J-S43010-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

PETER VARGAS,

Appellant No. 1736 EDA 2014

Appeal from the Judgment of Sentence of May 27, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0014146-2013

BEFORE: GANTMAN, P.J., PANELLA AND OLSON, JJ.

MEMORANDUM BY OLSON, J.: FILED AUGUST 11, 2015

Appellant, Peter Vargas, appeals from the judgment of sentence 

entered on May 27, 2014 following his bench trial convictions for possession 

with intent to deliver a controlled substance (PWID) and conspiracy.1 Upon 

review, we affirm.

The trial court summarized the facts of this case as follows:

... Philadelphia Police Officer Jason Seigafuse testified that 

he was on duty on October 23, 2013 at approximately 

10:00 p.m., working in his capacity as a police officer with 

the Narcotics Enforcement Team when he encountered [] 

[A]ppellant in the area of the 1900 block of East Arizona 

Street in Philadelphia. 

At that time and place, the officer indicated that he set up a 

surveillance at that intersection and he observed [Appellant] 

____________________________________________

1

 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903, respectively.
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along with another male (Jonathon Blalock) standing at or 

near the corner of Jasper and Arizona, approximately 30 

feet [e]ast of the corner when a white male, identified as 

Charles Jenkins approached both males and had a brief 

conversation with both males. At this time [Appellant] 

separated and stood at the corner of Jasper and Arizona in 

the intersection looking up and down. At that time Mr. 

Blalock received currency from Mr. Jenkins and then Mr. 

Blalock handed Mr. Jenkins certain items that he removed 

from his pants pocket. Mr. Jenkins was ultimately stopped 

by police who recovered from Mr. Jenkins, heroin in a white 

Ziploc baggie.

A short time later, approximately 10:15 p.m., another male 

(Mr. [Francis] Kelso) came to the intersection and the same 

series of events occurred wherein [Appellant], after a brief 

conversation with the second male and Mr. Blalock, 

separated from the men and stood at the intersection 

looking up and down in both directions. Mr. Blalock 

received currency from Mr. Kelso and then Mr. Blalock 

handed Mr. Kelso certain items he removed from his pants 

pocket. Mr. Kelso was ultimately stopped by police who 

recovered from Mr. Kelso, heroin and cocaine in white Ziploc 

baggies.

Officer Seigafuse further testified that once the buyers left, 

they ([Appellant] and Mr. Blalock) met back up. It was only 

when buyers would come up and transactions would happen 

that he ([Appellant]) would separate and look up and down 

the intersection.

[] [A]ppellant and Mr. Blalock were stopped and arrested on 

the 1900 block of Arizona Street. [Fifty dollars in] U.S. 

currency was recovered from Mr. Blalock. Nothing was 

recovered from [] [A]ppellant.

Trial Court Opinion, 3/4/2015, at 2-3 (record citations omitted). 

The Commonwealth charged Appellant with the aforementioned 

charges, as well as simple possession of a controlled substance, 35 P.S. 

§ 780-113(a)(16). The case advanced procedurally as follows:
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At the preliminary hearing on November 12, 2013, [] 

[A]ppellant was ordered held for court on all charges. A 

motion to quash was heard before the start of trial and 

denied. A bench trial was held on May 27, 2014. The [trial 

court] found [] [A]ppellant guilty of [PWID] and 

[c]onspiracy. Appellant was immediately sentenced to a

term of three (3) years [of] concurrent probation on both 

charges. ... The [simple] possession charge (Count 3) was 

nolle prossed. On June 6, 2014, [the trial] court denied 

[A]ppellant’s post-sentence [m]otion and the sentence of 

three (3) years [of] probation remained. A timely [n]otice 

of [a]ppeal was filed on June 10, 2014. Thereafter, a timely 

[s]tatement of [e]rrors [c]omplained of on [a]ppeal was 

also filed on behalf of [] [A]ppellant. [The trial court issued 

an opinion pursuant to Pa.R.A.P. 1925(a) on March 4, 

2015.]

Id. at 1.

On appeal, Appellant presents the following issue for our review:

Was not the evidence insufficient to prove criminal 

conspiracy or [PWID] as [A]ppellant was merely present on 

the street in the vicinity of another man for fifteen minutes 

when the other man sold drugs?

Appellant’s Brief at 3.

Appellant argues that the Commonwealth failed to present sufficient 

evidence to support his convictions for PWID and conspiracy. In sum, he 

avers:

During a fifteen minute drug surveillance, another man, 

Jonathon Blalock, sold drugs. Blalock was arrested with the 

proceeds. [Appellant] exchanged nothing and had nothing. 

He was merely present, hanging out on the street.

Id. at 8. In distinguishing his case from our decision in Commonwealth v. 

McCall, 911 A.2d 992 (Pa. Super. 2006), Appellant notes: (1) Appellant 
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was thirty feet away each time Blalock sold drugs; whereas, in McCall, the 

co-defendants stayed side-by-side for an hour; (2) Appellant never received 

proceeds from the drug sales, while McCall was arrested with over $1,000.00 

in small denominations on his person, and; (3) McCall involved a 

sophisticated narcotics operation which would have required a lookout; 

whereas, here, “[t]he relatively minor nature of Blalock’s sales makes the 

inference that he had a ‘lookout’ less reasonable.” Appellant’s Brief at 10-

11. Appellant also argues that the police did not recover the narcotics from 

his person and the Commonwealth failed to prove he exercised conscious 

dominion or control over them in order to prove PWID. Id. at 12-15. 

Our standard of review when reviewing the sufficiency of the evidence 

has been recited as follows:

The standard we apply in reviewing the sufficiency of 

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 factfinder 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 
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produced, is free to believe all, part or none of the 

evidence.

To sustain a conviction for criminal conspiracy, the 

Commonwealth must establish that the defendant (1) 

entered into an agreement to commit or aid in an unlawful 

act with another person or persons, (2) with a shared 

criminal intent and (3) an overt act was done in furtherance 

of the conspiracy. This overt act need not be committed by 

the defendant; it need only be committed by a coconspirator.

As our Court has further explained with respect to the 

agreement element of conspiracy:

The essence of a criminal conspiracy is a common 

understanding, no matter how it came into being, 

that a particular criminal objective be accomplished. 

Therefore, a conviction for conspiracy requires proof 

of the existence of a shared criminal intent. An 

explicit or formal agreement to commit crimes can 

seldom, if ever, be proved and it need not be, for 

proof of a criminal partnership is almost invariably 

extracted from the circumstances that attend its 

activities. Thus, a conspiracy may be inferred where 

it is demonstrated that the relation, conduct, or 

circumstances of the parties, and the overt acts of 

the co-conspirators sufficiently prove the formation 

of a criminal confederation. 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 coconspirators in furtherance of the conspiracy.

Commonwealth v. McCall, 911 A.2d 992, 996-997 (Pa. Super. 2006) 

(internal citations and quotations omitted). In a case dealing with 

conspiracy and PWID, “successful proof of a conspiracy makes each coconspirator fully liable for all of the drugs recovered, without the necessity of 
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proving constructive possession.” Commonwealth v. Perez, 931 A.2d 

703, 709 (Pa. Super. 2007).

Here, the trial court determined:

[a] review of the police officer’s testimony demonstrated [] 

that the alleged sellers were inseparable until such time as 

an actual sale was about to be made. After brief 

conversations with the buyers, it was then that the men 

separated and [] [A]ppellant took the role as a ‘lookout’ 

during the course of the drug transactions. Sales of heroin 

and cocaine were confirmed as the police arrested the 

buyers who had just recently interacted with [] [A]ppellant 

and Mr. Blalock.

Trial Court Opinion, 3/4/2015, at 6.

Upon review of the trial transcript, we agree. Officer Jason Seigafuse’s 

testimony at trial belies Appellant’s claim that he was merely present when 

the two hand-to-hand narcotics transactions transpired. Officer Seigafuse 

testified that Appellant and Mr. Blalock were engaged in conversation on the 

corner of Jasper and Arizona Streets on the day in question. N.T., 

5/27/2014, at 12. Charles Jenkins “approached both males who were 

standing together” and “had a brief conversation with both males.” Id. 

“[Appellant] separated and stood at the corner of Jasper and Arizona in the 

intersection looking up and down.” Id. at 12-13. Officer Seigafuse 

witnessed a hand-to-hand narcotic transaction transpire between Mr. Blalock 

and Mr. Jenkins. Id. at 13. Police recovered crack cocaine from Mr. 

Jenkins. Id. Fifteen minutes later, Officer Seigafuse witnessed the exact 

same course of events with Francis Kelso. Id. at 14-15. Police recovered 
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heroin and crack cocaine from Mr. Kelso. Id. Officer Seigafuse testified that 

Appellant spoke with both Mr. Jenkins and Mr. Kelso, then walked away and 

looked up both Jasper and Arizona Streets while the transactions took place, 

and “[o]nce the buyers left, [Appellant and Mr. Blalock] met back up.” Id.

at 16. 

Based upon our standard of review, we discern no abuse of discretion 

in the trial court’s findings or an error of law in its determination that the 

Commonwealth presented sufficient evidence to support Appellant’s 

convictions for conspiracy and PWID. Here, Appellant actively participated 

with Mr. Blalock to enable him to sell narcotics to Mr. Jenkins and Mr. Kelso. 

Appellant participated in the initial narcotic sales negotiations with the 

buyer, acted as a lookout, and then resumed conversation with Mr. Blalock 

after the sale was completed. This happened twice. It was appropriate for 

the trial court to infer a conspiratorial relationship based upon the 

aforementioned evidence. Moreover, there is no dispute that Mr. Blalock 

was engaged in the sale of drugs. In fact, Appellant concedes as much in his 

brief on appeal. See Appellant’s Brief at 13 (“[Appellant walked thirty feet 

away when Blalock sold drugs.”) (emphasis added); id. at 15 (“[T]here is 

no evidence that Mr. Vargas had dominion or control over the drugs that 

[Mr.] Blalock sold to two buyers.”) (emphasis added). Having determined 

that the conspiracy was sufficiently proven, Appellant is liable for Mr. 

Blalock’s criminal actions within the scope of the proven conspiracy. See

Perez, 931 A.2d at 709 (“[S]uccessful proof of a conspiracy makes each co-
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conspirator fully liable for all of the drugs recovered, without the necessity of 

proving constructive possession.”); see also McCall, 911 A.2d at 997 

(“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 coconspirators in furtherance of the conspiracy.”).2

 Hence, Appellant’s 

sufficiency claim fails.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/11/2015

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2

 While the trial court found that Appellant constructively possessed the 

narcotics, there is no necessity of proving constructive possession when 

proven co-conspirators are engaged in the sale of narcotics. See Perez, 

931 A.2d at 709. “[A]n appellate court may affirm a valid judgment based 

upon any reason appearing in the record.” Commonwealth v. Elia, 83 

A.3d 254, 264 (Pa. Super. 2013).