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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA

                  v.


    ALEXIS NAKIA TODD,

                         Appellant.                :    No. 3448 EDA 2018


       Appeal from the Judgment of Sentence Entered, October 30, 2018,
               in the Court of Common Pleas of Delaware County,
             Criminal Division at No(s): CP-23-CR-0007253-2017.


BEFORE:         BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                                 FILED AUGUST 13, 2019

        Alexis Nakia Todd appeals from the judgment of sentence imposed

following   a   bench trial where the trial court found her guilty of possessing drug

paraphernalia,' possession of         a   controlled substance,2 obstruction of justice,3

and conspiracy to possess       a   controlled substance with intent to deliver.4 Todd

appeals only her conviction for conspiracy. Upon review, we affirm.

        The trial court set forth the pertinent facts as follows:

        On October 25, 2017 Officer Christopher Craig of the Borough of
        Lansdowne Police Department was on duty in uniform and
        operating a marked patrol vehicle. At about 4:30 p.m. he stopped


'   35 Pa.C.S.A.   §   780-113 (a)(32).

2   35 Pa.C.S.A.   §   780-113 (a)(16).

3   18 Pa.C.S.A. § 5104.

4   18 Pa.C.S.A. § 903.
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     a black Honda. The stop came to fruition in a parking lot on East
     Baltimore Avenue. After the Honda came to a stop Officer Craig
     watched [Todd], the passenger, exit the vehicle from the
     passenger's side and walk around toward the driver's side. At the
     same time the driver climbed from the driver's seat to the
     passenger side. Officer [Craig] asked the driver, James Hollis, to
     get back into driver's seat [and] he did.
     Officer Craig called for back-up and asked Hollis for his license,
     registration and proof of insurance. Hollis appeared to be nervous
     and was fidgeting. When Officer Craig secured the documents he
     returned to his patrol vehicle to run the information through the
     CLEAN system. Two officers arrived to assist Officer Craig.

     Officer Jonathan Downs went to the driver's side of the vehicle
     after conferring with Officer Craig. Hollis was sitting half -way out
     of the driver's seat. He was reaching into the front and back seats
     of the passenger compartment. It appeared as if he was trying to
     conceal something. Officer Downs tried to restrain Hollis as he
     threw a green vial into bushes that were nearby. A struggle
     ensued.
     [Todd], who was outside the vehicle, came around to the driver's
     side and got in between Officer Downs and Hollis as the Officer
     tried to handcuff Hollis. Officer Craig watched from the patrol
     vehicle as Officer Downs struggled with Hollis and [Todd]. He left
     his patrol vehicle and tried to pull [Todd] off of Officer Downs.
     [Todd] was aggressive. After a brief struggle Officer Craig and
     [Todd] both fell to the ground and Officer Craig was able to
     handcuff [Todd].
     [Todd] was placed in a patrol vehicle for transport. Her purse,
     which was on the floor of the passenger side of the Honda was
     brought along with her to the police station. In a search at the
     police station a Mason jar containing 10.44 grams of marijuana
     was found in the purse. At the scene of the stop Hollis was
     handcuffed by Officer Downs with the assistance of a third officer.
     After Hollis was handcuffed a green vial containing twenty-six
     thirty -milligram Oxycodone pills was recovered from the bushes.
     Hollis had two green vials containing marijuana on his person.
     Fifty unopened pink vials were in the Honda's passenger -side
     glove compartment. Paraphernalia including an e -cigarette and a
     clear vial containing marijuana residue and a white pill were in the
     passenger compartment of the vehicle. Hollis had $514.00 on his
     person and Hollis and [Todd] were each carrying two cell phones.

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Trial Court Opinion, 1/15/19, at 4-6 (citations omitted).          Todd was arrested

and charged with various offenses.

         Following   a   bench trial, the court found Todd guilty of, inter alia,

conspiracy to possess marijuana with the intent to deliver.           On this charge,

the trial court sentenced Todd to time served (one day) to twenty-three

months of imprisonment.

        Todd timely appealed. Todd and the trial court complied with Pa.R.A.P.

1925.

        Todd raises the following single issue on appeal:

        Whether the evidence was insufficient to sustain the conviction for
        Conspiracy where the Commonwealth failed to prove beyond a
        reasonable doubt that [Todd] (1) entered into an agreement with
        anyone to commit a crime or (2) shared any kind of criminal intent
        to do so?

Todd's Brief at 5.

        Todd contends that the evidence was insufficient to support her

conviction for conspiracy. Specifically, Todd argues that the Commonwealth

failed to prove beyond          a   reasonable doubt that she 1) entered into an

agreement with anyone to commit           a   crime; or 2) shared any kind of criminal

intent to do so.         Thus, according to Todd, her judgment of sentence for

conspiracy should be reversed. Todd's Brief at 8. We disagree.

         In reviewing    a   claim based upon the sufficiency of the evidence, this

Court:

         must determine whether the evidence admitted at trial, as well as
         all reasonable inferences drawn therefrom when viewed in the

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        light most favorable to the verdict winner, are sufficient to support
        all elements of the offense. Additionally, we may not reweigh the
        evidence or substitute our own judgment for that of the fact
        finder. The evidence may be entirely circumstantial as long as it
        links the accused to the crime beyond a reasonable doubt.

Commonwealth v. Koch, 39 A.3d 996, 1001                         (Pa. Super. 2011) (citations

omitted). However, "the inferences must flow from facts and circumstances

proven in the record, and must be of such volume and quality as to overcome

the presumption of innocence and satisfy the jury of an accused's guilt beyond

a    reasonable doubt." Commonwealth v. Scott, 597 A.2d 1220, 1221 (Pa.

Super. 1991). "The trier of fact cannot base                a   conviction on conjecture and

speculation and    a   verdict which   is   premised on suspicion will fail even under

the limited scrutiny of appellate review."             Id. "Because evidentiary sufficiency
is a   question of law, our standard of review is de novo and our scope of review

is   plenary." Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013).

         In pertinent part, conspiracy      is   defined as follows:

         (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.
                                                 ***

         (e) Overt act.-No person may       be convicted of conspiracy to
         commit a crime unless an overt act in pursuance of such
         conspiracy is alleged and proved to have been done by him or by
         a person with whom he conspired.

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18 Pa.C.S.A. § 903. Simplified, this requires proof of three elements: 1) an

agreement,       2)   shared   criminal   intent,   and   3)   an    overt act.   See

Commonwealth v. Murphy, 795 A.2d 1025, 1037-38                      (Pa. Super. 2002).

Moreover, the conspiratorial agreement and shared criminal intent may be

proven by circumstantial evidence. As we have stated:

         An explicit or formal agreement to commit crimes can seldom, if
         ever, be proved and it need not be, for proof of a criminal
         partnership is almost invariably extracted from the circumstances
         that attend its activities. Thus, a conspiracy may be inferred
         where it is demonstrated that the relation, conduct, or
         circumstances of the parties, and the overt acts of the co-
         conspirators sufficiently prove the formation of a criminal
         confederation. 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.
         Even if the conspirator did not act as a principal in committing the
         underlying crime, he is still criminally liable for the actions of his
         co-conspirators taken in furtherance of the conspiracy.

Id. at    1038 (quoting Commonwealth v. Johnson, 719 A.2d 778, 784-85

(Pa. Super. 1998) (en banc)),        appeal denied, 739 A.2d 1056          (Pa. 1999)

(citations and internal quotations omitted).

         The trial court, in concluding that the evidence was sufficient to support

Todd's     conviction   for conspiracy,     first noted    that the facts clearly

demonstrated that Todd possessed the marijuana with the intent to deliver.

         Sergeant Kenneth Rutherford, Jr., testified without objection as
         an expert in narcotics and narcotics investigations. Sergeant
         Rutherford reviewed the evidence that was seized and the
         circumstances of the seizure and opined that the marijuana was
         possessed with the intent to deliver. His opinion was based on
         the fact that [Todd] held the bulk of the marijuana in her purse in
         proximity to the fifty pink unused vials that were in the glove

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       compartment. The pink vials would each hold about 1/2 a gram of
       marijuana. The green vials that were removed from Hollis's person
       contained .49 grams of marijuana. On average a 1/2 gram vial of
       marijuana will sell for five dollars on the street. Drug dealers
       commonly fill small vials like the fifty pink vials seized for 1/2
       gram quantity sales.       When drug dealers are working
       together it is common for one person to hold onto cash and the
       other to carry the marijuana or other controlled substances.

Trial Court Opinion, 1/15/19, at 6 (citations omitted)(emphasis added). Todd

did not appeal her conviction for possession with intent to deliver.

       Turning to the conspiracy charge, the trial court explained as follows:

       The same evidence, when considered along with the additional
       circumstances surrounding [Todd's] arrest support the finding
       that [Todd] was engaged in a joint enterprise with Hollis and the
       two agreed to engage in the sale of marijuana together. [Todd]
       held the bulk of the marijuana. When they were stopped Hollis
       made furtive gestures in the passenger compartment and
       attempted to avoid arrest by disposing of the controlled
       substances that were on his person. [Todd] tried to assist Hollis
       by interfering with his arrest at a time when she had 10.44 grams
       of marijuana sitting in her purse and implements of sale in the
       form of unused half -gram vials within her reach. While [Todd]
       argued at trial that she only happened to be in a car with a drug
       dealer but was not guilty of the crimes charged, the totality of the
       evidence demonstrates that she was in a car with a drug dealer
       because she was complicit in the possession with intent to deliver
       and actively participated in the conspiracy charged.

Trial Court Opinion, 1/15/19, at 7 (citations omitted).

       Based upon our review of the record, and viewing the evidence in the

light most favorable to the Commonwealth as verdict winner, we agree with

the trial court and conclude that there was sufficient evidence to prove beyond

a   reasonable doubt that Todd was engaged in       a   conspiracy with Hollis to

deliver the drugs in her possession. Both Todd and Hollis had drugs on them


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in   amounts inconsistent with personal use.       Todd also had constructive

possession of paraphernalia consistent with dealing. Additionally, Sergeant

Rutherford, who testified as an expert, opined that the circumstances such as

in   this case, where one dealer holds the cash and the other holds the

contraband, indicated that Todd and Hollis were working together. Each had

a    role in the conspiracy to accomplish the overall goal of selling the drugs.

Moreover, after being pulled over, Todd acted in manner to protect her co-

conspirator and herself from arrest and discovery of their activity.      These

factors were sufficient for the trial court to infer that Todd and Hollis had   a

shared criminal      intent to deliver the drugs and worked together as

conspirators to do so.

        Judgment of sentence affirmed.

Judgment Entered.




J    seph D. Seletyn,
Prothonotary



Date: 8/13/19




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