J-S30003-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SIR-KHAN HEADON

Appellant No. 1570 EDA 2014

Appeal from the Judgment of Sentence October 11, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0005889-2012

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 15, 2015

Appellant, Sir-Khan Headon, appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common Pleas, following his jury 

trial convictions for possession with intent to deliver (“PWID”), simple 

possession, and conspiracy.1 We affirm the convictions but vacate and 

remand for resentencing. 

In its opinion, the trial court fully set forth the relevant facts and 

procedural history of this case. Therefore, we have no reason to restate 

them.2 

Appellant raises the following issues for our review:

____________________________________________

1 35 P.S. §§ 780-113(a)(30), (a)(16); 18 Pa.C.S.A. § 903, respectively. 

2

Police found the marijuana in a freezer bag, not in a freezer. 
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WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF 

THE EVIDENCE. THERE WAS NO EVIDENCE THAT

APPELLANT WAS A RESIDENT OF 421 WINTON STREET, 

THAT HE CONSPIRED WITH [CO-DEFENDANT] TO SELL 

NARCOTICS, OR THAT HE HAD THE INTENT TO 

MANUFACTURE OR DISTRIBUTE MARIJUANA OR COCAINE.

WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL 

BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO PROVE 

APPELLANT GUILTY OF EACH AND EVERY ELEMENT OF THE 

CRIMES OF THE CONVICTION, POSSESSION WITH INTENT 

TO MANUFACTURE OR DELIVER, CRIMINAL CONSPIRACY 

AND INTENT TO POSSESS A CONTROLLED SUBSTANCE.

WHETHER THE COMMONWEALTH FAILED TO PROVE DRUG 

AMOUNTS ATTRIBUTABLE TO APPELLANT AND THEREFORE 

THE MANDATORY SENTENCE SHOULD NOT HAVE BEEN 

IMPOSED.

(Appellant’s Brief at 3). 

A challenge to the sufficiency of the evidence implicates the following 

legal principles:

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at 

trial in the light most favorable to the verdict winner, there 

is sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In 

applying [the above] test, we may not weigh the evidence 

and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder unless 

the evidence is so weak and inconclusive that as a matter 

of law no probability of fact may be drawn from the 

combined circumstances. The Commonwealth may sustain 

its burden of proving every element of the crime beyond a 

reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire 

record must be evaluated and all evidence actually 

received must be considered. Finally, the [finder] of fact 
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while passing upon the credibility of witnesses and the 

weight of the evidence produced, is free to believe all, part 

or none of the evidence.

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

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 

2003)). 

Our standard of review for a challenge to the weight of the evidence is 

as follows:

The weight of the evidence is exclusively for the finder of 

fact who is free to believe all, part, or none of the evidence 

and to determine the credibility of the witnesses. An 

appellate court cannot substitute its judgment for that of 

the finder of fact. Thus, we may only reverse the lower 

court’s verdict if it is so contrary to the evidence as to 

shock one’s sense of justice. Moreover, 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. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408 

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004) 

(internal citations omitted). 

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

applicable law, and the well-reasoned opinion of the Honorable Genece E. 

Brinkley, we conclude Appellant’s first two issues merit no relief. The trial 

court opinion comprehensively discusses and properly disposes of those 

questions. (See Trial Court Opinion, filed August 1, 2014, at 9-16) (finding: 
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(1) jury heard testimony from police officers who executed search warrant 

in Appellant’s home, where police found large amount of drugs; in bedroom 

where they found Appellant, officers observed marijuana and large sum of 

cash in open night table drawer; in same bedroom, police recovered purse 

which contained 58.7 grams of cocaine, large amount of marijuana, pills, 

and cash; verdict did not shock one’s sense of justice; (2) regarding PWID 

conviction, Appellant gave his home address as 421 Winton Street when 

arrested, which is same address where police found Appellant and large 

amounts of drugs and cash; drugs were divided into smaller baggies for sale 

to wider customer base; drugs tested positively for marijuana, cocaine, and 

Xanax; Commonwealth’s expert opined that drugs were possessed with 

intent to deliver; evidence was sufficient to convict Appellant of PWID; 

regarding conspiracy, police found Appellant and co-defendant at residence 

both wearing clothing to sleep in; in bedroom, Appellant had other clothing 

which he changed into when he knew he was under arrest; Appellant’s codefendant told police she lived at 421 Winton Street with Appellant; 

Appellant and co-defendant’s relationship, close proximity to drugs and cash, 

and overt acts were sufficient to sustain conspiracy conviction;3regarding 

____________________________________________

3 The trial court cites Commonwealth v. Bricker, 882 A.2d 1008 

(Pa.Super. 2005), for the proposition that relevant factors in the 

determination of a conspiracy include “an association between the alleged 

conspirators, knowledge of the commission of the crime, presence at the 

scene of the crime, and participation in the object of the conspiracy.” This 

(Footnote Continued Next Page)
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simple possession conviction, jury properly found Appellant constructively 

possessed drugs because police found drugs in area of house where 

Appellant had equal access and control). Accordingly, we affirm as to 

Appellant’s first and second issues on the basis of the trial court opinion. 

In his third issue, Appellant argues he had no actual or constructive 

possession of the cocaine found in the bedroom. Appellant asserts the court 

improperly applied a mandatory minimum sentence to his PWID conviction 

because the Commonwealth failed to prove Appellant possessed the 

requisite amount of cocaine. Appellant concludes this Court should vacate 

his judgment of sentence and remand for a new trial or, in the alternative, 

resentencing. We disagree with Appellant’s contentions but conclude 

Appellant is entitled to resentencing. 

Instantly, Appellant essentially reiterates his challenge to the 

sufficiency of the evidence for his PWID conviction, which we have already 

determined is meritless. The evidence supported the jury’s finding that 

Appellant possessed more than ten (10) grams of cocaine, which the court 

relied on to apply the mandatory minimum set forth in 18 Pa.C.S.A. § 7508 

at sentencing. See 18 Pa.C.S.A. § 7508(a)(3)(ii) (mandating minimum 

sentence of five (5) years’ incarceration where defendant is convicted of 

PWID involving at least ten (10) grams but less than one hundred (100) 

(Footnote Continued) _______________________

quotation is not from Bricker; it is found in Commonwealth v. Perez, 931 

A.2d 703, 708 (Pa.Super. 2007). 
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grams of cocaine and, at time of sentencing, defendant has been convicted 

of another drug trafficking offense). 

Nevertheless, we are mindful of the United States Supreme Court’s 

decision in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 

L.Ed.2d 314 (2013), in which the Court expressly held that any fact 

increasing the mandatory minimum sentence for a crime is considered an 

element of the crime to be submitted to the fact-finder and found beyond a 

reasonable doubt. Section 7508(b) states that the statutory provisions shall 

not be an element of the crime and applicability of the statute shall be 

determined at sentencing by a preponderance of the evidence. Recently, in 

Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc), this 

Court addressed the constitutionality of a similar statute, 42 Pa.C.S.A. § 

9712.1, in light of Alleyne. Relying on Alleyne, Newman held that Section 

9712.1 can no longer pass constitutional muster as it “permits the trial 

court, as opposed to the jury, to increase a defendant’s minimum sentence 

based upon a preponderance of the evidence that the defendant was dealing 

drugs and possessed a firearm, or that a firearm was in close proximity to 

the drugs.” Newman, supra at 98. Thus, this Court vacated Newman’s 

PWID sentence and remanded for resentencing without imposition of the 

mandatory minimum under Section 9712.1. See also Commonwealth v. 

Valentine, 101 A.3d 801 (Pa.Super. 2014) (extending logic of Alleyne and 

Newman to Sections 9712 and 9713 and holding those sections are likewise 
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unconstitutional insofar as they permit automatic increase of defendant’s 

sentence based on preponderance of evidence standard; Commonwealth and 

trial court’s attempt to cure unconstitutional provisions of statutes by 

including questions on verdict sheet regarding whether defendant possessed 

firearm and whether robbery occurred in or near public transportation, did 

not remedy fundamental unconstitutionality of statutes; in presenting those 

questions to jury, trial court performed impermissible legislative function by 

creating new procedure in effort to impose mandatory minimum sentences 

in compliance with Alleyne; trial court lacked authority to allow jury to 

determine factual predicates of Sections 9712 and 9713, where statutes are 

not severable and are unconstitutional in their entireties). Accord 

Commonwealth v. Hopkins, ___ A.3d ___, 2015 WL 3949099 at *11-13

(Pa. June 15, 2015) (declaring mandatory minimum statute at 18 Pa.C.S.A. 

§ 6317 unconstitutional in its entirety under Alleyne, where statute stated 

its provisions were not elements of crime and applicability of statute should 

be determined at sentencing by preponderance of evidence; Commonwealth 

could not cure unconstitutionality of Section 6317 with special verdict sheet 

that presented interrogatories to jury regarding facts required to trigger 

mandatory minimum). 

Subsequently, this Court directly addressed the constitutionality of 

Section 7508 in Commonwealth v. Vargas, 108 A.3d 858 (Pa.Super. 

2014) (en banc), where the trial court imposed a mandatory minimum 
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sentence for a PWID conviction, pursuant to Section 7508(a)(7)(iii). On 

appeal, this Court emphasized that Section 7508 “is structured in the same 

manner as the statutes at issue in Newman and Valentine....” Id. at 876-

77. This Court concluded that Section 7508 is also unconstitutional in its 

entirety and cannot be severed. Id. 

Here, the jury convicted Appellant of PWID and related offenses. The 

verdict sheet specifically asked the jury to answer, inter alia, the following 

questions: “Do you find [Appellant] guilty of possession with the intent to 

deliver a controlled substance?”; “If yes, do you find [Appellant] guilty of 

possession with intent to deliver a controlled substance—cocaine in an 

amount greater than 10 grams?” (Verdict Sheet, dated 8/1/13, at 1). The 

jury answered both of these questions affirmatively. At sentencing, the 

court imposed a five (5) year mandatory minimum sentence for Appellant’s 

PWID conviction, pursuant to 18 Pa.C.S.A. § 7508. When it asked the jury 

to find beyond a reasonable doubt the factual predicates for the mandatory 

minimum sentence at Section 7508, the trial court performed an 

impermissible legislative function, as the relevant statutes are not severable 

and are unconstitutional in their entireties. See Hopkins, supra; Vargas, 

supra; Valentine, supra; Newman, supra. Therefore, the court’s 

imposition of the Section 7508 mandatory minimum sentence was unlawful. 

Accordingly, we affirm Appellant’s convictions but vacate the judgment of 

sentence and remand for resentencing without imposition of a mandatory 
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minimum term under 18 Pa.C.S.A. § 7508. 

Judgment of sentence vacated; case remanded for resentencing. 

Jurisdiction is relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/15/2015
j_ .. 

1 

11111111111111111 Ill II Ill 

7181028831 

CP-51-CR-0005889-2012 Comm. v. Headon, Sir-Khan 

Opinion 

range. 

amounts attributable to Defendant causing an improper application of the mandatory sentencing 

crime thus entitling him to a new trial and; (3) whether the Commonwealth failed to show drug 

whether there was insufficient evidence to prove Defendant guilty of each element of every 

following issues on appeal: (1) whether the verdict was against the weight of the evidence; (2) 

K&I charge. Defendant appealed this judgment of sentence to the Superior Court and raised the 

on the conspiracy charge, to run consecutively to the PWID charge and no further penalty on the 

Defendant to 5 to 10 years state incarceration on the PWID charge, five years reporting probation 

intentional possession of a controlled substance possession. (K&l). This Court sentenced 

of possession with intent to deliver a controlled substance (PWID), conspiracy and knowing and 

Defendant Sir-Khan Headon appeared before this Court for a jury trial and was convicted 

OPINION 

BRINKLEY, J. AUGUST 1, 2014 

SIR-KHAN HEADON 

'(Jd \0 \O\l\S\Q"~\O\Jtf~~~\:l \\UO S\'00d~ v . · · 

,\Ol\ Q)}{W SUPERIOR COURT 

031,=' 1570 EDA 2014 

vs. 

COMMONWEALTH CP-51-CR-0005889-2012 

IN THE COURT OF COMMON PLEAS 

FIRST JUDICIAL DISTRICT OF PENNSLYV ANIA 

CRIMINAL TRIAL DIVISION 

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2 

PROCEDURAL HISTORY 

On December 2, 2011, Defendant was arrested and charged with PWID, conspiracy and 

K&I. On August 1, 2013, a jury found Defendant guilty of PWID, conspiracy and K&I. On 

October 11, 2013, this Court sentenced Defendant to 5 to 10 years state incarceration on the 

possession with intent to deliver charge, five years reporting probation on the conspiracy charge 

to run consecutively to the possession with intent to deliver a controlled substance charge and no 

further penalty on the K&I charge. This Court ordered Defendant to undergo random urinalysis, 

complete job training and anger management, to seek and maintain employment, stop selling and 

using drugs and to pay court costs and fees. 

On October 13, 2013, Defendant filed a Motion to Reconsider Sentence through counsel, 

which was denied by operation oflaw on May 1, 2014. On May 20, 2014, Defendant filed a 

Notice of Appeal to Superior Court. On June 9, 2014, upon receipt of the notes of testimony, 

this Court ordered defense counsel to file a Concise Statement of Errors Complained of on 

Appeal Pursuant to Pa. R.A.P. 1925(b) and defense counsel did so on June 27, 2014. 

FACTS 

On July 31, 2013, the trial in this matter began with Defendant and co-Defendant Robin 

Pickron ("Pickron"). The Commonwealth attorney was Christina Pastrana, Esquire and defense 

counsel for Defendant was Raymond C. Driscoll, Esquire. The Commonwealth called its first 

witness, Agent Michael Grnitter ("Gmitter") to the stand to testify. Gmitter testified that he had 

been an agent for nine years and that he was on duty on December 2"d, 2011. He stated that his 

duties as an agent were to serve body warrants and on the night of December 2"d, 2011, his duties 

took him to 421 Winton Street. He testified that the target at that address was Defendant. He 

stated that it was not Defendant's last known address, but what brought them to that address was 

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that the unit received information that Defendant was staying there at that time. He testified that 

he had approximately 12 agents with him on that day. He testified that they arrived around 6:30 

a.m. and knocked and announced their presence at the front door. They then entered the twow 

story row home, and he went up the steps leading to the second story rear bedroom. He testified 

that he was the first one to go up the steps and upon doing so, he saw Pickron exit the bedroom 

about 15 feet away from him. (N.T. 7/31/2013 p. 55w58). 

Agent Gmitter testified that Pickron went with other officers and he went into the 

bedroom, where he encountered Defendant. He testified that he handcuffed Defendant and 

searched his person. He testified that while searching Defendant, he saw an open dresser drawer 

next to the bed with packets of a green leafy substance and a large sum of cash. He identified the 

packets in the courtroom and they were entered into evidence. Agent Gmitter testified that 

Defendant was wearing sleeping clothes when he first saw him, but before Defendant was taken 

out of the house, he was given the opportunity to get dressed. He stated that he completed a 

report after the arrest of Defendant and that he conferred with his supervisor at the scene 

regarding the items in the dresser. He testified that Philadelphia police officer Gergory Barber 

arrived, and Gmitter showed him the dresser drawer. At that point, Defendant was taken into 

custody and transported away. He stated that while at the property, he saw two or three other 

people and it was a mixture of adults and juveniles. Id. at 58w62. 

The Commonwealth next called Officer Gregory Barber ("Barber") to the stand to testify. 

Barber testified that he had been a Philadelphia police officer for 18 years and in the Narcotics 

Field unit for 13 years. He explained that in the Narcotics Field Unit he worked in plain clothes, 

made undercover drug transactions, prepared search warrants and assisted those who executed 

search warrants. He testified that on December 2, 2011 he was called to assist an agent around 

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7:00 a.m. at 421 Winton Street. He testified that when he arrived at the location he met Agent 

Gmitter outside who took him inside and showed him a dresser in the second floor rear bedroom. 

He stated that in the drawer he saw marijuana packaging and large sums of money. He testified 

that the items recovered were 7 red Ziploc packets of marijuana and approximately $1300 of 

United States currency. He testified to the property receipt he filled out and the information it 

contained for it to be processed by the Philadelphia police department. He testified that the test 

on the packages returned a positive reaction for marijuana. Id. at 83-88. 

Officer Barber testified that the property receipt that was entered into evidence as C- 7, 

indicated $1,342 that was recovered from the dresser drawer. He stated the money was folded in 

a pile and in different denominations: sixty $20 bills, eight $10 bills, nine $5 bills, and one $1 

bill. He testified that the packaging was not tested for fingerprints as it was not in the practice of 

the Narcotics Field Unit to do so, since the packets ostensibly came into contact with many 

different people. He stated that the house was secured and that there were three to four people 

present, two of whom were Defendant and Pickron. He testified that he followed the procedure 

he normally does after securing a location, which involved returning to headquarters and 

preparing a search warrant that an attorney district reviewed before sending to a judge. He 

testified that in this case, he returned to the property after the judge approved the warrant about 

three hours after the property was first secured. Id. at 88-94. 

Officer Barber testified that he helped execute the search warrant at 421 Winton Street. 

He testified that he recovered a pocketbook from the rear bedroom that had clear sandwich bags 

and a larger bag of marijuana with multiple sandwich baggies of cocaine and a white pill bottle. 

He testified that the packets with cocaine had a total of 5 8. 7 grams of cocaine, and they came 

back positive for cocaine using the NIK test. The baggies with marijuana also came back 

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positive for marijuana when he used the NIK test. He stated that the white alleged Xanax pills 

were stamped with 'G372 l .' He testified that a digital scale that had white residue was 

recovered, as well as an additional $132. He stated that in the kitchen there was a large freezer 

Ziploc bag containing eight sandwich baggies with alleged marijuana for a total weight of 221.3 

grams of marijuana. He testified there were also letters addressed to Robin Pickron at 421 

Winton Street. Officer Barber identified the Ziploc bags, scale and property receipt for the $132 

while on the stand and they were all entered into evidence. He stated that these items were not 

preserved for fingerprints and that it was not part of the normal practice to do so. Id. at 94- 103. 

Officer Barber testified that Pickron and Defendant were placed under arrest and 

Defendant was charged for his relationship to the narcotics. He testified that when he asked 

Defendant biographical information to fill out on a police report, Defendant told Officer Barber 

that his address was 421 Winton Street. He testified that Pickron also stated the same as her 

address and said that she resided with her boyfriend. Id. at 103-110. 

Next, the Commonwealth called Police Officer Theresa Weaver ("Weaver") to the stand 

to testify. Officer Weaver testified that she had been a police officer for 19 years and had been 

part of the Narcotics Field Unit for 17 years. She testified that for 11 years she had been partners 

with Officer Barber and that she was involved in the investigation on December 2, 2011. She 

stated that she was part of the team that executed the search warrant at 421 Winton Street. She 

stated that her role was to assist in searching the property. She testified that she recovered a 

freezer bag that contained eight clear sandwich baggies from a kitchen cabinet. She stated that 

she also recovered two letters for Pickron addressed to 421 Winton Street. She stated that she 

placed Pickron under arrest and supervised her as Pickron went upstairs to get clothes to change 

into from the rear bedroom. Id. at 135-139. 

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The Commonwealth read a stipulation, by and between counsel, stating that if chemist 

Maryama Shagu of the Philadelphia Police Department chemistry lab were called to testify she 

would testify in accordance with the report she prepared that the seven red Ziploc bags tested 

positive for marijuana as did the two clear plastic bags. Further, if analyst Samuel Jose were 

called to testify, he would testify that he analyzed the clear Ziploc bag containing eight clear 

bags, each with marijuana. He would testify that each bag weighed 27.8 grams. He would 

testify that he also analyzed two clear Ziploc bags and found that they held marijuana and each 

weighed 9 .28 grams. He also analyzed the clear plastic bag containing white powder, which 

tested positive for cocaine in the amount of 18.37 grams. He analyzed one clear Ziploc bag that 

contained I 02 heat-sealed green packets, each containing off-white powder and they each tested 

positive for cocaine in the amount of .496 grams. He analyzed the white plastic bottle containing 

the tablets marked '03721,' which tested positive for alprazolam, colloquially known as Xanax. 

Lastly, he analyzed the white substance on the digital scale, which tested positive for marijuana 

and cocaine. Id. at 150-155. 

Following the stipulations, the Commonwealth called police officer Kevin Keys 

("Keys"). Officer Keys testified that he is part of the Narcotics Field Unit, but was not involved 

in this particular case. He testified that he had been a Philadelphia police officer for 25 years, 

was in the Narcotics Field Unit for 13 years and was a drug enforcement officer for 7 years. He 

explained what type of training he received as a drug enforcement officer and as a member of the 

Narcotics Field Unit, including training in identifying narcotics, packaging, retrieving stashes, 

among other areas. He stated that he had been involved in over 3,000 different narcotics-related 

investigations and that those investigations ranged from surveillance to executing warrants to 

long-term investigations of an organization. He testified that marijuana and cocaine are 

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considered narcotics. He stated that he had received ongoing training, attending courses at the 

DEA, Northeast Counter Drug Training, Top Gun Training and a 100 hour course through 

McLaughlin, among other types of training. He stated that he has testified as an expert in the 

area of narcotics sales and packaging over 1,500 times in the Court of Common Pleas, Juvenile 

Court and Federal Court. Officer Keys was offered and accepted by the Court as a narcotics 

expert specifically in the area of narcotic sales and packaging in the city and county of 

Philadelphia, to no objection. Id. at 156-162. 

Officer Keys testified that he reviewed the evidence in this case. Particularly, he 

reviewed the amounts of marijuana, the packets, the bags and the contents therein. He testified 

that the pink bags with the marijuana in them would be sold as for roughly $35 as a quarter of an 

ounce. He testified that the bigger bag containing 8 bags had about 28 ounces of marijuana in 

each bag and would sell for $120 to $360 per ounce, depending on the quality of the marijuana. 

He stated that another bag, in which there was roughly 222 grams, would sell for $500 in bulk, 

but if broken down into eight bags, would be worth $920. Regarding the cocaine, he testified 

that the amount of cocaine in just one packet weighed about .496 milligrams, which would sell 

for around $40. He testified that the total weight of the bags was over 50 grams. He stated the 

bulk price for the amount of cocaine would be $2000, but if sold the way it was packaged, they 

would retrieve around $4000 in sales. He testified that the multitude of small packets and the 

larger packets were associated with a distributor. He testified that he had never seen a drug user 

with that amount of small packets of cocaine. He stated that the scale was also associated with a 

distributor in his experience because distributors use them to make small packets. Id. at 156-168. 

He testified that the pills, which were found to be alprazolam, were consistently diverted 

from medicinal use to illegal street sales. He testified that each pill sells for around $3, so a 

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bottle of 67 pills would be worth around $200. He stated that in total, the value of the drugs 

recovered from the scene was around $9,600, between the marijuana, cocaine and the pills. He 

testified that he also considered the other items recovered from the scene, like the cash and the 

baggies. He stated that the denominations of the bills and quantity of different denominations 

correlated to the amount the drug packets would sell for on the street. He testified that in his 

expert opinion the drugs recovered were possessed with intent to distribute. He testified that he 

further supported his conclusion with the information he reviewed in the police reports that 

indicated that Defendant and Pickron were unemployed, which did not coincide with the amount 

of cash and drugs in the home. Id. at 168-172. The Commonwealth then rested its case. 

On the second day of trial, defense counsel presented two stipulations by and between 

counsel. First, that if the custodian of records for the Pretrial Service Division of the First 

Judicial District were called to testify, he would testify that the division is responsible for 

interviewing all arrested and charged individuals. He would testify that on December 3, 2011, 

Defendant was interviewed by a representative of the division and he provided his address as 

1436 Catharine Street in Philadelphia. He would further testify that Defendant stated that he was 

employed doing demolition work and made $150 week, when he was interviewed about his 

employment. (N.T. 8/1/2013, p. 48-49.) 

The second stipulation presented was that if the custodian of records for the clerk of 

courts for the First Judicial District were called to testify, he or she would testify that the address 

ofrecord for Defendant as reflected in the official court file for this case was 1436 Catharine 

Street in Philadelphia. Counsel for Defendant then rested. Counsel for Pickron entered a 

stipulation, by and between counsel, that when Pickron was interviewed by the Pretrial Services 

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be reversed only in the extraordinary situation where the jury's verdict is "so contrary to the 

appellate court cannot substitute its judgment for that of the fact finder; therefore, a verdict will 

2005 PA Super. 383, 888 A.2d 847, 851 (2005) (quoting Champney, 832 A.2d at 408). An 

court palpably abused its discretion in ruling on the weight claim." Commonwealth v. Kim, 

is against the weight of the evidence, ... rather, appellate review is limited to whether the trial 

below, an appellate court's role is not to consider the underlying question of whether the verdict 

435, 832 A.2d 403, 408 (2003)). In addition, "where the trial court has ruled on the weight claim 

2006 PA Super. 143, 902 A.2d 542, 546 (2006) (quoting Commonwealth v. Champney, 574 Pa. 

none of the evidence and to determine the credibility of the witnesses." Commonwealth v. Rice, 

weight of the evidence is "exclusively for the finder of fact who is free to believe all, part, or 

1028 (2004) (citing Commonwealth v. Bennett, 2003 PA Super. 212, 827 A.2d 469 (2003)). The 

sufficient to sustain the verdict. Commonwealth v. Smith, 2004 PA Super. 77, 853 A.2d 1020, 

Under Pennsylvania law, a weight of the evidence claim concedes that the evidence was 

The verdict in this case was not against the weight of the evidence presented at trial. 

I. THE VERDICT WAS NOT AGAINST THE WEIGHT OF THE EVIDENCE. 

DISCUSSION 

I. WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF THE 

EVIDENCE. 

II. WHETHER THERE WAS SUFFICIENT EVIDENCE TO PROVE DEFENDANT 

GUILTY OF EACH ELEMENT OF EVERY CRIME CHARGED. 

III. WHETIJER THE COMMONWEAL TH FAILED TO SHOW THE WEIGHT OF 

DRUGS ATTRIBUTABLE TO DEFENDANT CAUSING AN IMPROPER 

IMPOSITION OF A MANDATORY SENTENCE. 

ISSUES 

in the amount of $864, bi-weekly. Counsel for Pickron then rested. Id. at 50-51. 

Division she stated that she was given compensation from the Workmen's Compensation System 

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also entitled to all favorable inferences which may be drawn from the evidence. Commonwealth 

Commonwealth v. Rose, 463 Pa. Super. 264, 344 A.2d 824, 825 (1975)). The Commonwealth is 

Commonwealth v. Walter, 2004 PA Super. 147, 849 A.2d 265, 267 (2004) (citing 

evidence be reviewed in the light most favorable to the Commonwealth as verdict winner. 

A review of the sufficiency of the evidence to support a conviction requires that the 

1. Sufficiency of the evidence. 

deliver a controlled substance and possession of a controlled substance. 

possession with intent to deliver a controlled substance, conspiracy to possess with the intent to 

The evidence adduced at trial was sufficient for the jury to convict Defendant of 

II. THERE WAS SUFFICIENT EVIDENCE TO FIND DEFENDANT GUILTY OF 

EACH OF THE CRIMES CHARGED. 

sense of justice, thus, this Court's decision should not be disturbed on appeal. 

of cocaine, a large amount of marijuana, pills and cash. The jury's verdict did not shock one's 

approximately $1300. In that same bedroom, was a woman's purse which contained 58.7 grams 

Defendant was found, next to a night table, were marijuana and a large sum of cash, 

sleeping and where they found a large amount of narcotics. In the very bedroom where 

from police officers who executed a search warrant in the home where Defendant had been 

adduced at trial. As discussed in more detail below, the jury heard evidence from an agent and 

In the case at bar, the verdict determined by the jury was supported by the evidence 

Commonwealth v. Drumheller, 570 Pa. 117, 808 A.2d 893, 908 (2002)). 

(1994)); Commonwealth v. Smith, 580 Pa. 392, 861 A.2d 892, 896 (2005) (citing 

A.2d 519, 528 (2003) (citing Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177, 1189, 

right may be given another opportunity to prevail. Commonwealth v. Tharp, 574 Pa. 202, 830 

evidence as to shock one's sense of justice" and the award of a new trial is imperative so that 

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11 

defendant possessed a controlled substance with the intent to deliver it." Commonwealth v. 

offense of possession with intent to deliver when it "proves beyond a reasonable doubt that the 

possession with intent to deliver a controlled substance. The Commonwealth establishes the 

The evidence adduced at trial was sufficient to support finding Defendant guilty of 

2. The evidence was sufficient to convict Defendant of possession with intent to 

deliver a controlled substance. 

v. Cassidy, 447 Pa. Super. 192, 194, 668 A.2d 1143, 1144 (1995)). 

Commonwealth v. Lambert, 2002 PA Super. 82, 795 A.2d 1010 (2002) (citing Commonwealth 

is so weak and inconclusive that, as a matter of law, no probability of fact could be concluded. 

defendant's innocence; rather, any doubt is to be resolved by the fact-finder unless the evidence 

circumstances established by the Commonwealth need not eliminate any possibility of the 

(citing Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403, 408 (2003)). The facts and 

782 A.2d at 574); Commonwealth v. Kim, 2005 PA Super. 383, 888 A.2d 847, 851 (2005) 

Commonwealth v. Frisbie, 2006 PA Super. 430, 889 A.2d 1271, 1274 (2006) (citing DiStefano, 

received at trial and the appellate court cannot substitute its judgment for that of the fact-finder. 

received. Id. However, the trier of fact is entitled to believe all, part or none of the evidence 

appellate court must examine the entire trial record and consider all of the evidence actually 

When determining whether the evidence is sufficient to support a guilty verdict, the 

(2001)). 

496, 503 (2006) (citing Commonwealth v. DiStefano, 2001 PA Super 238, 782 A.2d 574, 582 

by wholly circumstantial evidence. Commonwealth v. Dargan, 2006 PA Super. 74, 897 A.2d 

sufficient if it establishes each material element of the crime beyond a reasonable doubt, even if 

A.2d 418, 420 (1997)). The evidence put forth by the Commonwealth will be considered 

v. Sanchez, 2006 Pa. LEXIS 1833 (2006) (citing Commonwealth v. Collins, 550 Pa. 46, 50, 703 

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Little, 2005 PA Super. 251, 879 A.2d 293, 297 (2005) (citing Commonwealth v. Kirkland, 2003 

PA Super. 279, 831 A.2d 607, 611 (2003)). It is well settled in Pennsylvania that all the facts 

and circumstances surrounding possession are relevant in making a determination of whether 

contraband was possessed with the intent to deliver. Commonwealth v. Brown, 2006 PA Super. 

177, 904 A.2d 925, 931 (2006) (quoting Commonwealth v. Jackson, 435 Pa. Super. 410, 645 

A.2d 1366, 1368 (1994)). Relevant factors include "the particular method of packaging, the 

form of the drug, and the behavior of the defendant." Kirkland, 831 A.2d at 611 (citing 

Commonwealth v. Conaway, 2002 PA Super. 9, 791 A.2d 359 (2002)). 

In Little, the court found that the evidence was sufficient to sustain a conviction for 

possession with intent to deliver where police recovered a large quantity of drugs as well as 

"numerous items of drug paraphernalia," including Ziploc bags, a scale and a known cutting 

agent. 879 A.2d at 298. In Jones, police recovered a large quantity of drugs and cash from the 

defendant's car and an expert testified that the sheer quantity drugs and cash, coupled with the 

manner in which the drugs were packaged, indicated that the drugs were possessed with the 

intent to distribute. 2005 PA Super. 166, 874 A.2d 108, 122 (2005). The Jones court found this 

evidence to be sufficient to uphold a possession with intent to deliver conviction. Id. 

In the case at bar, the evidence was sufficient to convict Defendant of possession with 

intent to deliver a controlled substance. The facts and circumstances surrounding Defendant's 

arrest clearly indicate that Defendant possessed the drugs with the intent to deliver them. 

Defendant gave his address as 421 Winton Street, when arrested, which is where a significant 

amount of narcotics and cash were found. Defense counsel argued that there was no evidence 

that Defendant lived in that house and that he gave a different address later to the Pretrial 

Division, however, at the time of his arrest Officer Barber noted the address given by Defendant 

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The evidence adduced at trial was sufficient to support Defendant's conviction of 

criminal conspiracy. To prove criminal conspiracy, the Commonwealth must prove that "the 

defendant (1) entered into an agreement to commit or aid in committing 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. Jones, 2005 PA Super. 166, 874 A.2d 108, 

121 (2005) (quoting Commonwealth v. Murphy, 2002 PA Super 84, 795 A.2d 1025, 1038 

(2002), aff'd 577 Pa. 275, 844 A.2d 1228 (2004)). The overt act does not need to be committed 

by the defendant himself; it need only be committed by a co-conspirator. Commonwealth v. 

Bricker, 2005 PA Super. 307, 882 A.2d 1008, 1017 (2005) (citing Commonwealth v. Hennigan, 

himself as 421 Winton Street. (N.T. 7/31/2013, p. 101). In addition, the narcotics were divided 

up into smaller baggies to make it easier to sell to a wider audience. The jury heard evidence by 

stipulation regarding the analyses of the substances found in the house and how they tested 

positively for marijuana, cocaine and Xanax. The jury also heard evidence of the amount of 

drugs found at the residence, valued at $9600, as well as expert testimony of how drugs are 

commonly packaged and sol · hiladelphia. The Commonwealth's expert also testified that in 

his opinion the drugs wer posses ith the intent to deliver to others. In addition, in the very 

bedroom where Defendant was found, next to a night table, were marijuana and a large sum of 

cash, approximately $1300. In that same bedroom, was a woman's purse which contained 58.7 

grams of cocaine, a large amount of marijuana, pills and cash. Also, in the kitchen of this 

property which Defendant gave as his address, police found 221.3 grams of marijuana in the 

freezer. This evidence overwhelmingly indicated that Defendant and Pickron possessed drugs 

with the intent to distribute. 

3. The evidence was sufficient to convict Defendant of criminal conspiracy. 

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2000 PA Super. 145, 753 A.2d 245, 253 (2002)). Due to the nature of the crime, proof of 

conspiracy is almost always in the form of circumstantial evidence. Commonwealth v. Davalos, 

2001 PA Super. 197 A.2d 1190, 1193 (200l)(citing Commonwealth v. Kennedy, 499 Pa. 389, 

453 A.2d 927, 929-930 (1982)): It can be inferred by "the relation, conduct, or circumstances of 

the parties and the overt acts of the co-conspirators." Murphy, 197 A.2d at 1138 (quoting 

Commonwealth v. Johnson, 719 A.2d 778, 784-785 (Pa. 1998) (en bane), appeal denied739 

A.2d 1056 (Pa. 1999)). Relevant factors for the fact-finder to consider include "an association 

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

scene of the crime, and participation in the object of the conspiracy." Bricker, 882 A.2d at 1017 

(quoting Jones, 874 A.2d at 121-122). 

In the case at bar, this jury properly concluded that Defendant was guilty of conspiracy 

because Defendant was found to be living at the property where he changed from night clothes to 

street clothes, found in the rear bedroom where Pickron was coming from in her night clothes 

and where a large amount of drugs and cash were found. In fact, Defendant had clothes in the 

bedroom that he changed into when he knew he was under arrest. Most significantly, he gave 

the address of the residence as his own when questioned by officers for biographical information 

at the time of his arrest. Although he later stated his address as 1436 Catharine Street, at the time 

of his arrest, he gave his address as 421 Winton Street. In addition, Pickron told police she lived 

at 421 Winton Street with her boyfriend, namely, this Defendant. Indeed, the relationship, 

conduct or circumstances and overt acts of these parties in relation to the house and being present 

with each other, in close proximity to the drugs and cash was ample evidence for the jury in this 

case to find Defendant guilty of criminal conspiracy. 

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issue is in an area of joint control and equal access." Commonwealth v. Johnson, 611 Pa. 381, 

Additionally, "[c]onstructive possession may be found in one or more actors where the item in 

A.2d 1115, 1119 (Pa.Super.1990), appeal denied, 527 Pa. 664, 593 A.2d 840 ( 1991 )). 

circumstances infer such." Kinard (citing Commonwealth v. Nelson, 399 Pa.Super. 618, 582 

be found where no single piece of evidence establishes possession, but "the totality of the 

A.3d 1243 (2013) (internal quotation marks and citation omitted). Constructive possession may 

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super.2012), appeal denied, - Pa.--, 63 

Commonwealth v. Kinard, 2014 PA Super 41 (Pa. Super. Ct. Mar. 4, 2014) (quoting 

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. 

Superior Court: 

Possession can also be based on constructive possession, or in the words of the Pennsylvania 

so. 35 Pa. C.S.A. § 780-113(a)(l6); Commonwealth v. Pitner, 2007 PA Super 206, 928 A.2d 

1104, 1108 (2007). Marijuana is a controlled substance. 35 Pa. C.S.A. § 780-104(l)(iv). 

or intentional possession of a controlled substance by a person not authorized under the law to do 

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

4. The evidence was sufficient to convict Defendant of possession of a controlled 

substance. 

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convicted Defendant of possession of a controlled substance. 

person who was authorized to possess marijuana, cocaine or Xanax and the jury properly 

when questioned about his residence at the time of his arrest. Finally, Defendant was not a 

Defendant provided the address of the house in which he was found sleeping to Officer Barber 

same bedroom was a purse with a large amount of cocaine, marijuana and Xanax. Further, 

the specific dresser drawer where police found a large amount of cash and marijuana. In that 

to where he slept in an open dresser drawer. In fact, Defendant was found by police right next to 

area of the house where Defendant had equal access and control to the drugs, as they were next 

that Defendant was in constructive possession of the drugs because the drugs were found in an 

(N.T. 8/1/2013, p. 150-151). Based on the totality of the circumstances, the jury properly found 

A person can be guilty of possessing an item even when he or she 

is not holding it or touching it or in the same area as the item. That 

type of possession is what the law calls constructive possession. 

For there to be constructive possession, it must be proved beyond a 

reasonable doubt that the individual had both the intent to control 

the item and the power the control the item. In determining 

whether or not each defendant had possession of a controlled 

substance, you should consider all of the facts and circumstances 

that may shed light on the question of whether each defendant had 

the intent to control and the power to control the substance. Two or 

more persons may have joint possession of a controlled substance 

provided each has the intent to exercise joint control over that 

substance and that each has the power to control it. Each of the 

joint possessors is regarded as having possession of the controlled 

substance for purposes of the 

criminal law. 

possession: 

In the case at bar, the jury was given the following jury instruction regarding constructive 

548, 550 (1992)). 

407, 26 A.3d 1078, 1094 (2011) (quoting Commonwealth v. Valette, 531 Pa. 384, 388, 613 A.2d 

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possession of the drugs in the house, thus the mandatory sentencing range was properly applied. 

50 grams. (N.T 7/31/2013, p. 166). As discussed above, the jury found Defendant guilty of the 

testimony that the total weight of cocaine found in the house at 421 Winton was approximately 

finding that the drug amounts attributable to Defendant's were above 10 grams. The jury heard 

In the case at bar, the mandatory sentencing range was properly applied to the jury's 

C.S.A. § 7508. 

sufficient to exhaust the assets utilized in and the proceeds from the illegal activity. 42 Pa. 

of another drug trafficking offense: five years in prison and $30,000 or such larger amount as is 

from the illegal activity; however, if at the time of sentencing the defendant has been convicted 

of $15,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds 

substance involved is at least ten grams and less than 100 grams; three years in prison and a fine 

In Pennsylvania, "when the aggregate weight of the compound or mixture containing the 

III. THE COMMONWEALTH ADEQUATELY SHOWED THE DRUG AMOUNTS 

ATTRIBUTABLE TO DEFENDANT AND AS A RESULT, THE MANDATORY 

SENTENCING RANGE WAS PROPERLY APPLIED. 

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~J. 

BY THE COURT: 

Therefore, this Court's decision should be upheld on appeal. 

amounts attributable to Defendant necessary to impose a mandatory minimum sentence. 

evidence to convict Defendant of PWID, conspiracy and K&I. The Commonwealth proved drug 

no error. The verdict was not against the weight of the evidence. The jury had sufficient 

After a review of the applicable statutes, case law, and testimony, this Court committed 

CONCLUSION 

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