J-S26021-22 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSEPH ROBERT MARKLE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1030 MDA 2021

Appeal from the Judgment of Sentence Entered October 4, 2018

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

No(s): CP-08-CR-0000643-2017

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY McCAFFERY, J.: FILED: MAY 4, 2023

Joseph Robert Markle (Appellant) appeals nunc pro tunc from the 

judgment of sentence entered in the Bradford County Court of Common Pleas 

after his jury conviction of conspiracy to commit possession with intent to 

distribute (PWID) methamphetamine.1 On appeal, he challenges the 

admission of his recorded prison phone calls and the sufficiency of the 

evidence supporting his conviction. We affirm. 

On November 10, 2016, Appellant and Carol Westefer, his girlfriend, 

sold methamphetamine to Sayre Borough confidential informant (CI) Harry 

Smith during a controlled buy. Appellant and Westefer were arrested for this 

transaction approximately 10 months later, and charged with conspiracy to 

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 903(a)(1); 35 P.S. § 780-113(a)(30).
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commit PWID.2 Appellant elected to proceed pro se during his preliminary 

hearing and throughout pre-trial proceedings. 

Meanwhile, after the November 10, 2016, drug sale, but before he was 

charged criminally for that offense, Appellant was arrested for other unrelated 

drug offenses. In March 2017, while incarcerated for these unrelated offenses, 

Appellant made phone calls to his mother in which he stated that he sold 

narcotics. See Commonwealth’s 404(b) Notice and Motion to Admit Evidence, 

5/30/18, at 1-2 (unpaginated). On May 30, 2018, the Commonwealth filed a 

Pa.R.E. 404(b) notice seeking to admit, inter alia, these phone calls, arguing 

the evidence demonstrated “identity, intent to deliver controlled substances, 

consciousness of guilt, and to prove [Appellant’s] participation in the 

[November 10th] sale . . . was not that of an unwilling bystander.” Id. at 1. 

The trial court scheduled a hearing on the admission of the Rule 404(b) 

evidence for July 17, 2018. See Order, 6/4/18. The court also granted 

Appellant’s request for the appointment of standby counsel.3 Id. 

During the July 17th hearing, Appellant was assisted by standby counsel 

Carrie Donald, Esquire, but continued to proceed pro se. He informed the trial 

court that he would be asserting an innocent bystander defense at trial. N.T., 

2 Westefer was charged as a co-defendant but pleaded guilty to conspiracy to 

commit PWID. Trial Ct. Op., 2/8/19, at 2. She later sought to withdraw her 

guilty plea, but the trial court denied her motion. Id. As we discuss infra, 

she testified as a Commonwealth witness at Appellant’s trial, but contradicted 

the admissions in her guilty plea. 

3

It is not apparent from the record when Appellant made this request.
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7/17/18, at 10. Based on this information, the trial court granted the 

Commonwealth’s motion to admit the Rule 404(b) evidence on the following 

conditions: (1) “the Commonwealth [must] first introduce evidence relevant 

to the [November 10, 2016,] drug transaction[;]” and (2) Appellant must then 

be afforded the opportunity to supplement the statements for “completeness 

and context.” Order, 7/23/18; see N.T., 7/17/18, at 7, 10-11. The court also 

stated: (1) it would provide a limiting instruction to the jury explaining the 

evidence was not admitted to prove Appellant’s character, but instead only to 

prove opportunity, intent, knowledge, lack of coincidence, or consciousness of 

guilt; and (2) based on Appellant’s purported innocent bystander defense, the 

probative value of the evidence outweighed any potential prejudice. Order, 

7/23/18. At the end of the hearing, Appellant informed the court that that 

standby counsel, Attorney Donald, would be taking over at trial. N.T., 

7/17/18, at 25. 

On August 8, 2018, this matter proceeded to a two-day jury trial, where 

the Commonwealth presented the testimony of CI Smith. See N.T., 8/8/18, 

at 115-16. Smith stated that Sayre Borough Police Officer Bruce Hoffman 

used his cell phone contact list to develop a list of potential drug dealers in 

the area. See id. at 116-17. Based on this information, Officer Hoffman 

coordinated Smith’s controlled purchase of methamphetamine from Carol 

Westefer. See id. at 118-19. On November 10, 2016, Smith went to 

Westefer’s home “between 2 and 6” in the afternoon to purchase 

methamphetamine. Id. at 118-20, 126. Westefer told Smith she did not have 
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any narcotics at that time, but to come back later that evening because “Joe[4]

would be coming down” and she would “get it from him[.]” Id. at 120-21. 

Smith stated that he knew Appellant before November 10th because he had 

purchased methamphetamine from him between 10 to 15 times. N.T., 8/9/18, 

at 22. It does not appear these previous sales took place in Westefer’s home. 

Id. Smith then testified that he returned to Westefer’s home later that night 

after she told him “[Appellant] is here[,] you better hurry up cause . . . he’s 

leaving.” N.T., 8/8/18, at 121. 

Before going to Westefer’s home, Smith met with Officer Hoffman to 

retrieve pre-recorded buy money. N.T., 8/8/18, at 123. When Smith arrived 

at Westefer’s home, Appellant and Westefer were in the kitchen and the 

narcotics were on the kitchen table. Id. at 123-24, 127. Smith noted that 

Appellant was “pretty nervous” during the encounter. Id. at 123. When Smith 

“went to hand [Appellant] the money[,]” Appellant “just shook his head[.]” 

Id. at 124, 127. Smith “believe[d]” that Appellant then pointed to Westerfer, 

so he handed her the money, which she proceeded to hand to Appellant. Id.

at 124, 127. Appellant then stated, “I got to get the fuck out of here this 

place makes me uncomfortable as fuck. I don’t like it down here” and left. 

Id. at 124, 128. 

4 The Commonwealth did not ask Smith or any other witnesses to identify 

Appellant at trial. Appellant, however, does not raise any claim related to 

mistaken identity.
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On cross-examination, Attorney Donald asked Smith if Appellant sold 

Smith drugs on November 10, 2016. N.T., 8/8/18, at 132. The below 

interaction followed:

[Smith]: Him personally[,] I mean he never gave it to me, . . . it 

was on the table, . . . I just assumed it was his. . . .

[Attorney Donald]: You had no conversation with him though, 

correct?

[Smith]: No, no, not prior to this[,] no.

[Attorney Donald]: All your conversations . . . about that purchase 

of meth were with [Westefer?]

[Smith]: Correct. 

[Attorney Donald]: And she took the money?

[Smith]: She took the money.

Id. at 132-33. Smith also stated that there was a third man in Westefer’s 

home that he did not know, but was not “100% sure” if that man was present 

during both interactions that day. Id. at 135. 

The Commonwealth then presented the testimony of Westefer. She 

acknowledged she entered a guilty plea to conspiracy on October 18, 2017. 

The facts provided as the basis for her guilty plea stated that on November 

10, 2016, she “entered into an agreement with [Appellant] to deliver . . . 

methamphetamine to another individual[,]” and that she “was dealing with” 

Appellant. N.T., 8/8/18, at 168-69. Westefer did not contest the factual basis 

of her plea at the time it was entered. Id. at 168-70. 

At Appellant’s trial, Westefer recanted her admission and testified she 

was in a relationship with Appellant on November 10, 2016, and on that day, 
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he was in her home to “collect some money that [she] owed him for helping 

with the rent[;]” however, she claimed Appellant did not provide her with the 

methamphetamine sold to Smith. N.T., 8/8/18, at 165, 188. 

The Commonwealth then played for the jury the recorded prison phone 

calls, in which Appellant spoke about past drug dealing activity. N.T., 8/8/18, 

at 222, 225-28. After this, the Commonwealth read into the record, the 

testimony of Bradford County Probation Officer Molly Murphy.5 Id. at 231. 

Officer Murphy had interviewed Appellant in July 2017, in order to prepare a 

presentence investigation (PSI) report for Appellant on a separate matter. Id.

at 234. During the interview, Appellant told Officer Murphy he “sold drugs for 

income but not for use.” Id. at 236. The Commonwealth argued Officer 

Murphy’s testimony was admissible for the same purpose as the recorded 

phone calls. See N.T., 8/7/18, at 2-3. Attorney Donald objected at the 

hearing, but the trial court stated it would admit the testimony under the same 

circumstances as the recorded phone calls. See id. at 2-3, 5. 

At the conclusion of trial, the jury found Appellant guilty of conspiracy 

to commit PWID. On October 4, 2018, the trial court sentenced Appellant to 

27 to 72 months’ incarceration. Appellant filed a timely post-sentence motion, 

5 Officer Murphy was unavailable on the date of trial. The trial court allowed 

the Commonwealth to preserve her testimony at a hearing the day before. 

N.T., 8/7/18, at 1. 
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which was denied on February 8, 2019.6 On March 8, 2019, Attorney Donald 

filed a timely notice of appeal, but later failed to file an appellate brief. This 

Court then dismissed Appellant’s appeal. See 430 MDA 2019, Order, 9/25/19. 

Subsequently, Appellant filed a timely Post Conviction Relief Act (PCRA)7

petition alleging Attorney Donald was ineffective for failing to file an appellate 

brief. See Appellant’s Pro Se Motion for Post Conviction Collateral Relief, 

5/10/21. The trial court appointed the Bradford County Public Defender’s 

office to represent Appellant and thereafter entered an order, by way of 

stipulation, wherein the parties agreed that Appellant’s appeal rights shall be 

reinstated, and he had 30 days from that order to file a notice of appeal nunc 

pro tunc. See Order, 5/17/21; Stipulation of Counsel as to PCRA, 7/15/21. 

On August 30, 2021, the Bradford County Public Defender’s office filed a 

motion to withdraw from representation, which the trial court granted after a 

Grazier8 hearing. The court then appointed Jason Beardsley, Esquire, to 

represent Appellant. With new counsel, Appellant filed a timely notice of 

appeal and concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b).

Appellant raises the following claims:

6 The trial court’s order is dated February 8, 2019, but was not sent to 

Appellant until February 14, 2019. See Criminal Docket No. CP-08-CR0000643-2017, at 19. 

7 42 Pa.C.S. §§ 9541-9546.

8 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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[1.] Did the [trial c]ourt commit reversible error by admitting 

impermissible character/propensity evidence/bad acts evidence —

over trial counsel’s objection — in the form of jailhouse recordings 

purportedly to show that . . . Appellant was familiar with the drug 

industry and that Appellant was not at a drug deal by mistake 

when in fact those recordings were admitted to show that . . . 

Appellant had acted in conformity with past drug dealing behavior 

and those instances that were spoken of in the recordings were 

not in any way related or shown to be similar to the drug deal that 

formed the basis of the conspiracy that . . . Appellant was 

convicted of, and when the prejudicial effect of that evidence so 

far outweighed any probative value that it should have been 

excluded and the recordings did not meet all of the requirements 

as a matter of law to be properly admitted as “bad acts” evidence?

[2.] Must . . . Appellant’s conviction for conspiracy to commit 

[PWID] be vacated because there was insufficient evidence as a 

matter of law to sustain the conviction?

Appellant’s Brief at 4. 

In his first claim, Appellant argues the trial court abused its discretion 

when it admitted phone calls he made to his mother while incarcerated on an 

unrelated matter. Appellant’s Brief at 10. By way of background, in a March 

9, 2017, recorded prison phone call, the following exchange occurred: 9

[Appellant’s] Mother: . . . at the jail, I can’t help ya.

[Appellant]: I know I’m at the jail Mom, you can’t sell the heroin.

[Appellant’s] Mother: Ya, well[.] 

[Appellant]: What?

[Appellant’s] Mother: You can’t do the things you do.

9 The Commonwealth presented additional phone call recordings, but they 

were inaudible or only partially audible. As such they were not accurately 

recorded in the transcripts. See N.T., 8/8/18, at 227-28. Appellant does not 

raise a challenge to the inaudible phone calls. See Appellant’s Brief at 7-8, 9 

n.2.
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[Appellant]: Well I was selling drugs mom[.] I wasn’t doing them, 

I’m sorry.

[Appellant’s] Mother: Okay. . . . Well that makes it better? No.

[Appellant]: No it doesn’t make it better[,] but don’t make it sound 

like I’m in jail because I’m on drugs.

N.T., 8/8/18, at 225. In a March 17, 2017, recorded prison phone call, 

Appellant stated the following:

[Appellant]: [D]on’t yell at me mom, Jesus this fucking shit is 

getting ridicul[ous], so what I fucked up, I sold drugs, I’m in 

fucking jail . . . for [three] months with nothing[.]

Id. at 227.

Before playing the above recordings, the trial court issued the following 

instruction to the jury:

. . . You’re [going] to be hearing evidence in the form of a 

statement made by [Appellant] while on the phone while he was 

incarcerated. The statements do not specifically relate to the 

conduct for which he is on trial here, but they do involve the sale 

of drugs and given that he was incarcerated at the time they tend 

to support the notion that he may have been separately charged 

for offenses. [T]his evidence is being offered for [the] limited 

purpose [that] it tends to show [Appellant] was an intentional 

participant in the alleged drug sale and was not present at the 

alleged drug sale by accident, by mistake or coincidence. This 

evidence must not be considered by you in any way other than for 

that limited purpose. You must not regard this evidence as 

showing [Appellant] is a person of bad character or criminal 

tendencies from which you might be inclined to infer guilt in this 

particular case. [T]here is an issue as to whether [Appellant] was 

present at this drug sale, by coincidence or if he was there as part 

of a conspiracy. [T]hat’s what they are being offered for, to tend 

to show that it was not just a coincidence. They are not being 

offered to show he has . . . bad character, or that he is a drug 

dealer, or that he has used drugs in the past. 

N.T., 8/8/18, at 223-24. 
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We review a challenge to the admissibility of evidence by the following 

standard:

Questions concerning the admissibility of evidence are within the 

sound discretion of the trial court, and its discretion will not be 

reversed absent a clear abuse of discretion. An abuse of discretion 

is not merely an error of judgment, but is rather the overriding or 

misapplication of the law, or the exercise of judgment that is 

manifestly unreasonable, or the result of bias, prejudice, ill-will or 

partiality, as shown by the evidence of record. Furthermore, if in 

reaching a conclusion the trial court over-rides [sic] or misapplies 

the law, discretion is then abused and it is the duty of the appellate 

court to correct the error. 

Commonwealth v. Thompson, 106 A.3d 742, 754 (Pa. Super. 2014) 

(quotation marks & citations omitted). 

Only relevant evidence is admissible at trial. Pa.R.E. 402. Evidence is 

relevant if it “has any tendency to make a fact more or less probable” and 

“the fact is of consequence in determining the action.” Pa.R.E. 401(a)-(b). 

We note, though, that the Pennsylvania Rules of Evidence generally prohibit 

the admission of evidence of other crimes or bad acts “to prove a person’s 

character in order to show that on a particular occasion the person acted in 

accordance with the character.” Pa.R.E. 404(b)(1). However, character 

evidence may be admitted for another purpose:

This evidence may be admissible [to prove] motive, opportunity, 

intent, preparation, plan, knowledge, identity, absence of 

mistake, or lack of accident. In a criminal case this evidence is 

admissible only if the probative value of the evidence outweighs 

its potential for unfair prejudice.

Pa.R.E. 404(b)(2).
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Returning to Appellant’s argument, he avers the above recordings were 

“only admitted to blacken” his character and demonstrate that “based upon 

his prior drug dealing activities[,]” he was guilty of the present offense. 

Appellant’s Brief at 10. He maintains that the Commonwealth needed to show 

a “logical connection or nexus” between the present matter and the subject of 

the phone calls to admit such evidence to prove intent or absence of mistake. 

Id. at 10-12. Appellant insists the evidence only consisted of general 

statements that he dealt drugs on other occasions and were inadmissible 

under the rules of evidence. Id. at 11. He contends that “no evidence 

presented at . . . trial . . . made absence of mistake relevant.” Id. at 12-13. 

Lastly, he argues that any probative value the evidence offered was “vastly 

outweighed by its potential for prejudice,” as the jury would assume that 

because “he was a drug dealer before[,] he must have been a drug dealer” 

during the incident at issue. Id. at 13. 

The trial court concluded the evidence was admissible to show that 

Appellant was not merely present during the drug transaction by mistake. 

Trial Ct. Op. at 5. Specifically, it opined that the evidence was admissible 

because Appellant was asserting to the court that he was not involved in the 

drug transaction, even if only through Commonwealth witness Westefer. Id.

at 5-6. Further, the court concluded the probative value of the evidence 

outweighed any potential for unfair prejudice, and the phone calls were not 

character evidence. Id. at 7-8. Instead, the trial court determined, and 

instructed the jury, that the calls went directly to whether Appellant was 
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present by accident or coincidence. Id. at 8-9. Lastly, the court relied on the 

fact that it required the Commonwealth to present evidence of the crime 

charged before it admitted the phone calls. Id. at 8. Upon our review, we 

conclude the trial court did not abuse its discretion when it admitted the prison 

phone calls. 

The Commonwealth may offer other bad acts evidence under Rule 

404(b)(2), which requires the Commonwealth to demonstrate that there was 

a “logical connection” between the proffered conduct and the crime at issue. 

See Commonwealth v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017) (holding 

that evidence of other crimes is admissible where its probative value 

outweighs its potential for prejudice and “show a logical connection between 

them and the crime currently charged.”). Here, one can arguably draw a line 

between this evidence and the present crime. The trial court concluded that 

the evidence was not presented to establish Appellant’s propensity to 

participate in such similar crimes, but instead was offered to merely show 

“motive, opportunity, intent, preparation, plan, knowledge, identity, absence 

of mistake, or lack of accident[,]” as permitted by Rule 404(b). See Pa.R.E. 

404(b), Trial Ct. Op. at 8. We agree. 

In making this determination, the trial court relied on this Court’s 

decision in Commonwealth v. Kinard, 95 A.3d 279 (Pa. Super. 2014) (en 

banc). See Trial Ct. Op. at 10-11 n.2. In Kinard, the defendant’s coconspirator, his cousin, sold drugs in three controlled purchases to a CI in her 

home. Kinard, 95 A.3d at 281. After the transactions, the police executed a 
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search warrant at the co-conspirator’s home, where the defendant was the 

only person present at the time. Id. Upon searching the defendant’s person, 

police found evidence indicative of his involvement in the sales. Id. at 282. 

At trial, the defendant’s co-conspirator testified that the defendant provided 

her narcotics to sell and that they often spoke in code to elude the police, 

using such terms as “cat food,” “cream of wheat,” “to get it ready,” and 

“chicken” when discussing drug transactions. Id.

The Commonwealth sought to admit evidence that while the defendant 

was incarcerated and awaiting trial on this matter, he made phone calls in 

which he used this same coded language to discuss the sale of narcotics. 

Kinard, 95 A.3d at 282. The trial court admitted the evidence to show 

absence of mistake and a common scheme. Id. at 285. At trial, the 

Commonwealth presented an expert witness to further discuss the coded 

language the defendant used in these phone calls. Id. at 282-83. This Court 

noted that though the defendant did not present a defense, it “was clear” that 

he was asserting “he was merely present” during the search of the coconspirator’s home and had no connection to the sale of drugs. Id. at 283. 

The jury convicted the defendant of PWID and conspiracy. 

On appeal, the defendant argued the phone calls constituted 

inadmissible character evidence. Kinard, 95 A.3d at 284. This Court affirmed 

his judgment of sentence, concluding the phone calls: (1) demonstrated the 

defendant’s “knowledge and awareness of drug trafficking[;]” (2) showed he 

was not in his co-conspirator’s home innocently, but was conducting business; 
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(3) revealed a common plan, scheme, and design; (4) “demonstrated that 

[the defendant] was engaged in ongoing drug transactions even after he was 

arrested” that were “were similar, if not identical, to the drug transactions for 

which he was charged[;]” and (5) because the phone calls happened after his 

arrest, they established “the chain of events and course of criminal conduct[.]” 

Id. at 285. 

We conclude the above case is similar enough to the present matter that 

we may conclude the trial court did not abuse its discretion. In Kinard, the 

Commonwealth admitted evidence that showed the defendant was engaging 

in “similar, if not identical” drug transactions while incarcerated even after his 

arrest. See Kinard, 95 A.3d at 285. The evidence demonstrated the 

defendant was using the same coded language during these phones calls that 

his co-conspirator confirmed he used while dealing drugs. It was evident that 

while the defendant was awaiting trial on those charges at issue, he was also 

continuing to orchestrate further transactions in the same way he did before 

his arrest. 

Here, Appellant’s phone calls with his mother demonstrate a similar 

connection. While incarcerated on unrelated drug charges, Appellant admitted 

that he previously sold “heroin.” N.T., 8/8/18, at 225. The phone calls 

established Appellant’s general “knowledge and awareness of drug 

trafficking[,]” and that he was not an innocent bystander who just happened 

to be at Westefer’s home when these drug transactions took place — similar 

to the conversations of the defendant in Kinard. Further, the trial court 
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specified on more than one occasion that these statements were not to be 

offered to show Appellant’s propensity to commit similar crimes, but again to 

merely show whether Appellant was present by accident or coincidence. See

N.T. 7/17/18, at 10-11, 18-20; Order, 7/23/18; N.T. 8/18/18, at 223-24. The 

trial court then gave the jury a limiting instruction. “Juries are presumed to 

follow instructions given by the court.” Commonwealth v. Hairston249 

A.3d 1046, 1068 (Pa. 2021) (citation omitted). For these reasons, we 

determine Kinard is similar to the present facts, and therefore applicable to 

our determination. We conclude no relief is due.

Nevertheless, in the event the phone calls did amount to inadmissible 

evidence, we would still conclude no relief is due because the trial court’s 

admission constituted harmless error. Harmless error may be found where 

“the erroneously admitted evidence was merely cumulative of other untainted 

evidence which was substantially similar to the erroneously admitted 

evidence.” Commonwealth v. Brown, 185 A.3d 316, 330 (Pa. 2018). While 

we acknowledge that to reach a harmless error analysis, normally the 

Commonwealth must raise the argument, this Court may affirm a valid 

judgment on any basis in the record. See Commonwealth v. Moore, 937 

A.2d 1062, 1073 (Pa. 2007) (holding that even though the Commonwealth 

did not raise the argument, the admission of hearsay testimony was harmless 

error because the appellate courts may affirm “a valid judgment based on any 

reason appearing as of record, regardless of whether it is raised by the 
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appellee”) (citation omitted); see also Commonwealth v. Hamlett, 234 

A.3d 486, 492 (Pa. 2020). 

Here the Commonwealth presented the testimony of Probation Officer 

Murphy, who stated Appellant told her that he “sold drugs for income but not 

for use.” N.T., 8/8/18, at 236. This evidence was admitted at trial and 

Appellant does not challenge it on appeal. Officer Murphy’s testimony 

demonstrated that Appellant had a general history of drug dealing, similar to 

Appellant’s statements in the recorded phone calls. Because the contents of 

the phone calls were merely cumulative of Officer Murphy’s testimony, we 

would conclude the court’s improper admission of the prison phone calls 

amounted to harmless error. See Brown, 185 A.3d at 330. We note that 

Officer Murphy’s testimony was offered under the same argument and 

circumstances as the recorded phone calls. Further, Appellant’s statements 

to Officer Murphy also occurred after he was incarcerated for unrelated drug 

offenses happening before he was charged for the present offense. Akin to 

the recorded phone calls, this evidence is similarly problematic. However, 

Appellant did not raise a challenge to this testimony on appeal, and therefore, 

the jury heard testimony relaying that Appellant previously was involved in 

drug sales. 

In his second claim on appeal, Appellant challenges the sufficiency of 

the evidence. Appellant’s Brief at 13. Our standard when reviewing a 

challenge to the sufficiency is well-settled:
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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 fact-finder. In 

addition, we note that the facts and circumstances established by 

the Commonwealth need not preclude every possibility of 

innocence. Any doubts regarding a defendant’s guilt may be 

resolved by the fact-finder unless the evidence is so weak and 

inconclusive that as a matter of law no probability of fact may be 

drawn from the combined circumstances. The Commonwealth 

may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire record 

must be evaluated and all evidence actually received must be 

considered. Finally, the 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. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014) (citation 

omitted).

Here, Appellant avers the Commonwealth failed to prove that he and 

Westefer had a shared criminal intent or made an agreement to deliver drugs 

to Smith during the November 10, 2016, transaction. Appellant’s Brief at 14-

15. Appellant maintains that Smith did not testify that he saw Appellant 

provide drugs to Westefer. Id. Instead, he insists the evidence 

demonstrated: (1) Smith stated only that Westefer told him Appellant would 

provide the drugs; (2) Appellant did not handle the drugs during the 

transaction; and (3) at trial, Westefer testified “she did not receive the drugs 

. . . from Appellant.” Id. at 15. 

Criminal conspiracy is defined, in relevant part, as follows:
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(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 . . . .

18 Pa.C.S. § 903(a)(1). This Court has summarized the following factors to 

be analyzed in determining the sufficiency of the evidence supporting the 

existence of a conspiracy:

Among the circumstances which are relevant, but not sufficient by 

themselves, to prove a corrupt confederation are: (1) an 

association between alleged conspirators; (2) knowledge of the 

commission of the crime; (3) presence at the scene of the crime; 

and (4) in some situations, participation in the object of the 

conspiracy. The presence of such circumstances may furnish a 

web of evidence linking an accused to an alleged conspiracy 

beyond a reasonable doubt when viewed in conjunction with each 

other and in the context in which they occurred.

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002) 

(citation omitted). Additionally,

[m]ere association with the perpetrators, mere presence at the 

scene, or mere knowledge of the crime is insufficient to establish 

that a defendant was part of a conspiratorial agreement to commit 

the crime. There needs to be some additional proof that the 

defendant intended to commit the crime along with his coconspirator. Direct evidence of the defendant’s criminal intent or 

the conspiratorial agreement, however, is rarely available. 

Consequently, the defendant’s intent as well as the 

agreement is almost always proven through circumstantial 

evidence, such as by the relations, conduct or 

circumstances of the parties or overt acts on the part of the 

co-conspirators. Once the trier of fact finds that there was an 

agreement and the defendant intentionally entered into the 

agreement, that defendant may be liable for the overt acts 

committed in furtherance of the conspiracy regardless of which 

co-conspirator committed the act.
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Commonwealth v. Dunkins, 229 A.3d 622, 633 (Pa. Super. 2020) (citation 

omitted & emphasis added). 

In finding there was sufficient evidence that Appellant conspired with 

Westefer to sell methamphetamine, the trial court, relied on the 

Commonwealth’s argument, and determined the Commonwealth sustained its 

burden through the testimony of both Smith and Westefer. Trial Ct. Op. at 4. 

We agree. 

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

as verdict winner, we find it was reasonable for the jury to conclude that the 

“relations, conduct[,] circumstances[,] or overt acts” between Appellant and 

Westefer demonstrated that Appellant conspired with Westefer to sell drugs 

to Smith. See Dunkins, 229 A.3d at 633; Lambert, 795 A.2d at 1016; see 

also Antidormi, 84 A.3d at 756. The Commonwealth presented the 

testimony of Smith, which established that Westefer told him she would 

retrieve drugs from Appellant and directed Smith to return to her home later 

that evening to complete a drug transaction. See N.T., 8/8/18, at 118-20. 

Further, Smith’s testimony established that Westefer told him to “hurry up” 

and arrive before Appellant left so that Smith could retrieve the narcotics, and 

that Westefer handed Appellant the money after the completed transaction. 

See id. at 121, 124, 127. The Commonwealth also presented evidence that 

at Westefer’s guilty plea hearing for the same offense, she agreed that she 

and Appellant entered an agreement to deliver drugs on November 10th and 

that she “was dealing [drugs] with” Appellant. N.T., 8/8/19, at 168-69. 
J-S26021-22

- 20 -

Though Westefer later recanted these admissions, the jury was free to credit 

the admissions she made at her guilty plea hearing over those she made at 

trial. See Antodormi, 84 A.3d at 756. No relief is due.

We agree the trial court did not abuse its discretion when it admitted 

the recorded phone calls, and moreover, this evidence was cumulative. 

Further, Appellant cannot establish the evidence was insufficient to support 

his conviction, and as such, he is not entitled to relief. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/04/2023