J-A27030-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

FABIAN PABON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2371 EDA 2019

Appeal from the Judgment of Sentence Entered September 22, 2017

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

No(s): CP-51-CR-0006708-2016

BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.: FILED: MARCH 1, 2021

Appellant Fabian Pabon appeals nunc pro tunc from the judgment of 

sentence entered on September 22, 2017, following his convictions for 

possession with intent to deliver a controlled substance (PWID) and 

conspiracy,

1 among other related charges. Appellant challenges the 

sufficiency of the evidence supporting both convictions. He also contends the 

sentencing court failed to consider several mitigating factors, which led to the 

imposition of a manifestly excessive sentence. We affirm. 

The trial court described the facts underlying Appellant’s conviction as 

follows:

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* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 903(a)(1), respectively. 
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On April 30, 2016, Philadelphia Police Sergeant Eric Brooks, an 

experienced narcotics officer, together with other police officers, 

began a surveillance in the 100 block of East Huntingdon Street in 

Philadelphia, an area known for drug sales, after receiving 

information that illegal drug-related activity was occurring in the 

100 block of East Huntingdon Street. From this location inside an 

unmarked police vehicle, which gave him a view of both East 

Huntingdon and Water Streets, Sergeant Brooks observed 

Appellant and a second male named Anibal Sanchez sitting 

together in the 2500 block of Water Street. Soon after 

commencing his surveillance, Sergeant Brooks observed a woman 

later identified as Samantha Hilton walk up to Appellant and 

Sanchez and briefly spoke to Appellant. The Sergeant then saw 

Ms. Hilton hand Appellant an indeterminate amount of United 

States currency after which Appellant handed Ms. Hilton 

unidentified items that he retrieved from inside the front of his 

sweat pants. Ms. Hilton then left the area and was arrested. 

Police recovered a blue plastic bag with a Superman symbol on it 

containing crack cocaine from her incident to arrest.

After Ms. Hilton departed, Sergeant Brooks saw Appellant walk to 

a residence located at 108 East Huntingdon Street and enter it. 

He remained inside for no more than five minutes and upon exiting 

the residence, he walked over to Mr. Sanchez. Appellant spoke 

briefly with Sanchez and handed him unknown objects. Appellant 

then left the area and was not seen again by the sergeant.

After Appellant departed, Sanchez engaged in two transactions 

with . . . Michael McDermott and . . . Larissa Baynard that were 

similar to the one Appellant previously engaged in with Hilton. 

Both McDermott and Baynard were apprehended and were found 

to be in possession of small plastic bags containing crack cocaine 

identical to the one seized from Hilton.

Following the last transactions, Sergeant Brooks ordered 

members of his back up team to arrest Sanchez. When the 

officers approached Sanchez he ran inside of 2539 Water Street 

where he was apprehended. Police found in his possession four 

plastic bags each of which had Superman symbols on it and 

$61.00 that were identical to the symbols on the other bags seized 

from Hilton, McDermott, and Baynard.

Prior to April 30, 2016, specifically on April 22, 2016, Sergeant 

Brooks assisted in a drug surveillance approximately a mile from 
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Water and East Huntingdon Streets that culminated in the arrest 

of Jamul Alomar’s brother and another male. Incident to these 

arrests, police seized . . . [b]ags of crack cocaine that had 

Superman symbols on them. 

On May 3, 2016, during the early evening, Philadelphia Narcotics 

Officer Jason Seigafuse began a surveillance in the area of the 100 

block of East Huntingdon Street. Officer Seigafuse observed 

Appellant exit 108 East Huntingdon Street and engage in a 

transaction with a white male that involved the exchange of small 

items for United States currency. Subsequent thereto, Officer 

Seigafuse saw [A]ppellant exit 108 East Huntingdon Street and 

leave the area on foot. Officer Seigafuse indicated that police did 

not stop Appellant because the investigation, which involved drug 

sales in the area was still occurring.

He also observed another male named Khlid Konce enter and exit 

east 108 East Huntingdon Street and engage in drug related 

activity. Konce was stopped and recovered from him . . . eight 

bags stamped with a Superman symbol on them.

Finally, Officer Seigafuse observed Alomar leave 108 East 

Huntingdon Street and drive away. Police stopped him and 

recovered pills, powder cocaine, United States currency, and a key 

for 108 East Huntingdon Street.

Based on the foregoing activities, police obtained a search warrant 

for 108 [E]ast Huntingdon Street. It was executed on May 4, 

2016, and resulted in the seizure of $4,499.00, numerous packets 

filled with crack cocaine stamped with . . . Superman symbols that 

resembled the bags recovered from Konce, a digital scale, plastic 

bags, a tally sheet, correspondence for Alomar, and approximately 

176 grams of uncut cocaine. 

Officer Seigafuse . . . obtained an arrest warrant for Appellant

[and p]olice arrested Appellant on May 18, 2016.

Trial Ct. Op., 11/15/19, at 2-4 (record citations omitted).

Following his arrest, Appellant filed a motion to suppress, which the trial 

court denied. He then proceeded to a stipulated bench trial incorporating the 
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preliminary hearing and suppression records.2 The trial court found Appellant 

guilty of PWID and conspiracy as well as other related offenses.3 The trial 

court sentenced Appellant within the standard range of the sentencing 

guidelines to an aggregate term of three to six years’ incarceration, followed 

by four years’ probation. 

Appellant filed a motion for reconsideration of his sentence, arguing his 

sentence was excessive. The trial court denied the motion. Appellant did not 

file a notice of appeal.

On July 6, 2018, Appellant filed a pro se Post Conviction Relief Act

(PCRA)4 petition. The PCRA court appointed counsel, who filed an amended 

petition seeking the reinstatement of Appellant’s direct appeal rights. The 

PCRA court issued an order restoring Appellant’s direct appeal rights nunc pro 

tunc. Appellant thereafter filed a notice of appeal, and the trial court directed 

Appellant to file a Pa.R.A.P. 1925(b) statement. Appellant complied and 

timely filed a 1925(b) statement. The trial court filed a responsive opinion. 

Appellant presents two issues for our review:

1. Whether the verdict was insufficient as a matter of law, due to 

the inconsistency and insufficiency of testimony, and whether the 

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2 See N.T. Trial, 4/6/17, at 16. Appellant was tried along with his codefendant, Jamil Alomar.

3 Appellant was also convicted of intentional possession of a controlled 

substance, 35 P.S. § 780-113 (a)(16), and possession of drug paraphernalia, 

35 P.S. § 780-113 (a)(32). However, the trial court did not impose further 

penalty on these convictions. 

4 42 Pa.C.S. §§ 9541-9546.
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elements of the crime were sufficiently proven given the facts 

alleged at trial? 

2. Whether the [trial c]ourt erred in denying the Motion to 

Reconsider as the sentence imposed was unreasonable and 

manifestly excessive?

Appellant’s Brief at 8.

Appellant’s first issue challenges the sufficiency of the Commonwealth’s 

evidence to support his conviction for PWID. Specifically, Appellant argues 

the Commonwealth failed to establish actual possession because police did not 

recover a controlled substance from his person. See Appellant’s Brief at 22. 

Appellant also highlights the fact that police did not arrest him immediately 

after he was allegedly seen selling drugs. See id. Lastly, Appellant asserts 

that the Commonwealth failed to present sufficient evidence linking him to the 

residence at 108 East Huntingdon Street, because he did not have a key to 

the residence on his person and there was no evidence that he resided there. 

Id. 

When determining whether evidence is sufficient to sustain a conviction, 

our standard of review is well-settled: 

A claim challenging the sufficiency of the evidence is a question of 

law. Evidence will be deemed sufficient to support the verdict 

when it establishes each material element of the crime charged 

and the commission thereof by the accused, beyond a reasonable 

doubt. Where the evidence offered to support the verdict is in 

contradiction to the physical facts, in contravention to human 

experience and the laws of nature, then the evidence is insufficient 

as a matter of law. When reviewing a sufficiency claim the court 

is required to view the evidence in the light most favorable to the 

verdict winner giving the prosecution the benefit of all reasonable 

inferences to be drawn from the evidence.
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Commonwealth v. Kendricks, 30 A.3d 499, 508 (Pa. Super. 2011) (citation 

omitted). 

In drug possession cases, the Commonwealth must prove that a 

defendant knowingly or intentionally possessed a controlled substance. See 

35 P.S. § 780-113(a)(30); see also Commonwealth v. James, 46 A.3d 776, 

779-80 (Pa. Super. 2012). The Commonwealth can establish possession by 

“proving actual possession, constructive possession, or joint constructive 

possession.” Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa. Super. 2018) 

(citation and quotation marks omitted), appeal denied, 202 A.3d 42 (Pa. 

2019).

Where a defendant is not in actual possession of the prohibited 

items, the Commonwealth must establish that the defendant had 

constructive possession to support the conviction. Constructive 

possession is a legal fiction, a pragmatic construct to deal with the 

realities of criminal law enforcement. We have defined 

constructive possession as conscious dominion, meaning that the 

defendant has the power to control the contraband and the intent 

to exercise that control. To aid application, we have held that 

constructive possession may be established by the totality of the 

circumstances.

It is well established that, as with any other element of a crime, 

constructive possession may be proven by circumstantial 

evidence. In other words, the Commonwealth must establish 

facts from which the trier of fact can reasonably infer that the 

defendant exercised dominion and control over the contraband at 

issue. 

Id. at 36-37 (citations, brackets, and quotation marks omitted).

“[T]he power and intent to control the contraband does not need to be 

exclusive to the defendant,” as “constructive possession may be found in one 
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or more actors where the item [at] issue is in an area of joint control and 

equal access.” Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa. Super. 

2014) (en banc) (citation omitted).

For the Commonwealth to prove constructive possession where 

more than one person has access to the contraband, the 

Commonwealth must introduce evidence demonstrating either 

[the defendant’s] participation in the drug related activity or 

evidence connecting [the defendant] to the specific room or areas 

where the drugs were kept. However, [a]n intent to maintain a 

conscious dominion may be inferred from the totality of the 

circumstances . . . [and] circumstantial evidence may be used to 

establish a defendant’s possession of drugs or contraband. 

Id. (citations and quotation marks omitted).

“To sustain a conviction for [PWID], the Commonwealth must establish 

the defendant knowingly or intentionally possessed a controlled substance 

without being properly registered to do so, with the intent to . . . deliver it.” 

Commonwealth v. Dix, 207 A.3d 383, 390 (Pa. Super. 2019) (citations 

omitted), appeal denied, 217 A.3d 790 (Pa. 2019); see also 35 P.S. § 780-

113(a)(30). 

Here, the trial court addressed the evidence supporting Appellant’s 

PWID conviction as follows:

Drawing all inferences in favor of the Commonwealth, as the law 

requires, it is clear that the evidence was sufficient to sustain the 

verdict finding Appellant guilty of the charge of PWID. Appellant 

was twice observed handing off small objects filled with what later 

was learned was crack cocaine in exchange for United States 

currency, activity which was indicative of drug dealing. In 

addition, police observed Appellant going into and exiting a 

residence that clearly was the site of a drug operation and then 

was observed handing items to Sanchez who was found to be in 
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possession of small bags identical to the ones Appellant 

exchanged for United States currency with two drug purchasers.

Given the foregoing, the fact that Appellant was not found in 

possession of drugs, was arrested two weeks after the drug sales 

he made were consummated, and the other factors Appellant 

claims makes the evidence insufficient are irrelevant for purposes 

of a sufficiency analysis, which, as noted, requires reviewing the 

evidence in a light most favorable to the Commonwealth. 

Applying that standard, it is clear that the evidence was sufficient 

to sustain the PWID charge and is suggested that Appellant be 

denied relief with respect to that claim. 

Trial Ct. Op. at 7.

Here, as discussed above, Sergeant Brooks and Officer Seigafuse both 

observed Appellant engage in the sale of crack cocaine. See N.T. Prelim. Hr’g, 

3/28/17, at 9-10. Sergeant Brooks testified that on April 30, 2016 he 

observed Appellant accepting money from Hilton in exchange for small items. 

See id. at 9-10. Appellant then spoke briefly with Sanchez and handed him 

unknown objects. See id. at 10. Immediately following the interaction, police 

arrested Sanchez and recovered Ziploc bags, containing crack cocaine that 

were similar to the one Appellant gave Hilton. See id. at 10-11. 

In addition, Officer Seigafuse testified that on May 3, 2016 he observed 

Appellant speaking with an unknown male, enter the residence at 108 East 

Huntingdon Street, and then return to pass small items to the unknown buyer

in exchange for money. See id. at 28-29. A search warrant executed at 108 

East Huntingdon Street, subsequent to the sale, resulted in the recovery of 

scores of Ziploc bags of crack cocaine and money. See id. at 31-32. The fact 

that police did not arrest Appellant immediately thereafter is of no 
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consequence. Accordingly, we conclude there was sufficient evidence to 

establish that Appellant had possession and control over the narcotics found 

on Hilton and those recovered from the residence at 108 East Huntingdon 

Street. See Vargas, 108 A.3d at 868. 

Viewing all of the evidence and the inferences drawn from the evidence

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

agree with the trial court that there was sufficient evidence to find that 

Appellant possessed crack cocaine with the intent to distribute it. Therefore, 

we conclude that the evidence was sufficient to sustain Appellant’s PWID 

conviction. See Kendricks, 30 A.3d at 508. 

Appellant also argues that the evidence was insufficient to support his 

conviction of conspiracy. See Appellant’s Brief at 22. 

A conspiracy conviction requires the Commonwealth to establish “that 

the defendant (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.” Commonwealth v. 

McCall, 911 A.2d 992, 996 (Pa. Super. 2006) (citation omitted).

The essence of a criminal conspiracy is a common understanding, 

no matter how it came into being, that a particular criminal 

objective be accomplished. Therefore, a conviction for conspiracy 

requires proof of the existence of a shared criminal intent. An

explicit or formal agreement to commit crimes can seldom, if ever, 

be proved and it need not be, for proof of a criminal partnership 

is almost invariably extracted from the circumstances that attend 

its activities. Thus, a conspiracy may be inferred where it is 

demonstrated that the relation, conduct, or circumstances of the 

parties, and the overt acts of the co-conspirators sufficiently prove 
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the formation of a criminal confederation. The conduct of the 

parties and the circumstances surrounding their conduct may 

create a web of evidence linking the accused to the alleged 

conspiracy beyond a reasonable doubt. Even if the conspirator 

did not act as a principal in committing the underlying crime, he 

is still criminally liable for the actions of his co-conspirators in 

furtherance of the conspiracy.

Id. at 996-97 (citation omitted). 

The trial court addressed Appellant’s second sufficiency claim as follows:

[The] evidence showed that Appellant interacted with several 

persons clearly involved in a drug selling operation. In addition, 

on April 30, 2016, police observed Appellant enter 108 East 

Huntingdon Street, the site of a drug operation, and exit it within 

five minutes at which time he handed Sanchez small items. 

Sanchez was thereafter arrested and found in possession of bags 

that resembled the one Appellant gave Hilton. Clearly, there was 

an agreement [between Appellant and his co-conspirators] to 

engage in drug related activity and overt acts. . . . and, therefore, 

it is suggested that Appellant’s claim with respect to this issue be 

denied.

Trial Ct. Op. at 8-9.

In viewing the evidence in the light most favorable to the 

Commonwealth, we agree with the trial court that the evidence presented was 

sufficient to convict Appellant of criminal conspiracy. The testimony at the 

preliminary hearing established that there was a criminal agreement between 

Appellant and Alomar. See N.T. Prelim. Hr’g, 3/28/17, at 28-30, 31-32, 38. 

Police observed Appellant entering and exiting Alomar’s 108 East Huntingdon 

Street residence, where police officers later recovered cash and scores of 

Ziploc bags of crack cocaine. See id. at 31-32, 38. Appellant also actively 

participated in Alomar’s drug-selling enterprise by selling crack cocaine to 
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various individuals. See id. at 9-10, 29-30. As such, it was reasonable for 

the trial court to infer that Appellant conspired with Alomar to engage in the 

sale of crack cocaine. See McCall, 911 A.2d at 996-97. Hence, Appellant’s 

first issue fails. See Kendricks, 30 A.3d at 508. 

Appellant next challenges the discretionary aspects of his sentence and 

argues that his sentence is manifestly excessive. See Appellant’s Brief at 19. 

He faults the trial court for failing to adequately examine mitigating evidence 

such as his background, character, and rehabilitative efforts. See id. 

Appellant contends that such evidence would have shown that he deserved a 

reduced sentence. See id. at 20. 

“Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to review as of right.” Commonwealth v. Griffin, 65 A.3d 932, 

935 (Pa. Super. 2013) (citations omitted). Before reaching the merits of a 

discretionary aspects issue, this Court must conduct a four-part test to 

determine:

(1) whether the appeal is timely; (2) whether Appellant preserved 

his or her issue; (3) whether Appellant's brief includes a concise 

statement of the reasons relied upon for allowance of appeal with 

respect to the discretionary aspects of sentence; and (4) whether 

the concise statement raises a substantial question that the 

sentence is appropriate under the Sentencing Code.

Commonwealth v. Williams, 198 A.3d 1181, 1186 (Pa. Super. 2018) 

(citation and brackets omitted). “To preserve an attack on the discretionary 

aspects of sentence, an appellant must raise his issues at sentencing or in a 
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post-sentence motion. Issues not presented to the sentencing court are 

waived and cannot be raised for the first time on appeal.” Commonwealth 

v. Malovich, 903 A.2d 1247, 1251 (Pa. Super. 2006) (citations omitted). 

Here, Appellant preserved his sentencing claim in his post-sentence 

motion and timely filed a notice of appeal nunc pro tunc. He also included a 

Pa.R.A.P. 2119(f) statement in his brief. Furthermore, Appellant’s sentencing 

claim raises a substantial question for our review. See Commonwealth v. 

Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en banc) (holding “an 

excessive sentence claim—in conjunction with an assertion that the court 

failed to consider mitigating factors—raises a substantial question” (citation 

omitted)). Therefore, we will address Appellant’s claim. 

Our standard of review is governed by the following principles:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 

of discretion is not shown merely by an error in judgment. Rather, 

the appellant must establish, by reference to the record, that the 

sentencing court ignored or misapplied the law, exercised its 

judgment for reasons of partiality, prejudice, bias or ill will, or 

arrived at a manifestly unreasonable decision.

Commonwealth v. Hoch, 936 A.2d 515, 517-18 (Pa. Super. 2007) (citation 

omitted).

“When imposing sentence, a court is required to consider the particular 

circumstances of the offense and the character of the defendant.” 

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002) (citation 

omitted). “In particular, the court should refer to the defendant’s prior 
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criminal record, his age, personal characteristics[,] and his potential for 

rehabilitation.” Id. (citation omitted). Where the sentencing court had the 

benefit of a presentence investigation report (PSI), we assume the sentencing 

court “was aware of relevant information regarding the defendant’s character 

and weighed those considerations along with mitigating statutory factors.” 

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Moreover, when a 

sentence is within the standard range of the guidelines, Pennsylvania law 

views the sentence as appropriate under the Sentencing Code. See 

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010). 

Here, the trial court addressed Appellant’s sentencing claim as follows:

[I]t is clear that no abuse of discretion occurred here. This [c]ourt 

did review the [PSI], which set forth Appellant’s life history and 

failed attempts to rehabilitate himself and also carefully listened 

to Appellant’s counsel’s recitation of mitigating circumstances that 

counsel believed called for the imposition of a shorter sentence. 

It also heard from Appellant during his exercise of his right of 

allocution that he had a job offer and a new child. Unfortunately 

for Appellant though, in addition to the mitigating evidence 

presented, this [c]ourt also heard that Appellant had been 

arrested while awaiting sentencing in this case. That fact 

convinced this [c]ourt that all of the assertions indicating that 

Appellant had turned his life around and could lead a law-abiding 

life if given a chance to, were not credible and that appellant posed 

a danger to the citizens of Philadelphia that only could be 

mitigated by the imposition of a lengthy period of incarceration.

Finally, Appellant’s sentence was not excessive in light of the 

seriousness of the underlying criminal matter, which concerned 

his participation in a sophisticated drug selling operation. 

Moreover, Appellant’s criminal conduct herein and in his other 

criminal matters established to this [c]ourt that Appellant had had 

many other opportunities to turn his life around and did not do so. 

Simply put, his criminal record and his arrest while awaiting 

sentence manifested that he was disposed to continue to commit 
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crimes and that the only way to see that he was no longer 

engaging in criminal activity was to incarcerate him for a 

significant period of time. Accordingly, because the foregoing 

discussion shows that this [c]ourt considered all relevant factors 

in deciding upon Appellant’s sentence, it is submitted that no 

abuse of discretion occurred and that the judgment of sentence 

should be affirmed. 

Trial Ct. Op. at 10-11. 

Based on our review of the record, we conclude that the trial court did 

not abuse its discretion in imposing Appellant’s sentence. The sentencing 

record confirms the trial court reviewed Appellant’s PSI. See N.T. Sentencing 

Hr’g, 9/22/17, at 4-5. We presume that the trial court considered all 

mitigating factors, including Appellant’s background, character, and 

rehabilitative efforts. See Devers, 546 A.2d at 18. Furthermore, as noted 

by the trial court, Appellant’s sentence was not excessive in light of the 

criminal conduct at issue and his arrest on new charges while awaiting 

sentencing. Therefore, Appellant’s challenge to the discretionary aspects of 

his sentence fails. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/1/21