J-S57034-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBUR GER,* JJ. MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 12, 2016 James Womack (Appellant) appeals from the judgment of sentence entered following his convictions for possession of a controlled substance, possession of a controlled substance with intent to deliver (PWID) and criminal conspiracy. We affirm. The trial court aptly summarized the relevant factu al and procedural history of this matter as follows.

On April 5, 2014, Agent Richard Miller (hereinafter “Agent Miller”) was contacted by Lieutenant James Smith (h ereinafter “Lieutenant Smith”), concerning information about [ Appellant], who had an active warrant for his arrest. Lieutenan t Smith informed Agent Miller that [Appellant] was staying at the Holiday Inn Express on Finley Road in Rostraver Township, g ave Agent Miller a physical description of [Appellant], and a dvised him that [Appellant] was probably with Mr. Aaron Jackson (he reinafter “Jackson”). Agent Miller then proceeded to the Holi day Inn

* Retired Senior Judge assigned to the Superior Cou rt. COMMONWEALTH OF PENNSYLVANIA, Appellee,

v. : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

JAMES WOMACK, : : Appellant : No. 89 WDA 2016

Appeal from the Judgment of Sentence December 14, 2 015, in the Court of Common Pleas of Westmoreland County , Criminal Division, at No(s): CP-65-CR-0002102-2014J-S57034-16

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Express where he saw [Appellant] and Jackson walk t hrough the lobby, walk to the parking lot, and enter in the re ar of a maroon Ford Explorer. Agent Miller and Lieutenant Smith th en followed the vehicle to the Denny’s parking lot. After [Appe llant] and Jackson exited the vehicle and stood in front of th e Denny’s entrance, Agent Miller, Lieutenant Smith, and Serge ant Joe Dugan (hereinafter “Sergeant Dugan”) approached the m. The [o]fficers told [Appellant] he was under arrest, [A ppellant] complied, and was subsequently taken into custody. After [Appellant] was handcuffed, Agent Miller cond ucted a search where he found U.S. currency totaling $3,014 .00, sixteen (16) bags of heroin, two cellular phones, a hotel k ey card for the Holiday Inn Express, and a Pennsylvania photo ident ification card with the name of Matthew Wall from Monessen. Agent Miller explained that these particular stamp bags of heroi n were marked “Taco Bell,” and came with wrapping paper, w hich is typically used to package heroin. However, Agent Mi ller did not find any drug paraphernalia on [Appellant]. [Appell ant] was then transported to Rostraver Police Department. While Agent Miller was interacting with [Appellant] , Lieutenant Smith witnessed Jackson make “furtive” m ovements, which resulted in Lieutenant Smith handcuffing him, patting him down, and finding a brick of heroin on his person. The bags found on Jackson were also marked “Taco Bell.” Lieu tenant Smith further found a brick wrapper, around $1,200. 00 in U.S. currency, and a hotel key marked 5-A inside a sleev e marked 313. However, Lieutenant Smith did not find any par aphernalia on Jackson’s person nor marks of drug use. Agent Miller and Lieutenant Smith then returned to the Holiday Inn Express to inquire about who was rentin g room 313. The clerk told them that it was rented out by a man named Rick Evans, and Ann Malys (hereinafter “Malys”), the hot el manager, subsequently provided records indicating the same a t trial. Malys explained that photo identification is required in the check-in process and that normally only two cards are given out per room; Room 313 was rented at approximately 3:53 in the afternoon. She testified that the room was rented f or one night and paid for in cash. Malys testified that she was not at work on [the previous day,] April 5, 2014.J-S57034-16

- 3 - The [o]fficers then went to the room and knocked an d announced that it was the police. The [o]fficers we re able to enter Room 313 by the means of the hotel key found on [Appellant]. Officer Crawford of the Rostraver Poli ce also arrived on the scene and entered the hotel room as well. At this point, no one was in the room and Agent Miller instructed Officer Crawford to guard the room and not let anyone enter until they returned with a search warrant. The [o]fficers obta ined a search warrant around 9:30 p.m. and returned to the hotel around 9:40 at night. Agent Miller, Lieutenant Smith, Officer C rawford, Officer Dorcon, and Officer Rush participated in the search of the hotel room. When searching the hotel room, Agent Miller and Lieutenant Smith did not find any drug paraphernali a. However, Lieutenant Smith found thirteen (13) bricks of hero in wrapped in magazine paper, and then in a plastic bag under a m attress, closest to the window. The bags were marked “Taco Bell.” He also found wrappings from bricks of heroin in the c enter drawer of the nightstand. Lieutenant Smith testified that the total amount of heroin stamp bags found in the hotel room was six hundred and sixty-six (666) bags. Six hundred and s ixty-four (664) of the stamp bags were marked as “Taco Bell” while two of the bags were not stamped. The parties stipulated t hat the drugs seized were heroin and the amount contained in the reports were correct. Trial Court Opinion, 3/10/2016, at 1-3 (citations t o notes of testimony omitted). This matter proceeded to a jury trial on July 6, 2 015, at the conclusion of which, Appellant was found guilty of the aforeme ntioned charges. 1 On December 14, 2015, Appellant was sentenced to an ag gregate term of 30 to 60 months’ incarceration followed by a consecutive term of three years’

1 Although the record indicates that 16 stamp bags o f heroin marked “Taco Bell” were recovered from Appellant’s person, the C ommonwealth proceeded to trial only on the possession, PWID and criminal conspiracy counts related to the two bricks of heroin found during the search of room 313. See Criminal Information, 6/2/2014; N.T., 7/6-8/2015, 3 03-304.J-S57034-16

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probation. This timely-filed appeal followed. Bot h Appellant and the trial court complied with the mandates of Pa.R.A.P. 1925. On appeal, Appellant asks us to consider whether t he evidence was sufficient to convict him of PWID, possession and c riminal conspiracy with respect to the heroin recovered from the Holiday In n Express. Appellant’s

Brief at vii. Before we address Appellant’s issues on the merits, we must determine whether they have been preserved properly for our review. With respect to sufficiency-of-the-evidence claims, it i s well-settled that the 1925(b) statement must specify the element or eleme nts upon which the evidence was insufficient, or the claim may be waiv ed. Commonwealth v.

Williams , 959 A.2d 1252, 1257-58 (Pa. Super. 2008). However , even if a sufficiency claim is vague, this Court may review i t where the case is straightforward, the record is not long and complex , the trial court readily apprehended the appellant’s claim, and the trial co urt thoroughly addressed the merits of the claim in its opinion. Commonwealth v. Laboy , 936 A.2d 1058, 1060 (Pa. 2007). In his 1925(b) statement, Appellant asserts general sufficiency challenges for each of his three convictions, but f ails to specify which element or elements of each crime he is challenging . Appellant’s Concise Statement, 2/19/2016. Nonetheless, in its 1925(a) opinion, the trial court addressed each claim in turn. Trial Court Opinion, 3/10/2016, at 3-9.J-S57034-16

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Accordingly, we decline to find waiver. Laboy, supra . We now turn to Appellant’s substantive claims. Appellant argues that the Commonwealth failed to pr esent evidence sufficient to prove that Appellant knew the recover ed heroin was in room 313 and failed to present evidence of an agreement between Appellant and Jackson to sell the heroin. Appellant’s Brief at 2. The standard we apply in reviewing the sufficiency of the evidence is [whether,] viewing all the evidence admitted at tri al in the light most favorable to the [Commonwealth as the] verdict winner, there is sufficient evidence to enable the fact-fin der 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 n ote that the facts and circumstances established by the Commonwe alth need not preclude every possibility of innocence. Any do ubts regarding a defendant’s guilt may be resolved by the fact-fin der unless the evidence is so weak and inconclusive that as a matt er of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its bur den of proving every element of the crime beyond a reasona ble doubt by means of wholly circumstantial evidence.

Commonwealth v. Gonzalez , 109 A.3d 711, 716 (Pa. Super. 2015) (citation omitted). Instantly, Appellant was convicted of two possessor y offenses, PWID and possession, as well as one count of criminal co nspiracy with respect to

the two bricks of heroin recovered from room 313.

When contraband is not found on the [Appellant’s] p erson, the Commonwealth must establish constructive posses sion.... Constructive possession is the ability to exercise conscious control or dominion over the illegal substance and the intent to exercise that control. [T]wo actors may have joint control andJ-S57034-16

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equal access and thus both may constructively posse ss the contraband. The intent to exercise conscious domini on can be inferred from the totality of the circumstances. To establish the offense of possession of a control led substance with intent to deliver, the Commonwealth must prove beyond a reasonable doubt that the [Appellant] poss essed a controlled substance with the intent to deliver it. The trier of fact may infer that the [Appellant] intended to deliver a controlled substance from an examination of the facts and circumstances surrounding the case. Factors to consider in determining whether the drugs were possessed with the intent to deliver include the particular method of packaging, the form of the drug, and the behavior o f the [Appellant]. Thus, possession with intent to deliver can be infe rred from the quantity of the drugs possessed and other surrounding circumstances, such as lack of paraphernalia for co nsumption.

Commonwealth v. Jones , 874 A.2d 108, 121-22 (Pa. Super. 2005) (citations and quotation marks omitted). The trial court addressed Appellant’s claims with respect to his possessory offenses as follows.

In this case, the jury heard testimony from Agent M iller describing the items found on [Appellant’s] person, which consisted of U.S. currency totaling $3,014.00, sixt een (16) bags of heroin, two cellular phones, a hotel key card fo r the Holiday Inn Express, and a Pennsylvania photo identificatio n card with the name of Matthew Wall from Monessen. Agent Mille r explained that these particular stamp bags of heroi n were marked “Taco Bell,” and came with wrapping paper, w hich is typically used to package heroin. The [o]fficers we re then able to enter Room 313 by the means of the hotel key found on [Appellant]. After receiving a search warrant, Lieu tenant Smith found thirteen (13) bricks of heroin wrapped in mag azine paper, and then in a plastic bag under a mattress, closest to the window. The bags were also marked as “Taco Bell.”J-S57034-16

- 7 - Given the testimony presented at trial, [Appellant] is not a person registered [] to possess a controlled substa nce. Clearly, heroin is a controlled substance. Here, the jury he ard that it was confirmed after testing from the Greensburg State P olice Crime Lab that the powder contained heroin and heroin is a Schedule I controlled substance. Moreover, the jury heard test imony from Tristan Wenzig, a technical support operator and a criminal analyst, who confirmed that the currency found on [ Appellant] was tested by an ion scan for narcotics, which resu lted in a positive reading for heroin on the currency.

* * * [Additionally,] the jury heard testimony from Detec tive Anthony Marcocci (hereinafter “Detective Marcocci”) , an expert in the area of narcotics and narcotics investigatio ns, who opined that, taking into consideration the factors of the amount of cash, the fact that the stamp bags marked “Taco Bell” in green ink found on [Appellant’s] person matched the stamps fo und in the hotel room, and the possession of the hotel key to the same hotel room where the large amount of heroin was fou nd, [Appellant] possessed the heroin for distribution. Specifically, he testified that heroin users usually do not have any significant amount of money to buy heroin. He testified that [i t is] his experience that drug dealers will typically “post u p” in a hotel room, have another person sign them in, and pay in cash. Further, he testified that six hundred and sixty-si x (666) stamp bags was a large amount of heroin and is not consis tent with personal use.

* * * [W]hile Jackson testified that [Appellant] was not involved in the sale of narcotics and that he never told [Ap pellant] about the drugs in the hotel room, he testified that [App ellant] did, in fact, meet him at the Holiday [Inn] Express and pur chase the two bundles of heroin that were allegedly on his pe rson.

* * * [Additionally, t]he jury heard testimony that both [Appellant] and Jackson had access to Room 313, whi ch was established when hotel room keys for Room 313 were found onJ-S57034-16

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each of them. By having access to Room 313, they bo th, in fact, had control over the heroin. [Appellant’s] possessi on of the same brand of heroin on his person established his inten t to control the larger stash of heroin in the hotel room. Trial Court Opinion, 3/10/2016, at 4-5, 7 (citation s to notes of testimony omitted). Viewed in the light most favorable to the Commonwea lth, the evidence presented is sufficient to demonstrate that Appella nt knew of, and had the ability and intent to exercise dominion and control over, the heroin

recovered from the hotel room. Commonwealth v. Johnson , 26 A.3d 1078, 1093–1094 (Pa. 2011) (holding that intent to maintain conscious dominion may be inferred from totality of the circu mstances). Accordingly, we conclude that the Commonwealth presented suffici ent evidence to establish both possessory offenses. To sustain a conviction for criminal conspiracy: [T]he Commonwealth must establish that the [Appellant] (1) entered into an agreement to commit or aid in an unlawful act with another person or persons, (2) with a shared criminal intent and (3) an overt act was done in furtherance of the conspiracy

. Circumstantial evidence may provide proof of the conspiracy. The conduct of the parties and the circ umstances surrounding such conduct may create a ‘web of evide nce’ linking the accused to the alleged conspiracy beyond a reas onable doubt. Additionally: An agreement can be inferred from a variety of circumstances including, but not limited to, the re lation between the parties, knowledge of and participation in the crime, and the circumstances and conduct of the parties surroundin g the criminal episode. These factors may coalesce to est ablish aJ-S57034-16

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conspiratorial agreement beyond a reasonable doubt where one factor alone might fail.

Jones , 874 A.2d at 121-22. The trial court found the evidence sufficient, hold ing that the aforementioned evidence made clear that it was Appe llant and Jackson’s intent to possess the heroin with the purpose of se lling it, which possession

constitutes an overt act in furtherance of that con spiracy. Trial Court Opinion, 3/10/2016, at 7. Moreover, the court note d that the jury found incredible Jackson’s testimony that Appellant had n othing to do with selling

heroin. Id. At trial, Jackson admitted that he had previously pled guilty to conspiring with Appellant to sell the heroin recove red in Room 313. Id. “[I]t is for the fact-finder to make credibility determin ations, and the finder of fact may believe all, part, or none of a witness’s testi mony.” Commonwealth v. Thompson , 934 A.2d 1281, 1285 (Pa. Super. 2007). It is wel l-established that, in evaluating a sufficiency of the evidence c hallenge, “[t]his Court may not weigh the evidence or substitute its judgment o r that of the factfinder.”

Commonwealth v. Hacker , 959 A.2d 380, 388–89 (Pa. Super. 2008) (internal citations omitted). Accordingly, we find that the evidence was

sufficient to establish each of the elements of cri minal conspiracy. See

Jones , 874 A.2d at 122. Based on the foregoing, we affi rm Appellant’s judgment of sentence. Judgment of sentence affirmed.J-S57034-16

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 8/12/2016