J-A32035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROY GARNETT,

Appellant No. 393 EDA 2016

Appeal from the Judgment of Sentence December 18, 2015

in the Court of Common Pleas of Delaware County

Criminal Division at No.: CP-23-CR-0003841-2015

BEFORE: DUBOW, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED MARCH 27, 2017

Appellant, Roy Garnett, appeals from the judgment of sentence 

imposed on December 18, 2015, following his jury conviction of one count 

each of possession with intent to deliver narcotics (PWID), possession of 

narcotics, and possession of drug paraphernalia,1as well as two counts of 

criminal conspiracy.2 On appeal, Appellant challenges the sufficiency and 

weight of the evidence and certain of the trial court’s evidentiary rulings. 

For the reasons discussed below, we affirm the judgment of sentence.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. §§ 780-113 (a)(30), (16), and (32), respectively. 

2 18 Pa.C.S.A. § 903(a).
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We take the underlying facts and procedural history in this matter 

from the trial court’s April 12, 2016 opinion.

Officer Marc Barag is currently employed as a narcotics 

investigator for the City of Chester Police Department and has 

been so employed since April of 2013 and a member of the 

patrol unit since 2008. Prior to his employment with the City of 

Chester Police, Officer Barag was employed for a year with the 

Folcroft Borough Police Department. 

In his current capacity as a narcotics investigator for 

Chester Police and as a member of the Delaware County Criminal 

Investigative Division, herein “CID” Task Force, Officer Barag 

conducts investigations which include surveillance, debriefing 

informants, as well as routine traffic stops to develop intel 

throughout Delaware County. 

On March 13, 2015, at approximately 2:00 [] p.m., Officer 

Barag was working in the area of the 700 block of Caldwell 

Street, in Chester, Delaware County. Specifically, Officer Barag 

was conducting an undercover investigation by posing as a buyer 

looking to purchase heroin at 721 Caldwell Street.[a] Officer 

Barag was in plain clothes, in an unmarked police vehicle, acting 

as a normal citizen trying to purchase drugs. Officer Barag was 

given a number to text in order to purchase heroin from that 

residence; Officer Barag texted the number asking if he could 

buy heroin. Shortly thereafter, Officer Barag received a phone 

call from a male, with a deep authoritative voice asking who he 

was. Officer Barag recognized the male voice from prior contact, 

as Roy Garnett, herein Appellant. Officer Barag had no doubt 

that the voice was that of Appellant. 

[a] 721 Caldwell Street is owned by Linda Garnett, 

Appellant’s mother.

Although in an undercover location, Officer Barag’s 

vantage point was in close proximity to Appellant during their 

conversations, allowing him to clearly see Appellant. Appellant 

was tall, wearing all black clothing, with a receding hair line and 

braids, in his 30’s (sic). Officer Barag knew it was Appellant 

from prior interactions. 
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When Officer Barag texted Appellant, he observed 

Appellant pull out his phone and begin typing, and a second 

later, Officer Barag received a text message from Appellant. 

During the conversations, Officer Barag observed Appellant 

coming in and out of his residence, 712 Caldwell Street, which is 

across the street from the target location of 721 Caldwell. 

Appellant asked Officer Barag who he was; Officer Barag 

replied: “Mike from Ridley.” Officer Barag told Appellant that he 

wanted: “six bags of heroin for $50.00.” Appellant responded: 

“no, $60.00 but if you wait twenty minutes for me to get it, I’ll 

give you two on top of that for free.” Officer Barag took that to 

mean that he would receive eight bags total for $60.00 if he 

waited. 

After twenty minutes, Officer Barag texted Appellant 

saying, “Yo, it’s been twenty minutes” and Appellant texted 

back, “it’s coming.” 

During the interaction, Officer Barag observed Appellant 

walk from his residence at 712 Caldwell into the target house of 

721 Caldwell and back out. When Officer Barag asked how much 

longer it would be, Appellant, texted him that he “was going to 

get it now.” Shortly thereafter, Officer Barag observed Appellant 

walk out of the target house with Marcus Dennis and get into a 

white Nissan Armada[b] and drive away. Shortly thereafter, 

Appellant arrived back at 712 Caldwell in the same white Nissan 

Armada.

[b] Prior to the day in question, Officer Barag had the 

occasion to see Appellant driving the white Nissan 

[A]rmada several times, as it was registered to his 

girlfriend and then not again after March 13th.

At this point, Appellant was speaking with Officer Barag on 

the phone when Marcus Dennis got on the phone and asked if he 

wanted marijuana instead, to which Officer Barag said no. Then, 

Appellant and Marcus Dennis exited 712 Caldwell and went into 

the target house, 721 Caldwell. Prior to that day, Officer Barag 

observed Appellant and Marcus Dennis together several times on 

Caldwell Street.[] 

At approximately 4:00 [] p.m., Officer Barag advised his 

narcotics unit to proceed into the area by way of a private 
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channel that cannot be picked up on scanners. When the unit 

arrived thirty seconds later, they made entry into the front of 

721 Caldwell, and Officer Barag observed Appellant and Marcus 

Dennis run out of the rear side door which exits off the kitchen 

of the home; Appellant ran across the street and into his 712 

residence. Officer Barag advised the other office[r]s that 

Appellant had fled into his residence across the street. 

Officer Barag left his surveillance post and went into the 

target house, 721 Caldwell Street. Inside the kitchen, Officer 

Barag observed a black century safe, already open, that 

contained numerous new and unused wax paper sleeves 

commonly used to package heroin. Officer Barag was aware of 

the bags because of his capacity as an undercover officer, he 

sees heroin packaged all of the time and has made arrest or 

dealt with heroin in these specific bags hundreds of times. In 

addition to the bags, there was also a stamping kit with various 

stamps and [inkpads], which was also indicative of the drug 

trade because Officer Barag knew that once placed in a bag, 

drugs are then stamped so that the product can be branded and 

separated from the rest. There was also a bowl containing 

heroin residue, a tile containing heroin residue underneath the 

safe. The used bags were stamped with a red smiley face; a red 

[inkpad] and a smiley face stamp were among the stamps 

located. 

After locating the items, Officer Barag went to assist 

Officer William Murphy, a fellow officer with the canine unit of 

the Chester Police Department who had initially gone to the rear 

of the residence. Officer Murphy has been employed as a 

patrolman for Chester City Police Department for the past 

sixteen years, and has been an officer for a total of twenty-five 

years. Officer Murphy and his canine partner tracked Marcus 

Dennis to an abandoned house a few houses to the left from the 

front of 721 Caldwell. Marcus Dennis was located in the 

basement of the abandoned and dilapidated house. As Marcus 

Dennis came up from the basement, Officer Barag went down 

and observed four bags of heroin, each bag containing two 

smaller bags, making it eight total bags of heroin marked with a 

red smiley face stamp. The basement itself was dirty and 

partially frozen; yet the bags were in mint condition. 

While Officer Barag was securing Marcus Dennis, other 

officers went across the street in order to locate Appellant. 
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Sergeant James Nolan, a sergeant in the Narcotics Division, and 

who has been with the Department for nineteen years, was also 

working on March 13th. Sergeant Nolan assisted in executing the 

warrant on 721 Caldwell and then made his way over to 712 

Caldwell in order to locate Appellant. Other officers were let into 

the residence by Appellant’s girlfriend who answered the door; 

they related to Sergeant Nolan that Appellant was not in the 

home. At that point, Sergeant Nolan searched a connecting 

house that appeared to be abandoned, in total disarray. 

Sergeant Nolan pushed in the front door, which revealed a 

messy, dilapidated ruin of an old house. Sergeant Nolan and a 

second officer walked up the rickety staircase to the second 

floor. Sergeant Nolan could see that there was a third floor to 

the residence but no staircase in order to get there; rather, 

there was a hole that was closed off by relatively new drywall, 

which didn't make sense to Sergeant Nolan as the rest of the 

house was falling apart. Sergeant Nolan called for the fire 

department to bring a ladder. As Sergeant Nolan was waiting, 

he observed Appellant’s girlfriend leave 712 [Caldwell] and drive 

away. When Sergeant Nolan was able to climb to the third floor 

he could see that work had been done to it, there was some 

newer drywall and was not as dilapidated as the rest of the 

house. Sergeant Nolan looked out the back window, which 

revealed that the second floor had a dark chocolate colored roof, 

which had white sneaker like footprints in the dust leading to the 

window of Appellant’s house. Sergeant Nolan came down from 

the third floor and went over to Appellant’s residence but no one 

answered the door.

That same day, Officer Barag had occasion to execute a 

search warrant on Marcus Dennis’s vehicle, a Chevy brand car 

that was parked in front of 721 Caldwell Street. Located within 

the vehicle was court paperwork for [Appellant] for March 4, 

2015. 

After March 13th, Appellant was nowhere to be found in the 

area, which was very different from Officer Barag’s prior 

experiences in the area, always seeing Appellant on the 700 

block of Caldwell. Despite Appellant’s best efforts to hide, he 

was eventually picked up on a warrant in May.

A jury trial commenced on November 17, 201[5] and 

concluded on November 18th. The Commonwealth proceeded 

on: Count 1: [PWID]: Heroin; Count 2: Possession of a 
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Controlled Substance: Heroin; Count 3: Possession of Drug 

Paraphernalia; Count 4: Criminal Conspiracy to [PWID] with 

Marcus Dennis; Count 5: Criminal Conspiracy to Possession of a 

Controlled Substance with Marcus Dennis.

The Commonwealth presented testimony from Officer Marc 

Barag, Officer William Murphy, and Sergeant James Nolan who 

testified to the facts as outlined above.

The Commonwealth also presented testimony from Officer 

Matthew Donohue, who is currently employed with the Chester 

City Police Department Narcotics Division. Officer Donohue, 

based on his extensive training and experience, was offered and 

accepted as an expert in illegal drugs, drug distributions, and 

drug investigations.[3] On March 13, 2015, Officer Donohue was 

working in his capacity as a narcotics investigator and had 

occasion to go to 721 Caldwell Street to help with the execution 

of the search warrant. Once inside the home, Officer Donohue 

observed a plethora of drug paraphernalia. Officer Donohue 

explained to the jury the purpose of the wax bags that were 

located and the stamps, and why the safe and bowl tested 

positive for heroin residue. Most notably, Officer Donohue 

explained why these items were possessed with the intent to 

deliver and not for mere possession. Officer Donohue also 

explained the purpose of a “trap house” and [] how 721 Caldwell 

was being used as a trap house to package and sell drugs. In 

conclusion, Officer Donohue opined that all facts taken into 

consideration, the drugs were possessed with the intent to 

distribute. 

With the admission of several exhibits and stipulations, the 

Commonwealth rested. The defense did not present any 

evidence. After deliberating, the jury found Appellant guilty on 

all five counts. 

____________________________________________

3 During voir dire, defense counsel questioned Officer Donohue with respect 

to his expertise “in the weight of heroin[.]” (N.T. Trial, 11/18/15, at 14-15). 

After the trial court found “Officer Donohue to be an expert witness in the 

field of illegal drugs, drug distribution and drug investigation[,]” defense 

counsel then asked that Officer Donohue also be qualified as an expert in 

“weight.” (Id. at 16). The Commonwealth requested a sidebar conference 

and there is nothing further of record with respect to this issue. (See id.).
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On December 18, 2015, [the trial court] sentenced 

Appellant [to an aggregate term of incarceration of not less than 

seventy-two nor more than one hundred and forty-four] months 

in a state correctional facility followed by [eleven] years of 

probation.

On December 23, 2015, Appellant filed a motion to 

reconsider sentence. After oral argument from the parties, [the 

trial court] denied the motion on January [20], 201[6]. 

Appellant filed a timely notice of appeal.[4] [The trial court] 

directed Appellant to file a 1925(b) statement, which counsel 

requested additional time to file. [See Pa.R.A.P. 1925(b)]. [The 

trial court] granted said request and the statement was timely 

filed on March 16, 201[6]. [See id. On April 12, 2016, the trial 

court issued an opinion. See Pa.R.A.P. 1925(a)].

(Trial Court Opinion, 4/12/16, at 1-8) (record citations omitted).

On appeal, Appellant raises the following questions for our review:

A. Did the trial court abuse its discretion by failing to qualify 

Officer Donahue as an expert in illegal narcotics weight, 

where the record supports his experience, knowledge, and 

specialized skills and training would assist the trier of fact in 

understanding the evidence or fact at issue?

B. Did the trial court abuse its discretion by failing to qualify 

Officer Donahue as an expert in illegal narcotics weight thus 

depriving [Appellant] of his right to compulsory process[?]

C. Was the evidence sufficient as a matter of law to convict 

[Appellant] of the possessory offenses ([m]anufacture, 

[d]elivery, or [p]ossession [w]ith [i]ntent to [m]anufacture or 

[d]eliver; [i]ntentional [p]ossession of a [c]ontrolled 

[s]ubstance; and [u]se/[p]ossession of [d]rug 

[p]araphernalia), under the Controlled Substance, Drug, 

Device, and Cosmetic Act, 35 P.S. § 780-113[?]

____________________________________________

4 While the notice of appeal is listed in the docket, we have been unable to 

locate it in the certified record.
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D. Was the evidence sufficient as a matter of law to convict 

[Appellant] of [c]riminal [c]onspiracy under 18 Pa.C.S.A. § 

903?

E. Was the verdict against the weight of the evidence such to 

shock one’s sense of justice?

(Appellant’s Brief, at 4).

Preliminarily, we note it is well-settled that:

[i]f an appellant has properly preserved an issue for 

appellate review, the appellant must include in his or her brief a 

“statement of the case” including a “statement of place of raising 

or preservation of issues.” Pa.R.A.P. 2117(c). This information 

must also be referenced in the argument portion of the appellate 

brief. [See] Pa.R.A.P. 2119(e).

Commonwealth v. Baker, 963 A.2d 495, 502 n.5 (Pa. Super. 2008), 

appeal denied, 992 A.2d 885 (Pa. 2010). Further, “it is not the responsibility 

of this Court to scour the record to prove that an appellant has raised an 

issue before the trial court, thereby preserving it for appellate review.” Id.

at 502 n.6 (citations omitted).

In this case, neither Appellant’s statement of the case nor the 

argument section of his brief contains a specific “statement of place of 

raising or preservation of [his] issues” and it is not this Court’s responsibility 

to scour the certified record, including the lengthy trial transcript, to prove 

that Appellant preserved them. Pa.R.A.P. 2117(c); see Baker, supra at 

502 n.5, n.6; (Appellant’s Brief, at 5-9, 14-33). Accordingly, Appellant’s 

first, second, and fifth issues are waived on this basis. See Baker, supra at 
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502 n.5, n.6. Nonetheless, we will review their merits to the extent it is 

possible to do so.

In his first and second issues,5 Appellant challenges the trial court’s 

alleged refusal to qualify Officer Donohue as an expert in narcotics weight. 

For the reasons discussed below, we find Appellant waived these issues. 

We briefly note:

[o]ur standard of review in cases involving the admission of 

expert testimony is broad: Generally speaking, the admission of 

expert testimony is a matter left largely to the discretion of the 

trial court, and its rulings thereon will not be reversed absent an 

abuse of discretion. An expert’s testimony is admissible when it 

is based on facts of record and will not cause confusion or 

prejudice. 

Commonwealth v. Watson, 945 A.2d 174, 176 (Pa. Super. 2008) 

(quotation marks and citations omitted).

However, we observe that “[i]t is an appellant’s duty to ensure that 

the certified record is complete for purposes of review.” Commonwealth v. 

Reed, 971 A.2d 1216, 1219 (Pa. 2009) (citation omitted). “[A]n appellate 

court cannot consider anything which is not part of the record in the case. . . 

____________________________________________

5 Appellant addresses his first and second questions under a single heading 

in his brief, contrary to our rules of appellate procedure. (See Appellant’s 

Brief, at 14-22); see also Pa.R.A.P. 2119(a) (“The argument shall be 

divided into as many parts as there are questions to be 

argued[.]”). Nonetheless, we will address his issues because this 

discrepancy does not hamper our review. See Donahue v. Fed. Express 

Corp., 753 A.2d 238, 241 n.3 (Pa. Super. 2000).
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. because for purposes of appellate review, what is not of record does not 

exist.” Commonwealth v. Johnson, 33 A.3d 122, 126 n.6 (Pa. Super. 

2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citations and internal 

quotation marks omitted).

In the instant matter, as discussed above, there is little information 

contained in the record with respect to these issues. During crossexamination of Officer Donohue with respect to qualifications, Appellant 

briefly cross-examined him regarding his experience with narcotics weight. 

(See N.T. Trial, 11/18/15, at 14-15). After the trial court qualified Officer 

Donohue as an expert in “illegal drugs, drug distribution and drug 

investigation[,]” defense counsel also requested that he be qualified as an 

expert on “weight as well.” (Id. at 16). The Commonwealth then requested 

a sidebar conference. (See id.). Following the conference, the trial court 

reiterated its previous statement with respect to Officer Donohue’s 

expertise. (See id.). There is nothing further of record with respect to 

these issues.6 Thus, there is no record of the basis for Appellant’s request to 

qualify Officer Donohue as an expert on weight.7 There is nothing that 

____________________________________________

6

In his brief, Appellant admits that the sidebar conference was off the 

record. (See Appellant’s Brief, at 18). 

7 We note that, at trial, Appellant stipulated to the laboratory’s report 

regarding the weight of the drugs. (See N.T. Trial, 11/18/15, at 45-46).

 
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demonstrates that he raised his claims of the exclusion of relevant evidence8

and denial of the right to compulsory process below. The trial court’s ruling 

on these issues is not of record and there is nothing that shows that 

Appellant preserved them for our review. 

Again, we note “our review is limited to those facts which are 

contained in the certified record” and what is not contained in the certified 

record “does not exist for purposes of our review.” Commonwealth v. 

O'Black, 897 A.2d 1234, 1240 (Pa. Super. 2006) (citations omitted). Here, 

because all discussions regarding the qualification of Officer Donohue as an 

expert witness on drug weight are dehors the record, Appellant waived his 

first and second issues on appeal.9 See O’Black, supra at 1240; see also 

Reed, supra at 1219 (finding waiver and declining to review appellant’s 

issue with an incomplete record); Johnson, supra at 126 (declining to 

reach merits of appellant’s issue where it was deemed waived); 

Commonwealth v. Rovinski, 704 A.2d 1068, 1073 (Pa. Super. 1997), 

____________________________________________

8 We have thoroughly reviewed Appellant’s brief on this issue and it is not 

clear, given that Appellant did not challenge the weight of the drugs as 

found by the laboratory report, why he needed the trial court to qualify 

Officer Donohue as an expert on weight. It is also not clear why he believed 

Officer Donohue’s testimony on weight would benefit him. (See Appellant’s 

Brief, at 14-22). 

9 We note that, “[w]here portions of a proceeding are unrecorded, 

appellant’s burden to supply a record may be satisfied through the 

statement in absence of transcript procedures.” Rovinski, infra at 1073 

(citing Pa.R.A.P. 1923). The record reflects that Appellant made no attempt 

to comply with the requirements of Rule 1923. 
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appeal denied, 723 A.2d 1024 (Pa. 1998) (waiving appellant’s claim of 

counsel’s ineffective assistance based on his opening statement where he 

failed to provide transcript of statement in certified record). Accordingly, 

Appellant waived his first two issues. 

 In his third and fourth issues, Appellant claims the evidence was 

insufficient to sustain his conviction. We disagree.

Our standard of review for sufficiency of the evidence claims is well 

settled:

We must determine whether the evidence admitted at trial, 

and all reasonable inferences drawn therefrom, when viewed 

in a light most favorable to the Commonwealth as verdict 

winner, support the conviction beyond a reasonable doubt. 

Where there is sufficient evidence to enable the trier of fact to 

find every element of the crime has been established beyond a 

reasonable doubt, the sufficiency of the evidence claim must fail.

The evidence established at trial need not preclude every 

possibility of innocence and the fact-finder is free to believe all, 

part, or none of the evidence presented. It is not within the 

province of this Court to re-weigh the evidence and substitute 

our judgment for that of the fact-finder. The Commonwealth’s 

burden may be met by wholly circumstantial evidence and any 

doubt about the defendant’s guilt is to be resolved by the fact 

finder unless the evidence is so weak and inconclusive that, as a 

matter of law, no probability of fact can be drawn from the 

combined circumstances.

 

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citation 

omitted) (emphasis added).

Appellant challenges the sufficiency of the evidence with respect to his 

conviction for PWID, possession of a controlled substance, possession of 

drug paraphernalia, and criminal conspiracy. Initially, we note that most of 
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Appellant’s argument disregards our standard of review, which requires that 

we view the evidence in a light most favorable to the Commonwealth as 

verdict winner, because Appellant only discusses the expert testimony of 

Officer Donohue and completely ignores the testimony of the other police 

officers involved in the investigation. (See Appellant’s Brief, at 24-26). 

Further, Appellant overlooks the fact that this Court does not re-weigh the 

evidence nor do we engage in credibility determinations. (See id.). 

We review a challenge to the sufficiency of the evidence underlying a 

conviction for possession of a controlled substance and PWID under the 

following standards. Evidence is sufficient to support a conviction for 

possession of a controlled substance if the Commonwealth shows that the 

defendant, “knowingly or intentionally possessed a controlled or counterfeit 

substance[.]” 35 P.S. § 780-113(a)(16). For the evidence to be sufficient 

to sustain a conviction for PWID, the Commonwealth must prove both that 

Appellant possessed the controlled substance and that he intended to deliver 

the controlled substance. See Commonwealth v. Bostick, 958 A.2d 543, 

560 (Pa. Super. 2008), appeal denied, 987 A.2d 158 (Pa. 2009). All the 

facts and circumstances surrounding the possession are relevant to this 

inquiry. See id. In particular, relevant factors include, but are not limited 

to, “the particular method of packaging, the form of the drug, and the 

behavior of the defendant.” Commonwealth v. Goodwin, 928 A.2d 287, 

292 (Pa. Super. 2007) (citations omitted). Further, we can infer the intent 
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to deliver from the possession of a large quantity of the controlled 

substance. See Bostick, supra at 560. 

Because the police did not find drugs on Appellant’s person, the 

Commonwealth was required to establish that he constructively possessed 

them. This Court has stated that:

[c]onstructive possession requires proof of the ability to exercise 

conscious dominion over the substance, the power to control the 

contraband, and the intent to exercise such control. 

Constructive possession may be established by the totality of the 

circumstances. We have held that circumstantial evidence is 

reviewed by the same standard as direct evidence — a decision 

by the trial court will be affirmed so long as the combination of 

the evidence links the accused to the crime beyond a reasonable 

doubt.

Commonwealth v. Bricker, 882 A.2d 1008, 1014 (Pa. Super. 2005) 

(citations and quotation marks omitted).

Appellant also claims that the evidence was insufficient to sustain his 

conviction for possession of drug paraphernalia. Section 780-113(a)(32) of 

The Controlled Substance, Drug, Device and Cosmetic Act prohibits the 

following acts:

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, ingesting, inhaling or otherwise 

introducing into the human body a controlled substance in 

violation of this act.

35 P.S. § 780-113(a)(32).

Further,
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[i]n determining whether an object is drug 

paraphernalia, a court or other authority should 

consider, in addition to all other logically relevant 

factors, statements by an owner or by anyone in 

control of the object concerning its use, prior 

convictions, if any, of an owner, or of anyone in 

control of the object, under any State or Federal law 

relating to any controlled substance, the proximity 

of the object in time and space, to a direct 

violation of this act, the proximity of the object 

to controlled substances, the existence of any 

residue of controlled substances on the object, 

. . . the existence and scope of legitimate uses for 

the object in the community, and expert testimony 

concerning its use. 

To sustain a conviction for possession of drug 

paraphernalia the Commonwealth must establish that items 

possessed by defendant were used or intended to be used with a 

controlled substance so as to constitute drug paraphernalia and 

this burden may be met by Commonwealth through 

circumstantial evidence. 

Commonwealth v. Little, 879 A.2d 293, 299-300 (Pa. Super. 2005), 

appeal denied, 890 A.2d 1057 (Pa. 2005) (citations omitted, emphasis in 

original).

Lastly, Appellant challenges the sufficiency of the evidence underlying 

his conviction for criminal conspiracy. (See Appellant’s Brief, at 27-30). 

The crime of conspiracy is set forth at 18 Pa.C.S.A. § 903, which provides, in 

relevant part:

(a) Definition of conspiracy.—A person is guilty of 

conspiracy with another person or persons 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 
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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(a). Thus, to sustain a conviction for conspiracy, the 

Commonwealth must prove that:

the defendant (1) entered into an agreement to 

commit or aid in an unlawful act with another person 

or persons, (2) with a shared criminal intent and (3) 

an overt act was done in furtherance of the 

conspiracy. 

Circumstantial evidence may provide proof of the conspiracy. 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.

Commonwealth v. Jones, 874 A.2d 108, 121 (Pa. Super. 2005) (citations 

and some quotation marks omitted). When determining whether the 

evidence was sufficient to support a conviction for conspiracy, we consider 

the following factors: (1) an association between alleged conspirators; (2) 

knowledge of the commission of the crime; (3) presence at the scene of the 

crime; and (4) in some situations, participation in the object of the 

conspiracy. See Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. 

Super. 2002), appeal denied, 805 A.2d 521 (Pa. 2002). Each co-conspirator 

is liable for the acts of the other co-conspirators. See Commonwealth v. 

King, 990 A.2d 1172, 1178 (Pa. Super. 2010), appeal denied, 53 A.3d 50 

(Pa. 2012).
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Here, the record reflects that Officer Barag conducted an undercover 

investigation into the sale of drugs on the 700 block of Caldwell Street. 

(See N.T. Trial, 11/17/15, at 31-32). The investigation focused on the 

house at 721 Caldwell Street, owned by Appellant’s mother. (See id. at 32, 

70). Officer Barag texted a known telephone number seeking to purchase 

heroin. (See id. at 32). A few moments later, Officer Barag received a 

response; he recognized Appellant’s voice from prior contacts. (See id. at 

34-35). Officer Barag also observed an individual he knew to be Appellant 

talking on the phone and responding to texts sent by him. (See id. at 36-

39). During the conversation, Officer Barag observed Appellant walking 

between his residence at 712 Caldwell and 721 Caldwell. (See id. at 39).

After some negotiation, Appellant agreed to sell Officer Barag eight 

bags of heroin for sixty dollars, so long as Officer Barag could wait twenty 

minutes. (See id. at 36-37). When twenty minutes elapsed, the text and 

phone exchanges continued between Appellant and Officer Barag. (See id. 

at 40-42). Appellant assured Officer Barag that he was going to get the 

heroin and Officer Barag observed Appellant and Marcus Dennis drive away 

together in a car owned by Appellant’s girlfriend. (See id. at 40-42, 56-57). 

Officer Barag had seen Appellant drive that car on various past occasions 

and had observed Appellant and Marcus Dennis together in the past. (See 

id. at 56, 59). A few minutes later, during another telephone conversation, 

Marcus Dennis joined in and asked if Officer Barag would be willing to 
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purchase marijuana rather than heroin. (See id. at 41). Officer Barag 

declined and then observed Appellant and Marcus Dennis enter 721 Caldwell. 

(See id. at 42).

The police then entered the residence, and Appellant and Marcus 

Dennis fled out a side door. (See id. at 43-45). The police discovered an 

open safe containing unused wax paper sleeves, commonly used in heroin 

packaging, a stamping kit with various ink stamps, including a red smiley 

face, inkpads, a bowl containing heroin residue, and a tile containing heroin 

residue. (See id. at 45-49). There were no indicia of personal use in the 

house. (See N.T. Trial, 11/18/15, at 19-20). 

The police located Marcus Dennis hiding in the basement of an 

abandoned house a few doors down from 721 Caldwell. (See N.T. Trial, 

11/17/15 at 52-54). The basement of the house was filthy and frozen; 

however, the police found four clean bags of heroin, each bag containing two 

smaller bags, all marked with a red smiley face stamp. (See id. at 52-54, 

183-90). When the police searched a car rented by Marcus Dennis, they 

found legal paperwork belonging to Appellant. (See id. at 57-58). 

 In total, the police found eights bags of heroin, as well as heroin 

residue on the tile and bowl. They found no indicia that the drugs were for 

personal use but rather found materials commonly used for packaging drugs. 

The drugs found with Marcus Dennis in the basement were stamped with 

one of the stamps found in the safe. Appellant’s mother owned the house at 
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721 Caldwell, the police observed both men enter and depart the residence. 

Both men participated in the conversation with Officer Barag about 

purchasing heroin. Based on the packaging and amount of the drugs, the 

absence of paraphernalia for personal consumption, the Commonwealth’s 

expert concluded that the confiscated drugs were possessed with the intent 

to deliver and not for personal use. (See N.T. Trial, 11/18/15, at 25). This 

evidence was more than sufficient to sustain Appellant’s conviction. See, 

e.g., Commonwealth v. Macolino, 469 A.2d 132, 136 (Pa. 1983) (holding 

presence of cocaine and drug paraphernalia in room occupied by both 

husband and wife sufficient to show constructive possession by either 

spouse); Commonwealth v. Petteway, 847 A.2d 713, 716 (Pa. Super. 

2004) (finding evidence sufficient to establish constructive possession even 

though some of the drugs, weapons, and paraphernalia were found 

throughout house, where defendant was in house where drugs were 

discovered and defendant had weapon and drug paraphernalia in close 

proximity to his person); Commonwealth v. Torres, 617 A.2d 812, 815-16 

(Pa. Super. 1992), appeal denied, 629 A.2d 1379 (Pa. 1993) (holding 

evidence sufficient to sustain conviction for possession of drug paraphernalia 

where three unopened boxes of plastic sandwich bags were found next to 

packets of crack cocaine); Commonwealth v. Potter, 504 A.2d 243, 246 

(Pa. Super. 1986) (evidence was sufficient to sustain conviction for 

possession of drug paraphernalia where recovered items had commonly 
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recognized drug-related function). Appellant’s challenge to the sufficiency of 

the evidence underlying his conviction for possession of a controlled 

substance, PWID, and possession of drug paraphernalia lacks merit.

Moreover, the evidence demonstrated all four factors necessary to 

sustain a conviction for criminal conspiracy. Appellant and Marcus Dennis 

were together at 721 Caldwell street and both participated in the telephone 

conversations about purchasing heroin. They drove off together to get the 

heroin. When the police entered 721 Caldwell both Appellant and Marcus 

Dennis fled the scene. (See N.T. Trial, 11/17/15 at 43). This evidence was 

sufficient to establish criminal conspiracy. See Commonwealth v. Gibson, 

668 A.2d 552, 555 (Pa. Super. 1995) (holding that appellant’s presence with 

co-conspirator during entire criminal episode proved conspiracy); 

Commonwealth v. Cooke, 492 A.2d 63, 68 (Pa. Super. 1985) (holding 

evidence sufficient to sustain conviction of conspiracy where appellant was 

present at scene, strongly associated with co-conspirator and personally 

participated in crime). Appellant’s claim that the evidence was insufficient to 

sustain his conviction for conspiracy lacks merit.

In his final claim, Appellant challenges the weight of the evidence. 

However, Appellant has not preserved this claim for our review.

We have long held that this Court cannot consider, in the first 

instance, a claim that the verdict is against the weight of the evidence. See 

Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa. Super. 2003). Here, 
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while Appellant did file a post-sentence motion, he challenged the 

discretionary aspects of sentence, not the weight of the evidence. (See 

Appellant’s Motion to Reconsider Sentence, 12/23/15, at unnumbered pages 

1-2). Thus, the issue is not preserved for our review. See Commonwealth 

v. Burkett, 830 A.2d 1034, 1036 (Pa. Super. 2003). 

Moreover, even if we were to address the merits of the weight of the 

evidence claim, it would fail. 

Our scope and standard of review of a weight of the evidence claim is 

as follows: 

The finder of fact is the exclusive judge of the weight of 

the evidence as the fact finder is free to believe all, part, or none 

of the evidence presented and determines the credibility of the 

witnesses.

As an appellate court, we cannot substitute our judgment 

for that of the finder of fact. Therefore, we will reverse a jury’s 

verdict and grant a new trial only where the verdict is so 

contrary to the evidence as to shock one’s sense of justice. A 

verdict is said to be contrary to the evidence such that it shocks 

one’s sense of justice when the figure of Justice totters on her 

pedestal, or when the jury’s verdict, at the time of its rendition, 

causes the trial judge to lose his breath, temporarily, and causes 

him to almost fall from the bench, then it is truly shocking to the 

judicial conscience.

Furthermore, where the trial court has ruled on the weight 

claim below, an appellate court’s role is not to consider the 

underlying question of whether the verdict is against the weight 

of the evidence. Rather, appellate review is limited to whether 

the trial court palpably abused its discretion in ruling on the 

weight claim.

Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en 

banc) (citation and internal quotation marks omitted). “Thus, the trial 
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court’s denial of a motion for a new trial based on a weight of the evidence 

claim is the least assailable of its rulings.” Commonwealth v. Diggs, 949 

A.2d 873, 879-80 (Pa. 2008), cert. denied, 556 U.S. 1106 (2009) (citation 

omitted).

In its Rule 1925(a) opinion, the trial court explained that there was not 

“a scintilla of evidence” to support Appellant’s contention that Officer Barag’s 

testimony was not credible because he “made up Appellant’s involvement in 

order to get a promotion[.]” (Trial Ct. Op., at 15). It further noted that the 

“jury was free to believe all or part of Officer Barag’s testimony, which the 

jury clearly determined was credible.” (Id.). It concluded, “[t]here is 

nothing about the verdict, or any of the charges, that is contrary to evidence 

that it would shock one’s sense of justice.” (Id.). We agree. “[I]t is for the 

fact-finder to make credibility determinations, and the finder of fact may 

believe all, part, or none of a witness’s testimony.” Commonwealth v. 

Lee, 956 A.2d 1024, 1029 (Pa. Super. 2008), appeal denied, 964 A.2d 894 

(Pa. 2009) (citation omitted). This Court cannot substitute our judgment for 

that of the trier of fact. See Commonwealth v. Lyons, 79 A.3d 1053, 

1067 (Pa. 2013), cert. denied, 134 S.Ct. 1792 (2014). This issue does not 

merit relief. 

Appellant’s issues are either waived or lack merit. Thus, we affirm the 

judgment of sentence.

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/27/2017