Com. v. Reed, A. (memorandum)

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J.S53040/13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. ALPHONSO REED, Appellant : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 244 MDA 2013 Appeal from the Judgment of Sentence January 23, 2013 In the Court of Common Pleas of Lebanon County Criminal Division No(s).: CP-38-CR-0001482-2011 BEFORE: BENDER, LAZARUS, and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 25, 2013 Appellant, Alphonso Reed, appeals from the judgment of sentence entered in the Lebanon County Court of Common Pleas following his convictions, after a bench trial, for possession with intent to distribute a controlled substance1 ( PWID ), criminal use of a communication facility,2 and conspiracy.3 He challenges the sufficiency and weight of the evidence. We affirm. * Former Justice specially assigned to the Superior Court. 1 35 P.S. § 780-113(a)(30). 2 18 Pa.C.S. § 7512. 3 18 Pa.C.S. § 903. J. S53040/13 We adopt the facts and procedural history set forth by the trial court s opinion. See Trial Ct. Op., 3/27/13, at 2-4. On January 23, 2013, the court sentenced Appellant to an aggregate term of four to ten years imprisonment. Appellant did not file a post-sentence motion. Appellant filed a timely notice of appeal on January 29, 2013, and timely filed a courtordered Pa.R.A.P. 1925(b) statement, which challenged the sufficiency and weight of the evidence, as follows: The trial court erred in its verdict against the Appellant as the Commonwealth s evidence was insufficient to support his conviction and the weight of the evidence was wrongly applied in the Commonwealth s favor. Appellant s Pa.R.A.P. 1925(b) Statement, 3/4/13, at 1. The issue Appellant raises in his appellate brief is essentially identical to the above. See Appellant s Brief at 8. In his brief, Appellant complains that the Commonwealth did not sufficiently establish him to be the perpetrator and that he delivered a controlled substance. He suggests that his convictions were against the weight of the evidence because the evidence was unreliable and contradictory. We hold Appellant is not entitled to relief. We address Appellant s weight challenge first. Initially, we note that a challenge to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict. Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). This Court cannot entertain a challenge to the weight of the evidence since [its] examination is confined to the cold record. -2- J. S53040/13 Commonwealth v. Brown, 648 A.2d 1177, 1191 (Pa. 1994) (citation omitted). We only review whether the trial court abused its discretion when it evaluated the challenge. Id. (limiting review of weight of evidence to whether trial court abused discretion and not assessing credibility of witnesses). For these reasons, a challenge to the weight of evidence may not be raised for the first time on appeal. Id.; see also Pa.R.A.P. 607(a). Thus, if the issue is not raised with the trial court initially, it is waived. Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009). Instantly, Appellant did not file a post-sentence motion. Further, Appellant has not indicated where in the record he raised his weight challenge with the court. See Pa.R.A.P. 2117(c), 2119(e). Pursuant to our Supreme Court s mandate in Sherwood, we hold Appellant waived his challenge to the weight of the evidence. See id. With respect to Appellant s challenge to the sufficiency of the evidence, the standard of review for a challenge to the sufficiency of evidence is de novo, as it is a question of law. Commonwealth v. Ratsamy, 934 A.2d 1233, 1235 (Pa. 2007).4 Our Crimes Code defines the offense of PWID as follows: 4 A claim that the evidence offered at trial was insufficient to sustain the verdict requires the defendant to identify the element or elements of the crimes which were allegedly not proven in the Rule 1925(b) statement; otherwise, the insufficiency claim is waived. Commonwealth v. Flores, 921 A.2d 517, 522 (Pa. Super. 2007). Our Supreme Court, however, has found that when the basis for the sufficiency challenge is relatively -3- J. S53040/13 (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). In order to uphold a conviction for possession of narcotics with the intent to deliver, the Commonwealth must prove beyond a reasonable doubt that the defendant possessed a controlled substance and did so with the intent to deliver it. Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000) (en banc). With respect to criminal use of a communication facility: the Commonwealth must prove beyond a reasonable doubt that: (1) Appellant[ ] knowingly and intentionally used a communication facility; (2) Appellant[ ] knowingly, intentionally or recklessly facilitated an underlying felony; and (3) the underlying felony occurred. The law of our Commonwealth compels this result. Facilitation has been defined as any use of a communication facility that makes easier the commission of the underlying felony. Commonwealth v. Moss, 852 A.2d 374, 382 (Pa. Super. 2004) (citation omitted) (construing 18 Pa.C.S. § 7512). straightforward, this Court should conduct the requested sufficiency review. Commonwealth v. Laboy, 936 A.2d 1058, 1060 (Pa. 2007) (holding, in relatively straightforward drug case, Superior Court should review sufficiency challenge despite inadequate preservation of claim in Pa.R.A.P. 1925(b) statement). In this case, despite Appellant s failure to identify in the Rule 1925(b) statement the elements of the crimes allegedly not established by the Commonwealth, this is a relatively straightforward drug case. See id.; Flores, 921 A.2d at 522. -4- J. S53040/13 Finally, in Commonwealth v. Knox, 50 A.3d 732 (Pa. Super. 2012), appeal denied, 69 A.3d 601 (Pa. 2013), our Court set forth the elements of conspiracy: [T]o sustain a conviction for criminal conspiracy, the Commonwealth must 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. This overt act need not be committed by the defendant; it need only be committed by a co-conspirator. The essence of a criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished. Therefore, a conviction for conspiracy requires proof of the existence of a shared criminal intent. An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities. Thus, a conspiracy may be inferred where it is demonstrated that the relation, conduct, or circumstances of the parties, and the overt acts of the co-conspirators sufficiently prove the formation of a criminal confederation. Id. at 740 (citations omitted) (discussing 18 Pa.C.S. § 903). Instantly, after carefully reviewing the parties briefs, the certified record including the trial transcript, and the decision of the Honorable Charles T. Jones, Jr., we affirm on the basis of the trial court s opinion. See Trial Ct. Op. at 5 (summarizing trial testimony and holding that evidence, viewed in light most favorable to Commonwealth, established that Appellant arrived in response to phone call from co-defendant and fact-finder can reasonably be inferred that Appellant gave bag of controlled substance to -5- J. S53040/13 co-defendant; thus, evidence was sufficient to sustain convictions for PWID, criminal use of communication facility, and conspiracy). no error of law, we affirm the judgment of sentence. A.2d at 1235. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/25/2013 -6- Having discerned See Ratsamy, 934

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