J

- S34030

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RYAN D. BAUMGARDNER

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 269 WDA 2022

Appeal from the PCRA Order Entered January 24, 2022

In the Court of Common Pleas of Cambria County

Criminal Division at CP

- 11

- CR

- 0000808

- 2016

BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J. *

MEMORANDUM BY MURRAY, J.: FILED: December 9, 2022

Ryan D. Baumgardner (Appellant) appeals from the order denying his

first petition filed pursuant to the Post Conviction Relief Act (PCRA). 1 We

affirm.

The PCRA court summarized the case history as follows:

[Appellant] was one of several individuals investigated by the

Pennsylvania Office of the Attorney General (OAG) between June

2015 and March 2016 for suspected involvement in a large hero in

trafficking network in the Johnstown and Pittsburgh areas.

Through the use of wiretaps and other forms of surveillance, OAG

determined that [Appellant] purchased significant amounts of

heroin from co

- defendant Curtis Harper [(Harper)] for re

- sale to

ot her individuals.

[Appellant] was charged with several crimes, including two (2)

counts of Manufacture, Delivery, or Possession with Intent to

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541

- 9546.J

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- 2

-

Manufacture or Deliver, 35 P.S. § 780

- 113(a)(30), one count of

Criminal Conspiracy, 18 Pa.C.S. § 903, one count o f Dealing in

Unlawful Proceeds, 18 Pa.C.S. § 5111(a)(1), one count of Corrupt

Organizations

— Employee, 18 Pa.C.S. § 911(b)(3), one count of

Conspiracy to Violate [ Corrupt Organizations, section 911(b)(1),

(2), (3) and (4),] and one count of Criminal Use o f a

Communication Facility, 18 Pa.C.S. § 7512(a). ... A jury trial was

held on September 18

- 22

, 2017 [,] before [the trial court]. Based

on the evidence presented at trial, the jury found the

Commonwealth met its burden beyond a reasonable doubt and

found [ Appellant] guilty of [all charges except dealing in unlawful

proceeds, 18 Pa.C.S. A. § 5111(a)(1) ]. [Appellant] was sentenced

on November 16, 2017, to a combined sentence of incarceration

in a state prison for a period of nine to eighteen years.

On May 31, 2019, [Appellant] filed a [PCRA petition] ....

Upon review of the petition, [the PCRA] court granted

[Appellant ’ s] request to proceed in forma pauperis and Attorney

Terry Despoy, Esq. [,] fi led an amended PCRA with [the court] on

April 23, 2021. [Th e PCRA court] held a hearing on [Appellant ’ s]

amended PCRA on September 21, 2021, where [Appellant] was

represented by Attorney Joseph Addink, Esq.

PCRA Court Opinion, 1/24/22, at 1

- 2 (some capitalization omitted).

The PCRA court denied Appellant’s petit ion o n January 24, 2022, and

Appellant filed thi s timely appeal. Appellant and the PCRA court have complied

with Pa.R.A.P. 1925.

Appellant presents the following issues for review:

A. [Did] trial counsel ’ s representation of [ Krista Mader (Mader)

and Appellant ] in the same trial create a conflict of interest?

B. Was it reasonable for trial counsel to believe he could represent

both [Appellant and Mader] in the same trial?

C. Did trial counsel ’ s failure to explain [ Recidivism Risk Reduction

Incentive (RRRI) ] meet the standard for ineffective assistance

of counsel?J

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- 3

-

D. Was trial co unsel ’ s strategy to allow overwhelming and

cumulative evidence of criminal activity un reasonable and

amount to ineffective assistance of counsel?

E. Was trial counsel ’ s i neffective assistance of counsel in the post

sentence motions and the appeal prejudicial to the Appellant?

F. Did trial counsel ’ s failure to raise insufficiency of the evidence

with respect to the possession with intent to deliver count

prejudicial to the Ap pellant?

G. Did trial counsel ’ s failure to raise insufficiency of the evidence

with respect to the conspiracy counts prejudicial to the

Appellant?

H. Was trial counsel ’ s failure to raise insufficiency of the evidence

with respect to the corrupt organizations [

- ] employee count

prejudicial to the Appellant?

I. Did trial counsel ’ s failure to raise the issue of improper denial

of the motion to sever constitute ineffective assistance of

counsel?

Appellant ’ s Brief at 4

- 5.

In reviewing Appellant’s issues,

we must determine whether the findings of the PCRA court are

supported by the record and whether the court ’ s legal conclusions

are free from error. The findings of the PCRA court and the

evidence of record are viewed in a light most favorable to the

prevailing party. The PCRA court ’ s credibility determinations,

when supported by the record, are binding; howev er, this court

applies a de novo standard of review to the PCRA court ’ s legal

conclusions. We must keep in mind that the petitioner has the

burden of persuading this Court that the PCRA court erred and

that such error requires relief. Finally, this Court may affirm a

valid judgment or order for any reason appearing of record.

Commonwealth v. Montalvo , 205 A.3d 274, 286 (Pa. 2019) (citations

omitted).J

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-

In each of his issues, App ellant claims that his trial counsel was

ineffective

. It is well

- settled that c ounsel is presumed to be effective and “ the

burden of demonstrating ineffectiveness rests on [the] appellant. ”

Commonwealth v. Rivera , 10 A.3d 1276, 1279 (Pa. Super. 2010).

To be entitled to relief on an ineffectiveness claim, [ the petitioner]

must prove the underlying claim is of arguable merit, counsel ’ s

performance lacked a reasonable basis, and counsel ’ s

ineffectiveness caused him prejudice

. Prejudice in the context of

ineffective assistance of counsel means demonstrating th ere is a

reasonable probability that, but for counsel ’ s error, the outcome

of the proceeding would have been different.

... Failure to

establish any prong of the test will defeat an ineffectiveness claim.

Commonwealth v. Solano , 129 A.3d 1156, 1162

- 63 (Pa. 2015) (citations

omitted).

Appellant first challenges the PCRA court ’ s finding that there was no

conflict of interest with trial counsel represent ing Appellant and Mader

.

Appellant ’ s Brief at 12. Appellant argues

, “ Attorney [Jerome] Kaharick ’ s

decision t o move forward in his dual representation of both [] Mader and []

Appellant created an actual conflict of interest. ” Id. at 13. Appellant concedes

that he agreed to Attorney Kaharick ’ s dual representation

, yet asserts “ he

ne ed only show that there was a possibility of harm for a dual representation

to rise to an actual conflict. ” Id. Appellant directs our attention to four “ areas

where there was a strong possibility of harm ” caused by the dual

representation:

(a) I t allowed for the jury to hear irrelevant evidence related to

transactions solely involving Mader, which “ likely created an

impression of guilt by association[

. ] ” S ee id. at 14

.J

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-

(b) I f Attorney Kaharick had only represented Appellant, he could

have conc eded the existence of Harper ’ s criminal enterprise,

thereby limiting the evidence to that which implicated only

Appellant and not forcing the jury to hear hours of unrelated

testimony not involving Appellant. See id. at 15

- 16.

(c) By representing both de fendants, Attorney Kaharick was

prevented from claiming Appellant purchased the heroin for

personal consumption. See id. at 16.

(d) Agent Thomas Moore 2 implicated Appellant by testifying

Appellant ’ s arrest was the result of Mader ’ s grand jury testimony.

This gave the impression that Mader had identified Appellant in

the grand jury proceedings. Because Attorney Kaharick

represented Mader, he could not cross

- examine her about her

knowledge of Harper ’ s network. See id. at 18

- 19.

Appellant claim s Attorney Kaharick ’ s conflict deprived him of his right to

effective representation. Id. at 19.

In his related second issue, Appellant challenges the PCRA court ’ s

finding that Attorney Kaharick had a reasonable basis for believing he could

represent both defendants. See id. at 20

- 21. Appellant states :

The vast majority of the testimony was from Agent [Thomas]

Moore [,] who went through 296 pieces of evidence, most of which

were recordings of te lephone conversations obtained through

wiretaps. Only seventeen of these wiretaps related to the

Appellant....

Id. at 24. Appellant argues that Attorney Kaharick rendered ineffective

assistance by not objecting to the relevance of 94.3% of the evidence th at did

_________________ __________ ______ ____ _______

2 Agent Moore testified he was employed for nine years with the OAG Bureau

of Narcotics Investigation and Drug Control around State College,

Pennsylvania. N.T., 9/ 18/17, at 38.J

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-

not pertain to Appellant. Id. Appellant analogiz es his case to the scenario

presented in Commonwealth v. Belgrave , 285 A.2d 448 (Pa. 1971). In

Belgrave , the Pennsylvania Supreme Court found the trial court abuse d its

discretion by consolidatin g the cases of several defendants who had rioted at

a high school football game after fans failed to stand for the national anthem.

Appellant ’ s Brief at 25. Appellant emphasizes the Court ’ s rationale that

the evidence of one d efendant could have easily been

misinterpreted by a jury to be applied to another defendant,

because the complexity of the evidence and the extreme variation

in the amount and type of evidence against the various defendants

required marshalling the evidenc e against and for each defendant

separately.

Id. at 26 (quoting Belgrave , 285 A.2d at 450). Appellant claims the jury

heard recordings of 911 calls involving 20 people, and more than 30 people

were mentioned at trial. Id. at 26. According to Appellant, drug transactions

from Pittsburgh to Johnstown and the movement of money during those

transactions were unrelated to him. Id. Appellant claims prejudice resulting

from “ guilt by ass ociation. ” Id.

An attorney owes his client a duty of loyalty, including a duty to avoid

conflicts of interest. See Strickland v. Washington , 466 U.S. 668, 688

(1984). Notwithstanding, an appellant cannot succeed in a claim for a

potential conflict of interest without establishing that he suffered prejudice.

Commonwealth v. Collins , 957 A.2d 237, 251 (Pa. 2008). We have

explained:J

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-

Counsel m ay be held to have been ineffective in representing a

defendant if the defendant demonstrates that an actual conflict of

interest adversely affected his lawyer ’ s performance. Moreover,

... while it is true that prejudice is presumed when counsel is

burdened by an actual conflict of interest, this is so only if the

defendant demonstrates that counsel actively represented

conflicting interests and that an actual conflict of interest affected

his lawyer ’ s performance. ... An actual conflict of interest ... is

evid enced whenever

, during the course of representation, the

interests of appellant

- and the interests of another client towards

whom counsel bears obligations

- diverge with respect to a

material factual or legal issue or to a course of action.

Commonwealt

h v. Toro , 638 A.2d 991, 996 ( Pa. Super. 1994) (emphasis in

original omitted , emphasis added ) . Additionally,

dual representation alone does not amount to a conflict of interest.

... To make the dual representation rise to a true conflict, [a

defendant] need not show that actual harm resulted but must at

least show the possibility of harm. ... [A defendant] will sat isfy

the requirement of demonstrating possible harm, if he can show,

inter alia , that he had a defense inconsistent with that advanced

by the other client, or that counsel neglected his case in order to

give the other client a more spirited defense.

Id. ( quoting Commonwealth v. Breaker , 318 A.2d 354, 356 (Pa. 1974)

(plurality).

Upon review , we conclude Appell ant waived an y conflict during his

verbal colloquy before the trial court on July 7, 2017. Appellant advised the

court that he agree d with Attorney Kaharick’s dual representation , and there

were no issues which w ould cause a conflict. N.T., 7/7/17, at 4

- 5. Appellant

acknowledged that Mader could identify him as one of “a number of people to

whom she dealt with[.]” Id. at 4. In addition, Appellant execut ed a written

conflict of interest waiver. Id. at 3.J

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-

The PCRA court addressed this issue, explaining :

Appellant argues that this conflict of interest resulted in

three damaging instances during his trial. First, he claims that

Attorney Kaharick ’ s dual representation of himself and [] Mader

allowed the Commonwealth to present vastly more evidence,

largely focused on [] Mader ’ s role in the heroin trafficking ring,

than if [Appellant] ha[d] been represented separately. This,

[Appellant] argues, created an impression of guilt by association

in the minds of the jury and damaged his defense.

Second

, [Appellant ] argues that the co

- representation

limited Attorney Kaharick ’ s ability to argue that [Appellant ] had

merely been purchasing heroin for personal use, as opposed to

selling it to other individuals. [Appellant] claims that Attorney

Kaharick, had he only be e n representing [Appellant], could have

pressed Agent Moore regarding [] Mader ’ s admitted habit of

consuming two bricks of heroin a day and bolstered [Appellant ’s ]

argument that he suffered from a serious addiction problem.

However, because Attorney Kahari ck was also representing []

Mader, [Appellant] claims that this approach was not sufficiently

explored at trial.

Finally, [Appellant] notes Agent Moore ’ s testimony that

[Appellant ’ s] arrest resulted from [] Mader ’ s testimony to a grand

jury that gave the trial jury the f alse impression that [] Mader had

actually named [Appellant] in that testimony. Attorney Kaharick

failed to elicit this information in his cross

- examination,

[Appellant] claims, because it could hav e harmed [] Mader ’ s

defense strategy.

None of the issues noted by [Appellant] adequately

demonstrate that Attorney Kaharick ’ s representation of

[Appellant] was adversely affected by his simultaneous

representation of [] Mader

. ... [Appellant] has merely offered

speculation as to the mindset of the jury and other potential

defense strategies Attorney Kaharick could have used at tr ial. This

does not meet the standard outlined by the Supreme Court.

Additionally, the Pennsylvania Rules of Professional Conduct

provide that, even in the case of a potential conflict of interest, an

attorney may proceed in their representation of multip le co

defendants if:J

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- “ (1) the lawyer reasonably believes that [they] will be able

to provide competent and diligent representation to each

affected client; (2) the representation is not prohibited by

law; (3) the representation does not involve the asser tion of

a claim by one client against another client represented by

the lawyer in the same litigation or other proceeding before

a tribunal; and (4) each affected client gives informed

consent. ”

Pa. R. Prof ’ l Cond. 1.7 Conflict of Interest: Current Clien ts

(Pennsylvania Court Rules (2021 Edition))

. Here, it is clear that,

due to the differences in the charges against each co

- defendant

and [Appellant ’ s] stated trial strategy, Attorney Kaharick was

reasonable in his belief that he could effectively represe nt each of

his clients, the representation was not prohibited by law, there

were no outstanding claims between the co

- defendants, and each

co

- defendant gave their informed consent to the representation.

Thus, [Appellant ’ s] claim for relief on this issue m ust fail.

PCRA Court Opinion, 1/24/22, at 6

- 7. We agree with and adopt the PCRA

court’s rationale

. See id. We further observe that the record does not support

Appellant’s claim of jury confusion. The jury demonstrated its ability to

distinguish the defendants, the charges , and evidence when it acquitt ed

Appellant of distribution of proceeds. Appellant’s first and second issues do

not merit relief. Solano , 129 A.3d at 16 3; Collins , 957 A.2d at 251

.

In his third issue, Appellant claims Attorney Kaharick rendered

ineffective assistance by failing to explain RRRI when he communicated the

Commonwealth ’ s plea offer. Appellant ’ s Brief at 21. According to Appellant,

in June or July 2017, the OAG offered a sentence of 3

- 6 years in exchange

for Appellant’s guilty plea. Id. Appellant argues that Attorney Kaharick failed

to explain to him that “ he would be RRRI eligible and could be released from

prison sooner than the minimum term. ” Id. Appellant claims he rejected theJ

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-

plea offer because Attorney Kaharick fail ed to explain that he was eligible for

RRRI. Id. Appellant admits to confirming his understanding of the plea offer

a t the December 21, 2021

, hearing

. Id. at 23. Nonetheless, Appellant claims

counsel ’ s failure to explain his RRRI eligibility caused him to believe that the

minimum sentence offered by the Commonwealth “ was longer than it actually

was. ” Id. Appellant claims Attorney Kaharick ’ s oversight regarding RRRI

eligibility cause d him to reject the plea, which he otherwise would have

accepted

. Id.

The right to effective assistance of counsel extends to counsel ’ s role in

advising his client about the consequences of entering a guilty plea.

Commonwealth v. Barndt

, 74 A.3d 185, 192

- 93 (Pa. Super. 2013)

(citations and quotation marks omitted). “ Defense counsel has a duty to

communicate to his [or her] client, not only the terms of a plea bargain offer,

but also the relative merits of the offer compared to the defendant ’ s chances

at trial. ” Commonwealth v. Copeland

, 554 A.2d 54, 60 (Pa. Super. 19 88).

In the context of plea offers, to be entitled to relief for ineffective assistance

of counsel, a petitioner must establish: “ (1) an offer for a plea was made; (2)

trial counsel failed to inform him of such offer; (3) trial counsel had no

reasonable b asis for failing to inform him of the plea offer; and (4) he was

prejudiced thereby. ” Commonwealth v. Chazin , 873 A.2d 732, 735 (Pa.

Super. 2005) (quoting Copeland

, 554 A.2d at 61). “ A claim of ineffectiveness

may be denied by a showing that the petitioner ’ s evidence fails to meet anyJ

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-

of these prongs. ” Commonwealth v. Washington

, 927 A.2d 586, 594 (Pa.

2007) (citations omitted).

At the PCRA hearing, Attorney Kaharick testified that he advised

Appellant to take the Commonwealth ’ s plea offer of 3

- 6 years in prison

.

Attorney Kaharick testified :

I specifically told [Appellant] to take the three to six, all right. I

said that to him on numerous occasions. He specifically told m e

there ’ s no way I ’ m taking three to six. Now, I don ’ t do this to

defendants on any level on any criminal defense, I am not going

to tell somebody they must do anything. They make their

decision. But when [Appellant] said he didn ’ t know anything

about the three to six, he turned it down so many times. He didn ’ t

want to hear about it. He was not guilty of this. He did not want

to hear about this. All I do is use drugs, and I ’ m not involved in

this, but I told him take the three to six. I speci fically told him.

. . .

I did not talk about [RRRI]. I don ’ t believe I talked about that at

all because it was specifically take this three to six, it ’ s one of the

best deals you ’ re going to get, you ’ ll be out of here as soon as

possible. But I might h ave said something to the effect of

you won ’ t do three to six. I said you ’ ll be out sooner than

that. I ’ m pretty sure I said that. No, I ’ m absolutely sure I

said that, okay. But I didn ’ t put it in terms of RRRI.

N.T., 9/17/17, at 30

- 31 (emphasis added).

Consistent with the foregoing, the PCRA court concluded that Appellant

failed to establish prejudice

. The PCRA court explained it

c onducted a colloquy of [Appellant] on July 7, 2017, during which

the plea offer by the Commonwealth was placed on the record and

explained to [Appellant]. N.T. Hearing, 07/07/17. [Appellant]

was informed that offer was time

- limited and still declined to

accept it. Id. Several other pre

- trial hearings were held in this

case and at no point did [Appellant] indicate that he wished to

accept that offer. N.T. Hearing 07/31/17; 09/11/17. Additionally,J

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-

[Appellant] s t ated at his PCRA hearing that he would not have

accepted the plea offer even if he had known that the

minimum sentence would have been less than three years.

N.T., 09/21/21, at 19

- 20 [.]

PCRA Court Opinion, 1/24/22, at 9

- 10 (emphasis added)

. The record supports

the PCRA court ’ s determination

, and we discern no error. Appellant ’ s thir d

issue merits no relief.

In his fourth issue, Appellant argues :

The trial court erred and/or abused its discretion in determining

that trial counsel ’ s strategy to allow the admission of

overwhelmingly cumulative and prejudicial evidence of criminal

activity was reasonable.

Appellant ’ s Brief at 23

- 24. Appellant claims Attorney Kaharick rendered

ineffective assistance by not objecting to overwhelming evidence that had no

connection to him

. Id. at 24. Appellant assert s only 17 of the wiretaps related

to him. Id. Appellant contends Attorney Kaharick ’s failure to object to the

remaining evidence w as highly prejudicial, repetitive and cumulative. Id.

Once again, Appellant compares the circumstances in his case to those in

Commonwealth v. Belgrave , 285 A.2d 448 (Pa. Super. 1971). Appellant ’ s

Brief at 25

. Appellant asserts that the overwhelming evidence presented at

trial was unrelated to him, cumulative, and “ it would have been extremely

difficult for a jury to ‘ marshal ’ the evidence that was only relevant to

Appellant. ” Id. at 26.

T he PCRA court explain ed its reject ion of this ineffectiveness as follows :

[Appellant] is correct in his assertio n that a failure to object at

trial without a reasonable basis can support a claim of ineffectiveJ

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-

assistance of counsel. Commonwealth v. Pierce , 527 A.2d 973

(Pa. 1987). [Appellant] freely admits, however, that Attorney

Ka har ick did raise an objection to t he relevancy of much of the

evidence presented at [Appellant ’ s] trial. Memorandum in

Support of PCRA, p. 9

- 10. Further, Attorney Kaharick testified at

the PCRA hearing on September 21, 2021, that the admission of

additional evidence that did not directly implicate [Appellant] was

a key part of the defense strategy. N.T., 9/2/11, at 31

- 33. By

contrasting the small portion of evidence involving [Appellant]

with the large body of evidence presented at trial, Attorney

Kaharick believed that he could minimiz e [Appellant ’ s] role in the

heroin trafficking ring in the eyes of the jury. Id. Regardless of

the relative effectiveness of this strategy, [the PCRA court] finds

that Attorney Kaharick ’ s objection to the admission of this

evidence at trial and his state d defense strategy prevents

[Appellant] from satisfying the second prong of the

[ineffectiveness] test on this issue. Accordingly, [Appellant ’ s]

claim for relief on this issue must fail.

PCRA Court Opinion, 1/24/22, at 10

- 11. We agree with the PCRA cour t’s

reasoning and affirm on this basis regarding Appellant ’ s fourth issue. See id.

In his fifth issue, Appellant argues Attorney Kaharick rendered

ineffective assistance by failing to preserve his challenges to the sufficiency of

evidence in post

- sentence motions and on direct appeal. Appellant ’ s Brief at

2 8

- 29. Appellant disputes the PCRA court ’ s finding that no prejudice resulted

from trial counsel failing to preserve these claims. Id. at 29. In support,

Appellant ’ s sixth, seventh and ei ghth issues challenge the sufficiency of the

evidence underlying Appellant ’ s convictions of possession with intent to

deliver; conspiracy to manufacture, deliver or possess with intent to deliver

heroin; conspiracy to violate the corrupt organizations act; and the crime of

corrupt organizations. Appellant ’ s Brief at 29

- 30, 31, 39. We address each

sufficiency challenge in turn.J

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-

In his sixth issue, Appellant argues Attorney Kaharick rendered

ineffective assistance by not challenging the su fficiency of the evidence

regard ing his conviction of possession with intent to deliver heroin.

Appellant ’ s Brief at 29

- 30. Appellant specifically challenges counsel ’ s failure

to argue that the evidence did not establish his “ intent to deliver. ” Id. at 30.

According to Appellant, there were no wiretaps “ where [] Appellant was

attempting to sell drugs, no testimony by someone who had purchased drugs

from [] Appellant, and the police never found drugs in [] Appellant ’ s

possession. ” Id. Rather, the Commonwealth relied on wiretaps indicating

Appellant purchased heroin in quantities of one or two “ bricks ” at a time. Id.

at 31.

In claiming this evidence failed to establish “ intent to deliver, ” Appellant

relies on Agent Moore ’ s testimony that a heavy heroin user could use one or

two bricks in a day, and Mader ’ s testimony she had “ a 2 br i ck a day habit. ”

Id. Finally, Appellant asserts there is no evidence, other than these calls, to

establish his intent to deliver. Id. Appellant argues counsel ’ s failure to

challenge the sufficiency of the evidence caused him prejudice, as a court

would have deemed this evidence insufficient to sustain his conviction. Id.

When reviewing a sufficiency challenge, we determine “ whether the

evidence at trial, and all reasonable inferences derived therefrom, when

viewed in the light most favorable to the Commonwealth as verdict winner,

are sufficient to establish all elements of the offense beyond a reasonableJ

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-

doubt. ” Commonwealth v. May , 887 A.2d 750, 753 (Pa. 2005 ) (citation

omitted). “ Further, a conviction may be sustained wholly on circumstantial

evidence, and the trier of fact

— while passing on the credibility of the witnesses

and the weight of the evidence

— is free to believe all, part, or none of the

evidence. ” Commonwealth v. Miller , 172 A.3d 632, 640 (Pa. Super. 2017)

(citation omitted). “ In conducting this review, the appellate court may not

weigh the evidence and substitute its judgment for the fact

- finder. ” Id.

The relevant elements of PWID are as follow s:

(a) The following acts and the causing thereof within the

Commonwealth are hereby prohibited:

....

(30) Except as authorized by this act, the manufacture,

delivery, or possession with intent to manufacture or

deliver, a controlled substance by a person not registered

under this act, or a practitioner not registered or licensed by

the appropriate State board, or knowingly creating,

delivering or possessing with intent to deliver, a counterfeit

controlled substance.

35 P.S. § 780

- 113(a)(30).

As this Court has explained:

To sustain a conviction for PWID, the Commonwealth must prove

both the possession of the controlled substance and the intent to

deliver the controlled substance. Moreover, [w]ith regard to the

intent to deliver, we must examine the fa cts and circumstances

surrounding the possession. ... [F]actors to consider when

determining whether a defendant intended to deliver a controlled

substance include the manner in which the controlled substance

was packaged, the behavior of the defendant, the presence of

drug paraphernalia, and the sums of cash found in possession of

the defendant. The final factor to be considered is expert

testimony. Expert opinion testimony is admissible concerningJ

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whether the facts surrounding the possession of controlled

substances are consistent with an intent to deliver rather than

with an intent to possess it for personal use.

Commonwealth v. Bernard

, 218 A.3d 935, 943 (Pa. Super. 2019) (citations

and internal quotation marks omitted, some formatting changed).

The Commonwealth ’ s evidence was comprised, in part, of wiretapped

conversations between Curtis Harper (Harper) and participants of drug

transactions. See N.T., 9/18/21, at 40 (wherein Agent Moore testified

regarding the nonconsensual interceptions of thre e telephones during the

investigation). The Commonwealth presented Agent Moore as an expert in in

narcotics investigations, and the coded language used by drug dealers. Id.

at 162

- 72. Agent Moore provided the context of intercepted communications

between drug supplier Curtis Harper and various distributors:

Harper had a couple different sources of heroin during this

timeframe. Just prior to the interceptions, the source th at he was

going to, something happened where he was no longer getting

heroin from that person. So [,] during the interceptions, there was

two different people he was getting heroin from.

What this means to me is that heroin that he ’ s been

purchasing recently

, that people are liking them, such as the call

when he was talking to Rischelle Weyant, and they talked about

the skull and people are flipping f r om them,

... so he went back to

the same supplier again.

Id. at 42.

The Commonwealth presented evidence that Appellant purchased one

and 2

- brick quantities of heroin from Harper. At trial, wiretapped “ call 5775 ”J

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-

was played for the jury. N.T., 9/19/17, at 44. Agent Moore then explained

the coded language used by the par ticipants :

This is Curtis Harper speaking to [Appellant]. Ba s ed upon the call,

it leads me to the opinion that [Appellant] had a previous drug

relationship with Mr. Harper, and he owes him $400.

At some point in time [Appellant] lost Mr. Harper ’ s

telephone number and was glad that Mr. Harper called him bac k

. [Appellant] is on his way to building 121, the first section, door on

the left, which would be apartment 215, to repay the $400 drug

debt that he owes to Mr. Harper.

Id. at 45. Agent Moore d escribed a “ follow

- up ” call that took place at 6:42

p.m. that same day: “ Harper answers the phone. [Appellant] says he is here

... [Appellant] tells him that he is outside the door.... ” Id. According to Agent

Moore

, Appellant was observed going into and out of Harper ’ s apartment that

day. Id.

Agent Moore described a February 8, 2016, 4:55 p.m. intercepted call

that was played to the jury :

The speakers in these calls are Curtis Harper and [Appellant].

[Appellant] orders another brick of heroin. Harper asks how much

he owes. [Appellant] says he paid him the last time he was there,

plus he got another one and paid for it as he was walking out. The

last time he was there was on February 1 st

, and [Appellant] is on

his way down to Solomon H omes and he is to call when he gets

there.

Id. at 84. Agent Moore described a wiretapped call between Harper, 3

Appellant

, and others that took place at 5:23 p.m. that same day :

_________________ __________ ______ ____ _______

3 At trial, each of the wiretapped call s was played for the jury, after which

Agent Moore described the contents of the call, offering his expert opinion.J

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[Appellant] arrives at building 12 apartment 215, meets with Mr.

Gordan Armstrong

- Cole. Mr. Harper asked [Appellant] to find out

how much was left, so [Appellant] gives the telephone to Jordan

Armstrong

- Coles. There ’ s a lengthy argument back and forth as

far as how much money Mr. Jordan Armstrong

- Coles has.

It ’ s det ermined that totally he has two bricks of heroin, four

bundles of heroin and a single bag of heroin. One of those bricks

w as to go to [Appellant] for $200. Harper then fronts the

remainder brick

– remaining brick and four bundles of heroin and

a single b ag to [Appellant] and told him that he owes $400 for

that heroin.

[The Commonwealth]:

... [D]o you have an opinion that the

possession of that much heroin is for use or distribution

.

A. [Agent Moore:] For distribution.

Q. What do you base that on?

A. Bas ed upon my experience, the

– one of the highest I ’ ve ever

heard of was approximately a brick

- a

- day habit.

Id. at 84

- 85.

Agent Moore described a nother wiretap that same day, about an hour

and five minutes later:

[Agent Moore:] My opinion is [Appellant] had received the

remainder of Curtis Harper ’ s heroin. Mr. Harper no longer has

heroin but still has a customer that wants a brick of heroin, and

he is c hecking to see if [Appellant] can deliver that brick of heroin

to that customer.

Id. at 88. Agent Moore stated that during th e call, the participants referred

to Appellant ’ s fiancé, Robin, as having a vehicle. Id.

The jury heard each of the wiretapped telephone calls and expert

testimony regarding Appellant ’ s purchase of heroin. Based upon the

foregoing, the jury could infer Appellant repeatedly possessed quantities ofJ

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heroin with the intent to deliver. Miller , 172 A.3d at 640 (the jury is free to

believe all, part, or none of the evidence)

. Because a sufficiency challenge

would not have been successful, Appellant fail ed to establish prejudice

resulting from Attorney Kaharick ’ s failure to challenge the sufficiency of the

e vidence underlying his PWID conviction. See Solano , 129 A.3d at 1163.

In his seventh issue, Appellant argues Attorney Kaharick rendered

ineffective assistance by not challenging the sufficiency of the evidence

underlying his convictions of conspiracy t o commit PWID and conspiracy to

commit corrupt organizations. Appellant ’ s Brief at 31

- 32

. Appellant claims

there is no evidence of an agreement to commit the crime of PWID, only

evidence regarding the quantity of heroin purchased. Id. at 34. Regarding

the crime of corrupt organizations, Appellant claims there is no evidence that

he knew of or was involved in Harper ’ s drug ring. Id. at 35. Appellant argues

the only evidence against him is the quantity of heroin he purchased. Id. at

37. We disagree.

To convict a defendant of conspiracy, the trier of fact must find: (1)

the defendant inten ded to commit or aid in the commission of the criminal

act; (2) the defendant entered into an agreement with another (a “ co

conspirator ” ) to engage in the crime; and (3) the defendant or one or more of

the other co

- conspirators committed an overt act in fu rtherance of the agreed

upon crime. 18 Pa.C.S.A. § 903.J

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-

The essence of a criminal conspiracy, which is what distinguishes

this crime from accomplice liability, is the agreement made

between the co

- conspirators.

Mere 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 commi t the crime along with his co

conspirator. 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 cir cumstantial

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.

Commonwealth v. Dunkins

, 229 A.3d 622, 633 (Pa. Super. 2020) (citation

omitted and formatting altered), aff ’ d on other grounds

, 263 A.3d 247 (Pa.

We defined the underlying crime of PWID above. Regarding corrupt

organizations, Section 911 of the Crimes Code provides, in pertinent part:

It shall be unlawful for any person employed by or associated with

any enterp rise to conduct or participate, directly or indirectly, in

the conduct of such enterprise ’ s affairs through a pattern of

racketeering activity.

18 Pa.C.S.A. § 911(b)(3). The term “ enterprise ” is defined as “ any individual,

partnership, corporation, association or other legal entity, and any union or

group of individuals associated in fact although not a legal entity, engaged in

commerce and includes legitimate as well as illegitimate entities and

governmental entities. ” 18 Pa.C.S.A. § 9 11(h)(3). “ Racketeering activity ” isJ

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defined to include any violation of Section 780

- 113 of The Controlled

Substance, Drug, Device and Cosmetic Act. 18 Pa.C.S.A. § 911(h)(1)(ii). A

“ pattern of racketeering activity ” means “ a course of conduct requiring t wo or

more acts of racketeering activity [.] ” 18 Pa.C.S.A. § 911(h)(4).

The evidence stated above, viewed in a light most favorable to the

Commonwealth, establish ed Appellant ’ s conspiracy to commit PWID. As the

PCRA court summarized:

Evidence was presente d at trial that [Appellant] was observed

entering and exiting the location out of which the heroin trafficking

ring operated and recorded discussing the purchase of amounts of

heroin typically associated with resale to other individuals. N.T.,

9/19/17, at 44

- 45; N.T., 9/18/17, at 25

- 26; N.T., 9/19/17, at

128

- 137. The jury heard testimony that there were no controlled

purchases involving [Appellant] and that there was no direct

evidence tying [Appellant] to the sale of drugs to other individuals.

N.T., 9/ 20/17, [at] 111

- 13. The trial court later instructed the

jury on circumstantial evidence and the weight it was to be

afforded in their decision. The jury ultimately determined that

[Appellant ’ s] conduct met all of the elements to be convicted of

Criminal Conspiracy, including the commission of a “ step in

furtherance ” of the conspiracy....

PCRA Court Opinion, 1/24/22, at 12

- 13 (some punctuation changed).

The PCRA court further concluded Appellant’s claim of ineffective

assistance for failure to challenge the sufficiency of the evidence underlying

his conspiracy (corrupt organizations) (Appellant’s seventh issue ) fails for the

same reasons. Id. at 13. We agree.

As stated above, the jury heard evidence regarding Appellant ’ s

participation in the Harper ’ s drug enterprise through the repeated purchase of

heroin in large quantities

. See N.T., 9/19/17, at 45. 84

- 88. The jury furtherJ

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heard evidence of Appellant ’ s repeated PWID (a racketeering activity) and h is

discussion of delivering heroin to a customer of Harper. I d. at 88. V iewed in

a light most favorable to the Commonwealth, this evidence is sufficient to

sustain Appellant ’ s conviction of entering into an agreement to commit the

crime of corrupt organizations , and taking a substantial step in furtherance

thereof . As such, Appellant ’ s ineffectiveness claim, premised upon his

challenge to the sufficiency of the evidence underlying his corrup t

organizations conviction, fails. See Solano , 129 A.3d at 1163.

In his eighth issue, Appellant argues Attorney Kaharick rendered

ineffective assistance in not challenging the sufficiency of the evidence

underlying his corrupt organizations

– employee conviction. Appellant ’ s Brief

at 39. Appellant argues

, “ the only evidence offered at trial to support this

charge was that Appellant made calls to purchase[] heroin from a dealer. ” Id.

According to Appellant, his interactions with Harper show he was “ nothing

more than an annoying customer. ” Id. Appellant directs our attention to

evidence that Appellant had lost Harper ’ s t elephone number and had arranged

to pay off a $400 debt he owed to Harper. Id. Appellant insists his “ only

knowledge of [] Harper ’ s organization is where he was directed to go make

purchases. ” Id. at 42. Appellant points out, “ Even told where to go, []

Appellant was not really sure of where it was. ” Id.

The evidence, described above, was sufficient to sustain Appellant ’ s

conviction of corrupt organizations. The jury heard evidence regardingJ

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App ellant ’ s participation in Harper ’ s drug enterprise through the purchase of

heroin in large quantities. See N.T., 9/19/17, at 45. 84

- 88. Further, the

evidence showed Appellant ’s participation in planning a delivery of heroin to

Harper ’ s customer. I d. at 88. The testimony, described in detail above and

viewed in a light most favorable to the Commonwealth, is sufficient to sustain

Appellant ’ s conviction of corrupt organizations

. As such, Appellant ’ s

ineffectiveness claim, premised upon his sufficiency challenge, fails. See

Solano , 129 A.3d at 1163.

In his ninth issue, Appellant claims Attorney Kaharick rendered

ineffective assistance by not appealing the denial of his motion to sever the

trials of Mader and Massai Dickey (Dickey). Appellant ’ s Brief at 46. Appellant

contends there is no evidence that he and his codefendants participated

“ together ” in the same acts or transactions. Id. Appellant argues (a) each

defendant ’ s connection to Harper ’ s drug organization would not have been

admissible in separate trials, and (b) the jury was incapable of separating the

testimony related to the corrupt organization from the scant evidence

pertaining to Appellant. Id. at 46

- 47. According to Appellant, h e likely would

have been granted a new trial had Attorney Kaharick challenged the denial of

his severance motion on direct appeal

. Id. at 47.

Appellant ’ s claim lacks arguable merit because on appeal, a challenge

to the denial of severance would not succeed

. The decision whether to sever

trials of co

- defendants is within the sound discretion of the trial court, and weJ

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will not disturb this decision absent a manifest abuse of

discretion. Commonwealth v. Wharton

, 607 A.2d 710, 717 (Pa.

1992); see Pa.R .Crim.P. 582(A)(2) ( “ Defendants charged in separate

indictments or informations may be tried together if they are alleged to have

participated in the same act or transaction or in the same series of acts or

transactions constituting an offense or offenses. ” ), 583 ( “ The court may order

separate trials of offenses or defendants, or provide other appropriate relief,

if it appears that any party may be prejudiced by offenses or defendants being

tried together. ” ).

In cases where co

- defendants are charged with conspiracy, severance

is disfavored :

I t would impair both the efficiency and the fairness of the criminal

justice system to require

. . . that prosecutors bring separate

proceedings, presenting the same evidence again and again,

requiring victims and witnesses to repeat the inconvenience (and

sometimes trauma) of testifying, and randomly favoring the last

tried defendants who have the advantage of knowing the

prosecution ’ s case beforehand. Joint trials generally serve the

interests of justice by avoidi ng inconsistent verdicts and enabling

more accurate assessment of relative culpability.

Commonwealth v. Travers

, 768 A.2d 845, 847 (Pa. 2001).

Here, severance was unwarranted because Appellant and his co

defendants were charged with conspiracy; evidence presented at trial was

equally admissible against all three codefendants ; and the prosecution ’ s case

required the testimony of fifteen witnesses. Separate trials for each defendant

under these circumstances “ would have placed a heavy burden upon theJ

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-

judicial system as well as the public, ” Commonwealth v. Jones

, 668 A.2d

491, 502 (Pa. 1995) ; needlessly subjected the witnesses to great

inconvenience and trauma ; and randomly favored whichever of the three

defendants was tried last.

Further

, Appellant cannot establish prejudice resulting from counsel’s

failure to appeal the denial of severance. “ [A] motion for severance is

addressed to the sound discretion of the trial court, and that the decision

reached by the trial court will not be disturbed absent a showing of manifest

abuse of discretion. ” Commonwealth v. Grillo

, 917 A.2d 343, 343 n.1 (Pa.

Super. 2007). “ The critical factor that must be considered is whether the

accused has been prejudiced by the trial court's decision not to sever. The

accused bears the burden of establishing such prejudice.” Commonwealth

v. Lopez

, 739 A.2d 485, 501 (Pa. 1999)

.

With respect to the severance of offenses:

Offenses charged in separate informations may be tried together

if they are “ based on the same act or transaction ” or if “ the

evidence of each of the offenses would be admissible in a separate

trial for the other and is capable of separation by the jury so that

there is no danger of confusion. ” Pa.R.Crim.P. 582(a)(1).

The court has discretion to order separate trials if “ it appears that

any party may be prejudiced ” by c onsolidating the charges.

Pa.R.Crim.P. 583.

Commonwealth v. Thomas

, 879 A.2d 246, 260 (Pa. Super. 2005).

Appellant and his codefendants were charged as participants in a corrupt

organization, and as co

- conspirators. This Court has recognized, “ Joint trials

are advisable when the defendants face conspiracy charges and where theJ

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multiple charges demonstrate a logical connection between the defendants

and the various crimes charged.” Commonwealth v. Paolello

, 665 A.2d

439, 451 ( Pa. 1 995)

. The evidence of the parameters of the corrupt

organization would have been admissible at each trial. At the PCRA hearing,

the Attorney Kahar ick recognized this :

Q. [The Commonwealth:] Concerning the possibility of severing

the trials of Mader and [Appellant] specifically, with the charges

of conspiracy and corrupt organizations, if there was a separate

trial for [Appellant], would much of the evidence that was

presented at the trial that occurred have to be presented again

because of those two charges?

A. [Attorney Kaharick:] Yes. But I specifically recall somewhere

along the line, if my memory is right,

... in any case that’s involving

multiple defendants I always ask for a severance of the cases.

They always ask for consolidation. I even ma de somewhat

elliptical remarks about it. It was a very difficult case to win in

terms of anti

- consolidation. Of course [,] you want severance,

because you’re putting three people in the roo m at one time, it

doesn’t look good. So [,] every defense lawyer i n the world is

going to say I want these cases severed. It’s hard to get. The

statute is very hard to get.

N.T., 9/21/21, at 31

- 32.

Finally, the jury acquitted Appellant of distribution of proceeds, showing

it was able to separate the evidence pertaining to Appellant. W e discern no

error in the PCRA court’s determination that a motion to sever would have

been unsuccessful . Evidence regarding the part icipation of Mader and Dickey

in the same drug distribution organization as Appellant would have been

admissible at the trial of each defendant. See Pao l ello

, supra. Appellant’s

final claim warrants no relief.J

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/9/2022