J-A16023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KYLIEFF BROWN                              :
                                               :
                       Appellant               :   No. 264 EDA 2017

           Appeal from the Judgment of Sentence September 9, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0001138-2014


BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                                FILED JULY 05, 2018

        Kylieff Brown appeals, nunc pro tunc, from his judgment of sentence,

entered in the Court of Common Pleas of Philadelphia County, after a jury

convicted him of one count of possession with intent to deliver a controlled

substance (PWID).1 After careful review, we affirm.

        The trial court summarized the findings of fact as follows:

        This case arises out of a chance meeting between the complaining
        witness, Kevin Slaughter, and the [d]efendant, Kylieff Brown, at
        the SugarHouse Casino. Upon observing the complainant’s good
        fortune at the blackjack tables, [Brown] solicited [Slaughter] to
        engage in a drug and gun deal. [Slaughter’s] assent to this
        request initiated a series of events culminating in the kidnapping
        for ransom, robbery, and attempted murder of [Slaughter]. The
        four co-defendants were connected to each other and to the three
        crime scenes through cell phone messages and cell site analysis.
        This is an abridged version of the facts pertinent to this appeal
        since [Brown] was solely convicted of PWID.

____________________________________________


1
    35 Pa.C.S. § 780-113(a)(30).
J-A16023-18


     [Slaughter] testified that he was on parole in December 2013 for
     a prior drug conviction. On the evening of December 8, 2013, at
     approximately 8:00 P.M., [Slaughter] went to the SugarHouse
     Casino to play blackjack. He ran into [Brown], whom he met in
     prison. The two sparked a conversation about drugs and a gun.
     [Slaughter] indicated to [Brown] that he could sell him both.

     [Brown] stated to [Slaughter] that his cousin in Delaware was
     looking for 31 grams of cocaine. [Brown] also wanted a gun.
     [Slaughter] told [Brown] that he could sell him a .380 caliber
     firearm.   [Brown] indicated that he wanted to do the deal
     immediately. Video surveillance from the casino shows [Brown]
     and [Slaughter] at the cashier at 9:13 P.M.

     [Slaughter and Brown] drove in [Slaughter’s] black Cadillac DTS
     from SugarHouse to South Philadelphia to pick up the drugs and
     the gun. [Brown] arranged for them to meet his cousin at 49th
     Street and Baltimore Avenue. [Slaughter] pulled over at 49th
     Street and Springfield Avenue. He told [Brown] to tell his cousin
     to meet him there instead of 49th Street and Baltimore Avenue.

     [Slaughter] was abducted at that time. He was eventually
     ransomed to his wife approximately fifty minutes after the time of
     the initial abduction. He was removed from the van in Northeast
     Philadelphia at approximately 11:30 P.M. on December 8, 2013.

     Jonathan Moore testified that he observed the abduction and
     called 911. He pointed out a gold vehicle which was parked at the
     scene to the responding officers. Mr. Moore testified that he
     observed a man pick up something near [Slaughter’s] black
     Cadillac and get into the gold vehicle.

     Officer Christopher Sweeney testified that the gold vehicle[, which
     had Delaware tags,] was parked on Springfield Avenue with three
     occupants inside. The rear driver’s side passenger was identified
     as co-defendant, Kareem Cooley. The male seated in the driver’s
     seat was identified as Derrick Hagains. The front passenger was
     identified as Anthony McCray. A fourth male, later identified as
     [Brown], was detained in the back of a police cruiser when Officer
     Sweeney arrived at the scene.

     Four clear plastic bags containing an off-white chunk[y] substance
     were recovered from inside of the gold vehicle. One of the bags
     was recovered under the lining of the vehicle near the back
     passenger’s side window. That bag weighed 25.246 grams. The


                                    -2-
J-A16023-18


      other three bags weighed 13.921 grams in totality. It was
      determined that the substance in each bag was crack/cocaine.

Trial Court Opinion, at 2-4.

      On July 13, 2016, Brown was found guilty of PWID after a jury trial,

presided over by the Honorable Rose Marie DeFino-Natasi. On September 9,

2016, Brown was sentenced to forty to eighty months’ imprisonment. Trial

counsel, Shawn Page, Esquire, did not file a notice of appeal. On December

18, 2016, Brown filed an untimely pro se notice of appeal. David Barrish,

Esquire, was appointed appellate counsel and, on November 21, 2016, filed a

petition for reinstatement of Brown’s appellate rights nunc pro tunc.         On

December 5, 2016, this Court quashed Brown’s pro se appeal as untimely. On

December 16, 2016, the trial court granted Brown’s petition. Brown filed a

timely notice of appeal nunc pro tunc, and a court-ordered Pa.R.A.P. 1925(b)

concise statement of matters complained of on appeal on February 28, 2017.

      On appeal, Brown challenges the sufficiency of the evidence to support

his conviction.   As a preliminary matter, we note that the Commonwealth

urges us to find that Brown has waived his sufficiency claim because he did

not present it with the requisite specificity in his Rule 1925(b) statement. It

is well-settled that an appellant’s concise statement must specify the error to

be considered on appeal. Commonwealth v. Hansley, 24 A.3d 410, 415

(Pa. Super. 2011). “[A Rule 1925(b)] [s]tatement which is too vague to allow

the court to identify the issues raised on appeal is the functional equivalent to

no [c]oncise [s]tatement at all.” Commonwealth v. Heggins, 809 A.2d 908,

911 (Pa. Super. 2002) quoting Commonwealth v. Dowling, 778 A.2d 683,

                                      -3-
J-A16023-18



686-87 (Pa. Super. 2001).      However, this matter is a single-count drug

conviction and the trial court has thoroughly addressed Brown’s claim in its

Rule 1925(a) opinion. Accordingly, we decline to find waiver and will review

Brown’s sufficiency claim. See Commonwealth v. Laboy, 936 A.2d 1058,

1060 (Pa. 2007) (declining to find waiver for alleged failure of Rule 1925(b)

statement to adequately develop sufficiency of evidence claim where matter

was “relatively straightforward drug case,” evidentiary presentation spanned

“mere thirty pages of transcript,” and trial “court readily apprehended

[defendant’s] claim and addressed it in substantial detail”).

      We now turn to the merits of Brown’s sufficiency claim. Our standard

of review is well-settled:

      A claim challenging the sufficiency of the evidence is a question of
      law. 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. Where the evidence offered to support the verdict is in
      contradiction to the physical facts, in contravention to human
      experience and the laws of nature, then the evidence is insufficient
      as a matter of law. When reviewing a sufficiency claim[,] the court
      is required to view the evidence in the light most favorable to the
      verdict winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      [T]he critical inquiry on review of the sufficiency of the evidence
      to support a criminal conviction . . . does not require a court to
      ask itself whether it believes that the evidence at the trial
      established guilt beyond a reasonable doubt. Instead, it must
      determine simply whether the evidence believed by the fact-finder
      was sufficient to support the verdict.

                                     -4-
J-A16023-18



Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36 (Pa. 2007) (internal

citations omitted).

      To prove the offense of possession with intent to deliver, the

Commonwealth must prove beyond a reasonable doubt that a defendant both

possessed a controlled substance and had the intent to deliver it.

Commonwealth v. Little, 879 A.2d 293, 297 (Pa. Super. 2005). In narcotics

possession cases, “the Commonwealth may meet its burden by showing

actual, constructive, or joint constructive possession of the contraband.”

Commonwealth v. Roberts, 133 A.3d 759, 767-68 (Pa. Super. 2016)

quoting Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa. Super. 2014)

(quotations omitted).

      This Court has previously stated that constructive possession is a legal

fiction. Constructive possession is essentially an inference arising from the

facts and circumstances that possession of the contraband was more likely

than not.   Roberts, supra, at 768.      “The Commonwealth may sustain its

burden by means of wholly circumstantial evidence.” Id. The intent to deliver

can be inferred from a large amount of a controlled substance; conversely,

possession of a small amount of a controlled substance implies absence of the

intent to deliver. Id. Other facts may be considered in addition to the quantity

of the controlled substance, including the way the contraband was packaged

and the behavior of the defendant. Id.

      The trial court summarized the evidence adduced at trial as follows:




                                     -5-
J-A16023-18


      Testimony at trial established that [Brown] solicited [Slaughter]
      to engage in a drug deal with his cousin from Delaware. The two
      then went to South Philadelphia to pick up the drugs and gun,
      then went to make a delivery of the contraband in Southwest
      Philadelphia. [Brown] was arrested on the scene of the initial
      abduction in Southwest Philadelphia. Based on Officer Sweeney’s
      testimony regarding the location of each of the persons inside the
      gold vehicle with Delaware tags, the jury could infer that [Brown]
      was sitting in [the] rear back passenger’s seat at the time of his
      arrest.

      Detectives seized four clear plastic bags containing crack/cocaine
      from inside of the gold vehicle. One of the bags weighed 25.246
      grams. That bag was recovered near the back passenger’s side
      window. The three other bags weighed 13.921 grams in totality.
      The jury was free to accept the inference that [Brown] took the
      drugs from [Slaughter’s] vehicle at the time of the abduction and
      brought them into the gold vehicle. The evidence was sufficient
      to prove that [Brown] had control and possession of the drugs,
      i.e. constructive possession, and that he possessed the
      crack/cocaine with the intent to deliver.

Trial Court Opinion, at 6-7.

      We agree with the trial court’s analysis. The record supports findings of

both Brown’s constructive possession of narcotics as well as his intent to

deliver them, through a drug deal that he coordinated. Accordingly, Brown’s

sole appellate claim is meritless.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/5/2018


                                     -6-
