J-S56036-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

ORRIN FRANCIS STANFORD,

                            Appellant                    No. 2216 MDA 2013


            Appeal from the Judgment of Sentence October 10, 2013
               in the Court of Common Pleas of Lancaster County
               Criminal Division at No.: CP-36-CR-0001578-2012


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED OCTOBER 29, 2014

        Appellant, Orrin Francis Stanford, appeals from the judgment of

sentence imposed following his conviction by a jury of possession with intent

to deliver (PWID) (heroin), and criminal conspiracy to commit possession of

a controlled substance (heroin).         Appellant challenges testimonial evidence

of prior bad acts, the sufficiency of the evidence, and the denial of a motion

to suppress. We affirm.

        In the early morning hours of February 18, 2012, police assigned to

the Lancaster County Drug Task Force stopped the vehicle Appellant was

driving (a 1998 Nissan Altima registered in Delaware in the name of his

girlfriend/fiancée), in New Providence, PA.            (See Trial Court Opinion,

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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11/19/13, at 1). The day before, February 17, police had attached a global

positioning system (GPS) tracking device to the vehicle, pursuant to 18

Pa.C.S.A. § 5761, mobile tracking devices.       Around 2 PM on the 17 th, the

police had also supervised and observed a controlled buy from Appellant. A

confidential informant purchased ten bags of heroin for $100 from him,

establishing probable cause for the search warrant.

        After the stop, the police executed a search warrant on the vehicle, on

Appellant’s person, his brother Isaiha, and their companion, Timothy Myers.

The search uncovered 298 bags of heroin.         Two hundred eighty-five were

hidden in a potato chip bag in the pant leg of Appellant’s younger brother,

Isaiha.1 The police also found eighteen grams of marijuana. Two hundred

twenty dollars was found on Appellant. Eighty dollars of the $220 found on

Appellant was pre-recorded currency used in the prior controlled buy in the

Nissan Altima by the confidential informant. (See. Trial Ct. Op., at 3 n.2).

The police arrested Appellant and the two passengers.

        Appellant filed a motion to suppress, which the trial court denied. The

Commonwealth filed a motion to introduce evidence of probable cause

buys.2 On May 9, 2013, a jury convicted Appellant of possession with intent

to deliver heroin and criminal conspiracy to deliver heroin.3
____________________________________________


1
    Thirteen bags of heroin were found on the other passenger, Myers.
2
 At trial, the Commonwealth introduced evidence of only one controlled buy,
shortly before the stop.   (See N.T. Trial, 5/08/13, at 5-6, 148-161;
(Footnote Continued Next Page)


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        On October 10, 2013, the court imposed an aggregate sentence of two

and one-half to seven years’ incarceration, plus a $5,000 fine, with credit for

time served. (See N.T. Sentencing, 10/10/13, at 19-20; see also Trial Ct.

Op., at 4).     The trial court denied Appellant’s post-sentence motion on

November 19, 2013, with an order and accompanying opinion.               Appellant

timely appealed on December 9, 2013 (docketed April 12, 2013).4

        On appeal, Appellant raises three questions for our review:

               A. [Did the trial] court [err] in allowing testimony of
        uncharged incidents of drug trafficking as prior bad acts during
        the trial?

              B. Whether the [trial] court erred in determining that the
        evidence is legally insufficient [sic] to sustain the jury’s verdict?

              C. [Whether the trial] court erred in denying [Appellant’s]
        [m]otion to [s]uppress [e]vidence relating to the tracking device
        placed on Appellant’s vehicle?

(Appellant’s Brief, at 4).5
                       _______________________
(Footnote Continued)

Commonwealth’s Brief, at 18 n.6). Nevertheless, Appellant maintains that
evidence of two drug transactions was admitted, and frames his argument in
the plural. (See Appellant’s Brief, at 8).
3
    The jury acquitted Appellant of possession of marijuana.
4
  Appellant timely filed a statement of errors on January 2, 2014. See
Pa.R.A.P. 1925(b). The trial court filed a Rule 1925(a) memorandum opinion
on January 6, 2014, referencing its Opinion and Order of November 19,
2013. (See Pa.R.A.P. 1925(a) Memorandum of Opinion, 1/06/14); see also
Pa.R.A.P. 1925(a).
5
  We address Appellant’s second question as a challenge to the sufficiency of
the evidence despite the obvious typographical error.



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     Appellant’s first issue challenges the trial court’s admission of evidence

of the confidential informant’s prior controlled buy. (See Appellant’s Brief,

at 8-10).   Appellant maintains the evidence of another criminal act, for

which he was not being prosecuted, prejudiced him, and was not probative

of the issues involving the offenses for which he was being prosecuted. We

disagree.

           When reviewing a claim concerning the admissibility of
     evidence, and specifically evidence of other crimes or bad acts
     by a defendant, we note:

              The admission of evidence is a matter vested within
        the sound discretion of the trial court, and such a decision
        shall be reversed only upon a showing that the trial court
        abused its discretion. In determining whether evidence
        should be admitted, the trial court must weigh the relevant
        and probative value of the evidence against the prejudicial
        impact of that evidence. Evidence is relevant if it logically
        tends to establish a material fact in the case or tends to
        support a reasonable inference regarding a material fact.
        Although a court may find that evidence is relevant, the
        court may nevertheless conclude that such evidence is
        inadmissible on account of its prejudicial impact.

     Commonwealth v. Reid, 571 Pa. 1, 34, 811 A.2d 530, 550
     (2002) (citations omitted). An abuse of discretion is not merely
     an error of judgment, but is rather the overriding or
     misapplication of the law, or the exercise of judgment that is
     manifestly unreasonable, or the result of bias, prejudice, ill-will
     or partiality, as shown by the evidence of record.
     Commonwealth v. Carroll, 936 A.2d 1148, 1152–53 (Pa.
     Super. 2007), appeal denied, 596 Pa. 752, 947 A.2d 735 (2008).
     Further, “[a]n abuse of discretion may result where the trial
     court improperly weighed the probative value of evidence
     admitted against its potential for prejudicing the defendant.”
     Commonwealth v. Viera, 442 Pa. Super. 348, 659 A.2d 1024,
     1028, (1995) (citing Commonwealth v. Wharton, 530 Pa.
     127, 144–46, 607 A.2d 710, 719 (1992)). When a trial court

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     indicates its reason for its ruling, “our scope of review is limited
     to an examination of that stated reason.” Commonwealth v.
     Strong, 825 A.2d 658, 665 (Pa. Super. 2003).

          Jurisprudence regarding the admission of other crimes and
     bad acts is as follows:

              Evidence of distinct crimes is not admissible against
        a defendant being prosecuted for another crime solely to
        show his bad character and his propensity for committing
        criminal acts [See Pa.R.E. 404(b)(1)]. However, evidence
        of other crimes and/or violent acts may be admissible in
        special circumstances where the evidence is relevant for
        some other legitimate purpose and not merely to prejudice
        the defendant by showing him to be a person of bad
        character.

     Commonwealth v. Horvath, 781 A.2d 1243, 1245 (Pa. Super.
     2001). These other purposes include, inter alia, proving the
     identity of the person charged with the commission of the crime
     on trial. Commonwealth v. O'Brien, 836 A.2d 966, 969 (Pa.
     Super. 2003).

Commonwealth v. Weakley, 972 A.2d 1182, 1188-89 (Pa. Super. 2009),

appeal denied sub nom. Commonwealth v. Selenski, 986 A.2d 150 (Pa.

2009) (emphasis in original).      Pennsylvania Rule of Evidence 404(b)

provides:

            (b) Crimes, Wrongs or Other Acts.

           (1) Prohibited Uses. Evidence of a crime, wrong, or
     other act is not admissible to prove a person’s character in order
     to show that on a particular occasion the person acted in
     accordance with the character.

            (2) Permitted Uses. This evidence may be admissible for
     another purpose, such as proving motive, opportunity, intent,
     preparation, plan, knowledge, identity, absence of mistake, or
     lack of accident. In a criminal case this evidence is admissible
     only if the probative value of the evidence outweighs its potential
     for unfair prejudice.


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              (3) Notice in a Criminal Case. In a criminal case the
        prosecutor must provide reasonable notice in advance of trial, or
        during trial if the court excuses pretrial notice on good cause
        shown, of the general nature of any such evidence the
        prosecutor intends to introduce at trial.

Pa.R.E. 404(b).

        Here, on review, we conclude that the trial court did not abuse its

discretion by admitting evidence of Appellant’s participation in a prior

controlled buy with a confidential informant.     The trial court reasons that

evidence of the prior drug sale was properly admitted to refute Appellant’s

claim that he was an unknowing participant in the drug conspiracy, merely

present in the vehicle, with no knowledge of the presence of controlled

substances in the car he was driving, or of the intent of his passengers to

distribute the drugs.   (See Trial Ct. Op., at 24).

        The trial court’s reasoning is supported by the trial transcript.   For

example, in his closing argument, defense counsel told the jury, in pertinent

part:

              Now, again, constructive possession in this case.
        [Appellant] would have to have known that the drugs were
        there. Look at that disposition when he pulled over the vehicle.
        Look at his statement. I had no knowledge that the drugs were
        in that car.

               They want to use every other statement, but they don’t
        like to use that statement. I didn’t know about the drugs. And
        he couldn’t have exercised dominion and control over the drugs.

(N.T. Trial, 5/09/13, at 282).




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      We conclude the trial court properly admitted evidence of Appellant’s

prior drug transaction to refute his claim of ignorance about the drugs in his

car, or the co-conspirators’ intent to sell them. The trial court did not abuse

its discretion.

      We confine our review to the reasoning provided by the trial court.

When a court indicates its reason for its ruling, our scope of review is limited

to an examination of that stated reason.      See Weakley, supra at 1189,

citing Strong, supra at 665. Appellant’s first claim does not merit relief.

      In his second issue, Appellant challenges the sufficiency of the

evidence. He does not argue that the Commonwealth failed to prove all the

elements of the offenses for which he was convicted.         Rather, Appellant

disputes the finding of constructive possession of the heroin found on the

passengers in the car, and argues that there was no evidence of his

participation in a criminal conspiracy. (See Appellant’s Brief, at 11-13). We

disagree.

             The standard we apply in reviewing the sufficiency of the
      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 fact-finder 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
      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

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     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
     finder of fact while passing upon the credibility of witnesses and
     the weight of the evidence produced, is free to believe all, part
     or none of the evidence.

     Commonwealth v. Brooks, 7 A.3d 852, 856–57 (Pa. Super.
     2010) (citations omitted).

           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. Lee, 956 A.2d 1024, 1028 (Pa. Super. 2008) (citations
     omitted). If the contraband is not found on the appellant’s
     person, the Commonwealth must prove that the appellant had
     constructive possession of the contraband, which has been
     defined as the “ability and intent to exercise control over the
     substance.” Commonwealth v. Hutchinson, 947 A.2d 800,
     806 (Pa. Super. 2008) (citations omitted). The Commonwealth
     may establish constructive possession through the totality of the
     circumstances. Commonwealth v. Muniz, 5 A.3d 345, 349
     (Pa. Super. 2010) (citing Commonwealth v. Thompson, 779
     A.2d 1195, 1199 (Pa. Super. 2001)).

                                     *      *     *

            [T]his Court has found that multiple individuals may have
     joint control and equal access and thus both may constructively
     possess the contraband. Commonwealth v. Sanes, 955 A.2d
     369, 373 (Pa. Super. 2008) (citations omitted).

Commonwealth v. Estepp, 17 A.3d 939, 943-45 (Pa. Super. 2011), appeal

dismissed as improvidently granted, 54 A.3d 22 (Pa. 2012).

     Here,    Appellant   concedes   that       the   Commonwealth   can   prove

possession of a controlled substance by circumstantial evidence. (See

Appellant’s Brief, at 11). Furthermore, Appellant does not dispute that an




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intent to maintain conscious dominion may be inferred from the totality of

the circumstances. (See id. at 12).

          Nevertheless, he maintains that he could not be found in constructive

possession of heroin not on his person or in a common area of the vehicle,

specifically, heroin in the “the pant’s [sic] of another person.” (Id. at 13).

Appellant cites no authority for this assertion, and misapprehends controlling

case law. See Estepp, supra at 945 (“[M]ultiple individuals may have joint

control and equal access and thus both may constructively possess the

contraband.”) (citation omitted).

          At trial, Lancaster County Drug Task Force Detective Gregory P.

Macey, accepted by the court without objection as an expert, testified that

drug traffickers frequently trusted younger co-conspirators, including family

members, who often had no criminal records or lesser criminal records than

their seniors, to hold illicit drugs. (See N.T. Trial, 5/09/13, at 234, 241-42).

The jury as fact-finder was free to accept this testimony as evidence and

infer that Isaiha Stanford’s holding of most of the heroin was at the direction

and control of his older brother, Appellant. Appellant’s issue does not merit

relief.

          Appellant also challenges the evidence of conspiracy.

                To prove criminal conspiracy, the Commonwealth must
          show a defendant entered into an agreement to commit or aid in
          an unlawful act with another person; that he and that person
          acted with a shared criminal intent; and that an overt act was
          taken in furtherance of the conspiracy. 18 Pa.C.S.A. § 903. “An
          explicit or formal agreement to commit crimes can seldom, if

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      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. Therefore, where the
      conduct of the parties indicates that they were acting in concert
      with a corrupt purpose in view, the existence of a criminal
      conspiracy may properly be inferred. This court has held that
      the presence of the following non-exclusive list of circumstances
      when considered together and in the context of the crime may
      establish proof of a conspiracy: (1) an association between
      alleged conspirators, (2) knowledge of the commission of the
      crime, (3) presence at the scene of the crime, and (4)
      participation in the object of the conspiracy.

            Again, the totality of the circumstances taken in the light
      most favorable to the Commonwealth is sufficient to convict
      appellant of . . . conspiracy. . . . We have held that an overt act
      need not be committed by the defendant; it need only be
      committed by a co-conspirator.

Commonwealth v. Kinard, 95 A.3d 279, 293 (Pa. Super. 2014) (case

citations and internal quotation marks omitted).

      Furthermore, in reviewing sufficiency, we evaluate the entire record

and all evidence actually received must be considered. See Estepp, supra

at 944-45; see also Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa.

Super. 2014) (quoting Commonwealth v. Slocum, 86 A.3d 272, 275–76

(Pa. Super. 2014).

      Accordingly, to evaluate the sufficiency of the evidence for Appellant’s

conviction of conspiracy, we would properly consider the evidence of his

sale of heroin in the controlled buy even if, contrary to fact, it was otherwise

inadmissible.   In the totality of circumstances, there was ample proof of

Appellant’s knowing participation in the heroin selling enterprise, and his




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constructive possession of the heroin.        Appellant’s second issue does not

merit relief.

      Finally, in his third issue, Appellant maintains that the trial court erred

in denying his motion to suppress evidence related to the GPS tracking

device. (See Appellant’s Brief, at 14-17). Appellant argues that compliance

with 18 Pa.C.S.A. § 5761, mobile tracking devices, is legally insufficient.

(See id. at 15). Citing United States v. Jones, 132 S. Ct. 945, 949 (2012)

(“We hold that the Government’s installation of a GPS device on a target’s

vehicle, and its use of that device to monitor the vehicle’s movements,

constitutes a “search.”), he contends that the Commonwealth required a

search warrant to install the GPS tracker. (See id.). We disagree.

      This Court has already decided that even after Jones, a GPS device

placed onto a vehicle in full compliance with 18 Pa.C.S.A. § 5761, mobile

tracking devices, as amended, does not offend the Fourth Amendment of the

United States Constitution or Article 1, Section 8 of the Pennsylvania

Constitution. See Commonwealth v. Burgos, 64 A.3d 641, 655 n.20 (Pa.

Super. 2013), appeal denied, 77 A.3d 635 (Pa. 2013).           Appellant’s third

issue does not merit relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 10/29/2014




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