J-S10025-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA
:
v. :
:
:
NICOLE LIPPI :
:
Appellant : No. 3605 EDA 2016
Appeal from the Judgment of Sentence October 18, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004500-2016
BEFORE: BOWES, J., OLSON, J., and NICHOLS, J. MEMORANDUM BY OLSON, J.: FILED MAY 04, 2018 Appellant, Nicole Lippi, appeals from the judgment of sentence entered on October 18, 2016, following her bench trial conviction for criminal conspiracy to possess a controlled substance.1 We affirm.
The relevant historical facts are as follows:
[Philadelphia] Police Officer Raymond Sima testified that on October 13, [] 2015, at approximately [9:00 p.m.], he and a partner were working as part of a team conducting a narcotics surveillance on 1545 South 30th Street in Philadelphia when they were alerted by radio that a white female, a passenger in a gold Infiniti G35, had just made a [drug] purchase at the surveillance location after which the vehicle proceeded northbound towards Tasker Street. [Officer Sima and his partner] spotted the vehicle, pulled it over and observed the driver, a Michael Nelson who was later identified as [Appellant’s] brother, trying to stuff something in[to the left pocket of his hooded sweat shirt. After Nelson was asked] to remove his hand from the pocket, the
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1 18 Pa.C.S.A. § 903 and 35 P.S. § 780-113(a)(16).
J-S10025-18
officer could see blue glassine inserts that were inside the pocket, which field tested positive for heroin, and arrested him.
Police Officer Von Williams testified that she was one of the team that responded to the call, observed [Appellant] in the passenger seat and, based on information she had received from fellow officers, placed her under arrest. While she was doing so[, Appellant] stated that she purchased the narcotics for her brother. [Officer Williams] did not recover any narcotics from [Appellant’s] person.
Trial Court Opinion, 5/22/17, at 1-2, citing N.T., 10/18/16, at 5-9 and 10-12.
Based upon the foregoing events, Appellant was arrested and charged with simple possession of a controlled substance and criminal conspiracy. Appellant was found guilty of both charges at the conclusion of trial on April 8, 2016 in the Philadelphia Municipal Court. Thereafter, Appellant appealed to the trial court. Following a nonjury trial de novo on October 18, 2016,2 the court found Appellant guilty of conspiracy and not guilty of simple possession. On the same day, the court ordered Appellant to serve nine months’ probation for her conviction.
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2 At the trial de novo, Appellant denied that she told Officer Williams that she purchased narcotics for her brother. Trial Court Opinion, 5/22/17, at 2, citing N.T. Trial, 10/18/16, at 14-20. When reviewing sufficiency claims, appellate courts are required to view the evidence in the light most favorable to the Commonwealth as the verdict winner, thereby giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). Thus, under the applicable standard of review, we must accept the testimony of Officer Williams and disregard Appellant’s self-serving version of events.
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J-S10025-18
Appellant filed a timely pro se appeal on November 17, 2016. After many procedural developments, including the appointment of two replacement counsel and the filing of two substitute concise statements under Pa.R.A.P. 1925, Appellant presented the instant appeal in which she challenges the sufficiency of the evidence offered to show that she conspired to purchase contraband and pass it along to her brother. See Appellant’s Brief at 8.
We have carefully reviewed the certified record, the submissions of the parties, the opinions of the trial court, and the pertinent case law. Based upon our review, we conclude for the reasons expressed by the trial court that Appellant is not entitled to relief. See Trial Court Opinion, 11/1/17, at 6 (conspiracy established here in view of: 1) “the association between [A]ppellant and her brother and the joint use of his vehicle in executing the transactions (acquisition and transfer of possession [of contraband]), 2) [Appellant’s] obvious knowledge of the commission of those transactions, 3) [Appellant’s] presence at the scene of the crime, and 4) [Appellant’s] observed participation in the object of the conspiracy, [i.e.] the acquisition of an illegal drug). Moreover, as we find that the trial court has adequately and accurately addressed the issues raised in this appeal, we adopt the trial court’s opinion as our own. Accordingly, the parties are directed to attach a copy of the trial court’s November 1, 2017 opinion to all future filings relating to our disposition in this appeal. Judgment of sentence affirmed.
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J-S10025-18
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/4/18
Circulated 04/19/2018 01:34 PM
FILED
IN THE COURT OF COMMON PLEAS 2.0i7 NOV 0
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION - CRIMINAL SECTION Office of Judicial Records Appeals/Post Trial
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0004500-2016
VS.
SUPERIOR COURT
NICOLE LIPP! NO. 3605 EDA 2016
SUPPLEMENTAL PA.R.A.P. 1925(a) OPINION MAZZOLA, WILLIAM, J. OCTOBER ell , 20t7 The court submits this supplement to its R 1925(a) opinion of May 18, 2017, pursuant to the Superior Court's order of September 66 directing it to do so. To reiterate, the defendant, Nicole Lippi, filed this appeal from a judgment of sentence. She was arrested on October 14, 2015, and charged with the unlawful purchase and possession of a controlled substance and conspiracy.' On April 8, 2016, at a trial in the Philadelphia Municipal Court, where she was represented by appointed counsel, the Commonwealth withdrew the purchase charge, she was found guilty of possession and conspiracy and was sentenced to nine (9) month's reporting probation on the former and no further penalty on the latter.? She appealed pro se to this court, new counsel was appointed and at a nonjury trial on October 18th she was found not guilty of the possession but guilty of conspiracy and given the same sentence. No post sentence motions were filed and this timely appeal was filed pro se on November 17'h The issues presented therein, as stated by newly appointed counsel, were, in essence, that the evidence was insufficient as a matter of law to convict and that the conviction was against the weight of the evidence In its original 1925(a) opinion the trial court offered its view that, since counsel did not indicate En the
R 1925(b) Statement of Errors Complained of on Apperal how or why the evidence could be C P51 -CR-0004500-2016 Comm v Uppi, N mole Opine
Pa C S. §§ 780-113(a)(16)& (a)(19) & 18 Pa CS § 901 1..35 1111113M(111 1111 MC-51-CR-0032107-2015
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consideredinsuMcientand lacking appropriate weight to convict, the claims should.have been considered waived pursuant to the gide andthe:cited appellate deeisions interpreting it, and 'because theweight claim was not presented to the trial court as required. by .Pa R.Crim P 607(A) The court did..go on,, however,, to thoroughly summarize and eValuate. the evidence in order to demonstrate that it was generally.sufficient and of more than enough weight to convict Prio.r...to the:submission of that opinion, on January 30, 2017, Superior tourt.entered an order noting that on two occasions Appellant's appointed appellate counsel had failed to file a timely docketing statement arid remanded, the matter to the.trial court for a determination as to Whether counsel had abandoned Appellant: and to take further action as required to protect her right to appeal,..includin.g but not limited to, the appointmentofnew counsel. That attorney filed applications to withdraw,, on March 29th in Superior Court and March 30th in the trial: court, the latter.granted the motion on that date:and. appointed another attorney on April 3.. On the 24'" the Superior Court dismissed the applicatiOn to withdraw as moot, newly appointed counsel having filed a docketing statement on April 191'.. However; on June 26th, 'after that attorney had
.0).Stptemipt. described :above.and the trial, court filed its opinion and filed the Rule 1925
transmitted the record, that attorney filed an application to withdraw which the Court granted on July' 17th.and again:remanded to the:trial patirtinstr4ting it to determine whether Appellant was eligible.for.court appointed counscland take.the.appropriate. actions. The court did so and. present counsel was appointed who'on August20th.filed a request for a remand to. allowhini to file. another 1925(b,.)Statemeht which resulted in the .ourt's-September :6th order; The. new, Statement did hone the. issue somewhat and *limited it to insufficiency:
.).The evidence was. insufficient to .slipportap.pellant'scrininal conspiracy conviction because the commonwealth failed 'to prove beyond .4 reasonable doubt.
:that appellant or her alleged co -actor entered into an agreement with the other person the object of which was to jointly possess or:purchase .a controlled'. substance
MATTERS COMPLAINED OF ON APPEAL NUNCPRO TUNC, September. 7,2O17.That. is a slight probably unintended Mischaracterization...ofan..elt of the crime as it implies there must have been an agreement to. continue a joint possession as opposed to a transfer from one conspirator to the other at some point To more tersely summarize the Commonwealth's evidence as cited to and described. in.
the court's previous opinion; it showed that the Appellant was observed by police,. who were.. conducting a surveillance of a residence from which they suspected drug sales were being. made, to. have Made a purchase and get in a motor vehicle being operated by her. brother.. Other officers to. whom that was reported.stopped.the vehicle and observed the drug on the brother's person.
While he and the .appellant were being searched and arrested, the latter stated to one of the. Officers that she had purchased the narcotics for her brother The officer elaborated on how that
admission came about on cross examination:
Q. And you pulled her out of the car and arrested her based .on.information..from other officers; is that correct?
,A Yes, there were other officers...op.location; she was a female, got her out, I checked her .for any contraband which she did not have anything On. her. She stated that she did not have it. She purchased it amt.gaVe it to her brother Q How was this statement made? After, you put the cuffs on her when was [sic]
the statement made?
A I was checking her person, asked her did she have anything on her that I needed to know about, she said no, she purchased it and what she bought she gave to her brother, and that was it.
N.T.,. 10/18/.10, p. 12-13. As demonstrated by the court's summarization in its: previous .opininn, though she denied purchasing or. handing any drugs to her brother, her trial testimony actually fUrthetinferentially implicated her in the joint endeavor to acquire the drug. She claimed that, on the evening in.question,she..was in the car with her brother and that they had gone to.. her friend Carolann's:.house, the residence at which the police had observed her rriakethe purchase,. to pick up her food stamp card and phone charger which she had left there earlier. When she. was
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told that Caralann was not. home they left.and went..to her mOther-iri-law's.hoUse to borrow money to go food :shopping and were arrested. When they....stopped. there She claimed she did not at any point on that. date have any narcotics interpossetsion.. On cross .examination, when asked if her brother had driven all.the.Way. over from New Jersey where .he lived to take:. her food shopping, she stated..that:he had come over to."hang out", that they had visited Carolarin earlier that day when..she. left hex things there, .and denied telling the.ar.resting officer that shehad purchased the drugs for.her brother. The irial court., as the fact finder, simply chose to believe. 'the Commonwealth's 'version of facts Over hers as. being the more credible, considering in particular her admission tO.the officer that she had purchased the drugs forher brother to have been a rashly..ill-conceived lame: attempt.t0 dispel the ramifications of her observed involvement in the events.
The.standard of review for 'sufficiency Of the evidence claims is. well. settled:
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. finctevery element of the crime beyond areasOnable doubt In applying the above test,, we may not weigh the evidence and substitute our judgment for thefatt-finder: In addition we note that the 'fact and circumstances established by 'the CommonWealth, need not preclude every possibility .Ofinnocence Any doubts regarding a defendant's suilt may 17e. resolved by the, fact-fihder. unless the evidence is. so weak and inconclusive that as a matter of law no 'probability offact.may be drawn from the combined circurnstariees.
The Commonwealth may sustain its burden of proof or proving every element of the. crime beyond a reasonabledbubt by: mans of wholly circumstantial evidence. Moreover, in applying the above test the entirerecord must be evaluated and all the evidence actually 'received must be considered. Finally, the trier.offa.a.whi le. passing upon the..
credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commoriwea/.4h.v; Le,hazar4 .820 A. 2d .766,. 772 (Pa. Super ..2003) (citations. omitted),.
* *
The Commonwealth 'presented sufficient evidence to establish these crimes The crime of delivery was, completed upon appellant's delivery of the 'heroin to.
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Thomas l(trchoff. Appellant completed the conspiracy in Shamokin when. he agreed.totravel to Reading: to purchase the drugs. The receipt of the money and.
the trip to Reading were sufficient overt acts in furtherance of that conspiracy..
Finally, appellant's possession of the drugs as a result of his purchase in Reading provided sufficient evidence for the crime of possession with intent to deliver.
Commonwealth v Nahavandicin, 2004 PA. Super 136; 849 A 2d1221. 1229-30:(2004), :conviction for Drug Delivery Resulting in Death vacated and remandedfor reconsideration, 585Pa 460, 888 A 2d81.5.(2006), Although the appellant was acquitted of possession,eVidenCe*tendingito show that she acquired.possession.at some point also supports an element of a conspiracy.
As appellant ..was not in .physical possession of the contraband,. the Commonwealth was required to establish that he had constructive possession of the seized items to support his convictions;
Constructive possession is a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement. Constructive possession is an inference arising from a set of facts that.
possess ion of the contraband was more likely than not. We. have:
defined constructive possession as conscious dominion. We subsequently defined conscious dominion as the power to control the contraband and the intent to exercise that control To aid application, we have held that constructive possession may be established. by the totality .of the circumstances
Commonwealth v Brown, 48 A 3d 426, 430 (Pa Super 2012) appeal: denied; 61.9 Pa. 697, 63 A 3d 1243 (2013). (internal quotation marks and citation omitted)
Additionally, it is possible for two people to have joint: constructive possession of an item of contraband. Commonwealth v Bricker, 882 A.:2d 1008, 1016-1017 (Pa Super 2005).
Commonwealth v Kinard, 2014 PA Super 41, 95.A. 3d 279, 292 (2014) The facts that appellant was,obserVed obtaining the drug which ended up in her brother's Possession.. at some point after. she returned to his vehicle after she Was. seen to have purchased it were by themselves sufficient to support a conclusion beyond :a reasonable doubt that she had agreed to obtain it. for him
Pursuant.to.our standard of review, we find the testimony sufficient to support appellant's conviction for PWD See also Commonwealth v Nelson, 399 Pa Super 618, 582 A.2d 1115, 1119 (Pa.Super.1990),..appeal denied, 527 Po 664; 5P3.A 2d 840 (1991). (constructive possession may be found where no individual factor esiablishes.possession:but the totality of circumstances infer such).
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To prove criminal conspiracy,.. the Commonwealth must show a defendant entered into an agreement to commit or aid. in an unlawful act with another.
person; that heal* that person acted. with a shared criminal intent; and that an overt act was taken in furtherance of the conspiracy .18 Pa CS A § 903. "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," Commonwealth v Johnson, 719 2d 778; 785 (Pa Super 1998) (en banO),..qppeal denied, 559 Pa 689; 739. A 2d .1056 (1999) (citations omitted). Therefore, where the conduct of the patties.
indicates that they were acting in concert with A corrupt purpose in view, the existence of a.eriminal conspiracy may properly be inferred. Commonwealth v Snyder; 335 Pa Super 19, 483..A2d93.3, 942. (Pa..Super 1984): 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. Commonwealth v Swerdlow, 431 PaSuper 453., 636 A.2d. 1173, 1177 (Pa Super 1994)
Id A 3d at 292-93 The non-exclusive list of circumstances in this case were (1) the association between appellant and her brother and the joint use of his vehicle in executing the transactions (acquisition and transfer of possession),. (2) her obvious knowledge of the commission of those' transactions, (3) her presence at the scene of the crime, and (4). Observed.participation.ut the Object of conspiracy, the of an illegal drug.
In reviewing a challenge to the sufficiency of the evidence, we must determine:
...whether, viewing all the evidence admitted at trial,. together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that .eadh element of the offenses charged was supported by evidence and inferences :sufficient in law to prove guilt beyoncla reasonable doubt;
Commonwealth v, Jackson, 506 Pa. 469, 472-473, 485 A 2d 1102, 1103 (1984)
(citation omitted).
Under existing law in Pennsylvania, the Commonwealth need notproVe.an explicit .or fornial agreement in order to establish the existence of a criminal.
.conspirpcy..C9mmonwealth v. Mahltn, 270 Pa Super 290, 411 A 2d 532 (1979).
Agreement may be shown inferentially by showing the relation, conduct or circumstances of the parties. Commonwealth v Jackson, 1.upr.O. Overt acts of alleged. co-conspirators are sufficient proof of a conspiracy Commonwealth v .Kennedy. 499. Pa .189, 453 A 2d 927. (1982)
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Commonwealth v Rogers, 419 Pa. Super 122, .615 A 2d 55, 63 (1992) "Direct proof of the corrupt agreement, lioweer,. is.. not necessary. Commonwealth v Brown, 351 Pa Super 119, 505 A 2d 295 (1986)" comnibrOealikV,.Anderson, 381 Pa. Super 1, 552 A 2d 1064, 1071 (1988), appeal denied 524Pa, .616, 571 A 24.379 (1989) Although Present counsel did specify in the revised R. 1925(b) Statement that the Commonwealth's evidence failed to establish the element of an agreement,. he did not indicate how or. why that evidence could not be considered to have allowed ..the fact finder to justifiably draw the obvious inference that appellant had agreed to get some heroin for her brother. The only very weakly disputed evidence as more thoroughly cited in the trial court's previous opinion .Was more than sufficient to establish each and every element .of a, wholly executed conspiracy to illegally obtain and possess a drug Wherefore, the judgment of sentence should be affirmed.
BY THE COURT:
WILLIAMi AZZOLA,