J-A05035-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DONTAE R. DOWNES, 

Appellant No. 898 EDA 2015

Appeal from the Judgment of Sentence November 7, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0010315-2013

BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:

This is an appeal from the judgment of sentence entered in the Court 

of Common Pleas of Philadelphia County after the court, sitting as finder of 

fact in Appellant’s bench trial, convicted him of Robbery, graded as a felony 

of the first degree, 18 Pa.C.S. § 3701, Conspiracy to Commit Robbery, 18 

Pa.C.s. § 903, Theft by Unlawful Taking, 18 Pa.C.S. § 3921, Simple Assault, 

18 Pa.C.S. § 2701, Possessing an Instrument of Crime (“PIC”), Generally, 18 

Pa.C.S. § 907, and Possession of a Small Amount of Marijuana, 35 P.S. § 

780-113(a)(31). Sentenced to an aggregate sentence of three to six years’ 

incarceration for his robbery, conspiracy, and PIC offenses,1 Appellant now 

____________________________________________

1 No further penalties were imposed on the remaining charges.
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challenges the sufficiency of evidence offered to support his convictions. We 

affirm.

The trial court provides the following apt factual and procedural history 

of the case:

On July 29, 2013, Dr. Hussanifat Habiburrahman and Abdul 

Khaleque were working inside the Discount Plus variety store 

located at 5135 Chestnut Street in Philadelphia. Between 10:00 

and 10:30 a.m., two men entered the store and looked at the 

items for sale for approximately one-half hour. N.T. [9/4/14 at] 

14. As the two men walked around the store they examined the 

merchandise together and separately and were observed 

speaking to one another. N.T. at 14-15. Eventually, the taller of 

the two men, who[m] the doctor identified as Appellant, 

purchased approximately $30.00 in merchandise and exited the 

store. N.T. at 14-15, 20. Once outside, Appellant began 

examining items that were displayed on tables situated outside 

the store. N.T. 14-15, 20. After [Appellant] made his purchase, 

the shorter man[, co-defendant,] made a purchase from Abdul 

Khaleque. During the transaction, the shorter male and 

Khaleque had a discussion that evolved into an argument about 

[how much money had been tendered for the purchase]. N.T. at 

14-15. Dr. Habiburrahman went outside for a short time to 

watch Appellant[, who was looking at merchandise on an 

outdoor display,] while the [co-defendant] and Khaleque 

continued to argue. N.T. at 16-17.

When the doctor reentered the store, the [co-defendant] 

removed a pistol from his waistband and place[d] cartridges 

inside it. The doctor told Khaleque [in Bengali] to give the [codefendant] the money or he would be killed. N.T. at 17. 

***

[At the same time,] Appellant, who was outside the store, reentered the premises and took up a position near his codefendant, a position from which he had a clear view of what 

was occurring. When his co-defendant pointed the gun at Mr. 

Khaleque, Appellant moved behind the counter, standing next to 

Mr. Khaleque as he handed the co-defendant money. N.T. at 

48-58. 
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When his co-defendant left the store, Appellant accompanied 

him after which both men went to a nearby store where they 

were arrested. At the time of the arrest, Appellant had a 

weapon similar to the one used by his co-defendant to commit 

the robbery[] [and possessed $129.00 and five plastic baggies 

with a “green weed and seed substance” the police officer 

“believed to be marijuana.” N.T. at 34. Officers arrested codefendant in a dressing room where he was attempting to hide 

his firearm. N.T. at 41-43.].

***

On September 4, 2014, following a waiver trial, Appellant was 

found guilty of Robbery, graded as a felony of the first degree, 

18 Pa.C.S. § 3701, Conspiracy to Commit Robbery, 18 Pa.C.s. § 

903, Theft by Unlawful Taking, 18 Pa.C.S. § 3921, Simple 

Assault, 18 Pa.C.S. § 2701, Possessing an Instrument of Crime, 

Generally, 18 Pa.C.S. § 907, and Possession of a Small Amount 

of Marijuana, 35 P.S. § 780-113(a)(31). On November 7, 2014, 

[the trial court] imposed an aggregate sentence of three to six 

years[’] incarceration followed by six years’ probation.

Trial Court Opinion, filed June 24, 2015, at 2, 6, and 1. This timely appeal 

followed.

Appellant presents the following three questions for our review:

1. Was not the evidence insufficient to convict appellant of 

conspiracy to commit robbery where the Commonwealth 

failed to establish that appellant intended to facilitate or 

promote the commission of the robbery and that appellant 

was a party to an agreement to commit the robbery?

2. Was not the evidence insufficient to convict appellant of 

robbery, theft, simple assault, and possession of instrument 

of crime under a theory of accomplice liability where the 

Commonwealth failed to prove that appellant intended to 

facilitate or promote the commission of the crimes, and that 

appellant either aided or agreed or attempted to aid the codefendant in planning or committing the crimes?
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3. Was not the evidence insufficient to convict appellant of 

possession of a small amount of marijuana where the 

Commonwealth failed to prove that the substance he 

possessed was marijuana?

Appellant’s brief at 3.

Our standard of review for challenges to the sufficiency of the evidence 

is well-settled.

We must determine whether the evidence admitted at trial, and 

all reasonable inferences derived therefrom, when viewed in the 

light most favorable to the Commonwealth as verdict winner, 

supports all of the elements of the offense beyond a reasonable 

doubt. In making this determination, we consider both direct 

and circumstantial evidence, cognizant that circumstantial 

evidence alone can be sufficient to prove every element of an 

offense. We may not substitute our own judgment for the jury's, 

as it is the fact finder's province to weigh the evidence, 

determine the credibility of witnesses, and believe all, part, or 

none of the evidence submitted.

Commonwealth v. Cooper, 941 A.2d 655, 662 (Pa. 2007).

Appellant first challenges the sufficiency of evidence to prove he 

conspired with, or was an accomplice to, Co-Defendant in carrying out the 

crimes perpetrated in the Discount Plus variety store. He argues he was 

merely present at the store when Co-Defendant “spontaneously” pulled a 

gun from his waistband and decided to transform a dispute into a robbery. 

Appellant’s brief at 9. Neither testimonial evidence nor the Discount Plus 

security video of the robbery allow for the inference that Appellant either 

agreed to commit or aided in the robbery or that he shared Co-Defendant’s 

intent in so doing, he maintains. We disagree.

The Pennsylvania Crimes Code defines conspiracy as follows:
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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.

18 Pa.C.S.A. § 903(a). This requires proof that: 1) the 

defendant entered into an agreement with another to commit or 

aid in the commission of a crime; 2) he shared the criminal 

intent with that other person; and 3) an overt act was 

committed in furtherance of the conspiracy. Commonwealth v. 

Devine, 26 A.3d 1139, 1147 (Pa.Super. 2011). “This overt act 

need not be committed by the defendant; it need only be 

committed by a co-conspirator.” Commonwealth v. Murphy,

795 A.2d 1025, 1038 (Pa.Super. 2002) (citation omitted).

The essence of a criminal conspiracy is a common 

understanding, no matter how it came into being, 

that a particular criminal objective be accomplished. 

Therefore, a conviction for conspiracy requires proof 

of the existence of a shared criminal intent. An 

explicit or formal agreement to commit crimes can 

seldom, if ever, be proved and it need not be, for 

proof of a criminal partnership is almost invariably 

extracted from the circumstances that attend its 

activities. Thus, a conspiracy may be inferred where 

it is demonstrated that the relation, conduct, or 

circumstances of the parties, and the overt acts of 

the co-conspirators sufficiently prove the formation 

of a criminal confederation. The conduct of the 

parties and the circumstances surrounding their 

conduct may create a web of evidence linking the 

accused to the alleged conspiracy beyond a 

reasonable doubt. Even if the conspirator did not act 

as a principal in committing the underlying crime, he 

is still criminally liable for the actions of his coconspirators in furtherance of the conspiracy.
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Commonwealth v. McCall, 911 A.2d 992, 996–97 (Pa.Super. 

2006) (citation omitted).2

An accomplice is also legally accountable for the conduct of 

the other person involved in committing the crimes. 18 

Pa.C.S.A. § 306(b)(3). The Crimes Code defines an accomplice 

as follows:

A person is an accomplice of another person in the 

commission of an offense if:

(1) with the intent of promoting or facilitating the 

commission of the offense, he:

(i) solicits such other person to commit it; or

(ii) aids or agrees or attempts to aid such 

other person in planning or committing it; or

(2) his conduct is expressly declared by law to 

establish his complicity.

18 Pa.C.S.A. § 306(c). “Both requirements may be established 

wholly by circumstantial evidence. Only the least degree of 

concert or collusion in the commission of the offense is sufficient 

to sustain a finding of responsibility as an accomplice. No 

agreement is required, only aid.” Commonwealth v. 

Kimbrough, 872 A.2d 1244, 1251 (Pa.Super. 2005) (en banc ) 

(citations and quotations omitted). “[P]roof of a criminal 

partnership is almost invariably extracted from the 

circumstances that attend its activities.” Id. at 1253–54 

(citation omitted).

To establish complicity, mere presence at the scene 

of a crime and knowledge of the commission of 

criminal acts is not sufficient. Nor is flight from the 

scene of a crime, without more, enough. However, 

those factors combined, along with other direct or 

____________________________________________

2 See also Commonwealth v. French, 578 A.2d 1292, 1311 (Pa. Super. 

1990) (Wieand, Concurring) (“An agreement to engage in illegal activity may 

be tacit; it requires no extended period of time but can be formed almost 

instantaneously.”).
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circumstantial evidence may provide a sufficient 

basis for a conviction, provided the conviction is 

predicated upon more than mere suspicion or 

conjecture.

Commonwealth v. Rosetti, 469 A.2d 1121, 1123 (Pa.Super. 

1983) (citations omitted).

Commonwealth v. Knox, 50 A.3d 749, 755-56 (Pa.Super. 2012), aff'd 

but criticized on other grounds, 105 A.3d 1194 (Pa. 2014).

The trial court, acting as finder of fact, reasonably inferred from the 

evidence a tacit agreement between Appellant and Co-Defendant to commit 

robbery and related offenses at the Discount Plus store. Appellant and CoDefendant, both carrying firearms, had spent one half-hour together in the

store before Co-Defendant pulled a gun on the cashier, Mr. Khaleque. 

Appellant immediately joined Co-Defendant by positioning himself behind 

the counter where Mr. Khaleque stood, adding to the intimidation of Mr. 

Khaleque. When Mr. Khaleque turned over the money as Co-Defendant 

demanded, both men left the store together and remained together until 

authorities arrested them in a nearby sneaker store. 

The totality of this evidence, therefore, belies Appellant’s claim that he 

was simply a companion of Co-Defendant’s who was merely present and 

unaware of Co-Defendant’s criminal intent when the robbery occurred. 

Rather, his obvious relationship with Co-Defendant and his immediate 

participation in the commission of the crime evinced a common 

understanding between the two that they would work together in robbing 

the store. It was reasonable for the finder of fact to conclude that Appellant 
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and Co-Defendant had tacitly agreed to act in concert in robbing the 

Discount Plus store. Accordingly, we find the evidence sufficed to support 

the Commonwealth’s case against Appellant for conspirator and accomplice 

liability.

In his final issue, Appellant contends evidence was insufficient to 

convict him of possession of a small amount of marijuana where the 

Commonwealth never established the identity of the substance he possessed 

through chemical analysis. At trial, evidence directly addressing the issue of 

drug identification consisted solely of the arresting officer testifying “I 

recovered five clear Ziploc plastic baggies with a green weed and seed 

substance I believed to be marijuana.” N.T. at 34. 

In support of the conviction, the trial court correctly recites precedent 

that it is “well-established in this Commonwealth that the identity of illegal 

narcotic substances may be established by circumstantial evidence alone, 

without any chemical analysis of the seized contraband.” Commonwealth 

v. Minott, 577 A.2d 928, 932 (Pa.Super. 1990). Minott, the trial court 

explicates, did not limit the fact-finding function relating to drug 

identification to a strict scientific analysis, but instead acknowledged “the 

use of common sense and reasonable inferences in the determination of the 

identity of substances” Id. The trial court also relies on several other 

decisions upholding convictions for possession of controlled substances 

absent laboratory seizure analyses or any test at all on the substance. See, 

e.g., Commonwealth v. Stasiak, 451 A.2d 520 (Pa.Super. 1982); 
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Commonwealth v. Williams, 428 A.2d 165 (Pa.Super. 1981). See

generally Commonwealth v. Boyd, 763 A.2d 421, 424 (Pa.Super. 2000) 

(collecting cases) (recognizing “the Commonwealth may rely on 

circumstantial evidence to prove the identity of the fluid or material”).

Appellant, however, attempts to distinguish such cases on their facts. 

Minott, he argues, held results from chemical testing of two of fifty packets 

of suspected drugs seized could serve to establish the chemical composition 

of the other 48 packets. In Stasiak, the court held the identity of pills 

contained in unopened, labeled bottles in defendant’s possession could be 

reasonably inferred where arrest occurred just four minutes after 

defendant’s burglary of a drug store. In Boyd, we held that sufficient 

circumstantial evidence as to the identity of a cup of liquid thrown on a 

prison guard was sufficient to obviate the need for chemical analysis. The 

prisoner threatened to throw urine on the guard earlier that day, stated it 

would be “[feces] next time” as he threw the liquid, and the guard testified 

the liquid was warm, yellow, and smelled like urine. Compared with this line 

of authority, Appellant posits, the officer’s belief based merely on the 

appearance of the substance fell well short of establishing Appellant's 

possession of marijuana beyond a reasonable doubt. 

To sustain a conviction for possession of a small amount of marijuana, 

the Commonwealth must prove that defendant had knowing or intentional 

possession of an amount of marijuana less than 30 grams. 35 Pa.C.S. § 

780-113(a)(31). As noted supra, a trained police officer's observations, by 
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themselves, can establish the identity of drugs such as marijuana and 

support a conviction. Minott, supra (citing Stasiak, supra); 

Commonwealth v. Leskovic, 307 A.2d 357 (Pa. Super. 1973) (same).

Here, Officer Ronald Jackson of the Philadelphia Police Department was 

conducting a pat down of Appellant when he discovered what he would later 

describe at trial as a “green weed and seed substance [he] believed to be 

marijuana[]” concealed in Appellant’s right front pants pocket. N.T. at 34. 

Neither the officer’s reliance on his professional experience to identify 

marijuana nor his discerning description of the substance he observed in 

Appellant’s possession was contested at trial. Moreover, circumstances 

informing the officer’s opinion were not limited to the physical appearance of 

the substance itself, as he also observed the substance had been divided 

and packaged in five clear Ziploc baggies and was carried alongside $129 

cash and a loaded firearm in Appellant’s possession, circumstances 

associated with the intent to deliver a controlled substance. 

Commonwealth v. Hutchinson, 947 A.2d 800 (Pa.Super. 2008) 

(recognizing factors suggesting possession with intent to deliver a controlled 

substance include possession of a loaded handgun, packaging, and quantity 

of U.S. currency). Such circumstantial evidence sufficed to support 

Appellant’s conviction for a small amount of marijuana.

Judgment of sentence is AFFIRMED.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/9/2016