J-S82038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KELLY MARIE DALESSIO,

Appellant No. 866 MDA 2016

Appeal from the Judgment of Sentence April 27, 2016

in the Court of Common Pleas of Schuylkill County

Criminal Division at No.: CP-54-CR-0000165-2015

BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED DECEMBER 06, 2016

Appellant, Kelly Marie Dalessio, appeals from the judgment of 

sentence imposed following her non-jury conviction of conspiracy to deliver a 

controlled substance, possession with intent to deliver a controlled substance 

(PWID), possession of drug paraphernalia, and possession of a controlled 

substance.1 Specifically, Appellant challenges the sufficiency of the evidence 

to support her conspiracy and PWID convictions. We affirm.

The trial court aptly set forth the facts of this case in its June 17, 2016 

opinion, as follows.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 903(a)(1); 35 P.S. §§ 780-113(a)(30), (32), and (16), 

respectively.
J-S82038-16

- 2 -

On May 1, 2014, members of the Tamaqua Police 

Department and Schuylkill County Drug Task Force set up and 

conducted a controlled buy of cocaine in Tamaqua Borough, 

Schuylkill County. Although the quoted purchase price was 

[eighty dollars], the confidential informant was given $100.00 in 

marked money and purchased cocaine from [Appellant’s] 

daughter, Ashley Weirich, on a street in the borough. Police 

were watching the entire time as Weirich left the home where 

she resided, which was rented to [Appellant], met and dealt with 

the informant and returned to the home. Forty minutes later, 

police searched the residence pursuant to a warrant. No one 

beside Weirich had left or entered the residence between the 

time she exited to meet the informant and the search.

Upon arriving, police announced their identity and yelled 

“search warrant” numerous times at the door to the residence. 

After waiting some[]time for someone to answer the door, police 

entered and found Weirich in the first floor living room with a 

child. Sergeant Duane Frederick’s assignment was to secure the 

second floor of the residence. As he was ascending the stairs, 

he called “police, search warrant” numerous times. Frederick 

heard water running in a toilet and the handle to the toilet 

jiggling as if someone were attempting to flush the toilet after it 

had flushed but before the tank had refilled. He told the 

occupant of the bathroom, who was [Appellant], to exit. She 

responded by saying she would “be out soon.” After Frederick 

said he would kick in the door, [Appellant] exited.

When Frederick entered the bathroom, he saw a portion of 

a plastic baggie spinning in the toilet bowl. The bowl was coated 

with a thick layer of a white substance. The substance was later 

removed by police with a paper towel. A field test of the 

substance indicated a positive result for the presence of cocaine. 

A wastebasket by the toilet contained another baggie with 

cocaine, a cut baggie with cocaine residue, a spoon with residue 

and a digital scale with residue. While the substance removed 

from the toilet was not sent to a laboratory for examination, the 

baggies in the wastebasket tested positive for the presence of 

cocaine in an analysis by a forensic scientist. Police found many 

corner ends of cut baggies used to package illegal controlled 

substances, the remaining portions of baggies after the ends had 

been removed[,] and a box of baggies on top of the bed in the 

room occupied by [Appellant]. Additionally, the bedroom 

contained a video monitor exhibiting outside views of the areas 
J-S82038-16

- 3 -

by the residence’s entrances. Police also found many cut 

corners of plastic baggies together with uncut baggies in the 

kitchen.

Tamaqua Police Chief Richard Weaver, qualified as an 

expert in drug law investigation, identification, packaging and 

distribution, opined that the digital scale, baggies, cut corners of 

baggies, spoon and excessive residue in the toilet were 

indicative of a person being in the business of selling drugs. No 

evidence indicating simple personal use of the drug was located 

in the home.

The only people in the home at the time of the search were 

[Appellant], Weirich and the young child. Upon questioning, 

Weirich provided police [twenty dollars] of the buy money 

utilized in the cocaine transaction and claimed that she did not 

know where the rest of the money was. [Appellant], who had 

$924.00 in her wallet, claimed that she did not know what police 

were talking about when they asked her where the buy money 

was. When told that police would “tear the house apart” to look 

for the money, [Appellant] then said “here” and removed [sixty 

dollars] from a pocket and placed the money─two ten and two 

twenty dollar bills─on the kitchen table. Police identified the 

serial numbers of the money as having been utilized in the drug 

buy because they had documented the information prior to 

providing the money to the confidential informant to purchase 

the cocaine.

(Trial Court Opinion, 6/17/16, at 3-5) (footnotes omitted).

At the conclusion of Appellant’s February 5, 2016 bench trial, the court 

convicted her of the previously stated charges. On April 27, 2016, the court 

sentenced Appellant to an aggregate term of incarceration of not less than 
J-S82038-16

- 4 -

three nor more than six years, with an RRRI2 minimum sentence of twentyseven months. Appellant timely appealed.3

Appellant raises two issues for this Court’s review.

A. Whether the evidence presented by the Commonwealth 

was sufficient to support a verdict of guilty on the charge of 

[PWID]?

B. Whether the evidence presented by the Commonwealth 

was sufficient to support a verdict of guilty on the charge of 

[c]onspiracy to [commit PWID]?

(Appellant’s Brief, at 4).

In Appellant’s issues, she challenges the sufficiency of the evidence to 

support her PWID and conspiracy convictions. (See id. at 9-24). 

Appellant’s issues are waived and would lack merit, even if not waived.

It is well-settled that:

when challenging the sufficiency of the evidence on appeal, the 

Appellant’s 1925 statement must “specify the element or 

elements upon which the evidence was insufficient” in order to 

preserve the issue for appeal. [Commonwealth v.] Williams, 

959 A.2d [1252,] 1257 [(Pa. Super. 2008)] ([quotation 

omitted]). . . . Here, Appellant . . . failed to specify which 

elements he was challenging in his 1925 statement . . . . While 

the trial court did address the topic of sufficiency in its opinion, 

we have held that this is “of no moment to our analysis because 

we apply Pa.R.A.P. 1925(b) in a predictable, uniform fashion, not 

in a selective manner dependent on an appellee’s argument or a 

____________________________________________

2 Recidivism Risk Reduction Incentive, 61 Pa.C.S.A. §§ 4501-4512.

3

Pursuant to the court’s order, Appellant filed a timely statement of errors 

complained of on appeal on June 8, 2016. See Pa.R.A.P. 1925(b). The 

court filed an opinion on June 17, 2016. See Pa.R.A.P. 1925(a).
J-S82038-16

- 5 -

trial court’s choice to address an unpreserved claim.” Id. at 

1257 ([quotation omitted]). 

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009), appeal 

denied, 3 A.3d 670 (Pa. 2010).

In the case before us, Appellant’s Rule 1925(b) statement does not 

identify which element or elements of PWID and conspiracy the 

Commonwealth allegedly failed to prove. (See Statement of Matters 

Complained of on Appeal, 6/08/16, at 1). Specifically, her statement merely 

claims that “[t]he evidence presented by the Commonwealth was insufficient 

to support a verdict of guilty on the charge of [PWID] . . . [and c]onspiracy . 

. . .” (Id.). Accordingly, because she fails to identify which specific 

elements the Commonwealth allegedly failed to prove, Appellant’s challenge 

to the sufficiency of the evidence is waived. See Gibbs, supra at 281. 

Moreover, Appellant’s issues would lack merit.

Our standard of review of a challenge to the sufficiency of the evidence 

is well-settled:

In reviewing sufficiency of evidence claims, we must 

determine whether the evidence admitted at trial, as well as all 

reasonable inferences drawn therefrom, when viewed in the light 

most favorable to the verdict winner, are sufficient to support all 

the elements of the offense. Additionally, to sustain a 

conviction, the facts and circumstances which the 

Commonwealth must prove, must be such that every essential 

element of the crime is established beyond a reasonable doubt. 

Admittedly, guilt must be based on facts and conditions proved, 

and not on suspicion or surmise. Entirely circumstantial 

evidence is sufficient so long as the combination of the evidence 

links the accused to the crime beyond a reasonable doubt. Any 

doubts regarding a defendant’s guilt may be resolved by the 
J-S82038-16

- 6 -

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 fact finder is free to believe all, 

part, or none of the evidence presented at trial.

Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa. Super. 2011), appeal 

denied, 44 A.3d 1161 (Pa. 2012) (citations omitted).

In her first issue, Appellant claims that the Commonwealth failed to 

prove PWID because it “failed to present any evidence that [she] actually 

possessed any cocaine,” “that she knew that drugs were present in her 

home,” or that she “intend[ed] to deliver” them. (Appellant’s Brief, at 11, 

15, 17). We disagree.

Pursuant to section 780-113(a)(30) of The Controlled Substance, 

Drug, Device, and Cosmetic Act, “the manufacture, delivery, or possession 

with intent to manufacture or deliver, a controlled substance by a person not 

registered under this act,” is prohibited. 35 P.S. § 780-113(a)(30).

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. It is well settled that 

[i]n narcotics possession cases, the Commonwealth may meet 

its burden by showing actual, constructive, or joint constructive 

possession of the contraband. . . .

This Court has defined constructive possession 

as follows: 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 

possession 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.” 
J-S82038-16

- 7 -

To aid application, we have held that constructive 

possession may be established by the totality of the 

circumstances.

* * *

With regard to the intent to deliver, we must examine the 

facts and circumstances surrounding the possession. [T]he 

intent to deliver may be inferred from possession of a large 

quantity of controlled substances. It follows that possession of a 

small amount of a controlled substance supports the conclusion 

that there is an absence of intent to deliver. If the quantity of 

the controlled substance is not dispositive as to the intent, the 

court may look to other factors.

Other factors to consider when determining 

whether a defendant intended to deliver a controlled 

substance include the manner in which the controlled 

substance was packaged, the behavior of the 

defendant, the presence of drug paraphernalia, and . 

. . [the] sums of cash found in possession of the 

defendant. The final factor to be considered is 

expert testimony. Expert opinion testimony is 

admissible concerning whether the facts surrounding 

the possession of controlled substances are 

consistent with an intent to deliver rather than with 

an intent to possess it for personal use.

Commonwealth v. Roberts, 133 A.3d 759, 767-68 (Pa. Super. 2016), 

appeal denied, ____ A.3d ____ (Pa. filed Sept. 6, 2016) (citations and most 

quotation marks omitted).

In this case, the police executed a search warrant on Appellant’s home 

approximately forty minutes after her daughter left the residence, engaged 

in a controlled buy with a confidential informant, and then returned to the 

dwelling. (See N.T. Trial, 2/05/16, at 59, 128-31). While securing the 

home, Sergeant Frederick heard a toilet flushing behind a closed door and 
J-S82038-16

- 8 -

ordered the room’s occupant to come outside. (See id. at 43). When 

Appellant exited the room, Sergeant Frederick “could see a piece of plastic 

with a white substance in it just spinning around on the top of the water.” 

(Id. at 44; see also id. at 63). Also from the bathroom, police retrieved 

three items with cocaine residue: another ripped off baggie, a spoon, and a 

scale. (See id. at 66). In Appellant’s room, the police discovered “a box of 

Ziploc baggies [and] multiple ends of baggies that were already cut off.” 

(Id. at 70). 

Chief Weaver, the Commonwealth’s expert in drug investigations, 

identification, enforcement, packaging, and distribution, testified to a 

reasonable degree of professional certainty that the items seized in the 

home, combined with the “excessive” amount of cocaine left in the toilet 

bowl after it flushed, and the lack of any paraphernalia for personal use, 

“[a]bsolutely [indicated] someone dealing.” (Id. at 122, 142; see id. at 

123-28). Finally, Chief Weaver observed that the $924.00 found in 

Appellant’s wallet also signaled that she was in the narcotics trade. (See id.

at 141).

Viewing the foregoing evidence in the light most favorable to the 

Commonwealth as verdict winner, we conclude that it demonstrates that 

Appellant possessed cocaine in her home with the intent to distribute it. 

See Roberts, supra at 767-68. Therefore, the evidence was sufficient to 
J-S82038-16

- 9 -

support Appellant’s PWID conviction, and her first issue would lack merit, 

even if not waived. See Moreno, supra at 136. 

In her second claim, Appellant maintains that the evidence was 

insufficient to support her conspiracy conviction. (See Appellant’s Brief, at 

20-23). Specifically, she argues that the evidence failed to establish that 

she was “an active participant in the criminal enterprise, or that there was 

an agreement with Ashley to sell drugs.” (Id. at 21). We disagree.

Section 903 of the Crimes Code provides, in pertinent part:

(a) Definition of conspiracy.─A person is guilty of conspiracy 

with another person or persons to commit a crime if with the 

intent of promoting or facilitating its commission he:

(1) agrees with such other person or persons that they or 

one or more of them will engage in conduct which constitutes 

such crime or an attempt or solicitation to commit such crime[.]

* * *

(e) Overt act.─No 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.A. § 903(a)(1), (e). 

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. With respect to the 

agreement element, we have explained:

The essence of a criminal conspiracy is a 

common understanding, no matter how it came into 
J-S82038-16

- 10 -

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.

Commonwealth v. Melvin, 103 A.3d 1, 42-43 (Pa. Super. 2014) (citations 

and quotation marks omitted).

In the case sub judice, Appellant’s daughter, Ashley, sold cocaine to 

the confidential informant approximately forty minutes before police 

executed the search warrant of her home. (See N.T. Trial, 2/05/16, at 59, 

128-31). When the police entered the home, Ashley was downstairs, and 

Appellant was upstairs flushing cocaine down the toilet. (See id. at 43-44, 

63, 124). The police recovered several items indicating the sale of cocaine 

from the bathroom and Appellant’s bedroom. (See id. at 66, 70, 123-28). 

Finally, Appellant had sixty-dollars of the pre-recorded buy money used by 

the confidential informant to purchase cocaine from her daughter. (See id.

at 133-34).

Viewing the foregoing evidence in the light most favorable to the 

Commonwealth, and after an independent review of the complete record, we 
J-S82038-16

- 11 -

conclude that the evidence was sufficient to support Appellant’s conviction of 

conspiracy to commit PWID. See Melvin, supra at 42-43; Moreno, supra

at 136. Appellant’s second issue would not merit relief, even if not waived.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/6/2016