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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                :     IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                          Appellee           :
                                             :
                    v.                       :
                                             :
HASSAN GRAVES,                               :
                                             :
                          Appellant          :     No. 740 EDA 2015

            Appeal from the Judgment of Sentence October 6, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0004794-2013

BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY DUBOW, J.:                               FILED MARCH 04, 2016

        Appellant, Hassan Graves, appeals from the judgment of sentence

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

non-jury trial convictions for Possession of a Controlled Substance With

Intent to Deliver (PWID) and Criminal Conspiracy to commit PWID.1

Appellant filed a post-submission application for relief. After careful review,

we affirm on the basis of the trial court’s opinion, and remand for the

appointment of counsel.

        The trial court stated the relevant facts as follows:

        On December 15, 2012, Appellant, along with codefendants
        Angel Alverez, and Larry Riggins, were observed by a Narcotics
        Strike Force surveillance operation distributing narcotics on the
        200 block of E. Stella Street. [N.T.], 01/6/2014, at 6. Officer

1
    35 P.S. § 780-113(a)(30), and 18 Pa.C.S. § 903, respectively.
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     Reilly of the Narcotics Strike Force witnessed an individual later
     identified as John Little approach Appellant and Riggins on a
     bicycle. Id. at 8. Officer Reilly testified that both Appellant and
     Riggins handed an unknown amount of currency to Little. Id.
     Little promptly rode his bike to 236 E. Stella St, and knocked on
     the door. Id. He was greeted by Alvarez and entered the
     property for a very brief period before exiting with a bundle of
     heroin. Id. at 9. Little then handed this package to Riggins,
     who placed it under a tire in a nearby vacant lot. Id. A short
     while later, an individual later identified as Krystian Tuliszewski
     parked a vehicle on the corner, approached Appellant and
     Riggins and engaged in a short conversation. Id. Tuliszewski
     then handed Appellant money. Id. Appellant proceeded to
     remove a clear baggie from the front of his pants area, remove
     objects from that baggie, and hand them to Tuliszewski. Id.
     Tuliszewski returned to his vehicle, and drove away. Id. at 10.
     The vehicle was then stopped by police. Id. Recovered on
     Tuliszewski were two bags of a substance later verified as
     cocaine, and two bags later verified as heroin stamped “iDope”.
     Id.; N.T., 05/09/2014, at 66.

     A short time later, Gerrilyn Timpson approached the corner and
     engaged both Appellant and Riggins in brief conversation before
     handing Riggins currency. N.T., 01/6/2014, at 10. Riggins then
     retrieved heroin from the tire and completed the transaction.
     Id. at 11. Riggins went on to complete heroin deals in this
     manner with Kevin Bellomo, and later Leslie Griggs, all in the
     presence of Appellant.       Id. at 11-12.    Each buyer was
     apprehended with matching packets of heroin stamped “Cartel”,
     except Tuliszewski, whose bags were stamped “iDope”. Id. at
     10-13. Tuliszewski was also in possession of two blue-tinted
     packets of cocaine. Id. at 10.

     Following the departure of Leslie Griggs, officers approached
     Appellant, Riggins, and Little. Id. at 13. Appellant fled from
     police on foot but was apprehended. Id. Recovered from his
     person were three jars of marijuana, 41 blue-tinted packets of
     cocaine, and $453. Id. at 14. The cocaine on his person was
     packaged identically to the two packets recovered from
     Tuliszewski. Id.

Trial Court Opinion, dated 6/29/15, at 2-3.




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        On October 6, 2014, the trial court sentenced Appellant to three to six

years’ incarceration, followed by five years’ probation.     Appellant filed a

post-sentence motion on October 16, 2014, which was denied by operation

of law on February 13, 2015. Appellant filed a timely Notice of Appeal on

March 10, 2015. Both Appellant and the trial court complied with Pa.R.A.P.

1925.

        Appellant raised one issue on appeal:

        Whether the trial court erred as a matter of law in finding the
        Appellant guilty of the crime of criminal conspiracy to possess a
        controlled substance with the intent to deliver where the
        evidence adduced at trial only showed that Mr. Graves and his
        alleged co-conspirator, Mr. Riggins, engaged in separate drug
        transactions with no help or assistance from the other.

Appellant’s Brief at 4.

        We review claims regarding the sufficiency of the evidence by

considering 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.    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.




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      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).

      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;

(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.   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.

      In his sole claim on appeal, Appellant argues that the evidence was

insufficient to support his criminal conspiracy conviction. Appellant contends

that: (1) he did not participate in any sale between Riggins and the other

individuals; (2) he only possessed cocaine and marijuana rather than heroin;

(3) he never handled the heroin that Little delivered to Riggins, who placed

the heroin in an alleyway tire; and (4) the heroin recovered from 236 East




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Stella Street pursuant to the search warrant did not match the drugs

recovered from Appellant. Appellant’s Brief at 18-23.

        The Honorable Charles A. Ehrlich has authored a comprehensive,

thorough, and well-reasoned opinion, citing to the record and relevant case

law in addressing Appellant’s sufficiency claim on appeal.      See Trial Court

Opinion, dated 6/29/15, at 8-12 (holding that the evidence was sufficient to

support Appellant’s conspiracy conviction because: (1) “the actions consisted

of several drug sales in close proximity, both temporally and physically,

using methods of operation typical of open-air drug markets[;]” (2) the

“repeated     interactions   between   multiple     co-defendants   and   various

buyers[;]” (3) “Appellant’s financial contribution to Little preceding the

heroin purchase[;] and (4) “the lack of overlap in narcotics for sale[,] with

Appellant distributing cocaine and possessing individually packaged vials of

marijuana, and Riggins distributing heroin”).

        After a careful review of the parties’ arguments and the record, we

affirm on the basis of the trial court’s opinion.

        Appellant filed an “Application for Relief: Motion to Reinstate Direct

Appeal and for Appointment of New Court[-]Appointed Counsel Filed Nunc

Pro Tunc” on February 25, 2016. In light of this Court’s Order filed May 19,

2015, reinstating the appeal, we deny this application for reinstatement as

moot.




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      With respect to Appellant’s request for the appointment of new

counsel, we remand to the trial court for the appointment of counsel within

seven days of the filing of this Memorandum Opinion. Appellant shall have

fourteen days from the date the trial court appoints new counsel in which to

file a petition for reargument, if he so chooses.

      Judgment of sentence affirmed. Application for Relief denied in part,

granted in part. Case remanded for the appointment of new counsel within

seven days. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/4/2016




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