J-S53020-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

JOSE RAMON

Appellant No. 1976 EDA 2018

Appeal from the Judgment of Sentence imposed June 21, 2018

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0001608-2017

BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

MEMORANDUM BY STABILE, J.: FILED DECEMBER 31, 2019

Appellant, Jose Ramon, appeals from the judgment of sentence imposed 

June 21, 2018 in the Court of Common Pleas of Philadelphia County after a 

jury convicted him of possession with intent to deliver (“PWID”), possession 

of a controlled substance, conspiracy to commit PWID, carrying a firearm 

without a license, and carrying a firearm on a public street.1 Appellant 

contends the evidence was insufficient to support the verdicts and that the 

verdicts were against the weight of the evidence. Following review, we affirm.

The trial court provided a thorough summary of testimony from 

Appellant’s trial as follows: 

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

18 Pa.C.S.A. § 6106 and 18 Pa.C.S.A. § 6108. The trial judge found Appellant 

guilty of possession of a firearm by a prohibited person, 18 Pa.C.S.A. § 6105. 
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At about 11:30 a.m., December 15, 2016, Philadelphia Police 

Officer Charles Harron, an experienced and trained narcotics 

officer assigned to the Narcotics Enforcement Team, along with 

other narcotics officers, went to the 1900 block of East Wishart 

Street in Philadelphia, a location known for drug trafficking, to 

investigate drug dealing. Officer Harron and his partner began 

surveilling the area from inside a parked car. Upon arrival at the 

location, Officer Harron observed, with the aid of binoculars, 

Appellant sitting inside a white Ford Explorer parked on the south 

side of Wishart Street talking to a male later identified as Nicholas 

Dagostino through the vehicle’s driver’s side window. 

At about 11:35 a.m., a male later identified as Charles Fritz came 

into the officer’s view. Fritz engaged Dagostino, who was standing 

across the street from where Appellant was parked, in a short 

discussion following which Dagostino removed a clear plastic bag 

containing small green tinted objects, took an object from the bag 

and handed it to Fritz, who gave [] Dagostino U.S. currency. Fritz 

left the area and Officer Harron directed members of his backup 

team to stop Fritz, which they did a short time later.

After conducting the transaction with Fritz, Dagostino walked over 

to Appellant, who was still sitting in the Explorer, and handed him 

U.S. currency which Dagostino removed from his pocket while 

walking toward Appellant’s vehicle. Appellant exited the vehicle 

after accepting the money from Dagostino and walked out of the 

officer’s view, into an alleyway situated between two houses. 

Appellant walked out of the alleyway a couple of minutes later, 

walked over to Dagostino, and handed Dagostino an object he put 

into his sleeve. Appellant then returned to the Explorer and 

Dagostino returned to the spot where Officer Harron first saw him.

Shortly thereafter, two males, later identified as Robert Quintua 

and David Esworthy, separately approached Dagostino and 

engaged in [] transactions with them identical to the one 

Dagostino engaged in with Fritz. Quintua and Esworthy then left 

the area and were stopped by members of Officer Harron’s backup 

team. 

After Esworthy left, Dagostino again walked over to Appellant, 

removing money from his pocket and gave the money to 

Appellant. Dagostino then began walking eastbound on Wishart 

Street and Officer Harron directed members of his back-up team 

to apprehend Appellant and Dagostino. Both men were then 
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placed under arrest, Dagostino in the 2000 block of Wishart 

Street, and Appellant, who had gotten in the Explorer and had 

begun driving from the area, at the intersection of Wishart and 

Jasper Street. Following their arrests, Officer Harron instructed 

back-up Officer Gerald Logan to go into the same alleyway 

Appellant had earlier been seen entering. Officer Harron joined 

Officer Logan in the alleyway soon thereafter and recovered a 

black bag. Officer Harron then identified each of the persons 

mentioned above before he returned to police headquarters to 

complete paperwork.

Officer Jonathan Czapor, also an experienced narcotics officer, 

stopped Fritz and had him surrender a small green container filled 

with what later testing revealed to be cocaine base. The officer 

also stopped Quintua together with Police Officer Logan. Finally 

Officer Harron stopped Esworthy as he drove away from the 

location where he had engaged in the transaction with Dagostino. 

Esworthy handed over a green container, which also had what 

turned out to be cocaine base inside it identical to the container 

seized from Fritz. 

When Officer Harron directed that Appellant be apprehended after 

he began driving off the block, Officer Czapor drove to the 

intersection of Wishart and Jasper Streets and blocked Appellant’s 

vehicle from driving away. The officer then had Appellant exit the 

vehicle and placed Appellant under arrest. A search of Appellant’s 

person yielded $378.00. A search of the Explorer [Appellant] was 

driving was negative for contraband.

As noted above Officer Logan participated in the stop of Quintua. 

Quintua handed over a green container of what turned out to be 

crack cocaine, which packet was identical to the container seized 

from Fritz.

As previously mentioned, following the stop of Quintua, Officer 

Harron had instructed Officer Logan to go into the alleyway where 

the Officer observed Appellant enter earlier that morning. In that 

alleyway, Officer Logan recovered a black drawstring school bag 

that contained three separate bags one of which contained 

numerous green containers that testing showed had cocaine base 

inside them and that were identical to the containers seized from 

the three buyers, and another that contained numerous packets 

of white powder suspected to be cocaine. The school bag also 
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contained an operable .45 caliber Hi-Point handgun loaded with 

eight rounds.

Philadelphia Police Officer Oswaldo Toribio apprehended 

Dagostino in the 2000 block of Wishart Street. From inside a 

sleeve of the sweatshirt Dagostino was wearing, Officer Toribio 

recovered a plastic bag that contained eighteen green containers 

filled with what turned out to be cocaine base and $40.00.

Trial Court Rule 1925(a) Opinion, 1/4/19, at 2-5 (footnotes2 and citations to 

notes of testimony omitted).3

On June 21, 2018, the trial court sentenced Appellant to an aggregate 

term of seven to fifteen years’ incarceration. Appellant did not file a postsentence motion but did file a timely appeal. Both he and the trial court 

complied with Pa.R.A.P. 1925.

Appellant raised one issue in his Rule 1925(b) statement:

1. The evidence adduced at trial was insufficient as a matter of 

law to support convictions on the charges of [PWID], 

conspiracy, and possession of a firearm without a license.

Appellant’s Rule 1925(b) Statement at 1.4

In his brief filed with this Court, Appellant presents two issues:

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2 The omitted footnotes reflected the parties’ stipulation that testing of 

contents of all containers confirmed that the substance in the green containers 

was cocaine base and the powder was cocaine powder. The parties also 

stipulated that the handgun was operable and that Appellant was not licensed 

to carry a firearm. 

3 We have taken the liberty of correcting several misspellings of police officer 

names in the trial court’s opinion.

4 We remind Appellant’s counsel of the requirement to append a copy of the 

Rule 1925 statement to Appellant’s brief. Pa.R.A.P. 2111(a)(11) and (d).
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I. Was the evidence sufficient as a matter of law to convict 

appellant beyond a reasonable doubt on the charges of 

[PWID]; conspiracy; possession of a controlled substance, 

as well as possession of a firearm in violation of Sections 

6105, 6106, and 6108 of the Uniform Firearms Act?

II. Was the jury’s verdict against the weight of the evidence?

Appellant’s Brief at 4.

It is well-settled that issues not preserved in a party’s Rule 1925(b) 

statement are deemed waived. Commonwealth v. Lord, 719 A.2d 306, 309 

(Pa. 1998). Therefore, Appellant’s sufficiency challenges in relation to 

possession of a controlled substance, carrying a firearm on a public street, 

and possession of a firearm by a prohibited person are waived and we shall 

not consider them. Similarly, Appellant’s weight of the evidence claim is 

waived.5

____________________________________________

5 Even if raised in Appellant’s Rule 1925(b) statement, his weight of evidence 

claim would be deemed waived for failure to preserve it in a post-sentence 

motion or in either a written motion or an oral motion prior to sentencing. 

See Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa. Super. 2013); 

Pa.R.Crim.P. 607. Moreover, as phrased in his brief, Appellant contends the 

trial court erred by denying his motion for acquittal because the verdict was 

against the weight of the evidence. Appellant’s Brief at 23. “A motion for 

judgment of acquittal challenges the sufficiency of the evidence to sustain a 

conviction on a particular charge, and is granted only in cases in which the 

Commonwealth has failed to carry its burden regarding that charge.” 

Commonwealth v. Emanual, 86 A.3d 892, 894 (Pa. Super. 2014) (emphasis 

added) (citation omitted). Therefore, Appellant has not presented a proper 

weight of the evidence claim in any event. 
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The only sufficiency claims preserved in Appellant’s 1925(b) statement 

relate to PWID, conspiracy, and possession of a firearm without a license. Our 

standard of review for a sufficiency challenge is as follows: 

When reviewing the sufficiency of the evidence, an appellate court 

must determine whether the evidence, and all reasonable 

inferences deducible from that, viewed in the light most favorable 

to the Commonwealth as verdict winner, are sufficient to establish 

all of the elements of the offense beyond a reasonable doubt. It 

[is] incumbent upon the Superior Court to consider all of the 

evidence introduced at the time of trial, and apparently believed 

by the fact finder, including the expert’s testimony. In applying 

this standard, [the reviewing court must] bear in mind that: the 

Commonwealth may sustain its burden by means of wholly 

circumstantial evidence; the entire trial record should be 

evaluated and all evidence received considered, whether or not 

the trial court’s ruling thereon were correct; and the trier of fact, 

while passing upon the credibility of witnesses and the weight of 

the proof, is free to believe all, part, or none of the evidence.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1237 (Pa. 2007) (internal 

citations and quotations omitted; second alteration in original).

Before considering the merits of Appellant’s sufficiency challenges, we 

acknowledge that his sufficiency issues could be deemed waived for failure to 

“specify the element or elements of each crime upon which the evidence was 

insufficient” so this Court “can then analyze the element or elements on 

appeal.” Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 

2008) (citation omitted). In Commonwealth v. Roche, 153 A.3d 1063 (Pa. 

Super. 2017), this Court considered whether the appellant waived his 

sufficiency challenges. The Court examined Williams and observed that the 

appellant in that case filed a Rule 1925(b) statement simply averring there 
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was insufficient evidence to sustain his various convictions. Roche, 153 A.3d 

at 1072. Even in the absence of an objection from the Commonwealth and 

despite the fact the trial court addressed the issues in its Rule 1925(a) opinion, 

a finding of waiver was appropriate. Therefore, the Court in Roche

determined the appellant’s issues were waived. Id. (citing Williams, 959 

A.2d at 1257). 

Just as in Roche and Williams, Appellant’s Rule 1925(b) statement 

simply avers the evidence was insufficient to support his convictions. In 

keeping with those decisions, we could find Appellant’s issues waived. 

However, we are also cognizant that our Supreme Court has determined that 

review of a sufficiency claim may be appropriate under certain circumstances, 

despite a vague Rule 1925(b) statement. See Commonwealth v. Laboy, 

936 A.2d 1058 (Pa. 2007). Characterizing the case as a “relatively 

straightforward drug case,” the Court determined an analysis of appellant’s 

challenges to his drug trafficking and conspiracy convictions was proper, while 

recognizing that “in more complex criminal matters [] the common pleas court 

may require a more detailed statement to address the basis for a sufficiency 

challenge.” Id. at 1060. In Laboy, as in the instant case, “the common pleas 

court readily apprehended Appellant’s claim and addressed it in substantial 

detail.” Id. Therefore, guided by Laboy, we shall undertake a review of 

Appellant’s preserved sufficiency challenges, despite his failure to identify the 

element or elements of the crimes that he believes were insufficiently proven. 
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Again, the sole challenges preserved in Appellant’s Rule 1925(b) statement 

relate to his convictions of PWID, conspiracy, and possession of a firearm 

without a license. 

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

Court explained: 

To convict a person of PWID, the Commonwealth must prove 

beyond a reasonable doubt that the defendant possessed a 

controlled substance and did so with the intent to deliver it. In 

determining whether there is sufficient evidence to support a 

PWID conviction, all facts and circumstances surrounding the 

possession are relevant, and the Commonwealth may establish 

the essential elements of the crime wholly by circumstantial 

evidence. Factors to consider in determining whether the drugs 

were possessed with the intent to deliver include the particular 

method of packaging, the form of the drug, and the behavior of 

the defendant.

Id. at 1015 (citations omitted). With respect to conspiracy, the trial court 

noted: 

[A] person is guilty of conspiracy if, with the intent of promoting 

or facilitating the commission of a crime, he agrees with another 

person: (1) that one or more of them will engage in conduct which 

constitutes such crime; or (2) to aid in the planning or commission 

of such crime or of an attempt or solicitation to commit such 

crime. Proof of a formal or explicit agreement is unnecessary to 

prove the existence of a conspiracy. 

Trial Court Rule 1925(a) Opinion, at 6 (citing 18 Pa.C.S.A. § 903 and 

Commonwealth v. Garcia, 847 A.2d 67, 70 (Pa. Super. 2004)). The court 

then considered Appellant’s argument that he should not be convicted of PWID 

or weapons offenses because the drugs and guns “were not found in his 
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possession and the Commonwealth failed to prove that he possessed those 

items constructively.” Trial Court Rule 1925(a) Opinion, 1/4/19, at 6. 

As this Court explained in Commonwealth v. Hopkins, 67 A.3d 817 

(Pa. Super. 2013): 

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 psession

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.

Id. at 820 (quoting Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 

2012) (internal quotation marks and citation omitted)). “Additionally, it is 

possible for two people to have joint constructive possession of an item of 

contraband.” Id. at 820-21 (citation omitted). 

Based on the evidence presented at trial, the court concluded:

The evidence, when viewed in the light most favorable to the 

Commonwealth, clearly established that Appellant and Dagostino 

conspired to sell drugs and that Appellant constructively 

possessed the drugs found in the alleyway. The facts show that 

Appellant twice received money from Dagostino after Dagostino 

engaged in transactions on a public street involving small objects 

and U.S. currency. The fact that Dagostino exchanged small items 

for U.S. currency on a public street was itself sufficient to prove 

PWID.

Trial Court Rule 1925(a) Opinion, 1/4/19, at 7 (citations omitted). Therefore, 

because Dagostino shared the proceeds of those sales with Appellant, 

Appellant was a co-conspirator and was as guilty of selling the drugs as 
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Dagostino. Id. at 8. The court also recounted that Appellant entered the 

alleyway where the bag containing drugs and the gun were found. When 

Appellant exited that alleyway, he handed an object that Dagostino put into 

his shirtsleeve. “Under these circumstances, it was clearly reasonable for the 

jury to infer that the object Appellant retrieved from the alleyway and gave to 

Dagostino, who clearly transferred drugs to other persons[,] was taken out of 

the crack and cocaine filled bag found by Officer Logan in the alleyway.” Id. 

It was equally reasonable, the court concluded, for the jury to infer that the 

money given by Agostino to Appellant represented proceeds from the sales. 

“Thus, Appellant’s relationship with Dagostino both as a supplier of drugs and 

a repository of the money flowing from those sales was sufficient to prove 

Appellant guilty of the drug crimes.” Id. Further, the methods employed in 

the transactions demonstrated Appellant’s dominion and control, i.e., 

constructive possession, over the bag that contained drugs and the gun. Id. 

Appellant relies heavily on this Court’s decision in Commonwealth v. 

Ocasio, 619 A.2d 352 (Pa. Super. 1993), in support of his claim the 

Commonwealth failed to establish Appellant had constructive possession of 

the drugs. Ocasio is factually distinguishable. In that case, Ocasio was a 

resident of a house in which drugs were discovered and was one of six 

individuals in the house at the time of the search leading to discovery of the 

drugs. As this Court explained, there was no evidence Ocasio even knew of 

drug activity in the house and no evidence connecting him to drug 
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paraphernalia located on the premises. “After carefully examining all the

circumstances[,] we find that the Commonwealth has established no more 

than a mere suspicion that appellant agreed to participate or aid in the drug 

distribution.” Id. at 355. By contrast, in the instant case, Appellant received 

currency from Dagostino that Dagostino exchanged for packets containing 

drugs. Further, upon Appellant’s return from the alleyway where the bag with 

drugs was located, Appellant handed an object to Dagostino that Dagostino 

put into his shirtsleeve. In other words, in the instant case, there was 

evidentiary proof of Appellant’s involvement in the transactions, unlike in 

Ocasio where the Commonwealth proved nothing more than mere suspicion 

of Ocasio’s participation. 

Based on the evidence and reasonable inferences from that evidence, 

the trial court determined that the Commonwealth proved Appellant was guilty 

of PWID and conspiracy beyond a reasonable doubt. Considering “all of the 

evidence introduced at the time of trial, and apparently believed by the fact 

finder,” Ratsamy, 934 A.2d at 1237, we likewise conclude the Commonwealth 

proved Appellant’s guilt of those crimes beyond a reasonable doubt.

With respect to the gun, the above analysis also supports a finding that 

Appellant constructively possessed the gun retrieved from the bag that also 

contained the cocaine and cocaine powder. Therefore, based on the evidence 

and reasonable inferences drawn from that evidence, along with the parties’ 

stipulation that Appellant did not have a license to carry a firearm, see Notes 
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of Testimony, Trial, 2/18/18, at 155, we find the Commonwealth proved 

beyond a reasonable doubt that Appellant was guilty of possessing a gun 

without a license. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/31/19