J-S38009-22

ON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WAVERLY WINSTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 433 EDA 2022

Appeal from the Judgment of Sentence Entered January 7, 2022

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0002551-2020

BEFORE: KUNSELMAN, J., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED JUNE 2, 2023

Waverly Winston (“Winston”) appeals from the judgment of sentence 

imposed following a stipulated non-jury trial at which the trial court found him 

guilty of possession with intent to deliver a controlled substance (“PWID”),

conspiracy to commit PWID, conspiracy to possess drug paraphernalia, driving 

while operating privilege suspended, and related offenses.

1

 We affirm. 

The trial court summarized the factual background of this appeal as 

follows:

On May 12, 2020, at approximately 10:00 p.m., 

[Pennsylvania State Police] Trooper [Steve] Slavin was on traffic 

patrol when he queried the registration of a vehicle which revealed 

the registered owner[, Ernest McClary,] had an active warrant and 

was currently suspended [from driving]. Trooper Slavin 

conducted a vehicle stop. The vehicle . . . stopped on the shoulder 

of the highway, where the speed limit is 45 miles per hour, in an 

area typically with heavy traffic. The vehicle contained the driver, 

____________________________________________

1 See 35 P.S. § 780-113(a)(30), (32); 18 Pa.C.S.A. § 903; 75 Pa.C.S.A. 

§ 1543(a); see also 35 P.S. § 780-113(a)(16).
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[Winston,] and a passenger. Trooper Slavin identified the 

passenger[, McClary,] as the registered owner of the vehicle [and 

confirmed that he did not have a valid driver’s license. Winston

also] did not have a valid driver’s license. 

At this point, Trooper Slavin requested [Winston] to exit the 

vehicle to further investigate the stop. [Winston] complied.

Trooper Slavin inquired why [Winston] was driving with a 

suspended license. Trooper [Slavin c]onducted a pat-down search 

for officer safety, which revealed that [Winston] had marijuana on 

his person. Trooper Slavin asked [Winston] whether there was 

anything illegal in the vehicle. [Winston] responded there was 

marijuana in the vehicle. Trooper Slavin then requested [McClary]

to exit the vehicle. [McClary] complied.

Trooper Slavin’s backup arrived on scene. The vehicle was 

to be towed, in accordance with PA State Police policy FR-1-4,

Shield Regulation. Trooper Slavin proceeded to search the 

vehicle. There was a black plastic bag on the passenger[-]side 

floor. Inside the black bag was a clear bag with [a] white powdery 

substance . . .. Trooper Slavin searched the remainder of the car. 

The rear seat behind the driver[-]side seat contained a black 

zippered bag which contained another clear bag with a white 

powdery substance, later identified as cocaine[, having a net 

weight of just over thirty grams.] Also on the seat, next to the 

bag, was a measuring cup and a towel.[2] [Winston] and 

____________________________________________

2 We note that Trooper Slavin testified inconsistently about the location of the 

towel and the measuring cup. At the preliminary hearing, the trooper 

indicated that the towel and measuring cup were inside the zippered bag. See

N.T. Preliminary Hearing, 9/8/20 at 10, 25. At the suppression hearing, the 

trooper testified that the towel and measuring cup were next to the zippered 

bag. See N.T. Suppression, 4/20/21, at 15. The trial court apparently 

resolved the inconsistency in favor of finding that the towel and measuring 

cup were next to the zippered bag. See Trial Court Opinion, 5/31/22, at 3. 

Additionally, there appears to be confusion over which bag, the black plastic 

bag in the front passenger compartment or the zippered bag in the seat 

directly behind Winston, contained white powdery substances later 

determined to contain cocaine. A review of the record makes clear that white 

powder in the black plastic bag near McClary tested negative for controlled 

substances but could be used as a “cutting agent,” while the contents of the 

(Footnote Continued Next Page)
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passenger were taken into custody and the vehicle was to be 

towed.

Trial Court Opinion, 5/31/22, 2-3. Trooper Slavin’s “dash-cam” recorded 

video and portions of the audio from the interactions surrounding the stop, 

search, and arrest. 

At the preliminary hearing, the Commonwealth presented Trooper Mark 

Solerno as an expert witness. Trooper Solerno opined that the amount of 

cocaine found in the car, along with the presence of other contraband, was 

consistent with an intent to sell the cocaine. See N.T. Preliminary Hearing, 

9/8/20, at 30-32. The magisterial district judge held the charges over for 

trial.3 

Winston filed a motion to suppress asserting that Trooper Slavin 

unlawfully stopped and detained him, and no exigent circumstances supported

the warrantless search of the car. See Motion to Suppress, 2/10/21, at ¶¶ 3-

4, 7. The trial court held a hearing, at which Trooper Slavin testified, and the 

Commonwealth presented the court with a State Police directive concerning 

inventory searches. The trial court denied the suppression motion concluding 

that the trooper would have inevitably discovered the contraband in the car 

pursuant to an inventory search. See Order, 6/1/21, at 3.

____________________________________________

powder in the zippered bag behind Winston tested positive for cocaine. See 

N.T. Preliminary Hearing, 9/8/20, at 13-14, 32. 

3 McClary apparently pleaded guilty to the charges against him, including a 

count of conspiracy, after the preliminary hearing. See N.T., Stipulated NonJury Trial, 12/21/21, at 33.
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Winston proceeded to a stipulated non-jury trial at which the parties 

agreed to a trial upon the record without additional testimony. The 

Commonwealth thereafter moved for the admission of the dash-cam video, 

the suppression hearing transcript, the affidavit of probable cause, and a 

laboratory report, and then rested its case. See N.T., Stipulated Non-Jury 

Trial, 12/21/21, at 8. During Winston’s argument to the court that the record 

did not establish the intent to deliver a controlled substance, the 

Commonwealth objected. See id. at 16-18. The prosecutor asserted that the 

Commonwealth had agreed to allow Winston to argue that the evidence was 

insufficient to establish his possession of the drugs, but the agreement did not 

include challenges to Winston’s intent to deliver the drugs. See id. Over 

Winston’s objection, the trial court found there was a mistake regarding the 

scope of the record and permitted the Commonwealth to supplement the 

record with the preliminary hearing transcript. See id. The trial court

thereafter found Winston guilty of the above-listed offenses,

4 and on January 

7, 2022, sentenced him to an aggregate term of twenty-one to forty-two 

months of incarceration. Winston timely appealed, and both he and the trial 

court complied with Pa.R.A.P. 1925. 

Winston raises the following issues for our review: 

I. Whether the court below erred in denying [the] motion to

suppress evidence, where police conducted a warrantless 

vehicle search without probable cause, exigent 

____________________________________________

4 The trial court found Winston not guilty of conspiracy to possess a controlled 

substance.
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circumstance, or any other applicable exception to the 

warrant requirement, in violation of Pa. Const. Art. 1, § 8

and U.S. Const. Amends. IV, XIV?

II. Whether the trial court erred when it permitted the 

prosecution to introduce evidence of the preliminary hearing 

transcript . . . since it did so during closing arguments, after 

the prosecution rested and the trial’s evidentiary phase 

concluded?

III. Whether the evidence is insufficient to sustain the 

convictions for possession with intent to deliver, possession 

of a controlled substance, and possession of drug 

paraphernalia since the prosecution failed to prove beyond 

a reasonable doubt that [Winston] actually or constructively

possessed any controlled substance or paraphernalia?

IV. Whether the evidence is insufficient to sustain the 

convictions for conspiracy to possession with intent and to 

drug paraphernalia[,] since the prosecution failed to prove 

beyond a reasonable doubt that [Winston], with the intent 

to promote or facilitate a crime, entered an agreement to 

commit either offense or that an overt act was taken to 

further such an agreement?

Winston’s Brief at 6 (italics omitted).

In his first issue, Winston challenges the trial court’s denial of his motion 

to suppress. Our standard of review is as follows:

Our standard of review in addressing a challenge to a trial court’s 

denial of a suppression motion is limited to determining whether 

the factual findings are supported by the record and whether the 

legal conclusions drawn from those facts are correct. We are 

bound by the suppression court’s factual findings so long as they 

are supported by the record; our standard of review on questions 

of law is de novo. Where . . . the defendant is appealing the ruling 

of the suppression court, we may consider only the evidence of 

the Commonwealth and so much of the evidence for the defense 

as remains uncontradicted. Our scope of review of suppression 

rulings includes only the suppression hearing record . . ..
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Commonwealth v. Davis, 241 A.3d 1160, 1171 (Pa. Super. 2020) (internal 

citation omitted). 

The Fourth Amendment to the United States Constitution and Article I, 

Section 8 of the Pennsylvania Constitution protect private citizens from 

unreasonable searches and seizures by government officials. See 

Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000) (citing United 

States v. Mendenhall, 446 U.S. 544, 551 (1980)). “Warrantless searches 

are presumptively unreasonable under the state and federal constitutions.” 

Commonwealth v. Barr, 266 A.3d 25, 40 (Pa. 2021) (internal citation 

omitted). Moreover, Article I, Section 8 of the Pennsylvania Constitution

affords greater protections than the Fourth Amendment, and a warrantless 

investigatory search of a vehicle generally requires the Commonwealth to 

show probable cause and exigent circumstances. See Commonwealth v. 

Alexander, 243 A.3d 177, 207 (Pa. 2020).

5

 

Under the inevitable discovery doctrine,

[e]vidence which would have been discovered [is] sufficiently 

purged of the original illegality to allow admission of the evidence

____________________________________________

5 Alexander, which our Supreme Court decided approximately seven months 

after the vehicle search at issue here, abrogated Commonwealth v. Gary, 

91 A.3d 102 (Pa. 2014), which previously held that, consistent with the Fourth 

Amendment, the Pennsylvania Constitution required only probable cause to 

search a car, not probable cause and exigent circumstances. Here, Winston 

preserved an Alexander claim in his motion to suppress and is entitled to 

retroactive application of Alexander. See Commonwealth v. Heidelberg, 

267 A.3d 492, 502-03 (Pa. Super. 2021) (en banc) (noting that a new rule of 

law generally applies retroactively to pending cases but a party must have 

raised and preserved in the trial court a claim that the new rule of law should 

apply), appeal denied, 279 A.3d 38 (Pa. 2022).
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. . .. [I]mplicit in this doctrine is the fact that the evidence would 

have been discovered despite the initial illegality. If the 

prosecution can establish by a preponderance of the evidence that 

the illegally obtained evidence ultimately or inevitably would have 

been discovered by lawful means, the evidence is admissible. The 

purpose of the inevitable discovery rule is to block setting aside 

convictions that would have been obtained without police 

misconduct.

Commonwealth v. King, 259 A.3d 511, 522 (Pa. Super. 2021) (internal 

citation omitted). This Court has upheld the recovery of evidence where an 

initial search was improper, but the police had a basis to tow a vehicle and 

would have inevitably discovered evidence inside the car pursuant to a proper

inventory search. See id. at 522-23; see also Commonwealth v. Bailey, 

986 A.2d 860, 862-63 (Pa. Super. 2009). 

Section 6309.2 of the Motor Vehicle Code outlines the procedures for 

the immobilization or towing of a vehicle when the driver is operating without 

a license or proper registration: 

(a) General rule.— . . .

(1) If a person operates a motor vehicle . . . on a highway 

or trafficway of this Commonwealth while the person’s 

operating privilege is suspended . . . the law enforcement 

officer shall immobilize the vehicle . . . or, in the interest 

of public safety, direct that the vehicle be towed and 

stored by the appropriate towing and storage agent 

pursuant to subsection (c), and the appropriate judicial 

authority shall be so notified.

* * * *

(c) Procedure upon towing and storage.—

(1) [T]he following steps shall be taken:
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(i) The appropriate judicial authority shall notify the 

appropriate law enforcement officer of the county in 

which the violation occurred.

(ii) The officer notified under subparagraph (i) shall 

notify the appropriate towing and storage agent to 

tow and store the vehicle . . . and provide notice by 

the most expeditious means and by first class mail, 

proof of service, of the towing, storage and location of 

the vehicle . . . to the owner of the vehicle . . . .

75 Pa.C.S.A. § 6309.2(a)(1), (c)(1)(i)-(ii) (emphasis added).

In Commonwealth v. Lagenella, 83 A.3d 94 (Pa. 2013), our Supreme 

Court outlined the requirements of an inventory search as follows: “An 

inventory search of an automobile is permissible when (1) the police have 

lawfully impounded the vehicle; and (2) the police have acted in accordance 

with a reasonable, standard policy of routinely securing and inventorying the 

contents of the impounded vehicle.” Lagenella, 83 A.3d at 102 (internal 

citation omitted). An inventory search requires, in relevant part, a proper 

basis to stop a vehicle and to tow and store or impound the vehicle. See id. 

at 105-06 (rejecting the Commonwealth’s argument that an inventory search 

based solely on the immobilization of a vehicle is proper). Our Supreme Court 

has succinctly stated that “[i]f the search was conducted as part of a criminal 

investigation, it is not an inventory search.” Commonwealth v. White, 669 

A.2d 896, 903 (Pa. 1995).

Winston initially contends that Trooper Slavin lacked probable cause to 

believe that he or McClary were engaged in criminal activity at the time the 

trooper searched the car and that no exigent circumstances supported the 

search. See Winston’s Brief at 20-21. Winston continues that the trial court 
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erred in concluding that the trooper would have inevitably discovered the 

contraband upon conducting an inventory search because the trooper failed 

to follow standard procedures during the search. See id. at 23-24. Winston

maintains the Commonwealth seeks to avoid Alexander’s requirement that 

vehicle searches require probable cause and exigent circumstances by 

belatedly attempting to justify Trooper Slavin’s conduct as an inventory search 

or by invoking the inevitable discovery doctrine. See id.

6

The trial court determined that troopers would have inevitably 

discovered the illegal substances and drug paraphernalia located in the bags 

in the vehicle. See Trial Court Opinion, 5/31/22, at 3-4. Both Winston, the 

driver, and McClary, the owner and passenger of the car, had suspended 

driver’s licenses and neither could continue to operate the vehicle. See id. at 

4. The court credited evidence that it was not safe to leave the vehicle on the 

shoulder of the highway and that a proper inventory search pursuant to State 

____________________________________________

6 We note that Winston’s initial brief focuses more on Trooper Slavin’s conduct 

of the search and the lack of exigent circumstances than on the trial court’s 

application of the inevitable discovery doctrine. Winston, in his reply brief,

argues that inevitable discovery requires more than the mere possibility that 

the evidence could have been discovered but proof that the evidence would 

have been discovered absent the taint during the prior illegal search. See

Winston’s Reply Brief at 1 (citing Commonwealth v. Perel, 107 A.3d 185, 

196 (Pa. Super. 2014)). We find that Winston waived the expanded inevitable 

discovery argument first raised in his reply brief. See Commonwealth v. 

Fahy, 737 A.2d 214, 219 n.8 (Pa. 1999) (noting that “a reply brief cannot be 

a vehicle to argue issues raised but inadequately developed in appellant’s 

original brief”) (internal citation omitted). In any event, for the reasons 

discussed herein, we conclude that there was a sufficient basis for the trial 

court to determine that the inevitable discovery exception applied. 
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Police directives would have led to the recovery of the drugs and 

paraphernalia. See id. 

Following our review, we conclude Winston’s arguments do not establish 

an error in the trial court’s suppression ruling. Winston’s focus on Trooper 

Slavin’s improper search of the car is misplaced. Even if Trooper Slavin 

improperly searched the car, the Commonwealth’s invocation of the inevitable 

discovery doctrine required the trial court to consider whether, absent 

misconduct, troopers would have inevitably discovered the evidence.

7 See

King, 259 A.3d at 522. Here, the Commonwealth presented the trial court 

with Trooper Slavin’s testimony, the State Police directives, and a dash-cam 

recording, all of which showed troopers had a basis to tow the car for public 

safety reasons, would have conducted an inventory search, and would have 

inevitably found the contraband in the car. See N.T. Suppression Hearing, 

4/20/21, at 17-18 (indicating that the Commonwealth marked a

memorandum concerning directive FR-1-4 as Exhibit CS2, and Trooper Slavin 

testified that that directives would have required that the car be towed and 

____________________________________________

7

If the sole issue at the suppression hearing were the propriety of Trooper 

Slavin’s search of the vehicle, we might agree that the search was conducted 

as part of a criminal investigation and not an inventory search. See White, 

669 A.2d at 903. However, our analysis in this appeal is limited to the trial 

court’s conclusion that troopers would have recovered the contraband during 

an inventory search, not whether Trooper Slavin found the contraband during

an inventory search. See King, 259 A.3d at 522. The White Court did not 

address the specific issue of inevitable discovery. See White, 669 A.2d at 

903. 
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an inventory search performed);

8 see also Exhibit C1 (dash-cam video 

showing that the car was stopped on a narrow shoulder close to a lane of 

traffic). The State Police directives also provided that an inventory search 

would have permitted troopers to open the containers in the vehicle. See

Exhibit CS2 at 9 (stating that unlocked or unsealed container shall be opened 

and searched during an inventory search). Accordingly, troopers performing 

an inventory search would inevitably have found the contraband inside the 

bags. Thus, the trial court’s findings and its legal conclusions that the 

inevitable discovery rule applied have record support, and we will not disturb 

its suppression ruling. See King, 259 A.3d at 522; Bailey, 986 A.2d at 862-

63. 

Winston next challenges the trial court’s decision to reopen the record 

to allow the Commonwealth to supplement the stipulated non-jury trial record 

with the preliminary hearing transcript. By way of further factual background, 

we summarize the record relevant to this issue as follows. Following a 

colloquy on Winston’s trial rights, Winston elected to proceed to a non-jury 

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8 The Commonwealth marked the State Police directives as Exhibit CS2, but 

did not formally move to admit Exhibit CS2 into evidence. However, the 

exhibits from the suppression hearing in the record contain Exhibit CS2, and 

both Winston and the Commonwealth refer to the substance of the directives 

in their appellate briefs. See Winston’s Brief at 24 (noting that the directives 

required the creation of a property record form that the Commonwealth did 

not produce); Commonwealth’s Brief at 13 (discussing scope of the inventory 

search required by the directives); Winston’s Reply Brief at 4 (asserting that 

the Commonwealth failed to establish Trooper Slavin complied with the 

directives). We therefore conclude that Winston has waived any formal defect 

in the inclusion of the directives as part of the suppression record, and we will 

refer to it in this appeal. 
J-S38009-22

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trial and agreed to the court rendering a decision based on the record. See

N.T. Stipulated Non-Jury Trial, 12/21/21, at 6-7. The Commonwealth then 

represented that the record before the court consisted of: the suppression 

hearing transcript; the laboratory report stating that the white powder found 

in the bag behind Winston contained cocaine; the criminal complaint; and the 

dash-cam video. See id. at 7-10. The Commonwealth thereafter rested, and 

Winston began his closing argument with a claim that the trial court should 

not find him guilty of PWID because the evidence did not establish his 

constructive possession of the cocaine in the car. See id. at 10-13. However, 

when Winston’s counsel asserted that the Commonwealth’s evidence did not 

establish his intent to deliver the cocaine, see id. at 13-14, the following 

exchange occurred:

[The Commonwealth]: Your Honor, if we could stop for a 

moment? I agree to a stipulated bench [trial] with . . . the 

understanding that there’s going to be an appeal with regard to

the suppression hearing. If counsel is now going to argue 

arguments that would entail testimony from experts, then I would 

ask that this matter be listed for a jury trial. That was not my 

understanding of the reason for a stipulated bench [trial]. 

* * * *

. . . And we’re talking about testimony that would not have 

been presented at a suppression hearing where this is totally 

distinct argument which would require testimony from an expert 

and that would be a matter for a jury, so if that’s the argument 

that’s now being made, I am not in agreement to a . . . waiver of 

a jury trial. 

[Winston’s Counsel]: . . . Judge, I was very clear when we 

conferenced this case that I was not . . . conceding guilt and . . .

we were contesting the elements of the offense and that’s why 
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I'm making argument here. And the Commonwealth knew I was 

going to make argument on --

[The Commonwealth]: . . . Your Honor, I find that to be

disingenuous because all the conversations we’ve had in the back 

had to do with this being a constructive possession case. If we’re 

going to now do a sneak attack and contest whether this is actual 

intent to deliver, then I request a jury trial. . . . 

* * * *

. . . And Mr. Winston can go facing [sic] the jury, but I am 

not in agreement at this point. . . . 

[Defense Counsel]: Judge, there’s no sneak attack here and 

I resent the allegation that it is. I let the [c]ourt know that . . .

we were contesting every element of the offense. I said definitely 

possession and probably intent. 

[The Commonwealth]: No, that was never said, Your 

Honor. . . . 

* * * *

THE COURT: I think that . . . there seems to be some 

misunderstanding as to what was going to be presented here by 

way of factual argument and legal argument. There has to be a 

meeting of the minds. They both have to -- both sides have to 

agree to a waiver. . . . This seems to be a pretty fundamental 

difference . . ..

Id. at 14-16. 

After a discussion off the record, the trial court ruled as follows: 

. . . [W]e’re still in closing argument for [the d]efense. I 

think there has been discussion about notes of the preliminary 

hearing be[ing] admitted [and] being marked as C-5.[9]

* * * *

____________________________________________

9 Winston renewed his objection to supplementing the record arguing that the 

Commonwealth had rested its case. See N.T. Stipulated Non-Jury Trial, 

12/21/21, at 17-18. 
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Based on the fact that there seems to be . . . a 

misunderstanding between counsel, this [c]ourt finds in a matter 

of completeness and fairness that the notes of the preliminary 

hearing will be marked and admitted into evidence, noting the 

objection of [Winston’s counsel].

Id. at 17-18.

When reviewing a trial court’s decision to reopen a trial record, we 

employ an abuse of discretion standard. See Commonwealth v. Baldwin, 

58 A.3d 754, 763 (Pa. 2012); Commonwealth v. Tharp, 575 A.2d 557, 559

(Pa. 1990). The trial court may reopen a record after the parties rest their 

cases to prevent “a failure or miscarriage of justice.” Baldwin, 58 A.3d at 

763 (internal citations and quotations omitted). Factors relevant to a decision 

to reopen a trial record include: the timing of the request to open; the nature 

of the proffered testimony or evidence; the reasons for and reasonableness of

the late proffer; and the relative weight of the proffered evidence versus the 

potential for disruption or prejudice. See id. 

Winston contends that all relevant factors for reopening the record 

weighed against the Commonwealth. See Winston’s Brief at 26-28. Winston 

argues that the Commonwealth had no excuse for its failure to include the 

preliminary hearing transcript in the record before it rested and that its belated 

request, during his closing argument, resulted in prejudice. See id. at 27-28. 

Winston concludes that he is entitled to a remand for a consideration of his 

guilt based on the record without the preliminary hearing transcript. See id. 

at 30. 
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As noted above, the trial court determined that there was a 

misunderstanding of the scope of agreement that affected the 

Commonwealth’s decision to agree to a non-jury trial. N.T. Stipulated NonJury Trial, 12/21/21, at 16-17. The trial court ultimately ruled that as a matter 

of “completeness and fairness,” it would admit the transcript of the preliminary 

hearing. Id. at 18. 

Following our review, we conclude that the trial court’s findings have 

support in its record and the court properly reopened the record. The 

Commonwealth interposed its objection as soon as Winston began challenging 

the intent element of PWID, and the trial court found there was a fundamental

misunderstanding as to the scope of the factual and legal issues for the 

stipulated non-jury trial. See id. at 14-18. The trial court implicitly found

this misunderstanding to be reasonable, notwithstanding Winston’s counsel’s 

argument that he had consistently preserved his right to challenge intent at 

the stipulated non-jury trial. See id. Furthermore, the preliminary hearing 

transcript containing Trooper Solerno’s expert opinions concerning the intent 

element of PWID was highly probative and its admission was not unduly 

disruptive or prejudicial under the circumstances of this case. Thus, we 

conclude that the trial court did not abuse its discretion when it reopened the 
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record for “completeness and fairness.”

10 Id. at 18; see Tharp, 575 A.2d at 

559. 

In his last two issues, Winston challenges the sufficiency of the 

evidence. Winston, in his third issue, challenges the sufficiency of the 

evidence that he possessed the drugs or paraphernalia found in the car. In 

his fourth issue, he contends that the evidence was insufficient to find him 

guilty of conspiracy to commit PWID. These arguments are related, and we 

address them together. 

Questions concerning the sufficiency of the evidence are questions of 

law, and our standard of review is de novo, and our scope of review is plenary. 

See Commonwealth v. Mikitiuk, 213 A.3d 290, 300 (Pa. Super. 2019). 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 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 the factfinder. 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 

____________________________________________

10 To the extent Winston asserts that the admission of the preliminary hearing 

transcript altered his understanding of the scope of the stipulated non-jury 

trial, he, like the Commonwealth, had the option to demand a full trial or a 

jury trial. He did not so do. 
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must be evaluated[,] and all evidence actually received must be 

considered. Finally, the [finder] of fact while passing upon the 

credibility of witnesses and the weight of the evidence produced, 

is free to believe all, part or none of the evidence.

Commonwealth v. Perez, 931 A.2d 703, 706-07 (Pa. Super. 2007) (internal 

citation omitted).

As for possession, the Commonwealth may establish possession of a 

controlled substance or paraphernalia by proving actual or constructive 

possession. If contraband is not discovered on the defendant’s person, the 

Commonwealth may prove that the defendant had constructive possession of 

the contraband. Constructive possession means the defendant had an ability 

to exercise conscious dominion over the contraband, that is, that he had the 

power to control the contraband and the intent to exercise that control. See

Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa. Super. 2014) (en banc). 

“[T]he power and intent to control the contraband does not need to be 

exclusive to the defendant[,]” and “constructive possession may be found in 

one or more actors where the item [at] issue is in an area of joint control and 

equal access.” Id. (internal citation and quotations omitted). However, if 

another person has equal access to the location of the contraband, “presence 

alone in conjunction with such access will not prove conscious dominion over 

the contraband.” Id. (internal citation and quotations omitted). 

Regarding conspiracy, a person commits criminal conspiracy with 

another person or persons if, “with the intent of promoting or facilitating [a 

crime’s] commission he . . . agrees with such other person or persons that 

they or one or more of them will engage in conduct which constitutes such 
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crime or an attempt or solicitation to commit such crime.” 18 Pa.C.S.A. 

§ 903(a). The essence of a criminal conspiracy is a common understanding 

or agreement that a particular criminal objective be accomplished. See 

Commonwealth v. Munson, 261 A.3d 530, 542 (Pa. Super. 2021). 

Circumstantial evidence may provide proof of the conspiracy. The 

conduct of the parties and the circumstances surrounding such 

conduct may create a “web of evidence” linking the accused to the 

alleged conspiracy beyond a reasonable doubt. Additionally:

An agreement can be inferred from a variety of 

circumstances including, but not limited to, the relation 

between the parties, knowledge of and participation in the 

crime, and the circumstances and conduct of the parties 

surrounding the criminal episode. These factors may 

coalesce to establish a conspiratorial agreement beyond a 

reasonable doubt where one factor alone might fail.

Perez, 931 A.2d at 708 (internal citation omitted). Where the Commonwealth 

establishes a conspiracy to commit PWID, for example, a co-conspirator will 

be fully liable for all drugs recovered without the necessity of proving 

constructive possession. See id. at 709. 

Winston, in challenging the sufficiency of the evidence that he 

constructively possessed the cocaine and the paraphernalia and was liable for 

PWID as a co-conspirator, argues that he was merely present in the car. See

Winston’s Brief at 36, 38-39. Winston asserts that no evidence or combination 

of circumstances proved that he was aware of the contraband in the car or

that he agreed to possess the cocaine and the paraphernalia or deliver the 

cocaine. See id. at 39. 
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The trial court, after reciting the relevant law, engaged in a relatively 

brief analysis of these issues opining that the evidence supported its verdicts

because “[Winston] was the driver of the vehicle (passenger was the owner) 

which contained illegal substances, packaging material[,] and [Winston] 

admitted to marijuana being in the vehicle.” Trial Court Opinion, 5/31/22, at 

7. 

Upon a review of the record adduced at the stipulated non-jury trial and 

mindful of our standard of review, we discern no merit to Winston’s mere 

presence arguments. Trooper Slavin testified that after he stopped McClary’s 

vehicle, he approached the car and found that Winston was driving McClary’s 

car, and McClary was in the passenger seat. See N.T. Suppression Hearing, 

4/20/21, at 9. Winston had his “hands up during the initial encounter and 

approach” and appeared to be “pretty nervous.” Id. at 12. Winston told the 

trooper that his license was suspended, but McClary had asked him to drive. 

See id. at 9; see also Exhibit C1 (dash-cam video) at 2:25 to 2:30. After 

Trooper Slavin had Winston exit the car and frisked him, Winston stated that 

he had marijuana on his person, and the trooper recovered marijuana and an 

empty baggie from Winston’s pocket.11 See N.T., Suppression Hearing, 

4/20/21, at 13; N.T., Preliminary Hearing, 9/8/20, at 9; see also Exhibit C1

____________________________________________

11 We note that the affidavit of probable cause attached to the criminal 

complaint indicates that Winston had “two clear green baggies” on his person 

that was “consistent with drug paraphernalia.” See Affidavit of Probable 

Cause, 5/13/20, at 2; see also N.T., 12/21/21, at 8 (admitting the affidavit 

of probable cause as Exhibit C3). 
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at 10:13. When the trooper asked how Winston knew McClary, Winston 

described McClary as “like an uncle.” See Exhibit C1 at 10:44. Winston also

stated that he was wearing McClary’s jacket. See id. at 11:09. When the 

trooper asked if there was anything else in the car, Winston responded, “[J]ust 

weed.” N.T., Suppression Hearing, 4/20/21, at 13; see also Exhibit C1 at 

11:55 (indicating that Trooper Slavin stated Winston told him there may be a 

“little bit of weed in a bag,” which the trooper had not yet seen). 

After having McClary exit the car, Trooper Slavin searched the car and 

recovered, from around the front passenger seat where McClary had been 

seated, a black plastic shopping bag that was “tightly tied.” N.T., Preliminary 

Hearing, 9/8/20, at 10, 23. Upon opening the black bag, Slavin discovered a 

clear plastic bag containing a white powdery substance. See N.T., 

Suppression Hearing, 4/20/21, at 14. 

On the rear passenger seat directly behind the driver’s side seat, the 

trooper recovered a zippered bag. See id. at 15. The zippered bag contained 

another clear baggie containing a white powdery substance. See id. Next to

the zippered bag, the trooper discovered a clear measuring cup and a towel. 

See id. Testing revealed that the bag of white powder from the black 

shopping bag found beside co-defendant McClary’s seat was not a controlled 

substance. See Exhibit C4 (laboratory report). The bag of white powder from 

the zippered bag behind the driver’s seat tested positive as cocaine with a net 

weight of over thirty grams. See id. Trooper Solerno, the Commonwealth’s 

expert, testified that the non-narcotic white powder beside McClary and the 
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measuring cup behind Winston was consistent with paraphernalia used to 

“break down the cocaine and make crack cocaine, which could then be . . . 

sold for a lower amount to have a larger profit.” N.T. Preliminary Hearing, 

9/8/20, at 31-32. Trooper Solerno stated that the purchase price of the 

cocaine was approximately $1,500. See id. at 31.

Based on the foregoing record, which we must read in a light most 

favorable to the Commonwealth as the verdict winner, we conclude that there 

was sufficient evidence that Winston and co-defendant McClary had entered 

into a conspiracy to possess the cocaine and the paraphernalia used to convert

and distribute the cocaine in a different, higher-profit form. To the extent 

Winston argues that he was merely present and could not have known about 

the drugs and paraphernalia in the car, the circumstantial evidence in the 

record belies his claims. Winston had a close relationship to McClary and was 

driving McClary’s car despite both having suspended driver’s licenses. 

Winston possessed at least one empty baggie that Trooper Slavin considered 

to be drug paraphernalia. The zippered bag containing thirty grams of cocaine

and the measuring cup were on the seat directly behind the driver’s seat, 

where Winston had been seated. Winston, according to Trooper Slavin, 

exhibited nervousness on the trooper’s approach, and he attempted to 

minimize the nature of the contraband located in the car by indicating that 

there was only marijuana in the car. 

Viewing the totality of these circumstances, we conclude there was a 

“web of evidence” from which a fact finder could reasonably infer the existence 
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of the conspiracies to commit PWID and possess drug paraphernalia. See

Perez, 931 A.2d at 708. Winston’s arguments ultimately go to the weight of 

the Commonwealth’s evidence, not its sufficiency, and the evidence and 

reasonable inference therefrom were not so weak or inconclusive as to upset 

the trial court’s finding that Winston and McClary agreed to and engaged in a 

conspiracy to commit PWID and to possess the related paraphernalia.

12

 

Because the Commonwealth established conspiracy to commit PWID and 

possession of paraphernalia, we need not address Winston’s issue concerning 

constructive possession of the cocaine and the paraphernalia separately. See 

id. at 709. 

Judgment of sentence affirmed. 

____________________________________________

12 Winston, for example, insists that the dash-cam recording did not support 

Trooper Slavin’s testimony that Winston appeared nervous. However, Trooper 

Slavin testified that Winston appeared nervous when the trooper initially made 

contact with him, when Winston was inside the car. The dash-cam recording 

did not show Winston’s demeanor when he was inside the car. Similarly, given 

the location of the cocaine in the zippered bag directly behind Winston, a court 

was entitled to reject his argument that he was unaware of the presence of 

the cocaine because it was not in plain view. Given the value of the cocaine 

and the other paraphernalia in the car, it is reasonable to infer that neither 

Winston nor McClary had simply left the cocaine and paraphernalia in the car 

for any length of time, but, at the time of the stop, they had either recently 

purchased the drugs or were transporting the drugs and paraphernalia to 

prepare the cocaine in the near future for distribution. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/2/2023