J-A05035-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONTAE R. DOWNES,
Appellant No. 898 EDA 2015
Appeal from the Judgment of Sentence November 7, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010315-2013
BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.:
This is an appeal from the judgment of sentence entered in the Court
of Common Pleas of Philadelphia County after the court, sitting as finder of
fact in Appellant’s bench trial, convicted him of Robbery, graded as a felony
of the first degree, 18 Pa.C.S. § 3701, Conspiracy to Commit Robbery, 18
Pa.C.s. § 903, Theft by Unlawful Taking, 18 Pa.C.S. § 3921, Simple Assault,
18 Pa.C.S. § 2701, Possessing an Instrument of Crime (“PIC”), Generally, 18
Pa.C.S. § 907, and Possession of a Small Amount of Marijuana, 35 P.S. §
780-113(a)(31). Sentenced to an aggregate sentence of three to six years’
incarceration for his robbery, conspiracy, and PIC offenses,1 Appellant now
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1
No further penalties were imposed on the remaining charges.
*Former Justice specially assigned to the Superior Court.
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challenges the sufficiency of evidence offered to support his convictions. We
affirm.
The trial court provides the following apt factual and procedural history
of the case:
On July 29, 2013, Dr. Hussanifat Habiburrahman and Abdul
Khaleque were working inside the Discount Plus variety store
located at 5135 Chestnut Street in Philadelphia. Between 10:00
and 10:30 a.m., two men entered the store and looked at the
items for sale for approximately one-half hour. N.T. [9/4/14 at]
14. As the two men walked around the store they examined the
merchandise together and separately and were observed
speaking to one another. N.T. at 14-15. Eventually, the taller of
the two men, who[m] the doctor identified as Appellant,
purchased approximately $30.00 in merchandise and exited the
store. N.T. at 14-15, 20. Once outside, Appellant began
examining items that were displayed on tables situated outside
the store. N.T. 14-15, 20. After [Appellant] made his purchase,
the shorter man[, co-defendant,] made a purchase from Abdul
Khaleque. During the transaction, the shorter male and
Khaleque had a discussion that evolved into an argument about
[how much money had been tendered for the purchase]. N.T. at
14-15. Dr. Habiburrahman went outside for a short time to
watch Appellant[, who was looking at merchandise on an
outdoor display,] while the [co-defendant] and Khaleque
continued to argue. N.T. at 16-17.
When the doctor reentered the store, the [co-defendant]
removed a pistol from his waistband and place[d] cartridges
inside it. The doctor told Khaleque [in Bengali] to give the [co-
defendant] the money or he would be killed. N.T. at 17.
***
[At the same time,] Appellant, who was outside the store, re-
entered the premises and took up a position near his co-
defendant, a position from which he had a clear view of what
was occurring. When his co-defendant pointed the gun at Mr.
Khaleque, Appellant moved behind the counter, standing next to
Mr. Khaleque as he handed the co-defendant money. N.T. at
48-58.
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When his co-defendant left the store, Appellant accompanied
him after which both men went to a nearby store where they
were arrested. At the time of the arrest, Appellant had a
weapon similar to the one used by his co-defendant to commit
the robbery[] [and possessed $129.00 and five plastic baggies
with a “green weed and seed substance” the police officer
“believed to be marijuana.” N.T. at 34. Officers arrested co-
defendant in a dressing room where he was attempting to hide
his firearm. N.T. at 41-43.].
***
On September 4, 2014, following a waiver trial, Appellant was
found guilty of Robbery, graded as a felony of the first degree,
18 Pa.C.S. § 3701, Conspiracy to Commit Robbery, 18 Pa.C.s. §
903, Theft by Unlawful Taking, 18 Pa.C.S. § 3921, Simple
Assault, 18 Pa.C.S. § 2701, Possessing an Instrument of Crime,
Generally, 18 Pa.C.S. § 907, and Possession of a Small Amount
of Marijuana, 35 P.S. § 780-113(a)(31). On November 7, 2014,
[the trial court] imposed an aggregate sentence of three to six
years[’] incarceration followed by six years’ probation.
Trial Court Opinion, filed June 24, 2015, at 2, 6, and 1. This timely appeal
followed.
Appellant presents the following three questions for our review:
1. Was not the evidence insufficient to convict appellant of
conspiracy to commit robbery where the Commonwealth
failed to establish that appellant intended to facilitate or
promote the commission of the robbery and that appellant
was a party to an agreement to commit the robbery?
2. Was not the evidence insufficient to convict appellant of
robbery, theft, simple assault, and possession of instrument
of crime under a theory of accomplice liability where the
Commonwealth failed to prove that appellant intended to
facilitate or promote the commission of the crimes, and that
appellant either aided or agreed or attempted to aid the co-
defendant in planning or committing the crimes?
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3. Was not the evidence insufficient to convict appellant of
possession of a small amount of marijuana where the
Commonwealth failed to prove that the substance he
possessed was marijuana?
Appellant’s brief at 3.
Our standard of review for challenges to the sufficiency of the evidence
is well-settled.
We must determine whether the evidence admitted at trial, and
all reasonable inferences derived therefrom, when viewed in the
light most favorable to the Commonwealth as verdict winner,
supports all of the elements of the offense beyond a reasonable
doubt. In making this determination, we consider both direct
and circumstantial evidence, cognizant that circumstantial
evidence alone can be sufficient to prove every element of an
offense. We may not substitute our own judgment for the jury's,
as it is the fact finder's province to weigh the evidence,
determine the credibility of witnesses, and believe all, part, or
none of the evidence submitted.
Commonwealth v. Cooper, 941 A.2d 655, 662 (Pa. 2007).
Appellant first challenges the sufficiency of evidence to prove he
conspired with, or was an accomplice to, Co-Defendant in carrying out the
crimes perpetrated in the Discount Plus variety store. He argues he was
merely present at the store when Co-Defendant “spontaneously” pulled a
gun from his waistband and decided to transform a dispute into a robbery.
Appellant’s brief at 9. Neither testimonial evidence nor the Discount Plus
security video of the robbery allow for the inference that Appellant either
agreed to commit or aided in the robbery or that he shared Co-Defendant’s
intent in so doing, he maintains. We disagree.
The Pennsylvania Crimes Code defines conspiracy as follows:
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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). This requires proof that: 1) the
defendant entered into an agreement with another to commit or
aid in the commission of a crime; 2) he shared the criminal
intent with that other person; and 3) an overt act was
committed in furtherance of the conspiracy. Commonwealth v.
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. Murphy,
795 A.2d 1025, 1038 (Pa.Super. 2002) (citation omitted).
The essence of a criminal conspiracy is a common
understanding, no matter how it came into being,
that a particular criminal objective be accomplished.
Therefore, a conviction for conspiracy requires proof
of the existence of a shared criminal intent. An
explicit or formal agreement to commit crimes can
seldom, if ever, be proved and it need not be, for
proof of a criminal partnership is almost invariably
extracted from the circumstances that attend its
activities. Thus, a conspiracy may be inferred where
it is demonstrated that the relation, conduct, or
circumstances of the parties, and the overt acts of
the co-conspirators sufficiently prove the formation
of a criminal confederation. 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. Even if the conspirator did not act
as a principal in committing the underlying crime, he
is still criminally liable for the actions of his co-
conspirators in furtherance of the conspiracy.
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Commonwealth v. McCall, 911 A.2d 992, 996–97 (Pa.Super.
2006) (citation omitted).2
An accomplice is also legally accountable for the conduct of
the other person involved in committing the crimes. 18
Pa.C.S.A. § 306(b)(3). The Crimes Code defines an accomplice
as follows:
A person is an accomplice of another person in the
commission of an offense if:
(1) with the intent of promoting or facilitating the
commission of the offense, he:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such
other person in planning or committing it; or
(2) his conduct is expressly declared by law to
establish his complicity.
18 Pa.C.S.A. § 306(c). “Both requirements may be established
wholly by circumstantial evidence. Only the least degree of
concert or collusion in the commission of the offense is sufficient
to sustain a finding of responsibility as an accomplice. No
agreement is required, only aid.” Commonwealth v.
Kimbrough, 872 A.2d 1244, 1251 (Pa.Super. 2005) (en banc )
(citations and quotations omitted). “[P]roof of a criminal
partnership is almost invariably extracted from the
circumstances that attend its activities.” Id. at 1253–54
(citation omitted).
To establish complicity, mere presence at the scene
of a crime and knowledge of the commission of
criminal acts is not sufficient. Nor is flight from the
scene of a crime, without more, enough. However,
those factors combined, along with other direct or
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2
See also Commonwealth v. French, 578 A.2d 1292, 1311 (Pa. Super.
1990) (Wieand, Concurring) (“An agreement to engage in illegal activity may
be tacit; it requires no extended period of time but can be formed almost
instantaneously.”).
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circumstantial evidence may provide a sufficient
basis for a conviction, provided the conviction is
predicated upon more than mere suspicion or
conjecture.
Commonwealth v. Rosetti, 469 A.2d 1121, 1123 (Pa.Super.
1983) (citations omitted).
Commonwealth v. Knox, 50 A.3d 749, 755-56 (Pa.Super. 2012), aff'd
but criticized on other grounds, 105 A.3d 1194 (Pa. 2014).
The trial court, acting as finder of fact, reasonably inferred from the
evidence a tacit agreement between Appellant and Co-Defendant to commit
robbery and related offenses at the Discount Plus store. Appellant and Co-
Defendant, both carrying firearms, had spent one half-hour together in the
store before Co-Defendant pulled a gun on the cashier, Mr. Khaleque.
Appellant immediately joined Co-Defendant by positioning himself behind
the counter where Mr. Khaleque stood, adding to the intimidation of Mr.
Khaleque. When Mr. Khaleque turned over the money as Co-Defendant
demanded, both men left the store together and remained together until
authorities arrested them in a nearby sneaker store.
The totality of this evidence, therefore, belies Appellant’s claim that he
was simply a companion of Co-Defendant’s who was merely present and
unaware of Co-Defendant’s criminal intent when the robbery occurred.
Rather, his obvious relationship with Co-Defendant and his immediate
participation in the commission of the crime evinced a common
understanding between the two that they would work together in robbing
the store. It was reasonable for the finder of fact to conclude that Appellant
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and Co-Defendant had tacitly agreed to act in concert in robbing the
Discount Plus store. Accordingly, we find the evidence sufficed to support
the Commonwealth’s case against Appellant for conspirator and accomplice
liability.
In his final issue, Appellant contends evidence was insufficient to
convict him of possession of a small amount of marijuana where the
Commonwealth never established the identity of the substance he possessed
through chemical analysis. At trial, evidence directly addressing the issue of
drug identification consisted solely of the arresting officer testifying “I
recovered five clear Ziploc plastic baggies with a green weed and seed
substance I believed to be marijuana.” N.T. at 34.
In support of the conviction, the trial court correctly recites precedent
that it is “well-established in this Commonwealth that the identity of illegal
narcotic substances may be established by circumstantial evidence alone,
without any chemical analysis of the seized contraband.” Commonwealth
v. Minott, 577 A.2d 928, 932 (Pa.Super. 1990). Minott, the trial court
explicates, did not limit the fact-finding function relating to drug
identification to a strict scientific analysis, but instead acknowledged “the
use of common sense and reasonable inferences in the determination of the
identity of substances” Id. The trial court also relies on several other
decisions upholding convictions for possession of controlled substances
absent laboratory seizure analyses or any test at all on the substance. See,
e.g., Commonwealth v. Stasiak, 451 A.2d 520 (Pa.Super. 1982);
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Commonwealth v. Williams, 428 A.2d 165 (Pa.Super. 1981). See
generally Commonwealth v. Boyd, 763 A.2d 421, 424 (Pa.Super. 2000)
(collecting cases) (recognizing “the Commonwealth may rely on
circumstantial evidence to prove the identity of the fluid or material”).
Appellant, however, attempts to distinguish such cases on their facts.
Minott, he argues, held results from chemical testing of two of fifty packets
of suspected drugs seized could serve to establish the chemical composition
of the other 48 packets. In Stasiak, the court held the identity of pills
contained in unopened, labeled bottles in defendant’s possession could be
reasonably inferred where arrest occurred just four minutes after
defendant’s burglary of a drug store. In Boyd, we held that sufficient
circumstantial evidence as to the identity of a cup of liquid thrown on a
prison guard was sufficient to obviate the need for chemical analysis. The
prisoner threatened to throw urine on the guard earlier that day, stated it
would be “[feces] next time” as he threw the liquid, and the guard testified
the liquid was warm, yellow, and smelled like urine. Compared with this line
of authority, Appellant posits, the officer’s belief based merely on the
appearance of the substance fell well short of establishing Appellant's
possession of marijuana beyond a reasonable doubt.
To sustain a conviction for possession of a small amount of marijuana,
the Commonwealth must prove that defendant had knowing or intentional
possession of an amount of marijuana less than 30 grams. 35 Pa.C.S. §
780-113(a)(31). As noted supra, a trained police officer's observations, by
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themselves, can establish the identity of drugs such as marijuana and
support a conviction. Minott, supra (citing Stasiak, supra);
Commonwealth v. Leskovic, 307 A.2d 357 (Pa. Super. 1973) (same).
Here, Officer Ronald Jackson of the Philadelphia Police Department was
conducting a pat down of Appellant when he discovered what he would later
describe at trial as a “green weed and seed substance [he] believed to be
marijuana[]” concealed in Appellant’s right front pants pocket. N.T. at 34.
Neither the officer’s reliance on his professional experience to identify
marijuana nor his discerning description of the substance he observed in
Appellant’s possession was contested at trial. Moreover, circumstances
informing the officer’s opinion were not limited to the physical appearance of
the substance itself, as he also observed the substance had been divided
and packaged in five clear Ziploc baggies and was carried alongside $129
cash and a loaded firearm in Appellant’s possession, circumstances
associated with the intent to deliver a controlled substance.
Commonwealth v. Hutchinson, 947 A.2d 800 (Pa.Super. 2008)
(recognizing factors suggesting possession with intent to deliver a controlled
substance include possession of a loaded handgun, packaging, and quantity
of U.S. currency). Such circumstantial evidence sufficed to support
Appellant’s conviction for a small amount of marijuana.
Judgment of sentence is AFFIRMED.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/2016
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