J-S31039-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KOREY TIEN MARSHALL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 28 WDA 2019

Appeal from the Judgment of Sentence Entered August 27, 2018

In the Court of Common Pleas of Cambria County Criminal Division at 

No(s): CP-11-CR-0002084-2017

BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 27, 2019

Korey Tien Marshall appeals the judgment of sentence entered following 

his convictions for possession with intent to deliver a controlled substance

(PWID), possession of a controlled substance, and criminal use of a 

communication facility.1 He challenges the sufficiency of the evidence. We 

affirm.

The Commonwealth presented the following evidence at trial. Detective 

Arnold Bernard, Sr. testified that on November 7, 2017, a “controlled buy”

was set up to purchase crack cocaine from Marshall. N.T., Trial, 5/30/18, at 

8. Detective Bernard explained what a controlled buy is as follows:

It’s a drug deal where we try to control as many of the aspects of 

the transaction as we can, which basically usually starts, if we 

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1 35 P.S. §§ 780-113(a)(30), (a)(16), and 18 Pa.C.S.A. § 7512(a), 

respectively.
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have a confidential informant, the informant is debriefed as to how 

the transaction usually goes. 

Official funds are used to make purchases. We’ll use video 

recording devices as permitted by law, and it can also be audio 

depending if the person is consensualized. There will be 

undercover officers involved with the transaction, if we can, and 

actually there’s also surveillance during the deal.

After the deal, the evidence is – or, I’m sorry, the illegal drugs

purchased are taken into evidence, are submitted to usually the 

state police laboratory for analysis, and we’ll get a lab report back 

from that. 

Id.

He testified that here, police used a confidential informant (“CI”) to 

contact Marshall and set up the controlled buy. However, an undercover 

officer, Officer Gale Berkin, actually met with Marshall to conduct the buy. Id. 

at 8-9. Detective Bernard testified that in this case, they recorded the 

transaction using a hidden video camera. On cross-examination, Detective 

Bernard conceded he could “only see hand movement, exchange” on the 

video, and could not see the drugs themselves:

[Defense Counsel]: The video that we just observed, would you 

agree that there’s no controlled substance that is shown in the 

video?

[Detective Bernard]: I could not see – I could only see hand 

movement, exchange. I could not say, you know – no. I mean, I 

could not see these pink bags if that’s what you’re asking, no.

[Defense Counsel]: So you didn’t see any money – the video 

showed no money changing hands and no controlled substance 

changing hands?

[Detective Bernard]: I could not make them out, no. 

Id. at 26. 
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The officer who conducted the buy, Officer Berkin, testified that on the 

day in question the CI put her in contact with Marshall. Id. at 31. She then 

spoke to Marshall directly over the phone and informed him that she wanted 

to purchase $100 worth of crack cocaine. Id. at 31-32. She testified that 

Marshall “told me to meet him at the Rite Aid in Moxham, and from there he 

called me and told me to walk down the alley behind Sheetz.” Id. at 32. Before 

meeting with Marshall, Officer Berkin was outfitted with a video device and 

$100 in official funds to complete the controlled buy. Id.

Officer Berkin drove an undercover vehicle to meet with Marshall. Id. at 

33. Officer Berkin testified that the undercover vehicle is regularly searched 

to determine if there are any drugs or money inside. However, she was not 

aware if the vehicle was searched on the date in question, or if there were any 

drugs or money inside it at the time. Id. When Officer Berkin arrived at the 

Rite Aid she received a phone call from Marshall. Id. at 34. Marshall directed 

her to his vehicle and she entered his vehicle on the front passenger side. Id.

Officer Berkin testified that once inside the vehicle, she gave Marshall the 

money in exchange for two red baggies of crack cocaine. Id. at 34-35. Officer 

Berkin turned the crack cocaine over to another officer, Detective Kearn,

2 and 

they subsequently sent it to the Pennsylvania State Police Laboratory for 

analysis. Id. at 19. Marshall stipulated at trial that the analysis “establishes 

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2 Detective Kearn’s first name is not mentioned in the notes of testimony. 
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that the substances recovered relating to these cases contained cocaine.” Id. 

at 45. 

Officer Berkin contacted Marshall a second time a week later to institute 

another controlled buy but no buy occurred. Id. at 38. Marshall told Officer 

Berkin to meet him at the Rite Aid. Id. Marshall arrived at the Rite-Aid and 

the drug task force team arrested Marshall and seized the cell phone that he 

had used to arrange the drug sales. Id. at 22-23. Officers searched the vehicle 

but found no drugs or money. Id. at 24, 29. 

Marshall was convicted of the aforementioned crimes. The court 

imposed a sentence of 18 to 36 months’ incarceration. Marshall filed a motion 

to reinstate post-sentence and appellate rights, which the court granted. On 

November 30, 2018, Marshall filed a post-sentence motion challenging his 

sentence or alternatively, asking for his convictions to be vacated. The court 

denied the motion and this timely appeal followed.

Marshall raises one issue for our review: 

Did the Commonwealth provide sufficient evidence of 

[Marshall’s] guilt beyond a reasonable doubt on each 

element of the alleged crimes to sustain conviction(s) at 

trial?

Marshall’s Br. at 2. 

The trial court and the Commonwealth both claim that Marshall has 

waived his sufficiency challenge. The Commonwealth argues that Marshall 

waived the issue because his Pa.R.A.P. 1925(b) statement is vague and 

generic. Commonwealth’s Br. at 4-5. The Commonwealth notes that this Court 
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has held an issue is waived where the appellant’s 1925(b) statement merely 

states, “[t]he evidence was legally insufficient to support the convictions.” See

Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.Super. 2013). Similarly, 

the trial court found waiver because Marshall’s 1925(b) statement “does not 

reference the elements of the crimes that he alleges the Commonwealth failed 

to prove, nor does he identify any type of allegedly deficient evidence.” Trial 

Court Opinion, filed 2/1/19, at 3.

The Pennsylvania Rules of Appellate Procedure require a 1925(b) 

statement to “identify each ruling or error that the appellant intends to 

challenge with sufficient detail to identify all pertinent issues for the judge.” 

Pa.R.A.P. 1925(b)(4)(ii). “If Appellant wants to preserve a claim that the 

evidence was insufficient, then the 1925(b) statement needs to specify the 

element or elements upon which the evidence was insufficient. This Court can 

then analyze the element or elements on appeal.” Commonwealth v. 

Williams, 959 A.2d 1252, 1257 (Pa.Super. 2008) (quoting Commonwealth 

v. Flores, 921 A.2d 517, 522 (Pa.Super. 2007)). Our Supreme Court’s

decision in Commonwealth v. Laboy, 936 A.2d 1058 (Pa. 2007), is

instructive. Laboy involved a challenge to the sufficiency of the evidence for 

a PWID conviction. Id. Laboy’s 1925(b) statement read:

I. Evidence of drug trafficking and conspiracy was 

insufficient. 

II. Evidence of conspiracy was insufficient.
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Id. at 1058. The trial court concluded that the statement was insufficient. 

However, in its opinion, the trial court “set out the evidence adduced against 

[Laboy] in detail, accompanied by citations to the transcript, and concluded 

that there was ample evidence” to support his convictions. Id. On appeal, our 

Supreme Court agreed that Laboy’s statement was insufficient but declined to 

find waiver because the case was “relatively straightforward.” Id. at 1060.

Here, Marshall’s 1925(b) statement asserts, “There was insufficient 

evidence offered at trial to support [Marshall’s] convictions.” Pa.R.A.P.

1925(b) Statement. Unlike Laboy, the trial court in the instant case did not 

conduct an analysis of Marshall’s sufficiency claims. It found the statement 

insufficient and provided no further analysis. Therefore, we conclude that 

Marshall has waived his sufficiency claim. However, for the following reasons, 

even if Marshall did not waive the issue, his arguments fail. 

Our standard of review for a sufficiency of evidence claim is de novo, 

while “our scope of review is limited to considering the evidence of record, 

and all reasonable inferences arising therefrom, viewed in the light most 

favorable to the Commonwealth as the verdict winner.” See Commonwealth 

v. Rushing, 99 A.3d 416, 420-21 (Pa. 2014). The finder of fact is free to 

believe all, part, or none of the evidence presented in judging the credibility 

of the witnesses, and is similarly free to determine the weight to afford the

evidence. Commonwealth v. Henkel, 938 A.2d 433, 438 (Pa.Super. 2007). 

We may not re-weigh the evidence and substitute our judgment for that of 

the fact finder. Commonwealth v. Smith, 146 A.3d 257, 261 (Pa.Super. 
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2016). Additionally, the Commonwealth’s evidence “need not preclude every 

possibility of innocence” in order to constitute proof beyond a reasonable 

doubt. Commonwealth v. Lewis, 911 A.2d 558, 563 (Pa.Super. 2006)

(quoting Commonwealth v. Kim, 888 A.2d 847, 851 (Pa.Super. 2005)).

Indeed, it may sustain its burden by means of wholly circumstantial evidence. 

See Commonwealth v. Crabill, 926 A.2d 488, 490 (Pa.Super. 2007) (citing 

Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007)).

A. Possession of a Controlled Substance & PWID

In order to sustain a conviction for PWID, the Commonwealth must 

prove “both the possession of the controlled substance and the intent to 

deliver the controlled substance.” Commonwealth v. Estepp, 17 A.3d 939, 

944 (Pa.Super. 2011) (quoting Commonwealth v. Lee, 956 A.2d 1024, 1028 

(Pa.Super. 2008)). “It is well settled that all the facts and circumstances 

surrounding possession are relevant in making a determination of whether 

contraband was possessed with intent to deliver.” Lee, 956 A.2d at 1028 

(quoting Commonwealth v. Brown, 904 A.2d 925, 931 (Pa.Super. 2006)).

“Factors to consider in determining whether the drugs were possessed with 

the intent to deliver include the particular method of packaging, the form of 

the drug, and the behavior of the defendant.” Commonwealth v. Kirkland, 

831 A.2d 607, 611 (Pa.Super. 2003) (quoting Commonwealth v. Conaway, 

791 A.2d 359, 363 (Pa.Super. 2002)).

The Commonwealth may prove possession by showing actual, 

constructive, or joint constructive possession. Commonwealth v. Vargas, 
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108 A.3d 858, 868 (Pa.Super. 2014) (en banc). To prove actual possession, 

the Commonwealth must show that the contraband was found on the 

defendant’s person. Id. It may carry its burden of proving constructive 

possession by showing that the defendant had “the power to control the 

contraband and the intent to exercise that control.” Id.; Commonwealth v. 

Brown, 48 A.3d 426, 430 (Pa.Super. 2012) (quoting Commonwealth v. 

Parker, 847 A.2d 745, 750 (Pa.Super. 2004)).

Here, Marshall argues that the evidence was insufficient to sustain a 

conviction for PWID because the video of the controlled buy did not show an 

exchange of money or drugs, there was no recorded conversation about the 

controlled buy in the video, and police recovered no contraband or money 

after his arrest. Marshall’s Br. at 5. He also maintains that Officer Berkin was 

not searched prior to her engaging in the drug sale with Marshall and also 

points to the inconsistent testimony of Detective Bernard and Officer Berkin 

regarding the color of the packaging of the drugs. Id. at 6. 

Viewing the evidence in the light most favorable to the Commonwealth, 

we conclude that the Commonwealth presented sufficient evidence to sustain 

the PWID conviction. Officer Berkin testified that Marshall handed her crack 

cocaine in exchange for money. This was enough to prove at least constructive 

possession, if not actual possession. Further, the Commonwealth proved 

Marshall’s intent to distribute through Officer Berkin’s testimony that Marshall 

contacted her by phone and directed her to where they could meet to complete 
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the transaction. See Kirkland, 831 A.2d at 611 (holding that the behavior of 

the defendant is a factor in determining intent). 

Marshall also claims that the evidence was insufficient to sustain the 

possession conviction. Marshall fails to develop this argument in his brief and 

therefore waived it. See Commonwealth v. Russell, 209 A.3d 419, 429 

(Pa.Super. 2019) (“An issue will be deemed to be waived where an appellant 

fails to properly explain or develop it in his brief”). In any event, the testimony 

that Marshall gave Officer Berkin crack cocaine in exchange for money 

supported the possession conviction. 

B. Criminal Use of Communication Facility

To sustain a conviction for criminal use of communication facility, the 

Commonwealth “must prove that a defendant intentionally, knowingly, or 

recklessly used a communication facility, and that, in so doing, the defendant 

intentionally, knowingly, or recklessly facilitated the commission or attempted 

commission of the underlying felony.” Commonwealth v. Moss, 852 A.2d 

374, 381 (Pa.Super. 2004). A “communication facility” is defined as “a public 

or private instrumentality used or useful in the transmission of signs, signals, 

writing, images, sounds, data or intelligence of any nature transmitted in 

whole or in part, including, but not limited to, telephone, wire, radio, 

electromagnetic, photoelectronic or photo-optical systems or the mail.” 18 

Pa.C.S.A. § 7512(c) (emphasis added). “Facilitation” is “any use of a 

communication facility that makes easier the commission of the underlying 

felony.” Moss, 852 A.2d at 382.
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Again, Marshall fails to develop or explain why the evidence was 

insufficient, and he therefore has waived this claim as well. See Russell, 209 

A.3d at 429. However, even if he had preserved this claim, we would reject it 

for lack of merit.

Here, the underlying felony was PWID. The Commonwealth presented 

evidence that Marshall used a communication facility, i.e., his cell phone, to 

set up the drug sale with Officer Berkin. Using a cell phone in furtherance of 

committing a felony is sufficient to sustain a conviction for criminal use of a 

communication facility. See Moss, 852 A.2d at 382 (concluding sufficient 

evidence for criminal use of communication facility where defendant use a 

telephone to “discuss illicit drug transactions”). Viewed in the light most 

favorable the Commonwealth, this evidence was sufficient to sustain the 

conviction.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/27/2019