J-S71006-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AQUIL COOPER : : Appellant : No. 3803 EDA 2017
Appeal from the Judgment of Sentence April 10, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008902-2012
BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY PANELLA, J.: FILED APRIL 26, 2019
Aquil Cooper appeals, nunc pro tunc, from the judgment of sentence
entered after he was found guilty of conspiracy to illegally possess a firearm.
On appeal, Cooper challenges the sufficiency of the evidence to support his
conviction. We affirm.
On November 29, 2011, Detective Steven Wilson (“Officer Wilson”) was
guarding the residence at 4715 Oakmont Street in Philadelphia in connection
with an earlier shooting on the block. At one point, Cooper attempted to leave
the residence and Officer Wilson directed him to remain inside pending the
arrival of a search warrant for the house.
While standing outside the house, Officer Wilson reported hearing a
“plopping sound” in the driveway on the side of the house. See N.T.,
11/18/2013, at 41. He investigated and discovered a black bag in the area J-S71006-18
from where the sound came from. When he looked up toward the house, he
saw the silhouette of a person in a window. Id., at 41-42.
Detective William Fiala and Detective Robert Killman then arrived with
the search warrant. Detective Wilson directed them to the side driveway where
they secured the black drawstring bag. Inside the bag, they found two loaded
firearms and two boxes of ammunition which were wrapped up and taped with
some clothes1.
Cooper and the owner of the home, Diana Sheard, were arrested at the
scene and transported for questioning. After being read his rights, which he
signed and dated, Cooper gave a statement to Detective Killman2, while
Detective Matthew Burkhimer was present. After being read her rights, Sheard
also provided a statement in which she admitted to buying the guns earlier in
the year. She also admitted to retrieving the guns and ammunition from inside
her residence, and tossing them out of the window so they would not be found
by police. See Written Statement of Diana Sheard, 11/30/2011, at 3.
On November 18, 20133, following a bench trial, Cooper was found guilty
of Conspiracy – Possession of a Firearm Prohibited. On April 10, 2014, he was
____________________________________________
1It was stipulated that all contents of the bag were recovered at the scene. See N.T., 11/18/2013, at 51.
2 Detective Killman has since retired from the police department.
3At the beginning of the hearing, Cooper’s attorney presented a suppression motion to suppress Cooper’s statement to police. After hearing from witnesses, the court denied the motion. See N.T., 11/18/2013, at 33.
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sentenced to thirty to sixty months incarceration with credit for time served.
He did not file an appeal.
On February 3, 2015, Cooper filed a timely pro se petition for relief
pursuant to the Post Conviction Relief Act (“PCRA”) in which he claimed
ineffective assistance of counsel and constitutional violations. Appointed
counsel then filed an amended petition seeking reinstatement of Cooper’s
appellate rights nunc pro tunc. The PCRA court subsequently granted the
petition. This timely appeal followed.
Cooper challenges the sufficiency of the Commonwealth’s evidence to
support his conviction for conspiracy to possess a prohibited firearm.
Specifically, Cooper argues there was no evidence to prove he possessed the
firearms or threw them out the window because his statement was unlawfully
induced and the police officers’ testimony was inconsistent.
Our standard of review for a challenge to the sufficiency of the evidence
is to determine whether, when viewed in a light most favorable to the verdict
winner, the evidence at trial and all reasonable inferences therefrom are
sufficient for the trier of fact to find that each element of the crimes charged
is established beyond a reasonable doubt. See Commonwealth v. Dale, 836
A.2d 150, 152 (Pa. Super. 2003). “The Commonwealth may sustain its burden
of proving every element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence.” Commonwealth v. Bruce, 916 A.2d 657,
661 (Pa. Super. 2007) (citation omitted).
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“The facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence.” Id. (citation omitted). “As an
appellate court, we do not assess credibility nor do we assign weight to any
of the testimony of record.” Commonwealth v. Kinney, 863 A.2d 581, 584
(Pa. Super. 2004) (citation omitted). Thus, we will not disturb the verdict
“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.” Bruce,
916 A.2d at 661 (citation omitted).
Further, “[a] sufficiency claim will not be reviewed on a diminished
record, but rather on the evidence actually presented to the finder of fact
rendering the questioned verdict.” Commonwealth v. Brown, 52 A.3d 1139,
1188 (Pa. 2012) (internal quotation marks and citations omitted). The
reviewing court must review “all of the evidence admitted, even improperly
admitted evidence, in conducting a sufficiency review.” Commonwealth v.
Coleman, 130 A.3d 38, 41 (Pa. Super. 2015).
A conspiracy conviction requires that the Commonwealth established
“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
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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. 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 996–997 (citation omitted).
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J-S71006-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AQUIL COOPER : : Appellant : No. 3803 EDA 2017
Appeal from the Judgment of Sentence April 10, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008902-2012
BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY PANELLA, J.: FILED APRIL 26, 2019
Aquil Cooper appeals, nunc pro tunc, from the judgment of sentence
entered after he was found guilty of conspiracy to illegally possess a firearm.
On appeal, Cooper challenges the sufficiency of the evidence to support his
conviction. We affirm.
On November 29, 2011, Detective Steven Wilson (“Officer Wilson”) was
guarding the residence at 4715 Oakmont Street in Philadelphia in connection
with an earlier shooting on the block. At one point, Cooper attempted to leave
the residence and Officer Wilson directed him to remain inside pending the
arrival of a search warrant for the house.
While standing outside the house, Officer Wilson reported hearing a
“plopping sound” in the driveway on the side of the house. See N.T.,
11/18/2013, at 41. He investigated and discovered a black bag in the area J-S71006-18
from where the sound came from. When he looked up toward the house, he
saw the silhouette of a person in a window. Id., at 41-42.
Detective William Fiala and Detective Robert Killman then arrived with
the search warrant. Detective Wilson directed them to the side driveway where
they secured the black drawstring bag. Inside the bag, they found two loaded
firearms and two boxes of ammunition which were wrapped up and taped with
some clothes1.
Cooper and the owner of the home, Diana Sheard, were arrested at the
scene and transported for questioning. After being read his rights, which he
signed and dated, Cooper gave a statement to Detective Killman2, while
Detective Matthew Burkhimer was present. After being read her rights, Sheard
also provided a statement in which she admitted to buying the guns earlier in
the year. She also admitted to retrieving the guns and ammunition from inside
her residence, and tossing them out of the window so they would not be found
by police. See Written Statement of Diana Sheard, 11/30/2011, at 3.
On November 18, 20133, following a bench trial, Cooper was found guilty
of Conspiracy – Possession of a Firearm Prohibited. On April 10, 2014, he was
____________________________________________
1It was stipulated that all contents of the bag were recovered at the scene. See N.T., 11/18/2013, at 51.
2 Detective Killman has since retired from the police department.
3At the beginning of the hearing, Cooper’s attorney presented a suppression motion to suppress Cooper’s statement to police. After hearing from witnesses, the court denied the motion. See N.T., 11/18/2013, at 33.
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sentenced to thirty to sixty months incarceration with credit for time served.
He did not file an appeal.
On February 3, 2015, Cooper filed a timely pro se petition for relief
pursuant to the Post Conviction Relief Act (“PCRA”) in which he claimed
ineffective assistance of counsel and constitutional violations. Appointed
counsel then filed an amended petition seeking reinstatement of Cooper’s
appellate rights nunc pro tunc. The PCRA court subsequently granted the
petition. This timely appeal followed.
Cooper challenges the sufficiency of the Commonwealth’s evidence to
support his conviction for conspiracy to possess a prohibited firearm.
Specifically, Cooper argues there was no evidence to prove he possessed the
firearms or threw them out the window because his statement was unlawfully
induced and the police officers’ testimony was inconsistent.
Our standard of review for a challenge to the sufficiency of the evidence
is to determine whether, when viewed in a light most favorable to the verdict
winner, the evidence at trial and all reasonable inferences therefrom are
sufficient for the trier of fact to find that each element of the crimes charged
is established beyond a reasonable doubt. See Commonwealth v. Dale, 836
A.2d 150, 152 (Pa. Super. 2003). “The Commonwealth may sustain its burden
of proving every element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence.” Commonwealth v. Bruce, 916 A.2d 657,
661 (Pa. Super. 2007) (citation omitted).
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“The facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence.” Id. (citation omitted). “As an
appellate court, we do not assess credibility nor do we assign weight to any
of the testimony of record.” Commonwealth v. Kinney, 863 A.2d 581, 584
(Pa. Super. 2004) (citation omitted). Thus, we will not disturb the verdict
“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.” Bruce,
916 A.2d at 661 (citation omitted).
Further, “[a] sufficiency claim will not be reviewed on a diminished
record, but rather on the evidence actually presented to the finder of fact
rendering the questioned verdict.” Commonwealth v. Brown, 52 A.3d 1139,
1188 (Pa. 2012) (internal quotation marks and citations omitted). The
reviewing court must review “all of the evidence admitted, even improperly
admitted evidence, in conducting a sufficiency review.” Commonwealth v.
Coleman, 130 A.3d 38, 41 (Pa. Super. 2015).
A conspiracy conviction requires that the Commonwealth established
“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
-4- J-S71006-18
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. 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 996–997 (citation omitted).
Cooper’s argument that there was no evidence that he possessed the
firearm is a red herring. It is immaterial that Officer Wilson only saw one
silhouette in the window after the bag was thrown or whether Sheard alone
threw the bag out of the window. A charge of conspiracy does not require a
finding that both actors performed the overt act, but simply requires that an
overt act was committed by one of the co-conspirators. See Commonwealth
v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002).
Further, although Cooper never fully develops this argument, his claim
that the verdict was contrary to law because the evidence introduced at trial
is simply circumstantial also misstates the law regarding conspiracy. “A
conspiracy is almost always proved through circumstantial evidence.” Id.
(citation omitted). However, the evidence must rise above mere suspicion. Id.
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Here, the court clearly relied on Cooper’s own admissions in his statement to
police in concluding that there had been a conspiracy planned.
We cannot independently verify what is stated in Cooper’s statement as
it was not made a part of the record4. However, it is clear from our reading of
the record that Cooper does not contest that he made the statements relied
on by the Commonwealth, but rather contends that he was lying when he said
them so he wouldn’t get charged for another crime. See N.T., 11/18/2013, at
285, 306.
Cooper briefly claims that his statement was unlawfully induced and
therefore there is no evidence to support his convictions without it. See
Appellant’s Brief, at 14. However, he has not raised a challenge to the trial
court’s decision to not grant suppression of the statement. The law is clear
that “we are required to consider all evidence that was actually received,
4 This failure arguably results in waiver of Cooper’s argument. “As an appellate court, our review is limited by the contents of the certified record.” Commonwealth v. Manley, 985 A.2d 256, 263 (Pa. Super. 2009). “A failure by Appellant to insure that the original record certified for appeal contains sufficient information to conduct a proper review constitutes waiver of the issue sought to be examined.” Id. (citations omitted). However, Cooper stipulated to the contents of his written statement at trial, see N.T., 11/18/2013, at 39, so we will rely on those parts of the statement read into the record.
5 “I mean, I lied cause I didn’t want to get charged with the murder.”
6“So I had to give him something so he won’t charge me with this shooting or what happened. So I told him -- I just told him – I just told him just, you know, made the story.”
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without consideration as to the admissibility of that evidence or whether the
trial court’s evidentiary rulings were correct.” Commonwealth v. Palmer,
751 A.2d 223, 227 (Pa. Super. 2000).
In the absence of evidentiary error, we review the record as it exists
when conducting a sufficiency review. Thus, it is clear from a review of the
entire record that in his statement to police Cooper admitted that he discussed
disposing of the firearms with Sheard, they agreed to hide the guns by
wrapping them in clothes in the black bag, and that he tossed the bag from
the window into the alley. See N.T., 12/15/2011, at 12. Cooper stipulated that
Officer Wilson later found that same bag. See N.T., 11/18/2013, at 49.
Further, Cooper stipulated that at the time of his arrest he was ineligible to
possess a firearm under the Uniform Firearms Act due to an earlier robbery
conviction. See id., at 56. This evidence was sufficient to sustain his
conviction for conspiracy.
We conclude that Cooper’s claim is without merit. As this is the only
issue presented by Cooper on appeal, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judge Dubow did not participate in the consideration or decision of this case.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/26/19
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