J-A26002-19

                                2020 PA Super 10

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 CHESTER CARR                             :
                                          :
                    Appellant             :   No. 1538 WDA 2018

      Appeal from the Judgment of Sentence Entered October 1, 2018
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                         CP-25-CR-0000788-2018


BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

OPINION BY SHOGAN, J.:                             FILED JANUARY 21, 2020

      Appellant, Chester Carr, appeals from the judgment of sentence entered

following his convictions of various crimes related to a drug-overdose death.

We affirm.

      The trial court set forth the procedural background of this case as

follows:

            Appellant’s charges arose on April 27, 2017, when the
      victim, Olivia Askins (“Askins”), purchased heroin laced with
      Fentanyl from Appellant and died from an overdose. Appellant
      supplied the drugs and directed his 16-year old girlfriend, [J.S.],
      to deliver the drugs to Askins. At the time, Appellant was
      incarcerated at the Erie County Prison. However, he used the
      prison telephone system to dictate to [J.S.] regarding where she
      could find Appellant’s stash of drugs, prepare the drugs for
      delivery, contact Askins and deliver the drugs to her. [J.S.] drove
      to Askins’ house and delivered the drugs per Appellant’s
      instructions.

            After a two-day trial on August 13th and 14th, 2018,
      Appellant was convicted of all charges, as follows:
J-A26002-19


          Count 1: Criminal Conspiracy (drug delivery resulting
          in death), 18 Pa.C.S.A. §903 (a);

          Count 2: Drug Delivery Resulting in Death (Fentanyl),
          18 Pa.C.S.A. §2506(a);

          Count 3: Criminal Conspiracy (to deliver Fentanyl), 18
          Pa.C.S.A. §903(a);

          Count 4: Unlawful Delivery of a Controlled Substance
          (Fentanyl), 35 P.S. §780-113(a)(30);

          Count 5: Possession of a Controlled         Substance
          (Fentanyl), 35 P.S. §§780-113(a)(16);

          Count 6: Possession of Drug Paraphernalia, 35 P.S.
          §780-113(a)(32);

          Count 7: Recklessly Endangering Another Person, 18
          Pa.C.S.A §2705;

          Count 8: Criminal Use of a Communication Facility, 18
          Pa.C.S.A. §7512(a).

          On October 1, 2018, Appellant was sentenced as follows:

          Count 1: Criminal Conspiracy (drug delivery resulting
          in death): 114 - 228 months of incarceration;

          Count 2: Drug Delivery Resulting in Death: 126 to
          252 months of incarceration, consecutive to Count 1;

          Count 3: Criminal Conspiracy (to deliver Fentanyl):
          Merges with Count 1;

          Count 4: Unlawful Delivery of a Controlled Substance:
          Merges with Count 2;

          Count 5: Possession of    a    Controlled   Substance:
          Merges with Count 2;

          Count 6: Possession of Drug Paraphernalia:         12
          months of probation, consecutive to Count 8;


                                   -2-
J-A26002-19


            Count 7: Recklessly Endangering Another Person:
            Merges with Count 2; and

            Count 8: Criminal Use of a Communication Facility:
            21-42 months of incarceration, consecutive to Count
            2.

            On October 3, 2018, Appellant filed a Motion to Modify
      Sentence/Reconsider Sentence. Appellant claimed the jury’s
      verdict at Counts 1, 2, 4, 5, 6 and 7 should be quashed as the
      evidence was insufficient to convict him. Appellant challenged the
      weight of the evidence. Appellant attached a Petition for Writ of
      Habeas Corpus contending the Drug Delivery Resulting in Death
      statute, 18 Pa.C.S.A. §2506, is a strict liability crime. As such,
      Appellant cannot be charged as he did not personally deliver the
      drugs. The post-sentence motion was denied on October 4, 2018.

Trial Court Opinion, 12/19/18, at 1-2.

      This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      I. WHETHER OR NOT CRIMINAL CONSPIRACY TO COMMIT A DRUG
      DELIVERY RESULTING IN DEATH AS DEFINED BY STATUTE IN 18
      Pa.C.S.A. §903 (a) and 18 Pa.C.S.A. §2506 (a) IS A LEGALLY
      COGNIZABLE CRIME OR A LOGICAL IMPOSSSIBILITY.

      II. WHETHER OR NOT THE COMMONWEALTH PRESENTED
      SUFFICIENT EVIDENCE TO PROVE THE APPELLANT’S GUILT
      BEYOND A REASONABLE DOUBT AS TO THE CONVICTIONS OF
      CRIMINAL CONSPIRACY (DRUG DELIVERY RESULTING IN
      DEATH), DRUG DELIVERY RESULTING IN DEATH, UNLAWFUL
      DELIVERY OF A CONTROLLED SUBSTANCE, POSSESSION OF A
      CONTROLLED      SUBSTANCE, POSSESSION    OF   DRUG
      PARAPHERNALIA, AND RECKLESSLY ENDANGERING ANOTHER
      PERSON REGARDING THE INCIDENT THAT OCURRED ON
      APRIL 27, 2017.

Appellant’s Brief at 5 (verbatim).




                                     -3-
J-A26002-19


      Appellant first argues that the Commonwealth charged him with a crime

that is not legally cognizable, i.e. criminal conspiracy to commit drug delivery

resulting in death.   Appellant’s Brief at 16-18. Appellant asserts that it is

logically impossible for a person to intentionally conspire to achieve an

unintended reckless result. Id. at 17. Upon careful review, we disagree.

      As this is a question of law, our scope of review is plenary, and our

standard of review is de novo. Commonwealth v. Fisher, 80 A.3d 1186,

1189 (Pa. 2013) (citing Commonwealth v. Crawley, 924 A.2d 612, 614 (Pa.

2007)). In considering whether conspiracy to commit a drug delivery resulting

in death is a cognizable offense, we first review the relevant statutes.

      The Pennsylvania Crimes Code defines conspiracy 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.

18 Pa.C.S. § 903(a), (e) (emphasis added).


                                     -4-
J-A26002-19


      Regarding the elements of conspiracy, this Court has stated the

following:

            To sustain a conviction for criminal conspiracy, the
      Commonwealth must establish, beyond a reasonable doubt, that:
      (1) the defendant 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. “This overt act need not be committed by the
      defendant; it need only be committed by a co-conspirator.”

Commonwealth v. Smith, 69 A.3d 259, 263 (Pa. Super. 2013) (citations

omitted).

      The drug-delivery-resulting-in-death statute provides in pertinent part

as follows:

      (a) Offense defined.—A person commits a felony of the first
      degree if the person intentionally administers, dispenses, delivers,
      gives, prescribes, sells or distributes any controlled substance or
      counterfeit controlled substance in violation of section 13(a)(14)
      or (30) of the act of April 14, 1972 (P.L. 233, No. 64), known as
      The Controlled Substance, Drug, Device and Cosmetic Act, and
      another person dies as a result of using the substance.

18 Pa.C.S. § 2506(a) (footnote omitted). “The crime described above consists

of two principal elements: (i) [i]ntentionally administering, dispensing,

delivering, giving, prescribing, selling or distributing any controlled substance

or counterfeit controlled substance[,] and (ii) death caused by (‘resulting

from’) the use of that drug.” Commonwealth v. Kakhankham, 132 A.3d

986, 991–992 (Pa. Super. 2015)

      Regarding the mens rea for the first element of the offense, we

explained the following:


                                      -5-
J-A26002-19


      [t]he statute is as clear and direct as a statute can be. The mental
      state required is “intentionally” doing one of the acts described
      therein, namely, administering, dispensing, delivering, giving,
      prescribing, selling or distributing any controlled substance or
      counterfeit controlled substances. Additionally, the Crimes Code
      defines “intentionally” as follows:

            (1) A person acts intentionally with respect to a
            material element of an offense when:

            (i) if the element involves the nature of his conduct or
            a result thereof, it is his conscious object to engage in
            conduct of that nature or to cause such a result; and

            (ii) if the element involves the attendant
            circumstances, he is aware of the existence of such
            circumstances or he believes or hopes that they exist.

      18 Pa.C.S.A. § 302(b)(1).

            Thus, under the statute, the first element of the crime is
      met if one “intentionally” administers, dispenses, delivers, gives,
      prescribes, sells or distributes any controlled substance or
      counterfeit controlled substances.

Kakhankham, 132 A.3d at 992.

      With respect to the causal relationship necessary to impose criminal

liability under the statute, we opined:

      The statute uses the phrase[] “results from,” a concept which is
      defined also in the Crimes Code. Section 303 of the Crimes Code,
      in relevant part, provides:

            Causal relationship between conduct and result

            (a) General rule.—Conduct is the cause of a result
            when:

            (1) it is an antecedent but for which the result in
            question would not have occurred; and




                                      -6-
J-A26002-19


           (2) the relationship between the conduct and result
           satisfies any additional causal requirements imposed
           by this title or by the law defining the offense.

     18 Pa.C.S.A. § 303(a). The statute, therefore, is clear as to the
     level of causation. It requires a “but-for” test of causation.
     Additionally, criminal causation requires the results of the
     defendant’s actions cannot be so extraordinarily remote or
     attenuated that it would be unfair to hold the defendant criminally
     responsible.

Kakhankham, 132 A.3d at 992–993 (footnotes, case citations to case law

and certain quotation marks omitted).

     Concerning the mens rea requirement for the second element of Section

2506, the Kakhankham Court rejected an argument that the defendant must

intend to cause the death of another.     Specifically, we stated, “[S]uch a

reading would make Section 2506 superfluous, for intentionally causing the

death of another person is already criminalized (i.e., first degree murder).”

Kakhankham, 132 A.3d at 993 (record citation omitted).           The Court in

Kakhankham went on to conclude:

     Section 302(c) provides the mens rea requirement for the second
     element of Section 2506, i.e., death must be at least “reckless.”
     18 Pa.C.S.A. § 302(c).

           The Crimes Code defines “recklessly” as follows:

           A person acts recklessly with respect to a material
           element of an offense when he consciously disregards
           a substantial and unjustifiable risk that the material
           element exists or will result from his conduct. The risk
           must be of such a nature and degree that, considering
           the nature and intent of the actor’s conduct and the
           circumstances known to him, its disregard involves a
           gross deviation from the standard of conduct that a


                                    -7-
J-A26002-19


             reasonable person would observe in the actor’s
             situation.

       18 Pa.C.S.A. § 302(b)(3).

             Additionally, when recklessly causing a particular result is
       an element of an offense,

             the element is not established if the actual result is
             not within the risk of which the actor is aware or, in
             the case of negligence, of which he should be aware
             unless:

             (1) the actual result differs from the probable result
             only in the respect that a different person or different
             property is injured or affected or that the probable
             injury or harm would have been more serious or more
             extensive than that caused; or

             (2) the actual result involves the same kind of injury
             or harm as the probable result and is not too remote
             or accidental in its occurrence to have a bearing on
             the liability of the actor or on the gravity of his
             offense.

       18 Pa.C.S.A. § 303(c).

Kakhankham, 132 A.3d at 995.

       Regarding the dangerous nature of heroin and related opiates, the Court

in Kakhankham observed that “[a]lthough the overwhelming majority of

heroin users do not die from a single injection of the narcotic, it nevertheless

is an inherently dangerous drug and the risk of such a lethal result certainly

is foreseeable. … The intravenous self-administration of illegally-purchased

heroin … is a modern form of Russian roulette.” Kakhankham, 132 A.3d at

996.    “One can reasonably conclude that the consumption of heroin in

unknown strength is dangerous to human life, and the administering of such

                                      -8-
J-A26002-19


a drug is inherently dangerous and does carry a high possibility that death will

occur.” Id. at 996 n.14 (quoting Commonwealth Catalina, 556 N.E.2d 973,

980 (Mass. 1990)). We ultimately concluded “that reckless conduct … may

result in criminal liability under Section 2506.” Id. at 996.

      In summary, the applicable mens rea for the crime of drug delivery

resulting in death is two-fold. First, the delivery, distribution or sale of the

contraband must be intentional. Kakhankham, 132 A.3d at 992. Second,

the actual death must be the reckless result of the actions of the defendant.

Id. at 995. As such, the crime is an intentional act in providing contraband,

with a reckless disregard of death from the use of the contraband.

      In addressing whether the crime of conspiracy to commit drug delivery

resulting in death is a cognizable offense, we find instructive our Supreme

Court’s decision in Fisher, 80 A.3d 1186, which addressed the issue of

whether the crime of conspiracy to commit third degree murder is a cognizable

offense. Concerning conspiracy, the Fisher Court observed that “[w]here the

existence of a conspiracy is established, the law imposes upon a conspirator

full responsibility for the natural and probable consequences of acts committed

by his fellow conspirator or conspirators if such acts are done in pursuance of

the common design or purpose of the conspiracy.”         Id. at 1192 (quoting

Commonwealth v. Eiland, 301 A.2d 651, 653 (Pa. 1973)).

      The Court in Fisher then offered a thorough review of Pennsylvania case

law regarding conspiracy to commit third degree murder. Fisher, 80 A.3d at


                                     -9-
J-A26002-19


1191-1195. The Court ultimately held that “the absence of intent to kill does

not preclude a defendant from being convicted of conspiracy to commit third

degree murder.” Id. at 1195. The Court continued as follows:

      “[t]hird degree murder is not by definition an unintentional killing;
      it is a malicious killing without proof that the specific result
      intended from the actions of the killer was the death of the victim.”
      ... If a defendant acts with his co-conspirators in brutally
      attacking the victim with the intention of killing him, he conspires
      to commit first degree murder; if the defendant performs the
      same action but does not care whether the victim dies or not, he
      conspires to commit third degree murder. In the latter example,
      the defendant did not ... intend to aid an unintentional murder;
      rather, he intended to aid a malicious act resulting in a killing. ...
      Where . . . the defendant intends the underlying act . . . which
      results in death, the evidence supports the charge of conspiracy
      to commit third degree murder.

Id. (citation and footnote omitted).

      The Court in Fisher went on to explain:

            The        language    of    Pennsylvania’s     conspiracy
      statute . . . states the defendant must have “the intent of
      promoting or facilitating” a crime and must “engage in conduct
      which constitutes such crime[.]” 18 Pa.C.S. § 903(a), (a)(1).
      Thus, one does not conspire to commit a denominated offense;
      one conspires to engage in certain conduct. The fact the actors
      do not mention which crime such conduct will constitute does not
      make conspiracy to commit the offense non-cognizable. The
      conspiracy is to commit the beating, which, being carried
      out with the mental state of malice, supports a charge of
      third degree murder. Accordingly, we hold conspiracy to
      commit third degree murder is a cognizable offense.

Id. (emphasis added).

      Thus, when conspiring to engage in certain conduct, conspirators need

not contemplate the ultimate crime in order to be charged and convicted of

conspiracy to commit that crime.       In cases of conspiracy to commit third

                                       - 10 -
J-A26002-19


degree murder, even when death was not the objective of the conspirators, a

conviction may be upheld where the conspirators planned to assault the victim

and the victim ultimately dies as a result. Likewise, with regard to conspiracy

to commit drug delivery resulting in death, a drug user’s death need not be

the objective of the conspirators because the consequence of an overdose is

a foreseeable result of the delivery, distribution, or sale of drugs to the victim.

In short, the conspiracy to commit an overt act binds the conspirators to the

foreseeable consequences of the conduct. Here, the conspiring parties need

not specifically anticipate the death of the user of the drug. A conspiracy to

commit the overt act of an intentional drug delivery links the conspirators

to the foreseeable consequence that the drug user may die. Accordingly, the

crime of conspiracy to commit drug delivery resulting in death is a cognizable

crime. Hence, Appellant’s claim fails.

      Appellant next argues that the Commonwealth failed to present

sufficient evidence to support his convictions.      Appellant’s Brief at 19-29.

Appellant asserts that, because he was in prison at the time of the incident,

he was not in possession of, and could not deliver, the drugs. Id. at 20. In

addition, Appellant contends that the Commonwealth failed to prove that

Appellant was the “but for” cause of the victim’s death. Id. at 23-24. Finally,

Appellant asserts that the Commonwealth failed to establish that the lethal




                                      - 11 -
J-A26002-19


drug Fentanyl, which caused the victim’s death, was present in the contraband

that Appellant arranged to be sold to the victim. Id. at 24-29.1

       We observe that “to preserve their claims for appellate review,

appellants must comply whenever the trial court orders them to file a

Statement of [Errors] Complained of on Appeal pursuant to [Rule] 1925. [As

a general rule, a]ny issues not raised in a [Rule] 1925(b) statement will be

deemed waived.” Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005)

(quoting Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)). “If [an

appellant] wants to preserve a claim that the evidence was insufficient, then

the [Rule] 1925(b) statement needs to specify the element or elements upon

which the evidence was insufficient.” Commonwealth v. Manley, 985 A.2d

256, 262 (Pa. Super. 2009). See also Commonwealth v. Williams, 959

A.2d 1252, 1257-1258 (Pa. Super. 2008) (finding waiver of sufficiency of

evidence claim where the appellant failed to specify in Rule 1925(b) Statement

the elements of particular crime not proven by the Commonwealth).




____________________________________________


1  We note that Appellant has also filed a reply brief in this appeal, which
contains additional argument pertaining to his challenge to the sufficiency of
the evidence. However, it is not the purpose of a reply brief to remedy
discussions of issues presented poorly in an appellant’s principal brief.
Commonwealth v. Collins, 957 A.2d 237, 256 (Pa. 2008) (noting that a
reply brief cannot cure a previously waived claim); see also Pa.R.A.P. 2113(a)
(stating the purpose of a reply brief is to respond to “matters raised by
appellee’s brief or in any amicus curiae brief and not previously addressed in
appellant’s brief[]”). Accordingly, we decline to consider Appellant’s additional
arguments.

                                          - 12 -
J-A26002-19


        Appellant’s Rule 1925(b) statement asserts the following, in relevant

part:

              2. The Jury’s Verdict should be quashed, and the sentence
        should be modified in that the evidence was insufficient as a
        matter of law to convict [Appellant] at Count 1, Count 2, Count 4,
        Count 5, Count 6, and Count 7.

              3. The Jury heard the evidence that co-defendant [J.S.] was
        in fact the deliverer of the drugs and as such [Appellant] had
        nothing to do with it and therefore was insufficient as a matter of
        law.

Appellant’s Rule 1925(b) Statement, 1/2/18, at 1. Appellant’s non-specific

claim challenging the sufficiency of the evidence fails to delineate which

elements of which crimes were allegedly not proven by the Commonwealth.

Consequently, Appellant waived this claim on appeal. Castillo, 888 A.2d 775;

Lord, 719 A.2d 306; Manley, 985 A.2d 256.

        To the extent that Appellant properly preserved for appeal his claim that

there was insufficient evidence to support his convictions because he was in

prison at the time and could not have been in possession of or deliver the

drugs, Appellant would not be entitled to relief.        We analyze arguments

challenging the sufficiency of the evidence under the following parameters:

              Our standard when reviewing the sufficiency of the evidence
        is whether the evidence at trial, and all reasonable inferences
        derived therefrom, when viewed in the light most favorable to the
        Commonwealth as verdict-winner, are sufficient to establish all
        elements of the offense beyond a reasonable doubt. We may not
        weigh the evidence or substitute our judgment for that of the fact-
        finder. Additionally, the evidence at trial need not preclude every
        possibility of innocence, and the fact-finder is free to resolve any
        doubts regarding a defendant’s guilt unless the evidence is so
        weak and inconclusive that as a matter of law no probability of

                                       - 13 -
J-A26002-19


      fact may be drawn from the combined circumstances. When
      evaluating the credibility and weight of the evidence, the fact-
      finder is free to believe all, part or none of the evidence. For
      purposes of our review under these principles, we must review the
      entire record and consider all of the evidence introduced.

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014) (quoting

Commonwealth v. Emler, 903 A.2d 1273, 1276-1277 (Pa. Super. 2006)).

      In addressing Appellant’s allegation that the Commonwealth failed to

prove that he was in physical possession of the drugs at the time of the sales,

we consider the following regarding constructive possession of contraband.

Where the contraband a person is charged with possessing is not found on the

person of the defendant, the Commonwealth is required to prove constructive

possession. Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa. Super.

2003). Constructive possession is an inference arising from a set of facts that

possession of the contraband was more likely than not. Commonwealth v.

Parker, 847 A.2d 745, 750 (Pa. Super. 2004). Our courts have held that

constructive possession requires proof of the ability to exercise conscious

dominion over the substance, the power to control the contraband and the

intent to exercise such control. Commonwealth v. Johnson, 920 A.2d 873,

882 (Pa. Super. 2007) (citing Commonwealth v. Valette, 613 A.2d 548, 550

(Pa. 1992)) (Emphasis added).

      Instantly, the trial court addressed the general sufficiency of the

evidence in Appellant’s case, and stated:

            This case is unusual because all of the relevant conduct by
      Appellant and his co-defendant, [J.S.], was captured on the

                                    - 14 -
J-A26002-19


     recording system for telephone calls from the Erie County Prison.
     If there is any question about what occurred in this case, the
     appellate court is invited to listen to the calls recorded between
     Appellant and [J.S.]. The following is a summary of the salient,
     undisputable facts in this case.

            On April 17, 2017, Appellant was detained by his probation
     officer for probation violations and placed in the Erie County
     Prison. Within hours of his arrival, Appellant was making outgoing
     telephone calls to [J.S.]. Noteworthy is the fact that all inmates
     are advised in several ways, including a large sign by the phone,
     that all outgoing calls are recorded.

           At that time Appellant, whose date of birth is May 2, 1989,
     was nearly 29 years old. [J.S.], who was pregnant by Appellant,
     was 16 years old. Neither person had any legitimate employment.
     What unfolded during these calls were specific orders given by
     Appellant to [J.S.] on how to continue his drug dealing operation
     while he was incarcerated.

            During his calls, Appellant directed [J.S.] to contact
     Olivia Askins so she could continue to buy drugs from him through
     [J.S.]. Appellant directed [J.S.] to go on Facebook to interact with
     Askins. Doing as she was told, [J.S.] contacted Askins and made
     arrangements to sell drugs to her. Appellant dictated to [J.S.]
     what to charge for certain quantities. He told [J.S.] she could find
     his drugs in the glove box of his black Mercedes Benz. Appellant
     further instructed [J.S.] to turn over the proceeds to his father for
     safekeeping until he could get out of jail.

           The tone of voice that Appellant used in these calls was
     demanding; he was very much in charge of the subservient [J.S.].
     She was afraid of him as he had abused her in the past. She was
     also in very dependent circumstances as she was carrying
     Appellant’s child and she had no sources of revenue other than
     from Appellant.

           [J.S.] followed all of Appellant’s instructions in making a
     number of heroin sales to Askins. Tragically, the last sale that
     was made to Askins was fatal. The arrangements for this sale
     were made through a series of text messages which established
     that the drugs sold by Appellant through [J.S.] to Askins killed
     her. The amount of Fentanyl in Askins’ system far exceeded the
     threshold for death.

                                    - 15 -
J-A26002-19


            [J.S.] testified truthfully at Appellant’s trial. She admitted
      and explained her role in the drug sales to Askins. All of her
      testimony was corroborated by the recorded prison calls with
      Appellant. Meanwhile, Appellant repeatedly argued to the jury
      that he cannot be guilty because he did not touch the heroin nor
      deliver it to Askins. The jury rightfully rejected this bogus claim
      because the phone calls reveal that the actual drug dealer was
      Appellant. These were Appellant’s drugs. He dictated how much
      was charged for the quantity sold to Askins. Appellant kept all of
      the proceeds, harboring them with his father until Appellant’s
      release from prison. At all times [J.S.] was acting at the behest
      of and under the control of Appellant.

Trial Court Opinion, 12/19/18, at 3-4.

      Likewise, our review of the record reflects the evidence at trial was

sufficient to establish that, although Appellant did not physically handle the

drugs, he was in complete control of the drug transactions. The evidence

proves that J.S., in contacting and selling drugs to Askins, was acting solely

at the direction of Appellant. At trial, the Commonwealth presented twenty-

six audio recordings of portions of telephone conversations between Appellant

and J.S., which took place while Appellant was incarcerated. Commonwealth

Exhibits, 7-8, 10-33. Those recordings spanned thirteen days, covering the

period between April 17, 2017, and April 30, 2017, and detailed the drug

transactions that J.S. was to perform on Appellant’s behalf.

      Moreover, the following testimony offered by J.S. supports our

conclusion that Askins died as a result of using the drugs sold by J.S. and that

those drugs belonged to Appellant:

      [ASSISTANT DISTRICT ATTORNEY:] Obviously in this phone call
      you tell [Appellant] that [Askins] has passed away, and you


                                     - 16 -
J-A26002-19


     indicate it must have been recently because you just saw her on
     Wednesday morning, correct?

     [J.S.:] That’s correct.

     [ASSISTANT DISTRICT ATTORNEY:] And the time you’re talking
     about having seen her, was that the last time you then sold her
     those drugs?

     [J.S.:] Yes.

     [ASSISTANT DISTRICT ATTORNEY:] And as we come to find out,
     she died minutes later, correct?

     [J.S.:] That’s correct.

                                 * * *

     [ASSISTANT DISTRICT ATTORNEY:] [J.S.], throughout the 13
     days worth of phone conversations we’ve listened to, and
     throughout any of the time that you knew [Appellant], did you
     ever sell any of your own drugs?

     [J.S.:] No.

     [ASSISTANT DISTRICT ATTORNEY:] The drugs you were selling
     for these ten days, were those the drugs that [Appellant] had
     asked you to get out of the Benz and had asked you to hide for
     him from behind the TV?

     [J.S.:] Yes.

     [ASSISTANT DISTRICT ATTORNEY:] And those were the drugs
     that you were updating him about the sales for throughout each
     of these days, correct?

     [J.S.:] That’s correct.

     [ASSISTANT DISTRICT ATTORNEY:] And those also ended up
     being the drugs that you sell to Olivia Askins, correct?

     [J.S.:] Correct.




                                 - 17 -
J-A26002-19


      [ASSISTANT DISTRICT ATTORNEY:]              And, obviously, as we
      listened to on the 17th, [Appellant] tells you specifically to look for
      Olivia Askins on Facebook, correct?

      [J.S.:] Yes.

N.T., 8/14/18, at 107-109.

      After review of the record and consideration of the evidence in the light

most favorable to the Commonwealth, we conclude that the evidence

establishes that, in instructing J.S., Appellant controlled the entire drug sales

operation. Hence, Appellant had the ability to exercise conscious dominion

over the substance, the power to control the contraband, and the intent to

exercise such control is sufficient to prove that he had constructive possession

of the drugs. Johnson, 920 A.2d at 882. Therefore, Appellant’s contrary

argument merits no relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/21/2020




                                      - 18 -
