J-A16023-19

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JULIAN VINCENT CROSBY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1793 MDA 2018

Appeal from the Judgment of Sentence Entered August 20, 2018

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

No(s): CP-18-CR-0000030-2018

BEFORE: LAZARUS, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY MURRAY, J.: FILED JULY 17, 2019

Julian Vincent Crosby (Appellant) appeals from the judgment of 

sentence imposed after a jury convicted him of conspiracy to deliver heroin, 

criminal use of a communication facility, and possession of heroin.1 Upon 

review, we affirm.

The trial court stated:

A summary of the [trial] testimony, in a light most favorable to 

the Commonwealth, shows that Co-Conspirator Barzona had 

contact with [Appellant] earlier in the day on September 1, 2017. 

Co-Conspirator Barzona met [Appellant] in the City of Lock Haven 

at approximately 11:00 a.m., at which time [Appellant] provided 

Co-Conspirator Barzona with heroin to sell while [Appellant] was 

out of town and indicating [Appellant] would provide CoConspirator Barzona with instructions later. Co-Conspirator 

Barzona testified that she received a phone call from [Appellant] 

in the afternoon hours at which time [Appellant] instructed her to 

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1 18 Pa.C.S.A. § 903, 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 7512(a), and 

35 P.S. § 780-113(a)(16). 
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sell Commonwealth Witness Conrad five (5) packets of heroin for 

Fifty—($50.00)—Dollars. Co-Conspirator Barzona testified that 

she followed the instructions by providing Commonwealth Witness 

Conrad with five (5) packets of heroin who, in exchange, provided 

her with Forty-five—($45.00)—Dollars.

While under law enforcement observation, Co-Conspirator 

Barzona placed a phone call to [Appellant] on [Appellant’s] cell 

phone. [Appellant] answered the cell phone at which time CoConspirator Barzona advised that Commonwealth Witness Conrad 

had only given her Forty-five—($45.00)—Dollars instead of the 

agreed upon Fifty—($50.00)—Dollars. [Appellant] told CoConspirator Barzona not to worry about the Five—($5.00)—

Dollars and indicated that he would meet up with Co-Conspirator 

Barzona later. The next morning [Appellant] arrived at CoConspirator Barzona’s home.

Commonwealth Witness Conrad testified that earlier in the 

week he placed a call to [Appellant] inquiring about purchasing 

heroin. [Appellant] told Commonwealth Witness Conrad to call 

the “bitch”, indicating Co-Conspirator Barzona. Commonwealth 

Witness Conrad met up later with Co-Conspirator Barzona and 

gave her Fifty—($50.00)—or Sixty—($60.00)—Dollars for four (4) 

yellow bags and owed money. 

Trial Court Opinion, 12/6/18, at 3-4 (unnumbered).

The jury convicted Appellant of three crimes: conspiracy to deliver 

heroin, criminal use of a communication facility, and possession of heroin. On 

August 20, 2018, the trial court sentenced Appellant to an aggregate 45 to 96 

months of incarceration. Appellant filed a post-sentence motion which the 

trial court denied on October 5, 2018. Appellant filed a timely appeal on 

October 29, 2018. Both the trial court and Appellant have complied with 

Pennsylvania Rule of Appellate Procedure 1925.

Appellant presents four issues on appeal:
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1. WHETHER THE COMMONWEALTH FAILED TO PRODUCE

EVIDENCE TO ESTABLISH ALL OF THE ELEMENTS OF A 

CONSPIRACY TO DISTRIBUTE CONTROLLED SUBSTANCE AND 

POSSESSION OF A CONTROLLED SUBSTANCE?

2. WHETHER THE COMMONWEALTH FAILED TO PRODUCE

EVIDENCE TO ESTABLISH ALL ELEMENTS OF CRIMINAL USE OF A

COMMUNICATION FACILITY?

3. WHETHER THE VERDICT IS AGAINST THE WEIGHT OF THE

EVIDENCE?

4. WHETHER THE COURT ERRED IN ADMITTING INTO EVIDENCE 

A CONSENSUAL TAPE RECORDED CONVERSATION?

Appellant’s Brief at 4.

In his first two issues, Appellant assails the sufficiency of the evidence 

with regard to his conspiracy to deliver heroin and criminal use of a 

communications facility convictions. Our standard of review is well settled:

The standard we apply in reviewing the sufficiency of the evidence 

is whether viewing all the evidence admitted at trial in the light 

most favorable to the verdict winner, there is sufficient evidence to 

enable the fact-finder to find every element of the crime beyond a 

reasonable doubt. In applying the above test, we may not weigh 

the evidence and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances established by 

the Commonwealth need not preclude every possibility of 

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

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

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

drawn from the combined circumstances. The Commonwealth may 

sustain its burden of proving every element of the crime beyond a 

reasonable doubt by means of wholly circumstantial evidence. 

Moreover, in applying the above test, the entire record must be 

evaluated and all evidence actually received must be considered. 

Finally, the finder of fact while passing upon the credibility of 

witnesses and the weight of the evidence produced, is free to 

believe all, part or none of the evidence.
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Commonwealth v. Roberts, 133 A.3d 759, 767 (Pa. Super. 2016) (citation 

omitted).

Appellant argues that the evidence was insufficient to support his 

conspiracy to deliver heroin conviction because the Commonwealth did not 

“produce any evidence that [Appellant] took any affirmative step to assist in 

a drug delivery.” Appellant’s Brief at 8. Appellant asserts that “an addict 

called [Appellant] asking if he knew where he could obtain drugs. As a friendly 

gesture of accommodation, [Appellant] provided the addict of the name of an 

individual who subsequently made a delivery to the addict.” Id. Appellant 

claims that the Commonwealth failed to show any agreement between 

Appellant and Ms. Barzona to deliver the heroin, and no act by Appellant “to 

help achieve the goal of conspiracy.” Id. at 10. Appellant emphasizes that 

the evidence merely shows that his “involvement was [no] more than an 

accommodation to his friend Conrad.” Id. The record does not support this

argument.

The Crimes Code defines conspiracy as follows:

A person is guilty of conspiracy with another person . . . to commit 

a crime if with the intent of promoting or facilitating its 

commission he:

(1) agrees with such other person or persons that they or one or 

more of them will engage in conduct which constitutes such crime 

or an attempt or solicitation to commit such crime; or

(2) agrees to aid such other person or persons in the planning or 

commission of such crime or of an attempt or solicitation to 

commit such crime.

18 Pa.C.S.A. § 903.
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With regard to the delivery of heroin, we have explained:

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). 

“To establish the offense of possession of a controlled substance 

with intent to deliver, the Commonwealth must prove beyond a 

reasonable doubt that the defendant possessed a controlled 

substance with the intent to deliver it.” Commonwealth v. 

Kirkland, 831 A.2d 607, 611 (Pa. Super. 2003), appeal denied,

577 Pa. 712, 847 A.2d 1280 (2004). The intent to deliver can be 

inferred from an examination of the surrounding facts and 

circumstances. Id. (citing Commonwealth v. Conaway, 791 

A.2d 359, 362–63 (Pa. Super. 2002)).

Commonwealth v. Perez, 931 A.2d 703, 707–08 (Pa. Super. 2007).

Circumstantial evidence may provide proof of conspiracy. Id. at 708. 

The conduct of the parties and the circumstances surrounding such conduct 

may create a “web of evidence” linking the accused to the alleged conspiracy 

beyond a reasonable doubt. Id. Additionally:

An agreement can be inferred from a variety of circumstances 

including, but not limited to, the relation between the parties, 

knowledge of and participation in the crime, and the 

circumstances and conduct of the parties surrounding the criminal 

episode. These factors may coalesce to establish a conspiratorial 

agreement beyond a reasonable doubt where one factor alone 

might fail.
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Id. citing Commonwealth v. Jones, 874 A.2d 108, 121–22 (Pa. Super.

2005). “While the Commonwealth is not required to prove a written or express 

agreement, a tacit agreement must be established by reasonable inferences 

arising from the facts and circumstances and not by mere suspicion or 

conjecture.” Perez, 931 A.2d at 708. Circumstances like an association 

between alleged conspirators, knowledge of the commission of the crime, 

presence at the scene of the crime, and/or participation in the object of the 

conspiracy, are relevant when taken together in context, but individually each 

is insufficient to prove a conspiracy. Id. at 708-09.

Instantly, the testimony of Ms. Barzona contradicts Appellant’s claim 

that he and Ms. Barzona did not share an agreement to deliver heroin. Ms. 

Barzona stated that she physically “picked up” heroin from Appellant, who told 

her he was going out of town, and later that day, called Ms. Barzona on her 

land line and instructed her to deliver five packets of the heroin to Scott 

Conrad. N.T., 8/10/18, at 41-42. As the trial court explained, the jury chose 

to believe Ms. Barzona’s testimony, which was sufficient to show that 

Appellant conspired with Ms. Barzona to deliver heroin. Trial Court Opinion, 

12/6/18, at 3 (unnumbered).

With regard to Appellant’s conviction for criminal use of a 

communication facility, Appellant argues that “the evidence fails to establish 

that after Conrad contacted [Appellant,] that [Appellant] contacted Barzona 

to complete the transaction.” Appellant’s Brief at 12. Appellant states “the 
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telephone call evidence testimony of Conrad refutes any suggestion that he 

contacted [Appellant] to arrange a delivery of heroin.” Id. at 12-13. As noted 

by the trial court, Appellant’s argument “is not an accurate representation of 

the Commonwealth’s evidence.” Trial Court Opinion, 12/6/18, at 5 

(unnumbered).

The relevant statute provides:

(a) Offense defined.--A person commits a felony of the third 

degree if that person uses a communication facility to 

commit, cause or facilitate the commission or the attempt 

thereof of any crime which constitutes a felony under this 

title or under the act of April 14, 1972 (P.L. 233, No. 64), 

known as The Controlled Substance, Drug, Device and 

Cosmetic Act. Every instance where the communication 

facility is utilized constitutes a separate offense under this 

section.

* * *

(c) Definition.--As used in this section, the term 

“communication facility” means a public or private 

instrumentality used or useful in the transmission of signs, 

signals, writing, images, sounds, data or intelligence of any 

nature transmitted in whole or in part, including, but not 

limited to, telephone, wire, radio, electromagnetic, 

photoelectronic or photo-optical systems or the mail.

18 Pa.C.S.A. § 7512 (footnote omitted).

Ms. Barzona’s testimony reads, in relevant part, as follows:

[COMMONWEALTH]: Did [Appellant] give you any instructions 

with regard to that heroin?

[BARZONA]: Yes.

. . . 

[COMMONWEALTH]: Did [Appellant] say why he was giving you 

the heroin that particular day?
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[BARZONA]: He was going out of town.

[COMMONWEALTH]: Sometime later that day, did you 

receive a phone call from 

[Appellant]?

[BARZONA]: Yes.

[COMMONWEALTH]: Where were you when you got that call?

[BARZONA]: My house.

[COMMONWEALTH]: What type of phone did you have at the 

time?

[BARZONA]: A land line.

. . .

[COMMONWEALTH]: And did you have caller I.D. on your 

phone?

[BARZONA]: Yes.

[COMMONWEALTH]: So are you sure that when he called you, 

that was him that called you?

[BARZONA]: Yes.

[COMMONWEALTH]: What did [Appellant] tell you in this 

first phone call?

[BARZONA]: He told me that Conrad would be 

calling me to come and get stuff, and 

I’m supposed to meet him and give 

him stuff.

N.T., 8/10/18, at 41-42 (emphasis added).

Based on this testimony, the evidence was sufficient for the jury to find 

that Appellant was guilty of criminal use of a communication facility.
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In his third issue, Appellant assails the weight of the evidence, which 

pursuant to Pa.R.Crim. 607, Appellant preserved in his post-sentence motion, 

and which the trial court subsequently denied. This Court recently reiterated:

When reviewing a challenge to the weight of the evidence, we 

review the trial court’s exercise of discretion. A reversal of a 

verdict is not necessary unless it is so contrary to the evidence as 

to shock one’s sense of justice. The weight of the evidence is 

exclusively for the finder of fact, who is free to believe all, none 

or some of the evidence and to determine the credibility of the 

witnesses. The fact-finder also has the responsibility of resolving 

contradictory testimony and questions of credibility. We give 

great deference to the trial court’s decision regarding a weight of 

the evidence claim because it had the opportunity to hear and see 

the evidence presented. 

Commonwealth v. Roane, 204 A.3d 998, 1001 (Pa. Super. 2019) (citations 

omitted).

In challenging the weight of the evidence, Appellant attempts to impugn 

the trial testimony of Ms. Barzona by referencing the police discovery of heroin 

and drug paraphernalia in Ms. Barzona’s purse, and the fact that Ms. Barzona 

testified to being “an admitted heroin user.” Appellant’s Brief at 13-14. 

Conversely, Appellant references the testimony of Scott Conrad, specifically 

citing Mr. Conrad’s testimony that Appellant “told him to try Barzona” for 

heroin. Id. at 14. Appellant’s weight claim is meritless.

The trial court explained:

[Appellant] is essentially requesting that this Court reassess the 

credibility of the testimony of the witnesses, specifically the coconspirator [Ms. Barzona], and other evidence and determine that 

the overall evidence is contrary to the verdict of guilty.

* * *
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In the instant matter, the jury was free to believe all, part 

or none of the evidence. In the instant matter, the jury chose to 

believe the testimony of the Co-Conspirator, Kimberly Barzona . . 

. 

* * *

Based on the testimony of Co-Conspirator Barzona and 

Commonwealth Witness Conrad, the evidence can certainly not be 

characterized as determinative or incontrovertible. The jury was 

free to accept the testimony of the Commonwealth’s witnesses, 

which it clearly did in the matter at bar. The verdict rendered by 

the jury was clearly not contrary to the weight of the evidence or 

inconsistent with the weight of the evidence. 

Trial Court Opinion, 12/6/18, at 3-5. Upon review, we agree; Appellant’s 

weight claim does not merit relief.

Finally, Appellant takes issue with the trial court’s admission, over 

Appellant’s objection on the basis of relevancy, of the “consensually recorded 

phone call” between Appellant and Ms. Barzona. Appellant’s Brief at 15. 

Appellant recognizes that the admission of evidence “is at the sound discretion 

of the trial court.” Id. However, Appellant argues:

Nowhere in the phone call is there any discussion of Barzona 

making a delivery of heroin or that [Appellant] provided her with 

heroin. The only testimony is that Conrad gave her $45.00 as 

opposed to $50.00.

The telephone call does not make any fact more likely 

believable than not and therefore, the Court erred in permitting 

the Commonwealth to play the consensually recorded 

conversation.

Id. at 16.

The Commonwealth counters that the playing of the recording was 

relevant because it “clearly established the elements of the Criminal Use of a 
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Communication Facility, and assisted in the proof of the elements of the 

Conspiracy to Deliver a Controlled Substance offense.” Commonwealth Brief 

at 8-9. Consistent with the Commonwealth’s position, the trial court opined:

[I]t is also extremely clear that the recorded conversation, which 

was permitted to be played for the jury, was more than relevant 

to the nature of the crimes charged, specifically, Count 2 of the 

Information, Conspiracy to Deliver a Controlled Substance. The 

conversation at issue was conducted under the supervision of law 

enforcement, involved Co-Conspirator Barzona and [Appellant], 

and provided the jury an opportunity to tie together the actions of 

Co-Conspirator Barzona with the instructions of [Appellant] which 

took place in the phone call. [Appellant] specifically responded to 

Co-Conspirator Barzona’s assertion that Commonwealth Witness 

Conrad had shorted [Appellant] by Five—($5.00)—Dollars, 

instructing Co-Conspirator Barzona “don’t worry about the $5.00.”

Trial Court Opinion, 12/6/18, at 5 (unnumbered).

Once again, the trial court’s reasoning is supported by the record. In 

the absence of any error by the trial court, we affirm the judgment of 

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/17/2019