J-S43010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PETER VARGAS,

                            Appellant                 No. 1736 EDA 2014


            Appeal from the Judgment of Sentence of May 27, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0014146-2013


BEFORE: GANTMAN, P.J., PANELLA AND OLSON, JJ.

MEMORANDUM BY OLSON, J.:                            FILED AUGUST 11, 2015

       Appellant, Peter Vargas, appeals from the judgment of sentence

entered on May 27, 2014 following his bench trial convictions for possession

with intent to deliver a controlled substance (PWID) and conspiracy.1 Upon

review, we affirm.

       The trial court summarized the facts of this case as follows:

         … Philadelphia Police Officer Jason Seigafuse testified that
         he was on duty on October 23, 2013 at approximately
         10:00 p.m., working in his capacity as a police officer with
         the Narcotics Enforcement Team when he encountered []
         [A]ppellant in the area of the 1900 block of East Arizona
         Street in Philadelphia.

         At that time and place, the officer indicated that he set up a
         surveillance at that intersection and he observed [Appellant]
____________________________________________


1
    35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903, respectively.
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        along with another male (Jonathon Blalock) standing at or
        near the corner of Jasper and Arizona, approximately 30
        feet [e]ast of the corner when a white male, identified as
        Charles Jenkins approached both males and had a brief
        conversation with both males. At this time [Appellant]
        separated and stood at the corner of Jasper and Arizona in
        the intersection looking up and down. At that time Mr.
        Blalock received currency from Mr. Jenkins and then Mr.
        Blalock handed Mr. Jenkins certain items that he removed
        from his pants pocket. Mr. Jenkins was ultimately stopped
        by police who recovered from Mr. Jenkins, heroin in a white
        Ziploc baggie.

        A short time later, approximately 10:15 p.m., another male
        (Mr. [Francis] Kelso) came to the intersection and the same
        series of events occurred wherein [Appellant], after a brief
        conversation with the second male and Mr. Blalock,
        separated from the men and stood at the intersection
        looking up and down in both directions.         Mr. Blalock
        received currency from Mr. Kelso and then Mr. Blalock
        handed Mr. Kelso certain items he removed from his pants
        pocket. Mr. Kelso was ultimately stopped by police who
        recovered from Mr. Kelso, heroin and cocaine in white Ziploc
        baggies.

        Officer Seigafuse further testified that once the buyers left,
        they ([Appellant] and Mr. Blalock) met back up. It was only
        when buyers would come up and transactions would happen
        that he ([Appellant]) would separate and look up and down
        the intersection.

        [] [A]ppellant and Mr. Blalock were stopped and arrested on
        the 1900 block of Arizona Street. [Fifty dollars in] U.S.
        currency was recovered from Mr. Blalock. Nothing was
        recovered from [] [A]ppellant.

Trial Court Opinion, 3/4/2015, at 2-3 (record citations omitted).

      The   Commonwealth charged Appellant with the           aforementioned

charges, as well as simple possession of a controlled substance, 35 P.S.

§ 780-113(a)(16). The case advanced procedurally as follows:



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         At the preliminary hearing on November 12, 2013, []
         [A]ppellant was ordered held for court on all charges. A
         motion to quash was heard before the start of trial and
         denied. A bench trial was held on May 27, 2014. The [trial
         court] found [] [A]ppellant guilty of [PWID] and
         [c]onspiracy. Appellant was immediately sentenced to a
         term of three (3) years [of] concurrent probation on both
         charges. … The [simple] possession charge (Count 3) was
         nolle prossed. On June 6, 2014, [the trial] court denied
         [A]ppellant’s post-sentence [m]otion and the sentence of
         three (3) years [of] probation remained. A timely [n]otice
         of [a]ppeal was filed on June 10, 2014. Thereafter, a timely
         [s]tatement of [e]rrors [c]omplained of on [a]ppeal was
         also filed on behalf of [] [A]ppellant. [The trial court issued
         an opinion pursuant to Pa.R.A.P. 1925(a) on March 4,
         2015.]

Id. at 1.

      On appeal, Appellant presents the following issue for our review:

         Was not the evidence insufficient to prove criminal
         conspiracy or [PWID] as [A]ppellant was merely present on
         the street in the vicinity of another man for fifteen minutes
         when the other man sold drugs?

Appellant’s Brief at 3.

      Appellant argues that the Commonwealth failed to present sufficient

evidence to support his convictions for PWID and conspiracy.        In sum, he

avers:

         During a fifteen minute drug surveillance, another man,
         Jonathon Blalock, sold drugs. Blalock was arrested with the
         proceeds. [Appellant] exchanged nothing and had nothing.
         He was merely present, hanging out on the street.

Id. at 8. In distinguishing his case from our decision in Commonwealth v.

McCall, 911 A.2d 992 (Pa. Super. 2006), Appellant notes:          (1) Appellant


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was thirty feet away each time Blalock sold drugs; whereas, in McCall, the

co-defendants stayed side-by-side for an hour; (2) Appellant never received

proceeds from the drug sales, while McCall was arrested with over $1,000.00

in small denominations on his person, and; (3) McCall involved a

sophisticated narcotics operation which would have required a lookout;

whereas, here, “[t]he relatively minor nature of Blalock’s sales makes the

inference that he had a ‘lookout’ less reasonable.” Appellant’s Brief at 10-

11. Appellant also argues that the police did not recover the narcotics from

his person and the Commonwealth failed to prove he exercised conscious

dominion or control over them in order to prove PWID. Id. at 12-15.

     Our standard of review when reviewing the sufficiency of the evidence

has been recited as follows:

        The standard we apply in reviewing the sufficiency of
        evidence is whether, viewing all the evidence admitted at
        trial in the light most favorable to the verdict winner, there
        is sufficient evidence to enable the factfinder 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 that of 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.
        Moreover, in applying the above test, the entire record must
        be evaluated and all evidence actually received must be
        considered. Finally, the trier of fact while passing upon the
        credibility of witnesses and the weight of the evidence

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        produced, is free to believe all, part or none of the
        evidence.

        To 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 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.

        As our Court has further explained with respect to the
        agreement element of conspiracy:

            The essence of a criminal conspiracy is a common
            understanding, no matter how it came into being,
            that a particular criminal objective be accomplished.
            Therefore, a conviction for conspiracy requires proof
            of the existence of a shared criminal intent. An
            explicit or formal agreement to commit crimes can
            seldom, if ever, be proved and it need not be, for
            proof of a criminal partnership is almost invariably
            extracted from the circumstances that attend its
            activities. Thus, a conspiracy may be inferred where
            it is demonstrated that the relation, conduct, or
            circumstances of the parties, and the overt acts of
            the co-conspirators sufficiently prove the formation
            of a criminal confederation. The conduct of the
            parties and the circumstances surrounding their
            conduct may create a web of evidence linking the
            accused to the alleged conspiracy beyond a
            reasonable doubt. Even if the conspirator did not act
            as a principal in committing the underlying crime, he
            is still criminally liable for the actions of his co-
            conspirators in furtherance of the conspiracy.

Commonwealth v. McCall, 911 A.2d 992, 996-997 (Pa. Super. 2006)

(internal citations and quotations omitted).         In a case dealing with

conspiracy and PWID, “successful proof of a conspiracy makes each co-

conspirator fully liable for all of the drugs recovered, without the necessity of


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proving constructive possession.”       Commonwealth v. Perez, 931 A.2d

703, 709 (Pa. Super. 2007).

      Here, the trial court determined:

           [a] review of the police officer’s testimony demonstrated []
           that the alleged sellers were inseparable until such time as
           an actual sale was about to be made.              After brief
           conversations with the buyers, it was then that the men
           separated and [] [A]ppellant took the role as a ‘lookout’
           during the course of the drug transactions. Sales of heroin
           and cocaine were confirmed as the police arrested the
           buyers who had just recently interacted with [] [A]ppellant
           and Mr. Blalock.

Trial Court Opinion, 3/4/2015, at 6.

      Upon review of the trial transcript, we agree. Officer Jason Seigafuse’s

testimony at trial belies Appellant’s claim that he was merely present when

the two hand-to-hand narcotics transactions transpired. Officer Seigafuse

testified that Appellant and Mr. Blalock were engaged in conversation on the

corner of Jasper and Arizona Streets on the day in question.               N.T.,

5/27/2014, at 12.       Charles Jenkins “approached both males who were

standing together” and “had a brief conversation with both males.”          Id.

“[Appellant] separated and stood at the corner of Jasper and Arizona in the

intersection looking up and down.”           Id. at 12-13.    Officer Seigafuse

witnessed a hand-to-hand narcotic transaction transpire between Mr. Blalock

and Mr. Jenkins.       Id. at 13.    Police recovered crack cocaine from Mr.

Jenkins.    Id.   Fifteen minutes later, Officer Seigafuse witnessed the exact

same course of events with Francis Kelso. Id. at 14-15. Police recovered



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heroin and crack cocaine from Mr. Kelso. Id. Officer Seigafuse testified that

Appellant spoke with both Mr. Jenkins and Mr. Kelso, then walked away and

looked up both Jasper and Arizona Streets while the transactions took place,

and “[o]nce the buyers left, [Appellant and Mr. Blalock] met back up.” Id.

at 16.

         Based upon our standard of review, we discern no abuse of discretion

in the trial court’s findings or an error of law in its determination that the

Commonwealth        presented    sufficient    evidence   to   support   Appellant’s

convictions for conspiracy and PWID.          Here, Appellant actively participated

with Mr. Blalock to enable him to sell narcotics to Mr. Jenkins and Mr. Kelso.

Appellant participated in the initial narcotic sales negotiations with the

buyer, acted as a lookout, and then resumed conversation with Mr. Blalock

after the sale was completed. This happened twice. It was appropriate for

the trial court to infer a conspiratorial relationship based upon the

aforementioned evidence.        Moreover, there is no dispute that Mr. Blalock

was engaged in the sale of drugs. In fact, Appellant concedes as much in his

brief on appeal. See Appellant’s Brief at 13 (“[Appellant walked thirty feet

away when Blalock sold drugs.”) (emphasis added); id. at 15 (“[T]here is

no evidence that Mr. Vargas had dominion or control over the drugs that

[Mr.] Blalock sold to two buyers.”) (emphasis added). Having determined

that the conspiracy was sufficiently proven, Appellant is liable for Mr.

Blalock’s criminal actions within the scope of the proven conspiracy.          See

Perez, 931 A.2d at 709 (“[S]uccessful proof of a conspiracy makes each co-

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conspirator fully liable for all of the drugs recovered, without the necessity of

proving constructive possession.”); see also McCall, 911 A.2d at 997

(“Even if the conspirator did not act as a principal in committing the

underlying crime, he is still criminally liable for the actions of his co-

conspirators in furtherance of the conspiracy.”).2          Hence, Appellant’s

sufficiency claim fails.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2015




____________________________________________


2
   While the trial court found that Appellant constructively possessed the
narcotics, there is no necessity of proving constructive possession when
proven co-conspirators are engaged in the sale of narcotics. See Perez,
931 A.2d at 709. “[A]n appellate court may affirm a valid judgment based
upon any reason appearing in the record.” Commonwealth v. Elia, 83
A.3d 254, 264 (Pa. Super. 2013).




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