J-A01030-23
2023 PA Super 106
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JESSIE JAMES :
:
Appellant : No. 1146 EDA 2022
Appeal from the Judgment of Sentence Entered October 28, 2021
In the Court of Common Pleas of Carbon County Criminal Division at
No(s): CP-13-CR-0000040-2018
BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J.
OPINION BY NICHOLS, J.: FILED JUNE 12, 2023
Appellant Jessie James appeals from the judgment of sentence imposed
after a jury convicted him of possession with intent to deliver (PWID),
conspiracy to deliver a controlled substance, possession of a controlled
substance (simple possession), and related offenses. Appellant argues that
his trial counsel was ineffective. Appellant also claims that the trial court erred
in denying his motion to amend his post-sentence motion to add a claim of
after-discovered evidence. Lastly, Appellant challenges the sufficiency and
the weight of the evidence. Following our review, we affirm the judgment of
sentence in part, and vacate in part as to the sentence for simple possession.
The trial court summarized the underlying facts and procedural history
in this case as follows:
Appellant was identified as a subject selling cocaine and other
controlled substances following an investigation conducted by
Officer Matthew Schwarz of the Jim Thorpe Police Department and
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other members of the Carbon County Drug Task Force.
Arrangements were made for a confidential informant, later
identified as Jeremy Rawlins [(the CI)], to make a controlled
purchase of cocaine from Appellant near his residence situated at
75 Bear Creek Drive, Jim Thorpe, Carbon County, Pennsylvania.
[The CI] contacted Appellant via telephone to arrange controlled
purchases of cocaine which took place on September 13, 2017,
and September 20, 2017, near Appellant’s residence. Agent Kirk
Schwartz, then-Carbon County Drug Task Force Coordinator, and
other officers observed these controlled purchases and performed
field tests which indicated the presence of cocaine from the
September 13, 2017 purchase and suspected counterfeit cocaine
from the September 20, 2017 purchase. Subsequent lab analysis
identified the substance from the September 13, 2017 purchase
as cocaine, but did not identify the composition of the substance
from the September 20, 2017 purchase. Arrangements were then
made for [the CI] to purchase Percocet tablets from Appellant on
November 16, 2017. On that date, Appellant was taken into
custody before the transaction took place based on the September
13, 2017 and September 20, 2017 controlled purchases.
Appellant was charged with three counts of [PWID], (35 P.S. §
780-113(a)(30)); [and one count each of] [simple possession] (35
P.S. § 780-113(a)(16)); [conspiracy] (18 Pa.C.S. § 903); and
criminal use of communication facility (18 Pa.C.S. § 7512(a)).
On August 18, 2020, Appellant filed an “Omnibus Pretrial Motion,”
which included a habeas corpus motion challenging the sufficiency
of the evidence supporting the charges, a motion to disclose the
identity of the confidential informant, a motion to compel
discovery, and a reservation of rights to file supplemental pre-trial
motions. On October 6, 2020, we entered an order granting
Appellant’s habeas corpus motion as to count four - [PWID]
pertaining to the attempted controlled purchase on November 16,
2017, and dismissing that charge, denying the habeas corpus
motion in all other respects, and dismissing the remaining motions
as moot. [Order, 10/6/20].
Following a jury trial held on June 10-11, 2021, Appellant was
found guilty on all five remaining counts. [On July 27, 2021, the
trial court appointed new counsel to represent Appellant because
of a conflict of interest in the Public Defender’s Office.] On
October 28, 2021, Appellant was sentenced to a period of
incarceration in a State Correctional Institution of not less than
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eighteen months nor more than sixty months.1 [Order,
10/28/21].
On November 7, 2021, Appellant filed post-sentence motions
which included an acquittal motion, a motion for a new trial based
upon the weight of the evidence, and a motion for a new trial
based upon ineffective assistance of counsel. Appellant requested
that this court: (1) enter a judgment of acquittal for the charges
contained in count two - delivery of a controlled substance
pertaining to the controlled purchase on September 20, 2017, and
count five - conspiracy to deliver a controlled substance, arguing
that the Commonwealth failed to prove that Appellant delivered a
controlled substance on that date and that Appellant participated
in a conspiracy because the alleged co-conspirator was a
confidential informant; and (2) vacate his sentence and order a
new trial, arguing that the verdict was against the weight of the
evidence and that Alexandria J. Crouthamel, Esquire, rendered
ineffective assistance of counsel at trial. [Appellant’s Post-Sentence Mot., 11/7/21].
On February 2, 2022, Appellant filed a “Motion for Leave to File an
Amended Post-Sentence Motion Asserting Racial Bias and
Permitting Defendant to Submit a Juror’s Affidavit and
Statement.” Appellant requested that this court: (1) grant him
leave to file an amended post-sentence motion alleging juror
misconduct based on racial bias and premature deliberations; and
(2) grant him leave to submit a juror’s affidavit and testimony
concerning juror misconduct. Appellant’s request was based on
defense counsel’s communication with Lonnie Hird,[2] who served
as an alternate juror during Appellant’s trial, who stated that
members of the principal jury made purported racist comments
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1 Specifically, the trial court sentenced Appellant to concurrent terms of
eighteen to sixty months’ incarceration for count one, PWID cocaine, eighteen
to sixty months’ incarceration for count two, PWID cocaine, sixteen to sixty
months’ incarceration for count three, simple possession of cocaine, eighteen
to sixty months’ incarceration for count five, conspiracy, and eighteen to sixty
months’ incarceration for count six, criminal use of a communication facility.
Id.; see also N.T. Sentencing Hr’g, 10/28/21, at 8-9.
2 Throughout the record, Hird’s first name is spelled both Lonnie and Lonney.
For consistency, we use the same spelling as the trial court.
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pertaining to Appellant being African-American during the course
of the trial. [Mot. to Amend, 2/2/22].
On March 18, 2022, we entered an order denying Appellant’s
motion for leave to amend finding that a decision on the proposed
supplemental motion could not be made in compliance with the
time limits of Pa.R.Crim.P. 720(B)(3), noting that Mr. Hird was an
alternate juror who did not participate in deliberations with the
principal jurors and did not communicate any concerns relative to
any comments of his fellow jurors until seven months after the
trial had concluded. [Order, 3/18/22]. That same day, Appellant
filed a “Motion to Submit the Affidavit of Lonnie Hird to
Supplement the Record on Appeal”. On April 1, 2022, we entered
an order denying that motion.
Trial Ct. Op., 6/13/22, at 1-5 (formatting altered).
On April 6, 2022, the trial court issued an order granting in part, and
denying in part Appellant’s post-sentence motion. Specifically, the trial court
concluded that the evidence was insufficient to sustain Appellant’s conviction
at count two, PWID, and vacated that conviction. Trial Ct. Order, 4/6/22, at
1. The trial court denied Appellant’s motion in all other respects. Id. at 3.
Appellant subsequently filed a timely notice of appeal. Both Appellant
and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issues for our review:
1. Did the trial court err in denying Appellant’s claim of
ineffectiveness of trial counsel arising from trial counsel’s
failure to object to and/or request a mistrial during and
immediately after testimony of a Commonwealth witness, a
confidential informant, who testified to prior, remote instances
of Appellant engaging in uncharged and unrelated sales of
crack cocaine?
2. Did the trial court err in denying Appellant’s motion to amend
post-sentence motion on the basis of after-discovered evidence
of juror misconduct, premature deliberations and racial bias
and animus?
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3. Did the trial court err in denying Appellant’s request for
judgment of acquittal on the charge of conspiracy to delivery a
controlled substance where a Commonwealth confidential
informant, could not, as a matter of law, possess a shared
criminal intent with Appellant?
4. Did the trial court err in not ordering a new trial on the basis
that the verdicts of guilty on all counts were against the great
weight of the evidence?
Appellant’s Brief at 5 (some formatting altered).
Ineffective Assistance of Counsel
In his first claim, Appellant argues that his trial counsel, Alexandria J.
Crouthamel, Esq. (trial counsel), was ineffective for failing to object to the
admission of “prior bad acts” evidence at trial. Appellant’s Brief at 15-16.
Appellant argues that this Court may address his claim on direct appeal
because trial counsel’s “ineffectiveness was apparent on the record, was
[discrete] and would have served the interests of justice by addressing it
immediately since he was within weeks of his parole eligibility date.” Id. at
11-12.
Generally, a criminal defendant may not assert claims of ineffective
assistance of counsel on direct appeal. See Commonwealth v. Holmes, 79
A.3d 562, 577-80 (Pa. 2013). Instead, such claims are to be deferred to PCRA
review.
Id. However, our Supreme Court has recognized three exceptions to
the general rule. In Holmes, the Court held that a trial court has discretion
to address ineffectiveness claims on direct review in cases where (1) there are
extraordinary circumstances in which trial counsel’s ineffectiveness is
apparent from the record and “meritorious to the extent that immediate
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consideration best serves the interests of justice;” or (2) “there is good cause
shown,” and the defendant knowingly and expressly waives his entitlement to
seek subsequent PCRA review of his conviction and sentence. Id. at 563-64.
More recently, our Supreme Court adopted a third exception, which requires
“trial courts to address claims challenging trial counsel’s performance where
the defendant is statutorily precluded from obtaining subsequent PCRA
review.” Commonwealth v. Delgros,
183 A.3d 352, 361 (Pa. 2018).3
Here, Appellant argues that he met the “meritorious and apparent from
the record” exception as stated in Holmes. In rejecting Appellant’s claim, the
trial court explained:
The “meritorious and apparent from the record” exception is
limited to exceptional circumstances. Holmes, 79 A.3d at 57[7].
In an unpublished decision, the Superior Court defined the
exception as follows: “[A]n extraordinary circumstance is one
where counsel’s ineffectiveness is so blatant and ‘so shocking to
the judicial conscience’ that there is no need for a hearing and the
court is compelled to grant relief.” Commonwealth v. Alford,
No. 1052 WDA 2020, 2021 WL 2907814, at *4 (Pa. Super. Jul. 9,
2021) [(citations omitted)].[4] While the trial court retains
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3 We acknowledge that there is an additional circumstance in which a
defendant may raise an ineffectiveness claim outside of a PCRA petition. This
occurs where a defendant alleges PCRA counsel’s ineffectiveness in connection
with a first PCRA petition. In that situation, the defendant may challenge
PCRA counsel’s ineffectiveness at the first opportunity, even if on appeal. See
Commonwealth v. Bradley, 261 A.3d 381, 405 (Pa. 2021). However, in the
instant case, Appellant has not pursued PCRA relief and has not been
represented by PCRA counsel. Therefore, Bradley is inapplicable to
Appellant’s case, which is on direct appeal. See
id.
4 Non-precedential decisions of this Court that were filed after May 1, 2019
may be cited for their persuasive value. See Pa.R.A.P. 126(b).
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discretion to address ineffectiveness claims on post-sentence
motions, “the presumption weighs heavily in favor of deferring
such claims to collateral review.” Commonwealth v. Knox, 165
A.3d 925, 928 (Pa. Super. 2017). We find that Appellant’s
ineffectiveness claim does not rise to the level of an extraordinary
circumstance warranting immediate review.
Trial Ct. Op. at 7-8 (some formatting altered).
Following our review of the record, we discern no abuse of discretion by
the trial court in declining to consider Appellant’s ineffectiveness claim on
direct appeal. See Commonwealth v. Green, 204 A.3d 469, 487 (Pa. Super.
2019). As noted by the trial court, Appellant’s ineffectiveness claims were not
apparent from the record or meritorious, and they did not rise to the level of
requiring immediate consideration in the interests of justice.5 See Holmes,
79 A.3d at 563, 577.
Therefore, we conclude that Appellant’s ineffectiveness claim cannot be
considered on direct appeal, and we dismiss these claims without prejudice to
Appellant’s right to raise them in a timely filed PCRA petition.
Motion to Amend
In his next issue, Appellant argues that the trial court erred in denying
his motion to amend his post-sentence motion to include a claim of after-
discovered evidence. Appellant’s Brief at 27. Specifically, Appellant refers to
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5 We note that although Appellant only raises the “meritorious and apparent
from the record” exception, the trial court also concluded that the remaining
exceptions were inapplicable. See Trial Ct. Op. at 7. Following our review of
the record, there is no indication that Appellant waived his right to file a PCRA
nor is he statutorily precluding from obtaining subsequent PCRA review. See
Holmes, 79 A.3d at 564, 578; see also Delgros,
183 A.3d at 361.
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a statement from alternate juror Lonnie Hird, who allegedly overheard
comments from other jurors that showed racial bias and “called into question
the integrity of the verdict.” Id. at 28-29, 35. Appellant asserts that although
trial counsel attempted to contact Mr. Hird after sentencing, Mr. Hird did not
respond to counsel until late January of 2022. Id. at 28. Appellant argues
that he complied with Pa.R.Crim.P. 720(C) by promptly raising his claim on
February 2, 2022. Id. at 28. Therefore, Appellant concludes that the trial
court erred in denying his motion to amend the post-sentence motion and that
he is entitled to a new trial or a remand for counsel to present the affidavit
and testimony from Mr. Hird. Id. at 34-35.
This Court has held that trial courts have “discretion to allow the filing
of supplemental post-sentence motions.” Commonwealth v. Robinson, 834
A.2d 1160, 1168 n.4 (Pa. Super. 2003) (citation omitted); see also
Pa.R.Crim.P. 720(B)(1)(b). Therefore, we review the trial court’s denial of
Appellant’s request for leave to amend his post-sentence motion for an abuse
of discretion. See generally Commonwealth v. Gill,
206 A.3d 459, 466
(Pa. 2019) (explaining that an appellate court should not disturb a trial court’s
discretionary ruling absent an abuse of that discretion).
This Court has explained that
[a]n abuse of discretion is not merely an error of judgment, but is
rather the overriding or misapplication of the law, or the exercise
of judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown by the evidence of record.
If in reaching a conclusion the trial court overrides or misapplies
the law, discretion is then abused and it is the duty of the appellate
court to correct the error.
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Commonwealth v. Belknap, 105 A.3d 7, 10 (Pa. Super. 2014) (citations
omitted and some formatting altered); see also Gill,
206 A.3d at 466-67.
Rule 720 provides, in relevant part:
(B) Optional Post-Sentence Motion.
(1) Generally.
…
(b) The defendant may file a supplemental post-sentence
motion in the judge’s discretion as long as the decision on
the supplemental motion can be made in compliance with
the time limits of paragraph (B)(3).
…
(3) Time Limits for Decision on Motion. The judge shall not
vacate sentence pending decision on the post-sentence motion,
but shall decide the motion as provided in this paragraph.
(a) Except as provided in paragraph (B)(3)(b), the judge
shall decide the post-sentence motion, including any
supplemental motion, within 120 days of the filing of the
motion. If the judge fails to decide the motion within 120
days, or to grant an extension as provided in paragraph
(B)(3)(b), the motion shall be deemed denied by operation
of law.
(b) Upon motion of the defendant within the 120-day
disposition period, for good cause shown, the judge may
grant one 30-day extension for decision on the motion. If
the judge fails to decide the motion within the 30-day
extension period, the motion shall be deemed denied by
operation of law.
…
(C) After-Discovered Evidence. A post-sentence motion for a
new trial on the ground of after-discovered evidence must be filed
in writing promptly after such discovery.
Pa.R.Crim.P. 720(B)(1)(b), (B)(3)(a)-(b), (C).
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Here, the trial court addressed Appellant’s claim as follows:
[FN1] Appellant’s timely post-sentence motion was filed on
November 7, 2021. Therefore, a decision on that motion
was required to be filed no later than March 7, 2022.
Appellant’s motion for leave to amend was filed on February
2, 2022. A hearing on both the motion for leave to amend
and the initial post-sentence motion was held on February
17, 2022. During that hearing, Appellant made an oral
motion for a thirty (30) day extension of the one hundred
twenty (120) day time limit for rendering a decision on his
post-sentence motion. We granted that oral motion which
extended the time for the court’s decision until April 6, 2022.
Following a teleconference with counsel on March 15, 2022
discussing the logistics of a potential hearing on an
amended post-sentence motion, our decision to deny
Appellant’s motion for leave to amend was based on both
the limited time remaining to dispose of the post-sentence
motion and the issues with scheduling and coordinating a
lengthy hearing including the testimony of at least fourteen
(14) witnesses within the allotted time frame.
…
Pursuant to Pa.R.Crim.P. 720(B)(3)(a), a post-sentence motion
must be decided within one-hundred-and-twenty days of the date
of filing unless, for good cause shown, the court grants a thirty
day extension for such decision in accordance with Pa.R.Crim.P.
720(B)(3)(b). Commonwealth v. Perry, 820 A.2d 734, 735 (Pa.
Super. 2003). As previously noted, we denied Appellant’s motion
for leave to amend finding that a decision on the proposed
supplemental motion could not be made in compliance with the
time limits of Pa.R.Crim.P. 720(B)(3).
Trial Ct. Op. at 5 n.1, 10-11.
Following our review of the record, we discern no abuse of discretion by
the trial court in denying Appellant’s motion to amend his post-sentence
motion. See Belknap, 105 A.3d at 10; see also Gill,
206 A.3d at 466-67.
When Appellant filed his motion to amend the post-sentence motion on
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February 2, 2022, the trial court had thirty-three days to rule on the post-
sentence motion. See Pa.R.Crim.P. 720(B)(3)(a). Following a hearing on
February 17, 2022, the trial court granted Appellant’s request to extend the
court’s deadline for an additional thirty days. See Pa.R.Crim.P. 720(B)(3)(b).
However, after a conference with counsel, the trial court concluded that it
could not decide Appellant’s proposed after-discovered evidence claim within
the timeframe allowed by Rule 720. See Trial Ct. Op. at 5 n.1, 10-11. In
reaching that conclusion, the trial court explained that such a hearing would
involve the testimony of at least fourteen witnesses, i.e., Mr. Hird and the
other thirteen jurors from Appellant’s trial, which could not be completed
before the extended deadline. See id. at 5 n.1. Under these circumstances,
we conclude that the trial court did not abuse its discretion in denying
Appellant’s motion to amend his post-sentence motion. See Pa.R.Crim.P.
720(B)(1)(b). Therefore, Appellant is not entitled to relief on this issue.6
Sufficiency of the Evidence
In his next issue, Appellant argues that the trial court erred in denying
his motion for acquittal because there was insufficient evidence to support his
conspiracy conviction. Appellant’s Brief at 35-36. Specifically, Appellant
argues that because his alleged co-conspirator was a CI, the CI “could not, by
definition, share criminal intent with the Appellant for purposes of the crime
____________________________________________
6 Although we find that Appellant is not entitled to relief on direct appeal, our
conclusion does not preclude Appellant from raising claims regarding his
discovery of possible juror misconduct in a timely filed PCRA petition.
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of criminal conspiracy, which requires shared criminal intent.” Id. at 35. In
support, Appellant relies on the dissenting statement in Woodson, an
unreported decision in which the dissent stated that Pennsylvania continues
to follow the “bilateral” approach to conspiracy. Id. at 37 (citing
Commonwealth v. Woodson, No. 1378 MDA 2011, 2013 WL 11282822, at
*3 (unpublished mem.) (Pa. Super. filed Mar. 12, 2013) (Fitzgerald, J.,
dissenting)). Further, Appellant argues that although Section 904(a) states
that a co-conspirator’s irresponsibility or immunity from prosecution is
immaterial to a defendant’s guilt for conspiracy, there was no evidence that
the CI “was irresponsible or was granted immunity from prosecution.”
Id.
Therefore, Appellant concludes that the Commonwealth failed to present
sufficient evidence to prove conspiracy.
In reviewing Appellant’s claim, our standard of review is as follows:
A motion for judgment of acquittal challenges the sufficiency of
the evidence to sustain a conviction on a particular charge, and is
granted only in cases in which the Commonwealth has failed to
carry its burden regarding that charge. Therefore, in usual
circumstances, we apply the following standard of review to
sufficiency claims which arise in the context of a motion for
judgment of acquittal:
A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to
support the verdict when it establishes each material
element of the crime charged and the commission thereof
by the accused, beyond a reasonable doubt. Where the
evidence offered to support the verdict is in contradiction to
the physical facts, in contravention to human experience
and the laws of nature, then the evidence is insufficient as
a matter of law. When reviewing a sufficiency claim, the
court is required to view the evidence in the light most
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favorable to the verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn from the
evidence.
Commonwealth v. Stahl, 175 A.3d 301, 303-04 (Pa. Super. 2017) (citations
omitted and formatting altered). “In applying the above test, we may not
weigh the evidence and substitute our judgment for the fact-finder.”
Commonwealth v. Fabian,
60 A.3d 146, 150-51 (Pa. Super. 2013) (citation
omitted).
To the extent that Appellant’s claim requires us to interpret a statute,
that raises a question of law. See Commonwealth v. Andrews, 173 A.3d
1219, 1221 (Pa. Super. 2017). Therefore, our scope of review is plenary, and
our standard of review is de novo.
Id.
This Court has explained:
When interpreting a statute, this Court must apply the Statutory
Construction Act of 1972. See 1 Pa.C.S. §§ 1501-1991. The
object of all interpretation and construction of statutes is to
ascertain and effectuate the intention of the legislature and give
effect to all of the provisions of the statute. 1 Pa.C.S. § 1921(a).
“When the words of a statute are clear and free from all ambiguity,
the letter of it is not to be disregarded under the pretext of
pursuing its spirit.” 1 Pa.C.S. § 1921(b). Generally, a statute’s
plain language provides the best indication of legislative intent.
In reading a statute’s plain language, words and phrases shall be
construed according to rules of grammar and according to their
common and approved usage, while any words or phrases that
have acquired a peculiar and appropriate meaning must be
construed according to that meaning.
Id. (some citations omitted and formatting altered).
Section 903 of the Crimes Code provides that “[a] person is guilty of
conspiracy with another person . . . to commit a crime if with the intent of
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promoting or facilitating its commission he agrees with such other person . . .
that they or one or more of them will engage in conduct which constitutes
such crime[.]” 18 Pa.C.S. § 903(a)(1). Additionally, “[n]o person may be
convicted of conspiracy to commit a crime unless an overt act in pursuance of
such conspiracy is alleged and proved to have been done by him or by a person
with whom he conspired.” 18 Pa.C.S. § 903(e).
Section 903(a) is taken verbatim from Model Penal Code § 5.03(1).
Compare 18 Pa.C.S. § 903(a), with Model Penal Code § 5.03(1). The
comment to Section 5.03 of the Model Penal Code states, in relevant part:
Guilt as a conspirator is measured by the situation as the actor
views it; he must have the purpose of promoting or facilitating a
criminal offense, and with that purpose must agree (or believe
that he is agreeing) with another that they will engage in the
criminal offense or in solicitation to commit it.
Model Penal Code § 5.03 cmt.
Further, this Court has held that “the express language of the
[Pennsylvania conspiracy] statute does not require that an alleged co-
conspirator be charged or convicted of the conspiracy.” Commonwealth v.
Fremd, 860 A.2d 515, 521 (Pa. Super. 2004). Indeed, Pennsylvania courts
have concluded that “the path of prosecution, or non-prosecution, of a
defendant’s alleged co-conspirator(s) is irrelevant as to the prosecution of the
defendant” and instead, “all that is required is proof of the elements of
conspiracy, one of which is that the defendant conspired with one or more
persons to commit or plan a crime.”
Id. at 521-22.
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Section 904(a) of the Pennsylvania Crimes Code codifies two scenarios
that are immaterial to a defendant’s liability for solicitation or conspiracy.
Specifically, the statute provides:
(a) General rule.—Except as provided in subsection (b) of this
section, it is immaterial to the liability of a person who solicits or
conspires with another to commit a crime that:
(1) he or the person whom he solicits or with whom he
conspires does not occupy a particular position or have a
particular characteristic which is an element of such crime, if
he believes that one of them does; or
(2) the person whom he solicits or with whom he conspires is
irresponsible or has an immunity to prosecution or conviction
for the commission of the crime.
18 Pa.C.S. § 904.
Section 904 is derived from Model Penal Code § 5.04. Compare 18
Pa.C.S. § 904, with Model Penal Code § 5.04. The comment to Section 5.04
of the Model Penal Code states, in relevant part:
Subsection [(a)] provides for two contingencies that are made
immaterial to liability for solicitation or conspiracy. Paragraph
[(a)(1)] deals with offenses that can be committed only by a
person who occupies a particular position or has a particular
characteristic. The failure of the actor or the person whom he
solicits or with whom he conspires to occupy the position or have
the characteristic is immaterial if he believes that one of them
does and that the offense will thereby be committed. Paragraph
[(a)(2)] provides a similar result in cases where the person
solicited or the person with whom the actor conspires has a
defense of irresponsibility or immunity that he can assert.
Consistent with the [Model Penal] Code approach to
conspiracy and solicitation, the actor’s liability is not
affected by these factors, which are extraneous to his
culpability.
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Model Penal Code § 5.04 cmt (emphasis added).
Several other states have enacted conspiracy statutes that are based
on Model Penal Code § 5.04. See, e.g., Ind. Code § 35-41-5-2(c)(5)
(providing, in part, that “[i]t is no defense that the person with whom the
accused person is alleged to have conspired . . . cannot be prosecuted for any
reason”);”
N.Y. Penal Law § 105.30 (reflecting that “[i]t is no defense to a
prosecution for conspiracy that . . . one or more of the defendant’s co-
conspirators could not be guilty of conspiracy or the object crime”); N.J. Rev.
Stat. § 2C:5-3(a)(2) (stating that it is immaterial whether “[t]he person with
whom [the defendant] conspires is irresponsible or has an immunity to
prosecution or conviction”);
Ariz. Rev. Stat. § 13-304(1) (same);
Colo. Rev.
Stat. § 18-2-205(1)(b) (same). Like Section 904, none of these statutes
explicitly mention government agents or law enforcement officers.
Additionally, in Model Penal Code jurisdictions, state courts have held
that a defendant can be found guilty of conspiracy even if the defendant only
entered into a conspiracy with police officers and/or police informants.7 See
e.g. Garcia v. State, 394 N.E.2d 106, 108-10 (Ind. 1979) (affirming the
defendant’s conviction for conspiracy where the defendant’s co-conspirator
was a police informant because “the absence of criminal culpability on the part
of a co-conspirator including a sole co-conspirator” was not a defense to
____________________________________________
7 This Court may consider the decisions of other states as persuasive
authority. See Commonwealth v. Lang,
275 A.3d 1072, 1083 (Pa. Super.
2022).
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conspiracy under the Indiana statute); People v. Vecellio, 292 P.3d 1004,
1010 (Colo. App. 2012) (affirming the defendant’s conspiracy conviction and
concluding that “because the unilateral approach requires only that the
defendant agree to proceed in a prohibited manner, the fact that the other
party is an undercover police officer is irrelevant” (citation omitted)); State
v. Roldan,
714 A.2d 351, 355 (N.J. Super. Ct. App. Div. 1998) (applying the
New Jersey statute and concluding that “[u]nder this unilateral approach to
conspiratorial liability, a person may be guilty of conspiracy even though the
other party to the criminal agreement is an undercover police officer or police
informant who has no intention of actually committing a crime”); People v.
Schwimmer,
411 N.Y.S.2d 922, 923-28 (N.Y. App. Div. 1978) (concluding
that the defendant could “be found guilty of conspiracy even though neither
[the undercover New York City police officer] nor [the police informant]
possessed the prescribed mental state required for the commission of
conspiracy or the object crimes”).
Here, in its Rule 1925(a) opinion, the trial court addressed Appellant’s
sufficiency-of-the-evidence claim as follows:
Appellant argues that [the CI], who acted as an agent for the
police, is not a person who shares a criminal intent to commit a
crime as contemplated within the statute. While there is limited
caselaw on this particular subject, the Superior Court in an
unpublished decision held that there was sufficient evidence to
uphold a conspiracy conviction where a defendant agreed to
deliver cocaine to a confidential informant and then delivered said
cocaine, and reiterated that the statute does not require that all
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parties have criminal intent. [Woodson, 2013 WL 11282822, at
*2-3.8]
[Here, the CI] testified that he made arrangements via telephone
to meet Appellant to purchase cocaine on September 13, 2017
and September 20, 2017. Agent Schwartz testified that he and
other officers observed Appellant at these controlled purchases.
We find that the record contains sufficient evidence to support the
charge of conspiracy against Appellant. Therefore, we find that
this court did not err in denying Appellant’s motion for judgment
of acquittal on the charge of conspiracy to deliver a controlled
substance.
Trial Ct. Op. at 15-16.
Following our review of the record, and in viewing the evidence in the
light most favorable to the Commonwealth, we conclude that there was
sufficient evidence to sustain Appellant’s conviction for conspiracy to commit
PWID. See Stahl, 175 A.3d at 303-04; 18 Pa.C.S. § 903(a). As noted by the
trial court, the Commonwealth presented evidence establishing that Appellant
and the CI arranged to meet for the sole purpose of committing PWID and
that Appellant committed the overt act of providing cocaine to the CI in
exchange for currency. See Commonwealth v. Johnson,
180 A.3d 474,
479 (Pa. Super. 2018).
Finally, insofar as Appellant argues that he cannot be convicted of
conspiracy because his co-conspirator was a CI, we disagree. We recognize
____________________________________________
8 We note that Woodson is an unpublished decision by this Court that was
filed prior to May 1, 2019. Therefore, the case is not only non-precedential,
but may not be cited or relied upon for its persuasive value. See, e.g.,
Commonwealth v. Finnecy, 249 A.3d 903, 910 n.9 (Pa. 2021); Pa.R.A.P.
126(b).
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that there are no Pennsylvania decisions specifically addressing the
circumstances present in the instant case. However, although Pennsylvania
has not explicitly adopted the unilateral approach to conspiracy, our statutes
and case law clearly reflect that the Commonwealth can prove a defendant’s
guilt for conspiracy without establishing the co-conspirator’s guilt. See
Fremd, 860 A.2d at 521; see also 18 Pa.C.S. § 904(a)(2). In any event, the
record reflects that Appellant and the CI entered an agreement to commit
PWID and actually completed that transaction by exchanging cash for cocaine.
Therefore, to the extent the CI had other intentions aside from the parties’
shared criminal purpose, that does not affect Appellant’s conviction for
conspiracy. Accordingly, Appellant is not entitled to relief on this claim.
Weight of the Evidence
In his final issue, Appellant argues that his guilty verdicts were against
the weight of the evidence. Appellant’s Brief at 39. In support, Appellant
contends that the evidence presented at trial came from the Commonwealth’s
CI, who was a “corrupt source” and an “admitted drug addict and thief.” Id.
Appellant further claims that the only other witness to the drug transactions
was the Commonwealth’s Agent Schwartz, who “stated that he did not
personally observe the first and second transactions take place.” Id.
Appellant concludes by arguing that the accounts provided by the CI and
Agent Schwartz diverged on key matters including “time, location and chain-
of-custody of material physical evidence” and that Appellant’s verdicts
shocked the conscience. Id. at 40-41.
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In reviewing Appellant’s claim, our standard of review is as follows:
A claim alleging the verdict was against the weight of the evidence
is addressed to the discretion of the trial court. Accordingly, an
appellate court reviews the exercise of the trial court’s discretion;
it does not answer for itself whether the verdict was against the
weight of the evidence. It is well settled that the fact-finder is
free to believe all, part, or none of the evidence and to determine
the credibility of the witnesses, and a new trial based on a weight
of the evidence claim is only warranted where the fact-finder’s
verdict is so contrary to the evidence that it shocks one’s sense of
justice. In determining whether this standard has been met,
appellate review is limited to whether the trial judge’s discretion
was properly exercised, and relief will only be granted where the
facts and inferences of record disclose a palpable abuse of
discretion.
Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation
omitted and formatting altered).
This Court further explained that
[a] new trial should not be granted because of a mere conflict in
the testimony or because the judge on the same facts would have
arrived at a different conclusion. Rather, the role of the trial court
is to determine that notwithstanding all the evidence, certain facts
are so clearly of greater weight that to ignore them, or to give
them equal weight with all the facts, is to deny justice. A motion
for a new trial on the grounds that the verdict is contrary to the
weight of the evidence concedes that there is sufficient evidence
to sustain the verdict; thus the trial court is under no obligation
to view the evidence in the light most favorable to the verdict
winner.
Id. (citation omitted).
Here, the trial court addressed Appellant’s claim as follows:
In a similar case where a defendant was convicted of delivering
cocaine based on the testimony of a [CI] and the trial court denied
the defendant’s motion for a new trial based upon the weight of
the evidence, the Superior Court held that “[t]he jury was free to
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make credibility determinations and accept or reject [the CI’s]
testimony, and all the other testimony, as it chose.”
Commonwealth v. West, 937 A.2d 516, 522 (Pa. Super. 2007).
Here, we do not find that the jury’s verdict is so contrary to the
evidence as to shock our sense of justice. Therefore, we find that
this court did not err in denying Appellant’s motion for a new trial
based upon the weight of the evidence.
Trial Ct. Op. at 17-18.
Following our review of the record, we discern no abuse of discretion by
the trial court in rejecting Appellant’s weight claim. See Landis, 89 A.3d at
699. The jury was free to believe all, part, or none of the witness testimony,
and was entitled to make credibility determinations regarding the CI and
Agent Schwartz. See id.; West,
937 A.2d at 522. We will not disturb the
trial court’s credibility determinations on appeal. Therefore, Appellant is not
entitled to relief on this issue.
Merger
Finally, we must address whether Appellant’s sentences for simple
possession and PWID should have merged for sentencing purposes. Although
Appellant did not raise this issue on appeal, we may address this issue sua
sponte. See Commonwealth v. Watson, 228 A.3d 928, 941 (Pa. Super.
2020) (holding that questions concerning merger implicate the legality of a
sentence, and this Court may address such issues sua sponte); see also
Commonwealth v. Tucker,
143 A.3d 955, 960 (Pa. Super. 2016) (stating
that “[a]n illegal sentence must be vacated” (citation omitted)).
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When reviewing the legality of a sentence, “our standard of review is de
novo and our scope of review is plenary.” Commonwealth v. Tighe, 184
A.3d 560, 584 (Pa. Super. 2018) (citations omitted).
Section 9765 of the Sentencing Code provides as follows:
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.
42 Pa.C.S. § 9765.
This Court has explained that “[t]he statute’s mandate is clear. It
prohibits merger unless two distinct facts are present: 1) the crimes arise from
a single criminal act; and 2) all of the statutory elements of one of the offenses
are included in the statutory elements of the other.” Commonwealth v.
Martinez, 153 A.3d 1025, 1030 (Pa. Super. 2016) (citations omitted).
The crimes of simple possession and PWID are defined as follows:
(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:
…
(16) Knowingly or intentionally possessing a controlled or
counterfeit substance by a person not registered under this act,
or a practitioner not registered or licensed by the appropriate
State board, unless the substance was obtained directly from,
or pursuant to, a valid prescription order or order of a
practitioner, or except as otherwise authorized by this act.
…
(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,
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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)(16), (30).
As this Court recently reiterated, a conviction for simple possession
should merge with a conviction for PWID for sentencing purposes when “both
charges stemmed from the same act of possession.” Commonwealth v.
Knupp, 290 A.3d 759, 777 (Pa. Super. 2023) (quoting Commonwealth v.
Murphy,
592 A.2d 750, 753 (Pa. Super. 1991)).
Instantly, Appellant was charged with PWID and simple possession at
counts one and three based on allegations that Appellant possessed cocaine
on September 13, 2017. See Criminal Information, 2/6/18, at 1. Therefore,
because both charges stemmed from the same act, Appellant’s conviction for
simple possession should have merged with his PWID conviction for
sentencing purposes. See Knupp, 290 A.3d at 777; see also Martinez,
153
A.3d at 1030. Accordingly, we are constrained to vacate the sentence
imposed for simple possession. See, e.g., Tucker,
143 A.3d at 967-68
(affirming the defendant’s convictions but vacating an illegal sentence).
Further, we note that because the trial court imposed a concurrent sentence
for the simple possession conviction, our disposition does not upset the trial
court’s overall sentencing scheme. Therefore, it is not necessary to remand
this matter for resentencing. See Commonwealth v. Thur,
906 A.2d 552,
569-70 (Pa. Super. 2006).
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For these reasons, we affirm Appellant’s convictions, vacate the
sentence imposed for simple possession, and affirm the judgment of sentence
in all other respects.
Judgment of sentence affirmed in part, and vacated in part as to the
sentence imposed for simple possession. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2023
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