MEMORANDUM BY OTT, J.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 6, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005039-2015 BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J. MEMORANDUM BY OTT, J.:
Angel Rosario appeals nunc pro tunc from the judgment of sentence imposed on January 6, 2017. Rosario was convicted in a non-jury trial of possession with intent to deliver a controlled substance (PWID), criminal conspiracy, and possession of a controlled substance. The trial judge sentenced Rosario to 15 to 30 months' incarceration, to be followed by four years of probation. Rosario challenges the sufficiency of the evidence to sustain his convictions. Based upon the following, we affirm.
35 P.S. § 780-116(a)(30), 18 Pa.C.S. § 903, and 35 P.S. § 780-113(a)(16), respectively.
The trial court's opinion fully sets forth the relevant facts and procedural history of this case. We simply state that Rosario was arrested after police conducted drug surveillance, on January 19, 2015, in the area of the 3400 block of A Street, and stopped and arrested an individual, Benjamin Montalvo, who had been seen engaging in a suspected drug transaction with Richard Lugo, and with Rosario nearby. Montalvo was found with three clear Ziploc packets with pictures of black stick figures containing cocaine.
Rosario raises three issues for our review, as follows:
Did the court commit error by convicting [Rosario] of possession with intent to deliver a controlled substance when the evidence at trial was insufficient to prove that [Rosario] ever possessed or distributed a controlled substance?
Did the court commit error by convicting [Rosario] of conspiracy to deliver a controlled substance when the evidence at trial was insufficient to prove that [Rosario] entered into any agreement with any other individual to distribute a controlled substance?
Did the court commit error when it convicted [Rosario] of possession of a controlled substance when the evidence at trial was insufficient to establish that [Rosario] ever possessed a controlled substance?
Rosario's Brief at 2.
Rosario contends the evidence at trial simply shows he engaged in conversation with Mr. Lugo, and the Commonwealth failed to present any evidence of an agreement between himself and Mr. Lugo regarding the distribution of a controlled substance, or any prior relationship. He further points out a search of his person uncovered only a small amount of currency and no controlled substances.
Rosario timely complied with the order of the trial court to file a Rule 1925(b) statement of errors complained of on appeal, following the grant of an extension of time, and preserved his sufficiency claims.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well reasoned opinion of the Honorable Kai N. Scott, container; when Mr. Lugo was arrested, he had $65, the blue M&M container that contained 13 clear packets of cocaine with a black stick figure and a black bag with seven clear jars with purple tops containing marijuana, and when the alleged second buyer, Benjamin Montalvo, was stopped, he also had on his person three clear Ziploc packets with pictures of black stick figures on them, each containing cocaine; clearly the same packets that had been re-supplied to Mr. Lugo by Rosario were of the same type that had been previously sold to the earlier buyers, including the second buyer Mr. Montalvo; (2) there is sufficient evidence to support the conviction for PWID and intentional possession of a controlled substance; all conspirators are liable for the actions of other conspirators, Commonwealth v. McCall , 911 A.2d 992, 997 (Pa. Super. 2006); the instant matter is even more compelling than McCall because Rosario actually possessed the drugs and re-supplied his co-conspirator, whereas in McCall the defendant had only acted as a lookout and received United States currency from the co-conspirator after two transactions). As we agree with the trial court's analysis, we affirm on the basis of the trial court opinion.
In the event of further proceedings, the parties are directed to attach a copy of the trial court's December 19, 2017, opinion to this memorandum. --------
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/1/18
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