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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DEBRA ABRAM,
Appellant No. 1221 WDA 2014
Appeal from the Judgment of Sentence June 26, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003386-2013
BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 19, 2015
Appellant, Debra Abram, appeals from the judgment of sentence
entered following her conviction of drug-related offenses. We affirm.
Following a nonjury trial on April 14, 2014, Appellant was convicted of
two counts of possession with intent to deliver a controlled
substance(“PWID”);1 one count of possession of a controlled substance;2 and
one count of conspiracy.3 On June 26, 2014, Appellant was sentenced to a
period of two years of probation at count 1 (PWID) with no further penalty at
____________________________________________
1
35 P.S. § 780-113(a)(30).
2
35 P.S. § 780-113(a)(16).
3
18 Pa.C.S. § 903(a)(1).
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the remaining counts. Appellant filed a timely notice of appeal. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
Was the evidence insufficient as a matter of law to support the
convictions for delivery, possession with intent to deliver, and
possession of heroin, and criminal conspiracy, insofar as no
evidence was presented to prove beyond a reasonable doubt
that [Appellant] knew the substance in the container that she
allegedly retrieved from her purse and gave to her husband was
heroin, and that she agreed to and had the intent to possess and
deliver a controlled substance?
Appellant’s Brief at 4.
When reviewing challenges to the sufficiency of the evidence, we
evaluate the record in the light most favorable to the Commonwealth as
verdict winner, giving the prosecution the benefit of all reasonable inferences
to be drawn from the evidence. Commonwealth v. Duncan, 932 A.2d
226, 231 (Pa. Super. 2007) (citation omitted). “Evidence will be deemed
sufficient to support the verdict when it establishes each material element of
the crime charged and the commission thereof by the accused, beyond a
reasonable doubt.” Id. (quoting Commonwealth v. Brewer, 876 A.2d
1029, 1032 (Pa. Super. 2005)). However, the Commonwealth need not
establish guilt to a mathematical certainty, and it may sustain its burden by
means of wholly circumstantial evidence. Duncan, 932 A.2d at 231.
Moreover, this Court may not substitute its judgment for that of the
factfinder, and where the record contains support for the convictions, they
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may not be disturbed. Id. Lastly, we note that the finder of fact is free to
believe some, all, or none of the evidence presented. Commonwealth v.
Hartle, 894 A.2d 800, 804 (Pa. Super. 2006).
In order to uphold a conviction for PWID pursuant to 35 P.S. § 780-
113(a)(30), the Commonwealth must prove beyond a reasonable doubt that
the defendant possessed a controlled substance and did so with the intent to
deliver it. Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super.
2000) (en banc). The intent to deliver may be inferred from an examination
of the facts and circumstances surrounding the case. Commonwealth v.
Conaway, 791 A.2d 359, 362-363 (Pa. Super. 2002).
Regarding the crime of simple possession of narcotics, 35 P.S. § 780-
113(a)(16) prohibits
[k]nowingly or intentionally possessing a controlled or
counterfeit substance by a person not registered under this act,
or a practitioner not registered or licensed by the appropriate
State board, unless the substance was obtained directly from, or
pursuant to, a valid prescription order or order of a practitioner,
or except as otherwise authorized by this act.
We are mindful that constructive possession can be proven by
circumstantial evidence and the “requisite knowledge and intent may be
inferred from examination of the totality of the circumstances.”
Commonwealth v. Clark, 746 A.2d 1128, 1136 (Pa. Super. 2000),
(quoting Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super.
1996)). Moreover, we have held that circumstantial evidence is reviewed by
the same standard as direct evidence – that is, that a decision by the trial
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court will be affirmed “so long as the combination of the evidence links the
accused to the crime beyond a reasonable doubt.” Commonwealth v.
Johnson, 818 A.2d 514, 516 (Pa. Super. 2003) (citations omitted). “[T]he
Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
evidence.” Id.
Additionally, pursuant to the Crimes Code, conspiracy is defined 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. § 903(a).
A conspiracy is almost always proved through circumstantial
evidence. Commonwealth v. Swerdlow, 636 A.2d 1173, 1176
(Pa. Super. 1994). “The conduct of the parties and the
circumstances surrounding their conduct may create ‘a web of
evidence’ linking the accused to the alleged conspiracy beyond a
reasonable doubt.” [Commonwealth v.] Johnson, 719 A.2d
[778,] 785 [(Pa. Super. 1998) (en banc), appeal denied, 739
A.2d 1056 (Pa. 1999)].
Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002).
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Our review of the record reflects ample evidence to support the trial
court’s conclusion that Appellant committed the crimes in question. The trial
court accurately summarized the testimony presented at the waiver trial as
follows:
At trial the Commonwealth called Sergeant Neal Marabello
of the Pittsburgh Police Department who testified that he was
working as a narcotics detective on October 4, 2012 when he
made arrangements to purchase $70 worth of heroin from
[Appellant’s] husband. Sergeant Marabello had contacted
[Appellant’s] husband by cell phone and was instructed to
proceed to an address on Zara Street. When he arrived,
Sergeant Marabello met [Appellant’s] husband and gave him the
$70. [Appellant’s] husband then called a white male from his
residence and handed him the money. The white male began to
walk towards the 200 block of Zara Street with the money at
which point [Appellant] approached the scene and was
introduced to Sergeant Marabello as Mr. Abram’s wife, Deb. (T.,
p. 11) Sergeant Marabello was then instructed to enter the
residence to complete the transaction. Sergeant Marabello
testified that he resisted going into the home, but [Appellant]
“looked at me and stated that I had to come into the residence
because she has it.” (T., p. 11) (Emphasis added)[.] Before
entering the residence [Appellant’s] husband retrieved the
money from the man he had handed it to and Marabello,
[Appellant] and her husband entered the residence. Sergeant
Marabello then testified as follows:
“In the kitchen the co-defendant Shawn Abrams
handed her my money. She produced a round
container. It looked like a snuff container. I believe
it came from her purse. Inside of it was two or three
bundles of heroin, twenty to thirty stamp balls. She
gave some of those to her husband Shawn who then
handed me six bags. We walked to the door. He
unlocked the door and I left the residence. I went
back to the narcotics office, pulled her PennDOT
photo where I positively identified her as Debra
Abrams. We field-tested the heroin with a Scotts
field test kit. It tested positive for heroin. It was
sent to the Crime Lab. At Lab Number 12LAB09557
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it tested positive for heroin. They only tested one of
the six bags. It tested as .02 grams.” (T., p. 12)
The authenticity of the crime lab report was stipulated to.
(T., pp. 12-13) After an appropriate colloquy, [Appellant]
elected not to testify or to present character testimony. (T., pp.
16-18) [Appellant] was then found guilty of all charges.
Trial Court Opinion, 11/19/14, at 2 (emphasis in original).
In addressing Appellant’s claim, the trial court provided the following
analysis:
The record in this case clearly establishes that the
evidence was sufficient to sustain the conviction. [Appellant]
was an active participant in the sale of the heroin. Although
Sergeant Marabello initially handed the money for the purchase
of the heroin to [Appellant’s] husband, it was [Appellant] who
instructed Sergeant Marabello to enter the residence to complete
the transaction because she had the heroin in her possession.
Once inside the residence, the money was passed to [Appellant]
and she produced the stamp bags from a container in her purse
which she then handed to her husband who delivered them to
Sergeant Marabello. Any contention that [Appellant] did not
know that she was in possession of a controlled substance and
was not an active participant in the delivery of the heroin is
completely contradicted by the record. This is not a case in
which [Appellant] was merely present at the scene of the crime
or happened to witness its commission. The evidence
establishes that she was a willing, active and knowing participant
in the possession, sale and delivery of the heroin. Consequently
the evidence was sufficient to support the conviction on each
count.
Trial Court Opinion, 11/19/14, at 4.
We agree. Evaluating the record in the light most favorable to the
Commonwealth as verdict winner and giving the prosecution the benefit of
all reasonable inferences to be drawn from the evidence, we conclude there
was sufficient evidence to establish that Appellant was in possession of
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heroin and possessed it with the intent to, and did in fact, deliver it.
Additionally, the facts support the conclusion that Appellant was involved in
a conspiracy to sell and deliver the heroin. Therefore, the conviction for
conspiracy to deliver the heroin was supported by sufficient evidence of
record. Accordingly, Appellant’s claims of insufficient evidence with regard
to her convictions of these crimes are meritless.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/19/2015
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