Com. v. Pabon, F.

J-A27030-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FABIAN PABON :
:
Appellant : No. 2371 EDA 2019

Appeal from the Judgment of Sentence Entered September 22, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006708-2016

BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.: FILED: MARCH 1, 2021

Appellant Fabian Pabon appeals nunc pro tunc from the judgment of

sentence entered on September 22, 2017, following his convictions for

possession with intent to deliver a controlled substance (PWID) and

conspiracy,1 among other related charges. Appellant challenges the

sufficiency of the evidence supporting both convictions. He also contends the

sentencing court failed to consider several mitigating factors, which led to the

imposition of a manifestly excessive sentence. We affirm.

The trial court described the facts underlying Appellant’s conviction as

follows:

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 903(a)(1), respectively.
J-A27030-20

On April 30, 2016, Philadelphia Police Sergeant Eric Brooks, an
experienced narcotics officer, together with other police officers,
began a surveillance in the 100 block of East Huntingdon Street in
Philadelphia, an area known for drug sales, after receiving
information that illegal drug-related activity was occurring in the
100 block of East Huntingdon Street. From this location inside an
unmarked police vehicle, which gave him a view of both East
Huntingdon and Water Streets, Sergeant Brooks observed
Appellant and a second male named Anibal Sanchez sitting
together in the 2500 block of Water Street. Soon after
commencing his surveillance, Sergeant Brooks observed a woman
later identified as Samantha Hilton walk up to Appellant and
Sanchez and briefly spoke to Appellant. The Sergeant then saw
Ms. Hilton hand Appellant an indeterminate amount of United
States currency after which Appellant handed Ms. Hilton
unidentified items that he retrieved from inside the front of his
sweat pants. Ms. Hilton then left the area and was arrested.
Police recovered a blue plastic bag with a Superman symbol on it
containing crack cocaine from her incident to arrest.

After Ms. Hilton departed, Sergeant Brooks saw Appellant walk to
a residence located at 108 East Huntingdon Street and enter it.
He remained inside for no more than five minutes and upon exiting
the residence, he walked over to Mr. Sanchez. Appellant spoke
briefly with Sanchez and handed him unknown objects. Appellant
then left the area and was not seen again by the sergeant.

After Appellant departed, Sanchez engaged in two transactions
with . . . Michael McDermott and . . . Larissa Baynard that were
similar to the one Appellant previously engaged in with Hilton.
Both McDermott and Baynard were apprehended and were found
to be in possession of small plastic bags containing crack cocaine
identical to the one seized from Hilton.

Following the last transactions, Sergeant Brooks ordered
members of his back up team to arrest Sanchez. When the
officers approached Sanchez he ran inside of 2539 Water Street
where he was apprehended. Police found in his possession four
plastic bags each of which had Superman symbols on it and
$61.00 that were identical to the symbols on the other bags seized
from Hilton, McDermott, and Baynard.

Prior to April 30, 2016, specifically on April 22, 2016, Sergeant
Brooks assisted in a drug surveillance approximately a mile from

-2-
J-A27030-20

Water and East Huntingdon Streets that culminated in the arrest
of Jamul Alomar’s brother and another male. Incident to these
arrests, police seized . . . [b]ags of crack cocaine that had
Superman symbols on them.

On May 3, 2016, during the early evening, Philadelphia Narcotics
Officer Jason Seigafuse began a surveillance in the area of the 100
block of East Huntingdon Street. Officer Seigafuse observed
Appellant exit 108 East Huntingdon Street and engage in a
transaction with a white male that involved the exchange of small
items for United States currency. Subsequent thereto, Officer
Seigafuse saw [A]ppellant exit 108 East Huntingdon Street and
leave the area on foot. Officer Seigafuse indicated that police did
not stop Appellant because the investigation, which involved drug
sales in the area was still occurring.

He also observed another male named Khlid Konce enter and exit
east 108 East Huntingdon Street and engage in drug related
activity. Konce was stopped and recovered from him . . . eight
bags stamped with a Superman symbol on them.

Finally, Officer Seigafuse observed Alomar leave 108 East
Huntingdon Street and drive away. Police stopped him and
recovered pills, powder cocaine, United States currency, and a key
for 108 East Huntingdon Street.

Based on the foregoing activities, police obtained a search warrant
for 108 [E]ast Huntingdon Street. It was executed on May 4,
2016, and resulted in the seizure of $4,499.00, numerous packets
filled with crack cocaine stamped with . . . Superman symbols that
resembled the bags recovered from Konce, a digital scale, plastic
bags, a tally sheet, correspondence for Alomar, and approximately
176 grams of uncut cocaine.

Officer Seigafuse . . . obtained an arrest warrant for Appellant
[and p]olice arrested Appellant on May 18, 2016.

Trial Ct. Op., 11/15/19, at 2-4 (record citations omitted).

Following his arrest, Appellant filed a motion to suppress, which the trial

court denied. He then proceeded to a stipulated bench trial incorporating the

-3-
J-A27030-20

preliminary hearing and suppression records.2 The trial court found Appellant

guilty of PWID and conspiracy as well as other related offenses.3 The trial

court sentenced Appellant within the standard range of the sentencing

guidelines to an aggregate term of three to six years’ incarceration, followed

by four years’ probation.

Appellant filed a motion for reconsideration of his sentence, arguing his

sentence was excessive. The trial court denied the motion. Appellant did not

file a notice of appeal.

On July 6, 2018, Appellant filed a pro se Post Conviction Relief Act

(PCRA)4 petition. The PCRA court appointed counsel, who filed an amended

petition seeking the reinstatement of Appellant’s direct appeal rights. The

PCRA court issued an order restoring Appellant’s direct appeal rights nunc pro

tunc. Appellant thereafter filed a notice of appeal, and the trial court directed

Appellant to file a Pa.R.A.P. 1925(b) statement. Appellant complied and

timely filed a 1925(b) statement. The trial court filed a responsive opinion.

Appellant presents two issues for our review:

1. Whether the verdict was insufficient as a matter of law, due to
the inconsistency and insufficiency of testimony, and whether the
____________________________________________

2 See N.T. Trial, 4/6/17, at 16. Appellant was tried along with his co-
defendant, Jamil Alomar.

3 Appellant was also convicted of intentional possession of a controlled
substance, 35 P.S. § 780-113 (a)(16), and possession of drug paraphernalia,
35 P.S. § 780-113 (a)(32). However, the trial court did not impose further
penalty on these convictions.

4 42 Pa.C.S. §§ 9541-9546.

-4-
J-A27030-20

elements of the crime were sufficiently proven given the facts
alleged at trial?

2. Whether the [trial c]ourt erred in denying the Motion to
Reconsider as the sentence imposed was unreasonable and
manifestly excessive?

Appellant’s Brief at 8.

Appellant’s first issue challenges the sufficiency of the Commonwealth’s

evidence to support his conviction for PWID. Specifically, Appellant argues

the Commonwealth failed to establish actual possession because police did not

recover a controlled substance from his person. See Appellant’s Brief at 22.

Appellant also highlights the fact that police did not arrest him immediately

after he was allegedly seen selling drugs. See id. Lastly, Appellant asserts

that the Commonwealth failed to present sufficient evidence linking him to the

residence at 108 East Huntingdon Street, because he did not have a key to

the residence on his person and there was no evidence that he resided there.

Id.

When determining whether evidence is sufficient to sustain a conviction,

our standard of review is well-settled:

A claim challenging the sufficiency of the evidence is a question of
law. 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. Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. When reviewing a sufficiency claim the court
is required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.

-5-
J-A27030-20

Commonwealth v. Kendricks, 30 A.3d 499, 508 (Pa. Super. 2011) (citation

omitted).

In drug possession cases, the Commonwealth must prove that a

defendant knowingly or intentionally possessed a controlled substance. See

35 P.S. § 780-113(a)(30); see also Commonwealth v. James, 46 A.3d 776,

779-80 (Pa. Super. 2012). The Commonwealth can establish possession by

“proving actual possession, constructive possession, or joint constructive

possession.” Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa. Super. 2018)

(citation and quotation marks omitted), appeal denied, 202 A.3d 42 (Pa.

2019).

Where a defendant is not in actual possession of the prohibited
items, the Commonwealth must establish that the defendant had
constructive possession to support the conviction. Constructive
possession is a legal fiction, a pragmatic construct to deal with the
realities of criminal law enforcement. We have defined
constructive possession as conscious dominion, meaning that the
defendant has the power to control the contraband and the intent
to exercise that control. To aid application, we have held that
constructive possession may be established by the totality of the
circumstances.

It is well established that, as with any other element of a crime,
constructive possession may be proven by circumstantial
evidence. In other words, the Commonwealth must establish
facts from which the trier of fact can reasonably infer that the
defendant exercised dominion and control over the contraband at
issue.

Id. at 36-37 (citations, brackets, and quotation marks omitted).

“[T]he power and intent to control the contraband does not need to be

exclusive to the defendant,” as “constructive possession may be found in one

-6-
J-A27030-20

or more actors where the item [at] issue is in an area of joint control and

equal access.” Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa. Super.

2014) (en banc) (citation omitted).

For the Commonwealth to prove constructive possession where
more than one person has access to the contraband, the
Commonwealth must introduce evidence demonstrating either
[the defendant’s] participation in the drug related activity or
evidence connecting [the defendant] to the specific room or areas
where the drugs were kept. However, [a]n intent to maintain a
conscious dominion may be inferred from the totality of the
circumstances . . . [and] circumstantial evidence may be used to
establish a defendant’s possession of drugs or contraband.

Id. (citations and quotation marks omitted).

“To sustain a conviction for [PWID], the Commonwealth must establish

the defendant knowingly or intentionally possessed a controlled substance

without being properly registered to do so, with the intent to . . . deliver it.”

Commonwealth v. Dix, 207 A.3d 383, 390 (Pa. Super. 2019) (citations

omitted), appeal denied, 217 A.3d 790 (Pa. 2019); see also 35 P.S. § 780-

113(a)(30).

Here, the trial court addressed the evidence supporting Appellant’s

PWID conviction as follows:

Drawing all inferences in favor of the Commonwealth, as the law
requires, it is clear that the evidence was sufficient to sustain the
verdict finding Appellant guilty of the charge of PWID. Appellant
was twice observed handing off small objects filled with what later
was learned was crack cocaine in exchange for United States
currency, activity which was indicative of drug dealing. In
addition, police observed Appellant going into and exiting a
residence that clearly was the site of a drug operation and then
was observed handing items to Sanchez who was found to be in

-7-
J-A27030-20

possession of small bags identical to the ones Appellant
exchanged for United States currency with two drug purchasers.

Given the foregoing, the fact that Appellant was not found in
possession of drugs, was arrested two weeks after the drug sales
he made were consummated, and the other factors Appellant
claims makes the evidence insufficient are irrelevant for purposes
of a sufficiency analysis, which, as noted, requires reviewing the
evidence in a light most favorable to the Commonwealth.
Applying that standard, it is clear that the evidence was sufficient
to sustain the PWID charge and is suggested that Appellant be
denied relief with respect to that claim.

Trial Ct. Op. at 7.

Here, as discussed above, Sergeant Brooks and Officer Seigafuse both

observed Appellant engage in the sale of crack cocaine. See N.T. Prelim. Hr’g,

3/28/17, at 9-10. Sergeant Brooks testified that on April 30, 2016 he

observed Appellant accepting money from Hilton in exchange for small items.

See id. at 9-10. Appellant then spoke briefly with Sanchez and handed him

unknown objects. See id. at 10. Immediately following the interaction, police

arrested Sanchez and recovered Ziploc bags, containing crack cocaine that

were similar to the one Appellant gave Hilton. See id. at 10-11.

In addition, Officer Seigafuse testified that on May 3, 2016 he observed

Appellant speaking with an unknown male, enter the residence at 108 East

Huntingdon Street, and then return to pass small items to the unknown buyer

in exchange for money. See id. at 28-29. A search warrant executed at 108

East Huntingdon Street, subsequent to the sale, resulted in the recovery of

scores of Ziploc bags of crack cocaine and money. See id. at 31-32. The fact

that police did not arrest Appellant immediately thereafter is of no

-8-
J-A27030-20

consequence. Accordingly, we conclude there was sufficient evidence to

establish that Appellant had possession and control over the narcotics found

on Hilton and those recovered from the residence at 108 East Huntingdon

Street. See Vargas, 108 A.3d at 868.

Viewing all of the evidence and the inferences drawn from the evidence

in the light most favorable to the Commonwealth, as the verdict winner, we

agree with the trial court that there was sufficient evidence to find that

Appellant possessed crack cocaine with the intent to distribute it. Therefore,

we conclude that the evidence was sufficient to sustain Appellant’s PWID

conviction. See Kendricks, 30 A.3d at 508.

Appellant also argues that the evidence was insufficient to support his

conviction of conspiracy. See Appellant’s Brief at 22.

A conspiracy conviction requires the Commonwealth to 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 was done in furtherance of the conspiracy.” Commonwealth v.

McCall, 911 A.2d 992, 996 (Pa. Super. 2006) (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

-9-
J-A27030-20

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.

Id. at 996-97 (citation omitted).

The trial court addressed Appellant’s second sufficiency claim as follows:

[The] evidence showed that Appellant interacted with several
persons clearly involved in a drug selling operation. In addition,
on April 30, 2016, police observed Appellant enter 108 East
Huntingdon Street, the site of a drug operation, and exit it within
five minutes at which time he handed Sanchez small items.
Sanchez was thereafter arrested and found in possession of bags
that resembled the one Appellant gave Hilton. Clearly, there was
an agreement [between Appellant and his co-conspirators] to
engage in drug related activity and overt acts. . . . and, therefore,
it is suggested that Appellant’s claim with respect to this issue be
denied.

Trial Ct. Op. at 8-9.

In viewing the evidence in the light most favorable to the

Commonwealth, we agree with the trial court that the evidence presented was

sufficient to convict Appellant of criminal conspiracy. The testimony at the

preliminary hearing established that there was a criminal agreement between

Appellant and Alomar. See N.T. Prelim. Hr’g, 3/28/17, at 28-30, 31-32, 38.

Police observed Appellant entering and exiting Alomar’s 108 East Huntingdon

Street residence, where police officers later recovered cash and scores of

Ziploc bags of crack cocaine. See id. at 31-32, 38. Appellant also actively

participated in Alomar’s drug-selling enterprise by selling crack cocaine to

- 10 -
J-A27030-20

various individuals. See id. at 9-10, 29-30. As such, it was reasonable for

the trial court to infer that Appellant conspired with Alomar to engage in the

sale of crack cocaine. See McCall, 911 A.2d at 996-97. Hence, Appellant’s

first issue fails. See Kendricks, 30 A.3d at 508.

Appellant next challenges the discretionary aspects of his sentence and

argues that his sentence is manifestly excessive. See Appellant’s Brief at 19.

He faults the trial court for failing to adequately examine mitigating evidence

such as his background, character, and rehabilitative efforts. See id.

Appellant contends that such evidence would have shown that he deserved a

reduced sentence. See id. at 20.

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Griffin, 65 A.3d 932,

935 (Pa. Super. 2013) (citations omitted). Before reaching the merits of a

discretionary aspects issue, this Court must conduct a four-part test to

determine:

(1) whether the appeal is timely; (2) whether Appellant preserved
his or her issue; (3) whether Appellant's brief includes a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence; and (4) whether
the concise statement raises a substantial question that the
sentence is appropriate under the Sentencing Code.

Commonwealth v. Williams, 198 A.3d 1181, 1186 (Pa. Super. 2018)

(citation and brackets omitted). “To preserve an attack on the discretionary

aspects of sentence, an appellant must raise his issues at sentencing or in a

- 11 -
J-A27030-20

post-sentence motion. Issues not presented to the sentencing court are

waived and cannot be raised for the first time on appeal.” Commonwealth

v. Malovich, 903 A.2d 1247, 1251 (Pa. Super. 2006) (citations omitted).

Here, Appellant preserved his sentencing claim in his post-sentence

motion and timely filed a notice of appeal nunc pro tunc. He also included a

Pa.R.A.P. 2119(f) statement in his brief. Furthermore, Appellant’s sentencing

claim raises a substantial question for our review. See Commonwealth v.

Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en banc) (holding “an

excessive sentence claim—in conjunction with an assertion that the court

failed to consider mitigating factors—raises a substantial question” (citation

omitted)). Therefore, we will address Appellant’s claim.

Our standard of review is governed by the following principles:

Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.

Commonwealth v. Hoch, 936 A.2d 515, 517-18 (Pa. Super. 2007) (citation

omitted).

“When imposing sentence, a court is required to consider the particular

circumstances of the offense and the character of the defendant.”

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002) (citation

omitted). “In particular, the court should refer to the defendant’s prior

- 12 -
J-A27030-20

criminal record, his age, personal characteristics[,] and his potential for

rehabilitation.” Id. (citation omitted). Where the sentencing court had the

benefit of a presentence investigation report (PSI), we assume the sentencing

court “was aware of relevant information regarding the defendant’s character

and weighed those considerations along with mitigating statutory factors.”

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Moreover, when a

sentence is within the standard range of the guidelines, Pennsylvania law

views the sentence as appropriate under the Sentencing Code. See

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).

Here, the trial court addressed Appellant’s sentencing claim as follows:

[I]t is clear that no abuse of discretion occurred here. This [c]ourt
did review the [PSI], which set forth Appellant’s life history and
failed attempts to rehabilitate himself and also carefully listened
to Appellant’s counsel’s recitation of mitigating circumstances that
counsel believed called for the imposition of a shorter sentence.
It also heard from Appellant during his exercise of his right of
allocution that he had a job offer and a new child. Unfortunately
for Appellant though, in addition to the mitigating evidence
presented, this [c]ourt also heard that Appellant had been
arrested while awaiting sentencing in this case. That fact
convinced this [c]ourt that all of the assertions indicating that
Appellant had turned his life around and could lead a law-abiding
life if given a chance to, were not credible and that appellant posed
a danger to the citizens of Philadelphia that only could be
mitigated by the imposition of a lengthy period of incarceration.

Finally, Appellant’s sentence was not excessive in light of the
seriousness of the underlying criminal matter, which concerned
his participation in a sophisticated drug selling operation.
Moreover, Appellant’s criminal conduct herein and in his other
criminal matters established to this [c]ourt that Appellant had had
many other opportunities to turn his life around and did not do so.
Simply put, his criminal record and his arrest while awaiting
sentence manifested that he was disposed to continue to commit

- 13 -
J-A27030-20

crimes and that the only way to see that he was no longer
engaging in criminal activity was to incarcerate him for a
significant period of time. Accordingly, because the foregoing
discussion shows that this [c]ourt considered all relevant factors
in deciding upon Appellant’s sentence, it is submitted that no
abuse of discretion occurred and that the judgment of sentence
should be affirmed.

Trial Ct. Op. at 10-11.

Based on our review of the record, we conclude that the trial court did

not abuse its discretion in imposing Appellant’s sentence. The sentencing

record confirms the trial court reviewed Appellant’s PSI. See N.T. Sentencing

Hr’g, 9/22/17, at 4-5. We presume that the trial court considered all

mitigating factors, including Appellant’s background, character, and

rehabilitative efforts. See Devers, 546 A.2d at 18. Furthermore, as noted

by the trial court, Appellant’s sentence was not excessive in light of the

criminal conduct at issue and his arrest on new charges while awaiting

sentencing. Therefore, Appellant’s challenge to the discretionary aspects of

his sentence fails.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/1/21

- 14 -