; 61.9
       Pa. 697, 63 A 3d 1243 (2013). (internal quotation marks and citation omitted)
       Additionally, it is possible for two people to have joint: constructive possession of
       an item of contraband. Commonwealth v Bricker, 882 A.:2d 1008, 1016-1017
       (Pa Super 2005).


Commonwealth v Kinard, 2014 PA Super 41, 95.A. 3d 279, 292 (2014) The facts that appellant

was,obserVed obtaining the drug which ended up in her brother's Possession.. at some point after.

she returned to his vehicle after she Was. seen to have purchased it were by themselves sufficient

to support a conclusion beyond :a reasonable doubt that she had agreed to obtain it. for him

           Pursuant.to.our standard of review, we find the testimony sufficient to support
       appellant's conviction for PWD See also Commonwealth v Nelson, 399 Pa Super
       618, 582 A.2d 1115, 1119 (Pa.Super.1990),..appeal denied, 527 Po 664; 5P3.A 2d
       840 (1991). (constructive possession may be found where no individual factor
       esiablishes.possession:but the totality of circumstances infer such).
                                                5
           To prove criminal conspiracy,.. the Commonwealth must show a defendant
       entered into an agreement to commit or aid. in an unlawful act with another.
       person; that heal* that person acted. with a shared criminal intent; and that an
       overt act was taken in furtherance of the conspiracy .18 Pa CS A § 903. "An
       explicit or formal agreement to commit crimes can seldom, if ever, be proved and
       it need not be, for proof of a criminal partnership: is .almost invariably extracted
       from the circumstances that attend its activities," Commonwealth v Johnson, 719
          2d 778; 785 (Pa Super 1998) (en banO),..qppeal denied, 559 Pa 689; 739. A 2d
       .1056 (1999) (citations omitted). Therefore, where the conduct of the patties.
       indicates that they were acting in concert with A corrupt purpose in view, the
       existence of a.eriminal conspiracy may properly be inferred. Commonwealth v
       Snyder; 335 Pa Super 19, 483..A2d93.3, 942. (Pa..Super 1984): This court has
       held that the presence of the following non-exclusive list of circumstances when
       considered together and in the context of the crime may establish proof of a.
       conspiracy (1) an association between alleged conspirators,.(2) knowledge of the
       commission of the crime, (3) presence at the scene, of the crime, and (4).
       participation in the object of the conspiracy. Commonwealth v Swerdlow, 431
       PaSuper 453., 636 A.2d. 1173, 1177 (Pa Super 1994)

Id A 3d at 292-93 The non-exclusive list of circumstances in this case were (1) the association

between appellant and her brother and the joint use of his vehicle in executing the transactions

(acquisition and transfer of possession),. (2) her obvious knowledge of the commission of those'

transactions, (3) her presence at the scene of the crime, and (4). Observed.participation.ut the

Object of     conspiracy, the             of an illegal drug.

            In reviewing a challenge to the sufficiency   of the evidence,   we must determine:

                ...whether, viewing all the evidence admitted at trial,. together with all
                reasonable inferences therefrom, in the light most favorable to the
                Commonwealth, the trier of fact could have found that .eadh element
                of the offenses charged was supported by evidence and inferences
               :sufficient in law to prove guilt beyoncla reasonable doubt;

       Commonwealth v, Jackson, 506 Pa. 469, 472-473, 485 A 2d 1102, 1103 (1984)
       (citation omitted).

           Under existing law in Pennsylvania, the Commonwealth need notproVe.an
        explicit .or fornial agreement in order to establish the existence of a criminal.
       .conspirpcy..C9mmonwealth v. Mahltn, 270 Pa Super 290, 411 A 2d 532 (1979).
        Agreement may be shown inferentially by showing the relation, conduct or
       circumstances of the parties. Commonwealth v Jackson, 1.upr.O. Overt acts of
       alleged. co-conspirators are sufficient proof of a conspiracy Commonwealth v
       .Kennedy. 499. Pa .189, 453 A 2d 927. (1982)

                                                  6
Commonwealth v Rogers, 419 Pa. Super 122, .615 A 2d 55, 63 (1992) "Direct proof of the

corrupt agreement, lioweer,. is.. not necessary. Commonwealth v Brown, 351 Pa Super 119, 505

A   2d 295 (1986)" comnibrOealikV,.Anderson, 381 Pa. Super          1,   552 A 2d 1064, 1071 (1988),

appeal denied 524Pa, .616, 571      A   24.379 (1989) Although Present counsel did specify in the

revised   R.   1925(b) Statement that the Commonwealth's evidence failed to establish the element

of an agreement,. he did not indicate how or. why that evidence could not be considered to have

allowed ..the fact finder to justifiably draw the obvious inference that appellant had agreed to get

some heroin for her brother. The only very weakly disputed evidence as more thoroughly cited

in the trial court's previous opinion .Was more than sufficient to establish each and every element

.of a, wholly executed conspiracy to illegally obtain and possess a drug Wherefore, the judgment

of sentence should be affirmed.


                                                                         BY THE COURT:




                                                                         WILLIAMi AZZOLA,




                                                    7
