J-S95040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :      IN THE SUPERIOR COURT OF
                                             :            PENNSYLVANIA
             v.                              :
                                             :
ANTHONY WILLIAMS,                            :
                                             :
                   Appellant                 :               No. 19 EDA 2016

           Appeal from the Judgment of Sentence November 19, 2015
             in the Court of Common Pleas of Philadelphia County,
              Criminal Division, No(s): CP-51-CR-0013745-2014

BEFORE: STABILE, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED MARCH 29, 2017

      Anthony Williams (“Williams”) appeals from the judgment of sentence

imposed following his convictions of possession of a controlled substance,

possession of a controlled substance with intent to deliver, and criminal

conspiracy. See 35 P.S. § 780-113(a)(16), (30); 18 Pa.C.S.A. § 903. We

affirm.

      On August 13, 2014, Police Officer William Forbes (“Officer Forbes”)

was conducting surveillance in an unmarked police car parked on the 2500

block of North Napa Street in Philadelphia. From approximately 7:20 p.m.,

until 8:03 p.m., Officer Forbes observed Williams on the porch of an

abandoned house (hereinafter “the house”).           Officer Forbes stated that

Williams    engaged   in   multiple   drug   transactions,    wherein   individuals

approached Williams on the porch, engaged in a brief conversation with him,

and handed him U.S. currency.          Thereafter, Williams and some of the
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individuals entered the house, and emerged within twenty-five seconds to a

minute.

     At one point during Officer Forbes’s surveillance, Williams was

approached by Latoya Barron (“Barron”), with whom he had a brief

conversation before she left the premises. Sometime later, Barron returned

to the property and entered the house.       At this time, Williams left the

premises. While Williams was away, a man approached the house and was

met at the door by Barron. The man entered the property and left before

Williams returned.      When Williams returned a few minutes later, he

stationed himself back on the porch.

     Shortly thereafter, Officer Forbes and his backup arrived at the

property and arrested Williams. The officers entered the house and found

that every room except the living room was unlit and filled with trash. In

the living room, they found Barron sitting at a coffee table with six Ziploc

bags containing a total of 3.5 grams of marijuana, $20.00 in U.S. currency,

and multiple pill bottles containing prescription drugs, including oxycodone

and Xanax pills.     None of the pill bottles belonged to either Williams or

Barron.

     Following a bench trial, Williams was convicted of the above-

mentioned crimes. Williams was sentenced to two to four years in prison for




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the charge of possession with intent to deliver, to be followed by two years

of probation for criminal conspiracy.1

      On December 18, 2015, Williams filed a timely Notice of Appeal. On

February 19, 2016, the trial court entered an Order directing Williams to file

a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal,

within twenty-one days after entry of the Order. On March 2, 2016, the trial

court entered an amended Order directing the filing of a Pa.R.A.P. 1925(b)

concise statement, no later than twenty-one days after entry of the Order.

Williams failed to file a concise statement within twenty-one days.

Nevertheless, the trial court issued an Opinion addressing the sufficiency of

the evidence. Thereafter, Williams filed a Rule 1925(b) Concise Statement,

raising a sufficiency of evidence claim.

      On appeal, Williams raises the following question for our review: “Did

the [t]rial [c]ourt [err] when it found that the Commonwealth presented

sufficient evidence to find [Williams] guilty [of all charges] beyond a

reasonable doubt?” Brief for Appellant at 3.

      Prior to addressing Williams’s claim, we must determine whether he

properly preserved it for our review. It is well-settled that when a trial court

orders an appellant to file a Rule 1925(b) concise statement, he must

comply to preserve his claims on appeal.       See Commonwealth v. Lord,

719 A.2d 306, 309 (Pa. 1998). Where “an appellant in a criminal case was

1
 The possession of a controlled substance sentence merged for sentencing
purposes.


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ordered to file a Statement and fails to do so, such that the appellate court

is convinced that counsel has been per se ineffective, the appellate court

shall remand for the filing of a [s]tatement nunc pro tunc and for the

preparation and filing of an opinion by the judge.”        Pa.R.A.P. 1925(c)(3).

However, “[w]hen counsel has filed an untimely Rule 1925(b) statement and

the trial court has addressed those issues[,] we need not remand and may

address   the   merits   of   the   issues   presented.”   Commonwealth v.

Thompson, 39 A.3d 335, 340 (Pa. Super. 2012).

      Here, the trial court ordered Williams to file a Rule 1925(b) concise

statement. Williams’s counsel was per se ineffective for failing to timely file

the Concise Statement until after the trial court had issued its Opinion.

However, because the trial court addressed Williams’s sole issue on appeal in

its Opinion, we will address the merits of Williams’s issue. See id.

      We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:

             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, or
     part or none of the evidence.

Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citations

omitted).

     Williams contends that the evidence was insufficient to support his

convictions. See Brief for Appellant at 12, 18-19. Williams first argues that

the evidence does not support the possession of a controlled substance

conviction because he did not physically possess the drugs recovered from

the house at the time of his arrest. Id. at 13. Williams further argues that

he did not constructively possess the drugs. See id. at 13, 15-17. Williams

also asserts that the evidence did not support his possession with intent to

deliver conviction, as there was no evidence that the individuals police

observed entering the house had, in fact, purchased controlled substances.

Id. at 17-18. Finally, Williams argues that the evidence presented at trial

was insufficient to sustain his criminal conspiracy conviction.    Id. at 18.

Williams asserts that Barron was not in the house at the time of the alleged

drug deliveries; thus, there was no evidence of an agreement to aid in the

conspiracy. Id.

     A person may be convicted of possession of a controlled substance

where he knowingly possesses a controlled substance, when not registered

to do so under the Controlled Substance, Drug, Device, and Cosmetic Act.


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35 P.S. § 780-113(a)(16). When contraband is not found on a defendant’s

person, the Commonwealth must establish constructive possession.           See

Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013).

            In order to uphold a conviction for possession of narcotics
      with the intent to deliver, the Commonwealth must prove
      beyond a reasonable doubt that the defendant possessed a
      controlled substance and did so with the intent to deliver it. The
      intent to deliver may be inferred from an examination of the
      facts and circumstances surrounding the case. Factors which
      may be relevant in establishing that drugs were possessed with
      the intent to deliver include the particular method of packaging,
      the form of the drug, and the behavior of the defendant.

Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000)

(citations omitted).

      “To sustain a conviction for criminal conspiracy, the Commonwealth

must establish that the defendant (1) entered 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. Rios, 684 A.2d 1025, 1030 (Pa. 1996).

“In most cases of conspiracy, it is difficult to prove an explicit or formal

agreement; hence, the agreement is generally established via circumstantial

evidence, such as by relations, conduct, or circumstances of the parties or

overt acts on the part of the co-conspirators.”         Commonwealth v.

Johnson, 985 A.2d 915, 920 (Pa. 2009) (citation and quotation marks

omitted); see also Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa.

Super. 2000) (stating that the “overt act need not be committed by the



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defendant; it need only be committed by a co-conspirator.”) (citation

omitted).   Further, “[w]here the conduct of the parties indicates they are

acting in concert with a corrupt purpose in view, the existence of a

conspiracy may be properly inferred.” Commonwealth v. Clark, 746 A.2d

1128, 1137 (Pa. Super. 2000).

      Here, Officer Forbes, while conducting surveillance, observed Williams

standing guard on the porch of the house and engaging in multiple drug

transactions. See N.T. 4/15/15, at 7-15, 17-20, 21-23, 30-31, 44. Two of

the individuals seen interacting with Williams were stopped by backup

officers. See id. at 8-10. One of these individuals had on his person oval-

shaped blue pills with the stamp “GG-258” (later identified as Xanax pills),

which were identical to the pills recovered from inside the house upon

Barron’s arrest. See id. at 9, 99. In the midst of these transactions, Barron

approached Williams on the porch, conversed with him briefly and left. See

id. at 10, 13, 36-37, 52. Barron returned about 30 minutes later and went

inside the house. See id. at 12, 55, 58. After Barron entered the house,

Williams left the premises. See id. at 12, 54-55. During this time, Barron

allowed another individual to enter the house.       See id. at 55-58.    The

individual left prior to Williams’s return.   See id. at 13, 58.   Thereafter,

officers arrested Williams. See id. at 13, 58, 60.

      Once inside the house, officers recovered six Ziploc baggies containing

marijuana, and several prescription pill bottles. See id. at 66, 87-89, 96-



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97, 99. The pill bottles were prescribed to three people, none of whom were

Williams or Barron. See id. at 87-88. The officer searched Barron’s purse,

and recovered a sandwich bag containing marijuana and pill bottles

containing oxycodone and Xanax. See id. at 93-94.

      Viewing the evidence in a light most favorable to the Commonwealth,

we conclude that the circumstantial evidence established an agreement

between Williams and Barron to possess and deliver the drugs. See Clark,

746 A.2d at 1137.        In addition, even though Williams may not have

physically handled the drugs, he committed overt acts in the furtherance of

the illicit enterprise by serving as a gatekeeper and controlling access to the

drugs.   See Commonwealth v. McCall, 911 A.2d 992, 997 (Pa. Super.

2006) (holding that while the defendant never actually handled the drugs,

he took an active role in the conspiracy by acting as lookout and receiving

money from the drug transactions).       Thus, we conclude that the evidence

was   sufficient   to   support   Williams’s   conspiracy   conviction.   See

Commonwealth v. Ruiz, 819 A.2d 92, 97-98 (Pa. Super. 2003) (stating

that an appellant acting in concert with his cohort sustained a conspiracy

conviction).

      Moreover, because the evidence is sufficient to prove that Williams

conspired with Barron to sell drugs, it is also sufficient to sustain his

convictions of possession of a controlled substance and possession of a

controlled substance with intent to deliver. See Commonwealth v. Perez,



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931 A.2d 703, 709 (Pa. Super. 2007) (concluding that “[b]ecause the

Commonwealth proved conspiracy, it did not need to prove [a]ppellant’s

constructive possession of the drugs[,]” as the drugs in the home were

attributable to appellant and his co-conspirator); see also Commonwealth

v. Holt, 711 A.2d 1011, 1017 (Pa. Super. 1998) (holding that “when the

appellant was convicted of conspiracy to possess with intent to deliver the

drugs … he is also culpable for the crime itself, that is possession with intent

to deliver[.]”).2

      We conclude that the evidence of record, viewed in the light most

favorable to the Commonwealth as verdict winner, was sufficient to enable

the fact-finder to find every element of each crime beyond a reasonable

doubt.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/29/2017




2
  We additionally note that the totality of the evidence demonstrated
Williams constructively possessed, and intended to deliver the drugs. See,
e.g., Clark, 746 A.2d at 1136-37.


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