J-A11011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

 THOMAS RICE

                             Appellant                No. 1162 MDA 2017


        Appeal from the Judgment of Sentence entered April 19, 2017
             In the Court of Common Pleas of Dauphin County
             Criminal Division at No: CP-22-CR-0001601-2016


BEFORE: STABILE, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 14, 2018

       Appellant, Thomas Rice, appeals from the April 19, 2017 judgment of

sentence entered in the Court of Common Pleas of Dauphin County following

his conviction of possession with intent to deliver (“PWID”), conspiracy, and

related offenses. Appellant claims the evidence was insufficient to prove the

offenses, asserts trial court error for admitting evidence of a prior drug sale,

and alleges an assistant district attorney committed prosecutorial misconduct.

Following review, we affirm.

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

             On August 15, 2015, officers from the City of Harrisburg
       Police Department (“HPD”) responded to a report of a shooting at
       1249 Market Street—an apartment building wherein Keyonda

____________________________________________


* Retired Senior Judge assigned to the Superior Court.
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     Brown and her sister, Janeisha Chambers, rented a three (3)
     bedroom apartment on the third floor. [Appellant] was in an
     intimate relationship with Ms. Brown and stayed with her in the
     apartment on and off for approximately six (6) months and had
     moved some personal items, such as a safe and a bin of clothing,
     into the residence a week before the incident. Karen Lyda, a
     forensic investigator, Dennis Simmons, a detective, and
     Christopher Thomas, a patrol officer, responded to the call and
     testified during trial.
            When Detective Simmons arrived on scene he was advised
     that a male victim was shot multiple times and transported to
     Hershey Medical Center. He observed a trail of blood on the south
     side of the apartment building, and followed it up the fire escape
     into apartment number 2. Once in the apartment, he conducted
     a preliminary walk through, and then returned to the police station
     to interview the two (2) witnesses—Ms. Brown and Ms. Chambers.

           Ms. Brown advised Detective Simmons that she was out of
     the residence from approximately 10:00 P.M. until 2:00 A.M. the
     night of the shooting. Ms. Brown took a shower when she
     returned home, and upon exiting from the shower heard multiple
     gunshots. A few minutes later, she exited the residence through
     the back door and observed [Appellant] laying [sic] in a pool of
     blood on the second floor fire escape. Ms. Brown advised
     Detective Simmons that she also observed two (2) dark-skinned
     black males in the area, and heard [Appellant] tell one of the
     males to take the stuff out of his pocket. Thereafter, she rendered
     aid to [Appellant] and called 9-1-1.

           Due to observing some illegal items in plain view within the
     residence, Ms. Brown was Mirandized before Detective Simmons
     asked whether there were other illegal items in the residence. She
     advised that she had a gun clip and safe in her bedroom, the pink
     room. She further advised Detective Simmons would find drugs
     and guns in the safe.

           Once Detective Simmons obtained a search warrant, he
     returned to the residence where he was stopped by Officer
     Thomas. Officer Thomas advised Detective Simmons that he met
     with a female residen[t] of the apartment building, Freida
     Montague, who stated that shortly after the shooting a dark-
     skinned female wearing a bloody shirt knocked on her door and
     asked to hold her pink purse. Ms. Montague hung the purse on


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       the back of her door and did not open it. Ms. Brown testified that
       she took an empty PCP vial from the TV stand in her bedroom, put
       it in the purse, and took the purse to her neighbor. She denies
       that it was her PCP, and only took it to her neighbor because she
       was scared. After retrieving the purse from Ms. Montague,
       investigator Lyda opened and photographed the inside of the
       purse. A glass vial covered in blood with a black lid containing
       suspected PCP was inside, as well as multiple mint leaves and
       other personal items.

              Execution of the search warrant revealed several items. In
       the kitchen officers discovered multiple mint leaves in a large
       Tupperware container in the kitchen sink. In Ms. Brown’s room,
       also referred to as “the pink” room, were: (1) a large safe covered
       with male clothing; (2) a plastic bin with multiple items of male
       clothing in addition to a black .40 caliber Taurus handgun; (3)
       small bag of suspected marijuana; (4) a pipe commonly used to
       smoke marijuana; (5) several blue, oblong tablets; (6) a box of
       plastic sandwich bags; (7) an empty glass jar with a blue lid; (8)
       a white purse with an empty black glass vial, similar to others
       found, with tobacco leaves throughout; and (9) a male wallet with
       [Appellant’s] New Jersey identification card inside. The safe was
       approximately three (3) feet high, weighed over one hundred
       (100) pounds, and required at least two individuals to pick up and
       move. Inside the safe were seven (7) individual glass jars with
       black lids containing suspected PCP, $1,180 of United States
       currency in various denominations, several batteries, and a sock.
       Officers also located a .22 caliber magazine in an unoccupied
       bedroom of the residence.

Trial Court Opinion, 11/2/17 (“TCO”), at 5-6 (references to notes of testimony

and footnotes omitted).1

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1 The omitted footnotes indicated that the handgun’s magazine was fully
loaded and there was a round in the chamber, ready for fire; that the
suspected marijuana and suspected PCP were subsequently tested and
confirmed to be marijuana and liquid PCP with approximately one ounce of
PCP per vial; and that a sock is a common way to transport individual jars of
PCP to avoid skin contact.




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       Appellant was arrested and charged with PWID, conspiracy—PWID,

tampering with/fabricating physical evidence, and possession of drug

paraphernalia.2 Following a December 2016 trial, the jury convicted Appellant

of PWID, conspiracy, and possession of drug paraphernalia, but acquitted him

of tampering with evidence.           The trial court sentenced Appellant to an

aggregate term of not less than fifty-seven nor more than one hundred

fourteen months of confinement in a state correctional institution, and five

years’ probation consecutive to the confinement. TCO at 1-2.

       By order entered June 26, 2017, the trial court denied Appellant’s post-

sentence motions. This timely appeal followed. Both Appellant and the trial

court complied with Pa.R.A.P. 1925. Appellant now asks this Court to consider

the following issues on appeal:

       A. Was the evidence sufficient to prove possession with intent to
          deliver?

       B. Was the evidence sufficient to prove criminal conspiracy to
          commit possession with intent to deliver?

       C. Did the court err when it admitted evidence of Appellant’s prior
          drug sales as evidence under Pa.R.E. 404(b)?

       D. Did the Assistant District Attorney commit prosecutorial
          misconduct when it [sic] proceeded at trial on charges that
          were withdrawn at the preliminary hearing?
____________________________________________


235 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 903, 18 Pa.C.S.A. § 4910(1), and
35 P.S. 780-113(a)(32), respectively. Additional charges of person not to
possess firearm and receiving stolen property were withdrawn by the
Commonwealth.



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Appellant’s Brief at 3.

       Appellant’s first two issues challenge the sufficiency of evidence

supporting his convictions of PWID and conspiracy.3 This Court has explained:

       Our standard and scope of review for sufficiency challenges are
       well established.

          We must determine whether the evidence admitted at trial,
          and all reasonable inferences drawn therefrom, when
          viewed in a light most favorable to the Commonwealth as
          verdict winner, support the conviction beyond a reasonable
          doubt. Where there is sufficient evidence to enable the trier
          of fact to find every element of the crime has been
          established beyond a reasonable doubt, the sufficiency of
          the evidence claim must fail.

          The evidence established at trial need not preclude every
          possibility of innocence and the fact-finder is free to believe
          all, part, or none of the evidence presented. It is not within
          the province of this Court to re-weigh the evidence and
          substitute our judgment for that of the fact-finder. The
          Commonwealth’s burden may be met 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.        Additionally, in applying the
          above test, the entire record must be evaluated and all
          evidence actually received must be considered.

Commonwealth v. Feliciano, 67 A.3d 19, 23-24 (Pa. Super. 2013) (en

banc) (citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013).




____________________________________________


3 Ms. Chambers and Ms. Brown were charged as co-conspirators with
Appellant.

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      In accord with 35 P.S. §780-113(a)(30), a person not registered under

the Act is prohibited from the manufacture, delivery, or possession with intent

to manufacture or deliver, a controlled substance. Appellant contends that a

finding of PWID requires proof, beyond a reasonable doubt, that he

constructively possessed an illegal substance, i.e., that he had “1) the []

ability to exercise a conscious dominion over the illegal substance; 2) the []

power to control the illegal substance; and 3) the [] intent to exercise that

control.” Appellant’s Brief at 15 (quoting Commonwealth v. Johnson, 26

A.3d 1078, 1086 (Pa. 2011)). He argues that the evidence failed to establish

his constructive possession of the PCP found in Ms. Brown’s room.

      The trial court dismissed Appellant’s constructive possession argument,

noting:

      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.

TCO at 8 (quoting Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super.

2013) (citations omitted)). “Additionally, it is possible for two people to have

joint constructive possession of an item of contraband.” Hopkins, 67 A.3d at

820-21 (citation omitted).

      Appellant suggests that the evidence cannot support a conviction for

PWID. In support of his contention, he makes reference to evidence presented


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at trial. Appellant’s Brief at 15-17. However, in doing so, he presents a view

of the evidence in a light most favorable to Appellant. Our standard of review

requires otherwise, mandating that we view the evidence and reasonable

inferences in the light most favorable to the Commonwealth as verdict winner.

      The trial court explained:

            When viewed in their totality, the facts and circumstances
      support the finding that Appellant was in constructive possession
      of the contraband. Seven (7) vials of PCP were found in the safe
      located inside the closet in Ms. Brown’s bedroom. Detective
      Simmons testified that there was a trail of blood leading to the
      closet where the safe was found, and that the safe was covered
      with male clothing. Ms. Brown testified she and Appellant were in
      an intimate relationship, and that Appellant had stayed with her
      in her bedroom on and off for approximately six (6) months.

             While Ms. Brown did not observe Appellant place the safe
      and bin of clothing in her room, she assumed that he did as it was
      not there before he arrived to stay with her, and was in her
      bedroom when she returned home later that night. She further
      testified that except for the safe and bin of clothing, everything
      else in the bedroom belonged to her. Ms. Brown did not have
      access to items inside the safe, and did observe Appellant go in
      and out of the safe on one occasion. Lastly, Detective Simmons
      recovered a wallet with Appellant’s New Jersey identification card,
      as well as other personal items, on the floor of Ms. Brown’s
      bedroom. Accordingly, Appellant is not entitled to relief as the
      Commonwealth proved beyond a reasonable doubt that Appellant
      had possession of the contraband.

TCO at 8-9 (references to notes of testimony and footnote omitted).

      We agree with the trial court’s assessment. Viewing the evidence and

all reasonable inferences in the light most favorable to the Commonwealth,

there was sufficient evidence for the jury to find Appellant had the ability to

exercise conscious dominion over the PCP, the power to control it, and the


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intent to exercise that control. Therefore, the evidence was sufficient to find

Appellant guilty of PWID beyond a reasonable doubt. Appellant’s first issue

fails.

         Appellant next argues that the evidence was insufficient to support his

conspiracy conviction. Section 903 of the Crimes Code provides:

         (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.

18 Pa.C.S.A. § 903.

         In Feliciano, this Court reiterated:

         “To sustain a conviction for criminal conspiracy, the
         Commonwealth must establish 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.” Commonwealth v.
         Devine, 26 A.3d 1139, 1147 (Pa. Super. 2011). “The conduct of
         the parties and the circumstances surrounding such conduct may
         create a web of evidence linking the accused to the alleged
         conspiracy beyond a reasonable doubt.” Id. The conspiratorial
         agreement “can be inferred from a variety of circumstances
         including, but not limited to, the relation between the parties,
         knowledge of and participation in the crime, and the
         circumstances and conduct of the parties surrounding the criminal
         episode.” Id.




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Feliciano, 67 A.3d at 25-26. As the Commonwealth suggests, agreements

of conspiracy are “generally established via circumstantial evidence such as

by ‘the relations, conduct, or circumstances of the parties or overt acts on the

part of co-conspirators’ because it is difficult to prove an explicit agreement.”

Commonwealth Brief at 11 (quoting Commonwealth v. Sanchez, 82 A.3d

943, 973 (Pa. 2013)).

      The trial court concluded the evidence, viewed in the light most

favorable to the Commonwealth, was sufficient to sustain Appellant’s

conviction for conspiracy. As the court explained:

            Ms. Brown permitted Appellant to move an extremely heavy
      safe into her bedroom for the obvious purpose of storing
      contraband. Ms. Brown admitted that she was aware that there
      were drugs and money in the safe. Allowing the safe into the
      residence qualifies as an overt act. In addition, Ms. Brown
      retrieved the items from Appellant’s person when he was shot,
      knowing that he possessed illegal items, and then took those
      items, put them into her purse, and took the purse to a neighbor
      in an effort to conceal the contraband. Likewise, Ms. Chambers
      admitted to smoking PCP on the day of the incident, and admitted
      that she obtained the PCP from Appellant.        Therefore, Ms.
      Chambers was likewise aware, or should have been aware, that
      the safe brought into the residence by Appellant contained
      contraband.

TCO at 10.

      The trial court concluded that the Commonwealth established the

requisite elements of conspiracy, i.e., that Appellant entered into an

agreement to commit an unlawful act with another person, that they shared

criminal intent, and that an overt act was done in furtherance of the

conspiracy. Viewing the evidence in its totality and in the light most favorable

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to the Commonwealth as verdict winner, we agree that the evidence was

sufficient to sustain Appellant’s conspiracy conviction.     Appellant’s second

issue fails.

      In his third issue, Appellant contends the trial court erred in allowing

introduction of evidence that Appellant sold PCP to Ms. Chambers. As such,

Appellant is challenging an evidentiary ruling. In Commonwealth v. Page,

965 A.2d 1212 (Pa. Super. 2009), this Court explained:

      Evidence relating to other crimes, wrongs, or acts of a defendant
      is admissible to prove “motive, opportunity, intent, preparation,
      plan, knowledge, identity or absence of mistake or accident” if the
      probative value outweighs the potential prejudice. Pa.R.E.
      404(b)(2), (b)(3).     When reviewing a claim concerning the
      admission of evidence, and specifically evidence of a prior bad act
      by a defendant, the appropriate standard was set forth in
      Commonwealth v. Reid, 571 Pa. 1, 811 A.2d 530, [550] (2002)
      (internal citations omitted) (emphasis added), as follows:
          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.

          Evidence of prior bad acts committed by a defendant is not
          admissible solely to show the defendant’s bad character or
          his propensity for committing bad acts. However, evidence
          of prior bad acts is admissible where there is a legitimate
          reason for the evidence, such as to establish: 1) motive; 2)
          intent; 3) absence of mistake or accident; 4) a common
          scheme or plan; and 5) identity. The evidence may also be


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         admissible to impeach the credibility of a testifying
         defendant; to show that the defendant has used the prior
         bad acts to threaten the victim; and in situations where
         the bad acts were part of a chain or sequence of
         events that formed the history of the case and were
         part of its natural development.

Id. at 1219 (emphasis added).

      The trial court recounted that the prior bad acts issue was raised prior

to the start of trial and that the prosecutor’s intent was to “introduce

everything that [the witnesses] know about that particular day just to give a

flow of story for the jury, and so they understand exactly where these

witnesses are coming from and their personal knowledge and perspective, and

their relationship to [Appellant] as well.” Notes of Testimony, 12/5/16, at 9.

The Commonwealth agreed with the trial court’s characterization, “for lack of

a better term,” as “a res [gestae] connection between the earlier testimony

and the actual occurrence following the shooting.” Id. The court ruled that

the testimony would be limited to the purchase on the day before the incident,

because “[i]t’s clearly within the time frame. And they’ll be able to say that

they believe him to be a drug dealer.” Id. at 11-12.

      Appellant’s counsel expressed concern about Ms. Chambers’ statement

that she heard Appellant carried a gun and that she knew him to carry a gun

years earlier. When the prosecutor explained her intent was to “stick to the

incident as much as possible,” Appellant’s counsel asked, “And what the court

just limited you?”   The prosecutor replied, “Yes,” and Appellant’s counsel

stated, “Fair enough.” Id. at 11.

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       The only testimony offered by Ms. Chambers about a purchase of PCP

from Appellant was in reference to the purchase made “earlier in the day,”

referring to the day of the shooting.4 Id. at 136-37. The trial court permitted

the Commonwealth

       to introduce testimony of the drug sale which occurred the day
       prior to the incident in question as it demonstrates the basis, if
       not motive of the charged conspiracy. The testimony . . . tends
       to prove that Ms. Chambers was aware that Appellant was a drug
       dealer and that she and Ms. Brown allowed Appellant to move an
       overly large, heavy safe into their residence knowing what was
       inside of it. The sale was close in proximity to the incident,
       therefore clearly provides probative value that outweighs any
       unfair prejudice.

TCO at 12-13.

       We agree that there was a legitimate basis for allowing the testimony.

Finding no abuse of discretion in the trial court’s ruling, we shall not disturb

it. Appellant’s third issue does not provide any basis for relief.

       In his fourth and final issue, Appellant contends the Assistant District

Attorney committed prosecutorial misconduct by proceeding on a charge at

trial that Appellant thought had been withdrawn.         Specifically, Appellant

asserts misconduct “in withdrawing the charge of tampering with/fabricating

evidence at the Magistrate District Court and later proceeding on the charge

in violation of Appellant’s due process rights; allowing the Commonwealth to


____________________________________________


4 The shooting actually occurred in the very early hours of the following
morning. While the sale to Ms. Chambers technically occurred the evening
before, the events surrounding the sale and the shooting were treated
generally by the parties as occurring on the same day.

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present evidence of a firearm although Appellant was not charged with

possession of a firearm.” Appellant’s Rule 1925(b) Statement, 10/17/17, at

2 (some capitalization omitted). However, in his brief, Appellant concedes

that the Commonwealth did not remove the charge from the information,

despite suggesting at the preliminary hearing that there was insufficient

evidence for the charge. Appellants’ Brief at 21.

        The trial transcript reflects that the charges Appellant faced at trial

included “tampering with physical evidence.”     Notes of Testimony, 12/5/16,

at 5.    At the conclusion of trial, the court delivered its instructions and

informed the jury of the elements of each of the crimes charged, including

“tampering or fabricating physical evidence.”     Id. at 327.   At no time did

Appellant object based on a belief the charge had been dropped. We find, as

did the trial court, that Appellant’s final issue is “a combination of incorrect

and inaccurate facts.” TCO, at 13. Appellant is not entitled to relief.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/18




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