J-A28009-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
Appellee :
:
v. :
:
JOSH E. STEWART :
:
Appellant : No. 32 EDA 2015
Appeal from the Judgment of Sentence June 12, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010738-2013
BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 22, 2017
Appellant, Josh E. Stewart, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his jury
trial convictions for possession with intent to deliver a controlled substance
(“PWID”) and criminal conspiracy.1 We affirm.
In its opinion filed July 21, 2016, the trial court accurately set forth the
relevant facts of this case as follows:
FACTUAL HISTORY
At trial, the Commonwealth of Pennsylvania established that
between the dates of July 16th through July 19, 2013, City
of Philadelphia Police Officers McClain, Coaxum, Floyd, and
Cuffie conducted an investigation involving the sale of
narcotics in Southwest Philadelphia. Specifically, the object
____________________________________________
1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 903, respectively.
J-A28009-17
of their attention was a house located at 5832 Webster
Street in the city and county of Philadelphia.
Officer McClain testified at trial that on the first day of the
investigation, July 16, 2013, he and his partner, Officer
Coaxum, met a designated confidential informant
(hereinafter referred to as “C.I.”). Officer McClain
personally and methodically checked the C.I. for narcotics
and money in preparation before sending the C.I. on a
supervised mission to purchase illegal narcotics from a
suspected drug dealer. This method of preparation involved
searching the informant’s pockets and garments, to insure
that the supervised purchase would not [be] impaired by
any other funding sources or narcotics.
Once Officer McClain was satisfied that the C.I. possessed
zero narcotics or money, the C.I. was provided a sum of
“pre-recorded buy money.” Officer McClain then directed
the C.I. to attempt to purchase illegal narcotics at or near
the targeted location of 5832 Webster Street in Southwest
Philadelphia. Officer McClain observed the C.I. walk from
the Officer’s unmarked surveillance vehicle and down the
residential 5800 block of Webster Street toward the
suspected residence of 5832 Webster Street. Officer
McClain waited at a nearby surveillance location until the
C.I. returned after a few short moments.
Upon the C.I.’s return, Officer McClain searched the
informant again to insure no additional money or narcotics
were possessed. The C.I. possessed no money and provided
Officer McClain with two clear packets of crack cocaine
narcotics that were purchased with the pre-recorded buy
money. Additionally, the CI provided the Officer with a
phone number…to arrange future purchasing of narcotics.
Later, on the same day as the first purchase, telephone
arrangements were made to purchase cocaine utilizing the
same telephone number earlier provided to the C.I. The
same C.I. then purchased two clear packets of cocaine in a
similar manner as described in the first sale. Officers
observed the alleged seller of the second set of packets of
cocaine to be an unknown male who left the area.
On July 18, 2013[,] the Officers returned to the area of 5832
-2-
J-A28009-17
Webster Street with the same C.I. they used on July 16,
2013, and again directed the C.I. to purchase cocaine,
implementing the same telephone communication
procedures and surveillance methods used on July 16, 2013.
On this date, the C.I. purchased two clear packets of cocaine
in exchange for $20.00 pre-recorded buy money from
another unknown male from 5832 Webster Street.
Following the drug transactions on July 16, 2013 and July
18, 2013, officers obtained a legally issued Search and
Seizure Warrant for the address 5832 Webster Street. Prior
to execution of the warrant, the same C.I. that had been
utilized on the earlier dates, was sent directly to 5832
Webster Street to purchase narcotics with $40.00 pre-
recorded buy money after being thoroughly searched and
directed in the same manner as before.
Officers credibly testified on July 19, 2013, they observed
[Appellant] walk down the sidewalk of the 5800 block of
Webster Street from an unknown location and readily greet
the C.I. After the C.I. and [Appellant] briefly spoke to each
other, [Appellant] went inside 5832 Webster Street, while
initially leaving the C.I. on the porch of this row home
residence. [Appellant] then allowed the C.I. entry into 5832
Webster Street. When the C.I. directly returned to the
surveillance position, the C.I. was again searched for money
or drugs. The C.I. provided the officers with four clear
packets of crack cocaine [which] appeared to be consistent
in weight [with] the packets previously purchased.
Upon search of 5832 Webster Street, Officers recovered
mail addressed to [Appellant], [Appellant’s] Pennsylvania
Non-Driver’s Photographic Identification Card, as well as the
pre-recorded buy money used in the purchase just moments
before the execution of the Warrant. Officers also recovered
house keys, $390.00, and numerous new and unused green
and pink zip-lock packets similar to the packets encasing the
previously purchased cocaine, and a cellular phone with a
number different than the number used to arrange
transactions.
Although there were some conflicts in the officers’ trial
testimony as to the exact location of some of the items
recovered within 5832 Webster Street, these memory
-3-
J-A28009-17
differences were relatively minor and the jury reasonably
resolved them in the favor of the Commonwealth’s version
of events.
(Trial Court Opinion, filed July 21, 2016, at 4-6).
Procedurally, the jury convicted Appellant on April 11, 2014, of one
count each of PWID and conspiracy to commit PWID. On June 12, 2014, the
court sentenced Appellant to an aggregate term of four (4) to ten (10) years’
imprisonment, plus six (6) years’ probation. Appellant timely filed a post-
sentence motion on June 20, 2014, which the court denied on June 24, 2014.
On July 1, 2014, Appellant timely filed a notice of appeal. On October 6, 2014,
the court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant subsequently
requested an extension of time to file his concise statement, until after receipt
of the notes of testimony. The court granted Appellant’s request. On January
11, 2016, the trial court issued a Rule 1925(a) opinion, explaining Appellant
still had not filed a Rule 1925(b) statement even though the notes of
testimony had been transcribed, and suggested waiving Appellant’s appellate
issues on this ground.2
On January 14, 2016, Appellant filed an application for relief in this Court
____________________________________________
2 Pursuant to Pa.R.A.P. 1925(c)(3), outright waiver of Appellant’s issues would
have been inappropriate. See Pa.R.A.P. 1925(c)(3) (stating if appellant in
criminal case was ordered to file concise statement and failed to do so, such
that appellate court is convinced that counsel has been per se ineffective,
appellate court shall remand for filing of concise statement nunc pro tunc and
for preparation and filing of opinion by trial court).
-4-
J-A28009-17
seeking a remand to file a Rule 1925(b) statement, claiming a scrivener’s error
had prevented Appellant’s receipt of the notes of testimony. In anticipation
of this Court’s grant of his request, Appellant filed a Rule 1925(b) statement
in the trial court on that date. This Court granted Appellant’s request by per
curiam order, on February 2, 2016. Appellant subsequently obtained new
counsel, who filed another application for remand in this Court, seeking to file
a supplemental Rule 1925(b) statement raising new appellate issues. This
Court granted that request on November 10, 2016. On November 29, 2016,
Appellant filed a supplemental Rule 1925(b) statement. The trial court then
filed a supplemental opinion on April 3, 2017.
Appellant raises four issues for our review:3
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
REFUSING THE JURY’S REQUEST DURING DELIBERATIONS
FOR A READ BACK OF A BRIEF PORTION OF THE TESTIMONY
OF TWO POLICE WITNESSES, AND BASED THAT
ERRONEOUS RULING ON A MISINTERPRETATION OF THE
JURY NOTE?
WHETHER [APPELLANT] WAS ENTITLED TO AN ADVERSE
INFERENCE INSTRUCTION WHERE THE POLICE DID NOT
PRESERVE THE MOST INCRIMINATING EVIDENCE THEY
ALLEGED, RECOVERED DRUG BUY MONEY?
WERE NOT THE TRIAL COURT’S INSTRUCTIONS THAT
[APPELLANT] CAN BE LIABLE FOR CRIMES COMMITTED BY
ANOTHER BY VIRTUE OF BEING A CO-CONSPIRATOR
INCONSISTENT WITH THE SUPREME COURT’S DECISION IN
COMMONWEALTH V. KNOX, [629 PA. 467,] 105 A.3D
1194 [(2014)], AND THE GOVERNING STATUTE, 18 PA.C.S.
____________________________________________
3 For purposes of disposition, we have re-ordered Appellant’s issues.
-5-
J-A28009-17
§ 306, WHICH PROVIDES FOR ACCOMPLICE LIABILITY
ONLY?
DO NOT STATE LAW AND DUE PROCESS OF LAW REQUIRE
THE GRANT OF A NEW TRIAL ON THE BASIS OF INDIVIDUAL
AND CUMULATIVE ERROR?
(Appellant’s Brief at 9).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Anne Marie B.
Coyle, we conclude Appellant’s issues on appeal merit no relief. The trial court
opinion comprehensively discusses and properly disposes of the questions
presented. (See Supplemental Trial Court Opinion, filed April 3, 2017, at 3-
11) (finding: (1) during deliberations, jury submitted request to have
testimony of Officers Cuffie and Coaxum read back; jury said it specifically
wanted to hear officers’ testimony related to recovery of Appellant’s photo
identification card; parties agreed it would be improper for court to read
entirety of each officer’s testimony; defense counsel requested that court
stenographer read back to jury parceled portions gleaned from direct and
cross examination of both witnesses concerning their recovery of items
including photographic identification; court declined defense counsel’s request
because reading back discrete portions of direct and cross examination of both
witnesses would be out of context, create further confusion, and invite undue
inquiry; court employed its discretion by declining to read back officers’
testimony and instead, directing jurors to utilize their collective recollection;
to permit selective reading of testimony would place undue emphasis on those
-6-
J-A28009-17
portions of testimony; additionally, given brevity of trial, where officers
testified one day before deliberations, read back of testimony was not
warranted;4 (2) regarding pre-recorded buy money police recovered from
Appellant, it would have been unreasonable for court to issue adverse
inference instruction simply because police did not physically retain original
U.S. currency used in investigation from date of Appellant’s arrest to date of
trial; there is obvious, practical need for City of Philadelphia police department
to recirculate its limited supply of U.S. currency to facilitate future criminal
investigations; moreover, officers photocopied unique serial numbers of each
bill before narcotics purchase and after Appellant’s arrest; Commonwealth
provided defense photocopies of these bills, with corresponding serial
numbers, well in advance of trial; thus, Commonwealth sufficiently preserved
pre-recorded buy money for evidentiary purposes;5 (3) Appellant did not
____________________________________________
4 See Commonwealth v. Small, 559 Pa. 423, 741 A.2d 666 (1999), cert.
denied, 531 U.S. 829, 121 S.Ct. 80 (2000) (explaining it is within trial court’s
discretion to grant or deny jury’s request for read back of trial testimony;
holding trial court properly exercised its discretion by denying jury’s request
for read back, and instead instructing jury to use its “collective recollection,”
where read back would have posed risk that jury would unduly highlight that
testimony).
5 Appellant contends that the photocopy of the money used in the controlled
buy on July 19, 2013, is not an accurate reproduction of the pre-recorded buy
money actually used on that date. Specifically, Appellant claims a cover sheet
attached to the photocopy states in the subject line: “PRE-RECORDED BUY
MONEY FOR FRIDAY JULY 18, 2013.” (Appellant’s Reply Brief at 3). At trial,
Officer McClain testified that the cover sheet contains a “general” section,
which is automatically generated by the computer program, and a “subject”
-7-
J-A28009-17
object to jury instructions on accomplice or co-conspirator liability, so claim is
waived;6 moreover, Commonwealth presented evidence that Appellant, at
least once, actively or constructively sold illegal narcotics to C.I. from
residence at issue; additional physical evidence obtained from search of
residence showed Appellant’s joint dominion and control over property where
he had sold illegal narcotics and that Appellant had been acting in concert with
others who had actively sold same type of illegal narcotics in same manner as
____________________________________________
section, which is completed by the user. The “general” section accurately
contains the date “7/19/13.” Officer McClain suggested that the officer who
drafted the cover sheet inadvertently entered the wrong date in the “subject”
section. (See N.T. Trial, April 8, 2014, at 58-59.) Additionally, July 18, 2013
was a Thursday, not a Friday, which supports Officer McClain’s explanation.
In any event, the jury heard testimony about the inconsistency and resolved
it in favor of the Commonwealth.
6 Appellant insists he is excused from waiver, claiming our Supreme Court
announced a new rule of law in Knox, while his case was pending on direct
appeal. In Knox, our Supreme Court interpreted Section 306 of the Crimes
Code (governing accomplice liability) as rejecting the earlier and expansive
“common-design” and “natural-and-probable consequences” doctrines. The
Court explained that under Section 306, “status as an accomplice relative to
some crimes within a larger criminal undertaking or episode no longer per se
renders a defendant liable as an accomplice for all other crimes committed.
Rather, closer, offense-specific analysis of intent and conduct is required.”
Knox, supra at 471, 105 A.3d at 1197 (internal citation omitted). The
General Assembly enacted Section 306 of the Crimes Code on December 6,
1972, effective June 6, 1973. Thus, Appellant is not entitled to retroactive
application of Knox or excused from waiver, because Knox did not announce
a “new rule of law.” See Commonwealth v. Hughes, 581 Pa. 274, 865 A.2d
761 (2004) (defining “new rulings” as those which break new ground or
impose new obligation on states or federal governments, or, stated otherwise,
where result was not dictated by precedent existing at time defendant’s
conviction became final).
-8-
J-A28009-17
Appellant from same location, close in time to Appellant’s sale; court gave
definitions of each element of PWID; jury could have decided Appellant acted
as principal even without any understanding of Appellant’s culpability as co-
conspirator or accomplice; unlike defendant in Knox, Appellant was also
charged with conspiracy to commit PWID; because trial evidence supported
possible determination of Appellant’s culpability for PWID as co-conspirator7
or accomplice, court gave jury instructions for co-conspirator and accomplice
liability; court distinguished between theories of liability and provided
instructions almost verbatim from Suggested Standard Criminal Jury
Instructions; (4)8 court considered whether Appellant was entitled to new trial
for individual or collective errors and decided no harmful, prejudicial, or
reversible error had occurred). Therefore, we affirm based on the trial court’s
Supplemental Rule 1925(a) opinion.
Judgment of sentence affirmed.
____________________________________________
7 See Commonwealth v. Golphin, 161 A.3d 1009 (Pa.Super. 2017), appeal
denied, ___ Pa. ___, 170 A.3d 1051 (2017) (explaining once trier of fact
decides there was conspiratorial agreement and defendant intentionally
entered into agreement, defendant may be liable for overt acts committed in
furtherance of conspiracy regardless of which co-conspirator committed act).
8 The Commonwealth claims Appellant’s fourth issue is waived for failure to
raise it in his concise statement. Nevertheless, the record shows Appellant
preserved this issue in his Supplemental Rule 1925(b) statement. (See
Supplemental Rule 1925(b) statement, filed November 29, 2016, at 3 ¶ 5(e)).
-9-
J-A28009-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2017
- 10 -
Circulated 11/29/2017 04:04 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION FILED
APR O 3 ZOff
COMMONWEALTH OF PENNS YT VA NT A ) PHILADELPHIA COUNTJilBf Crimm�t 14ppeafs Unit
JUd'Cl"/ ,JjstflM f OA
CP-5l-CR·0010738-2013 Comm v. Stewart. Josh E \
Opinion . COURT OF COMMON PLEAS ' c.. • "'' 0 r-r,
1
vs.
11111111111111111111
7928184061
NO. CP-5 l-CR-0010738-2013
JOSH E. STEW ART
OPINION IN RESPONSE TO SUPPLEMENTAL STATEMENT OF ERRORS MATTERS
COMPLAINED OF ON APPEAL
Appellant, Josh E. Stewart, as the above-named Defendant, seeks review of the Orders and
Judgments of Sentence, imposed on June 12, 2014, by the Honorable Anne Marie B. Coyle, Judge
of the First Judicial District Court of Common Pleas. The Appellant asserted within the
Defendant's reinstated Statement of Matters Complained Of On Appeal Pursuant to Pa. R. P.
l 925(b) that there was insufficient evidence to support the jury verdicts of guilty, and that the
prosecutor committed misconduct that requires the relief of a new trial during closing arguments.
Appellant also contended the trial court imposed an impermissibly harsh and excessive aggregate
sentence after failing to adequately examine petitioner's background, character, and rehabilitative
\
needs. This trial court filed a detailed Opinion addressing the Defendant's previously filed
appellate claims on July 21, 2016, which has been docketed by the Pennsylvania Superior Court
under Number 32 EDA 2015.
On October 19, 2016, the Defendant, by and through his appellate counsel, filed a Petition
with the Pennsylvania Superior Court requesting permission to file a Supplemental Statement of
Errors Complained Of On Appeal. On November 10, 2016, the Pennsylvania Superior Court
entered a Per Curiam Order permitting the Appellant ability to file a Supplemental Statement
pursuant to PARA.P. 1925 (b) and remanding the matter to the trial court. On November 28, 2016
the Defendant filed a Supplemental Statement of Errors Complained Of On Appeal. Within this
Supplemental Statement, the Defendant claims that a new trial is warranted for the following
individual or collective reasons:
1. "The prosecutor impermissibly vouched for the Commonwealth's case and
its police officers within his closing remarks;
2. The trial court abused its discretion by refusing a jury request to have the
stenographer read back certain portions of the testimony;
3. The trial court abused its discretion by failing to give a requested instruction
that it could draw an adverse inference from the failure of the Commonwealth to
preserve and produce the actual United States Currency used to purchase the
narcotics at issue;
4. The trial court "instructed the jury that the defendant could be convicted of
possession with intent to deliver, and the other substantive offense if the
Commonwealth established that he was a member of a conspiracy and another
member committed these substantive offenses in furtherance of the conspiracy.
After the trial and sentencing in this case, the Pennsylvania Supreme Court changed
prior law by holding in Commonwealth vs. Knox, 105 A.3d l l 94(Pa. 2014), that
liability for crimes committed by another person is to be determined solely by
assessing whether an individual is an accomplice under 18 Pa.C.S. §306. There is
no statutory support for the trial court's erroneous prejudicial instructions that a
defendant may also be found guilty ( even if not an accomplice) if a co-conspirator
committed the offense in furtherance of the conspiracy. This instruction violated
Pennsylvania law and due process rights."
PROCEDURAL AND FACTUAL HISTORY
This Court incorporates as if set forth in full within this Supplemental Opinion, the
recitation of the both the procedural and factual history and discussion recorded the original
Opinion filed July 21, 2016.
DISCUSSION
In his Supplemental Statement of Errors, the Defendant reasserts the claim made within
the original Statement of Matters Complained of On Appeal, when he argues that the prosecutor
2
committed prejudicial misconduct during closing argument at trial, This Court addressed this
similarly phrased assertion thoroughly in its previously filed Opinion, particularly beginning on
page 1 7 and continuing through to page 19. No further comment shall be made in reference to this
Supplemental Claim.
The Defendant alleges in his Supplemental Statement of Errors that, "the trial court abused
its discretion by refusing a jury request to have a portion of the testimony of Officers Coaxum and
Cuffie read back to it concerning the recovery of the defendant's photo identification during the
search of 5832 Webster Street in Philadelphia. The transcribed trial record reflects that this request
was communicated by the deliberating jury within the second or third of eight written combined
sets of questions. This question concerned overlapping areas of inquiry provided by the two
officers who testified in a live fashion approximately one day before the jury began deliberating.
The entire communication request from the jury recited as follows: "Your Honor, we would
like to request to have the testimony of Officers Cuffey and Coaxum reread. We would specifically
like to hear sections related to recovery of circumstantial evidence and photo ID. Additionally, we
would like clarification and definitions of circumstantial evidence and reasonable doubt." When
this compound communication was discussed between this Court and the attorneys for both parties
out of the presence of the jury, counsel for the Defendant vacillated as to his equivocal
recommendations. While agreeing with the Court that it would be improper to honor the jury's
request to have the stenographer read aloud essentially the predominate portion of all trial
testimony, counsel objected to the Court's intention to remind the jury that they should rely upon
their own recollection as previously instructed. Defense counsel stated his preference for having
the Court stenographer read back to the jury parceled portions gleaned from the direct and cross
examination of both witnesses concerning their recovery of items including photographic
3
identification. This Court reasoned that reading back single portions of direct and cross-
examination of both witnesses out of context from the entire testimony would create further
confusion and invite further undue inquiry.
This Court employed its discretion appropriately by directing the jury to utilize their
collective recollection. To permit the selective reading of direct and cross examination testimony
from different witnesses as requested would unduly emphasize certain portions of the testimony
out of context of recited circumstances. Similarly, unduly selecting portions of the trial testimony
to be read aloud so close in time to the preceding live testimony was not warranted given the
brevity of this trial. This trial court's decision and corresponding guidance given to this jury
constituted an appropriate exercise of discretion.
Next, the Defendant argues in his Supplemental Statement that the trial court erred in
failing to give a requested jury instruction, or any instruction that it could draw an adverse
inference from the Commonwealth's failure to preserve and produce the drug buy money used by
the police and allegedly recovered from the Defendant. The requested adverse instruction is
outlined within the Pennsylvania Suggested Standard Criminal Jury Instructions, Third Edition,
under Section 3.21B "Failure To Produce Document or Other Tangible Evidence At Trial,"
published by Pennsylvania Bar Institute and recites as follows:
1. There is a question about what weight, if any, you should give to the failure of (a
party) (the Commonwealth) (the defendant) to produce an item of potential
evidence at this trial (identify document or tangible item).
2. If three factors are present, and there is no satisfactory explanation for a party's
failure to produce an item, the jury is allowed to draw a common sense inference
that item would have been evidence unfavorable to that party. The three necessary
factors are:
First, the item is available to that party and not to the other;
Second, it appears that item contains or shows special information material to the
issue; and
Third, the item would not be merely cumulative evidence.
4
3. Therefore, if you find these three factors present and there is no satisfactory
explanation of the (party's) (Commonwealth's) (defendant's) failure to produce
(the item), (specify item), at this trial, you may infer, if you chose to do so, that it
would have been evidence unfavorable to (that party) (the Commonwealth) (the
defendant).
In the instant matter, it would have been unreasonable for the trial court to give the
instruction simply because the original United States Currency bills used in this investigation were
not physically retained from date of arrest to date of trial. There is an obvious practical need for
the City of Philadelphia Police department to recirculate their limited supply of United States
Currency to facilitate future criminal investigations. Simply stated there is not enough
departmental money to store supplies of United States Currency as evidence and still enforce the
law.
Moreover, as the officers testified in the instant case, the United States Currency bills
utilized to facilitate the drug buys had been practically preserved for evidentiary purposes when
the officers photocopied the unique serial numbers of each bill of the supplied before the narcotics
purchase and after arrest. The photocopies of these bills, with corresponding numbers, were
provided to the defense well in advance of trial. Thus, this evidence was reasonably made available
to the Defendant. Zero factors existed that would have triggered the trial court's discretionary
decision to provide the requested adverse inference instruction. To the contrary, the requested
adverse inference instruction given by the Court would have unduly burdened the jury with unfair
skepticism of the Commonwealth's case.
Finally, the Defendant takes issue with trial court's jury instructions given concerning the
liability of a co-conspirator for substantive drug offenses. The Defendant claims, "After the trial
and sentencing in this case, the Pennsylvania Supreme Court changed prior law by holding in
Commonwealth vs. Knox, 105 A.3d 1194 (Pa. 2014), that liability for crimes committed by another
5
person is to be determined solely by assessing whether an individual is an accomplice under 18
Pa.C.S. §306. There is no statutory support for the trial court's erroneous prejudicial instructions
that a defendant may also be found guilty ( even if not an accomplice) if a co-conspirator committed
the offense in furtherance of the conspiracy."
This claim erroneously assesses existing law concerning liability of a co-conspirator by
interchangeably muddling the separate potential liability of an accomplice for other substantive
crimes. Similarly, the Defendant entirely misstates the holding and impact of Commonwealth vs.
Knox, 105 A.3d 1194 (Pa. 2014). Finally, the Defendant's assertion significantly misrepresents
this Court's cumulative jury instructions that accurately and succinctly explained the independent
potential theories of liability at issue given the facts presented.
With respect to this final confused and baseless claim, it is important to understand that the
Commonwealth convincingly presented at trial three potential theories of liability to support the
convictions of Manufacture, Delivery, or Possession With Intent to Manufacture or Deliver A
Controlled Substance under 35 §780-113 §(a)(30), as an ungraded Felony of the Controlled
Substance, Drug, Device and Cosmetic Act and related offenses. The term "delivery," as used in
this section means, "the actual, constructive or attempted transfer from one person to another of a
controlled substance, of the drug, device or cosmetic whether or not there is an agency
relationship." 35 P.S. §780-102. It is well settled that any defendant who either actually or
constructively transfers illegal narcotics is criminally liable as a principal. Commonwealth v.
Murphy, 577 Pa. 275, 844 A. 2d 1228 (2004) citing 35 P.S. § 780-1 lJ(a) (30).
The testimony and physical evidence demonstrated that the Defendant Josh E. Stewart, at
least once actively or constructively transferred illegal narcotics to a confidential informant from
the subsequently searched residence. Additional physical evidence was introduced resulting from
6
the subsequent search of the same property that demonstrated the Defendant's joint dominion and
control over this property from which he had sold illegal narcotics and that he been acting in
concert with other persons who had actively sold the same type of illegal narcotics in the same
manner as the defendant from the same location close in time to his sale. The trial court amply
provided the jury explanations and definitions of each element of the drug offense. Thus, this jury
could have ably decided that every element of the drug offense as charged had been proven beyond
proven beyond a reasonable doubt because the Defendant acted as a principal dealer even without
any understanding of the Defendant's culpability as a co-conspirator or as an accomplice.
In this case, however, the Defendant Josh E. Stewart, unlike the Defendant in Knox, as
relied upon in his Supplemental Statement, had also been formally charged with the separate
offense of Conspiracy- Manufacture, Delivery, or Possession With Intent to Manufacture or
Deliver A Controlled Substance pursuant to 18 Pa.C.S. § 903, graded as a Felony of the Second
Degree. Because the trial evidence also sufficiently supported the possible determination of the
Defendant's culpability for the other substantive offenses charged as a co-conspirator or
independently as an accomplice, this Court provided the jury with accurate instructions regarding
the substantive crime elements identified within the standard jury instruction for Conspiracy, as
well as providing due instructions concerning his potential culpability for the remaining
substantive offenses as a co-conspirator or as an accomplice. Similarly, this Court correctly
distinguished the two potential theories ofliability of an accomplice and a co-conspirator.
It is undisputed that Section 903 of the Pennsylvania Crimes Code sets forth the elements
of the crime of Conspiracy as follows:
(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:
7
( 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.
Thus, a person is deemed to be a conspirator if, "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 was done in furtherance of the conspiracy." Commonwealth v. Devine, 26 A.3d
1139, 1147 (Pa.Super.2011). "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." Id.
The conspiratorial 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." Id. On April
9, 2014 because ample evidence outlined all required elements supporting the separate charge of
Conspiracy, this Court defined and outlined the offense elements verbatim from the Pennsylvania
Suggested Standard Criminal Jury Instructions, Third Edition, as follows:
"In Pennsylvania, a conspiracy is an agreement between two or more
persons to commit a crime. A conspiracy exists once two conditions are met. This
is an agreement and one of the members then commits an act to help achieve the
goal of conspiracy.
The first element of conspiracy is an agreement. It can be stated in words or
unspoken but acknowledged. It can be an agreement in a sense that two or more
people have come to an understanding that they agreed to act together to commit a
crime or crimes. The agreement does not have to cover the details of how the crime
will be committed. Nor does it call for all of them to participate in actually
committing crime. They can agree that one of them will do the job.
What is necessary is that the parties do agree, in other words, do come to a
firm understanding that a crime will be committed. Although the agreement itself
is the essence of the conspiracy, a defendant cannot be convicted of conspiracy
unless he or she or a fellow co-conspirator does something more that is an overt act
in furtherance of the conspiracy.
8
An overt act is an act by any member of the conspiracy that would serve to
further the goal of the conspiracy. The overt act can be criminal or noncriminal.
And if its-as long as it is designed to put the conspiratorial agreement into effect.
This is to show that the parties have a firm agreement and they are not just
thinking or talking about committing a crime. The overt act shows the conspiracy
has reached the actin stage.
If a conspiracy actually commits or attempts to commit the agreed upon
crime, that obviously would be an overt act in furtherance of the conspiracy. But a
small act or step that is much more preliminary and a lot less significant than
satisfying the overt act requirement.
The Commonwealth may prove a conspiracy by direct evidence or by
circumstantial evidence. People who conspire often do the conspiring secretly, and
try to cover it up afterwards. In many conspiracy trials, circumstantial evidence is
the best or only evidence on the questions, of whether the conspirator shared the
intent of promoting or facilitating committing object crime. Thus, you may, if you
think it proper, infer that there was a conspiracy form the relationship, conduct, and
acts of the defendant and his or her alleged co-conspirators and the circumstances
surrounding their activities.
However, the evidence of this must support your conclusion beyond a
reasonable doubt. A defendant cannot be convicted because he or she knew what
the other or others were planning or were doing. It must be proof of an agreement
between the defendant and another person or person to form or continue the
conspiracy. To be proven guilty of being a co-conspirator, the defendant must have
intended to act jointly with the other charges. It must have intended that the crime
alleged to be the goal of the conspiracy would be committed."
(See Notes Testimony April 9, 2014, Pgs. 20-22)
This Court then followed the instructions concerning the elements of the offense of
Conspiracy by addressing and distinguishing the alternate theories of liability for the additional
substantive offenses charged as follows:
"All right, there are two basic ways that the one defendant may be
criminally responsible for conduct committed by another person or person. These
two ways may apply even if the defendant questioned was not present or at the time
or place where the particular act occurred.
First way is for the defendant to be a member of the conspiracy. As I
indicated to you before, there are certain elements that must be proven with respect
to conspiracy.
Second, separate way one defendant can be proven liable for the conduct of
another person when the defendant is an accomplice of the person who commits the
crime at issue.
Okay, there is a basic difference between being an accomplice and being a
co-conspirator. In a conspiracy, people agree to act jointly. In a conspiracy, a person
9
or persons does not have to agree to help someone else. A person is an accomplice
if he or she on his own or her own acts to help the other person commit the crime.
More specifically, the defendant is an accomplice of another for a particular
crime if the following two elements are proven beyond a reasonable doubt. The
Defendant has the intent of promoting or facilitating the commission of that crime
and the Defendant solicits commands, encourages or requests the other person to
commit or aid or agrees to aid or attempts to aid the other person planning or
committing it. It is important to understand that someone is not an accomplice
merely because he or she is present when a crime is committed"
(See Notes of Testimony April 9, 2014, pgs. 23-24)
This Court's instructions were again given almost verbatim from the Pennsylvania Suggested
Standard Criminal Jury Instructions, Third Edition. No objections were raised by the Defendant to
any of the Court's instructions to the jury, except when this Court duly denied the adverse inference
pursuant to Section 3.21 as previously discussed. Since this issue was not preserved through
objection, it is waived.
Within a very brief time after being excused to deliberate, the jury communicated, "We the
jury would like clarification on the legal definition off conspiracy please. Specifically, we would
like to know if a perp admits another person into a home knowing a crime will be committed, does
that constitute as conspiracy?" In response, this Court repeated the standard instructions previously
given without objection of either party through their respective attorney. In fact, there were
approximately eight written compound communications addressed diligently by this Court. The
only other raised objection on behalf of the Defendant was in reference to the request to separately
read intermingled portions of testimony from two officers previously discussed. Again, since this
issue was not preserved through objection, it is waived.
The Defendant's final claim raised within the Supplement Statement is that tJ;ie undisputed
validity of the instructions given by this Court, in the Defendant's perception of the Pennsylvania's
Supreme Court's subsequent holding in Knox, retroactively nullified the instructions. The
Defendant's argument is fatally flawed in multiple respects. First, the claim fails to recognize the
10
distinguishable fact pattern upon which the Court's reasoning was based. In Knox, the Defendant
was not charged with conspiracy, rather he was charged with possession of a firearm alleged
possession of a firearm. Second, the holding of the Pennsylvania Supreme Court is completely
misstated. The Knox case does not stand for the overly broad and erroneous position stated on
behalf of this Defendant. Third, there is absolutely no impact retroactive impact to the case at issue
from Knox. Finally, the claim attempts to insert language and a proposition into this Court's
instructions concerning the liability of a co-conspiracy given at Josh Stewart's trial that was neither
stated nor remotely implied.
CONCLUSION
In reviewing the entire record, this Court finds no harmful, prejudicial, or reversible
error. Accordingly, the judgment of the trial court should be affirmed.
By the Court,
DATE:
f M �I
,,VJ 11
11