J-S30003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

SIR-KHAN HEADON

                            Appellant                   No. 1570 EDA 2014


            Appeal from the Judgment of Sentence October 11, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005889-2012


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                              FILED JULY 15, 2015

        Appellant, Sir-Khan Headon, appeals from the judgment of sentence

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

trial convictions for possession with intent to deliver (“PWID”), simple

possession, and conspiracy.1           We affirm the convictions but vacate and

remand for resentencing.

        In its opinion, the trial court fully set forth the relevant facts and

procedural history of this case.         Therefore, we have no reason to restate

them.2

        Appellant raises the following issues for our review:
____________________________________________


1
    35 P.S. §§ 780-113(a)(30), (a)(16); 18 Pa.C.S.A. § 903, respectively.
2
    Police found the marijuana in a freezer bag, not in a freezer.
J-S30003-15


         WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF
         THE EVIDENCE.   THERE WAS NO EVIDENCE THAT
         APPELLANT WAS A RESIDENT OF 421 WINTON STREET,
         THAT HE CONSPIRED WITH [CO-DEFENDANT] TO SELL
         NARCOTICS, OR THAT HE HAD THE INTENT TO
         MANUFACTURE OR DISTRIBUTE MARIJUANA OR COCAINE.

         WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL
         BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO PROVE
         APPELLANT GUILTY OF EACH AND EVERY ELEMENT OF THE
         CRIMES OF THE CONVICTION, POSSESSION WITH INTENT
         TO MANUFACTURE OR DELIVER, CRIMINAL CONSPIRACY
         AND INTENT TO POSSESS A CONTROLLED SUBSTANCE.

         WHETHER THE COMMONWEALTH FAILED TO PROVE DRUG
         AMOUNTS ATTRIBUTABLE TO APPELLANT AND THEREFORE
         THE MANDATORY SENTENCE SHOULD NOT HAVE BEEN
         IMPOSED.

(Appellant’s Brief at 3).

      A challenge to the sufficiency of the evidence implicates the following

legal principles:

         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

                                     -2-
J-S30003-15


          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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

      Our standard of review for a challenge to the weight of the evidence is

as follows:

          The weight of the evidence is exclusively for the finder of
          fact who is free to believe all, part, or none of the evidence
          and to determine the credibility of the witnesses. An
          appellate court cannot substitute its judgment for that of
          the finder of fact. Thus, we may only reverse the lower
          court’s verdict if it is so contrary to the evidence as to
          shock one’s sense of justice. Moreover, where the trial
          court has ruled on the weight claim below, an appellate
          court’s role is not to consider the underlying question of
          whether the verdict is against the weight of the evidence.
          Rather, appellate review is limited to whether the trial
          court palpably abused its discretion in ruling on the weight
          claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(internal citations omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Genece E.

Brinkley, we conclude Appellant’s first two issues merit no relief. The trial

court opinion comprehensively discusses and properly disposes of those

questions. (See Trial Court Opinion, filed August 1, 2014, at 9-16) (finding:


                                      -3-
J-S30003-15


(1) jury heard testimony from police officers who executed search warrant

in Appellant’s home, where police found large amount of drugs; in bedroom

where they found Appellant, officers observed marijuana and large sum of

cash in open night table drawer; in same bedroom, police recovered purse

which contained 58.7 grams of cocaine, large amount of marijuana, pills,

and cash; verdict did not shock one’s sense of justice; (2) regarding PWID

conviction, Appellant gave his home address as 421 Winton Street when

arrested, which is same address where police found Appellant and large

amounts of drugs and cash; drugs were divided into smaller baggies for sale

to wider customer base; drugs tested positively for marijuana, cocaine, and

Xanax; Commonwealth’s expert opined that drugs were possessed with

intent to deliver; evidence was sufficient to convict Appellant of PWID;

regarding conspiracy, police found Appellant and co-defendant at residence

both wearing clothing to sleep in; in bedroom, Appellant had other clothing

which he changed into when he knew he was under arrest; Appellant’s co-

defendant told police she lived at 421 Winton Street with Appellant;

Appellant and co-defendant’s relationship, close proximity to drugs and cash,

and overt acts were sufficient to sustain conspiracy conviction; 3 regarding

____________________________________________


3
  The trial court cites Commonwealth v. Bricker, 882 A.2d 1008
(Pa.Super. 2005), for the proposition that relevant factors in the
determination of a conspiracy include “an association between the alleged
conspirators, knowledge of the commission of the crime, presence at the
scene of the crime, and participation in the object of the conspiracy.” This
(Footnote Continued Next Page)


                                           -4-
J-S30003-15


simple possession conviction, jury properly found Appellant constructively

possessed drugs because police found drugs in area of house where

Appellant had equal access and control).               Accordingly, we affirm as to

Appellant’s first and second issues on the basis of the trial court opinion.

      In his third issue, Appellant argues he had no actual or constructive

possession of the cocaine found in the bedroom. Appellant asserts the court

improperly applied a mandatory minimum sentence to his PWID conviction

because the Commonwealth failed to prove Appellant possessed the

requisite amount of cocaine. Appellant concludes this Court should vacate

his judgment of sentence and remand for a new trial or, in the alternative,

resentencing.      We disagree with Appellant’s contentions but conclude

Appellant is entitled to resentencing.

      Instantly,   Appellant       essentially    reiterates   his   challenge   to   the

sufficiency of the evidence for his PWID conviction, which we have already

determined is meritless.          The evidence supported the jury’s finding that

Appellant possessed more than ten (10) grams of cocaine, which the court

relied on to apply the mandatory minimum set forth in 18 Pa.C.S.A. § 7508

at sentencing.     See 18 Pa.C.S.A. § 7508(a)(3)(ii) (mandating minimum

sentence of five (5) years’ incarceration where defendant is convicted of

PWID involving at least ten (10) grams but less than one hundred (100)
                       _______________________
(Footnote Continued)

quotation is not from Bricker; it is found in Commonwealth v. Perez, 931
A.2d 703, 708 (Pa.Super. 2007).



                                            -5-
J-S30003-15


grams of cocaine and, at time of sentencing, defendant has been convicted

of another drug trafficking offense).

      Nevertheless, we are mindful of the United States Supreme Court’s

decision in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186

L.Ed.2d 314 (2013), in which the Court expressly held that any fact

increasing the mandatory minimum sentence for a crime is considered an

element of the crime to be submitted to the fact-finder and found beyond a

reasonable doubt. Section 7508(b) states that the statutory provisions shall

not be an element of the crime and applicability of the statute shall be

determined at sentencing by a preponderance of the evidence. Recently, in

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

Court addressed the constitutionality of a similar statute, 42 Pa.C.S.A. §

9712.1, in light of Alleyne. Relying on Alleyne, Newman held that Section

9712.1 can no longer pass constitutional muster as it “permits the trial

court, as opposed to the jury, to increase a defendant’s minimum sentence

based upon a preponderance of the evidence that the defendant was dealing

drugs and possessed a firearm, or that a firearm was in close proximity to

the drugs.”   Newman, supra at 98.        Thus, this Court vacated Newman’s

PWID sentence and remanded for resentencing without imposition of the

mandatory minimum under Section 9712.1. See also Commonwealth v.

Valentine, 101 A.3d 801 (Pa.Super. 2014) (extending logic of Alleyne and

Newman to Sections 9712 and 9713 and holding those sections are likewise


                                        -6-
J-S30003-15


unconstitutional insofar as they permit automatic increase of defendant’s

sentence based on preponderance of evidence standard; Commonwealth and

trial court’s attempt to cure unconstitutional provisions of statutes by

including questions on verdict sheet regarding whether defendant possessed

firearm and whether robbery occurred in or near public transportation, did

not remedy fundamental unconstitutionality of statutes; in presenting those

questions to jury, trial court performed impermissible legislative function by

creating new procedure in effort to impose mandatory minimum sentences

in compliance with Alleyne; trial court lacked authority to allow jury to

determine factual predicates of Sections 9712 and 9713, where statutes are

not severable and are unconstitutional in their entireties).          Accord

Commonwealth v. Hopkins, ___ A.3d ___, 2015 WL 3949099 at *11-13

(Pa. June 15, 2015) (declaring mandatory minimum statute at 18 Pa.C.S.A.

§ 6317 unconstitutional in its entirety under Alleyne, where statute stated

its provisions were not elements of crime and applicability of statute should

be determined at sentencing by preponderance of evidence; Commonwealth

could not cure unconstitutionality of Section 6317 with special verdict sheet

that presented interrogatories to jury regarding facts required to trigger

mandatory minimum).

      Subsequently, this Court directly addressed the constitutionality of

Section 7508 in Commonwealth v. Vargas, 108 A.3d 858 (Pa.Super.

2014) (en banc), where the trial court imposed a mandatory minimum


                                    -7-
J-S30003-15


sentence for a PWID conviction, pursuant to Section 7508(a)(7)(iii).            On

appeal, this Court emphasized that Section 7508 “is structured in the same

manner as the statutes at issue in Newman and Valentine….” Id. at 876-

77.   This Court concluded that Section 7508 is also unconstitutional in its

entirety and cannot be severed. Id.

      Here, the jury convicted Appellant of PWID and related offenses. The

verdict sheet specifically asked the jury to answer, inter alia, the following

questions: “Do you find [Appellant] guilty of possession with the intent to

deliver a controlled substance?”; “If yes, do you find [Appellant] guilty of

possession with intent to deliver a controlled substance—cocaine in an

amount greater than 10 grams?” (Verdict Sheet, dated 8/1/13, at 1). The

jury answered both of these questions affirmatively.           At sentencing, the

court imposed a five (5) year mandatory minimum sentence for Appellant’s

PWID conviction, pursuant to 18 Pa.C.S.A. § 7508. When it asked the jury

to find beyond a reasonable doubt the factual predicates for the mandatory

minimum    sentence   at   Section   7508,   the   trial    court   performed   an

impermissible legislative function, as the relevant statutes are not severable

and are unconstitutional in their entireties. See Hopkins, supra; Vargas,

supra; Valentine, supra; Newman, supra.                    Therefore, the court’s

imposition of the Section 7508 mandatory minimum sentence was unlawful.

Accordingly, we affirm Appellant’s convictions but vacate the judgment of

sentence and remand for resentencing without imposition of a mandatory


                                     -8-
J-S30003-15


minimum term under 18 Pa.C.S.A. § 7508.

      Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2015




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                          IN THE COURT OF COMMON PLEAS
                     FIRST JUDICIAL DISTRICT OF PENNSLYV ANIA
                              CRIMINAL TRIAL DIVISION

COMMONWEALTH                                                                        CP-51-CR-0005889-2012


         vs.
                                                     '(Jd \0 \O\l\S\Q"~\O\Jtf~~~\:l
                                                       \\UO S\'00d~ v . ·                        ·
SIR-KHAN HEADON                                             ,\Ol\ Q)}{W                     SUPERIOR COURT


                                                             031,='
                                                                                             1570 EDA 2014



BRINKLEY, J.                                                                                AUGUST 1, 2014

                                            OPINION

         Defendant Sir-Khan Headon appeared before this Court for a jury trial and was convicted

of possession with intent to deliver a controlled substance (PWID), conspiracy and knowing and

intentional possession of a controlled substance possession. (K&l). This Court sentenced

Defendant to 5 to 10 years state incarceration on the PWID charge, five years reporting probation

on the conspiracy charge, to run consecutively to the PWID charge and no further penalty on the

K&I charge. Defendant appealed this judgment of sentence to the Superior Court and raised the

following issues on appeal: (1) whether the verdict was against the weight of the evidence; (2)

whether there was insufficient evidence to prove Defendant guilty of each element of every

crime thus entitling him to a new trial and; (3) whether the Commonwealth failed to show drug

amounts attributable to Defendant causing an improper application of the mandatory sentencing
                                                          CP-51-CR-0005889-2012     Comm.   v.   Headon, Sir-Khan
                                                                                  Opinion
range.


                                                                11111111111111111 Ill
                                                                          7181028831
                                                                                                       I Ill
                                                 1


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                                   PROCEDURAL HISTORY

       On December 2, 2011, Defendant was arrested and charged with PWID, conspiracy and

K&I. On August 1, 2013, a jury found Defendant guilty of PWID, conspiracy and K&I. On

October 11, 2013, this Court sentenced Defendant to 5 to 10 years state incarceration on the

possession with intent to deliver charge, five years reporting probation on the conspiracy charge

to run consecutively to the possession with intent to deliver a controlled substance charge and no

further penalty on the K&I charge. This Court ordered Defendant to undergo random urinalysis,

complete job training and anger management, to seek and maintain employment, stop selling and

using drugs and to pay court costs and fees.

       On October 13, 2013, Defendant filed a Motion to Reconsider Sentence through counsel,

which was denied by operation oflaw on May 1, 2014. On May 20, 2014, Defendant filed a

Notice of Appeal to Superior Court. On June 9, 2014, upon receipt of the notes of testimony,

this Court ordered defense counsel to file a Concise Statement of Errors Complained of on

Appeal Pursuant to Pa. R.A.P. 1925(b) and defense counsel did so on June 27, 2014.

                                               FACTS

       On July 31, 2013, the trial in this matter began with Defendant and co-Defendant Robin

Pickron ("Pickron"). The Commonwealth attorney was Christina Pastrana, Esquire and defense

counsel for Defendant was Raymond C. Driscoll, Esquire. The Commonwealth called its first

witness, Agent Michael Grnitter ("Gmitter") to the stand to testify. Gmitter testified that he had

been an agent for nine years and that he was on duty on December 2"d, 2011. He stated that his

duties as an agent were to serve body warrants and on the night of December 2"d, 2011, his duties

took him to 421 Winton Street. He testified that the target at that address was Defendant. He

stated that it was not Defendant's last known address, but what brought them to that address was



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that the unit received information that Defendant was staying there at that time. He testified that

he had approximately 12 agents with him on that day. He testified that they arrived around 6:30

a.m. and knocked and announced their presence at the front door. They then entered the twow

story row home, and he went up the steps leading to the second story rear bedroom. He testified

that he was the first one to go up the steps and upon doing so, he saw Pickron exit the bedroom

about 15 feet away from him.    (N.T. 7/31/2013 p. 55w58).

       Agent Gmitter testified that Pickron went with other officers and he went into the

bedroom, where he encountered Defendant. He testified that he handcuffed Defendant and

searched his person. He testified that while searching Defendant, he saw an open dresser drawer

next to the bed with packets of a green leafy substance and a large sum of cash. He identified the

packets in the courtroom and they were entered into evidence. Agent Gmitter testified that

Defendant was wearing sleeping clothes when he first saw him, but before Defendant was taken

out of the house, he was given the opportunity to get dressed. He stated that he completed a

report after the arrest of Defendant and that he conferred with his supervisor at the scene

regarding the items in the dresser. He testified that Philadelphia police officer Gergory Barber

arrived, and Gmitter showed him the dresser drawer. At that point, Defendant was taken into

custody and transported away. He stated that while at the property, he saw two or three other

people and it was a mixture of adults and juveniles. Id. at 58w62.

       The Commonwealth next called Officer Gregory Barber ("Barber") to the stand to testify.

Barber testified that he had been a Philadelphia police officer for 18 years and in the Narcotics

Field unit for 13 years. He explained that in the Narcotics Field Unit he worked in plain clothes,

made undercover drug transactions, prepared search warrants and assisted those who executed

search warrants. He testified that on December 2, 2011 he was called to assist an agent around



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7:00 a.m. at 421 Winton Street. He testified that when he arrived at the location he met Agent

Gmitter outside who took him inside and showed him a dresser in the second floor rear bedroom.

He stated that in the drawer he saw marijuana packaging and large sums of money. He testified

that the items recovered were 7 red Ziploc packets of marijuana and approximately $1300 of

United States currency. He testified to the property receipt he filled out and the information it

contained for it to be processed by the Philadelphia police department. He testified that the test

on the packages returned a positive reaction for marijuana. Id. at 83-88.

       Officer Barber testified that the property receipt that was entered into evidence as C- 7,

indicated $1,342 that was recovered from the dresser drawer. He stated the money was folded in

a pile and in different denominations: sixty $20 bills, eight $10 bills, nine $5 bills, and one $1

bill. He testified that the packaging was not tested for fingerprints as it was not in the practice of

the Narcotics Field Unit to do so, since the packets ostensibly came into contact with many

different people. He stated that the house was secured and that there were three to four people

present, two of whom were Defendant and Pickron. He testified that he followed the procedure

he normally does after securing a location, which involved returning to headquarters and

preparing a search warrant that an attorney district reviewed before sending to a judge. He

testified that in this case, he returned to the property after the judge approved the warrant about

three hours after the property was first secured. Id. at 88-94.

       Officer Barber testified that he helped execute the search warrant at 421 Winton Street.

He testified that he recovered a pocketbook from the rear bedroom that had clear sandwich bags

and a larger bag of marijuana with multiple sandwich baggies of cocaine and a white pill bottle.

He testified that the packets with cocaine had a total of 5 8. 7 grams of cocaine, and they came

back positive for cocaine using the NIK test. The baggies with marijuana also came back



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positive for marijuana when he used the NIK test. He stated that the white alleged Xanax pills

were stamped with 'G372 l .' He testified that a digital scale that had white residue was

recovered, as well as an additional $132. He stated that in the kitchen there was a large freezer

Ziploc bag containing eight sandwich baggies with alleged marijuana for a total weight of 221.3

grams of marijuana. He testified there were also letters addressed to Robin Pickron at 421

Winton Street. Officer Barber identified the Ziploc bags, scale and property receipt for the $132

while on the stand and they were all entered into evidence. He stated that these items were not

preserved for fingerprints and that it was not part of the normal practice to do so. Id. at 94- 103.

       Officer Barber testified that Pickron and Defendant were placed under arrest and

Defendant was charged for his relationship to the narcotics. He testified that when he asked

Defendant biographical information to fill out on a police report, Defendant told Officer Barber

that his address was 421 Winton Street. He testified that Pickron also stated the same as her

address and said that she resided with her boyfriend. Id. at 103-110.

       Next, the Commonwealth called Police Officer Theresa Weaver ("Weaver") to the stand

to testify. Officer Weaver testified that she had been a police officer for 19 years and had been

part of the Narcotics Field Unit for 17 years. She testified that for 11 years she had been partners

with Officer Barber and that she was involved in the investigation on December 2, 2011. She

stated that she was part of the team that executed the search warrant at 421 Winton Street. She

stated that her role was to assist in searching the property. She testified that she recovered a

freezer bag that contained eight clear sandwich baggies from a kitchen cabinet. She stated that

she also recovered two letters for Pickron addressed to 421 Winton Street. She stated that she

placed Pickron under arrest and supervised her as Pickron went upstairs to get clothes to change

into from the rear bedroom. Id. at 135-139.



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       The Commonwealth read a stipulation, by and between counsel, stating that if chemist

Maryama Shagu of the Philadelphia Police Department chemistry lab were called to testify she

would testify in accordance with the report she prepared that the seven red Ziploc bags tested

positive for marijuana as did the two clear plastic bags. Further, if analyst Samuel Jose were

called to testify, he would testify that he analyzed the clear Ziploc bag containing eight clear

bags, each with marijuana. He would testify that each bag weighed 27.8 grams. He would

testify that he also analyzed two clear Ziploc bags and found that they held marijuana and each

weighed 9 .28 grams. He also analyzed the clear plastic bag containing white powder, which

tested positive for cocaine in the amount of 18.37 grams. He analyzed one clear Ziploc bag that

contained I 02 heat-sealed green packets, each containing off-white powder and they each tested

positive for cocaine in the amount of .496 grams. He analyzed the white plastic bottle containing

the tablets marked '03721,' which tested positive for alprazolam, colloquially known as Xanax.

Lastly, he analyzed the white substance on the digital scale, which tested positive for marijuana

and cocaine. Id. at 150-155.

       Following the stipulations, the Commonwealth called police officer Kevin Keys

("Keys"). Officer Keys testified that he is part of the Narcotics Field Unit, but was not involved

in this particular case. He testified that he had been a Philadelphia police officer for 25 years,

was in the Narcotics Field Unit for 13 years and was a drug enforcement officer for 7 years. He

explained what type of training he received as a drug enforcement officer and as a member of the

Narcotics Field Unit, including training in identifying narcotics, packaging, retrieving stashes,

among other areas. He stated that he had been involved in over 3,000 different narcotics-related

investigations and that those investigations ranged from surveillance to executing warrants to

long-term investigations of an organization. He testified that marijuana and cocaine are



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considered narcotics. He stated that he had received ongoing training, attending courses at the

DEA, Northeast Counter Drug Training, Top Gun Training and a 100 hour course through

McLaughlin, among other types of training. He stated that he has testified as an expert in the

area of narcotics sales and packaging over 1,500 times in the Court of Common Pleas, Juvenile

Court and Federal Court. Officer Keys was offered and accepted by the Court as a narcotics

expert specifically in the area of narcotic sales and packaging in the city and county of

Philadelphia, to no objection. Id. at 156-162.

       Officer Keys testified that he reviewed the evidence in this case. Particularly, he

reviewed the amounts of marijuana, the packets, the bags and the contents therein. He testified

that the pink bags with the marijuana in them would be sold as for roughly $35 as a quarter of an

ounce. He testified that the bigger bag containing 8 bags had about 28 ounces of marijuana in

each bag and would sell for $120 to $360 per ounce, depending on the quality of the marijuana.

He stated that another bag, in which there was roughly 222 grams, would sell for $500 in bulk,

but if broken down into eight bags, would be worth $920. Regarding the cocaine, he testified

that the amount of cocaine in just one packet weighed about .496 milligrams, which would sell

for around $40. He testified that the total weight of the bags was over 50 grams. He stated the

bulk price for the amount of cocaine would be $2000, but if sold the way it was packaged, they

would retrieve around $4000 in sales. He testified that the multitude of small packets and the

larger packets were associated with a distributor. He testified that he had never seen a drug user

with that amount of small packets of cocaine. He stated that the scale was also associated with a

distributor in his experience because distributors use them to make small packets. Id. at 156-168.

       He testified that the pills, which were found to be alprazolam, were consistently diverted

from medicinal use to illegal street sales. He testified that each pill sells for around $3, so a



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bottle of 67 pills would be worth around $200. He stated that in total, the value of the drugs

recovered from the scene was around $9,600, between the marijuana, cocaine and the pills. He

testified that he also considered the other items recovered from the scene, like the cash and the

baggies. He stated that the denominations of the bills and quantity of different denominations

correlated to the amount the drug packets would sell for on the street. He testified that in his

expert opinion the drugs recovered were possessed with intent to distribute. He testified that he

further supported his conclusion with the information he reviewed in the police reports that

indicated that Defendant and Pickron were unemployed, which did not coincide with the amount

of cash and drugs in the home. Id. at 168-172. The Commonwealth then rested its case.

        On the second day of trial, defense counsel presented two stipulations by and between

counsel. First, that if the custodian of records for the Pretrial Service Division of the First

Judicial District were called to testify, he would testify that the division is responsible for

interviewing all arrested and charged individuals. He would testify that on December 3, 2011,

Defendant was interviewed by a representative of the division and he provided his address as

1436 Catharine Street in Philadelphia.    He would further testify that Defendant stated that he was

employed doing demolition work and made $150 week, when he was interviewed about his

employment. (N.T. 8/1/2013, p. 48-49.)

       The second stipulation presented was that if the custodian of records for the clerk of

courts for the First Judicial District were called to testify, he or she would testify that the address

ofrecord for Defendant as reflected in the official court file for this case was 1436 Catharine

Street in Philadelphia. Counsel for Defendant then rested. Counsel for Pickron entered a

stipulation, by and between counsel, that when Pickron was interviewed by the Pretrial Services




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Division she stated that she was given compensation from the Workmen's Compensation System

in the amount of $864, bi-weekly. Counsel for Pickron then rested. Id. at 50-51.

                                               ISSUES

I.     WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF THE
       EVIDENCE.
II.    WHETHER THERE WAS SUFFICIENT EVIDENCE TO PROVE DEFENDANT
       GUILTY OF EACH ELEMENT OF EVERY CRIME CHARGED.
III.   WHETIJER THE COMMONWEAL TH FAILED TO SHOW THE WEIGHT OF
       DRUGS ATTRIBUTABLE TO DEFENDANT CAUSING AN IMPROPER
       IMPOSITION OF A MANDATORY SENTENCE.

                                           DISCUSSION

I.     THE VERDICT WAS NOT AGAINST THE WEIGHT OF THE EVIDENCE.

       The verdict in this case was not against the weight of the evidence presented at trial.

Under Pennsylvania law, a weight of the evidence claim concedes that the evidence was

sufficient to sustain the verdict. Commonwealth v. Smith, 2004 PA Super. 77, 853 A.2d 1020,

1028 (2004) (citing Commonwealth v. Bennett, 2003 PA Super. 212, 827 A.2d 469 (2003)). The

weight of the evidence is "exclusively for the finder of fact who is free to believe all, part, or

none of the evidence and to determine the credibility of the witnesses." Commonwealth v. Rice,

2006 PA Super. 143, 902 A.2d 542, 546 (2006) (quoting Commonwealth v. Champney, 574 Pa.

435, 832 A.2d 403, 408 (2003)). In addition, "where the trial court has ruled on the weight claim

below, an appellate court's role is not to consider the underlying question of whether the verdict

is against the weight of the evidence, ... rather, appellate review is limited to whether the trial

court palpably abused its discretion in ruling on the weight claim." Commonwealth v. Kim,

2005 PA Super. 383, 888 A.2d 847, 851 (2005) (quoting Champney, 832 A.2d at 408). An

appellate court cannot substitute its judgment for that of the fact finder; therefore, a verdict will

be reversed only in the extraordinary situation where the jury's verdict is "so contrary to the

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evidence as to shock one's sense of justice" and the award of a new trial is imperative so that

right may be given another opportunity to prevail. Commonwealth v. Tharp, 574 Pa. 202, 830

A.2d 519, 528 (2003) (citing Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177, 1189,

(1994)); Commonwealth v. Smith, 580 Pa. 392, 861 A.2d 892, 896 (2005) (citing

Commonwealth v. Drumheller, 570 Pa. 117, 808 A.2d 893, 908 (2002)).

           In the case at bar, the verdict determined by the jury was supported by the evidence

adduced at trial. As discussed in more detail below, the jury heard evidence from an agent and

from police officers who executed a search warrant in the home where Defendant had been

sleeping and where they found a large amount of narcotics. In the very bedroom where

Defendant was found, next to a night table, were marijuana and a large sum of cash,

approximately $1300. In that same bedroom, was a woman's purse which contained 58.7 grams

of cocaine, a large amount of marijuana, pills and cash. The jury's verdict did not shock one's

sense of justice, thus, this Court's decision should not be disturbed on appeal.

II.        THERE WAS SUFFICIENT EVIDENCE TO FIND DEFENDANT GUILTY OF
           EACH OF THE CRIMES CHARGED.

           The evidence adduced at trial was sufficient for the jury to convict Defendant of

possession with intent to deliver a controlled substance, conspiracy to possess with the intent to

deliver a controlled substance and possession of a controlled substance.

      1.       Sufficiency of the evidence.

           A review of the sufficiency of the evidence to support a conviction requires that the

evidence be reviewed in the light most favorable to the Commonwealth as verdict winner.

Commonwealth v. Walter, 2004 PA Super. 147, 849 A.2d 265, 267 (2004) (citing

Commonwealth v. Rose, 463 Pa. Super. 264, 344 A.2d 824, 825 (1975)). The Commonwealth is

also entitled to all favorable inferences which may be drawn from the evidence. Commonwealth

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v. Sanchez, 2006 Pa. LEXIS 1833 (2006) (citing Commonwealth v. Collins, 550 Pa. 46, 50, 703

A.2d 418, 420 (1997)). The evidence put forth by the Commonwealth will be considered

sufficient if it establishes each material element of the crime beyond a reasonable doubt, even if

by wholly circumstantial evidence. Commonwealth v. Dargan, 2006 PA Super. 74, 897 A.2d

496, 503 (2006) (citing Commonwealth v. DiStefano, 2001 PA Super 238, 782 A.2d 574, 582

(2001)).

         When determining whether the evidence is sufficient to support a guilty verdict, the

appellate court must examine the entire trial record and consider all of the evidence actually

received. Id. However, the trier of fact is entitled to believe all, part or none of the evidence

received at trial and the appellate court cannot substitute its judgment for that of the fact-finder.

Commonwealth v. Frisbie, 2006 PA Super. 430, 889 A.2d 1271, 1274 (2006) (citing DiStefano,

782 A.2d at 574); Commonwealth v. Kim, 2005 PA Super. 383, 888 A.2d 847, 851 (2005)

(citing Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403, 408 (2003)). The facts and

circumstances established by the Commonwealth need not eliminate any possibility of the

defendant's innocence; rather, any doubt 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 could be concluded.

Commonwealth v. Lambert, 2002 PA Super. 82, 795 A.2d 1010 (2002) (citing Commonwealth

v. Cassidy, 447 Pa. Super. 192, 194, 668 A.2d 1143, 1144 (1995)).

    2.      The evidence was sufficient to convict Defendant of possession with intent to
            deliver a controlled substance.

         The evidence adduced at trial was sufficient to support finding Defendant guilty of

possession with intent to deliver a controlled substance. The Commonwealth establishes the

offense of possession with intent to deliver when it "proves beyond a reasonable doubt that the

defendant possessed a controlled substance with the intent to deliver it." Commonwealth v.


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Little, 2005 PA Super. 251, 879 A.2d 293, 297 (2005) (citing Commonwealth v. Kirkland, 2003

PA Super. 279, 831 A.2d 607, 611 (2003)). It is well settled in Pennsylvania that all the facts

and circumstances surrounding possession are relevant in making a determination of whether

contraband was possessed with the intent to deliver. Commonwealth v. Brown, 2006 PA Super.

177, 904 A.2d 925, 931 (2006) (quoting Commonwealth v. Jackson, 435 Pa. Super. 410, 645

A.2d 1366, 1368 (1994)). Relevant factors include "the particular method of packaging, the

form of the drug, and the behavior of the defendant." Kirkland, 831 A.2d at 611 (citing

Commonwealth v. Conaway, 2002 PA Super. 9, 791 A.2d 359 (2002)).

       In Little, the court found that the evidence was sufficient to sustain a conviction for

possession with intent to deliver where police recovered a large quantity of drugs as well as

"numerous items of drug paraphernalia," including Ziploc bags, a scale and a known cutting

agent. 879 A.2d at 298. In Jones, police recovered a large quantity of drugs and cash from the

defendant's car and an expert testified that the sheer quantity drugs and cash, coupled with the

manner in which the drugs were packaged, indicated that the drugs were possessed with the

intent to distribute. 2005 PA Super. 166, 874 A.2d 108, 122 (2005). The Jones court found this

evidence to be sufficient to uphold a possession with intent to deliver conviction. Id.

       In the case at bar, the evidence was sufficient to convict Defendant of possession with

intent to deliver a controlled substance. The facts and circumstances surrounding Defendant's

arrest clearly indicate that Defendant possessed the drugs with the intent to deliver them.

Defendant gave his address as 421 Winton Street, when arrested, which is where a significant

amount of narcotics and cash were found. Defense counsel argued that there was no evidence

that Defendant lived in that house and that he gave a different address later to the Pretrial

Division, however, at the time of his arrest Officer Barber noted the address given by Defendant



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himself as 421 Winton Street. (N.T. 7/31/2013, p. 101). In addition, the narcotics were divided

up into smaller baggies to make it easier to sell to a wider audience. The jury heard evidence by

stipulation regarding the analyses of the substances found in the house and how they tested

positively for marijuana, cocaine and Xanax. The jury also heard evidence of the amount of

drugs found at the residence, valued at $9600, as well as expert testimony of how drugs are

commonly packaged and sol         ·     hiladelphia. The Commonwealth's expert also testified that in

his opinion the drugs wer posses         ith the intent to deliver to others. In addition, in the very

bedroom where Defendant was found, next to a night table, were marijuana and a large sum of

cash, approximately $1300. In that same bedroom, was a woman's purse which contained 58.7

grams of cocaine, a large amount of marijuana, pills and cash. Also, in the kitchen of this

property which Defendant gave as his address, police found 221.3 grams of marijuana in the

freezer. This evidence overwhelmingly indicated that Defendant and Pickron possessed drugs

with the intent to distribute.

    3.      The evidence was sufficient to convict Defendant of criminal conspiracy.


         The evidence adduced at trial was sufficient to support Defendant's conviction of

criminal conspiracy. To prove criminal conspiracy, the Commonwealth must prove that "the

defendant (1) entered into an agreement to commit or aid in committing an unlawful act with

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

furtherance of the conspiracy."       Commonwealth v. Jones, 2005 PA Super. 166, 874 A.2d 108,

121 (2005) (quoting Commonwealth v. Murphy, 2002 PA Super 84, 795 A.2d 1025, 1038

(2002), aff'd 577 Pa. 275, 844 A.2d 1228 (2004)). The overt act does not need to be committed

by the defendant himself; it need only be committed by a co-conspirator. Commonwealth v.

Bricker, 2005 PA Super. 307, 882 A.2d 1008, 1017 (2005) (citing Commonwealth v. Hennigan,


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2000 PA Super. 145, 753 A.2d 245, 253 (2002)).         Due to the nature of the crime, proof of

conspiracy   is almost always in the form of circumstantial   evidence.   Commonwealth     v. Davalos,

2001 PA Super. 197 A.2d 1190, 1193 (200l)(citing          Commonwealth    v. Kennedy, 499 Pa. 389,

453 A.2d 927, 929-930 (1982)):      It can be inferred by "the relation, conduct, or circumstances of

the parties and the overt acts of the co-conspirators."   Murphy, 197 A.2d at 1138 (quoting

Commonwealth v. Johnson, 719 A.2d 778, 784-785 (Pa. 1998) (en bane), appeal denied739

A.2d 1056 (Pa. 1999)). Relevant factors for the fact-finder to consider include "an association

between the alleged conspirators, knowledge of the commission of the crime, presence at the

scene of the crime, and participation in the object of the conspiracy." Bricker, 882 A.2d at 1017

(quoting Jones, 874 A.2d at 121-122).

       In the case at bar, this jury properly concluded that Defendant was guilty of conspiracy

because Defendant was found to be living at the property where he changed from night clothes to

street clothes, found in the rear bedroom where Pickron was coming from in her night clothes

and where a large amount of drugs and cash were found. In fact, Defendant had clothes in the

bedroom that he changed into when he knew he was under arrest. Most significantly, he gave

the address of the residence as his own when questioned by officers for biographical information

at the time of his arrest. Although he later stated his address as 1436 Catharine Street, at the time

of his arrest, he gave his address as 421 Winton Street. In addition, Pickron told police she lived

at 421 Winton Street with her boyfriend, namely, this Defendant. Indeed, the relationship,

conduct or circumstances and overt acts of these parties in relation to the house and being present

with each other, in close proximity to the drugs and cash was ample evidence for the jury in this

case to find Defendant guilty of criminal conspiracy.




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   4.      The evidence was sufficient to convict Defendant of possession of a controlled
           substance.
               The Controlled Substance, Drug, Device and Cosmetic Act prohibits the knowing

or intentional possession of a controlled substance by a person not authorized under the law to do

so. 35 Pa. C.S.A. § 780-113(a)(l6);   Commonwealth v. Pitner, 2007 PA Super 206, 928 A.2d

1104, 1108 (2007). Marijuana is a controlled substance. 35 Pa. C.S.A. § 780-104(l)(iv).

Possession can also be based on constructive possession, or in the words of the Pennsylvania

Superior Court:


               Constructive possession is a legal fiction, a pragmatic construct to
               deal with the realities of criminal law enforcement. Constructive
               possession is an inference arising from a set of facts that
               possession of the contraband was more likely than not. We have
               defined constructive possession as conscious dominion. We
               subsequently defined conscious dominion as the power to control
               the contraband and the intent to exercise that control. To aid
               application, we have held that constructive possession may be
               established by the totality of the circumstances.



Commonwealth v. Kinard, 2014 PA Super 41 (Pa. Super. Ct. Mar. 4, 2014) (quoting

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super.2012), appeal denied, -             Pa.--, 63

A.3d 1243 (2013) (internal quotation marks and citation omitted). Constructive possession may

be found where no single piece of evidence establishes possession, but "the totality of the

circumstances infer such." Kinard (citing Commonwealth v. Nelson, 399 Pa.Super. 618, 582

A.2d 1115, 1119 (Pa.Super.1990), appeal denied, 527 Pa. 664, 593 A.2d 840 ( 1991)).

Additionally, "[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." Commonwealth v. Johnson, 611 Pa. 381,




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407, 26 A.3d 1078, 1094 (2011) (quoting Commonwealth v. Valette, 531 Pa. 384, 388, 613 A.2d

548, 550 (1992)).

       In the case at bar, the jury was given the following jury instruction regarding constructive

possession:

               A person can be guilty of possessing an item even when he or she
               is not holding it or touching it or in the same area as the item. That
              type of possession is what the law calls constructive possession.
              For there to be constructive possession, it must be proved beyond a
              reasonable doubt that the individual had both the intent to control
              the item and the power the control the item. In determining
              whether or not each defendant had possession of a controlled
              substance, you should consider all of the facts and circumstances
              that may shed light on the question of whether each defendant had
              the intent to control and the power to control the substance. Two or
              more persons may have joint possession of a controlled substance
              provided each has the intent to exercise joint control over that
              substance and that each has the power to control it. Each of the
              joint possessors is regarded as having possession of the controlled
              substance for purposes of the
              criminal law.

(N.T. 8/1/2013, p. 150-151). Based on the totality of the circumstances, the jury properly found

that Defendant was in constructive possession of the drugs because the drugs were found in an

area of the house where Defendant had equal access and control to the drugs, as they were next

to where he slept in an open dresser drawer. In fact, Defendant was found by police right next to

the specific dresser drawer where police found a large amount of cash and marijuana. In that

same bedroom was a purse with a large amount of cocaine, marijuana and Xanax. Further,

Defendant provided the address of the house in which he was found sleeping to Officer Barber

when questioned about his residence at the time of his arrest. Finally, Defendant was not a

person who was authorized to possess marijuana, cocaine or Xanax and the jury properly

convicted Defendant of possession of a controlled substance.




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III.   THE COMMONWEALTH ADEQUATELY SHOWED THE DRUG AMOUNTS
       ATTRIBUTABLE TO DEFENDANT AND AS A RESULT, THEMANDATORY
       SENTENCING RANGE WAS PROPERLY APPLIED.

       In Pennsylvania, "when the aggregate weight of the compound or mixture containing the

substance involved is at least ten grams and less than 100 grams; three years in prison and a fine

of $15,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds

from the illegal activity; however, if at the time of sentencing the defendant has been convicted

of another drug trafficking offense: five years in prison and $30,000 or such larger amount as is

sufficient to exhaust the assets utilized in and the proceeds from the illegal activity. 42 Pa.

C.S.A. § 7508.

       In the case at bar, the mandatory sentencing range was properly applied to the jury's

finding that the drug amounts attributable to Defendant's were above 10 grams. The jury heard

testimony that the total weight of cocaine found in the house at 421 Winton was approximately

50 grams. (N.T 7/31/2013, p. 166). As discussed above, the jury found Defendant guilty of the

possession of the drugs in the house, thus the mandatory sentencing range was properly applied.




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                                        CONCLUSION

       After a review of the applicable statutes, case law, and testimony, this Court committed

no error. The verdict was not against the weight of the evidence. The jury had sufficient

evidence to convict Defendant of PWID, conspiracy and K&I. The Commonwealth proved drug

amounts attributable to Defendant necessary to impose a mandatory minimum sentence.

Therefore, this Court's decision should be upheld on appeal.




                                                                     BY THE COURT:




                                                                        ~J.




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