J-S32012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                           IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

DEBRA ABRAM,

                            Appellant                         No. 1221 WDA 2014


             Appeal from the Judgment of Sentence June 26, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0003386-2013


BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                                      FILED JUNE 19, 2015

       Appellant, Debra Abram, appeals from the judgment of sentence

entered following her conviction of drug-related offenses. We affirm.

       Following a nonjury trial on April 14, 2014, Appellant was convicted of

two     counts    of    possession      with   intent    to    deliver   a   controlled

substance(“PWID”);1 one count of possession of a controlled substance;2 and

one count of conspiracy.3 On June 26, 2014, Appellant was sentenced to a

period of two years of probation at count 1 (PWID) with no further penalty at



____________________________________________


1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(16).
3
    18 Pa.C.S. § 903(a)(1).
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the remaining counts.        Appellant filed a timely notice of appeal.   Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant presents the following issue for our review:

      Was the evidence insufficient as a matter of law to support the
      convictions for delivery, possession with intent to deliver, and
      possession of heroin, and criminal conspiracy, insofar as no
      evidence was presented to prove beyond a reasonable doubt
      that [Appellant] knew the substance in the container that she
      allegedly retrieved from her purse and gave to her husband was
      heroin, and that she agreed to and had the intent to possess and
      deliver a controlled substance?

Appellant’s Brief at 4.

      When reviewing challenges to the sufficiency of the evidence, we

evaluate the record in the light most favorable to the Commonwealth as

verdict winner, giving the prosecution the benefit of all reasonable inferences

to be drawn from the evidence.        Commonwealth v. Duncan, 932 A.2d

226, 231 (Pa. Super. 2007) (citation omitted).      “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.”        Id. (quoting Commonwealth v. Brewer, 876 A.2d

1029, 1032 (Pa. Super. 2005)).        However, the Commonwealth need not

establish guilt to a mathematical certainty, and it may sustain its burden by

means of wholly circumstantial evidence.         Duncan, 932 A.2d at 231.

Moreover, this Court may not substitute its judgment for that of the

factfinder, and where the record contains support for the convictions, they



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may not be disturbed. Id. Lastly, we note that the finder of fact is free to

believe some, all, or none of the evidence presented. Commonwealth v.

Hartle, 894 A.2d 800, 804 (Pa. Super. 2006).

      In order to uphold a conviction for PWID pursuant to 35 P.S. § 780-

113(a)(30), the Commonwealth must prove beyond a reasonable doubt that

the defendant possessed a controlled substance and did so with the intent to

deliver it. Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super.

2000) (en banc). The intent to deliver may be inferred from an examination

of the facts and circumstances surrounding the case.        Commonwealth v.

Conaway, 791 A.2d 359, 362-363 (Pa. Super. 2002).

      Regarding the crime of simple possession of narcotics, 35 P.S. § 780-

113(a)(16) prohibits

      [k]nowingly 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.

      We are mindful that constructive possession can be proven by

circumstantial evidence and the “requisite knowledge and intent may be

inferred   from   examination   of   the   totality   of   the   circumstances.”

Commonwealth v. Clark, 746 A.2d 1128, 1136 (Pa. Super. 2000),

(quoting Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super.

1996)). Moreover, we have held that circumstantial evidence is reviewed by

the same standard as direct evidence – that is, that a decision by the trial

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court will be affirmed “so long as the combination of the evidence links the

accused to the crime beyond a reasonable doubt.”       Commonwealth v.

Johnson, 818 A.2d 514, 516 (Pa. Super. 2003) (citations omitted). “[T]he

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.” Id.

      Additionally, pursuant to the Crimes Code, conspiracy is defined as

follows:

      § 903. Criminal conspiracy

      (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; 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.

18 Pa.C.S. § 903(a).

      A conspiracy is almost always proved through circumstantial
      evidence. Commonwealth v. Swerdlow, 636 A.2d 1173, 1176
      (Pa. Super. 1994).      “The conduct of the parties and the
      circumstances surrounding their conduct may create ‘a web of
      evidence’ linking the accused to the alleged conspiracy beyond a
      reasonable doubt.” [Commonwealth v.] Johnson, 719 A.2d
      [778,] 785 [(Pa. Super. 1998) (en banc), appeal denied, 739
      A.2d 1056 (Pa. 1999)].

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


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      Our review of the record reflects ample evidence to support the trial

court’s conclusion that Appellant committed the crimes in question. The trial

court accurately summarized the testimony presented at the waiver trial as

follows:

             At trial the Commonwealth called Sergeant Neal Marabello
      of the Pittsburgh Police Department who testified that he was
      working as a narcotics detective on October 4, 2012 when he
      made arrangements to purchase $70 worth of heroin from
      [Appellant’s] husband.       Sergeant Marabello had contacted
      [Appellant’s] husband by cell phone and was instructed to
      proceed to an address on Zara Street.        When he arrived,
      Sergeant Marabello met [Appellant’s] husband and gave him the
      $70. [Appellant’s] husband then called a white male from his
      residence and handed him the money. The white male began to
      walk towards the 200 block of Zara Street with the money at
      which point [Appellant] approached the scene and was
      introduced to Sergeant Marabello as Mr. Abram’s wife, Deb. (T.,
      p. 11) Sergeant Marabello was then instructed to enter the
      residence to complete the transaction.      Sergeant Marabello
      testified that he resisted going into the home, but [Appellant]
      “looked at me and stated that I had to come into the residence
      because she has it.” (T., p. 11) (Emphasis added)[.] Before
      entering the residence [Appellant’s] husband retrieved the
      money from the man he had handed it to and Marabello,
      [Appellant] and her husband entered the residence. Sergeant
      Marabello then testified as follows:

           “In the kitchen the co-defendant Shawn Abrams
           handed her my money.         She produced a round
           container. It looked like a snuff container. I believe
           it came from her purse. Inside of it was two or three
           bundles of heroin, twenty to thirty stamp balls. She
           gave some of those to her husband Shawn who then
           handed me six bags. We walked to the door. He
           unlocked the door and I left the residence. I went
           back to the narcotics office, pulled her PennDOT
           photo where I positively identified her as Debra
           Abrams. We field-tested the heroin with a Scotts
           field test kit. It tested positive for heroin. It was
           sent to the Crime Lab. At Lab Number 12LAB09557

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            it tested positive for heroin. They only tested one of
            the six bags. It tested as .02 grams.” (T., p. 12)

            The authenticity of the crime lab report was stipulated to.
      (T., pp. 12-13)      After an appropriate colloquy, [Appellant]
      elected not to testify or to present character testimony. (T., pp.
      16-18) [Appellant] was then found guilty of all charges.

Trial Court Opinion, 11/19/14, at 2 (emphasis in original).

      In addressing Appellant’s claim, the trial court provided the following

analysis:

            The record in this case clearly establishes that the
      evidence was sufficient to sustain the conviction. [Appellant]
      was an active participant in the sale of the heroin. Although
      Sergeant Marabello initially handed the money for the purchase
      of the heroin to [Appellant’s] husband, it was [Appellant] who
      instructed Sergeant Marabello to enter the residence to complete
      the transaction because she had the heroin in her possession.
      Once inside the residence, the money was passed to [Appellant]
      and she produced the stamp bags from a container in her purse
      which she then handed to her husband who delivered them to
      Sergeant Marabello. Any contention that [Appellant] did not
      know that she was in possession of a controlled substance and
      was not an active participant in the delivery of the heroin is
      completely contradicted by the record. This is not a case in
      which [Appellant] was merely present at the scene of the crime
      or happened to witness its commission.             The evidence
      establishes that she was a willing, active and knowing participant
      in the possession, sale and delivery of the heroin. Consequently
      the evidence was sufficient to support the conviction on each
      count.

Trial Court Opinion, 11/19/14, at 4.

      We agree.    Evaluating the record in the light most favorable to the

Commonwealth as verdict winner and giving the prosecution the benefit of

all reasonable inferences to be drawn from the evidence, we conclude there

was sufficient evidence to establish that Appellant was in possession of

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heroin and possessed it with the intent to, and did in fact, deliver it.

Additionally, the facts support the conclusion that Appellant was involved in

a conspiracy to sell and deliver the heroin.    Therefore, the conviction for

conspiracy to deliver the heroin was supported by sufficient evidence of

record. Accordingly, Appellant’s claims of insufficient evidence with regard

to her convictions of these crimes are meritless.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/19/2015




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