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ON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA

v.

WAVERLY WINSTON

Appellant : : : : : : : : : 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”) ,
con spiracy 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 [Ste ve ] 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 curren tly 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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[ Wins ton ,] and a passenger. T r ooper Slavin identified the passenger [, McClary, ] as the registered owner of the vehicle [ and confirmed that he d id 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. Troo per [Slavin c] onducte d a pat

- down search for officer safety, which reveal ed 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 plast ic 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 contain ed 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 T rooper 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 pl astic 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 nea r McClary tested negative for controlled substances but could be used as a “cutting agent , ” while the contents of the (Footnote Continued Next Page)J

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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” re corded video and portions of the audio from th e interactions surrounding the stop, search, and arrest

. At the preliminary hearing, the Commonwealth presented Trooper Mark S o lerno as an expert witness . Trooper S o lerno opined that the amount of cocaine found in the car, alon g 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 unla wfully stopped and detain e d him , and no exigent circumstances supported the warrantless search of the car. See Motion to Suppress, 2/10/21, at ¶¶ 3

- 4, 7

. The tria l court held a hearing , at which Trooper Slavin testi fied , and the Commonwealth presented the court with a State Police directive concerning inventory searches. T he trial court denied the suppression motion concluding that the trooper would have inevitably discovered the contraband in the ca r 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 Non

Jury Trial, 12/21/21, at 33.J

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Winston proceeded to a stipulated non

- jury trial at which t he parties agreed t o a trial upon the record without additional testimony . The Commonwealth thereafter moved for the adm ission of the dash

- cam video, the suppression hearing transcript , the affidavit of probable cause, and a laboratory report , a nd 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

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. 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, t he 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. T he trial court thereafter found Winston guilt y of the above

- listed offenses , 4 and o n 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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- circumsta nce, 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 tran script

. . . 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 control led 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 agree ment 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 corr ect. 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 . . ..J

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Commonwealth v. Davis , 241 A.3d 1160, 1171 (Pa. Sup er. 2020) (internal citation omitted). The Fourth Amendment to the United States Constitution and Article I, S ection 8 of the Pennsylvania Constitution protect private citizens from unreasonable searches and seizures by government officials. See Commonw

ealth 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 2 5, 40 (Pa. 2 021) (internal citation omitted). Moreover, A rticle I, S ection 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 probab le 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 tha t, 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 supp ress 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 retroactive ly 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 preponder ance 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 b een 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 improp er , 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 52 2

- 23 ; see also Com monwealth v. Bailey , 986 A.2d 860, 86 2

- 6 3 (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 t he 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:J

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- (i) The appropriate judicial authorit y 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 Commo nwealth 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 hav e 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). A n 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 10 5

- 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 support ed the search. See Winston’s Brief at 20

- 21. Winston continues that the trial courtJ

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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 procedure s 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 ine vitable discovery doctrine. See id

. 6 The trial court determined that t roopers 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. B oth 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

. S ee 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 e xigent circumstance s 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 t hat 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 discover y 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 in adequately developed in appellant’s original brief”) (internal citation omitt ed). 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.J

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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 search ed the car, t he Commonwealth’s invocation of the inevitable discovery doctrine require d the trial court to consider whether , absent misconduct , t roopers 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 directive s , and a dash

- cam recording , all of which show ed troopers had a basis to tow the car for public safety reasons , would have conduct ed an inventory search , and would have inevitably found the contraband in the car

. See N.T. Suppression Hearing , 4/20/21, at 17

- 18 ( in dicating that the Commonwealth mark ed a memorandum concerning directive FR

- 1

- 4 as Exhibit CS2 , and Trooper Slavin testified that th at directive s 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 W hite Court did not address the specific issue of inevit able discovery. See White , 669 A.2d at 903

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an inventory search performe d ) ; 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 directive s also provided that an inventory search would have permitted troopers to open the containers in the vehicle

. See Exh ibit CS2 at 9 ( stating that unlocked or unsealed container shall be opened and search ed 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 rel evant to this issue as follows. Following a colloquy on Winston’s trial rights, Winston elected to proceed to a non

- jury

_________________ __________ ______ ____ _______ 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 appel late 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); Wi nston’s Reply Brief at 4 (asserting that the Commonwealth failed to establish Trooper Slavin complied with the directive s ). We therefore conclude that Winston has waived any formal defect in the inclusion of the directives as part of the suppression recor d, and we will refer to it in this appeal.J

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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 Co mmonwealth 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 o f the cocaine in the car. See id . at 10

- 13. However,

w hen Winston’s counsel asserted that the Commonwealth’s evidence did not establish his intent to deliver the cocaine , s ee id . at 13

- 14 , t he 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 exp erts, 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 Counse l] : . . . Judge, I was very clear when we conferenced this case that I was no t

. . . conceding guilt and

. . . we were contesting the elements of the offense and that ’ s whyJ

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I'm making argument here. And the Commonwealth knew I was going to make argument o n -- [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 ac tual 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 pro bably 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. . . . T his seems to be a pretty fundamental difference

. . .. Id . at 14

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. After a discussi on off the record, t he 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 object ion to supplement ing the record arguing that the Commonwealth had rested its case. See N.T. Stipulated Non

- Jury Trial, 12/21/21, at 17

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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

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. When reviewing a trial court’s decision to reopen a trial record, we employ an abuse of discretion standard. See Com monwealth v. Baldwin , 58 A.3d 754, 763 ( Pa. 2012) ; Commonwealth v. Tharp , 575 A.2d 557, 55 9 (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 reason s for and reasonableness of the late proffer ; and t he 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 e ntitled to a remand for a consideration of his guilt based on the record without the preliminary hearing transcript. See id

. at 30.J

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As noted above, the trial court determined that there was a misunderstanding of the scope of agreement that affected th e Commonwealth’s decision to agree to a non

- jury trial. N.T. Stipulated Non

Jury 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 t he trial court’s findings have support in its record and the court properly reopen ed the record

. The Commonwealth interposed its objection as soon as Winston began challenging the intent element of PWID, a nd the trial court found the re was a fundamental misunderstanding as to the scope of the factual and legal issues for the stipulated non

- jury trial

. See id

. at 1 4

- 18

. The trial court implicit ly f ound 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 concerni ng 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 theJ

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record for “comple teness and fairness

. ” 10 I d . 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. Th ese 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 t he 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 fact

finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubt s 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 prov ing 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 th e 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.J

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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 posse ssion, t he 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 construc tive 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 Com monwealth 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] is sue is in an area of joint control and equal access.” I

d . (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 d ominion over the contraband.” I d . (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

. . . agr ees with such other person or persons that they or one or more of them will engage in conduct which constitutes suchJ

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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 unders tanding or agreement that a particular criminal objective be accomplished. See Commonwealth v. Munson , 261 A.3d 530, 542 (Pa. Super. 2021)

. C ircumstantial 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. The se 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 conspirac y to commit PWID, for example, a co - conspir ator 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 parapher nalia 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 prov ed 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 i

d . at 39.J

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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 verdict s 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 re cord 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 ne rvous.” Id

. at 12. Winston told the trooper that his license was suspended, but McClary had asked him to drive. See id . at 9 ; s ee 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 a n 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 o f 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. Whe n 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 ca r, 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 t he trooper had not yet seen). After having McClary exit the car , Trooper Slavin searched the car and recovered , from around the front pass enger seat where McClary had been seated, a black plastic shopping ba g 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

. Se e 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. Se e id

. N ext 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 b eside co - defendant McClary ’s seat was not a controlled substance

. See Exh ibit 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 b eside McClary and theJ

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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 d riving 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

. T he zippered bag containing thirty grams of cocaine and the measuring cup were on t he seat directly behind the driver’s seat, where Winston had been seat ed . Winston, according to Trooper Slavin, exhibited nervousness on the trooper’s approach, and h e attempt ed to minimize the nature of the contraband located in the car by indicating tha t 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 existenceJ

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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 inconclu sive 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 paraphern alia , 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 Winst on 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 dir ectly 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 ne ither Winston n or 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