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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                 v.                       :
                                          :
STACEY VANCE,                             :
                                          :
                       Appellant          :     No. 261 EDA 2016

          Appeal from the Judgment of Sentence January 21, 2010
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-0003515-2009

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                               FILED JUNE 09, 2017

     Appellant, Stacey Vance, appeals from the Judgment of Sentence

entered in the Philadelphia County Court of Common Pleas, following his

convictions after a bench trial for Possession of a Controlled Substance With

Intent to Deliver (“PWID”), Criminal Conspiracy to commit PWID, and

Possession of a Controlled Substance.1 After careful review, we affirm.

     The trial court stated the relevant facts as follows:

     The incident in this case took place on February 25, 2009 around
     3:55 p.m. At Appellant’s waiver trial, Philadelphia Police Officer
     Richard Nicoletti testified that he first came into contact with
     Appellant at this time. Officer Nicoletti testified that he and his
     partner traveled to 3544 North 5th Street, Philadelphia, PA to
     serve a warrant. Before serving the warrant and with the
     assistance of a confidential informant (“CI”), the officers
     conducted a “controlled buy” from the same residence. The
     officers gave the CI $20 in prerecorded money and watched from

1
  35 P.S. § 780-113(a)(30); 18 Pa.C.S. § 903; and 35 P.S. § 780-
113(a)(16), respectively.
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     a vehicle across the street as the CI knocked on the front door of
     the residence. Co-defendant, Mr. Santiago, answered the door
     and, after a brief conversation, both men entered the house.
     Shortly after, the CI left the residence and returned to the
     officers, handing over four clear packets that contained crack-
     cocaine.

     The officers then instructed backup officers to execute the
     search warrant. The police knocked on the door, which was
     again answered by Mr. Santiago, and entered the home. One
     officer secured Mr. Santiago while another secured Appellant.
     Officer Nicoletti stated that he believed Appellant had been
     sitting on a couch by the front door when the police entered the
     home. Appellant was searched and $75 and a brown marijuana
     cigarette were discovered on his person. The $20 of prerecorded
     money from the CI was part of the $75 found on Appellant. Two
     clear packets of crack were found on Mr. Santiago. A third
     person in the home was searched [but] did not possess any
     money or drugs.

     After securing the three persons in the home, officers searched
     the house. On the first floor, officers found a hollowed out D
     battery that contained ten clear packets of crack-cocaine. Police
     also found fifty-seven clear packets of crack-cocaine in a hollow
     part of a kitchen table leg.

     Officer Nicoletti also stated that he had done surveillance on the
     residence three times prior to when the search occurred and had
     not seen the Appellant enter or exit the home during that time.
     Additionally, Officer Nicoletti testified that when Appellant was
     arrested he stated he did not live in the residence where the
     warrant was executed. Mr. Santiago, however, did live at that
     residence. Officer Nicoletti also stated that, while Appellant had
     been searched at the time of his arrest when the $75 was
     recovered, an additional $54 was found when Appellant was
     processed at Curran-Fromhold Correctional Facility.

Trial Court Opinion, dated 8/2/16, at 3-4 (unpaginated; citations omitted).

     Following a bench trial on January 21, 2010, the trial court convicted

Appellant of PWID, Criminal Conspiracy to commit PWID, and Possession of

a Controlled Substance. The trial court immediately sentenced Appellant to


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three to six years’ incarceration for PWID, and no further penalty on the

remaining charges.

      Appellant filed a timely Notice of Appeal on January 15, 2016.2 Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant’s sole issue on appeal challenges the sufficiency of the

evidence to support each of his convictions.    See Appellant’s Brief at 12.

Appellant contends that: (1) he did not participate in any sale between the

CI and co-defendant Santiago; (2) “no narcotics were found on Appellant’s

person and he did not attempt to flee during the execution of the warrant[;]”

(3) he was “merely present” in the house where the drug sale took place,

which is insufficient under Commonwealth v. Vargas, 108 A.3d 858 (Pa.

Super. Ct. 2014) (en banc);3 and (4) the transfer of the prerecorded buy

money found on Appellant’s person “could have occurred for a plethora of

reasons not related to a drug transaction.” Appellant’s Brief at 13-17.

      We review claims regarding the sufficiency of the evidence by

considering whether, viewing all the evidence admitted at trial in the light

2
  On January 8, 2016, the PCRA court reinstated Appellant’s appellate rights
nunc pro tunc pursuant to a PCRA Petition alleging ineffective assistance of
counsel for failing to file a requested appeal.
3
  This Court in Vargas rejected a defendant’s sufficiency challenge where he
claimed that he was merely present in a small hotel room where multiple
people operated a “mobile heroin mill” packaging raw heroin for street sales.
Vargas, supra at 869-70. This Court concluded that Appellant was an
active participant in the only activity being conducted in the small hotel
room, where drugs were in plain view, and there was no luggage belonging
to Appellant in the hotel room or in Appellant’s vehicle. Id. at 70.



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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. Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014).

Further, a conviction may be sustained wholly on circumstantial evidence,

and the trier of fact—while passing on the credibility of the witnesses and

the weight of the evidence—is free to believe all, part, or none of the

evidence. Id. In conducting this review, the appellate court may not weigh

the evidence and substitute its judgment for the fact-finder. Id.

     To prove the offense of PWID, the Commonwealth must demonstrate

beyond a reasonable doubt that: (1) the accused possessed a controlled

substance; and (2) the accused had the intent to deliver it to another.

Commonwealth v. Taylor, 33 A.3d 1283, 1288 (Pa. Super. 2011).

     Evidence is sufficient to support a conviction for Possession of a

Controlled Substance if the Commonwealth shows that the defendant,

“knowingly     or   intentionally   possessed   a   controlled   or   counterfeit

substance[.]” 35 P.S. § 780-113(a)(16).

     Where a defendant is not in actual possession of the recovered

contraband, the Commonwealth must establish that the defendant had

constructive possession to support the conviction:

     Constructive possession is a legal fiction, a pragmatic construct
     to deal with the realities of criminal law enforcement. [] 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



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      application, we have held that constructive possession may be
      established by the totality of the circumstances.

Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013) (citations

omitted).

      It is well established that, “[a]s with any other element of a crime,

constructive     possession     may     be    proven   by   circumstantial    evidence.”

Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996).                         In

other words, the Commonwealth must establish facts from which the trier of

fact can reasonably infer that the defendant exercised dominion and control

over the drugs. Vargas, supra at 868-69.

      It    is   insufficient   to    infer    “dominion    and    control”   when   the

Commonwealth provides only evidence of the defendant’s presence.                     See

Commonwealth v. Valette, 613 A.2d 548, 551 (Pa. 1992) (holding mere

presence at a place where contraband is found or secreted is insufficient

standing alone to prove constructive possession).                 Moreover, if the only

inference that the fact finder can make from the facts is a suspicion of

possession, the Commonwealth has failed to prove constructive possession.

Id.   The power to control the contraband “may be found in one or more

actors where the item in issue is in an area of joint control and equal

access.” Id. at 550.

      To sustain a conviction for Criminal Conspiracy, the Commonwealth

must demonstrate beyond a reasonable doubt that the defendant: (1)

entered into an agreement to commit or aid in an unlawful act with another;


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(2) with a shared criminal intent; and (3) an overt act in furtherance of the

conspiracy was done.     Commonwealth v. Feliciano, 67 A.3d 19, 25-26

(Pa. Super. 2013).       The conduct of the parties and the totality of

circumstances may create a web of evidence linking the defendant to the

alleged conspiracy beyond a reasonable doubt. Id. at 26. The conspiratorial

agreement can be inferred from a variety of circumstances, including the

relationship between the parties, knowledge of the crime, participation in the

crime, and the circumstances and conduct of the parties. Id.

      “Once a conspiracy is established, the actions of each co-conspirator

may be imputed to the other conspirators.”       Commonwealth v. Geiger,

944 A.2d 85, 91 (Pa. Super. 2008).          “[E]ach conspirator is criminally

responsible for the actions of his co-conspirator, provided that the actions

are accomplished in furtherance of the common design.”         Id.     “[A]n overt

act need not be committed by the defendant; it need only be committed by

a co-conspirator.” Commonwealth v. Bricker, 882 A.2d 1008, 1017 (Pa.

Super. 2005) (citation omitted).

      In determining the sufficiency of the evidence supporting the existence

of a conspiracy, this Court has identified several relevant factors:

      (1) an association between alleged conspirators; (2) knowledge
      of the commission of the crime; (3) presence at the scene of the
      crime; and (4) in some situations, participation in the object of
      the conspiracy. The presence of such circumstances may furnish
      a web of evidence linking an accused to an alleged conspiracy
      beyond a reasonable doubt when viewed in conjunction with
      each other and in the context in which they occurred.



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Commonwealth v. Ruiz, 819 A.2d 92, 97 (Pa. Super. 2003) (citations

omitted).

      The trial court concluded that the Commonwealth had presented

sufficient evidence to establish that Appellant had constructively possessed

and conspired to sell drugs. Trial Court Opinion at 7-8. We agree.

      Criminal Conspiracy to Commit PWID

      First, the evidence showed that Appellant directly participated in the

drug operation.     The Commonwealth established circumstantially that

Santiago handed Appellant the $20 from the drug sale shortly after the sale

before police executed the search warrant.      Police officers recovered no

money from Santiago, but did recover crack cocaine packets identical to

those found in the drug stash locations; police officers recovered marked

buy money and a brown marijuana cigarette from Appellant’s person, but no

crack cocaine packets identical to those found in the drug stash locations.

This “division of labor” demonstrates Appellant’s active participation in the

conspiracy to sell drugs.   See generally Commonwealth v. $6,425.00

Seized from Esquilin, 880 A.2d 523, 531 (Pa. 2005) (observing that “[i]t is

not unusual for drug dealing confederates to engage in a division of labor,

whereby one controls the drugs and the other the money.”).

      Second, the multiple locations, packaging, and methods of hiding the

drug packets also support the deliberate operational arrangement indicating

Appellant’s participation in the conspiracy.



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      Although Appellant stated to police that he did not live with Santiago

in that home, Appellant admitted that he was neighbor of Santiago and lived

across the street. This fact, combined with Santiago permitting Appellant to

observe criminal conduct in Santiago’s home, supported the inference of a

close association or relationship between Appellant and Santiago.        This

evidence flatly contradicts Appellant’s arguments that, similar to the

defendant in Vargas, he did not participate in the drug sales and was

merely present in the house.     Accordingly, the Commonwealth presented

sufficient evidence to support the Criminal Conspiracy conviction.

      Constructive Possession for PWID

      The evidence also showed that Appellant constructively possessed the

drugs and the Commonwealth presented sufficient evidence to support

Appellant’s PWID conviction.

      Appellant jointly and constructively possessed the crack cocaine in the

kitchen table leg and the battery. Appellant was sitting on a couch in close

proximity to the front door and within five feet of the cabinet where police

officers found the hollow battery in plain view containing ten packets of

crack cocaine. Also, Appellant was sitting within fifteen feet of the kitchen

table with a hollow leg containing an additional 57 identical packets of crack

cocaine.   Thus, the reasonable inference from these facts is that he had

“joint control and equal access.” Valette, supra.




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      Moreover, insofar as Appellant and Santiago were co-conspirators, the

court may impute Santiago’s direct possession and sale of the drugs to

Appellant as a co-conspirator. Geiger, supra at 91.4

      Finally, Appellant claims that there are numerous other innocent

explanations for his possession of the proceeds from the drug sale.

Appellant is essentially asking this court to view the evidence in the light

most favorable to him rather than the Commonwealth as the verdict winner.

This argument ignores our standard of review.        “We may not weigh the

evidence and substitute our judgment for the fact-finder.” Melvin, supra at

39-40.5

      In light of the above, we conclude that the Commonwealth presented

sufficient evidence to support each of Appellant’s convictions.

      Judgment of Sentence affirmed.




4
  Additionally, the record contradicts Appellant’s assertion that he did not
possess any narcotics: police officers recovered a brown marijuana cigarette
from Appellant’s person.
5
  Appellant’s passing assertions that he did not attempt to flee, which he
contends proves he is innocent, are similarly unpersuasive since it is within
the province of the fact-finder to weigh the evidence. See Commonwealth
v. Hanford, 937 A.2d 1094, 1097 (Pa. Super. 2007) (addressing and
rejecting a defendant’s requested absence of flight as consciousness of
innocence jury instruction and stating that a suspect’s failure to flee was
“open to multiple interpretations, many of which have little to do with
consciousness of guilt, and which could actually reflect a strategic choice.”).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/9/2017




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