J-S57003-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                   Appellee              :
                                         :
             v.                          :
                                         :
DWAYNE WILLIAMS,                         :
                                         :
                   Appellant             : No. 565 EDA 2013

            Appeal from the Judgment of Sentence February 1, 2013,
                 Court of Common Pleas, Philadelphia County,
               Criminal Division at No. CP-51-CR-0002086-2012

BEFORE: DONOHUE, MUNDY and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED OCTOBER 01, 2014

     Appellant, Dwayne Williams (“Williams”), appeals from the judgment

of sentence dated February 1, 2013, following his convictions after a non-

jury trial of possession of a controlled substance with the intent to deliver

(“PWID”), 35 P.S. § 780-113(a)(30), and criminal conspiracy, 18 Pa.C.S.A. §

903(a). Williams contends that the evidence was not sufficient to support

these convictions.   For the reasons that follow, we affirm the judgment of

sentence.

     In its written opinion pursuant to Rule 1925(a) of the Pennsylvania

Rules of Appellate Procedure, the trial court provided the following brief

summary of the evidence introduced at trial:

             On September 29, 2011, Police Officer Mich Vech
             was conducting undercover narcotics surveillance
             when he observed [Williams] in the 1500 block of
             West Duncannon Street of Philadelphia. [Williams]
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          was standing at the corner and approximately ten to
          fifteen feet away from a blue and white passenger
          van. (N.T., 10/4/12 at 9, 10).

          Approximately fifteen minutes after arriving on
          location, Officer Vech observed [Williams] wave over
          an unidentified male and initiate a conversation with
          him. After speaking with the male, [Williams] turned
          toward his co-Defendant Rafael Ingram (who was
          standing next to the passenger van), yelled at him
          and then made a signal to Ingram by raising his
          hand and putting up his index finger as to indicate
          the number “one.” At this point, the male walked
          over to co-defendant Ingram and handed him an
          unknown amount [of] United States currency. Upon
          receiving the currency, Ingram entered the van
          through the passenger side door. Shortly thereafter,
          Ingram emerged from the van and reached into his
          right pants pocket. He handed the male a plastic
          bag filled with a green, leafy, seedy substance,
          which Officer Vech believed to be marijuana. Officer
          Vech then observed the male remove the contents
          from the bag and roll it into a cigar, which he
          smoked on location next to the van. (N.T. 10/4/12
          at 11-13).

          Ten minutes later, [Williams] flagged down another
          male, later identified as Matthew Henson, who was
          walking towards Duncannon Street.          [Williams]
          engaged Henson in a brief conversation and then
          turned toward co-defendant Ingram (who was still at
          the van) and shouted to him. While he was doing
          this, [Williams] directed Henson to the van by
          pointing his index finger. Henson walked towards
          Ingram and handed him an unknown amount of
          United States currency.       Upon receipt of the
          currency, Ingram entered the van and emerged
          shortly thereafter. Ingram handed Henson a small
          clear bag filled with marijuana []. (N.T. 10/4/12 at
          12-13).

          A few minutes after this transaction, Henson began
          to walk away from the van. While walking away he



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           also started to remove the contents of the plastic
           bag and roll it into a cigar blunt. At this time, Officer
           Vech relayed flash information to his backup officers
           to make arrests. Officer Johnson stopped Henson at
           1400 Duncannon Street. Prior to stopping Henson,
           Officer Johnson observed him drop a lit, half-smoked
           marijuana blunt onto the ground.           After placing
           Henson in custody, Officer Johnson recovered the
           blunt, which later tested positive as marijuana. Just
           prior to arresting co-Defendant Ingram, Officer David
           Brzyski observed him throw two sandwich bags over
           his left shoulder and onto the floor of the backseat of
           the van. One of the bags contained 1.04 grams of
           loose marijuana. [Williams] was arrested but no
           money or narcotics were recovered from him. (N.T.
           10/4/12 at 13-14, 39-40, 44).

           The trial court credited the testimony of the police
           officers based on their demeanor, their manner of
           testifying, and the corroborated testimony.

Trial Court Opinion, 10/29/2013, at 1-2.

     Based upon this evidence, the trial court found Williams guilty of PWID

and criminal conspiracy and sentenced him to five years of probation on

each charge, to be served concurrently.       This appeal followed, in which

Williams raises a single issue for our consideration, namely whether the

evidence was sufficient to support his convictions. Williams argues that the

evidence did not prove that anyone ever handed him any money or that he

ever supplied any marijuana to anyone.       Williams’ Brief at 8.     He further

contends that no money, drugs, or automobile keys were found on his

person at the scene, and that no evidence demonstrates any intent on his




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part to commit an unlawful act or to agree with Ingram to commit an

unlawful act. Id.

      We begin by setting forth our standard of review when reviewing a

sufficiency of the evidence claim:

            We must determine whether the evidence admitted
            at trial, and all reasonable inferences drawn
            therefrom, when viewed in a light most favorable to
            the Commonwealth as verdict winner, support the
            conviction beyond a reasonable doubt. Where there
            is sufficient evidence to enable the trier of fact to
            find every element of the crime has been established
            beyond a reasonable doubt, the sufficiency of the
            evidence claim must fail.

            The evidence established at trial need not preclude
            every possibility of innocence and the fact-finder is
            free to believe all, part, or none of the evidence
            presented. It is not within the province of this Court
            to re-weigh the evidence and substitute our
            judgment    for    that   of   the   factfinder.   The
            Commonwealth's burden may be met by wholly
            circumstantial evidence and any doubt about the
            defendant's guilt is to be resolved by the fact finder
            unless the evidence is so weak and inconclusive that,
            as a matter of law, no probability of fact can be
            drawn from the combined circumstances.

Commonwealth v. Kimmel, __ A.3d __, __, 2014 WL 4258819, at *6 (Pa.

Super. Aug. 29, 2014) (quoting Commonwealth v. Olsen, 82 A.3d 1041,

1046 (Pa. Super. 2013)).

      To sustain a conviction of 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)



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           an overt act done in furtherance of the conspiracy.
           Circumstantial evidence may provide proof of the
           conspiracy.   The conduct of the parties and the
           circumstances surrounding such conduct may create
           a web of evidence linking the accused to the alleged
           conspiracy beyond a reasonable doubt.

           Additionally, an agreement can be inferred from a
           variety of circumstances including, but not limited to,
           the relation between the parties, knowledge of and
           participation in the crime, and the circumstances and
           conduct of the parties surrounding the criminal
           episode. These factors may coalesce to establish a
           conspiratorial agreement beyond a reasonable doubt
           where one factor alone might fail.

Commonwealth v. Jones, 874 A.2d 108, 121–22 (Pa. Super. 2005)

(internal citations and quotation marks omitted).

     When viewed in the light most favorable to the Commonwealth as

verdict winner, as our standard of review requires, the evidence here was

sufficient for the trial court, as the finder of fact, to determine that an

agreement existed between Williams and Ingram to sell marijuana.          The

testimony of the police officers established that Williams and Ingram acted

together in concert, with Williams identifying and attracting customers and

then directing them to Ingram to complete the transactions.          Williams’

shouts and hand signals to Ingram constituted overt acts in furtherance of

the conspiracy, and his coordinated efforts with Ingram established both the

agreement with Ingram to sell marijuana and his shared criminal intent with

Ingram to do so. See, e.g., Commonwealth v. Murphy, 844 A.2d 1228,

1239 (Pa. 2004) (“[W]e find, as did the Superior Court, that the jury could



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have found that Murphy and Rivas had an agreement whereby Murphy would

screen drug buyers before introducing them to Rivas based on Murphy's acts

of questioning the trooper and calling out to Rivas, and the evidence that

Rivas knew upon being called by Murphy that the trooper was interested in

buying drugs.”).

     For a conviction of PWID, the evidence must show beyond a

reasonable doubt that the defendant possessed a controlled substance and

did so with the intent to deliver it. Commonwealth v. Bricker, 882 A.2d

1008, 1015 (Pa. Super. 2005); Commonwealth v. Conaway, 791 A.2d

359, 362 (Pa. Super. 2002).    While it is true, as Williams argues, that no

evidence established either that he himself ever possessed marijuana (either

actually or constructively) or completed an exchange of currency for

marijuana, he was still properly convicted of PWID.           As set forth

hereinabove, the evidence demonstrated the existence of a conspiracy with

Ingram to distribute marijuana, and thus Williams is responsible for all of

Ingram’s actions in furtherance of the conspiracy -- including Ingram’s

actual possession of marijuana and his sale of the same in street

transactions. See, e.g., Commonwealth v. Melvin, __ A.3d __, __, 2014

WL 4100200, at *30 (Pa. Super. Aug. 21, 2014); Commonwealth v.

Murphy, 795 A.2d 1025, 1038 (Pa. Super. 2002) (“Even if the conspirator

did not act as a principal in committing the underlying crime, he is still




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criminally liable for the actions of his coconspirators in furtherance of the

conspiracy.”), affirmed, 844 A.2d 1228 (Pa. 2004).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/1/2014




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