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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DWAYNE WILLIAMS, :
:
Appellant : No. 565 EDA 2013
Appeal from the Judgment of Sentence February 1, 2013,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0002086-2012
BEFORE: DONOHUE, MUNDY and STABILE, JJ.
MEMORANDUM BY DONOHUE, J.: FILED OCTOBER 01, 2014
Appellant, Dwayne Williams (“Williams”), appeals from the judgment
of sentence dated February 1, 2013, following his convictions after a non-
jury trial of possession of a controlled substance with the intent to deliver
(“PWID”), 35 P.S. § 780-113(a)(30), and criminal conspiracy, 18 Pa.C.S.A. §
903(a). Williams contends that the evidence was not sufficient to support
these convictions. For the reasons that follow, we affirm the judgment of
sentence.
In its written opinion pursuant to Rule 1925(a) of the Pennsylvania
Rules of Appellate Procedure, the trial court provided the following brief
summary of the evidence introduced at trial:
On September 29, 2011, Police Officer Mich Vech
was conducting undercover narcotics surveillance
when he observed [Williams] in the 1500 block of
West Duncannon Street of Philadelphia. [Williams]
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was standing at the corner and approximately ten to
fifteen feet away from a blue and white passenger
van. (N.T., 10/4/12 at 9, 10).
Approximately fifteen minutes after arriving on
location, Officer Vech observed [Williams] wave over
an unidentified male and initiate a conversation with
him. After speaking with the male, [Williams] turned
toward his co-Defendant Rafael Ingram (who was
standing next to the passenger van), yelled at him
and then made a signal to Ingram by raising his
hand and putting up his index finger as to indicate
the number “one.” At this point, the male walked
over to co-defendant Ingram and handed him an
unknown amount [of] United States currency. Upon
receiving the currency, Ingram entered the van
through the passenger side door. Shortly thereafter,
Ingram emerged from the van and reached into his
right pants pocket. He handed the male a plastic
bag filled with a green, leafy, seedy substance,
which Officer Vech believed to be marijuana. Officer
Vech then observed the male remove the contents
from the bag and roll it into a cigar, which he
smoked on location next to the van. (N.T. 10/4/12
at 11-13).
Ten minutes later, [Williams] flagged down another
male, later identified as Matthew Henson, who was
walking towards Duncannon Street. [Williams]
engaged Henson in a brief conversation and then
turned toward co-defendant Ingram (who was still at
the van) and shouted to him. While he was doing
this, [Williams] directed Henson to the van by
pointing his index finger. Henson walked towards
Ingram and handed him an unknown amount of
United States currency. Upon receipt of the
currency, Ingram entered the van and emerged
shortly thereafter. Ingram handed Henson a small
clear bag filled with marijuana []. (N.T. 10/4/12 at
12-13).
A few minutes after this transaction, Henson began
to walk away from the van. While walking away he
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also started to remove the contents of the plastic
bag and roll it into a cigar blunt. At this time, Officer
Vech relayed flash information to his backup officers
to make arrests. Officer Johnson stopped Henson at
1400 Duncannon Street. Prior to stopping Henson,
Officer Johnson observed him drop a lit, half-smoked
marijuana blunt onto the ground. After placing
Henson in custody, Officer Johnson recovered the
blunt, which later tested positive as marijuana. Just
prior to arresting co-Defendant Ingram, Officer David
Brzyski observed him throw two sandwich bags over
his left shoulder and onto the floor of the backseat of
the van. One of the bags contained 1.04 grams of
loose marijuana. [Williams] was arrested but no
money or narcotics were recovered from him. (N.T.
10/4/12 at 13-14, 39-40, 44).
The trial court credited the testimony of the police
officers based on their demeanor, their manner of
testifying, and the corroborated testimony.
Trial Court Opinion, 10/29/2013, at 1-2.
Based upon this evidence, the trial court found Williams guilty of PWID
and criminal conspiracy and sentenced him to five years of probation on
each charge, to be served concurrently. This appeal followed, in which
Williams raises a single issue for our consideration, namely whether the
evidence was sufficient to support his convictions. Williams argues that the
evidence did not prove that anyone ever handed him any money or that he
ever supplied any marijuana to anyone. Williams’ Brief at 8. He further
contends that no money, drugs, or automobile keys were found on his
person at the scene, and that no evidence demonstrates any intent on his
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part to commit an unlawful act or to agree with Ingram to commit an
unlawful act. Id.
We begin by setting forth our standard of review when reviewing a
sufficiency of the evidence claim:
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 factfinder. 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.
Commonwealth v. Kimmel, __ A.3d __, __, 2014 WL 4258819, at *6 (Pa.
Super. Aug. 29, 2014) (quoting Commonwealth v. Olsen, 82 A.3d 1041,
1046 (Pa. Super. 2013)).
To sustain a conviction of 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)
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an overt act done in furtherance of the conspiracy.
Circumstantial evidence may provide proof of the
conspiracy. 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.
Additionally, an 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. These factors may coalesce to establish a
conspiratorial agreement beyond a reasonable doubt
where one factor alone might fail.
Commonwealth v. Jones, 874 A.2d 108, 121–22 (Pa. Super. 2005)
(internal citations and quotation marks omitted).
When viewed in the light most favorable to the Commonwealth as
verdict winner, as our standard of review requires, the evidence here was
sufficient for the trial court, as the finder of fact, to determine that an
agreement existed between Williams and Ingram to sell marijuana. The
testimony of the police officers established that Williams and Ingram acted
together in concert, with Williams identifying and attracting customers and
then directing them to Ingram to complete the transactions. Williams’
shouts and hand signals to Ingram constituted overt acts in furtherance of
the conspiracy, and his coordinated efforts with Ingram established both the
agreement with Ingram to sell marijuana and his shared criminal intent with
Ingram to do so. See, e.g., Commonwealth v. Murphy, 844 A.2d 1228,
1239 (Pa. 2004) (“[W]e find, as did the Superior Court, that the jury could
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have found that Murphy and Rivas had an agreement whereby Murphy would
screen drug buyers before introducing them to Rivas based on Murphy's acts
of questioning the trooper and calling out to Rivas, and the evidence that
Rivas knew upon being called by Murphy that the trooper was interested in
buying drugs.”).
For a conviction of PWID, the evidence must show beyond a
reasonable doubt that the defendant possessed a controlled substance and
did so with the intent to deliver it. Commonwealth v. Bricker, 882 A.2d
1008, 1015 (Pa. Super. 2005); Commonwealth v. Conaway, 791 A.2d
359, 362 (Pa. Super. 2002). While it is true, as Williams argues, that no
evidence established either that he himself ever possessed marijuana (either
actually or constructively) or completed an exchange of currency for
marijuana, he was still properly convicted of PWID. As set forth
hereinabove, the evidence demonstrated the existence of a conspiracy with
Ingram to distribute marijuana, and thus Williams is responsible for all of
Ingram’s actions in furtherance of the conspiracy -- including Ingram’s
actual possession of marijuana and his sale of the same in street
transactions. See, e.g., Commonwealth v. Melvin, __ A.3d __, __, 2014
WL 4100200, at *30 (Pa. Super. Aug. 21, 2014); Commonwealth v.
Murphy, 795 A.2d 1025, 1038 (Pa. Super. 2002) (“Even if the conspirator
did not act as a principal in committing the underlying crime, he is still
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criminally liable for the actions of his coconspirators in furtherance of the
conspiracy.”), affirmed, 844 A.2d 1228 (Pa. 2004).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/1/2014
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