J-S28036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
                          v.               :
                                           :
                                           :
 JAMEL BAXTER,                             :
                                           :
                                           :   No. 1969 MDA 2017
              Appellant

            Appeal from the Judgment of Sentence July 27, 2017
             in the Court of Common Pleas of Lebanon County,
            Criminal Division at No(s): CP-38-CR-0001469-2016

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED JULY 20, 2018

      Jamel Baxter (“Baxter”) appeals from the judgment of sentence imposed

following his convictions of one count each of possession with intent to deliver

a controlled substance, possession of a controlled substance, possession of

drug paraphernalia, and escape, and three counts of criminal conspiracy. See

35 P.S. § 780-113(a)(30), (16), (32); 18 Pa.C.S.A. § 5121(a); 903(a)(1). We

affirm.

      The trial court aptly summarized the facts as follows:

              On December 14, 2012, Sergeant Brett Hopkins
      (hereinafter “Sgt. Hopkins”) was conducting surveillance in the
      800 block of Willow Street, which is known to be a high drug/crime
      area. At 11:00 p.m. that evening, he and another detective
      observed two individuals exit a vehicle, knock on a window and
      enter a residence. The two individuals departed the residence
      within minutes and then entered the Silver Dollar bar at 9 th and
      Willow Streets. The two individuals left shortly before midnight.
J-S28036-18


               Sgt. Hopkins then followed the individuals as they drove
      to a gas station in a vehicle. At the gas station, the passenger of
      the vehicle [Nessan Ruffin (“Ruffin”)] was observed meeting with
      someone and engaging in a hand-to-hand exchange. Based upon
      the experience and training of Sgt. Hopkins and his fellow
      detective, they believed they had just witnessed a drug
      transaction, so they then contacted Officer Minnick (now
      “Detective Minnick”), who was then working as a Lebanon City
      Police Department patrolman.         At this time[,] [Baxter] was
      identified as the driver of the vehicle.

               Detective Minnick then began to follow the vehicle based
      upon the information he received from Sgt. Hopkins. Detective
      Minnick made contact with [Baxter], who was the driver of the
      vehicle. Neither [Baxter] nor [Ruffin] were the owner of the
      vehicle, so Detective Minnick made contact with the vehicle’s
      owner and received consent to search the vehicle.

                Detective Minnick then returned to the vehicle and asked
      [Baxter] to exit the vehicle. Detective Minnick observed that
      [Baxter] had something cupped in his hands, so he asked [Baxter]
      what he was holding. [Baxter] proceeded to place his hand behind
      his back. Detective Minnick stated that he feared that [Baxter]
      was reaching for a weapon, so he grabbed [Baxter’s] arm. Once
      he grabbed [Baxter’s] arm, multiple baggies of what appeared to
      be crack cocaine fell onto the ground. [Baxter] was then advised
      that he was being placed under arrest. … [Baxter] turned toward
      the vehicle and fled on foot, and was not apprehended that night.
      In total, twelve (12) baggies of crack cocaine were found on the
      ground and in the vehicle. Currency in the amount of $660.00
      was also found.      Further, [Ruffin] was found to be in the
      possession of two (2) continuously ringing cell phones.

Trial Court Opinion, 11/9/17, at 2-4 (citations omitted).

      On May 3, 2017, following a jury trial, Baxter was convicted of the

above-mentioned crimes. On July 27, 2017, the trial court sentenced Baxter

to an aggregate prison term of thirty months to fifteen years. Baxter filed

timely Post Sentence Motions on July 31, 2017. On November 9, 2017, the

trial court denied Baxter’s Post Sentence Motions. Baxter filed a timely Notice


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of Appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

matters complained of on appeal.

      On appeal, Baxter raises the following questions for our review:

      1. Whether [Baxter’s] motion for acquittal should be granted due
         to the Commonwealth’s failure to present sufficient evidence at
         trial?

      2. Whether the jury’s verdict was against the weight of the
         evidence?

Brief for Appellant at 4 (numbers added).

      Baxter argues that the evidence was insufficient to support his

possession of a controlled substance, possession with intent to deliver and

criminal conspiracy convictions.      Id. at 9.   Baxter argues that he did not

possess the drugs with intent to deliver because Ruffin engaged in the hand-

to-hand exchange, and was found with ringing cell phones and money on his

person. Id. at 9, 10. Baxter also asserts the Commonwealth failed to meet

its burden in proving the elements of conspiracy because he was merely

sharing a vehicle and entered a home with Ruffin. Id. at 10; see also id.

(arguing that Ruffin completed a drug deal without Baxter).

      We apply the following standard of review when considering a challenge

to the sufficiency of the evidence:

      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

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      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.

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

omitted).

      The Controlled Substance, Drug, Device, and Cosmetic Act provides, in

relevant part, the following:

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

                                      ***

            (16) Knowingly or intentionally possessing a controlled or
            counterfeit substance by a person not registered under this
            act, or a practitioner not registered or licensed by the
            appropriate State board, unless the substance was obtained
            directly from, or pursuant to, a valid prescription order or
            order of a practitioner, or except as otherwise authorized by
            this act.

                                      ***

            (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.


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35 P.S. § 780-113(a)(16), (30).

      The standard for proving possession with intent to deliver is as follows:

               In order to uphold a conviction for possession of narcotics
      with the intent to deliver, the Commonwealth must prove beyond
      a reasonable doubt that the defendant possessed a controlled
      substance and did so with the intent to deliver it. The intent to
      deliver may be inferred from an examination of the facts and
      circumstances surrounding the case. Factors which may be
      relevant in establishing that drugs were possessed with the intent
      to deliver include the particular method of packaging, the form of
      the drug, and the behavior of the defendant.

Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000)

(citations omitted).

      The Crimes Code defines criminal conspiracy as follows:

      (a)   Definition of conspiracy.—A person is guilty of conspiracy
            with another person or persons 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[.]

18 Pa.C.S.A. § 903(a)(1).

      To convict a defendant of conspiracy, the trier of fact must find
      that: (1) the defendant intended to commit or aid in the
      commission of the criminal act; (2) the defendant entered into an
      agreement with another (a “co-conspirator”) to engage in the
      crime; and (3) the defendant or one or more of the other co-
      conspirators committed an overt act in furtherance of the agreed
      upon crime.

Commonwealth v. Murphy, 844 A.2d 1228, 1236 (Pa. 2004).               “In most

cases of conspiracy, it is difficult to prove an explicit or formal agreement;

hence, the agreement is generally established via circumstantial evidence,

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such as by the relations, conduct, or circumstances of the parties or overt acts

on the part of co-conspirators.” Commonwealth v. Collins, 70 A.3d 1245,

1250 (Pa. Super. 2013) (citation omitted). Further, “[w]here the conduct of

the parties indicates they were acting in concert with a corrupt purpose in

view,    the    existence   of   a   conspiracy   may   be   properly   inferred.”

Commonwealth v. Clark, 746 A.2d 1128, 1137 (Pa. Super. 2000) (citation

omitted).      Additionally, a defendant is liable for the actions of his co-

conspirators if those actions were in furtherance of the common criminal

design. Commonwealth v. King, 990 A.2d 1172, 1178 (Pa. Super. 2010).

        Here, Sgt. Hopkins testified that he saw Baxter and Ruffin go into a

house and leave a few minutes later; subsequently, the pair drove to a gas

station. N.T., 5/3/17, at 16, 17.       At the gas station, the passenger of the

vehicle, Ruffin, was observed engaging in a hand-to-hand exchange with

another person. Id. at 17. Believing it was a drug transaction, Sgt. Hopkins

contacted Detective Minnick, who began to follow the vehicle. Id. at 17, 25.

        Detective Minnick testified that he approached the vehicle and made

contact with Baxter. Id. at 24-25. After determining that neither Baxter nor

Ruffin was the owner of the vehicle, Detective Minnick obtained consent from

the owner to search the vehicle. Id. at 28. Thereafter, Detective Minnick

asked Baxter to exit the vehicle, at which time Detective Minnick observed

that Baxter appeared to have something in his hand. Id. When Baxter placed

his hand behind his back, Detective Minnick grabbed his arm, fearing that


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Baxter was reaching for a weapon.     Id.   When Detective Minnick grabbed

Baxter’s arm, multiple baggies of crack cocaine fell onto the ground.     Id.

Detective Minnick told Baxter he was under arrest, at which time Baxter fled

on foot, and was not apprehended that night. Id. at 29. Other bags of crack

cocaine were found on the floorboard on the driver’s side and in the driver’s

side door pocket.   Id. at 30. Further, $660 in cash and two continuously

ringing cell phones were recovered from Ruffin. Id. at 32, 33.     Detective

Minnick indicated that the drugs were possessed with the intent to deliver,

because there was no drug paraphernalia found; Ruffin had a large amount of

money; and the two cell phones were ringing continuously. Id. at 38-39.

     Viewing the evidence in a light most favorable to the Commonwealth,

we conclude that the evidence established an agreement between Baxter and

Ruffin to possess and deliver the drugs. See Murphy, 844 A.2d at 1236.

While Baxter may not have conducted the hand-to-hand transactions, he

committed overt acts in furtherance of the illicit enterprise by holding the

drugs. See Commonwealth v. McCall, 911 A.2d 992, 997 (Pa. Super. 2006)

(noting that while defendant did not handle the drugs, he took an active role

in the conspiracy); see also Murphy, 844 A.2d at 1239 (stating that where

the overt act requirement was satisfied when the co-conspirator delivered

drugs to the buyer).   Thus, the evidence is sufficient to sustain Baxter’s

conviction of criminal conspiracy. See Commonwealth v. Ruiz, 819 A.2d

92, 97-98 (Pa. Super. 2003) (concluding that appellant acting in concert with


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cohort sustained a conspiracy connection). Further, because the evidence is

sufficient to prove that Baxter conspired with Ruffin to sell drugs, it is also

sufficient to sustain his convictions of possession of a controlled substance

and possession with intent to deliver.     See Commonwealth v. Holt, 711

A.2d 1011, 1017 (Pa. Super. 1998) (stating that “when the appellant was

convicted of conspiracy to possess with intent to deliver …, he is also culpable

for the crime itself, that is possession with intent to deliver.”). Accordingly,

we cannot grant Baxter relief on this claim.

      In his second claim, Baxter argues that the jury verdict was against the

weight of the evidence. Brief for Appellant at 10. Baxter points out that at

no time did law enforcement see him engage in a hand-to-hand delivery, and

he did not personally possess the cell phones or the money. Id. at 11. He

contends that the absence of paraphernalia did not demonstrate that he was

a dealer. Id.

      We apply the following standard of review for weight of evidence claims:

      A verdict is against the weight of the evidence only when the jury’s
      verdict is so contrary to the evidence as to shock one’s sense of
      justice. A weight of the evidence claim is primarily directed to the
      discretion of the judge who presided at trial, who only possesses
      narrow authority to upset a jury verdict on a weight of the
      evidence claim. Assessing the credibility of witnesses at trial is
      within the sole discretion of the fact-finder. A trial judge cannot
      grant a new trial merely because of some conflict in testimony or
      because the judge would reach a different conclusion on the same
      facts, but should only do so in extraordinary circumstances, when
      the jury’s verdict is so contrary to the evidence as to shock one’s
      sense of justice and the award of a new trial is imperative so that
      right may be given another opportunity to prevail. On review, an
      appellate court determines whether the trial court abused its

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     discretion based upon review of the record; its role is not to
     consider the underlying question in the first instance.

Commonwealth v. Blakeney, 946 A.2d 645, 652-53 (Pa. 2008) (citation

and quotation marks omitted).

     Here, the jury, sitting as fact-finder, was free to weigh the credibility of

Sgt. Hopkins and Detective Minnick in rendering the verdict. See Trial Court

Opinion, 11/9/17, at 8. Based on the record, the jury’s decision is supported

by the evidence, and does not shock one’s sense of justice. Thus, the trial

court did not abuse its discretion in denying Baxter’s weight of the evidence

claim. See Blakeney, 946 A.2d at 653.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/20/2018




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