Com. v. Conners, N.

J-S24026-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
NICHOLAS CONNERS :
:
Appellant : No. 1241 WDA 2020

Appeal from the Judgment of Sentence Entered July 22, 2019
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001579-2018

BEFORE: DUBOW, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KING, J.: FILED: February 2, 2022

Appellant, Nicholas Conners, appeals nunc pro tunc from the judgment

of sentence entered in the Erie County Court of Common Pleas, following his

jury trial convictions for four counts of possession with intent to deliver a

controlled substance (“PWID”), three counts of possession of a controlled

substance, one count of possession of drug paraphernalia, two counts of

criminal attempt to commit PWID, one count of criminal use of communication

facility; and his guilty plea to one count of drug delivery resulting in death.1

We affirm.

The relevant facts and procedural history of this case are as follows. On

____________________________________________

* Former Justice specially assigned to the Superior Court.

135 P.S. § 780–113 (a)(30), (16), and (32), 18 Pa.C.S.A. §§ 901 (35 P.S. §
780-113(a)(30) related), 7512(a), and 2506(a); respectively.
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Sunday, April 15, 2018, Diane Sampson returned to her home where she

resided with her son, Joseph Samson. (N.T. Trial, 5/13/19, at 17). Upon

entering the home, Ms. Sampson immediately noticed on the dining room

table “a teaspoon with stuff in it, a little, tiny syringe and some kind of paper

stuff beside it.” (Id. at 22). Shortly thereafter, Ms. Sampson discovered her

son unconscious with the telephone up to his ear. (Id.) Ms. Sampson

immediately called 911. (Id.) The coroner determined that Joseph Samson

“died of a drug toxicity, primarily involving heroin and fentanyl,” and listed his

cause of death as acute fentanyl toxicity. (Id. at 53).

At trial, Detective Matt Benacci testified that he is the coordinator of the

Erie County Drug Task Force and had been a narcotics investigator for 17

years. (N.T. Trial, 5/14/19, at 7). Detective Benacci was notified that a drug

overdose occurred at Ms. Sampson’s home. (Id. at 8). Once the detective

arrived at Ms. Sampson’s home, he observed used drug paraphernalia and a

small sandwich baggie which contained paper, specifically a coloring book

page. The detective found drugs inside the coloring book page. (Id. at 9).

Detective Benacci testified that he had never seen drugs packaged in a

coloring book before. (Id.)

In addition to the drugs found at the scene, the police recovered the

decedent’s cellular phone. (Id.) Detective Benacci explained the importance

of the cell phone as “[p]robably the most important” piece of evidence because

it can serve as a “link between the victim and their dealer or anyone else who

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may have information regarding what happened prior to or after the person’s

death.” (Id.) A search of the decedent’s cell phone revealed a contact with

a name “Nick C” and a phone number. (Id.) Detective Benacci checked the

police database for any “Nick C” with the same phone number, and he

uncovered Appellant’s name. (Id. at 10).

On the following day, April 16, 2018, Detective Benacci attempted to

use the decedent’s cell phone to pose as the decedent and contact Appellant.

(Id. at 11). Detective Benacci intended to arrange a “buy bust” with

Appellant, where the police would arrange a drug sale with Appellant and then

arrest him immediately following the sale. (Id. at 13). When the police

contacted Appellant’s phone, however, police received a text message in

response indicating that the message to Appellant was blocked and not

received. (Id. at 14). Because Detective Benacci was unable to contact

Appellant, he went to Appellant’s residence to conduct surveillance. (Id. at

15). During the surveillance, Detective Benacci saw Appellant drive from his

residence to a laundromat parking lot. (Id. at 16). Once Appellant parked,

someone got into the backseat of his car, and Detective Benacci then

approached the car and arrested Appellant. (Id. at 17).

A search of Appellant’s car yielded a black bag located at Appellant’s

feet containing “numerous items of heroin and fentanyl and

methamphetamines.” (Id. at 19). In addition, the police searched Appellant,

and found money, and a small “zip baggie that contained two quantities of

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drugs, one of which was the heroin/fentanyl that was wrapped in a magazine

paper, and the other—methamphetamines—was in the same coloring book

paper” that the police recovered at the decedent’s residence. (Id.) Detective

Benacci stressed that the same packaging that was recovered at the

decedent’s home was found on Appellant’s person. (Id. at 19-20).

After his arrest, Appellant agreed to speak with Detective Benacci, and

the detective provided Appellant with written Miranda2 warnings. (Id. at 91).

During this interview, Appellant admitted that he sold the decedent drugs on

the prior Friday and Saturday nights. (Id. at 96). Specifically, Detective

Benacci testified that Appellant stated that he sold the decedent drugs on

Saturday night, April 14th, between “10:00 to 11:00 P.M.” (Id.)

Appellant testified in his defense that he was a drug dealer who typically

sold methamphetamine and heroin. (N.T. Trial, 5/15/19, at 51). Appellant

explained that he would package the drugs by placing the methamphetamine

in coloring book paper, and the heroin in magazine paper. (Id. at 52).

Appellant admitted that he sold the decedent methamphetamine on Friday

April 13, 2018, but he denied selling the decedent any drugs on Saturday April

14th. (Id. at 53, 65). On cross-examination, Appellant conceded that on April

16th, the day he was arrested, he possessed a combined powder substance

containing both heroin and fentanyl, which had been wrapped in magazine

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2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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paper. (Id. at 93). Appellant also admitted that the decedent texted

Appellant to purchase more drugs from him on Saturday April 14 th. (Id. at

78). Shortly after receiving the text message, Appellant and the decedent

had a phone conversation. (Id.) Appellant conceded that during his interview

with Detective Banacci he admitted that he sold the decedent drugs around

10:00 p.m., and slept the following day, which was Sunday, April 15th. (Id.

at 80).

On May 16, 2019, a jury found Appellant guilty of PWID and related

offenses. The jury was hung on Count 1, drug delivery resulting in death, and

the court declared a mistrial on that count. On July 22, 2019, Appellant

entered a guilty plea to Count 1, drug delivery resulting in death. During the

guilty plea hearing, Appellant admitted that he sold heroin and/or fentanyl to

the decedent causing his death on or around April 14, 2018. (See N.T. Guilty

Plea Hearing, 7/22/19, at 6). Following the plea hearing, the court sentenced

Appellant to an aggregate term of 7-14 years’ incarceration followed by a

consecutive one year of probation.

Following the filing of a collateral relief petition, the court reinstated

Appellant’s direct appeal rights nunc pro tunc on July 20, 2020. On August

10, 2020, Appellant filed a motion to restore his post-sentence motion rights

nunc pro tunc. The court granted Appellant’s requested relief on August 19,

2020. On August 28, 2020, Appellant timely filed a post-sentence motion

nunc pro tunc, and motion to compel discovery, which the court denied on

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October 23, 2020. On October 30, 2020, Appellant filed a motion for

reconsideration of his motion to compel discovery. The court denied that

motion on November 13, 2020.

Appellant timely filed a notice of appeal nunc pro tunc on November 18,

2020. The next day, the court ordered Appellant to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal, and Appellant timely

complied.

Appellant raises the following issues for our review:

Whether the evidence was insufficient to support the guilty
verdict of Possession with Intent to Deliver Heroin/Fentanyl
(Count 2) to Victim Joseph Samson on April 14, 2018, where
there was no direct evidence that Appellant was in contact
with Samson on this day, and text messaging evidence used
by the Commonwealth suggests that the heroin/fentanyl
imbibed by Samson was acquired by an unknown third
party, and the drugs found on Appellant were packaged
differently from the packaging found at Samson’s home.

Whether the finding of guilt of Possession with Intent to
Deliver Heroin/Fentanyl was against the weight of the
evidence (Count 2) where there was no direct evidence that
Appellant was in contact with Samson on this day, and text
messaging evidence used by the Commonwealth suggests
that the heroin/fentanyl imbibed by Samson was acquired
by an unknown third party, and the drugs found on
Appellant were packaged differently from the packaging
found at Samson’s home.

Whether the Trial Court erred in Denying Appellant’s request
to withdraw his guilty plea when said plea was not made
voluntarily, knowingly or intelligently.

(Appellant’s Brief at 5).

In his first two issues combined, Appellant argues the Commonwealth

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failed to present sufficient evidence at trial to prove Appellant’s conviction for

PWID concerning the sale of heroin/fentanyl to the decedent on April 14, 2018.

Appellant avers the Commonwealth did not present any direct testimony that

placed Appellant with the decedent on April 14th. Appellant admits he sold the

decedent methamphetamine on April 13th, but he contends that the evidence

failed to establish that Appellant also sold the decedent heroin/fentanyl on

that day. Appellant maintains that he spent the entire day of April 14 th with

his wife and stepson, and that he never saw the decedent or contacted him

after selling him drugs on April 13th.

Appellant further challenges the weight of the evidence concerning this

PWID conviction. Appellant contends that the Commonwealth’s case relied on

text messages exchanged between Appellant and the decedent on April 13,

2018, and he insists that the drug packaging found near the decedent differed

from the drug packaging found when Appellant was arrested. Appellant

concludes this Court should vacate his convictions and/or remand for a new

trial. We disagree.

When examining a challenge to the sufficiency of evidence, our standard

of review is as follows:

The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the

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Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may
be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
[trier] of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe
all, part or none of the evidence.

Commonwealth v. Jackson, 215 A.3d 972, 980 (Pa.Super. 2019) (quoting

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal

denied, 613 Pa. 642, 32 A.3d 1275 (2011)).

When examining a challenge to the weight of the evidence, our standard

of review is as follows:

The finder of fact is the exclusive judge of the weight of the
evidence as the fact finder is free to believe all, part, or none
of the evidence presented and determines the credibility of
the witnesses. As an appellate court, we cannot substitute
our judgment for that of the finder of fact. Therefore, we
will reverse a jury’s verdict and grant a new trial only where
the verdict is so contrary to the evidence as to shock one’s
sense of justice. Our appellate courts have repeatedly
emphasized that one of the least assailable reasons for
granting or denying a new trial is the [trial] court’s
conviction that the verdict was or was not against the weight
of the evidence.

Commonwealth v. Rabold, 920 A.2d 857, 860 (Pa.Super. 2007), aff’d, 597

Pa. 344, 951 A.2d 329 (2008) (internal citations and quotation marks

omitted).

Moreover, where the trial court has ruled on the weight

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claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited
to whether the trial court palpably abused its discretion in
ruling on the weight claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(internal citations omitted).

The Controlled Substance, Drug, Device and Cosmetic Act defines PWID,

in relevant part, as follows:

§ 780-113. Prohibited acts; penalties

(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:

* * *

(30) Except as authorized by this act, the manufacture,
delivery, or possession with intent to manufacture or
deliver, a controlled substance by a person not registered
under this act, or a practitioner not registered or licensed by
the appropriate State board, or knowingly creating,
delivering or possessing with intent to deliver, a counterfeit
controlled substance.

* * *

35 P.S. § 780-113(a)(30). Thus, “[t]o establish the offense of [PWID], the

Commonwealth must prove beyond a reasonable doubt that the defendant

possessed a controlled substance with the intent to deliver it.”

Commonwealth v. Perez, 931 A.2d 703, 707-08 (Pa.Super. 2007). The

Commonwealth can establish the identity of the controlled substance at trial

by circumstantial evidence. Commonwealth v. Rickabaugh, 706 A.2d 826,

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844 (Pa.Super. 1997), appeal denied, 558 Pa. 607, 736 A.2d 603 (1999). See

also Commonwealth v. Bricker, 882 A.2d 1008, 1015 (Pa.Super. 2005)

(holding Commonwealth can establish all elements of PWID by circumstantial

evidence).

Instantly, in its opinion denying Appellant’s post-sentence motions

challenging the sufficiency and weight of the evidence, the trial court

reasoned:

Here, testimony at trial established that on April 15, 2018,
heroin/fentanyl, folded inside a coloring book page, was
found at the scene of an overdose death. The [decedent]’s
phone had a contact saved as “Nick C” and the phone
number was associated with [Appellant]. When [Appellant]
was taken into custody, heroin/fentanyl was discarded from
his person during transport. On [Appellant]’s person were
drugs wrapped in coloring book paper. When [Appellant]
was interviewed by the police, he acknowledged selling
drugs to the [decedent] on April 14, 2018. Thus, the
Commonwealth set forth sufficient evidence to prove
beyond a reasonable doubt that [Appellant] possessed
heroin/fentanyl with the intent to deliver the substance to
another person, and thus there was sufficient evidence to
sustain a conviction on Count 2.

* * *

[Additionally, f]or the reasons set forth above, [Appellant]’s
conviction at Count 2 [PWID] was not unsupported by the
weight of the evidence, nor was it so contrary to the
evidence as to shock one’s sense of justice.

(Trial Court Opinion, filed October 23, 2020, at 2). The record supports the

trial court’s rationale.

Here, Appellant does not dispute that he possessed and sold drugs to

the decedent. Rather, Appellant’s main complaint is that the Commonwealth

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failed to prove that he sold heroin/fentanyl to decedent or had contact with

him after April 13th. Nevertheless, Detective Benacci testified that Appellant

stated during his post-arrest interview that he sold the decedent drugs on

Friday, April 13th and Saturday, April 14th. The jury was free to reject

Appellant’s testimony to the contrary and to accept the testimony of the

Commonwealth’s witnesses. See Jackson, supra. The circumstantial

evidence also established that Appellant sold the decedent drugs on April 14th

based on text messages between the decedent and Appellant. See Bricker,

supra. Further, the jury was free to evaluate the evidence concerning the

packaging of the different drugs and identify the drugs sold by Appellant to

the decedent on April 14th as heroin/fentanyl. See Rickabaugh, supra.

Viewed in the light most favorable to the Commonwealth as verdict-winner,

the evidence was sufficient to sustain Appellant’s conviction for PWID. See

Jackson, supra. Likewise, we will not disturb the trial court’s decision to

deny Appellant’s challenge to the weight of the evidence. See Champney,

supra; Rabold, supra.

In his third issue, Appellant argues the court should have granted his

post-sentence motion to withdraw his guilty plea to Count 1, drug delivery

resulting in death, because this plea was not knowingly, intelligently, or

voluntarily entered. Appellant contends he entered a plea to this offense only

after the court declared a mistrial because the jury was unable to render a

unanimous verdict on this count. Appellant insists he is innocent of this

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offense, and that his plea counsel convinced him to plead guilty because

Appellant had no chance of winning at retrial. Further, Appellant claims that

plea counsel informed Appellant that if he pled guilty, he would receive the

benefit of a sentencing recommendation of 7-14 years’ incarceration to run

concurrent to his sentences for any prior convictions. Instead, the court

ordered Appellant to serve 7 to 14 years’ incarceration to run consecutive to

a prior sentence of 3½ to 11 years’ imprisonment. Appellant maintains that

he did not receive the benefit of the plea bargain as he understood it, and the

court’s refusal to allow him to withdraw his plea constitutes a manifest

injustice. Appellant concludes that he is entitled to some form of relief. We

disagree.

“[A] defendant who attempts to withdraw a guilty plea after sentencing

must demonstrate prejudice on the order of manifest injustice before

withdrawal is justified.” Commonwealth v. Pantalion, 957 A.2d 1267, 1271

(Pa.Super. 2008). “A plea rises to the level of manifest injustice when it was

entered into involuntarily, unknowingly, or unintelligently.” Id. (quoting

Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa.Super. 2002)). The

Pennsylvania Rules of Criminal Procedure mandate that pleas are taken in

open court and the court must conduct an on-the-record colloquy to ascertain

whether a defendant is aware of his rights and the consequences of his plea.

Commonwealth v. Hodges, 789 A.2d 764 (Pa.Super. 2002). Specifically,

the court must affirmatively demonstrate a defendant understands: (1) the

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nature of the charges to which he is pleading guilty; (2) the factual basis for

the plea; (3) his right to trial by jury; (4) the presumption of innocence; (5)

the permissible ranges of sentences and fines possible; and (6) that the judge

is not bound by the terms of the agreement unless he accepts the agreement.

Commonwealth v. Watson, 835 A.2d 786 (Pa.Super. 2003). This Court will

evaluate the adequacy of the plea colloquy and the voluntariness of the

resulting plea by examining the totality of the circumstances surrounding the

entry of that plea. Muhammad, supra. A guilty plea will be deemed valid if

an examination of the totality of the circumstances surrounding the plea shows

that the defendant had a full understanding of the nature and consequences

of his plea such that he knowingly and intelligently entered the plea of his own

accord. Commonwealth v. Rush, 909 A.2d 805 (Pa.Super. 2006).

Pennsylvania law presumes a defendant who entered a guilty plea was

aware of what he was doing and bears the burden of proving otherwise.

Commonwealth v. Pollard, 832 A.2d 517 (Pa.Super. 2003). A defendant

who decides to plead guilty is bound by the statements he makes while under

oath, “and he may not later assert grounds for withdrawing the plea which

contradict the statements he made at his plea colloquy.” Id. at 523. “Our

law does not require that a defendant be totally pleased with the outcome of

his decision to plead guilty, only that his decision be voluntary, knowing and

intelligent.” Id. at 524.

Instantly, Appellant executed a written guilty plea colloquy fully

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communicating his decision to plead guilty. (See Appellant’s Statement of

Understanding Rights, July 22, 2019, at 1 unpaginated). In the statement,

Appellant acknowledged the voluntariness of his plea and recognized the

rights he was relinquishing by pleading guilty, including his right to a trial by

judge or jury and his right to ensure the Commonwealth met its burden of

proof. Significantly, in the written statement, Appellant acknowledged the

following: “I understand that the maximum sentence for the crime(s) to which

I am pleading guilty/no contest is Count 1: $250,000/40 years.” (Id).

Appellant further acknowledged:

I understand that any plea bargain in my case is set forth
here and that there has been no other bargain and no other
promise or threat of any kind to induce me to plead guilty/no
contest. The only plea bargain in my case is pleading guilty
to Count 1. In exchange, the Commonwealth will
recommend a sentence of 7-14 years concurrent to the
charges the [Appellant] was convicted of at trial, with a term
of probation at the discretion of the [c]ourt.

(Id.)

On the same day, Appellant engaged in an oral guilty plea colloquy

before the court. (See N.T. Guilty Plea Hearing, 7/22/19). During the

hearing, Appellant affirmed his decision to plead guilty and acknowledged his

understanding of the plea agreement and his potential sentence. (Id. at 5).

Further, the Commonwealth recited the factual basis for the plea. (Id. at 6).

Appellant confirmed that he wished to plead guilty based upon the facts as

stated by the Commonwealth. (Id. at 7). Appellant also confirmed that he

had completed and signed the written plea colloquy, and he understood the

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consequences of entering his plea. (Id. at 4). Appellant further stated that

he understood that the court did not have to sentence him according to the

Commonwealth’s recommendation. (Id. at 11).

Here, the totality of the circumstances demonstrates that Appellant

entered a knowing, voluntary, and intelligent guilty plea. See Rush, supra;

Muhammad, supra. Additionally, the court sentenced Appellant in

accordance with the plea bargain. Nothing in Appellant’s plea agreement

precluded the court from imposing Appellant’s sentence at Count 1

consecutive to an unrelated sentence Appellant was serving. Therefore, the

court properly denied Appellant’s post-sentence motion seeking to withdraw

his guilty plea. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/2/2022

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