J-S70018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JONATHAN DEWILLIAMS

                            Appellant                 No. 705 EDA 2014


           Appeal from the Judgment of Sentence February 26, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0002419-2013


BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                         FILED DECEMBER 23, 2014

        Appellant, Jonathan DeWilliams, appeals pro se1 from the February 26,

2014, aggregate judgment of sentence of three to six years’ imprisonment,

plus five years’ probation, imposed after Appellant was found guilty of one

count each of possession with intent to deliver a controlled substance

(PWID), intentional possession of a controlled substance, possession of drug



____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
  We note that Appellant’s co-defendant, Michael Collins, also appeals from
his judgment of sentence in this matter. Collins’ appeal is pending before
this Court at 601 EDA 2014. We further observe that a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) was conducted on or
about October 8, 2014, pursuant to a remand order from this Court. See
Trial Court Order, 10/8/14, at 1; Superior Court Order, 8/8/14, at 1.
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paraphernalia, and three counts of criminal conspiracy.2         After careful

review, we affirm.

       The trial court summarized the relevant factual and procedural

background of this case as follows.

                    [Appellant] was arrested on February 23,
              201[3]. He was one of three passengers in a vehicle
              that was driven by his co-defendant Michael Collins.
              The vehicle bore stolen registration plates. All four
              occupants were removed from the vehicle and three
              packets of heroin were removed from the area
              between the driver’s seat and the center console.
              Several “bundles” of heroin and seven loose baggies
              of heroin were also discovered in the “map pocket”
              on the back of the front passenger seat. [Appellant]
              sat in the rear passenger seat. All of the occupants
              of the car were arrested and transported to police
              headquarters. At the time of his arrest [Appellant]
              was carrying three cell phones and four[-]hundred
              and fifty dollars in cash in multiple denominations.
              In a holding cell, Charles Williams, the front seat
              passenger, attempted to flush eleven packets of
              heroin down the toilet.

Trial Court Opinion, 4/30/14, at 1.

       On May 8, 2013, the Commonwealth filed an information, charging

Appellant with the above-mentioned offenses.         On December 17, 2013,

Appellant proceeded to a two-day jury trial, at the conclusion of which the

jury found Appellant guilty of all charges. On February 26, 2014, the trial

court imposed an aggregate sentence of three to six years’ imprisonment,


____________________________________________
2
  35 P.S. §§ 780-113(a)(30), 780-113(a)(16), 780-113(a)(32), and 18
Pa.C.S.A. § 903(c), respectively.



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plus five years’ probation.3       Appellant did not file a post-sentence motion.

On February 27, 2014, Appellant filed a pro se notice of appeal.4

       On appeal, Appellant raises three issues for our review.

              A.     Did the trial court error [sic] in allowing the
                     jury to convict Appellant for [PWID] and
                     related     charges,      given      that    the
                     Commonwealth fail [sic] to prove actual or
                     joint constructive possession because Appellant
                     [sic] co-defendant testify [sic] that he was the
                     sole possessor?

              B.     Did the trial court error [sic] in allowing the
                     jury to convict Appellant for conspiracy to
____________________________________________
3
  Specifically, the trial court sentenced Appellant to three to six years’
imprisonment plus five years’ probation for PWID. The trial court further
sentenced Appellant to three to 12 months’ imprisonment for possession of
drug paraphernalia, 20 to 40 months’ imprisonment for one count of criminal
conspiracy, and 3 to 12 months’ imprisonment plus two years’ probation for
the second count of criminal conspiracy. The trial court imposed no further
penalty on the remaining charges. All terms of imprisonment were to run
concurrently with each other.
4
   We have held that a criminal defendant’s pro se actions have no legal
effect while he or she remains represented by counsel. Commonwealth v.
Hall, 476 A.2d 7, 9-10 (Pa. Super. 1984); see also Commonwealth v.
Nischan, 928 A.2d 349, 355 (Pa. Super. 2007) (noting that a defendant’s
pro se filings while represented by counsel are legal nullities), appeal denied,
936 A.2d 40 (Pa. 2007). However, our Supreme Court has held that a pro
se notice of appeal filed by an appellant while represented by counsel shall
be considered merely premature if counsel and the trial court take
appropriate actions to perfect the appeal. Commonwealth v. Cooper, 27
A.3d 994, 1008 (Pa. 2011). As noted above, on remand from this Court, the
trial court conducted a Grazier hearing, after which counsel was dismissed
and Appellant was permitted to proceed pro se. In our view, this perfects
the appeal for the purposes of Cooper. Accordingly, we have jurisdiction to
address the merits of the appeal. We further note that Appellant and the
trial court have complied with Pennsylvania Rule of Appellate Procedure
1925.



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                     [commit PWID] and related charges, given that
                     the evidence fail [sic] to prove that Appellant
                     engage [sic] in a conspiracy?

             C.      Did the trial court error [sic] in not addressing
                     Appellant [sic] weight claim when the issue
                     was properly preserve [sic] in the [trial] court
                     because the testimony and jury verdict is so
                     contrary to the evidence as to shock ones [sic]
                     sense of justice?

Appellant’s Brief at 4.

      Appellant’s first two issues on appeal challenge the sufficiency of the

Commonwealth’s evidence. We begin by noting our well-settled standard of

review. “In reviewing the sufficiency of the evidence, we consider whether

the evidence presented at trial, and all reasonable inferences drawn

therefrom, viewed in a light most favorable to the Commonwealth as the

verdict winner, support the jury’s verdict beyond a reasonable doubt.”

Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation

omitted). “The Commonwealth can meet its burden by wholly circumstantial

evidence and any doubt about the defendant’s guilt 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   can   be   drawn   from   the   combined

circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super.

2013) (en banc) (internal quotation marks and citation omitted), appeal

denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must review “the

entire record … and all evidence actually received[.]” Id. (internal quotation

marks and citation omitted).         “[T]he trier of fact while passing upon the

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credibility of witnesses and the weight of the evidence produced is free to

believe all, part or none of the evidence.” Commonwealth v. Kearney, 92

A.3d 51, 64 (Pa. Super. 2014) (citation omitted), appeal denied, 101 A.3d

102 (Pa. 2014). “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) (citation

omitted), cert. denied, Diamond v. Pennsylvania, 135 S. Ct. 145 (2014).

      Appellant challenges his convictions for PWID and criminal conspiracy,

the respective statutes for which provide, in relevant part, as follows.

            § 780-113. Prohibited acts; penalties

            (a) The following acts and the causing thereof within
            the Commonwealth are hereby prohibited:

                                       …

            (30) Except as authorized by this act, the
            manufacture, delivery, or possession with intent to
            manufacture or deliver, a controlled substance by a
            person not registered under this act, or a practitioner
            not registered or licensed by the appropriate State
            board, or knowingly creating, delivering or
            possessing with intent to deliver, a counterfeit
            controlled substance.

                                       …

35 P.S. § 780-113(a)(30).

            § 903. Criminal conspiracy

            (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:

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                 (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.

           (b) Scope of conspiratorial relationship.--If a
           person guilty of conspiracy, as defined by subsection
           (a) of this section, knows that a person with whom
           he conspires to commit a crime has conspired with
           another person or persons to commit the same
           crime, he is guilty of conspiring with such other
           person or persons, to commit such crime whether or
           not he knows their identity.

           (c)     Conspiracy    with      multiple    criminal
           objectives.--If a person conspires to commit a
           number of crimes, he is guilty of only one conspiracy
           so long as such multiple crimes are the object of the
           same agreement or continuous conspiratorial
           relationship.

18 Pa.C.S.A. § 903.

     In his first issue on appeal, Appellant avers that the Commonwealth

failed to produce sufficient evidence to show, at a minimum, that Appellant

was in constructive possession of the controlled substance in question.

Appellant’s Brief at 8.     In his second issue, Appellant argues the




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J-S70018-14


Commonwealth failed to prove sufficient evidence of an agreement in order

to sustain his conspiracy convictions.5 Id. at 15.

              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. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013) (citation

omitted), appeal denied, 78 A.3d 1090 (Pa. 2013).            Furthermore, “[t]o

sustain a conviction for criminal conspiracy, the Commonwealth must

establish that the defendant (1) entered into an agreement to commit or aid

in an unlawful act with another person or persons, (2) with a shared criminal



____________________________________________
5
   Appellant has filed an application for relief and an application for remand
with this Court, seeking a remand to amend his counseled Rule 1925(b)
statement to specify the elements of criminal conspiracy that he believes the
Commonwealth failed to prove. It is true, that Appellant’s counseled Rule
1925(b) statement did not specify which elements of criminal conspiracy
lacked sufficient supporting evidence. Appellant is correct that this would
ordinarily result in waiver. See generally Commonwealth v. Garland, 63
A.3d 339, 344 (Pa. Super. 2013). However, Appellant filed a pro se Rule
1925(b) statement that did contain the specific element of agreement. See
Appellant’s Pro Se Rule 1925(b) Statement. 2/27/14, at ¶ 4. In light of this
filing and the Grazier hearing conducted, we decline to find this issue
waived, and will address the merits thereof. As a result, all of Appellant’s
applications are denied as moot.



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intent[,] and (3) an overt act was done in furtherance of the conspiracy.”

Commonwealth v. McCall, 911 A.2d 992, 996 (Pa. Super. 2006).

            The essence of a criminal conspiracy is the common
            understanding that a particular criminal objective is
            to be accomplished.      Mere association with the
            perpetrators, mere presence at the scene, or mere
            knowledge of the crime is insufficient. Rather, the
            Commonwealth must prove that the defendant
            shared the criminal intent, i.e., that the [defendant]
            was an active participant in the criminal enterprise
            and that he had knowledge of the conspiratorial
            agreement. The defendant does not need to commit
            the overt act; a co-conspirator may commit the overt
            act.

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002)

(internal citations and quotation marks omitted), appeal denied, 805 A.2d

521 (Pa. 2002).

       In the case sub judice, the Commonwealth presented the following

evidence.     Officer   Robert   McCaughan   of   the   Clifton   Heights   Police

Department testified that he pulled over Appellant and his co-defendants.

N.T., 12/17/13, at 102-103. Appellant was found with three cell phones on

his person along with a credit card, and $450.00 in cash. Id. at 111. In the

car, the police found a total of 182 packets of heroin. Id. at 113. Some of

the packets were found in the map pocket on the back of the front

passenger seat, an area to which Appellant had immediate access. Id. at

111.   The Commonwealth also presented Sergeant Michael Boudwin, who

was qualified as an expert in the field of drugs and drug paraphernalia. Id.

at 167. Sergeant Boudwin testified that the street value of the heroin found

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was approximately $1,800.00. Id. at 171, 177. Sergeant Boudwin further

testified that it was common for drug dealers to have multiple cell phones, to

separate personal calls from those to buyers and suppliers. Id. at 176.

      Based on the above, we conclude the Commonwealth presented

sufficient evidence to prove, at a minimum, constructive possession.       As

noted above, Appellant was found in a confined space with $1,800.00 worth

of heroin that was individually packaged.    Furthermore, Appellant was the

occupant of the vehicle in possession of the largest amount of currency as

well as the three mobile phones on his person. The jury was permitted to

believe the officers’ testimony, and infer that Appellant was a part of a

heroin distribution business.   See Kearney, supra.     Appellant asserts the

evidence was nevertheless insufficient, noting his co-defendant Charles

Williams, who was found in actual possession of the heroin, testified that he

was the only possessor of the heroin.     N.T., 12/18/13, at 29.    The jury,

however, was permitted to believe all, some, or none of Williams’ testimony.

See Kearney, supra. On the same evidence, the jury was also free to infer

that Appellant agreed with Williams and Collins to distribute heroin to

various buyers from the car in which they were passengers. Based on these

considerations, we conclude the Commonwealth produced sufficient evidence

of constructive possession, as well as of an agreement between Appellant




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and his cohorts.6       See Diamond, supra.        As a result, Appellant is not

entitled to relief on this issue.

       In his third issue on appeal, Appellant avers that the jury’s verdict was

against the weight of the evidence. Appellant’s Brief at 16. However, before

we may address the merits of this argument, we must ascertain whether it

has been properly preserved for our review. Pennsylvania Rule of Criminal

Procedure 607 governs claims challenging the weight of the evidence and

provides in relevant part as follows.

              Rule 607. Challenges to the Weight of the
              Evidence

              (A) A claim that the verdict was against the weight
              of the evidence shall be raised with the trial judge in
              a motion for a new trial:

                     (1) orally, on the record, at any time before
                     sentencing;



____________________________________________
6
  To the extent Appellant’s brief argues that the Commonwealth did not
provide sufficient evidence to establish an overt act, we note this element
was not addressed in either his pro se or counseled Rule 1925(b)
statements.     As such, we deem this issue waived.           See Pa.R.A.P.
1925(b)(4)(vii) (stating, “[i]ssues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph (b)(4) are
waived[]”); accord Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).
However, we point out that even if the issue was not waived, Appellant
would not be entitled to relief. As noted above, it is not essential that
Appellant himself commit the overt act as “a co-conspirator may commit the
overt act.” Lambert, supra. In this case, Williams admitted that he
possessed the heroin with the intent to distribute it to others. N.T.,
12/18/13, at 28. Additionally, Williams testified that he gave Collins three
packets of heroin. Id. at 26.



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                      (2) by written motion at any time before
                      sentencing; or

                      (3) in a post-sentence motion.

                                         …

Pa.R.Crim.P. 607(A). It is axiomatic that “[a] weight of the evidence claim

must be preserved either in a post-sentence motion, by a written motion

before sentencing, or orally prior to sentencing … [and f]ailure to properly

preserve the claim will result in waiver, even if the trial court addresses the

issue in its opinion.”     Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa.

Super. 2013) (internal citations omitted), appeal denied, 76 A.3d 538 (Pa.

2013); see also Pa.R.A.P. 302(a) (stating, “[i]ssues not raised in the lower

court are waived and cannot be raised for the first time on appeal[]”).

      In the case sub judice, Appellant did not file a post-sentence motion.

Appellant did file a post-verdict motion for a new trial before sentencing, but

the   only   claims    contained   therein   addressed   the   sufficiency   of   the

Commonwealth’s case.          Furthermore, we have reviewed the sentencing

transcript, and at no point did Appellant raise any claim that the verdict was

against the weight of the evidence. As a result, we agree with the trial court

that Appellant has waived his claim that the jury’s verdict was against the

weight of the evidence. See Griffin, supra.

      Based on the foregoing, we conclude that all of Appellant’s claims on

appeal are either waived or devoid of merit.       Accordingly, the trial court’s

February 26, 2014 judgment of sentence is affirmed.

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J-S70018-14


     Judgment of sentence affirmed.       Applications for relief denied.

Application for remand denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2014




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