J-A24033-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSEPH WESLEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3084 EDA 2018

Appeal from the Judgment of Sentence Entered September 18, 2018

In the Court of Common Pleas of Montgomery County Criminal Division 

at No(s): CP-46-CR-0001606-2017

BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED DECEMBER 12, 2019

Appellant, Joseph Wesley, appeals from the judgment of sentence 

imposed for his convictions, following a stipulated bench trial, of illegal sale or 

transfer of firearms, conspiracy to commit the illegal sale or transfer of 

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

possession of a controlled substance.1 We affirm.

The trial court summarized the factual background of this case as 

follows:

On April 14, 2016, authorities met with a then confidential 

informant named Danielle Miller who informed them that 

[Appellant] had contacted her through text messages with respect 

to assault rifles he wished to sell. On April 15, 2016, authorities 

utilized Ms. Miller to effectuate a controlled purchase of these rifles 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 6111(c), 903(a), 35 P.S. § 780-113(a)(30) and (16), 

respectively.
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and supplied Ms. Miller with $3,500 in prerecorded buy money and 

a recording device. Authorities also set up video surveillance near 

Ms. Miller and [Appellant’s] designated meeting spot at Holland 

Avenue in Ardmore, Pa. At the initial stages of the transaction, 

[Appellant] had an interaction with an individual later identified to 

be Jasper Oliver. [Appellant] asked Mr. Oliver where the guns 

were and he responded that they were inside the residence [on]

Holland Avenue. [Appellant] subsequently entered this residence 

with Ms. Miller and completed the transaction. Following the 

transaction, authorities confirmed the weapons Ms. Miller had 

purchased from [Appellant] were two assault rifles.

On June 14, 2016, Danielle Miller informed authorities that she 

had received a text message from [Appellant] containing a picture 

of a semi-automatic rifle. The authorities instructed her to ask 

[Appellant] how much the gun would cost and he replied $2,500. 

On June 15, 2016, Ms. Miller met with [Appellant] to discuss the 

purchase of the rifle. On June 20, 2016, Ms. Miller received 

another text message offering the semi-automatic rifle for sale 

and a nine millimeter semi-automatic pistol for $2,700 total. Ms. 

Miller met with [Appellant] later that day and he discussed the 

purchase of the guns in addition to a half ounce of cocaine. On 

June 28, 2016, [Appellant] again contacted Ms. Miller via text 

message and offered to sell her the previously referenced guns. 

One of the text messages contained a picture of the nine 

millimeter semiautomatic pistol. The message itself emanated 

from the number 215-680-7461, which was later revealed to 

belong to Jasper Oliver. Later that day, authorities utilized Ms. 

Miller to effectuate a controlled purchase of these items and 

supplied her with $3,300 in prerecorded buy money and a 

recording device. The authorities also set up surveillance near Ms. 

Miller and [Appellant’s] designated meeting spot. Following the 

transaction, authorities confirmed [Appellant] had sold Ms. Miller 

a semi-automatic rifle, a Highpoint 9 millimeter semi-automatic 

pistol, and one clear bag containing two clear bags of cocaine.

Trial Court Opinion at 1-2. 

A criminal complaint was filed on October 13, 2016, and Appellant was 

arrested in January 2017. On June 13, 2018, Appellant proceeded to a 

stipulated bench trial based on the facts set forth in the affidavit of probable 

cause accompanying the criminal complaint and the laboratory report showing 
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that the substance sold to Ms. Miller on June 15, 2016 was cocaine. On June 

15, 2018, the trial court announced its verdict finding Appellant guilty of four 

counts of illegal sale or transfer of firearms, three counts of conspiracy to 

commit the illegal sale or transfer of firearms, and one count each of PWID 

and possession of a controlled substance.2 N.T., 6/15/18, at 4-6; Order, 

6/15/18. At the September 18, 2018 sentencing hearing, the Commonwealth 

nolle prossed three of the illegal sale or transfer of firearms counts and two of 

the conspiracy counts of which he was convicted; the nolle prossed counts 

pertained to Appellant’s sale of rifles to Miller, and therefore the remaining 

illegal sale or transfer of firearms and conspiracy convictions related solely to 

the semi-automatic pistol Appellant sold to Ms. Miller on June 28, 2016.3 N.T., 

9/18/18, at 4-5, 16; Sentencing Order, 9/18/18. The trial court imposed an 

aggregate sentence of 51 to 102 months of confinement followed by four years 

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2 Appellant was found not guilty of four counts of persons not to possess, use, 

manufacture, control, sell, or transfer firearms, 18, Pa.C.S. § 6105(a)(1), 

seven counts of conspiracy, two counts of possession of a firearm with altered 

manufacturer’s number, 18 Pa.C.S. § 6110.2(a), one count of use or 

possession of drug paraphernalia, 35 P.S. § 780-113(a)(32), and four counts 

of criminal use of a communications facility, 18 Pa.C.S. § 7512(a).

3 Though not reflected in the record, the trial court explained in its Pa.R.A.P. 

1925(a) opinion that the Commonwealth nolle prossed the convictions relating 

to Appellant’s sale of rifles to Ms. Miller because the length of the rifles at issue 

excluded them from the illegal sale or transfer of firearms statute. Trial Court 

Opinion at 3; see 18 Pa.C.S. § 6111(f)(2).
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of probation. N.T., 9/18/18, at 30; Sentencing Order, 9/18/18. Appellant 

filed a timely appeal of the judgment of sentence.4

On appeal, Appellant raises the following issue:

Whether the evidence was insufficient to sustain a conviction of 

conspiracy to commit the crime of Firearm Ownership–Duty of 

Other Persons, 18 Pa.C.S. [§] 903[,] inasmuch as there was

insufficient evidence that [Appellant] agreed with another person 

to commit the crime.

Appellant’s Brief at 4. 

Before reaching the merits of this issue, we must address the 

Commonwealth’s argument that Appellant’s appellate issue was waived 

because he did not identify the specific elements that he was challenging in 

his concise statement of errors filed pursuant to Rule of Appellate Procedure 

1925(b). This Court has held that “[i]n order to preserve a challenge to 

the sufficiency of the evidence on appeal, an appellant’s [Rule] 1925(b) 

statement must state with specificity the element or elements upon which the 

appellant alleges that the evidence was insufficient.” Commonwealth v. 

Ellison, 213 A.3d 312, 320–21 (Pa. Super. 2019) (quoting Commonwealth 

v. Stiles, 143 A.3d 968, 982 (Pa. Super. 2016)); see also Pa.R.A.P. 

1925(b)(4)(ii) (“The Statement shall concisely identify each ruling or error 

that the appellant intends to challenge with sufficient detail to identify all 

pertinent issues for the judge.”). In addition, this Court has noted that the 

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4 Appellant filed his concise statement of errors complained of on appeal on 

November 9, 2018, and the trial court filed its Pa.R.A.P. 1925(a) opinion on 

November 14, 2019.
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fact that the trial court addressed the issue in a Rule 1925(a) opinion is “of no 

moment to our analysis because we apply [Rule] 1925(b) in a predictable, 

uniform fashion, not in a selective manner dependent on . . . a trial court’s 

choice to address an unpreserved claim.” Commonwealth v. Tyack, 128 

A.3d 254, 261 (Pa. Super. 2015) (quoting Commonwealth v. Williams, 959 

A.2d 1252, 1257 (Pa. Super. 2008)).

However, in Commonwealth v. Laboy, 936 A.2d 1058 (Pa. 2007) (per 

curiam), our Supreme Court explained that waiver is not always required in 

cases where the appellant presents broad sufficiency of the evidence claims 

in a Rule 1925(b) statement. In that case, the appellant was charged with 

several drug trafficking offenses related to allegations that he acted as a 

lookout and money handler in connection with drug sales, and he asserted in 

his Rule 1925(b) statement only that the “[e]vidence [as to his convictions] 

was insufficient.” Id. at 1058. Though the trial court addressed the 

arguments in its Rule 1925(a) opinion, this Court concluded that the claims 

were waived based on an insufficiently specific Rule 1925(b) statement. Id.

at 1058-59. The Supreme Court disagreed, stating that 

[i]n the present, relatively straightforward drug case, the 

evidentiary presentation spans a mere thirty pages of transcript. 

It may be possible in more complex criminal matters that the 

common pleas court may require a more detailed statement to 

address the basis for a sufficiency challenge. Here, however, the 

common pleas court readily apprehended [the a]ppellant’s claim 

and addressed it in substantial detail.

Id. at 1060. The Court therefore reversed this Court’s decision and remanded 

for a review of the sufficiency of the evidence claim. Id.; see also 
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Commonwealth v. Smyser, 195 A.3d 912, 916 (Pa. Super. 2018) (declining 

to find waiver for boilerplate Rule 1925(b) statement of sufficiency challenges 

pursuant to Laboy where issue pertaining to convictions was “a question of 

law that the trial court readily apprehended”).

Presently, Appellant’s Rule 1925(b) statement contained the following 

issue: “[t]he evidence was insufficient to convict [Appellant] for conspiracy 

to commit the crime of Firearm Ownership–Duty of Other Persons, Count XIII 

of the Criminal Information.” Rule 1925(b) Statement, 11/9/18. The trial 

court did not find waiver based on the Rule 1925(b) statement and addressed 

Appellant’s challenge to the sufficiency of his conspiracy conviction, focusing 

its analysis on whether Appellant entered into a conspiratorial agreement with 

Oliver, the issue Appellant raises in his appellate brief. See Trial Court Opinion 

at 3-8. We further observe that, as in Laboy, the factual history of this case 

involved a straightforward sale of firearms and cocaine to a confidential 

informant, and the stipulated evidentiary record is confined to the affidavit of 

probable cause and a lab report. Therefore, we decline to find that Appellant 

waived his sufficiency of the evidence challenge. See Laboy, 936 A.2d at 

1060.

Turning to the merits of this appeal, 

[w]hen reviewing the sufficiency of the evidence, we must 

determine whether the evidence admitted at trial and all 

reasonable inferences drawn therefrom, viewed in the light most 

favorable to the Commonwealth as verdict winner, were sufficient 

to prove every element of the offense beyond a reasonable doubt. 

The facts and circumstances established by the Commonwealth 

need not preclude every possibility of innocence. It is within the 
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province of the fact-finder to determine the weight to be accorded 

to each witness’s testimony and to believe all, part, or none of the 

evidence. The Commonwealth may sustain its burden of proving 

every element of the crime by means of wholly circumstantial 

evidence. As an appellate court, we may not re-weigh the 

evidence and substitute our judgment for that of the fact-finder.

Commonwealth v. Hill, 210 A.3d 1104, 1112 (Pa. Super. 2019) (citations, 

quotation marks, and brackets omitted).

Section 903 of the Crimes Code provides as follows:

(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 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.

. . . 

(e) Overt act.--No person may be convicted of conspiracy to 

commit a crime unless an overt act in pursuance of such 

conspiracy is alleged and proved to have been done by him or by 

a person with whom he conspired.

18 Pa.C.S. § 903(a), (e).

To sustain a conviction for criminal conspiracy, “the Commonwealth 

must establish that the defendant (1) entered into an agreement to commit 

or aid in an unlawful act with another person or persons, (2) with a shared 

criminal intent and, (3) an overt act was done in furtherance of the 

conspiracy.” Commonwealth v. Fisher, 80 A.3d 1186, 1190 (Pa. 2013)

(citation omitted). 
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[T]he essence of a criminal conspiracy is a common 

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

criminal objective be accomplished. Therefore, a conviction for 

conspiracy requires proof of the existence of a shared criminal 

intent. An explicit or formal agreement to commit crimes can 

seldom, if ever, be proved and it need not be, for proof of a 

criminal partnership is almost invariably extracted from the 

circumstances that attend its activities. Thus, a conspiracy may 

be inferred where it is demonstrated that the relation, conduct, or 

circumstances of the parties, and the overt acts of the coconspirators sufficiently prove the formation of a criminal 

confederation. The conduct of the parties and the circumstances 

surrounding their conduct may create a web of evidence linking 

the accused to the alleged conspiracy beyond a reasonable doubt. 

Commonwealth v. Johnson, 180 A.3d 474, 479 (Pa. Super. 2018) (citation 

omitted).

Appellant concedes that “[t]here is no question that [he] was guilty of” 

the underlying illegal sale or transfer of firearms offense when he sold a 

handgun to Danielle Miller on June 28, 2016.5 Appellant’s Brief at 12. 

Appellant argues, however, that the evidence failed to establish beyond a 

reasonable doubt that he entered into an agreement with Jasper Oliver to sell 

the semi-automatic pistol to Miller because Oliver was not present when the 

sale was consummated and there was no evidence that Oliver owned the 

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5 Pursuant to Section 6111(c) of the Crimes Code:

Any person who is not a licensed importer, manufacturer or dealer and 

who desires to sell or transfer a firearm to another unlicensed person 

shall do so only upon the place of business of a licensed importer, 

manufacturer, dealer or county sheriff’s office, the latter of whom shall 

follow the procedure set forth in this section as if he were the seller of 

the firearm.

18 Pa.C.S. § 6111(c).
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pistol, received proceeds from the sale, or was even aware of the sale of the 

pistol to Miller.

According to the affidavit of probable cause attached to the criminal 

complaint – which Appellant stipulated to at his non-jury trial – Appellant’s

first sale of firearms to Miller occurred at Oliver’s residence in Ardmore, 

Pennsylvania on April 15, 2016. Affidavit of Probable Cause, 10/13/16, at 1-

4, 14, 16. As Miller and Appellant were approaching the residence to 

consummate the sale, Appellant asked Oliver, who was standing by the 

entrance, where the guns were, and Oliver responded that they were on the 

couch inside the house. Id. at 4, 16. Furthermore, on June 28, 2016 as 

Appellant and Miller were negotiating via text message the sale of the semiautomatic pistol that forms the basis of the conviction challenged here, 

Appellant forwarded Miller an image of the pistol that had been sent to 

Appellant from the phone number 215-680-7431. Id. at 8. When Oliver was 

later arrested on an unrelated charge, Oliver identified 215-680-7431 as his

phone number, which the authorities confirmed through a public records 

search. Id. at 14-15. 

Viewed in the light most favorable to the Commonwealth as verdict 

winner, this evidence was sufficient to establish beyond a reasonable doubt 

that Appellant entered into a conspiratorial agreement with Oliver to sell the 

semi-automatic pistol to Miller. See Hill, 210 A.3d at 1112. The evidence 

demonstrates that Appellant and Oliver had direct communication regarding 

the underlying unlawful sale of the pistol when Oliver sent the photograph of 
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the pistol to Appellant that Appellant then forwarded to Miller. This 

communication regarding the pistol, particularly in light of the fact that the 

prior sale of firearms to Miller occurred in Oliver’s home with Oliver present, 

allowed for the trial court as fact-finder to reasonably infer that Appellant and 

Oliver cooperated in the sale of the pistol with a shared criminal intent. While, 

as Appellant maintains, Oliver was not present at the June 28, 2016 

transaction and no evidence was presented that he profited from the sale of 

the pistol, proof of an explicit or formal criminal agreement is not required and 

instead the fact-finder may infer the existence of the agreement from the 

attendant circumstances. See Johnson, 180 A.3d at 479. Accordingly, 

Appellant is not entitled to relief. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/12/19