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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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