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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
THEOPHILUS L. BALDWIN
Appellant No. 385 MDA 2015
Appeal from the Judgment of Sentence December 18, 2014
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0000302-2014
BEFORE: PANELLA, J., OTT, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED MARCH 01, 2016
Appellant, Theophilus L. Baldwin, appeals from the judgment of
sentence entered by the Honorable Pamela A. Ruest, Court of Common Pleas
of Centre County. We affirm.
The relevant facts and procedural history are as follows. Baldwin’s
convictions arise out of a conspiracy with several other individuals to possess
heroin with the intent to deliver it between August/September 2012 and
February 2013. Baldwin’s involvement was documented by enforcement
agents of the Office of Attorney General (OAG) pursuant to a wiretap
executed on a co-conspirator’s phone. Baldwin’s involvement was also
captured on video surveillance footage.
Following a jury trial, Baldwin was convicted of possession with intent
to deliver (PWID), conspiracy—PWID, delivery of a controlled substance, and
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criminal use of a communication facility. The trial court sentenced Baldwin to
an aggregate term of 10 to 20 years’ imprisonment. Baldwin subsequently
filed a post-sentence motion for reconsideration of sentence, which the trial
court granted. Thereafter, the trial court amended the original sentence and
sentenced Baldwin to an aggregate term of 4 to 8 years’ imprisonment. This
timely appeal followed.
On appeal, Baldwin raises four issues for us to consider. In his first
issue, Baldwin challenges the sufficiency of the Commonwealth’s evidence to
support his convictions for PWID, conspiracy—PWID, delivery of a controlled
substance, and criminal use of a communication facility. “The standard for
review is whether the evidence admitted at trial, and all reasonable
inferences drawn therefrom, when viewed in the light most favorable to the
Commonwealth as verdict winner, was sufficient to enable the factfinder to
conclude that the Commonwealth established all of the elements of the
offense beyond a reasonable doubt.” Commonwealth v. Thompson, 922
A.2d 926, 928 (Pa. Super. 2007) (citation omitted).
Baldwin contends that the Commonwealth’s evidence was insufficient
to convict him of PWID. Specifically, Baldwin argues that the Commonwealth
failed to prove that he possessed with the intent to deliver over 50 grams of
heroin, as provided in the bill of particulars, because no evidence of drug
weights was presented at trial. See Appellant’s Brief, at 17. Thus, Baldwin
maintains that “because the Commonwealth failed to prove that [he]
delivered over the specified amount of heroin stated in their bill of
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particulars, the evidence was insufficient to convict [him] of Count I.” Id.
We disagree.
To convict a person of PWID, the Commonwealth must prove beyond a
reasonable doubt that the person possessed a controlled substance with the
intent to deliver it and without legal authorization to do so. See
Commonwealth v. Bricker, 882 A.2d 1008, 1015 (Pa. Super. 2005); see
also 35 P.S. § 780-113(a)(30). “The amount of the controlled substance is
not ‘crucial to establish an inference of possession with intent to deliver, if …
other facts are present.’” Commonwealth v. Ratsamy, 934 A.2d 1233,
1237 (Pa. Super. 2007) (citation omitted). “In determining whether there is
sufficient evidence to support a PWID conviction, all facts and circumstances
surrounding the possession are relevant, and the Commonwealth may
establish the essential elements of the crime wholly by circumstantial
evidence.” Bricker, 882 A.2d at 1015 (citation omitted).
Here, Agent Thomas J. Moore, a narcotics agent with the OAG,
testified regarding the intercepted phone calls, text messages, and video
surveillance implicating Baldwin in a conspiracy to sell heroin. See N.T.,
Trial, 11/3/14, at 59-71, 74-85. Five witnesses testified that they purchased
heroin from Baldwin. See id., at 116-119, 126, 135-136, 142-143, 157-158,
166-169, 195-197, 209-210, 290. All of the witnesses provided specific
details regarding their interactions with Baldwin, including the price,
quantity, and quality of the heroin they purchased, as well as the general
location where the transactions took place. See id. Thus, viewing the
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evidence in the light most favorable to the Commonwealth as the verdict
winner, we conclude that there was sufficient evidence for upholding
Baldwin’s PWID conviction. Based on the foregoing reasons, we also
conclude that the evidence presented was plainly sufficient to support
Baldwin’s convictions for delivery of a controlled substance 1 and criminal use
of a communication facility.2
Baldwin’s final sufficiency challenge concerns his conspiracy to commit
PWID conviction. Baldwin argues that there was insufficient evidence to
convict him of PWID; thus, there was insufficient evidence to convict him of
conspiracy to commit PWID. See Appellant’s Brief, at 20-21. He further
maintains that the Commonwealth failed to prove that he was “acting in
concert [with others] under a prior agreement to deliver any heroin”; thus,
his conspiracy conviction cannot stand. Appellant’s Brief, at 21. We disagree.
“To sustain a conviction of criminal conspiracy[,] … [t]he
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) an overt act done in
furtherance of the conspiracy.” Bricker, 882 A.2d at 1017 (citation
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1
35 P.S. § 780-113(a)(30).
2
18 Pa.C.S.A. § 7512(a).
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omitted); see also 18 Pa.C.S.A. § 903. Circumstantial evidence may suffice
as proof of the conspiracy. See Bricker, 822 A.2d at 1017.
As we previously stated, the evidence presented was sufficient to
convict Baldwin of PWID. In viewing the evidence in the light most favorable
to the Commonwealth, we also conclude that the evidence presented was
sufficient to convict Baldwin of criminal conspiracy to commit PWID. The
intercepted telephone calls, text messages, and video surveillance
established that Baldwin regularly communicated with others about the
possession and delivery of heroin. Thus, it was eminently reasonable for the
jury to infer that Baldwin conspired with these individuals to commit PWID.
Accordingly, the Commonwealth presented sufficient evidence of criminal
conspiracy. Because there was sufficient evidence to support all four
convictions, Baldwin’s first issue on appeal is meritless.
In his second issue, Baldwin contends that the trial court erred when it
declined to deliver Jury Instruction 3.14 (Consciousness of Guilt, Flight, or
Concealment) with respect to Mandy Mabry’s failure to appear and testify at
trial. The record reflects that Ms. Mabry was to be called as a witness for the
Commonwealth; however, the Commonwealth was unable to locate her to
serve her with a subpoena to testify at trial. See N.T., Trial, 11/4/14, at 4-9.
Baldwin argues that the trial court should have granted his request to
provide the instruction to the jurors because there was evidence that Ms.
Mabry “fled” prior to trial. Appellant’s Brief, at 27.
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“A trial court’s denial of a request for a jury instruction is disturbed on
appeal only if there was an abuse of discretion or an error of law.”
Commonwealth v. Johnson, 107 A.3d 52, 89 (Pa. 2014) (citation
omitted). “It is axiomatic that ‘jury instructions … are not warranted unless
there is evidence to support such instructions.’” Commonwealth v.
Milligan, 693 A.2d 1313, 1318 (citation omitted).
The suggested instruction reads, in pertinent part, as follows:
Generally speaking, when a crime has been committed and a person
thinks he or she is or may be accused of committing it and he or she
flees or conceals himself or herself, such flight or concealment is a
circumstance tending to prove the person is conscious of guilt. Such
flight or concealment does not necessarily show consciousness of guilt
in every case. A person may flee or hide for some other motive and
may do so even though innocent. Whether the evidence of flight or
concealment in this case should be looked at as tending to prove guilt
depends upon the facts and circumstances of this case and especially
upon motives that may have prompted the flight or concealment.
Pa.S.S.J.I. (Crim) 3.14.
Although Jury Instruction 3.14 was written specifically for the actions
of the defendant, not another actor, this Court has held that “once a
defendant properly introduces evidence that someone else fled the crime
scene, the trial court is duty bound to instruct the jury concerning the
significance of this evidence.” Milligan, 693 A.2d at 1317 (emphasis added).
In the instant case, there was no evidence presented showing that Ms.
Mabry fled a crime scene. Thus, there were no circumstances present
warranting a flight or consciousness of guilt jury instruction. Accordingly, the
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trial court properly declined Baldwin’s request to give Jury Instruction 3.14.
Baldwin’s second issue on appeal is meritless.
Baldwin’s third issue on appeal was not included in his Rule 1925(b)
statement. In his Rule 1925(b) statement, Baldwin asserts that his
constitutional right to confrontation was violated when the trial court allowed
Agent Moore to testify regarding his interpretation of the wiretapped
discussions between Baldwin and Ms. Mabry. However, in his brief, Baldwin
argues that the wiretapped conversations constitute hearsay without a valid
exception. See Appellant’s Brief, at 27-28. Because Baldwin did not raise
this issue in his Rule 1925(b) statement, it is deemed waived. See
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not
raised in a 1925(b) statement will be deemed waived.”)
In his fourth and final issue, Baldwin challenges the discretionary
aspects of his sentence. Baldwin contends that the trial court erred when it
determined that the weight of the heroin at issue for count I (PWID) and
count II (conspiracy—PWID) was more than 50 grams.3 See Appellant’s
Brief, at 30.
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3
At first glance, it may appear as if this sentence violates the rule against
judicially imposed mandatory minimums set forth in Alleyne v. United
States, 133 S.Ct. 2151 (2013). However, this case does not violate Alleyne
because the sentence was imposed pursuant to advisory, rather than
mandatory, guidelines; thus, the Sixth Amendment is not implicated. See
United States v. Booker, 125 S.Ct. 738, 750 (2005).
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Prior to addressing this issue, we must determine if Baldwin’s claim is
properly before us. Challenges to the discretionary aspects of sentencing are
not automatically reviewable as a matter of right. See Commonwealth v.
Hunter, 768 A.2d 1136, 1144 (Pa. Super. 2001). “When challenging the
discretionary aspects of a sentence, an appellant must invoke the appellate
court’s jurisdiction by including in his brief a separate concise statement
demonstrating that there is a substantial question as to the appropriateness
of the sentence under the Sentencing Code.” Commonwealth v. McNear,
852 A.2d 401, 407 (Pa. Super. 2004) (citations omitted); see also Pa.R.A.P.
2119(f). An appellant’s Rule 2119(f) statement is required to include an
articulation of “what particular provision of the [Sentencing] Code is
violated, what fundamental norms the sentence violates, and the manner in
which it violates the norm.” Commonwealth v. Zirkle, 107 A.3d 127, 132
(Pa. Super. 2014) (citation omitted). “If a defendant fails to include an issue
in his Rule 2119(f) statement, and the Commonwealth objects, then the
issue is waived and this Court may not review the claim.” Commonwealth
v. Karns, 50 A.3d 158, 166 (Pa. Super. 2012) (citation omitted).
Baldwin failed to file a Rule 2119(f) statement in his brief, and the
Commonwealth objected to this failure. See Appellee’s Brief, at 26-27.
Consequently, Baldwin has waived this issue.
Because we conclude that none of Baldwin’s issues on appeal merit
relief, we affirm the judgment of sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/2016
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