J-S05009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DAVID CRESPO,

                            Appellant                 No. 1340 MDA 2016


          Appeal from the Judgment of Sentence Entered April 13, 2016
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0001677-2015


BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED FEBRUARY 17, 2017

        Appellant, David Crespo, appeals from the judgment of sentence of 2-

6 years’ incarceration, following his conviction for possession with intent to

deliver [“PWID”] marijuana wax.1 Appellant challenges the sufficiency and

weight of the evidence supporting his conviction.      After careful review, we

affirm.

        The trial court summarized the facts adduced at trial as follows:

        Trooper Jared Fluck of the Pennsylvania State Police ("PSP")
        Drug Law Enforcement Division was conducting a routine
        proactive parcel check at a UPS shipping facility on July 8, 2015.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 See 35 P.S. § 780-113(a)(30) (prohibiting “the manufacture, delivery, or
possession with intent to manufacture or deliver, a controlled substance by a
person not registered under [The Controlled Substance, Drug, Device and
Cosmetic Act]”).
J-S05009-17


     Trooper Fluck was checking for parcels containing controlled
     substances which are sometimes shipped through third party
     carriers, such as UPS. Trooper Fluck became suspicious that a
     package addressed to [Appellant] might contain a controlled
     substance. The package was addressed to [Appellant] at 121
     East Cumberland Street in the City of Lebanon. The return label
     indicated that it had been sent from a UPS location in California,
     which is known to be a source state for narcotics coming from
     Mexico. The package was very rigid, weighed 54 pounds, and
     was almost completely sealed in clear packing tape. After a K-9
     unit indicated the presence of a controlled substance in the
     package, a search warrant was obtained. When it was opened,
     the package was found to contain 35.77 pounds of marijuana
     wax in a tote bag wrapped in numerous layers of vacuum-sealed
     bags and scented baby wipes and surrounded by spray foam
     insulation.

           Trooper Jason Reed, another member of the PSP Drug Law
     Enforcement Division, obtained a search warrant for
     [Appellant]'s home. The troopers then conducted a "controlled
     delivery" of the package to [Appellant].2 Trooper Scott Fidler
     assisted the investigation by posing as the UPS delivery person.
     He took the box to [Appellant]'s address while the other troopers
     observed from nearby. When Trooper Fidler arrived at the
     building, a note on the front window directed all deliveries to the
     side door. Trooper Fidler went down an alley [next to] the
     building and knocked on the side door. When there was no
     answer, he opened the unlocked door, entered the foyer, and
     announced that he had a UPS delivery. [Appellant] came out of
     a second-floor apartment door. When Trooper Adler asked if he
     was David Crespo, [Appellant] responded that he was and that
     he was expecting a box.         [Appellant] looked at the box
     momentarily and then directed Trooper Fidler to leave it on the
     second-floor landing next to him by his door. [Appellant] then
     appeared to begin texting on his cellphone.
        2
         Trooper Jared Fluck explained that a "controlled delivery"
        occurs when a trooper poses as a delivery person for UPS
        or another third-party carrier and makes delivery of a
        package containing contraband to the intended recipient.

           As Trooper Fidler turned to leave, [Appellant] went down
     the stairs. Trooper Fidler followed approximately ten feet behind
     [Appellant]. A woman came out of a door on the first floor and
     asked what was going on. [Appellant] told her that he had just

                                    -2-
J-S05009-17


     received a package and not to worry about it. [Appellant] then
     held the door open for Trooper Fidler and the two exited the
     building. [Appellant] was around five feet behind Trooper Fidler
     at that point. At no time did [Appellant] say anything about the
     package to Trooper Fidler. Trooper Fluck arrested [Appellant]
     and a search of [Appellant]'s home was conducted. No articles
     indicating drug use or drug dealing were located during the
     search.    When [Appellant]'s cellphone was searched, the
     troopers found that his contacts were all listed under their
     "street[ ]names."3 The cellphone contained an encryption app
     which prevented the troopers from viewing his calls or text
     messages.
        3
          Trooper Fluck explained [that] street[ ]names are false
        names used to hide a contact's true identity and are
        commonly used in drug trafficking.

            Mary Ann Roth, the owner of the building, also testified at
     the trial. She explained that [Appellant] lived in the second-floor
     apartment of the building with her daughter, Charelle Hess, their
     three children, and Roth's other children. Roth and her husband
     lived in the first-floor apartment. [Appellant] was not working at
     the time and he and Hess were receiving food stamps. They
     were not paying rent for the apartment. She was the woman
     who came out of the first-floor door after Trooper Fidler had
     delivered the package to [Appellant]. Roth testified that neither
     she nor her husband was expecting a package and that
     [Appellant] did not seem surprised to have received one. When
     she asked [Appellant] what was going on, he said "this man just
     has a package for me." She did not hear [Appellant] say
     anything to Trooper Fidler about the package not being for him.

            Charelle Hess also testified at the trial. She also indicated
     that [Appellant] was not working at the time of this incident.
     She acknowledged that [Appellant] had been complaining that
     he was expecting something to be delivered on the day before
     this incident, but that he gave no details. On cross-examination,
     she claimed that [Appellant] had said he was waiting for a
     gaming subscription. However, she admitted that in a written
     statement she had given, she had merely indicated that
     [Appellant] had said he was waiting for something in the mail
     and that he was not happy that it had not arrived.

          Trooper Reed was qualified as an expert in the area of
     possession with intent to deliver controlled substances. Trooper


                                    -3-
J-S05009-17


      Reed opined that [Appellant] possessed the marijuana wax with
      the intent to deliver based on a number of factors. The package
      was addressed to [Appellant] and he was expecting its arrival.
      Trooper Reed explained that [Appellant] was the "middleman" in
      the chain of distribution. The "middleman" would receive the
      drug from the "source of supply" (the person sending the drugs
      from California in this case)[,] … who would then complete the
      drug delivery to the dealer. Trooper Reed determined that
      [Appellant] was the "middleman" since no items of drug use or
      drug packaging for delivery were located in his home and
      [Appellant] used his cellphone immediately upon delivery of the
      package. Trooper Reed also explained that it is common for a
      third-party shipper, such as UPS, to be used so that the original
      sender could remain anonymous. He also noted the sheer
      weight of the marijuana wax[,] 35.77 pounds. This amount
      would last a user approximately two years, but would not be
      purchased for personal consumption because its potency would
      dissipate over time. Trooper Reed also noted that the marijuana
      wax had a value of up to 1.2 million dollars. [Appellant] would
      not have been able to purchase this amount of drugs as he was
      not employed and was on food stamps at the time. His poor
      financial status was reflected in the contents of his apartment, as
      the troopers found no luxury items during their search of the
      premises.     In addition, the encryption app on [Appellant]'s
      phone is commonly used in drug deliveries.

Trial Court Opinion (TCO), 8/8/16, at 2-6.

      Appellant was charged with PWID, and subsequently convicted after a

jury trial held on February 10, 2016.      On April 13, 2016, the trial court

sentenced Appellant to 2-6 years’ incarceration.      Appellant filed a timely

post-sentence motion (“PSM”) challenging the sufficiency and weight of the

evidence, which was denied by the trial court on August 8, 2016. Appellant

then filed a timely notice of appeal on August 11, 2016, and a timely, court-

ordered Pa.R.A.P. 1925(b) statement on September 9, 2016. On September

21, 2016, the trial court issued an order indicating that the issues raised in




                                     -4-
J-S05009-17



Appellant’s Rule 1925(b) statement were adequately addressed in the

court’s August 8, 2016 opinion addressing Appellant’s PSM.

      Appellant now presents the following questions for our review:

      [1.] Whether [Appellant]’s motion for acquittal should be granted
      due to the Commonwealth’s failure to present sufficient evidence
      at trial to prove the possession of the marijuana wax?

      [2.] Whether the jury’s verdict was against the weight of the
      evidence as it pertains to possession of the marijuana wax?

Appellant’s Brief at 4.

      Appellant’s first claim concerns the sufficiency of the evidence.

Specifically, Appellant contends that the evidence admitted at trial was

insufficient to demonstrate that he knowingly or intentionally possessed the

marijuana wax discovered in the UPS package.

      A claim challenging the sufficiency of the evidence is a question
      of law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a
      reasonable doubt. Where the evidence offered to support the
      verdict is in contradiction to the physical facts, in contravention
      to human experience and the laws of nature, then the evidence
      is insufficient as a matter of law. When reviewing a sufficiency
      claim[,] the court is required to view the evidence in the light
      most favorable to the verdict winner 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) (internal

citations omitted).

      As the facts cited above indicate that Appellant never physically

handled   the   UPS   package,   his   conviction   necessitated   proof   of   his

constructive possession of the controlled substance contained within it.

                                       -5-
J-S05009-17


     As our [Supreme] Court has noted: “[c]onstructive possession is
     a legal fiction, a pragmatic construct to deal with the realities of
     criminal law enforcement.” Commonwealth v. Mudrick, 510
     Pa. 305, 308, 507 A.2d 1212, 1213 (1986). The existence of
     constructive     possession   of   a   controlled   substance     is
     demonstrated by “the ability to exercise a conscious dominion
     over the illegal substance: the power to control the [illegal
     substance] and the intent to exercise that control.”
     [Commonwealth v.] Valette, 531 Pa. [384,] 388, 613 A.2d
     [548,] 550 [(1992)](quoting Commonwealth v. Macolino, 503
     Pa. 201, 206, 469 A.2d 132, 134 (1983)).            An “intent to
     maintain a conscious dominion may be inferred from the totality
     of the circumstances.” Macolino, 503 Pa. at 206, 469 A.2d at
     134. Thus, circumstantial evidence may be used to establish
     constructive possession of the illegal substance.                Id.
     Additionally, our [Supreme] Court has recognized that
     “[c]onstructive possession may be found in one or more actors
     where the item in issue is in an area of joint control and equal
     access.” Valette, 531 Pa. at 388, 613 A.2d at 550.

Commonwealth v. Johnson, 26 A.3d 1078, 1093–94 (Pa. 2011).

     Instantly, Appellant argues that the Commonwealth failed to prove

that he knew the UPS package contained a controlled substance.          In the

framework of the constructive possession standard, Appellant contends that,

while sufficient evidence was offered to establish his conscious dominion

over the package itself in a general sense, the evidence was still not

sufficient to demonstrate that he was conscious of the package’s contents.

The trial court rejected Appellant’s sufficiency claim, concluding that there

was sufficient circumstantial evidence demonstrating Appellant’s knowledge

of the contents of the package:

     The package was addressed to [Appellant] at his home.
     [Appellant] told Trooper Fidler that he was expecting a package.
     Heller also testified that [Appellant] was expecting a delivery and
     that he was upset when it had not arrived on the day prior to
     this incident.     [Appellant] looked at the package and then

                                    -6-
J-S05009-17


      exercised control over it by instructing Trooper Fidler where to
      place it. [Appellant] then left the package immediately outside
      the door to his apartment. [Appellant] told Roth that he had just
      received a package.       [Appellant] walked outside in close
      proximity to Trooper Fidler and never voiced any concern that
      the package was not for him. Viewed in the light most favorable
      to the Commonwealth, we find that this evidence was sufficient
      to support the jury's finding that [Appellant] had knowledge of
      the contents of the package and was in possession of the
      marijuana wax.

TCO at 8-9.

      We agree with the trial court. Viewed in a light most favorable to the

Commonwealth, these circumstantial facts adequately demonstrate that

Appellant knew the package contained marijuana wax.             Additionally, it is

virtually inconceivable that approximately $1.2 million worth of marijuana

wax was accidentally shipped to Appellant at his home address. It is even

less likely that such a colossal mistake just happened to occur at the same

time Appellant was anxiously awaiting the delivery of a package.

      In his brief, Appellant attempts to contest the inferences of his guilt as

drawn from a number of the facts established at trial. In doing so, he offers

alternative,   innocent   explanations   for   those   facts.    However,     such

argumentation ignores our standard of review, as the evidence is to be

viewed “in the light most favorable to the verdict winner,” not in a neutral

light, or in a light most favorable to Appellant. Widmer, 744 A.2d at 751.

Accordingly, we conclude that the evidence admitted at Appellant’s trial was

sufficient to establish his knowledge that the package he received contained

a controlled substance.



                                     -7-
J-S05009-17



      Next, Appellant asserts that the guilty verdict was against the weight

of the evidence.   Specifically, he argues that “the jury placed too great a

weight on the testimony of the Commonwealth’s expert witness, Tpr. Reed.”

Appellant’s Brief at 13.

         An appellate court's standard of review when presented with
      a weight of the evidence claim is distinct from the standard of
      review applied by the trial court:

         Appellate review of a weight claim is a review of the
         exercise of discretion, not of the underlying question of
         whether the verdict is against the weight of the evidence.
         Because the trial judge has had the opportunity to hear
         and see the evidence presented, an appellate court will
         give the gravest consideration to the findings and reasons
         advanced by the trial judge when reviewing a trial court's
         determination that the verdict is against the weight of the
         evidence. One of the least assailable reasons for granting
         or denying a new trial is the lower court's conviction that
         the verdict was or was not against the weight of the
         evidence and that a new trial should be granted in the
         interest of justice.

         This does not mean that the exercise of discretion by the trial
      court in granting or denying a motion for a new trial based on a
      challenge to the weight of the evidence is unfettered.         In
      describing the limits of a trial court's discretion, we have
      explained:

         The term “discretion” imports the exercise of judgment,
         wisdom and skill so as to reach a dispassionate conclusion
         within the framework of the law, and is not exercised for
         the purpose of giving effect to the will of the judge.
         Discretion must be exercised on the foundation of reason,
         as opposed to prejudice, personal motivations, caprice or
         arbitrary actions. Discretion is abused where the course
         pursued represents not merely an error of judgment, but
         where the judgment is manifestly unreasonable or where
         the law is not applied or where the record shows that the
         action is a result of partiality, prejudice, bias or ill-will.



                                     -8-
J-S05009-17



Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations

omitted).

      Appellant’s weight-of-the-evidence argument is cursory and contains

little more than offerings of alternative, innocent inferences to be drawn

from the evidence, as he attempted to do in the context of his sufficiency

argument. Here, the trial court reasoned:

      [Appellant] charges that the jury placed too great a weight on
      Trooper Reed's expert testimony to establish that [Appellant]
      knew what was in the package which was delivered to him.
      [Appellant] argues that the facts which formed the basis for
      Trooper Reed's opinion were not suspicious when viewed
      separately. We also disagree with this argument. Trooper Reed
      based his opinion on the totality of the many factors which
      pointed to [Appellant’s] being the "middleman" in a drug
      trafficking situation. The jury obviously found Trooper Reed's
      testimony to be credible and we find no reason to disturb this
      finding.

TCO at 10.

      Indeed, Appellant provides no case law supporting the notion that we

are to view facts in isolation, rather than in the context of other attendant

facts. The proposition itself is not logical, and thus, the trial court’s focus on

the convergence of facts, rather than viewing the inferences flowing from

individual facts alone, was entirely proper.      It is the confluence of these

circumstances which bolsters their individual significance as to Appellant’s

guilt. Thus, it is Appellant’s focus on individual facts and circumstances, in

isolation from one another, which is improper.        Accordingly, we conclude




                                      -9-
J-S05009-17



that the trial court did not abuse its discretion when it declined to grant

Appellant a new trial base on his weight-of-the-evidence-claim.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2017




                                   - 10 -
