J-S29008-13

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                   Appellee              :
                                         :
             v.                          :
                                         :
CARMEN ROSSI,                            :
                                         :
                   Appellant             : No. 739 EDA 2012

            Appeal from the Judgment of Sentence February 3, 2012,
                 Court of Common Pleas, Philadelphia County,
               Criminal Division at No. CP-51-CR-0001302-2011

BEFORE: DONOHUE, MUNDY and OLSON, JJ.

MEMORANDUM BY DONOHUE, J.:                    FILED NOVEMBER 05, 2014

     Carmen Rossi (“Rossi”) appeals from the February 3, 2012 judgment

of sentence entered by the Court of Common Pleas, Philadelphia County,

following his convictions of possession with intent to deliver (“PWID”), 35

P.S. § 780-113(a)(30), possession of a controlled substance, id. at § 780-

113(a)(16), possessing an instrument of crime (“PIC”), 18 Pa.C.S.A. §

907(a), and conspiracy to commit PWID, id. at § 903(c).       On August 26,

2014, our Supreme Court vacated a prior memorandum decision and

remanded to this Court for further consideration in light of Commonwealth

v. Castro, 93 A.3d 818 (Pa. 2014). On remand, we affirm the judgment of

sentence.

     The trial court summarized the factual history as follows:

             On July 27, 2009, Narcotics Officer Michael Spicer
             [“Officer Spicer”] received information from an
J-S29008-13


          informant about sales of prescription medications
          occurring at 2329 Hutchinson Street in Philadelphia
          by a man named Carmen.             After setting up
          surveillance on July 29th, Officer Spicer observed
          [Rossi] leaving and then returning to that location, a
          rowhouse, several times, and saw [Rossi], while
          standing in front of that location, receive an
          unknown amount of United States currency and hand
          something small to an unknown male individual.
          Based upon his experience, the officer believed that
          he had witnessed a narcotics transaction.         N.T.
          2.2.2012 at 65, 72-74.

          Following that transaction, [Rossi] went back inside
          2329 Hutchinson and Christopher Welch [(‘Welch’)],
          his eventual co-defendant, parked nearby and
          entered that location as well. Welch, accompanied
          by a woman who was later identified as a Ms. Celli,
          was holding a multicolored bag. About ten minutes
          later, [Rossi] again had a brief interaction with
          another male in front of the property, exchanging
          United States currency for a small object.        The
          officer identified this as a narcotics transaction as
          well.    Twenty minutes after that exchange, at
          approximately 5:10 p.m., Welch, Celli, and a Mr.
          Bowen walked out of the property together. Welch
          and Celli returned to their vehicle and Bowen got
          into another vehicle. Welch drove off, and was
          followed by Bowen. Officer Spicer notified another
          police unit that he was going to follow the vehicles.
          Id. at 73-79.

          Officer Spicer and other officers apprehended Welch
          and Bowen in another Philadelphia neighborhood
          shortly thereafter.[FN]2  During his apprehension,
          Welch ran into an apartment building where he
          dropped the multicolored bag he had been carrying.
          Inside the bag, police found 76 Methadose pills, 46
          Suboxone pills, another bottle of 60 Suboxone pills,
          and two bottles of Oxycodone pills containing 50 and
          37 pills. Welch himself was carrying $310 in United
          States currency, keys to an apartment in that
          building, and a cell phone.        During this time,



                                  -2-
J-S29008-13


          Sergeant Seaman and Officers Perrotti and Speiser
          had taken over surveillance of 2329 Hutchinson. Id.
          at 83-86.

          After receiving warrants for Welch's apartment and
          for 2329 Hutchinson, the police conducted searches
          of both locations that evening. At 2329 Hutchinson,
          they arrested [Rossi] and found on his person
          $4,307 in United States currency and a bottle
          containing 84 Percocet pills. In the basement, they
          found a safe containing a .9mm Taurus handgun
          loaded with seventeen rounds, a pill bottle containing
          53 Percocet pills prescribed to Mary Bowen, and a
          life insurance policy in [Rossi]'s name.       In the
          kitchen, police recovered a zip-lock bag containing
          145 Oxycontin pills and a bottle containing 93
          Hydrocodone pills. From a second floor bedroom,
          they recovered 121 Vicodin pills, a zip-lock bag with
          195 Percocet pills, and another bottle of Percocet
          containing 100 pills.       Police also found mail
          addressed to [Rossi] and a pocketbook on the first
          floor with $765 in United States currency. Id. at 86-
          90

          At 2401 East York, Welch's apartment, at
          approximately 9:45 p.m., police found two fifty-
          gallon trash bags; the first contained a large number
          of non-narcotic pills.     The second contained 18
          bottles containing 2,041 Percocet pills, eight bottles
          containing 1,205 Vicodin pills, three bottles
          containing 219 Oxycontin pills, one bottle containing
          240 Tylenol Four pills, fourteen bottles containing
          1,309 Methadose pills, 4 bottles containing 2,143
          Xanax pills, five bottles containing 255 Adderall pills,
          one bottle containing 80 Ritalin pills, [two] bottles
          containing 153 Dextroamphetamine pills, one bottle
          containing 100 Codeine, three bottles containing 122
          Hydromorphine pills, 12 bottles containing 756
          Morphine pills, three bottles containing 250 Clonidin
          pills, two bottles containing 160 Metadate pills, two
          bottles    containing    152    Methylphentadine     or
          Methylphentadate pills, eleven boxes of Fentanyl
          patches, two boxes of Daytrana, two pint bottles of



                                   -3-
J-S29008-13


           Hydrocodone liquid, one bottle of Methadone liquid,
           one pint bottle of Roxicet liquid, and one fluid ounce
           of Morphine Sulfate. A safe contained $2,480 in
           United States currency; the apartment also
           contained paperwork and mail in Welch's name. Id.
           at 90-93.

           ___________
           [FN]2
               During this surveillance, Officer Spicer saw that
           Bowen was wearing a holstered handgun. Id. at 81-
           82.

Trial Court Opinion, 5/2/2012, at 3-5.

      The Commonwealth filed criminal charges against Rossi, and at the

suppression hearing on February 2, 2012, the Commonwealth offered the

testimony of Officer Spicer, Officer Brian Reynolds, and Officer Jeffrey

Walker.   Officer Spicer testified regarding his observations during his

surveillance and searches of 2329 Hutchinson Street and 2401 East York

Street. See N.T., 2/2/2012, at 64-175. Officer Reynolds testified regarding

the contents and recovery of co-defendant Welch’s bag at 2401 East York

Street.   See id. at 178-181.       Officer Walker testified regarding his

involvement in the apprehension and arrest of Welch. See id. at 181-202.

The trial court denied Rossi’s suppression motion, ruling that the search and

seizure were proper.

      At the outset of the bench trial on February 3, 2012, Rossi agreed to

permit the Commonwealth to admit into evidence all relevant, non-hearsay

testimony introduced at the suppression hearing. N.T., 2/3/2012, at 13-14.




                                    -4-
J-S29008-13


The trial court convicted Rossi of the above-referenced crimes and imposed

an aggregate sentence of seven to fourteen years of incarceration. The trial

court denied Rossi’s post-sentence motion, after which Rossi filed a timely

notice of appeal. On appeal, Rossi raises the following issues for our review

and determination:

      1.    Did the trial court err by denying [Rossi’s] motion to
            suppress?

      2.    Did the trial court commit an abuse of discretion by
            denying [Rossi’s] motion for extraordinary relief
            and/or arrest of judgment?

Rossi’s Brief at 3.

      For his first issue on appeal, Rossi challenges the trial court’s denial of

his motion to suppress the physical evidence against him. The standard of

review of an appeal from a denial of a motion to suppress is as follows:

            Our standard of review of a denial of suppression is
            whether the record supports the trial court's factual
            findings and whether the legal conclusions drawn
            therefrom are free from error. Our scope of review
            is limited; we may consider only the evidence of the
            prosecution and so much of the evidence for the
            defense as remains uncontradicted when read in the
            context of the record as a whole. Where the record
            supports the findings of the suppression court, we
            are bound by those facts and may reverse only if the
            court erred in reaching its legal conclusions based
            upon the facts.

Commonwealth v. Galendez, 227 A.3d 1042, 1045 (Pa. Super. 2011)

(quoting Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa. Super.

2002) (en banc)).



                                      -5-
J-S29008-13


      Rossi argues that the trial court erred in failing to suppress the

physical evidence obtained from his personal residence at 2329 Hutchinson

Street because no probable cause existed to support the issuance of the

search warrant. Rossi’s Brief at 10. To this end, Rossi relies on two prior

decisions of this Court, Commonwealth v. Kline, 335 A.2d 361 (Pa. Super.

1975) and Commonwealth v. Way, 492 A.2d 1151 (Pa. Super. 1985). In

Kline, we reversed a trial court’s denial of a suppression motion after police

obtained a search warrant for the appellant’s residence after observing him

conduct drug sales on the street.     In so doing, we ruled that “[p]robable

cause to believe that a man has committed a crime on the street does not

necessarily give rise to probable cause to search his home.”        Kline, 335

A.2d at 364.    In Way, a case involving similar facts, we followed our

decision in Kline, holding that “the lack of a substantial nexus between the

street crime and the premises to be searched renders the warrant facially

invalid.” Way, 492 A.2d at 1154.

      Rossi contends that “the record is utterly devoid of even [a] scintilla of

evidence establishing that [Rossi] had drugs in his residence.” Rossi’s Brief

at 11.   Based upon our review of the certified record, we cannot agree.

Officer Spicer’s testimony established that he observed Rossi engage in

narcotics transactions on the street, and that before and after each

transaction he saw Rossi going into and out of 2329 Hutchinson Street. This

fact supports the existence of a nexus between the street crimes and Rossi’s



                                     -6-
J-S29008-13


residence that was lacking in Kline and Way, and makes those cases

inapposite here.   In Commonwealth v. Clark, 28 A.3d 1284 (Pa. 2011),

our Supreme Court specifically instructed that when drug sales involve

frequent trips into and out of a residence, probable cause exists to search for

drugs in the residence:

            [T[he trial court and Superior Court discounted the
            common sense import of the fact that after the
            controlled buy was arranged, the police observed
            Appellee leave his residence in his vehicle, as
            precisely described by the CI, drive to a location,
            conduct the transaction, and immediately return to
            his residence.     This fact certainly connected the
            illegal transaction to Appellee's residence, in a
            common sense, non-technical way, and permitted
            the issuing authority to conclude that drugs would
            likely be found in the residence.         Although the
            circumstances of the observed transaction also
            potentially pointed to Appellee's vehicle as a storage
            location for the drugs, ‘the law does not require that
            the information in a warrant affidavit establish with
            absolute certainty that the object of the search will
            be found at the stated location, nor does it demand
            that the affidavit information preclude all possibility
            that the sought after article is not secreted in
            another location.’ [Commonwealth v. Davis, 595
            A.2d 1216, 1222 (Pa. Super. 1991).] Accordingly,
            the Superior Court's reasoning that perceived no
            connection between the transaction and the
            residence was flawed. Under the totality of the
            circumstances, which permits a balanced assessment
            of the relative weight of all the various indicia of
            reliability or unreliability of an informant's tip, there
            was a sufficient connection between the residence
            and the transaction to corroborate the CI's
            information that drugs were stored in the residence,
            and to support a determination of probable cause to
            search the residence.




                                      -7-
J-S29008-13


Id. at 1291; see also Davis, 595 A.2d at 1221 (“[W]ithin the 48–hour

period preceding the issuance of the search warrant, the confidential

informant witnessed Davis make three drug sales in the William Penn

Project, and, within the same time span, Davis was observed ... going to and

coming from 408 Pancoast Pl.”).

      For these reasons, the trial court did not err in refusing to suppress

the physical evidence obtained from the search of Rossi’s residence at 2319

Hutchinson Street. No relief is due on Rossi’s first issue on appeal.

      For his second issue on appeal, Rossi argues that the evidence was

insufficient to support his convictions for criminal conspiracy and PIC.

Rossi’s Brief at 16. Our standard of review for a sufficiency of the evidence

claim is 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



                                     -8-
J-S29008-13


            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. Stokes, 38 A.3d 846, 853 (Pa. Super. 2011) (citation

omitted).

      Rossi first challenges the sufficiency of the evidence to support his

conspiracy conviction. The Pennsylvania Crimes Code defines conspiracy as

follows:

            § 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:

                (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(a).       Thus, “‘[t]o 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. Feliciano, 67 A.3d

19, 25-26 (Pa. Super. 2013) (en banc) (quoting Commonwealth v.



                                     -9-
J-S29008-13


Devine, 26 A.3d 1139, 1147 (Pa. Super. 2011)). “‘This overt act need not

be committed by the defendant; it need only be committed by a co-

conspirator.’” Commonwealth v. McCall, 911 A.2d 992, 996 (Pa. Super.

2006) (citation omitted).    The conspiracy can be proven by circumstantial

evidence, such that “[t]he 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.” Commonwealth v.

Perez, 931 A.2d 703, 708 (Pa. Super. 2007).             Furthermore, “[t]he

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.’” Feliciano, 67 A.3d at 26.

      Rossi contends that the Commonwealth failed to introduce evidence

that showed Rossi entered into an agreement to possess drugs or committed

any act in furtherance of the conspiracy. Rossi’s Brief at 18. Rossi claims

that the record contains no evidence demonstrating “that [he] and his

alleged co-conspirators spoke or interacted with one another at any time.”

Id. at 19. Rossi argues that any inference from Welch entering and leaving

Rossi’s residence is insufficient because it is based on speculation.   Id. at

20. Furthermore, Rossi asserts that “there was no evidence presented that

[he] and Welch or any other person were working in concert pursuant to a

joint plan.”   Id.   Rossi discounts the evidence that showed he and Welch



                                    - 10 -
J-S29008-13


were both in possession of similar prescription drugs, stating that all

prescription drugs are of pharmaceutical origin and come in no other form.

Id. According to Rossi, “[a]ll th[e] evidence showed was that Welch entered

[Rossi’s] residence and that [Welch] emerged [30 minutes] later carrying

the same bag he carried into [Rossi’s] residence.” Id.

     We must disagree.     Our deferential standard of review requires this

Court to view the evidence in the light most favorable to the Commonwealth

as the verdict winner.   Stokes, 38 A.3d at 853.     Applying this standard

here, we must conclude that the Commonwealth’s evidence was sufficient to

permit the fact-finder to reasonably infer a conspiratorial agreement

between Rossi and Welch to distribute prescription drugs.      Officer Spicer

observed Welch and Ms. Celli enter 2329 Hutchinson Street with a

multicolored bag and remain in the residence for about 30 minutes. Id. at

73, 75-76. During that time, Rossi exited his residence and engaged in a

narcotics transaction in front of 2329 Hutchinson. Id. at 75-76. Thereafter,

Rossi, Welch, Ms. Celli and Bowen exited Rossi’s residence.    Id. at 75-76.

Welch and Ms. Celli returned to the gold vehicle with the multicolored bag,

and Bowen got in a burgundy vehicle. Id. at 75-76, 83-84. Bowen followed

Welch to York and Cedar Streets, which was located in close proximity to

Welch’s apartment. Id. at 78-80, 83-84.

     The police soon thereafter discovered that Welch’s multicolored bag

contained a large quantity of prescription drugs. Id. at 84-86. After Officer



                                   - 11 -
J-S29008-13


Spicer obtained search and seizure warrants, the police searched Rossi’s

residence and Welch’s apartment.        Id. at 86, 90.    Critically, the police

recovered, inter alia, numerous Oxycontin, Vicodin, and Percocet, from both

locations.   Id. at 87-88, 90-93.   From this evidence, the fact-finder could

reasonably infer that Welch obtained prescription drugs from his apartment

to supply Rossi with the prescription drugs found at Rossi’s residence.

      Rossi next challenges the sufficiency of the evidence to support his

conviction for PIC. To be convicted of PIC, the Commonwealth must prove

that the defendant “possesses any instrument of crime with intent to employ

it criminally.” 18 Pa.C.S.A. § 907(a). Section 907(d) defines an instrument

of crime as “[a]nything used for criminal purposes and possessed by the

actor under circumstances not manifestly appropriate for lawful uses it may

have.” 18 Pa.C.S.A. § 907(d). Possession may be constructive:

             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. Walker, 874 A.2d 667, 677-78 (Pa. Super. 2005)

(citation omitted).




                                     - 12 -
J-S29008-13


      Rossi points out that the gun was found inside a safe with a bottle of

pills prescribed to Mary Bowen, and contends that “because the gun was not

easily accessed and was never used or brandished[,] the conclusion that it

was an instrument of crime was error because of the absence of proof that

appellant had the requisite intent to make out the crime.” Rossi’s Brief at

21. Even if not easily accessible, used, or brandished, however, Rossi does

not deny either his ability to access the gun or his knowledge of the gun’s

existence. Here, the police discovered the gun, a bottle of Percocet, and a

life insurance policy in Rossi’s name in a safe located in the basement of

Rossi’s residence. N.T., 2/2/2012, at 87. Percocet pills were also found in

Rossi’s bedroom on the second floor of his residence. Id. at 87-88. Thus,

the finder of fact could reasonably have concluded that the gun was located

near the same type of drugs found in Rossi’s bedroom and that Rossi could

access the gun at will, given that the safe also housed a life insurance policy

in his name. Because we must view this evidence in the light most favorable

to the Commonwealth as the verdict winner, we conclude that the evidence

presented by the Commonwealth was sufficient to show that Rossi

constructively possessed the gun in connection with the prescription drugs in

his residence.1



1
    We admonish the Commonwealth for citing this Court’s decision in
Commonwealth v. Grahame, 947 A.2d 762, 764 (Pa. Super. 2008) for the
validity of the proposition that guns and drugs go hand in hand.
Commonwealth’s Brief at 10. In Grahame, this Court upheld a protective


                                    - 13 -
J-S29008-13


      For these reasons, no relief is due on Rossi’s second issue on appeal.

      Finally, during the pendency of this direct appeal, Rossi filed with this

Court a motion pursuant to Rule 720 of the Pennsylvania Rules of Criminal

Procedure requesting a remand to the trial court for a new trial or an

evidentiary hearing based on after-discovered evidence. Rossi’s motion cites

to a December 7, 2012 newspaper article in The Philadelphia Inquirer

discussing the transfer of certain members of the Philadelphia police

department, including Officer Spicer, to lower level positions because the

Philadelphia District Attorney’s Office had determined that the credibility of

the officers had been severely damaged by recent events (including

complaints of false arrest, filing fraudulent reports, and the use of excessive

force).




weapons search of a guest’s purse while the guest was in a house being
searched by police. Id. In so doing, we noted that “drugs and guns
frequently go hand in hand.” Id.

The decision by this Court in Grahame, however, was subsequently
reversed by our Supreme Court in Commonwealth v. Grahame, 607 Pa.
389, 7 A.3d 810 (2010). Therein, the Supreme Court reiterated that “courts
cannot abandon the totality-of-the-circumstances test and rely exclusively
upon the preconceived notion that certain types of criminals regularly carry
weapons.” Id. at 399, 7 A.3d at 816. In reversing this Court, the Supreme
Court pointed out that the Officer admitted that she “conducted a protective
search of Appellant's purse based on a generalization that firearms are
commonly found in close proximity to illegal drugs” and in the absence of
“facts that supported an objectively reasonable belief that Appellant was
armed and dangerous, the Superior Court's decision cannot be sustained.”
Id. at 401, 7 A.3d at 817. Thus, the Commonwealth’s reliance on this
Court’s decision in Grahame was unquestionably misplaced.


                                    - 14 -
J-S29008-13


      In its recent decision in Castro, our Supreme Court ruled that when a

motion for a new trial based on after-discovered evidence is filed with this

Court, a remand for an evidentiary hearing is appropriate only if said motion

references the potential evidence that would be relied upon to support the

request, including the “actual testimony, physical evidence, documentation

or other type of evidence” demonstrating allegations of police wrongdoing.

Id. at 827. In this regard, the Supreme Court emphasized that the mere

citation to a newspaper article “’pointing to’ allegations that if true have the

potential to aid [the appellant’s] cause” is, without more, insufficient to

support a Rule 720 motion. Id. at 828.

      Here Rossi’s Rule 720 motion cites to the above-referenced newspaper

article but does not articulate what evidence he would present at the

evidentiary hearing on remand.      Accordingly, in accordance with Castro,

Rossi’s motion must be denied.2

      Judgment of sentence affirmed.          Motion to remand for evidentiary

hearing is denied.




2
    Our denial of Rossi’s motion does not preclude him from seeking
appropriate relief on these grounds pursuant to the Post Conviction Relief
Act, 42 Pa.C.S.A. §§ 9541-46.


                                     - 15 -
J-S29008-13


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/5/2014




                          - 16 -
