J-S57020-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

DERRICK PHILLIPS

Appellant No. 388 EDA 2017

Appeal from the Judgment of Sentence dated November 10, 2016

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0002489-2016

BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.: FILED NOVEMBER 17, 2017

Appellant Derrick Phillips appeals from the judgment of sentence 

imposed after he was convicted of possession with intent to deliver a 

controlled substance, possession of a controlled substance, and possession 

of drug paraphernalia.1 We affirm.

On April 5, 2016, at approximately 6:00 a.m., police executed a 

search warrant at the home of Tiesha Spriggs in Chester. The warrant was 

based on Spriggs’ sales of methamphetamines to confidential informants. 

While executing the warrant, police found Appellant in a closet in a bedroom 

on the first floor of Spriggs’ house. Appellant asked what was going on, and 

after being informed that the police were investigating sales of 

methamphetamines, Appellant stated that he had only a small amount of 

cocaine. The closet where Appellant was found contained men’s clothing, 

____________________________________________

1 35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32).
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including a jacket with sixteen bags of cocaine inside weighing a total of 

7.89 grams – nine small blue baggies of cocaine inside a sandwich bag and 

seven larger clear baggies of cocaine. In the first floor bedroom area, police 

also found Appellant’s wallet, containing his driver’s license (which listed a 

different address from Spriggs’), and two cell phones. In Spriggs’ upstairs 

bedroom, police found Apple brand bagging material identical to the bags 

found in the jacket, several razor blades, and a grinder. In the kitchen, 

police found a bag of cocaine weighing 11.35 grams.

After the search, Appellant was charged with possession with intent to 

deliver a controlled substance, possession of a controlled substance, 

possession of drug paraphernalia, and conspiracy to possess with intent to 

deliver a controlled substance.2 

Jury selection in Appellant’s case took place on September 13, 2016. 

During voir dire, Juror 10, who was African American, said she had younger 

brothers and sisters who had been homeless and had been arrested. Juror 

10 said she did not know if her siblings had drug-related problems, and 

added, “But I’ve heard.” She said she would be sympathetic to someone 

“down on their luck,” but not to a defendant merely because he was a 

defendant. N.T., 9/13/16, at 55-57. Juror 16, who was also African 

American, said her first cousin was accused of drug-related crimes three 

times, but said that her cousin’s experiences would not affect her ability to 

____________________________________________

2 Spriggs was charged with the same offenses but was not tried with 

Appellant.
J-S57020-17

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be a fair and impartial juror. Id. at 64.

The Commonwealth used its peremptory challenges to strike, among 

others, Jurors 10 and 16. Appellant claimed that the prosecutor had used 

his peremptory challenges in a racially discriminatory manner in violation of 

Batson v. Kentucky, 476 U.S. 79 (1986). Appellant, who is African 

American, asserted that the prosecutor had used his peremptory strikes to 

eliminate the only two African American jurors remaining after one African 

American venireperson was excused by agreement for a hardship.3 The 

prosecutor argued that he struck Juror 10 because she indicated that her 

brothers and sisters had drug problems and struck Juror 16 because her 

cousin had been charged with drug crimes. The prosecutor explained, 

“Anytime someone has family members closely related that have been 

affected by narcotics and the nature, and the alleged charges in the present 

case are drug-related, I think it bears a fair inference that the person could 

potentially be affected or biased one way or another, Your Honor. And for 

those reasons, those jurors were stricken, Judge.” N.T., 9/13/16, at 104. 

The prosecutor also noted that he struck Caucasian jurors who had relatives 

who had been charged with crimes. Id. at 107-08. The trial court denied 

Appellant’s Batson challenge. The trial court did not explain its rationale at 

that time, but in the opinion it issued after Appellant filed this appeal, the 

trial court explained that it found Appellant established a prima facie case of 

____________________________________________

3 Jury selection was completed before two other African American 

venirepersons were reached. 
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discrimination, the Commonwealth offered a race neutral explanation, and 

Appellant failed to carry his burden of proving purposeful discrimination. 

Trial Ct. Op., 5/15/17, at 11-16.

Appellant was tried by the jury on September 14, 2016. At the trial, 

Detective Steven Bannar and Officer James Nolan, who participated in the 

execution of the search warrant on April 5, 2016, testified. Detective Bannar 

and Officer Nolan averred that that they found Appellant in the ground floor 

bedroom closet and that Appellant said he had a small amount of cocaine. 

Detective Bannar also testified about the drugs and paraphernalia found in 

the jacket and in other parts of Spriggs’ house. Detective Michael Honicker, 

an expert in drugs and drug investigations, opined that packaging of the 

drugs found in the jacket led him to conclude that the cocaine was for 

distribution, not for personal use. Appellant testified that the bedroom in 

which he was found was Spriggs’ son’s room, the jacket in the closet was 

not his, he did not tell the police he had cocaine, and he did not have any 

cocaine. 

The jury found Appellant guilty of all four crimes with which he was 

charged. With regard to the charge of possession with intent to deliver, the 

jury found Appellant possessed the 7.89 grams of cocaine found in the 

jacket, but not the 11.35 grams found in the kitchen. On November 10, 

2016, the trial court imposed the following concurrent sentences: 24 to 60 

months’ incarceration, followed by five years’ probation for possession with 

intent to deliver a controlled substance; 24 to 60 months’ incarceration for 
J-S57020-17

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conspiracy; and one year of probation for possession of drug paraphernalia.4 

On November 18, 2016, Appellant filed a post-sentence motion in which he 

argued that the evidence was insufficient to prove that he committed any of 

the crimes of which he was convicted. On December 13, 2016, the trial 

court granted Appellant’s post-sentence motion with regard to the 

conspiracy charge and denied it with regard to the other charges.

On January 9, 2016, Appellant’s trial counsel filed a timely notice of 

appeal and a petition to withdraw. After the trial court granted the petition 

to withdraw, Appellant’s new counsel filed another notice of appeal on 

January 11, 2016 (254 EDA 2017). This Court dismissed the latter appeal as 

duplicative of the former.

Appellant raises the following issues, as stated in his brief:

1) Whether the judgment of sentence should be vacated and 

Appellant, an African American, granted a new trial since the 

Commonwealth violated Batson v. Kentucky by using 

peremptory challenges to exclude two potential jurors (numbers 

ten and sixteen) based upon their race, especially where these 

strikes eliminated the only two remaining African American 

panelists available to serve on the jury, and the purported raceneutral reasons for striking them were pretextual and 

unsupported by the record?

2) Whether the evidence is insufficient to sustain the convictions 

for possession of a controlled substance with intent to deliver, 

possession of a controlled substance, and possession of drug 

paraphernalia since the Commonwealth failed to prove, beyond a 

reasonable doubt, that Appellant actually or constructively 

possessed the alleged cocaine and paraphernalia at issue herein?

Appellant’s Brief at 5.

____________________________________________

4 The charge of possession of a controlled substance merged with the crime 

of possession with intent to deliver for purposes of sentencing.
J-S57020-17

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Sufficiency of the Evidence

We initially address Appellant’s second claim, challenging the 

sufficiency of the evidence, because a successful sufficiency challenge would 

result in discharge, rather than a retrial. See Commonwealth v. Toritto, 

67 A.3d 29, 33 (Pa. Super.) (en banc), appeal denied, 80 A.3d 777 (Pa. 

2013). 

We apply the following well-established standard of review:

A claim challenging the sufficiency of the evidence presents a 

question of law. We must determine whether the evidence is 

sufficient to prove every element of the crime beyond a 

reasonable doubt. We must view evidence in the light most 

favorable to the Commonwealth as the verdict winner, and 

accept as true all evidence and all reasonable inferences 

therefrom upon which, if believed, the fact finder properly could 

have based its verdict.

Commonwealth v. McFadden, 156 A.3d 299, 303 (Pa. Super.) (citation 

omitted), appeal denied, No. 118 EAL 2017, 2017 WL 3600378 (Pa., Aug. 

22, 2017).

Appellant challenges only the element of possession, which is common 

to all three charges of which he was convicted.5 Possession may be actual 

____________________________________________

5 Appellant was found to have violated the following provisions of Section 

13(a) of the Controlled Substance, Drug, Device and Cosmetic Act:

The following acts and the causing thereof within the 

Commonwealth are hereby prohibited: . . .

(16) Knowingly or intentionally possessing a controlled or 

counterfeit substance by a person not registered under this act, 

or a practitioner not registered or licensed by the appropriate 

State board, unless the substance was obtained directly from, or 

(Footnote Continued Next Page)
J-S57020-17

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or constructive.

Constructive possession is a legal fiction, a pragmatic construct 

to deal with the realities of criminal law enforcement. 

Constructive possession is an inference arising from a set of 

facts that possession of the contraband was more likely than not. 

We have defined constructive possession as “conscious 

dominion.” We subsequently defined “conscious dominion” as 

“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.

The Commonwealth may sustain its burden by means of wholly 

circumstantial evidence, and we must evaluate the entire trial 

record and consider all evidence received against the defendant.

Commonwealth v. Roberts, 133 A.3d 759, 767–68 (Pa. Super.) (citations 

omitted, some quotation marks omitted, and some formatting altered), 

appeal denied, 145 A.3d 725 (Pa. 2016).

(Footnote Continued) _______________________

pursuant to, a valid prescription order or order of a practitioner, 

or except as otherwise authorized by this act. . . .

(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. . . .

(32) The use of, or possession with intent to use, drug 

paraphernalia for the purpose of planting, propagating, 

cultivating, growing, harvesting, manufacturing, compounding, 

converting, producing, processing, preparing, testing, analyzing, 

packing, repacking, storing, containing, concealing, injecting, 

ingesting, inhaling or otherwise introducing into the human body 

a controlled substance in violation of this act. . . .

35 P.S. § 780-113(a). It is undisputed that cocaine is a controlled substance 

under the statute.
J-S57020-17

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After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Kevin F. 

Kelly, we conclude that there was sufficient evidence presented to establish 

beyond a reasonable doubt that Appellant constructively possessed the 

cocaine and paraphernalia (baggies) found in the jacket. See Trial Ct. Op. 

at 20-26 (finding that the evidence, when viewed in a light most favorable to 

the Commonwealth, was sufficient to prove Appellant’s constructive 

possession, based on Detective Bannar’s and Officer Nolan’s testimony that 

Appellant was hiding in a bedroom closet when they executed the search 

warrant; Appellant was the only person in that bedroom; Appellant told the 

officers he had a small amount of cocaine; and police found cocaine and 

baggies in a jacket in the closet where Appellant had been hiding).

Batson Challenge

Appellant claims the trial court erred in rejecting his Batson challenge 

to the prosecutor’s use of peremptory strikes to exclude two African 

American potential jurors. 

The trial court rejected Appellant’s Batson claim after concluding that, 

although Appellant established a prima facie case of discrimination, the 

Commonwealth offered a race-neutral explanation for its strikes and 

Appellant failed to carry his burden of proving purposeful discrimination. 

Trial Ct. Op. at 11-16.

The Supreme Court of Pennsylvania has explained:
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In Batson, [476 U.S.] at 89, . . . the United States Supreme 

Court held that the federal Constitution’s Equal Protection Clause 

prohibits a prosecutor from challenging potential jurors solely on 

the basis of race. In J.E.B. [v. Alabama, 511 U.S. 127, 129, 

146 (1994)], the High Court extended Batson’s holding to 

encompass challenges on the basis of gender. As we have 

previously explained, the framework for analyzing a Batson

claim involves the following three steps.

First, the defendant must make a prima facie showing that 

the circumstances give rise to an inference that the 

prosecutor struck one or more prospective jurors on 

account of race; second, if the prima facie showing is 

made, the burden shifts to the prosecutor to articulate a 

race-neutral explanation for striking the juror(s) at issue; 

and third, the trial court must then make the ultimate 

determination of whether the defense has carried its 

burden of proving purposeful discrimination. Batson, 476 

U.S. at 97 . . . .

The second prong of the Batson test, involving the 

prosecution’s obligation to come forward with a raceneutral explanation of the challenges once a prima facie 

case is proven, “does not demand an explanation that is 

persuasive or even plausible.” Rather, the issue at that 

stage “is the facial validity of the prosecutor’s explanation. 

Unless a discriminatory intent is inherent in the 

prosecutor’s explanation, the reasons offered will be 

deemed race neutral.”

If a race-neutral explanation is tendered, the trial court 

must then proceed to the third prong of the test, i.e., the 

ultimate determination of whether the opponent of the 

strike has carried his burden of proving purposeful 

discrimination. It is at this stage that the 

persuasiveness of the facially neutral explanation 

proffered by the Commonwealth is relevant.

As we have recently reaffirmed, “a trial court’s decision on the 

ultimate question of discriminatory intent represents a finding of 

fact of the sort accorded great deference on appeal and will not 

be overturned unless clearly erroneous.” Such great deference 

is appropriate and warranted because the trial court, having 

viewed the demeanor and heard the tone of voice of the 

attorney exercising the challenge, is uniquely positioned to make 
J-S57020-17

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credibility determinations. Although the demeanor of the 

attorney exercising the peremptory challenge is often the best 

evidence as to the question of discriminatory intent, the trial 

court should consider the totality of the circumstances before 

making its ruling. Other relevant evidence as to the ultimate 

question of whether the prosecutor exercised purposeful 

discrimination and acted with discriminatory intent includes the 

following: the final composition of the jury, the race or gender 

sensitivity of the case, and any questionable remarks made by 

the prosecutor during jury selection. 

Commonwealth v. Roney, 79 A.3d 595, 618–19 (Pa. 2013) (emphasis in 

original) (most citations omitted).

After a careful review of the record, for the reasons expressed in the 

opinion of the Honorable Kevin F. Kelly, we conclude that the trial court’s 

decision was not clearly erroneous. See Trial Ct. Op. at 14-16 (finding 

prosecutor’s race-neutral explanations for peremptory strikes were credible; 

prosecutor did not make any statements or pose any questions “even 

suggesting, let alone showing an invidious discriminatory motive”; 

prosecutor’s demeanor did not suggest an inappropriate intent; and 

Appellant’s case did not involve a victim of a different race than Appellant).

Appellant argues that two white jurors (numbers 24 and 33) also 

“knew people who had contact with the criminal justice system,” and the 

prosecutor’s failure to strike those jurors constitutes evidence that his 

reasons for striking the African American jurors were pretextual. Appellant’s 

Brief at 19-21. Appellant did not make this argument in the trial court or in 

his Appellate Rule 1925(b) statement of matters complained of on appeal, 

and thus the trial court did not have the opportunity to address it. Even if 
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the argument had been preserved, we would conclude that knowing 

someone who had contact with the criminal justice system is distinguishable 

from having a relative with a drug problem. We are therefore unpersuaded 

by Appellant’s argument.

The parties are instructed to attach a copy of the trial court’s opinion 

of May 15, 2017, to all future filings that reference this Court’s decision.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/17/2017
1 35 Pa.C.S. §780-I I 3(a)(30). 

2 18 Pn.C.S. §903(35 Pa.C.S. §78'0-113(a)(30)). 

3 35 Pa.C.S. §.780-1 l3.(a)(30). 

following: Count 1 - Possession With Intent to Deliver a Controlled Substance;3 Count 2 - 

District Attorney of Delaware County lodged against him a criminal information averring. the 

The Defendant was formally arraigned on May 18, 2016, at which time.the Office of the 

Defendant Phillips for trial court proceedings as to all prosecuted offenses. N.T. 4/21/16. 

and .after the Commonwealth's presentation of evidence, the magisterial district judge held 

On April 21, 2016, a preliminary hearing took place before the magisterial district court 

. . 

offenses. 

substance, 

1 criminal conspiracy to commit possession with intent to de1iver,2 and related 

"Defendant" or "Phillips") with, inter alia, possession with intent to deliver a controlled 

County Criminal Investigation Division, charging Derrick Phillips (hereinafter referred to as 

A criminal complaint was flied on April 5, 2016, by Detective Steven Bannar, Delaware 

Kelly, J, Date: May 15, 2017 

OPlNION. 

A. Sheldon Kovach, Esquire w Deputy District Attorney for the Commonwealth 

Patrick J. Connors, Esquire -Attorney for Derrick Phillips 

DERRICK PHILLIPS -: Superior Court No. 388 EDA 2017 

COMMONWEALTH OF PENNSYLVANIA NO. 2489~16 

IN THE COURT OF COMMON PLEAS OF DELA WARE COUNTY, PENNSYLVANIA 

CRIMIN.AL 

Circulated 10/26/2017 03:52 PM
2 

8 A Joint trial ofthe above-captioned matter; as well as the co-defendant's companion prosecution, Commonwealth 

v. Spriggs, No. 2488-16, was scheduled to commence the week beginning September 12, 2016, before this court. 

Recognizing that co-Defendant Spriggs several days prior had just been arrested in an unrelated matter and the 

possibility that it may have been in her best interests to subsequently negotiate with the Commonwealth acombined 

resolution of this newer prosecution arid the case presently pending before this court (No . .2488-16}, the matter of 

Commonwealth v. Spriggs, No. 2488-16 previously joined with the above-captioned case was continued, .without 

objection, at the request of defense counsel, until October 18, 2016, with the. defense's in Ii mine motion carried until 

that future trial date (October 18, 2016). 

7 At this hearing, defense counsel advised the majority of the claims past advanced via his discovery motion had 

become moot, while the remaining would be resolved during the exclusionary hearing. N.T. 6/29/16, pp.·8-10. 

4 35 Pa.C.S.§780-113(a)(l6}. 

s 35 Pa.C.S. §180-l 13(a)(32). 

618 Pa.C.S: §903(35 Pa.C.S.§780-113(a}(30)}. 

September 14, 2016. 

Defendant's motion seeking separate trials was moot.8 N.T. 9/12/16, p. 5. See also Order dated 

Hearing dated September 7, 2016. On that date (September 12, 2016), the court ruled that the 

court set such a proceeding for September 12, 2016, material to this motion. See Notice of 

September 7, 2016. See Motion for Separate Trials of Defendant dated September 7, 20·16. This 

N.T. 6/29/16, p. 32. 

Defendant Phillips lodged a counseled Motion for Separate Trials of Defendant on 

the defense lawyer came to an agreement material to the Defendant's exclusionary challenge." 

took place. N.T. 6/19/16. At the conclusion of this hearing, the Commonwealth's attorney and 

2016. See Hearing Notice dated June 14, 2016. On June 29, 2016, this past scheduled listing 

This court scheduled a hearing relevant to the Defendant's pretrial motion for June 27, 

Evidence. See. Omnibus Pretrial Motion dated June 14, 2016. 

Relief. TWs omnibus filing included a Motion for Discovery and a Motion for Suppression of 

On June 14, 2016, Defendant Phi11ips lodged a counseled, Omnibus Pretrial Motion for 

Possession of a Controlled Substance;" Count 3 - Possession of Drug Paraphernaliar' and Count 

4 - Criminal Conspiracy to commit Possession With Intent to Deliver a Controlled Substance.6 
3 

14 For sentencing purposes and with counsel's agreement, Count 2 - Possession of a Controlled Substance, 35 

Pa.C.S. §780-l 13(a)(16), was merged into Count I - Possession With Intent to Deliver a Controlled Substance, 35 

Pa.C.S. §780-I I 3(a)qO). N.T. 11/10/16, pp. 3-4. 

15 35 Pa.C.S. §78.0-l 13(a)(30). 

9 35 Pa.C.S. §780-1 I 3(a)(30). 

to 35 Pa.C.S. §780-l 13(a)(16}. 

11 35 Pa.C.S. §780-113(a)(32). 

12 18 Pa.C.S. §903(35 Pa.C.S. §780-l 13(a)(30)). 

IJ Id. 

The court further memorialized its ruling denying .the Defendant's severance motion as moot per 011 order dated 

September 14~ to 16. See also Order dated September 14, 2016, 

Appreciating that the above-named Defendant since the instant matter's commencement and through that time had. 

been incarcerated, as well as relatedly thatdefense counsel was ready to so proceed, the court then called the abovecaptioned case for trial, despite any -su.ch past Commonwealth joinder notification. 

11/10/16. This court then sentenced Defendant Phillips to the following: Count 1 (Possession 

With Intent to Deliver a Controlled Substance(; -A term of twenty-four (24) through sixty (60) 

A sentencing hearing took place before this court on November 10, 2016.14 N.T. 

court scheduled sentencing for November 10, 2016. N.T. 9/14/16, p. 299. 

to undergo a substance abuse evaluation. N.T. 9/14/16, p. 299. See also Pa.RCrim.P. 702. The 

This court as sentencing aids ordered a presentence investigation and directed Defendant Philips 

court heard argument relevant to this motion and denied the same. N.T. 9/14/16, pp. 296-98. 

defense counsel orally proffered a Motion for Judgment of Acquittal material to Count 4 - 

Criminal Conspiracy to commit Possession With Intentto Deliver a Controlled Substance.l'' The 

N.T. 9/14/16, pp. 291-95. See also Jury Verdict. Immediately subsequent to the jury's verdict, 

the following: Count 1 - Possession With Intent to Deliver a Controlled Substance." Count 2 - 

Possession of a Controlled Substance; 1° Count 3 • Possession of Drug Paraphernalia; 11 and Count 

4 - Criminal Conspiracy to commit Possession With Intent to Deliver a Controlled Substapce.12 

(September 14, 2016). N.T. 9/13/16. N.T. 9/14/16. The jury found the Defendant guilty as to 

A jury triaJ commenced on September 13, 2016, and concluded the following day 
I(> 18 Pa.C.S. §903(35 Pa.C.S. §780-1 I 3(a)(30)). 

17 35 {>a.C.S. §780-113(a)(30). . 

18 35 Pa,C.S. §780-l 13(a)(32). 

19 35 P~.c.s. §7&0-113(a)(30). 

20 18 Pa.C.S. §!>03(35 Pa.C.S. §780~113(a)(30)). 

21 61 Pa.C.S. §§4501.et seq. 

22 35 Pa.C.S. §780-113(n)(30). See also Criminal Information Count I. 

23 35 Pa.C.S. §780- J.1.3( a)(32). See. also Criminal Information Count ·3. 

4 

the Defendant's judgment of acquittal application regarding Count 4 - Criminal Conspiracy to 

Controlled Substance,22 as well as Count 3 - Possession of Drug Paraphemalia,23 while granting 

Defendant's motion relevant to his convictions of Count 1 - Possession With Intent to Deliver a 

defense's post-sentence motion. See Order dated December 13, 2016. The court denied the 

On December 13, 2016, this court entered an order denying and granting in part the 

sentence motion hearing as then set commenced and concluded on December 8, 2016. 

relevant to this motion was scheduled. See Hearing Notice dated November 22, 2016. The postDefendant's Post-Sentence Motion dated November 1'8, 2016. On December 8, ~016, a listing 

The Defendant on November 18, 2016, lodged a counseled, Post-Sentence Motion. See 

Certificate ofImposition of Judgment of Sentence. 

reduction incentive conslderation." absent objection. N.T. 11/10/16, pp. 25-27. See also 

conspiracy to commit possession with intent to deliver a controlled substance).20 The Defendant 

was afforded the applicable time served credit and deemed ineligible for risk recidivism 

through sixty (60) months imprisonment at a state penal institution to run concurrently to Count 

1 (possession with intent to deliver a controlled substance);17 and Count 3 (Possession of Drug 

Paraphernalia) 18 - A one (1) year period of state probationary oversight to run concurrent to both 

Count l (possession with intent to deliver a controlled substancej'' and Count 4 (criminal 

probationary oversight to run consecutive to his parole; Count 4 (Criminal Conspiracy to commit 

Possession With Intent to Deliver a Controlled Substance)16 - A term of twenty-four (24) 

months incarceration at a state correctional facility followed by a period of five (5) years state 
26 With the filing of this second appeal notice, the Superior Court dismissed sua sponie the first appeal under 

Superior Court No. 254 EDA 2017, as duplicative of the matter in Superior Court No. 3 88 EDA 2017. See Superior 

Court No. 254 EDA 2017, Order dated February 14, 2017. 

s 

Recognizing the Defendant's now vacated sentence per Count 4 - Criminal Conspiracy to commit Possession with 

Intent to Deliver a Controlled Substance, 18 Pa.C.S. §903(35 Pa.C.S. §780-l 13(a)(30)), was an identical 

incarceration term and imposed wholly concurrent to that of Count 1 (Possession with Iutentto Deliver a Controlled 

Substance, 35 Pa.C.S. §780- I I 3(a)(30)), this court's intended sentencing scheme yet stayed wholly intact and 

resentencing was not needed. Commonwealth v. Serrano, 61 A.3d ·279, 287-88 (Pa.Super, 2013XRemanded for 

resentencing as vacated judgment may have upset sentencing scheme.); Commonwealth v. Carter, 122 A.3d 388, 

393 (2015)(Vacated and remanded when entire sentencing scheme was affected.); and Commonwealth v. Ferguson, 

107 A.3d 206, 213-14, 216 (2015XVacating entire sentence pursuant to Alleyne and remanding for resentencing on 

all counts, where the sentence encompassed both counts subject to mandatory minimum sentencing provisions and 

counts not subject to mandatory minimum sentencing provisions.) See also Certificate of Imposition of Judgment of 

Sentence. 

2i With the setting aside of the Defendant's criminal conspiracy to commit possession with intent to deliver a 

controlled substance conviction (Count 4) and its resultant sentence, the Defendant's aggregate sentence at bar 

remained two (2) through five (5) years lncaroerauon to be served ut n stme corrcctlonal inatitution followed by five 

(5) years consecutive, state probationary oversight. See Certificate of Imposltlon of Judgment of Sentence. 

24 18 Pa.C.$. §903(35 Pa.C.S. §780-113(a)(30)). See also Criminal Information Count 4. 

2017.26 

Connors. See Notice of Appeal dated January I J, 2017. See also Superior Court No. 388 EDA 

On January 11, 2017, the Defendant lodged a second Notice of Appeal via Attorney 

9, 2017. 

Defendant Phillips was eligible for that office's stewardship. See Correspondence dated January 

Connors, Esquire of the Delaware 'County Public Defender's· Office requesting he determine if 

TI1is court on that same date (January 9, 2017) forwarded correspondence to Patrick J, 

254 EDA 2017. 

2017, and Motion to Withdraw as Counseldated January 9, 2017. See also Superior Court No. 

Appeal, as well as. a Motion to Withdraw as Counsel. See Notice of Appeal dated January 9, 

The Defendant's trial attorney contemporaneously lodged on January 9, 2017, a Notice of' 

that offense.24 See Order dated December 13, 2016.25 

commit Possession With Intent to Deliver a Controlled Substance and vacated his sentence as to 
6 

v. Coale, detailed a defendant's initial burden in advancing such an attack as follows: 

the controlling analysis of a Batson claim. The Pennsylvania Supreme Court in Commonwealth 

race .... " Id. 476 U.S. at 89, 106.S.Ct. at 1719: Subsequent caselaw has established and refined 

Protection Clause forbids [a] prosecutor to claim potential jurors solely on account of their 

In Batson, the Supreme Court of the United States recognized that·" . . . the Equal 

each supported by race-neutral reasons. Resultantly, this error assignment is without merit. 

district attorney's exercise of such peremptory challenges was not racially motivated, but were 

and its Pennsylvania appellate court progeny. As the record at bar demonstrates, the assistant 

United States Supreme Court decision, Batson v. Kentucky, 416 U.S. 79, 106 S.Ct. 1712 (1986), 

American jurors were not based on racially neutral justifications and thus in violation of the 

Commonwealth's use of two (2) peremptory challenges to exclude two (2) potential, AfricanBy this first appellate complaint, the Defendant Phillips advances that the 

I. Tlte iudgme11t of seuteuce should be. vacated a11d Mr; Pl,illips; a11.Africa1t American, should 

be granted a new trial since the Commo11weaftJ, violated Batso11 v. Ke1itt1ckv by usi11g 

peremptory cl1alle11ges to exclude two.pote11tial furors (numbers ten and sixtee11) based upon 

tlieir race, especially where tltese strikes elimi,,aied the 011ly two. r~mainlngAfrican.Americau 

pa11elists available to serve on the i11rv1. a1td tlte purported i'ace-ne11trai reaso11s for strikliig 

tltem were pretextual a11d tmsupporiedhy 'ti,e record. 

complaints statements. See Statement of Matters Complained. 

Defendant Phi1lips via Attorney Connors on February 21, 2017, filed the below appellate 

See Order dated February 2, 2017. 

permitted the trial lawyer (John I-1. Pavloff, Esquire) to withdraw as the Defendant's counsel, 

also Pa.RA.P. 1925(b). This court per a separate oi:der of this same date (February 2, 2017) 

a concise statement of matters complained of on appeal. See Order dated February .2, 2017. See 

By an order of February 2, 2017, this court instructed Defendant Phillips' lawyer to lodge 
S.Ct 1769, 1771 (1.995). Rather, the issue at that stage" ' is the facial validity of the 

Cook supra 597 Pa. at 5861 952 A.2d at 602 quoting Purkett v. Elem, 514 U.S. 765., 767-68, 115 

" ' ... does not demand an explanation that is persuasive, or even plausible.' " Commonwealth v. 

.. Commonwealth v. Cook supra 597 Pa. at 586, 952 A.2d at 602-03. The race-neutral explanation 

652, 680, 108 A.3d 692, 708 (2014) citing Commonwealth v, Cook supra 597 Pa. at 586, 952 

A.2d at 602; and Commonwealth v. Wtlliams supra 602 Pa. at 393, ·980 A.2d at 530 citing 

Kentucky supra 476 U.S. at 93-97, 106 S.Ct. at 1712-23; Commonwealth v. Watkins, 630 Pa. 

Commonwealth v. Harris supra 572 Pa. at 506-07; 817 A.2d at l042-43 citing Batson v, 

neutral explanation. Commonwealth v. Cook supra 591 Pa. at 586, 952 A.2d at 602 quoting 

the burden shifts to the .striking party to provide for the challenged, prospective juror a racesupra 476 U.S. at 97, 106 S.Ct. at 1723. 

Commonwealth v. Uderra, 580 Pa. 492, 509, 862 A.2d 74, 84 (2004) citing Batson v. Kentucky 

from the manner of the prosecution's questions and statements during votr dire examination." 

"[T]he necessary inference may derive from a pattern of strikes against minority jurors or 

Under Batson, once the objecting party makes out a prlma facie case of discrimination, 

Commonwealth v. Cook, 597 Pa. 572, 586, 952 A.2d 5.94, 602 (2008) quoting Commonwealth v. 

Harris, 572 Pa. 489, 506-07, 817 A.2d 1033, 1042~43 (2002) citing Batson v. Kentucky supra 

476 U.S. at 93-97, 106 S.Ct. at l712-23. See also Commonwealth v. Williams, 602 Pa. 360, 393, 

980 A.2d 510, 530 (2Q09). 

To establish a prima facie case of purposeful discrimination ... the 

defendant [must] show that he [i]s a member of a cognizable racial 

group, that the prosecutor exercised a peremptory challenge or 

challenges to remove from the venire members of the defendant's 

race; and-that other relevant circumstances combine [] to raise an 

inference that the prosecutor removed the jurorts) for racial 

reasons. Batson, 476 U.S.. at 96, 106 S.Ct. 1712 ..... 

[F]irst, the defendant must make a prlma facie showing that the 

circumstances give rise to an inference- that the prosecutor struck 

one or more prospective-jurors on account of race; . ·, . 
8 

836 F.2d 1084, 1086 (8th Cir.1987); United States v. David, 803 F.2d 1567, 1571 (11th 

952 A.2d at 607 citing Harrison v. Ryan, 909 F.2d 84, 88 (3d Cir.1990); United States v. Batlle, 

black jurors is not necessarily fatal to the prosecutor's burden .of production." Id. 597 Pa. at 594, 

was struck for a racial reason, ... a prosecutor's failure to explain every peremptory challenge of 

(2006). "[W]hile a defendant can prove a Batson violation by showing that even one black juror· 

at 607 (Emphasis in original.) quoting Rice. v. Collins, 546 U.S. 3-33, 338, 126 s.c. 969, 974 

from, the opponent of the strike.' " Commonwealth v. Cook supra 597 Pa at 593-94, 952 A.2d 

" ' ... the ultimate burden of persuasion regarding racial motivation rests with, and never shifts 

race-neutral explanation for a questioned peremptory strike, it is important to be mindful that 

at 592-593, 952 A.2d at 60~. 

Williams supra 602 Pa. at 396, 980 A.2d at 531-32 citing Commonwealth v. Cook supra 597 Pa. 

possible inability to comprehend the seriousness of the penalty soughr.)." Commonwealth v. 

penalty; the inability to respond appropriately to questions asked; and youth, indicating a 

understand the law; prior exposure to the criminal justice system; reluctance to impose the death 

In determining whether the prosecution has satisfied its burden of producing a 

" ... characteristics that relate to a prospective juror's ability to serve (i.e., 'the inability to 

Kentucky supra 476 U.S. at 98, 106 S.Ct. at 1724. Explanations considered race-neutral include 

be tried.' ., Commonwealth v. Cook supra 597 Pa. at 593, 952 A.2d at 606 quoting Batson v. 

rationale must be " ' ... clear and reasonably specific, as well as related to the particular case to 

New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866 (1991'). The Commonwealth's race-neutral 

602 quoting Purkett v, Elem supra 514 U.S. at 767-768, 115 S.Ct. at 1771 quoting Hernandez v. 

explanation, the reason offered will be deemed race neutral.' " Id. 597 Pa. at 586, 952 A.2d at 

prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's 
9 

supra 597 Pa. at 586, 952 A.2d at 602. "It is at this stage that the persuasiveness of the faciallyCommonwealth v. Watkins supra 630 Pa. at 680, 108 A.3d at 708 citing Commonwealth v. Cook 

A.2d at 602-03 quoting Commonwealth v. Harris supra 572 Pa. at 507, 817 A.2d at 1042-4 3; and 

supra 602 Pa. at 393, 980 A.2d-at 530 citing Commonwealth v, Cook supra 597 Pa. at 586, 95.2 

43 citing Purkett v. Elem supra 514 U.S. at 768, 115 $.Ct. at 1771; Commonwealth v, Williams 

586-87, 952 at 602-03 quoting Commonwealth v. Harris supra 572 Pa. at 507, 817 A.2d at 1042- 

his burden of proving purposeful discrimination.' " Commonwealth v. Cook supra 597 Pa. at 

prong of the test, i.e., the ultimate determination of whetherthe opponent of'the strike has carded 

" 'If a race-neutral explanation is tendered, the trial court must then proceed to the third 

Commonwealth v. Harris supra 572 Pa. at 507, 817 A.2d at 1043 quoting Hernandez v. New 

York supra 500 \J.S. at 365, 111 S.Ct. at 1869. 

Harris previously opined that below: 

In the typical peremptory challenge inquiry, the decisive· question 

will be whether counsel's race-neutral explanation for a 

peremptory challenge should be believed. There will seldom be 

. much evidence bearing on that issue, and the best evidence often 

will be the demeanor of the attorney who exercises the challenge. 

As with the state of mind of a juror, evaluation of the prosecutor's 

state of mind based on demeanor and credibility lies 'peculiarly 

within a trial judge's province.' 

Salient to current considerations, the Pennsylvania Supreme Court in Commonwealth v. 

607. 

whether peremptory challenges were made for racial reasons." Id 597 Pa. at 594, 952 A.2d at 

addition to the prosecutor's explanation, may be probative in the. ultimate determination of 

United States v. Forbes, 8 J 6 F.2d 1006,.1011 Fn. 7 (5th Cir.1987). "Circumstantial evidence) in 

S.Ct. 653, 169 L.Ed.2d 517 (2007); Bui v. Haley, 321 F.3d 1304, 1317 (11th Cir. 2003); and 

Cir.1986); Yee v. Duncan, 463 F.3·d 893, 900 (9th Cir.20'06), cert. denied, 552 U.S. 1043, 128 
10 

court's determination may be overturned on appeal only if it is 'clearly erroneous.' ") citing 

credibility determination with regard to counsel's proffered reasons for a strike. . . . The trial 

trial court. is in the best position to observe the proceedings and so is called upon to make a 

Cockrell supra 537 U.S. at 340, 123 S.Ct. at 1041; Commonwealth v. Smith, 866 A.2d 1138, 

quoting. Commonwealth v. Cook supra 597 Pa. at 587, 952 A.2d at 603 quoting Miller-El v. 

286, 951 A.2d 294 (2008); Commonwealth v. Williams supra 6.02 Pa. at 395, 980 A.2d at 531 

1140 (Pa.Super. 2005)("With regard to appellate review of Batson claims, we recognize that the 

judge ... in assessing the credibility of the neutral reasons for peremptory strikes proffered by the 

Sneed, 587 Pa. 318, 899 A.2d 1067, 1076 (2006)("Batson contemplated a central role for the trial 

Hernandez v. New York supra 500 U.S. at 364, 111 S.Ct.,at 1866. See also Commonwealth v. 

lawyer who exercised them."), abrogated on other grounds by Commonwealth v. Jones, 591 Pa. 

quoting Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 1041 (2003) quoting 

credibility determinations.' " Commonwealth v, Cook supra 591 Pa. at 587, 952 A.2d .at 603 

analyzes only the transcripts from voir dire, is not as well positioned as the trial court is to make 

clearly erroneous.' ... 'Such great deference is necessary because a reviewing court, which 

a finding of fact of the sort accorded great deference on appeal' and will not be overturned unless 

" '[T]he trial court's decision on the ultimate question of discriminatory intent represents 

A.2d at 531-532. 

The totality of the circumstances is reviewed in deciding whether a defendant sufficiently 

established purposeful discrimination. Commonwealth v. Williams supra 602 Pa. at 396, 980 

952 A.2d at 602-03 quoting Commonwealth v. Harris supra 572 Pa. at 489, 817 A.2d.at 1042-43. 

supra 602 Pa. at 393, 980 A.2d. at 530 citing Commonwealth v. Cook supra 597 Pa .. at 586-87, 

neutral explanation proffered by the Commonwealth is relevant." Commonwealth v. Williams 
Commonwealth's attorney proffered that " ... her first cousin had been charged with and 

I J 

to be on our jury panel." N.T. 9/13/16, p. 104. Regarding potential juror No. 16, the 

The prosecutor further advanced "[q]uite frankly, Judge, I don't know what or now [sic]that fact 

impacts the potential juror's decision-making process in this case. Therefore I did not want her 

siblings suffered from drug addictions and thatthey Were "on the streets.". N.T. 9/13/16, p, 104. 

A.2d at 1042-43 citing Batson v. Kentucky supra 476 U.S. at 93-97, 106 S.Ct. at 1712-23; and 

Commonwealth v. Williams supra 602 Pa. at 393, 980 A.2d at 530. 

597 Pa. at 586, 952 A.2d at 602 quoting Commonwealth v. Harris supra 572 Pa. at 506-07, 8"17 

neutral explanation, if any. N.T. 9/13/16, pp. 103w04. See also Commonwealth v. Cook supra 

Commonwealth, the striking party, to provide for the exercising of these challenges a racerace, Commonwealth v. Cook supra 597 Pa. at 585, 952 A.2d at 602, the court turned to the 

The assistant district attorney as to panelist No. w· offered that she had related her 

rise to an inference that the prosecutor struck one (1) or more prospective jurors on account of 

At this point e.primafacie showing having been established by Defendant Phillips giving 

N.T. 9/13/16, p. 1.03. 

Your, Honor, the Batson challenge to make [sic]. I think the 

record will be clear that out of the entire panel there were only five 

I will refer to as dark-skinned jurors, African American perhaps, 

but certainly with dark skin. One of the women may have been 

Hispanic. Two of them were not even reached, #48 and 49. 28 

was excused for a, hardship. The only two remaining African 

. American jurors were stricken by the Commonwealth. That leaves 

none. I make a challenge to that decision. 

at side bar brought to the attention of the court the following: 

Immediately following the seating of the jury, but prior to it being sworn, defense counsel 

&57 A.2d 677 (2004). 

Commonwealth v. Doyen, 848 A.2d 1007, 1013 (Pa.Super, 2004), appeal denied, 579 Pa. 700, 
l2 

citing Commonwealth v. Harris supra 572 Pa. at 507, 817 A.2d at 1042-43; and Commonwealth 

Pa. at 393, 980 A.2d at 530 citing Commonwealth v. Cook 597 Pa. at 586, 952 A.2d at 602-03 

Purkett v. Elem supra 514 U.S. at.768, 115 S.Ct at 1771; Commonwealth v. Williams supra 602 

proving purposeful discrimination.' " Commonwealth v, Cook supra 597 Pa. at 586-86, 952 at 

602-03 quoting Commonwealth v. Harris supra 572 Pa. at 507, 817 A.2d at 1042-43 citing 

" ' ... the ultimate determination of whether the opponent of the strike has· carried his burden of 

Nos. 10 and 16, the trial eourt then proceeded to the third prong of the Barson challenge analysis 

N.T. 9/13/16, pp. 107-08. 

A race-neutral explanation clearly being tendered by the prosecution as to both panelist 

Judge, I struck #14 because he indicated - a Caucasian Individual 

because him and his brother have been charged with DUis. . . . I 

struck #21 because her husband had Aggravated Assault charges. I 

struck #26 because her friend was charged with a crime. . .. Toe 

ethnicity of 26 was also Caucasian. 

other strikes as follows: 

In response to this generalized argument, the Commonwealth's attorney presented his 

Commonwealth's justifications to be persuasive. N.T. 9/13/16, p. 107. 

two (2) potential jurors were in fact not race-neutral and that he did not find the 

reasons, those jurors were stricken, Judge." N.T. 9/13/16, p. 104. 

Defense counsel summarily contended that the prosecution's reasons for excluding the 

person could potentially be affected or biased one way or another, Your Honor. And for those 

alleged charges in the present case are drug-related, I think it bears a fair inference that the 

family members closely related that have been affected by narcotics and the nature, and the 

9/13/16, p. 104. The prosecutor concluded his explanation by stating, "[ajnytime someone has 

convicted of drug charges and again, Judge, I think that's - that can't be minimized." N.T. 
v. Watkins supra 630 Pa. at 680, 108 A.3d at 708· citing Commonwealth v, Cook supra 597 Pa. at 

586, 952 A.2d at 602. The court having concluded that the Commonwealth bed advanced 

sufficient race-neutral reasons as it related to panelists l O and 16 as well as that those 

explanations appeared reasonable and credible in light of the salient record and Defendant 

Phillips thus having failed to carry his. burden of proving purposefu 1 discrimination, his "Batson" 

claim was refused. N.T. 9/13/16, p, 108. 

In light o-f the totality of the material circumstances, the court's decision on the ultimate 

question of discriminatory intent was not "clearly erroneous." Commonwealth v. Cook supra 

597 Pa. at 587, 952 A.2d at603 quoting Miller-El v, Cockrell supra 537 U.S. at 340, 123 S.Ct. at 

1041 quoting Hernandez v. New York supra 500 U.S. at 364, 111 S.Ct. at 1866~ Commonwealth 

v. Smith supra 866 A.2d at 1140 citing Commonwealth v. Doyen supra 848 A.2d at 1013. The 

prosecutor's specific explanations were given moments after the challenged peremptory strikes 

were exercised, and the court, who directly observed the demeanor of the assistant district 

attorney throughout the entire jury selection process, made an express determination that the 

justifications for the peremptory strikes were both credible and race-neutral, Each of the 

explanations offered about these panelists (Nos. 10 and 16) referred to articulated considerations 

that related directly to these prospective jurors' ability to fairly and impartially serve in a, drug 

trial, both individuals have family members suffering from.illicit substance addictions, as well as 

one .(1) relative having been charged and convicted of controlled substance offenses. See 

Commonwealth v. Cook supra 597 Pa. at 592, 952 A.2d at 606 and Commonwealth v. Smith 

supra 866 A.2d at 1140. Further, defense counsel failed to identify any statements and/or other 

acts or omissions by the prosecutor indicating a racial .bias. Commonwealth v, Cook supra 597 

Pa. at 594-595, 952 A.2d at 607. See also N.T. 9/13/16, p. I 07. 
14 

was able to provide various, specific and race neutral explanations. The Commonwealth's 

(Nos. 10 and 16). N.T. 9/13/16, p. 104. For striking the panelists, the assistant district attorney 

the prosecutor proffered to rebut DefendantPhillips' prima facie case related to these panelists 

l 03. This court then listened attentively to tbe explanations by Commonwealth's attorney that 

The court in the matter at bar made a preliminary finding as to potential jurors 10 and 16 

that Defendant had established e primafacie case of purposeful discrimination. N.T. 9/13/16, p. 

586, 952 A.2d at 602. 

Watkins supra 630 Pa. at 680, I 08 A.3d at 708 citing Commonwealth v, Cook supra 597 Pa. at 

Commonwealth v. Harris supra 572 Pa. at 507, 817 A.2d at 1042-43; and Commonwealth v. 

530 citing Commonwealth v. Cook supra 597 Pa. at 586, 952 A.2d at 602-03 citing 

514 {J.S. at 768, 115 S.Ct. at 1771; Commonwealth v, Williams supra 602 Pa. at 393, 980 A.2d at 

Commonwealth v. Harris supra 572 P~. at 5"07, 817 A.2d at 1042-43 ctttng Purkett v. Elem supra 

dispute the persuasiveness of those explanations. Id. 597 Pa. at 586, 952 A.2d at 602 quoting 

prosecution advanced such reasons, the burden returned to Defendant Phillips to reasonably 

Cook supra 597 Pa. at 586, 952 A.2d at 602-03. After such ~ prlma facie showing, once the 

and Commonwealth v. Williams supra 602 Pa. at 393, 980 A.2d at 530 citing Commonwealth v. 

Pa. at 680, l 08 A.3d at 708 cittng Commonwealth v. Cook supra 597 Pa. at S86, 952 A.2d.at 602; 

Kentucky supra 476 U.S. at 93-97, I 06 S.Ct. at 1112.:23; Commonwealth v, Watkins supra 630 

Commonwealth v, Harris supra 572 Pa. at 506-07, 817 A.2d at 1042-43 citing Batson v. 

forthose challenges. Commonwealth v. Cook supra 597 Pa. at 586, 952 A.2d at 602 quoting 

made by the Commonwealth before the prosecution was required to provide race-neutral reasons 

a prima facte case of purposeful discrimination in challenging the certain peremptory strikes 

Under the burden shifting framework of Batson, the Defendant was required to establish 
IS 

27 See 35 Pa.C.S. §§780· l O 1 et seq. 

matter did not involve a specific, individual victim of a differing ethnicity from the Defendant as 

he was tried with several Controlled Substance, Drug, Device and Cosmetic Act27 violations. 

with an inappropriate intent material to jury selection. In addition, unlike most other crimes, this 

seating of the jury, nor did this court note anything about the prosecutor's demeanor consistent 

suggesting, let alone showing an invidious discriminatory motive related to the Commonwealth's 

statements made by the assistant district attorney and/or any other material evidence, even 

Yet, throughout the entirety of the juror selection process the record is devoid ofany questions or 

unavailable thus to be seated, while another for hardship was excused. N.T. 9/13/16, p. 103. 

African-American perhaps" panelists among the venire, two (2) of which were not reached and 

both African-Americans. As offered by defense counsel, there were five (5) "dark-skinned, 

the Commonwealth did exercise peremptory challenges. to strike panelists No. 10 and No. 16, 

Unquestionably, Defendant Phillips is African-American. It is equally uncontroverted 

manner. N.T. 9/13/16, p. 108. 

assistant district attorney exercised his peremptory 'challenges in a racially, discriminatory 

Accordingly, the court concluded the Defendant failed to carry his burden of showing that the 

race-neutral reasons for the exercise of the challenged peremptory strikes. N.T. 9/13/16, p. 108. 

The court determined these explanations offered by the prosecutor to be credible and 

104. 

.could be resultantly biased unfairly prejudicing the prosecution or the defense. N.T. 9/13/16, p. 

involving allegations about the illicit substance, cocaine, these potential jurors (Nos. 10 and 16) 

family members, including homelessness, as well as criminal convictionts), and the present trial 

attorney stated, inter alta, that due to the adverse impacts of controlled substances on immediate 
16 

31 The Defendant in setting forth his possession of a controlled substance, possession with intent to distribute a 

controlled substance, and possession of drug paraphernalia sufficiency appellate complaints does not contend the 

trial evidence failed to establish any of the other clements requisite to establishing as a matter of law these crimes. 

See Statement of Matters Complained NQ. 2. 

28 35 Pa.C.S. §780~l 13(a)(30). 

29 35 Pa.C.S. §780· 113(a}(l 6}. 

30 35 Pa.C.S. §780· l 13(a)(32). 

insufficient as a matter of law to sustain his convictions for possession of a controiled substance 

with intent to deliver,28 possession of a controlled substance," and possession of drug 

paraphemalia." More specifically, the Defendant argues the prosecution did not establish he 

"actually or constructively possessed the alleged cocaine and paraphernalia at issue."31 See 

II. The evidence is insufflcieut to sustain the cotivicti<ms for possession ofa controlled 

substance witldntent to deliver, m,ssessio11 ofa co11trolled substauce. and possessio11 of<lrllJ! 

paraphernalia since the Commo11wettltl, faile<l to pro.ve. beyond a reasonable doubt, that Mr. 

Pftlllips actually or constructively possessed the alleged cocaine a1td parapl1emnlia.at issue. 

A.2d at 1013. 

and Commonwealth v. Smith supra 866 A.2d at 1140 citing Commonwealth v. Doyen supra 848 

340, 123 S.Ct.. at 1041 quoting Hernandez v. New York supra 500 U.S. at 364, 111 S.Ct. at 1866; 

Defendant Phillips via this second error assignment maintains that the trial evidence was 

v, Cook supra 5.97 Pa. at 587, 952 A.2d at 603 quoting Miller-El v. Cockrell supra 537 U.S. at 

and Commonwealth v. Williams supra 602 Pa. at 393, 980 A.2d at 530. See also Commonwealth 

817 A.2d at 1042-43 citing Batson v. Kentucky supra 476 U.S. at 93-97, 106 S.Ct. at 1712-23; 

supra 597 Pa. at 586, 952 A.2d at 602 quoting Commonwealth v, Harris supra 572 Pa. at 506-07, 

sustain defense counsel's Batson grounded objection is meritless, See Commonwealth v. Cook 

pursuant to Batson and its progeny. Defendant Phillips' claim that the court erred in failing. to 

having found the facially-neutral explanations by the Commonwealth to be credibly persuasive 

Commonwealth engaged in purposeful racial discrimination when seating the jurors, the court 

In light of the foregoing, Defendant Phillips failed to carry his burden of proving that the 
Accordingly, these otherwise necessary elements of these crimes will not in this opinion be discussed. See 

Commonwealth v, Veon, 109 A.3d 754, 77S (Pa.Super, 2015), reversed on other grounds, 150 A.3d 435 (Pa. 

2016)(''In order to preserve a challenge to the sufficiency of the evidence on appeal, lite appellant's Rule 1925(b) 

statement must state with speclflcity. tlte element or elements of tile crime upon which lite appella111 alleges tile 

evidence was lmmjJlcie111. Commonwealth v. Garland, 63 A.3d 33!), 344 (Pa.Super. 2013); Commonwealth v. 

Gibbs, 981 A,2d 274, 281 (Pa.Super, 2009). 'Such specificity is of particular importance In cases, where, as here, 

the appellant was convicted of multiple crimes each of which contains numerous elements that the Commonwealth 

must prove beyond ·a reasonable doubt.' "), (Emphasis added.) See also Commonwealth v, M~Cree, 857 A.2d 188, 

192 (Pa.Super, 2004) citing C011!111onwea//h v. Lemon, 80.4 A.2d 34, 37 (Pa.Super .. 200i); Commonwealth v. Selbert; 

799 A.2d 54, 62 (Pa.Super, 2002); and Pa. SSJl (Crim) 16.0J and J6.13(a)(31). 

17 

finder is free to resolve any doubts regarding a defendant's guilt." 'Commonwealth v. Hansley 

The evidence at trial need not '' ... preclude every possibility of innocence, and the fact 

546, 54-9 (Pa.Super. 2003), appeal denied, 515 Pa. 691, 835 A.2d 109 (2003). 

Bullick; 830 A.2d 998, 1000 (Pa.Super. 2003) quoting Commonwealth v. Gooding, 818 A.2d 

Commonwealth v . Jones, 874 A.2d 108, 120-21 (Pa.Super, 2005) quoting Commonwealth v. 

[the court's] judgment for the fact-finder." Commonwealth v. Orr, 38 A.3d 868, 872 (Pa.Super. 

2011) citing Commonwealth v. Hansley, 24 · A.3d 410, 416 (Pa.Super. 2011) quoting 

(1984). A court deciding a sufficiency challenge" ... may not weigh the evidence and substitute 

A.2d 354, 364 (1994) citing Commonwealth v. Calderini, 416 Pa.Super. 25~, 260-61, 61 I A.2d 

206, 207 (1992) citing Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102, 1103 

A.2d 493, 500 (Pa.Super. 2007) and Commonwealth v. Rosario, 438 Pa.Super. 241, 260-61, 652 

crime(s) charged was established beyond a reasonable doubt. Commonwealth v. Patterson, 940 

such supports determine whether a reasonable jury could have found that each element of the 

light most favorable to the Commonwealth and also drawing all rational evidentiary inferences 

In evaluating any type of sufficiency claim, the court must accept the evidence in the 

complaint is meritless. 

Defendant Phillips' challenged convictions to rest 'on legally sufficient evidence. This appellate 

a review of the trial record under the well-settled standard governing such a claim readily reveals 

Statement of Matters Complained, No. 2. Despite his averments and contentions to the contrary, 
18 

2006). See also Commonwealth v. Hansley.supra 24 A.3d at 416. Furthermore, the fact-finder is 

tasked with being the " ... sole judge] ] of the credibility and weight of al) testimony t and is 

supra 940 A.2d at 500 quoting Commonwealth v. Emler, 903 A.2d 1273, 1276-77 (Pa.Super. 

the fact finder is free to believe all, part or none of the evidence." Commonwealth v. Patterson 

certainly free to reject or accept, in whole or part, the testimony of any witness. Pa. SSJI (Crim) 

conviction, it must be remembered "[wjhen evaluating the credibility. and weight of the evidence, 

Commonwealth v. Cox, 546 Pa. 515, 528, 686 A.2d 1279, 1.285 (1996). 

2006) quoting Commonwealth v. Thomas, 867 A.2d 594, 597 (Pa.Super. 2005). See also 

840, 847 (Pa.Super. 2015) quoting Commonwealth v. Harlie, 894 A.2d 800, 803-04 (Pa.Super. 

In deciding whether as a matter of Jaw the trial evidence was sufficient to. sustain a 

crime's requisite element(s) beyond a reasonable doubt. Commonwealth v. Kriegler, 127 A.3d 

combination of inferential evidence links the accused to the criminality and/or establishes the 

applicable to cases where fhe evidence is circumstantial rather than direct, provided that the 

These long established principles of law governing a sufficiency challenge are equally 

1212, 1213 (1986). 

they may not be disturbed." Id. 861 A.2d at 323-24 citing Commonwealth v. Marks, 104 A.2d 

695 A.2d 794, 797 (Pa.Super, 1997). " ... [I]f the record contains support for the convictions, 

Commonwealth v. Davis, 861 A.2d 3 rn, 323 (Pa.Super. 2004) citing Commonwealth v. Coon, 

I 095, 1098 (Pa.Super. 1997) citing Commonwealth v. Mudrick, 510 Pa. 305, 308, 507 A.2d 

conjecture, the Commonwealth need not establish guilt to a mathematical certainty." 

A.2d at 549. Although a conviction must be based on " ... more than mere suspicion or 

Commonwealth v. Bullick supra 830 A.2d at 1000 quoting Commonwealth v. Gooding supra 818 

supra 24 A.3d at 416 quoting Commonwealth v. Jones supra 874 A.2d at 120-.21 quoting 
19 

Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa.Super, 2011) quoting Commonwealthv. Parker, 

847 A.2d 745, 750 (Pa.Super, 2004) quoting Commonwealth v. Thompson, 779 A.2.d 1195, 1199 

The Superior Court has past further elaborated on S'JCh constructive possession: 

Pa. 751, 692 A.2d 563 (1997). 

Constructive possession is a legal fiction, a pragmatic construct to deal 

with the realities of criminal law enforcement. Constructive possession is 

an inference arising from a set of facts that possession of the contraband 

was more likely than not. We have defined constructive possession as 

'conscious dominion.' (citation omitted}. We subsequently defined 

'conscious dominion' as 'the power to control the contraband and the intent 

to exercise that control.' (citation omitted). To aid application, we have 

held that constructive possession may be established by the totality of the 

circumstances. 

appeal denied, 619 Pa. 697, 63 A.3d 1243 (2013) citing Commonwealth v. Kirkland supra 831 

A.2d at 611; Commonwealth v. /011es, 874 A.2d 108, 121 (Pa.Super, 2005) quoting 

Commonwealth v. Haskins, 4SO Pa.Super, 540, 677 A.2d 328, 330 (1996), appeal denied, 547 

201, 469 A.2d 132, 134 (1983); Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super, 2012), 

Commonwealth v. Vargas supra 108 A.3d at 868 citing Commonwealth v. Macollno, 503 Pa. 

611 (Pa.Super, 2003), appeal denied, 577 Pa. 712, 847 A.2d 1280 (2004). See also 

v. Walker, 874 A.2d 667, 677 (Pa.Super, 2005) citing Commonwealth v. Kirkland, 831 A.2d 607, 

the defendant, the Commonwealth is required to prove constructive possession." Commonwealth 

"Where the contraband a person is charged with possessing is not found on the person of 

Pa.Super, 31, 428 A.2d 223, 224 (1981). 

Vargas, lO~ A.3d 8,58, 868 (Pa.Super. 2014) quoting Commonwealth v. Thompson, 286. 

actual, constructive, or joint constructive possession of the contraband." Commonwealth v. 

"In narcotics possession cases, the Commonwealth may meet its burden by showing 

decision may choose what they value and discount what they find unpersuasive. 

2.04. Regarding the offered testimony and other trial evidence; the finder of fact in making a 
20 

Phillips hiding among articles of clothing. N.T. 9/14/16, pp. 31-33, 70. Detective Banner, at 

proceeded to a rear bedroom 011 the first floor where in an open closet they found Defendant 

Literally within seconds after entering the residence, 2507 Bethel Road, several officers 

executed the .magisterial district judge approved search warrant. N.T. 9/14/16, pp. 28-30, 73. 

dressed in plainclothes and wearing bulletproof vests displaying in large letters, "POLICE," 

On April 5, 2016, at 6:00 A.M., Detective Bannar and other law enforcement personnel 

C-1 =Search Warrant Control No. 2016031 OM7 t 02. 

substance and related evidence search. N.T. 9/14/16, pp. 27-28. See Commonwealth Exhibit 

Bannar sought and obtained a warrant for 2507 Bethel Road which authorized a controlled 

methamphetamine. N.T. 9/14/16, p, 25. During the course of this investigation, Detective 

Spriggs, who investigators believed was selling from that home (2507 Bethel Road) 

The detective advised that the focus of their enforcement efforts was an individual. named Tiesha 

sales about the residence located at 2507 Bethel Road, Chester City. N.T. 9/14/16, pp. 24-25. 

police officials in March 2016 were conducting an ongoing investigation regarding illicit drug 

Detective Steven Bannar, Delaware County Criminal Investigation Division, and other 

Defendant Phillips' trial. N.T. 9/14/16. 

Salient to current considerations, the facts summarized infra were credibly established at 

(Pa.Super. 2001), appeal denied, 567 Pa. 760, 790 A.2d 1016 (2001). See also Commonwealth 

v, Hopkins, 67 A.3d 817, 820 (Pa.Super. 2013) quoting Commonwealth v. Brown supra 48 A.3d 

at 430; Commonwealth v. Vargas supra t 08 A.3d at 868 quoting Commonwealth v. Macolino 

supra 503 Pa. at 206, 469 A.2d at 134, and Commonwealth v . Johnson, 61 t Pa. 381, 407, 26 

A.3d 1078, 1093 (2011)~ Commonwealth v. Hutchinson, 947 A.2d 800, 806 (Pa.Super. 2008) 

citing Commonwealth v. Dargan, 897 A.2d 496, 503, 504 (Pa.Super. 2006), appeal denied, 591 

Pa. 671, 916 A.2d 1101 (2007); Commonwealth v. Bricker, 882 A.2d 1008, 1014 (Pa.Super. 

2005) citing Commonwealth v. Petteway, 847 A.2d 713, 716 (Pa.Super. 2004) and 

Commonwealth v. Parker supra 847 A.2d at 750; Commonwealth v. Brown supra 48 AJd at 430 

quoting Commonwealth v. Parker supra 847 A.2d at 750; and Commonwealth v . Jones supra 

874 A.2d at 121 quoting Commonwealth v. Kirkland supra 831 A.2d at 610 citing 

Commonwealth v. Macolino supra 503 Pa. at 206, 469 A.2d at 134. 
21 

trial, absent any qualifications; identified Defendant Phillips as the individual the police found in 

the closet concealed about clothing items. N.T. 9/14/16, pp. 31-32, 33-34. 

The officers removed the Defendant from the closet and "detained him. N.T. 9/14/16, p. 

32. Defendant Phillips then questioned the officers "what was going on," to which Detective 

Bannar " ... explained that Thad numerous buys of methamphetamines out of this house." N.T. 

9/14/16, pp. 32, 72-73. The detective described Defendant Phillips' immediate reply as 0[h]e 

alluded to the fact that he only had cocaine on him, a small amount, ... ." N.T. 9/14/16, p. 32. 

More specifically, Detective Bannar testified the Defendant stated, 111've got a little bit of 

cocaine." N.T. 9/14/16, pp. 33, 73-74. 

While further searching this rear bedroom, the officers discovered a jacket among the 

men's clothing in the closet where the Defendant had just moments before been found hiding. 

N.T. 9/14/16, pp. 36, 37, 69, 71,. 74, 100. Additional examination of this coat produced a cJear 

sandwich bag. N.T. 9/14/16, p, 36. The contents of this bag included seven (7) clear bags and 

nine (9) blue bags, each containing what Detective Bannar described as cocaine. N.T. 9/14/16, 

pp. 36, 100. At trial, Detective Banner Identifled the larger bag and the sixteen (16) small bags. 

N.T. 9/14/16; pp. 37-38. See also Commonwealth Exhibit C-4 - Large bag containing smaller 

bags of cocaine. 

Of-fleer James Nolan, Chester City Police Department, was the first law enforcement 

official during the execution of the search warrant to enter the residence (2507 Bethel Road). 

N.T. 9/14/16, pp. 123, 127. Officer Nolan during trial detailed that the officers continuously 

announced their presence and that they were police authorities as they proceeded into as well as 

throughout the house. N.T. 9/14/16, p. 128. 
22 

32 A proper custodial chaln regarding these recovered bags of cocaine was established vie counsel's stipulation. See. 

Commonwealth Exhibit C-10 - Stipulation. N.T. 9/14/16, pp. 47-48. 

eighty-two (82) hundredths of a gram. N.T. 9/14/16, pp. 44-45. See also Commonwealth 

The nine (9) blue bags also tested positive for cocaine and weighed a total of one (1) gram and 

Commonwealth Exhibit C-8 - Pennsylvania State Police Laboratory Report >- L-16-01905-1. 

grams and seven hundredths (6.07) of a gram. N.T. 9/14/16, pp. 44-45. See also 

controlled substance cocaine and the total weight of the contents of the seven (7) bags was six. 

Police Laboratory Report revealed the seven (7) clear bags tested positive for the Schedule II 

the Pennsylvania State Police.n N.T. 9/14/16, pp. 43~44. The resulting Pennsylvania State 

cocaine. N.T. 9/14/16, pp. 43-44. These bags were subsequently sent for laboratory testing to 

contents were field tested and yielded positive reactions for the Schedule II controlled substance, 

were standing next to each other. N. T. 9114/16, pp. 131-32. 

124, 130~31. Throughout the course of these exchanges, Detective Bannar and Officer Nolan . 

Following the law enforcement officials' recovery of the sixteen (16) baggies, the 

prompting Defendant Phillips to voice that he was in possession of cocaine. N.T. 9/14/16, pp. 

officer recalled Detective Bannar responding police were searching for methamphetamines, 

morning of the arrest. N.T. 9/14/16, pp. 124, no. In reply to the Defendant's question, the 

seconds. N.T. 9/14/16, pp. 129-30. 

aggregate time from when he first saw the Defendant to his being detained was a matter of mere 

· was then taken info custody. N.T. 9/14/16, pp. 128, 129. Officer Nolan testified that the 

the wall and leaning his head out of the same. N.T. 9/14/16, pp, 124, 127-28. The Defendant 

Officer Nolan recounted Defendant Phillips inquiring as to the officers' purpose on the 

however, on more closely examining the closet, he observed Defendant Phillips standing against 

At first glance, Office Nolan did not encounter any individuals in the rear bedroom; 
Exhibit C-8 - Pennsylvania State Police Laboratory Report - L-16-01905-1. The aggregate 

weight of the sixteen (I 6) bags was seven grams and eighty-nine hundredths (7.89) of a gram. 

N.T. 9/14/16, p. 46. See also Commonwealth Exhibit C-8 - Pennsylvania State Police 

Laboratory Rep011- L-16-01905-1. 

Defendant Phillips per this assignment of error advances on appeal that the case record 

was insufficient as a matter of Jaw to establish he possessed any items of contraband and his 

convictions33 must thus be set aside. See Statement ofMatters Complained, No. 2. 

Based on the above-recounted salient facts credibly established at trial; as well as 

accepting the evidence in the' light most beneficial to the prosecution and the reasoned inferences 

flowing from such, Defendant Phillips' sufficiency challenge is meritless. Commonwealth v. 

Patterson supta 940 A.2d at 500 and Commonwealth v. Rosario supra 438 Pa.Super. at 260-61, 

652 A.2d at 364 citing Commonwealth v. Calderini supra 416 Pa.Super, at 260-61, 611 A.2d at 

207 citing Commonwealth v. Jackson supra 506 Pa. at 472- 73, 485 A.2d at 1103. 

On a review . of the totality of the circumstances seen most favorable to the 

Commonwealth, it is without question that the Defendant had 1' ••• the power to control the 

[controlled substance and paraphernalia] and the intent-to exercise thatcontrol," Commonwealth 

v. Cruz supra 21 A.3d at 1253 quoting Commonwealth v. Parker supra 847 A.2d at 750 quoting 

Commonwealth v. Thompson supra 779 A.2d at 1199. See also Commonwealth v. Patterson 

supra 940 A.2d at 500 and Commonwealth v. Rosario supra 438 Pa.Super. at 260-61, 652 A.2d 

at 364 citing Commonwealth v, Calderini supra 416 Pa.Super. at 260-61, 611 A.2d at 207 citing 

Commonwealth v. Jackson supra 506 Pa. at 472h73,-485 A.2d at 1 I 03. 

At the time the search warrant was executed Defendant Phillips was the only individual 

in the rear bedroom and also hidden within the very closet where the controlled substances arid 

3J 35 Pa.C.S. §780- l 13(a)(30); 35 Pa.C.S. §780-1 l 3{a)(J 6); and 35 Pa.C.S. §780-113(a)(32). 

23 
24 

It is not necessary for the various bags of cocaine to have been on the Defendant> s person 

at the time the police detained him to legally prove he possessed the controlled substance and 

paraphernalia (baggies). Commonwealth v. Walker supra 874 A.2d at 677 citing Commonwealth 

v. Kirkland supra 831 A.2d at 611. See also Commonwealth v. Vargas supra 108 A.3d at 868 

citing Commonwealth v. Macolino supra; Commonwealth v. Brown supra 48 A.3d at 430 citing 

Commonwealth v. Kirkland supra 831 A.2d at 611; Commonwealth v. Jones supra 874 A.2d at 

121 quoting Commonwealth v. Haskins supra 450 Pa.Super. at 677 A.2d at 330. Rather, the 

totality of the evidence must demonstrate that Defendant Phillips had " 'the power to control the 

[cocaine and paraphernalia] and the intent to exercise that control.' " Commonwealth v. Cruz 

supra 21 A.3d at 1253 quoting Commonwealth v. Parker supra 84 7 A.2d at 750 quoting 

Commonwealth v. Thompson supra 779 A.2d at 1199. See also Commonwealth v. Hopkins supra 

67 A.3d at 820 quoting Commonwealth v. Brown supra 48 A.3d at 430; Commonwealth v. 

Vargas supra 108 A.3d at 868 quoting Commonwealth v. Macolino supra 503 Pa. at 206, 469 

A.2d at q4, and Commonwealth v. Johnson supra 611 Pa. at 4071 26 A.3d at 1093; 

paraphernalia (baggies) were recovered. N.T. 9/14/16, pp. 31-33, 34, 70, 124, 127-28, 129-30. 

See also Commonwealth Exhibit CA - Large bag containing smaller bags of cocaine. On being 

discovered by the police and advised that · they were looking for methamphetamine, the 

Defendant volunteered that he was in possession of " ... a .little bit of cocaine." N.T. 9/14/16) 

pp. 32, 72-73, 74, 124, 130-32. The police officers found in this same closet only a few 

moments later a jacket which contained in a pocket a large, clear bag which held sixteen (16) 

smaller bags that contained the Schedule lJ control1ed substance, cocaine, the same illicit drug 

Defendant Phillips just told investigators he possessed. N.T. 9/14/16, pp. 36, 37-38, 43-46, 741 

100. 
25 

34 35 Pa.C.S. §780-l 13(a)(30). 

n 35 Pa.C.S. §780-1'13(a)(16). 

36 35 Pa.C.S. §780· 1 l3(a)(32). 

generally Commonwealth v. Patterson supra 940 A.1d at 500 and Commonwealth v. Krieg/er 

supra 127 A.3d at 847 quoting Commonwealth v. Hartle supra 894 A.2d at 903-04 quoting 

Commonw~alth v. Thomas st!J)ra 867 A.2d at 597. 

substance,35 and possession of drug paraphemalia36 convictions are each legally sound. See 

Phillips' possession of a controlled substance with intent to deliver;" possession of a controlled 

Commonwealth, together with the rational inferences such reasonably allows, Defendant 

Based on the foregoing trial evidence, when viewed in the light most favorable to the 

paraphernalia (baggies). Commonwealth v. Cruz supra 21 AJd at 1253 quoting Commonwealth 

v. Parker supra 847 A.2d at 750 quoting Commonwealth v, Thompson. supra 779 A.2d at 1199. 

of law that Defendant Phillips constructively possessed the controlled substance cocaine and 

acknowledged to the. officers· that he was then in possession of cocaine, it was proven as a matter 

seconds before hiding prior to being removed by the police, and he as well verbally 

paraphernalia (baggies) were found in a coat in the closet where Defendant Phillips was only 

the presence and nature of the substance." Pa. SSJI (Crim) 16.02(b)A. As the cocaine and 

A.2d at 134. The trial evidence must also show in its totality the Defendant was " ... aware of 

Kirkland supra 831 A.2d at 610 citing Commonwealth v. Maco lino supra 503 Pa. at 206, 469 

A.2d at 75.0; and Commonwealth v. Jones supra- 874 A.2d at 1.21 quoting Commonwealth v. 

Commonwealth v. Brown supra 48 A.3d at 430 quoting Commonwealth v. Parker supra 847 

Petteway supra 847 A.2d at 716 and Commonwealth v. Parker supra 847 A.2d at 750; 

A.2d at 503, 504; Commonwealth v. Bricker supra 882 A.2d at 1014 citing Commonwealth v. 

Commonwealth v. Hutchinson supra 947 A.2d at 806 citing Commonwealth v. Dargan supra 897 
26 

should be affirmed. 

For all the above reasons, Defendant Phillips' convictions and judgment of sentence 

Ill Co11clusio11 

Commonwealth v. Mudrick supra 510 Pa. at 308, 507 A.2d at 1213. 

861 A.2d at 323-24 citing Commonwealth v. Marks supra 704 A.2d at 1098 citing 

convictions," the decision must remain as the jury concluded. Commonwealth v. Davis supra 

Bu/lick supra 830 A.2d at 1000. If the court finds " ; .. the record contains support for the 

416 quoting Commonwealth v. Jones supra 874 A.2d at 1-20-21 quoting Commonwealth v. 

Commonwealth v. Orr supra 38 A.3d at 872 citing Commonwealth v. Hansley supra 24 A.3d at 

may not weigh the evidence and substitute [the court's] judgment for the fact-finder." 1., 

A.2d at 1276- 77. 

Commonwealth v. Patterson supra 940 A.2d at 500 quoting Commonwealth v; Emler supra 903 

1n reviewing Defendant Phillips' sufficiency challenges to his convictions, the court 

"free to believe all, part or none of the evidence." Pa. SSJI (Crim) 2.04. See also 

The jury as the " . . . sole judge[] of the credibility and weight of all testimony" was