J-S57034-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                   Appellee,               :
                                           :
                    v.                     :
                                           :
JAMES WOMACK,                              :
                                           :
                   Appellant               :    No. 89 WDA 2016

        Appeal from the Judgment of Sentence December 14, 2015,
          in the Court of Common Pleas of Westmoreland County,
            Criminal Division, at No(s): CP-65-CR-0002102-2014

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED AUGUST 12, 2016

      James Womack (Appellant) appeals from the judgment of sentence

entered following his convictions for possession of a controlled substance,

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

criminal conspiracy. We affirm.

      The trial court aptly summarized the relevant factual and procedural

history of this matter as follows.

             On April 5, 2014, Agent Richard Miller (hereinafter “Agent
      Miller”) was contacted by Lieutenant James Smith (hereinafter
      “Lieutenant Smith”), concerning information about [Appellant],
      who had an active warrant for his arrest. Lieutenant Smith
      informed Agent Miller that [Appellant] was staying at the Holiday
      Inn Express on Finley Road in Rostraver Township, gave Agent
      Miller a physical description of [Appellant], and advised him that
      [Appellant] was probably with Mr. Aaron Jackson (hereinafter
      “Jackson”). Agent Miller then proceeded to the Holiday Inn


* Retired Senior Judge assigned to the Superior Court.
J-S57034-16


     Express where he saw [Appellant] and Jackson walk through the
     lobby, walk to the parking lot, and enter in the rear of a maroon
     Ford Explorer. Agent Miller and Lieutenant Smith then followed
     the vehicle to the Denny’s parking lot. After [Appellant] and
     Jackson exited the vehicle and stood in front of the Denny’s
     entrance, Agent Miller, Lieutenant Smith, and Sergeant Joe
     Dugan (hereinafter “Sergeant Dugan”) approached them. The
     [o]fficers told [Appellant] he was under arrest, [Appellant]
     complied, and was subsequently taken into custody.

           After [Appellant] was handcuffed, Agent Miller conducted a
     search where he found U.S. currency totaling $3,014.00, sixteen
     (16) bags of heroin, two cellular phones, a hotel key card for the
     Holiday Inn Express, and a Pennsylvania photo identification card
     with the name of Matthew Wall from Monessen. Agent Miller
     explained that these particular stamp bags of heroin were
     marked “Taco Bell,” and came with wrapping paper, which is
     typically used to package heroin. However, Agent Miller did not
     find any drug paraphernalia on [Appellant]. [Appellant] was then
     transported to Rostraver Police Department.

           While Agent Miller was interacting with [Appellant],
     Lieutenant Smith witnessed Jackson make “furtive” movements,
     which resulted in Lieutenant Smith handcuffing him, patting him
     down, and finding a brick of heroin on his person. The bags
     found on Jackson were also marked “Taco Bell.” Lieutenant
     Smith further found a brick wrapper, around $1,200.00 in U.S.
     currency, and a hotel key marked 5-A inside a sleeve marked
     313. However, Lieutenant Smith did not find any paraphernalia
     on Jackson’s person nor marks of drug use.

           Agent Miller and Lieutenant Smith then returned to the
     Holiday Inn Express to inquire about who was renting room 313.
     The clerk told them that it was rented out by a man named Rick
     Evans, and Ann Malys (hereinafter “Malys”), the hotel manager,
     subsequently provided records indicating the same at trial. Malys
     explained that photo identification is required in the check-in
     process and that normally only two cards are given out per
     room; Room 313 was rented at approximately 3:53 in the
     afternoon. She testified that the room was rented for one night
     and paid for in cash. Malys testified that she was not at work on
     [the previous day,] April 5, 2014.



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           The [o]fficers then went to the room and knocked and
     announced that it was the police. The [o]fficers were able to
     enter Room 313 by the means of the hotel key found on
     [Appellant]. Officer Crawford of the Rostraver Police also arrived
     on the scene and entered the hotel room as well. At this point,
     no one was in the room and Agent Miller instructed Officer
     Crawford to guard the room and not let anyone enter until they
     returned with a search warrant. The [o]fficers obtained a search
     warrant around 9:30 p.m. and returned to the hotel around 9:40
     at night. Agent Miller, Lieutenant Smith, Officer Crawford, Officer
     Dorcon, and Officer Rush participated in the search of the hotel
     room.

           When searching the hotel room, Agent Miller and
     Lieutenant Smith did not find any drug paraphernalia. However,
     Lieutenant Smith found thirteen (13) bricks of heroin wrapped in
     magazine paper, and then in a plastic bag under a mattress,
     closest to the window. The bags were marked “Taco Bell.” He
     also found wrappings from bricks of heroin in the center drawer
     of the nightstand. Lieutenant Smith testified that the total
     amount of heroin stamp bags found in the hotel room was six
     hundred and sixty-six (666) bags. Six hundred and sixty-four
     (664) of the stamp bags were marked as “Taco Bell” while two of
     the bags were not stamped. The parties stipulated that the drugs
     seized were heroin and the amount contained in the reports
     were correct.

Trial Court Opinion, 3/10/2016, at 1-3 (citations to notes of testimony

omitted).

     This matter proceeded to a jury trial on July 6, 2015, at the conclusion

of which, Appellant was found guilty of the aforementioned charges.1       On

December 14, 2015, Appellant was sentenced to an aggregate term of 30 to

60 months’ incarceration followed by a consecutive term of three years’

1
  Although the record indicates that 16 stamp bags of heroin marked “Taco
Bell” were recovered from Appellant’s person, the Commonwealth proceeded
to trial only on the possession, PWID and criminal conspiracy counts related
to the two bricks of heroin found during the search of room 313. See
Criminal Information, 6/2/2014; N.T., 7/6-8/2015, 303-304.
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probation.      This timely-filed appeal followed.   Both Appellant and the trial

court complied with the mandates of Pa.R.A.P. 1925.

       On appeal, Appellant asks us to consider whether the evidence was

sufficient to convict him of PWID, possession and criminal conspiracy with

respect to the heroin recovered from the Holiday Inn Express. Appellant’s

Brief at vii.

       Before we address Appellant’s issues on the merits, we must

determine whether they have been preserved properly for our review. With

respect to sufficiency-of-the-evidence claims, it is well-settled that the

1925(b) statement must specify the element or elements upon which the

evidence was insufficient, or the claim may be waived. Commonwealth v.

Williams, 959 A.2d 1252, 1257-58 (Pa. Super. 2008). However, even if a

sufficiency claim is vague, this Court may review it where the case is

straightforward, the record is not long and complex, the trial court readily

apprehended the appellant’s claim, and the trial court thoroughly addressed

the merits of the claim in its opinion. Commonwealth v. Laboy, 936 A.2d

1058, 1060 (Pa. 2007).

       In his 1925(b) statement, Appellant asserts general sufficiency

challenges for each of his three convictions, but fails to specify which

element or elements of each crime he is challenging. Appellant’s Concise

Statement, 2/19/2016. Nonetheless, in its 1925(a) opinion, the trial court

addressed each claim in turn. Trial Court Opinion, 3/10/2016, at 3-9.


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J-S57034-16


Accordingly, we decline to find waiver. Laboy, supra.         We now turn to

Appellant’s substantive claims.

      Appellant argues that the Commonwealth failed to present evidence

sufficient to prove that Appellant knew the recovered heroin was in room

313 and failed to present evidence of an agreement between Appellant and

Jackson to sell the heroin. Appellant’s Brief at 2.

      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 [Commonwealth as 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.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015)

(citation omitted).

      Instantly, Appellant was convicted of two possessory offenses, PWID

and possession, as well as one count of criminal conspiracy with respect to

the two bricks of heroin recovered from room 313.

            When contraband is not found on the [Appellant’s] person,
      the Commonwealth must establish constructive possession….
      Constructive possession is the ability to exercise conscious
      control or dominion over the illegal substance and the intent to
      exercise that control. [T]wo actors may have joint control and

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     equal access and thus both may constructively possess the
     contraband. The intent to exercise conscious dominion can be
     inferred from the totality of the circumstances.

           To establish the offense of possession of a controlled
     substance with intent to deliver, the Commonwealth must prove
     beyond a reasonable doubt that the [Appellant] possessed a
     controlled substance with the intent to deliver it.

           The trier of fact may infer that the [Appellant]
           intended to deliver a controlled substance from an
           examination of the facts and circumstances
           surrounding the case. Factors to consider in
           determining whether the drugs were possessed with
           the intent to deliver include the particular method of
           packaging, the form of the drug, and the behavior of
           the [Appellant].

           Thus, possession with intent to deliver can be inferred
     from the quantity of the drugs possessed and other surrounding
     circumstances, such as lack of paraphernalia for consumption.

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

(citations and quotation marks omitted).

     The trial court addressed Appellant’s claims with respect to his

possessory offenses as follows.

           In this case, the jury heard testimony from Agent Miller
     describing the items found on [Appellant’s] person, which
     consisted of U.S. currency totaling $3,014.00, sixteen (16) bags
     of heroin, two cellular phones, a hotel key card for the Holiday
     Inn Express, and a Pennsylvania photo identification card with
     the name of Matthew Wall from Monessen. Agent Miller
     explained that these particular stamp bags of heroin were
     marked “Taco Bell,” and came with wrapping paper, which is
     typically used to package heroin. The [o]fficers were then able to
     enter Room 313 by the means of the hotel key found on
     [Appellant]. After receiving a search warrant, Lieutenant Smith
     found thirteen (13) bricks of heroin wrapped in magazine paper,
     and then in a plastic bag under a mattress, closest to the
     window. The bags were also marked as “Taco Bell.”

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            Given the testimony presented at trial, [Appellant] is not a
     person registered [] to possess a controlled substance. Clearly,
     heroin is a controlled substance. Here, the jury heard that it was
     confirmed after testing from the Greensburg State Police Crime
     Lab that the powder contained heroin and heroin is a Schedule I
     controlled substance. Moreover, the jury heard testimony from
     Tristan Wenzig, a technical support operator and a criminal
     analyst, who confirmed that the currency found on [Appellant]
     was tested by an ion scan for narcotics, which resulted in a
     positive reading for heroin on the currency.

                                      ***

            [Additionally,] the jury heard testimony from Detective
     Anthony Marcocci (hereinafter “Detective Marcocci”), an expert
     in the area of narcotics and narcotics investigations, who opined
     that, taking into consideration the factors of the amount of cash,
     the fact that the stamp bags marked “Taco Bell” in green ink
     found on [Appellant’s] person matched the stamps found in the
     hotel room, and the possession of the hotel key to the same
     hotel room where the large amount of heroin was found,
     [Appellant] possessed the heroin for distribution. Specifically, he
     testified that heroin users usually do not have any significant
     amount of money to buy heroin. He testified that [it is] his
     experience that drug dealers will typically “post up” in a hotel
     room, have another person sign them in, and pay in cash.
     Further, he testified that six hundred and sixty-six (666) stamp
     bags was a large amount of heroin and is not consistent with
     personal use.

                                      ***

           [W]hile Jackson testified that [Appellant] was not involved
     in the sale of narcotics and that he never told [Appellant] about
     the drugs in the hotel room, he testified that [Appellant] did, in
     fact, meet him at the Holiday [Inn] Express and purchase the
     two bundles of heroin that were allegedly on his person.

                                      ***

           [Additionally, t]he jury heard testimony that both
     [Appellant] and Jackson had access to Room 313, which was
     established when hotel room keys for Room 313 were found on

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J-S57034-16


     each of them. By having access to Room 313, they both, in fact,
     had control over the heroin. [Appellant’s] possession of the same
     brand of heroin on his person established his intent to control
     the larger stash of heroin in the hotel room.

Trial Court Opinion, 3/10/2016, at 4-5, 7 (citations to notes of testimony

omitted).

     Viewed in the light most favorable to the Commonwealth, the evidence

presented is sufficient to demonstrate that Appellant knew of, and had the

ability and intent to exercise dominion and control over, the heroin

recovered from the hotel room.        Commonwealth v. Johnson, 26 A.3d

1078, 1093–1094 (Pa. 2011) (holding that intent to maintain conscious

dominion may be inferred from totality of the circumstances). Accordingly,

we conclude that the Commonwealth presented sufficient evidence to

establish both possessory offenses.

     To sustain a conviction for criminal conspiracy:

            [T]he Commonwealth must establish that the
            [Appellant] (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) an
            overt act was 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

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      conspiratorial agreement beyond a reasonable doubt where one
      factor alone might fail.

Jones, 874 A.2d at 121-22.

      The trial court found the evidence sufficient, holding that the

aforementioned evidence made clear that it was Appellant and Jackson’s

intent to possess the heroin with the purpose of selling it, which possession

constitutes an overt act in furtherance of that conspiracy. Trial Court

Opinion, 3/10/2016, at 7.       Moreover, the court noted that the jury found

incredible Jackson’s testimony that Appellant had nothing to do with selling

heroin. Id. At trial, Jackson admitted that he had previously pled guilty to

conspiring with Appellant to sell the heroin recovered in Room 313. Id. “[I]t

is for the fact-finder to make credibility determinations, and the finder of fact

may believe all, part, or none of a witness’s testimony.” Commonwealth v.

Thompson, 934 A.2d 1281, 1285 (Pa. Super. 2007). It is well-established

that, in evaluating a sufficiency of the evidence challenge, “[t]his Court may

not weigh the evidence or substitute its judgment or that of the factfinder.”

Commonwealth v. Hacker, 959 A.2d 380, 388–89 (Pa. Super. 2008)

(internal citations omitted).     Accordingly, we find that the evidence was

sufficient to establish each of the elements of criminal conspiracy. See

Jones, 874 A.2d at 122.         Based on the foregoing, we affirm Appellant’s

judgment of sentence.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/12/2016




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