Com. v. Anderson, M.

• Court: Superior Court of Pennsylvania
• Decided: July 24, 2018
• Docket: 1336 MDA 2017
• Status: Unpublished

Opinion

J-S20016-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL N. ANDERSON : : Appellant : No. 1336 MDA 2017

Appeal from the Judgment of Sentence June 22, 2017 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0001507-2015

BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY OTT, J.: FILED JULY 24, 2018

Michael N. Anderson appeals from the judgment of sentence imposed

June 22, 2017, in the Dauphin County Court of Common Pleas. The trial court

sentenced Anderson to an aggregate term of 16 to 36 months’ imprisonment,

following his jury conviction of possession with intent to deliver controlled

substances (“PWID”), criminal conspiracy, and criminal use of a

communication facility,1 for his participation in a controlled drug buy. On

appeal, Anderson challenges the sufficiency and weight of the evidence

supporting his convictions of PWID and criminal conspiracy. For the reasons

below, we affirm.

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1 See 35 P.S. § 780-113(a)(30), and 18 Pa.C.S. §§ 903 and 7512(a), respectively. J-S20016-18

The facts presented during Anderson’s jury trial were summarized by

the trial court as follows:

The testimony at trial revealed that on February 10, 2015, the Pennsylvania Office[] of Attorney General, Bureau of Narcotics Investigation and Drug control were [sic] conducting a “buy/bust” operation.6 Agent Cynthia Pugh of the Pennsylvania Office of Attorney General testified that she received information from a confidential informant about a large quantity of heroin for sale in Harrisburg. Agent Pugh conducted surveillance during the investigation on February 10, 2015. She was notified that one of the possible suspects lived at 4210 Williamsburg Court, Harrisburg PA (the apartments across from the Colonial Park Mall). As she was conducting surveillance, Agent Pugh noticed a Mr. Brown coming out of the residence and get into a silver Jeep with New Jersey tags. This jeep proceeded to the Colonial Park Mall. Here, Mr. Brown and the driver (later identified as [Michael] Anderson), proceed to enter the Colonial Park Mall near the food court. Agent Pugh followed Mr. Brown and [Anderson] into the mall. At this point, Agent Pugh did not notice Mr. Brown carrying anything in his hands nor was there anything bulging out of his clothing. Oscar Robinson8 and the other confidential informant (“Cl” ) sit down with Mr. Brown and [] Anderson for a couple of minutes and then proceed to exit the mall and go back to [] Anderson’s jeep. Through Agent Pugh, the Commonwealth introduced photographs of the investigation. __________ 6 A buy/bust operation is one where police officers go undercover or employ confidential informants (Cl’s) to set up a drug transaction. Immediately after the drug transaction, the person selling or buying the drugs is arrested. 8Mr. Robinson was also a confidential informant. __________

James McBride, a Narcotics II agent with the Pennsylvania Office of Attorney General also assisted with the investigation. Agent McBride was assigned to help with the Cl’s during the buy- bust operation. Agent McBride searched the Cl’s and the Cl’s vehicles prior to the buy-bust to ensure that no money nor contraband was present. Additionally, Agent McBride testified

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that he kept the Cl’s in his view the whole time to the mall and that there were no stops. Finally, Agent McBride testified that when Mr. Brown fled the scene, he gave pursuit and did not notice a phone being thrown by Mr. Brown. Michael Cranga, an agent with the Pennsylvania Office of Attorney General, Bureau of Narcotics Investigation and Drug Control, testified that he was also present at the buy-bust on February 10, 2015 and took [Anderson] into custody. When Agent Cranga searched [Anderson], he recovered three (3) cell phones on his person.

The Commonwealth next introduced the testimony of Oscar Robinson (one of the Cl’s). Mr. Robinson, who goes by the nickname Tim, testified that he contacted the Office of Attorney General in hopes of working off some of his pending charges.10 Mr. Robinson testified how he went about setting up the drug buy with [Anderson] through messaging through Facebook and the cell phone messaging (who goes by the nickname Slick). Mr. Robinson testified to an early drug transaction involving [Anderson] that occurred at the Harrisburg East Mall. Mr. Robinson testified that he bought heroin from Slick ([Anderson]) and that Earl set up the deal.11 Mr. Robinson also testified to the transaction that took place at the Colonial Park Mall, including his communication with Earl and Slick. Mr. Robinson testified that it was [Anderson] who wanted to do the drug transaction at the Colonial Park Mall. Finally, Mr. Robinson testified that [Anderson] got into the front seat of the jeep and reached down the center console near the gear shift and pulled out a black bag containing the drugs. __________ 10 Mr. Robinson has several charges pending in Dauphin and Cumberland Count[ies]. 11Andrew Earl Brown, who sometimes goes by Earl, was with [Anderson] on the day of the investigation. __________

Agent Lauren Hoffman of the Attorney General’s Office, Bureau of Narcotics and Drug Control, worked with the Cl, Mr. Robinson. It was decided that a buy-bust operation would be set up involving [Anderson]. Agent Hoffman maintained surveillance on Mr. Robinson during the course of the buy-bust transaction. After [Anderson] was arrested, the jeep was searched and a “black bag, grocery style type plastic bag with individual wrapped heroin” was discovered. Through Agent Hoffman, the Commonwealth also introduced Commonwealth’s Exhibit 11 which was an insurance

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card and registration card belonging to [Anderson]. Finally, Agent Hoffman testified that three phones were removed from [Anderson] after he was arrested and inside one of these phones were two packets of heroin.

The defense offered the testimony of Andrew Brown, the co- conspirator involved in this case. Mr. Brown is currently serving a sentence in SCl-Benner for being arrested with 30 bricks of heroin. Mr. Brown testified that [] Anderson lives in Newark, New Jersey and that [] Anderson and Mr. Brown were having lunch with each other. Mr. Brown is a personal assistant to [] Anderson. Mr. Brown also testified that he ran from the police on the day of the drug buy because he did not want to go to jail and that it was himself that brought the drugs back from Newark, New Jersey. Finally, Mr. Brown testified on direct that he plead guilty and is currently serving a four (4) to eight (8) year sentence. On cross, Mr. Brown testified that during his guilty plea colloquy, the charges and facts were read to him [implicating] his co-defendant, [] Anderson.

Trial Court Opinion, 9/21/2017, 2-5 (record citations and some footnotes

omitted).

As noted above, Anderson was charged with PWID, criminal conspiracy,

and criminal use of a communication facility. His case proceeded to a jury

trial, and on June 22, 2017, the jury found him guilty of all charges. That

same day, the trial court sentenced Anderson to concurrent terms of 16 to 36

months’ imprisonment on the charges of PWID and conspiracy, as well as a

concurrent term of 12 to 36 months’ imprisonment on the charge of criminal

use of a communication facility. Anderson filed a timely post-sentence motion

challenging the weight of the evidence, and requesting modification of his

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sentence. The court denied the motion on August 14, 2017, and this timely

appeal followed.2

We have consolidated Anderson’s four issues on appeal into the

following two claims: (1) whether the evidence was insufficient to support his

convictions of PWID and conspiracy; and (2) whether his convictions of PWID

and conspiracy were against the weight of the evidence.3

When considering a claim that the evidence is insufficient to support a

verdict, our standard of review is as follows:

[W]hether 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 [that of] the fact- finder. In addition, we note that the facts and circumstances established by the 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. ____________________________________________

2 On August 23, 2017, the trial court ordered Anderson to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Anderson complied with the court’s directive, and filed a concise statement on September 18, 2017.

3 We note Anderson does not challenge his conviction of criminal use of a communication facility.

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Commonwealth v. Vargas, 108 A.3d 858, 867–868 (Pa. Super. 2014)

(quotations omitted), appeal denied, 121 A.3d 496 (Pa. 2015).

“[T]he Commonwealth must prove both the possession of the controlled

substance, and the intent to deliver the controlled substance” in order to

sustain a conviction for PWID. Commonwealth v. Roberts, 133 A.3d 759,

767 (Pa. Super. 2016) (quotation omitted), appeal denied, 145 A.3d 725 (Pa.

2016). Possession of the substance may be “actual, constructive or joint

constructive possession.” Id. (quotation omitted). Constructive possession,

which may be proven by circumstantial evidence, “is an inference arising from

a set of facts that possession of the contraband was more likely than not.”

Id. at 768 (quotations omitted).

Pursuant to 18 Pa.C.S. § 903, a conviction of criminal conspiracy

requires proof that:

a defendant entered into an agreement to commit or aid in an unlawful act with another person; that he and that person acted with a shared criminal intent; and that an overt act was taken in furtherance of the conspiracy. “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.” Therefore, where the conduct of the parties indicates that they were acting in concert with a corrupt purpose in view, the existence of a criminal conspiracy may properly be inferred. This court has held that the presence of the following non-exclusive list of circumstances when considered together and in the context of the crime may establish proof of a conspiracy: (1) an association between alleged conspirators, (2) knowledge of the commission of the crime, (3) presence at the scene of the crime, and (4) participation in the object of the conspiracy.

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Commonwealth v. Kinard, 95 A.3d 279, 293 (Pa. Super. 2014) (internal

citations omitted).

Conversely, a challenge to the weight of the evidence necessarily

concedes the evidence was sufficient to support the verdict.4

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013) (citations

omitted), cert. denied, 134 S.Ct. 1792 (U.S. 2014). Rather, a defendant

raising a weight claim “seeks a new trial on the ground that the evidence was

so one-sided or so weighted in favor of acquittal that a guilty verdict shocks

one’s sense of justice.” Id.

When considering a weight claim, our review is focused on the trial

court’s exercise of discretion in granting or denying a new trial based on the

weight of the evidence, and “not of the underlying question of whether the

verdict is against the weight of the evidence.” Commonwealth v. Widmer,

744 A.2d 745, 753 (Pa. 2000) (internal citations omitted).

Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court’s determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court’s conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.

However, the exercise of discretion by the trial court in granting or denying a motion for a new trial based on a challenge to the weight of the evidence is not unfettered. The propriety of the ____________________________________________

4 We note Anderson properly preserved his weight of the evidence claim in a timely filed post-sentence motion. See Pa.R.Crim.P. 607(A)(3).

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exercise of discretion in such an instance may be assessed by the appellate process when it is apparent that there was an abuse of that discretion.

Id. “In order for an appellant to prevail on a challenge to the weight of the

evidence, ‘the evidence must be so tenuous, vague and uncertain that the

verdict shocks the conscience of the court.’” Roberts, supra, 133 A.3d at

770.

Here, with respect to his PWID conviction, Anderson contends there was

no evidence he knew Brown had arranged to sell heroin to Robinson on the

day in question. See Anderson’s Brief at 15. He notes the testimony revealed

he stayed behind in the food court when Brown, Robinson, and the other

confidential informant left to complete the transaction, and then remained

outside of the Jeep when he subsequently joined them. See id. at 15-16.

Furthermore, Anderson emphasizes Brown’s testimony that the flip phone

recovered from him, which contained heroin in the battery compartment, was

actually Brown’s phone that he left behind in the food court. See id. at 16.

Anderson maintains the text messages recovered from the phone support this

assertion. Moreover, Brown testified that the heroin was not stored in the

Jeep, but rather, he had been carrying it on his person. See id. at 17.

With regard to his conviction of criminal conspiracy, Anderson similarly

insists “the Commonwealth did not show that Anderson had knowledge of the

crime Brown was about to commit” and, in fact, “Brown testified that Anderson

was not involved and did not know that he was going to sell heroin.” Id. at

26. Although there were messages directed to Anderson on the flip phone,

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Anderson maintains these messages would be expected since Brown was his

“public relations officer.” Id. Further, other messages on the phone directed

to “Ny” supported Brown’s testimony that the only other person who used the

phone was Brown’s friend, Nyreek. Id. at 26-27.

In arguing the verdicts were against the weight of the evidence,

Anderson insists Brown’s testimony should have been given more weight than

Robinson’s testimony. See id. at 22, 27. Anderson contends Robinson’s

testimony was inconsistent and contradictory – Robinson testified the date he

first met Anderson was six months after the drug deal at issue; Robinson

deleted Facebook messages regarding an alleged prior transaction with

Anderson; Robinson testified at trial that Anderson got in the Jeep during the

transaction, but told police in his written statement taken the day of the

transaction that Anderson stayed outside the Jeep; and Robinson changed his

position in the Jeep during his testimony. See id. at 19-21, 28-30.

Moreover, Anderson emphasizes Robinson “specifically went to the Attorney

General’s Office looking for leniency on his own charges,” while “Brown had

much to lose by testifying for Anderson.” Id. at 19, 30. In fact, Anderson

maintains Brown “could have obtained a favorable plea deal if he chose to

testify against Anderson.”5 Id. at 24.

After our independent review of the record, the parties’ briefs, and the

relevant statutory and case law, we find the trial court thoroughly analyzed

5 We note there is absolutely no support for this claim in the record.

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and properly disposed of Anderson’s claims in its September 21, 2017,

opinion. See Trial Court Opinion, 9/21/2017, at 5-10 (concluding (1) the

evidence was sufficient to support Anderson’s conviction of PWID because (a)

Robinson testified “how he set up the drug buy and his involvement with

[Anderson],”6 (b) police surveillance observed Anderson pick up Brown in his

Jeep, (c) Brown was not carrying anything when he got in the Jeep, and there

was no bulge in his clothing hiding 30 bricks of heroin, and (d) one of the

three cell phones recovered from Anderson contained two packets of heroin;

(2) the evidence was sufficient to support Anderson’s conviction of criminal

conspiracy because (a) while Anderson did not “physically handle the drug

transaction, he clearly took an active role in the illicit enterprise” 7 by driving

from New Jersey (where Brown testified he obtained his supply), picking up

Brown, and driving him to the location of the transaction, (b) he was seen

driving a Jeep containing a large amount of heroin, and (c) he was carrying a

cell phone that had two hidden packets of heroin; and (3) verdicts were not

against the weight of the evidence because (a) it was “within the sole province

of the jury to make credibility determinations regarding conflicting

testimony,”8 and (b) Brown’s credibility was at issue because he had pled

6 Trial Court Opinion, 9/21/2017, at 7.

7 Id. at 9.

8 Id. at 8, 10.

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guilty to the crimes, was Anderson’s personal assistant, and fled from police

at the time of the incident).

Accordingly, we affirm the judgment of sentence on the court’s well-

reasoned bases.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 07/24/2018

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