J-S28004-16

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANDRE SUTTON,

Appellant No. 3444 EDA 2014

Appeal from the Judgment of Sentence November 24, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003508-2014

BEFORE: BOWES, LAZARUS AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED May 11, 2016

Andre Sutton appeals from the judgment of sentence of eleven and 

one-half to twenty-three months incarceration and five years of probation. 

The court imposed the sentence after Appellant was convicted of drugrelated offenses following a non-jury trial. We affirm. 

At approximately 5:00 p.m. on January 14, 2014, Philadelphia Police 

Officer Reginald Graham used a confidential informant (CI-1) to conduct a 

purchase of narcotics from Appellant utilizing the controlled buy procedure. 

Officer Graham observed the following. The CI-1 knocked on the door of 

3831 North 8th Street, Philadelphia, Appellant answered the door, and, after 

they conversed briefly, Appellant allowed CI-1 to enter the residence. CI-1 

exited 3831 North 8th Street after “a minute or so,” and handed Officer 
J-S28004-16

- 2 -

Graham four blue-tinted Ziploc packets containing cocaine. N.T. Trial 

(Waiver), 9/16/14, at 11. 

On January 22, 2014, Officer Graham conducted another controlled 

buy using a different confidential informant (“CI-2”). CI-2 knocked on the 

door of 3831 North 8th Street, Appellant “came to the door and had a brief 

conversation with [CI-2] and then they both went inside that location.” Id. 

at 12. After about two minutes, Appellant left 3831 North 8th Street and 

began to walk down the street. 

Philadelphia Police Officer Carlos Buitrago, who was operating as back 

up for Officer Graham, followed Appellant on foot, and watched the 

following. Appellant walked two and one-half blocks to a location around the 

corner, 3909 Percy Street, where Chevel Harris was standing on the porch. 

“As soon as [Appellant and Harris] made eye contact, Mr. Harris came down 

from the steps and met [Appellant] on the sidewalk in front of 3909 and 

gave [Appellant] small objects.” Id. at 46-47. Officer Buitrago saw 

Appellant place the objects in his pocket and head back toward North 8th

Street, and the officer then radioed Officer Graham. 

Officer Graham soon observed Appellant return to and enter 3831 

North 8th Street and CI-2 leave shortly thereafter. CI-2 handed Officer 

Graham three clear baggies containing cocaine. Officer Buitrago remained 

at 3909 Percy Street, and watched Harris exchange items for cash with two 

females. 
J-S28004-16

- 3 -

On the afternoon of January 23, 2014, police executed search 

warrants at 3831 North 8th Street and 3909 Percy Street. Appellant was 

alone at 3831 North 8th Street, where police recovered Endocet, Percocet, 

and Xanax pills as well as numerous used and unused Ziploc packets that 

were tinted blue, black, or red. Neither cash nor cocaine was found at 3831 

North 8th Street. At 3909 Percy Street, Harris was arrested on the front 

steps. Inside, police found fourteen bags of marijuana and twenty-nine 

packets of cocaine in clear bags that had purple markings. 

Based upon this proof, Appellant was convicted of possession of a 

controlled substance with intent to deliver (“PWID”), conspiracy to commit 

PWID, possession of a controlled substance, and possession of drug 

paraphernalia. The matter proceeded to sentencing on November 24, 2014. 

Appellant was given two concurrent terms of eleven and one-half to twentythree months imprisonment on the PWID and conspiracy offenses as well as 

five years probation. No sentence was imposed on the other two crimes. 

Appellant had prior PWID convictions, and the sentence in question 

was below the mitigated range of the applicable guidelines, which 

recommended twenty-one to twenty-seven months in jail plus or minus six 

months. The court ordered Appellant, who already had served over nine 

months in jail, to be evaluated by the Philadelphia forensic intensive 

recovery project for both mental health and substance abuse issues and to 
J-S28004-16

- 4 -

be immediately paroled into the program recommended following that 

evaluation. 

This appeal followed imposition of the judgment of sentence, and 

Appellant complied with the court’s directive to file a Pa.R.A.P. 1925(b) 

statement, wherein this issue presented on appeal was preserved: “Did the 

trial court err when it convicted appellant of criminal conspiracy because the 

evidence was insufficient to establish any agreement to sell a controlled 

substance?” Appellant’s brief at 3. 

Initially, we note: “In performing a sufficiency review, we . . . . view 

the evidence in a light most favorable to the Commonwealth as the verdict 

winner, drawing all reasonable inferences from the evidence in favor of the 

Commonwealth.” Commonwealth v. Coleman, 130 A.3d 38, 41 (Pa.Super. 

2015) (citation omitted). The Commonwealth’s proof “need not preclude 

every possibility of innocence and the fact-finder is free to believe all, part, 

or none of the evidence presented.” Id. (citation and quotation marks 

omitted). Moreover, “the Commonwealth can prove its case by 

circumstantial evidence” so that only where “the evidence is so weak and 

inconclusive that, as a matter of law, no probability of fact can be drawn 

from the combined circumstances” will a defendant be accorded relief. Id. 

(citation and quotation marks omitted). We are not permitted to “re-weigh 

the evidence and substitute our judgment for that of the fact-finder.” Id. 

(citation and quotation marks omitted). 
J-S28004-16

- 5 -

Appellant singularly claims that there was insufficient evidence to 

establish the existence of an agreement between Appellant and Harris to sell 

drugs. To convict a defendant of conspiracy, the Commonwealth must 

prove: “1) an intent to commit or aid in an unlawful act, (2) an agreement 

with a co-conspirator and (3) an overt act in furtherance of the conspiracy.” 

Commonwealth v. Thoeun Tha, 64 A.3d 704, 710 (Pa.Super. 2013). 

Proof of an explicit agreement to commit a crime, which is the element of 

the crime that Appellant challenges, is rarely directly available. The law thus 

provides that “such an act may be proved inferentially by circumstantial 

evidence, i.e., the relations, conduct or circumstances of the parties or overt 

acts on the part of the co-conspirators.” Id. The factors pertinent to 

establishing the existence of a conspiracy include, but are not limited to, 

“the relationship between the parties, the knowledge of and participation in 

the crime, and the circumstances and conduct of the parties surrounding the 

criminal episode.” Id. 

Herein, the evidence reveals that Harris and Appellant knew each 

other since, as soon as Harris saw Appellant, Harris came down from the 

porch and, without even speaking with Appellant, gave Appellant items. The 

circumstantial evidence infers that those items were the packages of cocaine 

that Appellant sold to CI-2. Specifically, CI-2 entered 3831 North 8th Street, 

Appellant left two minutes later and traveled to Harris, Harris handed 

Appellant items, Appellant promptly returned to 3831 North 8th Street, and 
J-S28004-16

- 6 -

CI-2 soon exited that building with packets of cocaine. Thus, both Harris 

and Appellant actively participated in the PWID. Harris engaged in two 

apparent drug transactions after giving Appellant the cocaine. When the 

search warrants were executed, Appellant had no cocaine or money at 3831 

North 8th Street, even though he sold cocaine therein on two prior occasions 

to two different CIs and had many used and new Ziploc baggies of various 

colors in his possession. On the other hand, Harris had numerous packets 

of cocaine at 3909 Percy Street. The conduct of Harris and Appellant, as well 

as the location of the cocaine discovered when the warrants were executed, 

support the factfinder’s conclusion that Harris and Appellant were engaged in 

a drug trafficking enterprise together and that Harris supplied Appellant with 

the cocaine that Appellant was selling. 

Appellant suggests that Commonwealth v. Derr, 462 A.2d 208 (Pa. 

1983), mandates reversal of his conspiracy conviction. In that case, the 

defendant agreed to sell hashish to an undercover narcotics agent for 

$1,100. The undercover officer and the defendant drove to the residence of 

Eugene Szoka. After they arrived, the defendant took the money from the 

agent, went inside, purchased hashish from Szoka, and, upon returning to 

the car, gave the hashish to the undercover officer. 

Our Supreme Court reversed the defendant’s conspiracy conviction on 

the basis that there was no proof that Szoka was aware of the agreement 

between the defendant and the undercover agent for the purchase of the 
J-S28004-16

- 7 -

hashish. It viewed the selling of the hashish by the defendant to the 

undercover agent as an independent transaction from the defendant’s act of 

buying the hashish from Szoka. Under the outlined facts, our Supreme 

Court refused to impute any knowledge to Szoka that the hashish in 

question would be sold pursuant to the separate arrangement between the 

defendant and the undercover agent. It thus found no agreement between 

the defendant and Szoka to sell the drug to another person. 

The facts in the present case are clearly distinguishable from those 

analyzed by the Derr Court. CI-2 asked to purchase cocaine from Appellant 

while they were located at 3831 North 9th Street. Appellant immediately left 

and walked two and one-half blocks away to Harris. Harris and Appellant did 

not even speak to one another. Rather, once Harris saw Appellant, Harris 

immediately exited his porch and gave Appellant small items. Significantly, 

Appellant did not buy the drugs from Harris in that Appellant did not give 

cash to him. Officer Buitrago reported that Harris merely handed the objects 

to Appellant, who put the items in his pocket and promptly returned to North 

8

th Street to sell them to CI-2. Thereafter, Harris engaged in what appeared 

to be two drug sales of his own. On the same day that Harris was found in 

possession of numerous packets of cocaine, Appellant had none in his 

possession despite the fact that he was engaged in selling cocaine from 3831 

North 8th Street. The proof adduced herein supports the factfinder’s 
J-S28004-16

- 8 -

conclusion that the evidence was sufficient to prove beyond a reasonable 

doubt that Harris and Appellant agreed to engage in cocaine sales together. 

The facts in Commonwealth v. Bostick, 958 A.2d 543 (Pa.Super. 

2008), are analogous to those in the present case. Therein, police observed 

the defendant exit 3018 North 8th Street, Philadelphia, and approach a man, 

whom police were never able to identify. The defendant immediately 

handed objects to the unknown male, who had just engaged in a drug 

transaction with a buyer found in possession of packets of heroin/fentanyl 

stamped “High class the best.” Id. at 561. Police then watched the 

defendant, while standing next to this man, sell drugs twice. Those drugs 

were similarly-stamped packets of heroin/fentanyl. Before and after each 

transaction, the defendant would enter 3018 North 8th Street. Police found 

drugs and cash in 3018 North 8th Street, which was occupied by several 

individuals. We concluded that this proof was sufficient to establish the 

existence of a conspiracy. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/11/2016
J-S28004-16

- 9 -