J-S13002-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    CHRISTIAN WOODSON

                             Appellant                 No. 1382 MDA 2019


               Appeal from the PCRA Order Entered July 18, 2019
               In the Court of Common Pleas of Lancaster County
                Criminal Division at No: CP-36-CR-0005302-2016

BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.:                               FILED JUNE 16, 2020

        Appellant, Christian Woodson, appeals from an order denying relief

under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541—46. Appellant

argues that the evidence was insufficient to sustain his conviction for

possession with intent to deliver a controlled substance (“PWID”), 35

Pa.C.S.A. § 780-113(a)(30). We affirm.

        The following evidence was adduced during Appellant’s trial:

        Officer Jared Snader (“Snader”) [of the] LCBP [Lancaster County
        Police] testified that on February 26, 2016, he was working
        undercover driving in the area of Queen and Conestoga Streets in
        Lancaster City targeting street-level drug sales. At the time of the
        investigation, this was “the single worst drug area in Lancaster
        City, especially for heroin.” Snader told the jury that he had been
        an officer for ten years, he was assigned to a special unit designed
        to investigate drug-related issues, he received special training for
        drug investigations, and he had been involved in over one
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*   Retired Senior Judge assigned to the Superior Court.
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     thousand drug investigations.      According to Snader, most
     transactions involve a middleman who hangs out in high drug
     areas, accepts money from the buyer, and then meets up with a
     supplier who provides the drugs. This process isolates the supplier
     from dealing directly with people they do not know, while the
     middleman gets to keep some of the money or drugs. Without
     going through a middleman, it would be very difficult to purchase
     drugs.

     Regarding this specific transaction, Snader testified that he and
     Officer Adam Flurry. (“Flurry”), LCBP, were driving together in a
     vehicle when Flurry made contact with an individual later
     identified as Santiago-Rivera, at which time Flurry had a
     conversation with Santiago-Rivera about purchasing heroin.
     Santiago-Rivera got into the undercover vehicle and told Snader
     where to drive, while Flurry gave Santiago-Rivera $40 of
     previously marked United States currency. Santiago-Rivera asked
     to borrow Flurry’s phone, and Snader testified that he heard
     buttons being pressed which sounded as if Santiago-Rivera was
     sending text messages.

     Santiago-Rivera directed Snader to pull over in front of Save-A-
     Lot, where Santiago-Rivera began placing phone calls. Snader
     testified “[i]t was obvious to me at that point that he was a
     middleman. He didn’t have [the heroin] on him. He was
     contacting somebody to come and bring the heroin for us.”
     Santiago-Rivera called his contact several times, giving his
     location over the phone. Santiago-Rivera then directed Snader to
     drive to the Andromeda Grocery, where Santiago-Rivera said he
     was going to get change. Flurry had given Santiago-Rivera two
     $20 bills, and Snader believed Santiago-Rivera wanted change so
     he could keep $10 for himself. When Santiago-Rivera exited the
     store, he placed several more phone calls with his contact. During
     the phone calls, Santiago-Rivera informed his contact that he was
     waiting in a van and described the vehicle.

     Snader then observed an individual, later identified as [Appellant],
     walk towards their location and stop to meet with Santiago-Rivera.
     Santiago-Rivera and [Appellant] talked for about 30 seconds,
     standing approximately one foot apart. Santiago-Rivera then
     reached his left arm towards [Appellant], [Appellant] extended his
     arm, and it appeared as if they were exchanging something.
     When Santiago-Rivera broke contact with [Appellant], Snader
     could see that [Appellant] had money in his hands that he was

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     counting as he walked away. It was light out, and from his
     training and experience Snader testified this was “absolutely a
     hand-to-hand drug transaction.” Santiago-Rivera got back into
     the undercover vehicle, at which time Flurry stated the deal was
     complete and Santiago-Rivera was dropped off at another
     location. [Appellant] was then stopped by another officer under a
     ruse so they could verify his identity. After testifying about the
     transaction, Snader identified [Appellant] in the courtroom as the
     individual who conducted the hand-to-hand transaction with
     Santiago-Rivera. In addition to Snader, Officer Flurry testified
     about his assignment to the Selective Enforcement Unit, the
     extensive training he has received in drug investigations, and his
     involvement in over one thousand such investigations[, including
     the role of a middleman in those transactions] . ....

     Regarding this specific incident, Flurry testified that while he and
     Snader were driving in a high drug activity area of the city, Flurry
     saw a person later identified as Santiago-Rivera walking in the
     street. Flurry had a conversation with Santiago-Rivera about
     purchasing heroin, and Santiago-Rivera stated he could assist
     Flurry. Santiago-Rivera got into the vehicle, at which time Flurry
     gave him $40 of United States currency. Santiago-Rivera asked
     for Flurry’s cell-phone, Flurry gave it to him, and Flurry then heard
     Santiago-Rivera send text messages. Later, upon reviewing the
     text messages, Flurry saw they were written in Spanish to a
     person who was not available. At some point, Santiago-Rivera
     made a telephone call and cryptically spoke to the other person in
     broken English, asking where the person was. Santiago-Rivera
     then made a series of additional calls, and it was later determined
     by Flurry while inspecting the phone that they were all made to
     the same phone number. That number could not be traced.
     Thereafter, Santiago-Rivera met with an individual on the
     sidewalk, but Flurry could not see what occurred because they
     were out of his field of vision.

     When Santiago-Rivera returned to the car, he handed Flurry the
     heroin. Flurry later gave the packets of suspected heroin to Officer
     Jason Hagy (“Hagy”). Officer Hagy, LCBP, also a member of the
     Selective Enforcement Unit, detailed his training and experience
     in drug investigations. On February 26, 2016, Hagy was the
     primary surveillance officer in charge of this investigation,
     traveling in a separate vehicle. During the surveillance, Hagy
     witnessed Santiago-Rivera meet up with another individual that
     Santiago-Rivera obviously knew.        Hagy saw Santiago-Rivera

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      retrieve something with his left hand and stick it in his left jacket
      pocket, while the other person was manipulating what appeared
      to be paper currency. This interaction was indicative of a drug
      transaction. Hagy identified [Appellant] in court as the person
      who came into contact with Santiago-Rivera.

Trial Court Opinion, 11/21/2017, at 5-9 (record citations and footnotes

omitted). The Commonwealth introduced video footage showing the hand-to-

hand exchange between Santiago-Rivera and Appellant. Another police officer

apprehended Appellant as he walked away from the transaction with Santiago-

Rivera. The packets that Santiago-Rivera received from Appellant and handed

to Flurry tested positive for heroin.

      Appellant was charged with delivery of heroin, criminal conspiracy to

deliver heroin to an undercover officer, and criminal use of a communication

facility. On April 13, 2017, the jury found Appellant guilty of delivery of heroin

and criminal conspiracy to deliver heroin, but not guilty of criminal use of a

communication facility.    On July 12, 2017, the court imposed consecutive

sentences of 27-60 months’ imprisonment on each count. On July 21, 2017,

Appellant filed a motion for judgment of acquittal, motion for new trial, and

motion to reconsider sentence.          On July 28, 2017, Appellant filed a

supplemental motion to modify sentence. On September 1, 2017, the court

denied all post-sentence motions. Appellant timely appealed to the Superior

Court, challenging the sufficiency of the evidence underlying his conspiracy

conviction. On June 20, 2018, this Court affirmed his judgment of sentence.




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Commonwealth v. Woodson, 2018 WL 3045876 (Pa. Super., June 20,

2018).

       On February 28, 2019, Appellant filed a pro se PCRA petition raising

multiple claims of ineffective assistance of counsel. The PCRA court appointed

counsel, who filed a Turner/Finley1 no merit letter and a motion to withdraw.

The no merit letter addressed the claims raised in Appellant’s PCRA petition

and five more claims raised by Appellant during their correspondence and

conversations, including a contention that the evidence was insufficient to

sustain his convictions. On June 4, 2019, the PCRA court filed a Pa.R.Crim.P.

907 notice of intent to dismiss Appellant’s petition without a hearing.

Appellant filed a lengthy pro se response in opposition to the Rule 907 notice.

On July 18, 2019, the PCRA court dismissed Appellant’s petition and granted

PCRA counsel leave to withdraw.

       On August 15, 2019, Appellant filed a timely notice of appeal to this

Court.    On August 20, 2019, the PCRA court ordered Appellant to file a

Pa.R.A.P. 1925 statement within twenty-one days. On September 6, 2019,

Appellant submitted a Rule 1925(b) statement to prison authorities.         On

October 1, 2019, the PCRA court filed an opinion recommending quashal of

this appeal due to untimely service of Appellant’s Rule 1925(b) statement.



____________________________________________


1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


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We decline to quash this appeal because Appellant submitted the Rule 1925(b)

statement to prison authorities on September 6, 2019, within twenty-one days

of the PCRA court’s order. Pa.R.A.P. 121(a) (“a pro se filing submitted by a

prisoner incarcerated in a correctional facility is deemed filed as of the date it

is delivered to the prison authorities for purposes of mailing or placed in the

institutional mailbox”).

      We will not reprint the questions raised in Appellant’s pro se brief due

to their prolix and repetitive nature.      The bulk of Appellant’s brief is an

argument that the evidence was insufficient to sustain his convictions for

PWID and conspiracy. Appellant makes several procedural objections in the

final pages of his brief. He has abandoned multiple other issues that he raised

before the PCRA court.

      Appellant’s challenge to the sufficiency of the evidence of conspiracy

fails because it was previously litigated. The PCRA provides that an issue is

previously litigated where “the highest appellate court in which the petitioner

could have had review as a matter of right has ruled on the merits of the

issue.” 42 Pa.C.S.A. § 9544(a)(2); see also Commonwealth v. Stansbury,

219 A.3d 157, 161 (Pa. 2019) (PCRA court properly dismissed petitioner’s

assertion that Commonwealth presented insufficient evidence at attempted

murder trial to establish his identity as shooter, since this assertion was

previously litigated on direct appeal). In this case, a panel of this Court—the

highest court in which Appellant could have had review as a matter of right—


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held in Appellant’s direct appeal that the evidence was sufficient to sustain his

conspiracy conviction. Woodson, 2018 WL at 3045876, **3-5. Therefore,

no relief is due on this issue.

      Appellant’s challenge to the sufficiency of the evidence underlying his

PWID conviction fails for two reasons. First, a claim of insufficient evidence is

not cognizable under the PCRA. The PCRA only provides relief for the following

types of claims:

      (1) A violation of the Constitution of this Commonwealth or the
      Constitution or laws of the United States which, in the
      circumstances of the particular case, so undermined the truth-
      determining process that no reliable adjudication of guilt or
      innocence could have taken place.

      (2) Ineffective assistance of counsel which, in the circumstances
      of the particular case, so undermined the truth-determining
      process that no reliable adjudication of guilt or innocence could
      have taken place.

      (3) A plea of guilty unlawfully induced where the circumstances
      make it likely that the inducement caused the petitioner to plead
      guilty and the petitioner is innocent.

      (4) The improper obstruction by government officials of the
      petitioner’s right of appeal where a meritorious appealable issue
      existed and was properly preserved in the trial court.

      (5) The unavailability at the time of trial of exculpatory evidence
      that has subsequently become available and would have changed
      the outcome of the trial if it had been introduced.

      (6) The imposition of a sentence greater than the lawful
      maximum.

      (7) A proceeding in a tribunal without jurisdiction.




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42 Pa.C.S.A. § 9543(a)(2). Appellant’s claim of insufficient evidence does not

fit within any of these categories. It does not allege a constitutional violation,

ineffective assistance of counsel, an unlawful guilty plea, obstruction by

governmental officials of his right of appeal, newly discovered exculpatory

evidence, an unlawful sentence, or the trial court’s lack of jurisdiction.

      Even if this claim were cognizable under the PCRA, it is devoid of merit.

When reviewing the sufficiency of the evidence, we must determine whether

the evidence admitted at trial and all reasonable inferences drawn therefrom,

viewed in the light most favorable to the Commonwealth as verdict winner,

were sufficient to prove every element of the offense beyond a reasonable

doubt. Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013). “[T]he

facts and circumstances established by the Commonwealth need not preclude

every possibility of innocence.” Commonwealth v. Colon-Plaza, 136 A.3d

521, 525–26 (Pa. Super. 2016). It is within the province of the fact-finder to

determine the weight to accord to each witness’s testimony and to believe all,

part or none of the evidence. Commonwealth v. Tejada, 107 A.3d 788,

792–93 (Pa. Super. 2015). The Commonwealth may sustain its burden of

proving every element of the crime by means of wholly circumstantial

evidence.   Commonwealth v. Crosley, 180 A.3d 761, 767 (Pa. Super.

2018).   As an appellate court, we may not re-weigh the evidence and

substitute our judgment for that of the fact-finder.        Commonwealth v.

Rogal, 120 A.3d 994, 1001 (Pa. Super. 2015).


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      To sustain a conviction for PWID, the Commonwealth must prove both

the possession of the controlled substance and the intent to deliver the

controlled substance. Commonwealth v. Roberts, 133 A.3d 759, 767 (Pa.

Super. 2016). The jury may infer intent to deliver from an examination of the

facts and circumstances surrounding the case. Commonwealth v. Griffin,

804 A.2d 1, 15 (Pa. Super. 2002). The evidence satisfies all elements of this

offense.   Viewed collectively and in the light most favorable to the

Commonwealth, the testimony of Lancaster police officers and video footage

of the incident demonstrate that Officer Flurry had a conversation with

Santiago-Rivera about purchasing heroin and gave Santiago-Rivera money for

cash for the purchase. Santiago-Rivera met with Appellant on the sidewalk

and made a hand-to-hand exchange. Santiago-Rivera then handed packets

of heroin to Officer Flurry.    This evidence demonstrates that Appellant

possessed the packets of heroin and intended them to be delivered to Officer

Flurry.

      Appellant complains at some length about perceived discrepancies in the

evidence or evidence that he deems inadmissible. In so doing, he attempts

to recast the evidence in the light most favorable to himself. Our mandate,

however, is to view all evidence of record in the light most favorable to the

Commonwealth.     Under this standard, we readily conclude that there was

sufficient evidence to support his PWID conviction.




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      At the end of his brief, Appellant raises a series of procedural objections,

for example, a claim that there was no docket entry verifying the entry of

appearance by any attorney on his behalf and no document verifying that he

received copies of the criminal complaint or notice to appear for his

preliminary hearing. Such claims are not cognizable under any category of

the PCRA.    See 42 Pa.C.S.A. § 9543(a)(2).        Indeed, under the Rules of

Criminal Procedure, the time for raising these objections lapsed long before

trial. See Pa.R.Crim.P. 109 (defendant shall not be discharged due to defect

in procedure unless (1) he raises objection before conclusion of preliminary

hearing and (2) defect is prejudicial to his rights).

      Lastly, Appellant objects that he did not consent to appointment of

counsel on his behalf during PCRA proceedings. Once again, this claim is not

cognizable   under   Section    9543(a)(2).      Moreover,    throughout    PCRA

proceedings below and in this Court, Appellant has had full and fair opportunity

to file pro se petitions, responses and briefs expressing his position, and he

has repeatedly exercised this right. The appointment of PCRA counsel caused

him no prejudice.




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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/16/2020




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