J-S05038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

LEON PATRICK WAGNER

                            Appellant                  No. 1163 WDA 2014


           Appeal from the Judgment of Sentence February 25, 2014
              In the Court of Common Pleas of Venango County
              Criminal Division at Nos: CP-61-CR-0000270-2013
                         and CP-61-CR-0000276-2013


BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                             FILED APRIL 27, 2015

        Appellant Leon Patrick Wagner appeals from the Court of Common

Pleas of Venango County’s (trial court) February 25, 2014 judgment of

sentence. Upon review, we vacate the sentence and remand the case to the

trial court for resentencing.

        On June 6, 2013, Officer Steven Rembold, Oil City Police Department,

charged Appellant with, inter alia, delivery of a controlled substance

(heroin)1 and conspiracy to deliver a control substance (heroin)2 (First

Case).     In his affidavit of probable cause accompanying the complaint,

Officer Rembold alleged in part:
____________________________________________


1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S.A. § 903(a); 35 P.S. § 780-113(a)(30).
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      (3). On 09MAR13 at approx. 2014 I was dispatched to a male
      unconscious in the area between SouthSide Country Fair and
      CVS. Upon arrival I found a white male unconscious with wha[t]
      appeared to be agonal breathing. The male, later identified by a
      PA [driver’s license I] located in his wallet as Raymond Hinojosa,
      was partially on the pavement of the CVS parking lot and
      partially on the wooded section between CVS and Country Fair.
      (4) On 12MAR13 Ramond Hinojosa came on station with family
      members and spoke with Chief Wenner and advised that he was
      at a meeting and [Appellant] called his cell and asked [Hinojosa]
      to come over to [Appellant’s] [r]esidence. Upon arrival Hinojosa
      stated that they [Appellant] and his girlfriend Kathy brought out
      heroin[] and a syringe and handed it to [Hinojosa]. Hinojosa
      stated there was an open fold of heroin[] on a mirror and what
      they handed him was a closed up fold of heroin[]. At that point
      Hinojosa stated he shot up the heroin[] and that was the last
      [thing] he remembers.

Affidavit of Probable Cause, 5/22/13 (capitalization omitted). On June 13,

2013, Officer Rembold filed another criminal complaint against Appellant,

charging Appellant with, inter alia, illegal possession of a firearm under 18

Pa.C.S.A. § 6105(c)(2) (persons not to possess) (Second Case).          In his

affidavit of probable cause accompanying the second complaint, Officer

Rembold alleged in pertinent part        that “[w]hile   serving warrant at

[Appellant’s] residence (2) firearms were in plain view. .22 cal rifle and a

30-06 rifle. Both rifles were seized and logged into evidence.” Affidavit of

Probable Cause, 6/3/13.

      On November 15, 2013, a jury found Appellant guilty of all charged

offenses in the First Case.   On January 24, 2014, a jury found Appellant

guilty of illegal possession of a firearm in the Second Case. For purposes of

sentencing, the trial court consolidated both cases filed against Appellant.

On February 25, 2014, the trial court sentenced Appellant to an aggregate of

5 ½ to 11 years in prison. Specifically, with respect to the delivery of heroin


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conviction in the First Case, the trial court sentenced Appellant to the

mandatory minimum sentence of 24 months’ imprisonment, “because the

jury found that it occurred within one thousand (1000) feet of a school zone”

in violation of 18 Pa.C.S.A. § 6317 (drug-free school zones).3        On the

Second Case, the trial court sentenced Appellant to three to six years’

imprisonment consecutive to the sentence imposed in the First Case.

       On March 6, 2014, Appellant filed a post-sentence motion, challenging

his conviction for conspiracy to deliver heroin and the discretionary aspects

of his sentence. The trial court issued an order and opinion on June 9, 2014,

denying the motion. Appellant timely appealed to this Court.

       Following Appellant’s filing of a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal, the trial court issued a Pa.R.A.P. 1925(a) opinion,

largely adopting its June 9, 2014 opinion in support of its order denying

Appellant’s post-sentence motion.

       On appeal, Appellant raises two issues for our review:

       [1.] Is the [s]entence imposed upon [Appellant], although within
       the standard range, too harsh for the conduct he was found
       guilty of committing, and thus unreasonable, manifestly
       excessive and an abuse of discretion?
       [2.] Was the evidence presented at the time of trial insufficient
       to sustain the guilty verdict in [the First Case] at [c]ount 2
       [c]riminal [c]onspiracy/[d]elivery of [h]erion when [Appellant’s]
       sole alleged co-conspirator was acquitted of the conspiracy
       charges and no other conspirators were alleged?
____________________________________________


3
  On the First Case, the trial court also sentenced Appellant to a consecutive
sentence of six to 12 months’ imprisonment for offenses not material to this
appeal.



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Appellant’s Brief at 6.

      We first address Appellant’s second argument that the evidence at trial

was insufficient to convict him of conspiracy to deliver heroin.

      Preliminarily, “[a] claim challenging the sufficiency of the evidence is a

question of law.”    Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.

2000).

      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 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. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014)

(emphasis added), appeal denied, 95 A.3d 275 (Pa. 2014).

      Section 903 of the Crimes Code, relating to criminal conspiracy

provides in relevant part:

      (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:

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         (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; or
         (2) agrees to aid such other person or persons in the
         planning or commission of such crime or of an attempt or
         solicitation to commit such crime.
       ....
      (e) Overt act.--No person may be convicted of conspiracy to
      commit a crime unless an overt act in pursuance of such
      conspiracy is alleged and proved to have been done by him or by
      a person with whom he conspired.

18 Pa.C.S.A. § 903(a), (e). “To sustain a conviction for criminal conspiracy,

the Commonwealth must establish that the defendant (1) entered into an

agreement to commit or aid in an unlawful act with another person or

persons, (2) with a shared criminal intent and (3) and overt act was done in

furtherance of the conspiracy.”   Commonwealth v. Hennigan, 753 A.2d

245, 253 (Pa. Super. 2000) (citation omitted).      “Because it is difficult to

prove an explicit or formal agreement to commit an unlawful act, such an

act may be prove[n] inferentially by circumstantial evidence, i.e., the

relations, conduct or circumstances of the parties or overt acts on the part of

the co-conspirators.” Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa.

Super. 2013).    Thus, “[t]he Commonwealth does not have to prove that

there was an express agreement to perform the criminal act; rather, a

shared understanding that the crime would be committed is sufficient.”

Commonwealth v. Nypaver, 69 A.3d 708, 715 (Pa. Super. 2013)

(emphasis added). Finally, we have identified four factors to be utilized in




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determining the sufficiency of the evidence supporting the existence of a

conspiracy:

     Among the circumstances which are relevant, but not sufficient
     by themselves, to prove a corrupt confederation are: (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.

Commonwealth. v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002),

citing Commonwealth v. Carter, 416 A.2d 523 (Pa. Super. 1979).

     Here, Appellant appears to challenge only the first factor.                In this

regard, Appellant argues the Commonwealth failed to offer any evidence

that his alleged co-conspirator, i.e., his wife (Kathy Novak) who was

acquitted      of   the   conspiracy   charge,   was   “part   of   the    conspiracy

whatsoever.” Appellant’s Brief at 14. We disagree. As the trial court noted,

“there   was    more      than   enough   evidence   adduced   from       the   various

testimonies presented at trial by which the jury could convict [Appellant] on

Count 2, Criminal Conspiracy – Deliver Heroin.”            Trial Court’s Opinion,

6/9/14, at 9. The trial court summarized the testimonies as follows:

            Appellant and his wife[/co-defendant] were at their place
     of residence located in an apartment complex at 214 Lincoln
     Street, Oil City, Pa., (“Apartment”). Sometime between half
     past seven o’clock and ten minutes to eight o’clock that evening,
     Bill Exley (“Exley”), Joel Balot, (“Balot”) and Raymond Hinojosa
     (“Hinojosa” or “Bookie”) arrived in turn at the Apartment . . . .
     Prior to Exley’s arrival, Balot testified he drove his minivan, a
     Dodge Caravan, to the Apartment in order to buy heroin from
     [Appellant] and Novak[, i.e., his wife]. Balot further testified
     that when he knocked on the door, Novak answered and
     proceeded to let him in. According to the testimony of both
     Exley and Balot, Hinojosa or “Bookie” was already at the
     Apartment when they each arrived. Both Exley and Balot stated
     that when they each arrived at the Apartment, Bookie was


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     overdosing (“OD’ing”). According to Exley, Bookie was sitting on
     the couch in the Apartment gasping for air and unconscious. . . .
     In addition, Exley and Balot testified that they, along with
     [Appellant] and Novak, each attempted to revive Bookie by
     slapping him, getting air into him, and talking to him.
       ....
     The jury also heard from the victim, [Hinojosa], also known as
     Bookie.     Bookie, the nephew of Novak, [Appellant’s] wife,
     testified that he drove to the Apartment and arrived there about
     a quarter to eight on the evening of March 9, 2013. Bookie
     stated his purpose in going there was to visit his aunt, but that
     while he was there he was given two folds of heroin by
     [Appellant]. Bookie also testified that he had just completed
     sixteen (16) days of rehabilitation for heroin abuse five days
     prior to visiting his aunt and [Appellant]. Bookie stated that
     while Novak, his aunt, was present in the Apartment, he was
     handed the heroin by [Appellant]. Bookie testified he then “shot
     up” the heroin intravenously in the living room using supplies
     given [to] him by [Appellant]. [Bookie] further stated that both
     [Appellant] and [Novak] were present when he was using it. . . .
           The jury also heard the testimony of Amy Baron (“Baron”),
     a tenant in the same apartment complex, whose apartment is
     situated directly beneath [Appellant] and Novak’s apartment.
     [Baron] testified that she frequented their apartment in order to
     buy heroin to get her fix. In fact, that very evening, March 9,
     2013, Baron called [Appellant’s] apartment in order to buy
     narcotics.
Id. at 2-5 (internal record citation omitted).   Based on our review of the

entire record and viewing the evidence in the light favorable to the

Commonwealth, thereby giving it the benefit of the reasonable inferences

derived therefrom, we conclude that the Commonwealth presented sufficient

evidence to sustain Appellant’s conviction for conspiracy to deliver heroin.

Indeed, in the matter sub judice there was a strong association between

Appellant and his alleged co-conspirator by virtue of their marriage.    See

Nypaver, 69 A.3d at 715 (“Appellant was married to the perpetrator, and

accordingly, there was a strong association between them.”). Thus, it was

reasonable for the jury to infer that Appellant had a shared understanding to


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deliver the heroin.   Id.   As the trial court noted, “it stretches credulity to

believe [Appellant] possessed such drugs without the knowledge or, at least,

the tacit agreement of Novak. Moreover, Bookie testified that when he was

given the heroin, only he, [Appellant], and Novak were present at the

Apartment.”     Id. at 8.     The jury, therefore, could have inferred by

circumstantial evidence that Appellant engaged in a criminal conspiracy with

his wife. Accordingly, given the circumstantial evidence, the trial court did

not err in concluding that the jury had sufficient evidence to convict

Appellant of conspiracy to delivery heroin.

      To the extent Appellant argues he should not have been convicted for

criminal conspiracy because his co-conspirator/wife was acquitted of the

same during the joint trial, we disagree. “[O]ur Courts have held that the

acquittal of a defendant’s sole alleged co-conspirator does not preclude

prosecution and conviction of that defendant on a conspiracy charge.”

Commonwealth v. Fremd, 860 A.2d 515, 521 (Pa. Super. 2004)

(emphasis added), appeal denied, 889 A.2d 1213 (Pa. 2005), citing

Commonwealth v. Campbell, 651 A.2d 1096, 1098 (Pa. 1994).                  “The

express language of the statute does not require that an alleged co-

conspirator be charged or convicted of the conspiracy.” Fremd, 860 A.2d at

521. Furthermore, we have held that inconsistent verdicts are not a basis

for reversal.   See Commonwealth v. Larsen, 682 A.2d 783, 789 (Pa.

Super. 1996). It is well-settled that juries may render inconsistent verdicts.


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See Commonwealth v. Coon, 695 A.2d 794, 799 (Pa. Super. 1997),

appeal denied, 717 A.2d 1027 (1998).                    “The rationale for allowing

inconsistent verdicts is that it is the jury’s sole prerogative to decide on

which counts to convict in order to provide a defendant with sufficient

punishment.      An acquittal cannot be interpreted as a specific finding in

relation to some of the evidence.”             Commonwealth v. Miller, 657 A.2d

946, 948 (Pa. Super. 1995) (citation and quotation marks omitted).

Inconsistent verdicts by a jury will not be disturbed, provided that the

Commonwealth produces sufficient evidence of a crime for which the

defendant is convicted. Id. Instantly, as noted above, the Commonwealth

indeed produced sufficient evidence to sustain Appellant’s conviction for

conspiracy to deliver heroin.

        Next,   based     on   a    recent     panel   decision   of   this   Court   in

Commonwealth v. Bizzel, 107 A.3d 102 (Pa. Super. 2014), we must

review the trial court’s decision to sentence Appellant to a mandatory

minimum sentence of 24 months’ imprisonment for delivery of heroin in a

school zone under Section 6317 (drug-free school zones) of the Crimes

Code.     In Bizzel, this Court ruled Section 6317 unconstitutional in its

entirety based on Newman.4 Bizzel, 107 A.3d at 106.



____________________________________________


4
    Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc).



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       Initially, we point out that, pursuant to Alleyne,[5] Section
       6317(b) is now an element of the crime despite the language in
       the statute specifically stating that it was not an element.
       Thus, the legislature clearly did not intend the result mandated
       by the decision in Alleyne.
       Additionally, we conclude that [Section] 6317(b) cannot be
       severed from the rest of the statute because there would be no
       enforcement mechanism.          In addressing a similar issue
       regarding Alleyne and 42 Pa.C.S. § 9712.1, this Court explained
       as follows:
           We find that Subsections (a) and (c) of Section 9712.1 are
           essentially and inseparably connected. Following Alleyne,
           Subsection (a) must be regarded as the elements of the
           aggravated crime of possessing a firearm while trafficking
           drugs. If Subsection (a) is the predicate arm of Section
           9712.1, then Subsection (c) is the “enforcement” arm.
           Without Subsection (c), there is no mechanism in place to
           determine whether the predicate of Subsection (a) has
           been met.
       . . . Newman, 99 A.3d [at] 101 . . . . In the case at bar, after
       reviewing the language in [Section] 6317 pursuant to our rules
       of statutory construction, it is apparent that Section 6317(a) is
       the predicate arm and Section 6317(b) is the enforcement arm.
       Without 6317(b) there is no mechanism in place to determine
       whether the predicate enumerated in Section 6317(a) has been
       met.
       [T]he United States Supreme Court’s decision in Alleyne
       rendered Section 6317(b) unconstitutional. In the instant case,
       after careful review and pursuant to the rules of statutory
       construction set forth in 1 Pa.C.S.[A.] § 1925, we conclude that
       the remainder of [Section] 6317 is inseparably connected with
       and dependent upon the unconstitutional provision in Section
       6317(b). It cannot be presumed the General Assembly would
       have enacted the remaining provisions without Section 6317(b),
       and the remaining provisions, standing alone, are incomplete
       and are incapable of being executed in accordance with the
       legislative intent. Therefore, we are constrained to hold that 18
       Pa.C.S.[A.] § 6317 is unconstitutional.

Id. at 105-06 (emphasis in original) (footnotes omitted).    Thus, given our

decision in Bizzel, we must conclude that Appellant’s sentence under

____________________________________________


5
 Alleyne v. United States, 133 S. Ct. 2151, 2161-63 (2013) (holding that
any fact other than a prior conviction that triggers a mandatory minimum
sentence must be found by a jury beyond a reasonable doubt).



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Section 6713 is illegal. See Commonwealth v. Valentine, 101 A.3d 801,

809 (Pa. Super. 2014) (because Alleyne issues implicate the legality of a

sentence, they are non-waivable and we may raise them sua sponte); see

also Commonwealth v. Vargas, 108 A.3d 858, 876 n.13 (Pa. Super.

2014) (en banc) (“Although Appellant has not raised any issue relating to

the legality of his sentence, we note that legality of sentence questions are

not waivable and may be raised sua sponte by this Court.”) (citation and

quotation marks omitted). Accordingly, we vacate Appellant’s sentence and

remand this case to the trial court for resentencing without the application of

Section 6317.6 See Commonwealth v. Young, 922 A.2d 913, 918 n.9 (Pa.

Super. 2007) (where our disposition upsets the trial court’s sentencing

scheme, we must vacate and remand for resentencing).

       Judgment of sentence vacated.               Case remanded for resentencing.

Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/2015


____________________________________________


6
  Based on our decision to vacate Appellant’s sentence, we need not address
his first argument challenging the discretionary aspects of his sentence.



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