Com. v. Shields, C. ( 2017 )

J-S58031-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHAUNCY K. SHIELDS :
:
Appellant : No. 1812 MDA 2016
Appeal from the Judgment of Sentence October 4, 2016
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0002938-2015
BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 10, 2017
Appellant, Chauncy K. Shields, appeals from the judgment of sentence
entered in the Cumberland County Court of Common Pleas, following his jury
trial convictions for two (2) counts of possession with intent to deliver a
controlled substance (“PWID”), two (2) counts of possession of drug
paraphernalia, and two (2) counts of criminal use of a communication
facility.1 We affirm.
The trial court’s opinion fully set forth the relevant facts and
procedural history of this case. Therefore, we have no reason to restate
them.
____________________________________________
1
35 P.S. § 780-113(a)(30) and (a)(32); 18 Pa.C.S.A. § 7512(a),
respectively.
J-S58031-17
Appellant raises three issues for our review:
DID THE COURT ERR WHEN IT CONCLUDED THAT
APPELLANT’S SENTENCE WAS NOT EXCESSIVE BECAUSE
IT WAS WITHIN THE STANDARD RANGE FOR
SENTENCING?
DID THE COURT ERR WHEN IT CONCLUDED THAT THE
EVIDENCE PROVIDED BY THE COMMONWEALTH WAS
SUFFICIENT FOR THE JURY TO FIND…APPELLANT GUILTY
OF THE CHARGES AGAINST HIM?
DID THE COURT ERR WHEN IT CONCLUDED THAT THE
JURY VERDICT WAS NOT SO CONTRARY TO THE EVIDENCE
AS TO SHOCK ONE’S SENSE OF JUSTICE?
(Appellant’s Brief at 7).2
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Merle L.
Ebert, Jr., we conclude Appellant’s issues merit no relief. The trial court
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed January 11, 2017, at 6-15)
(finding: (1) Appellant’s sentences were within standard range of sentencing
guidelines; court had benefit of presentence investigation (“PSI”) report and
____________________________________________
2
Appellant failed to include a Pa.R.A.P. 2119(f) statement in his appellate
brief, but the Commonwealth did not object. See Commonwealth v.
Robertson, 874 A.2d 1200, 1211 (Pa.Super. 2005) (stating when defendant
fails to include a Rule 2119(f) statement in appellate brief, and
Commonwealth has not objected, this Court can overlook omission and
review issue if substantial question is evident from appellate brief). But see
Commonwealth v. McNear, 852 A.2d 401, 408 (Pa.Super. 2004)
(concluding sentencing issue is waived when defendant does not include
Rule 2119(f) statement in appellate brief, and Commonwealth properly
objects to omission).
-2-
J-S58031-17
commentary from counsel and Appellant when it sentenced Appellant; PSI
report indicated Appellant had prior record score of 5 and lengthy and recent
criminal history, including guilty plea to felonies in 2011 and 2012; Appellant
committed current offenses while on state parole; court sentenced Appellant
on each count to standard range sentence based on his prior record score;
court would have been justified in imposing aggravated range sentence,
because Appellant committed offenses less than 100 days after he was
released from prison; when it sentenced Appellant, court considered PSI
report, Appellant’s background, need to protect public, gravity of offenses,
and Appellant’s rehabilitative needs; court did not have to state reasons for
deviating from the absolute bottom of standard range when imposing
Appellant’s sentence;3 (2) evidence demonstrated that on April 14, 2015,
and April 15, 2015, Appellant met CI and gave CI crack cocaine in exchange
for money; CI testified she knew Appellant as drug dealer; CI testified she
had used heroin and crack cocaine before she became informant;
undercover officers observed Appellant meet with CI on April 14, 2015, and
____________________________________________
3
The law does not require the sentencing court to echo the words of the
Sentencing Code, reciting every factor under Section 9721(b); instead, the
record as a whole must reflect the court’s consideration of the statutory
factors in light of the facts of the offenses and the offender’s character.
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa.Super. 2009),
appeal denied, 604 Pa. 706, 987 A.2d 161 (2009) (reiterating sentencing
court can satisfy requirement to place on record reasons for imposing
particular sentence by indicating court has considered PSI and weighed all
relevant statutory factors).
-3-
J-S58031-17
April 15, 2015; after meetings, CI provided police with baggies containing
substance, which Appellant stipulated was cocaine; police found no other
substance when they searched CI and her vehicle before and after
transactions; CI called same telephone number immediately before each
transaction to set up deals and both times she spoke with same person
whom she identified as Appellant; Appellant was identified as individual who
arrived to carry out drug transactions; jury could reasonably infer that CI
called Appellant and arranged purchase of crack cocaine from him; evidence
was sufficient for jury to convict Appellant of charges; (3) jury was able to
evaluate credibility of all witnesses and to weigh evidence; testimony and
evidence summarized in discussion of Appellant’s sufficiency claim showed
CI called Appellant on two separate occasions, arranged to meet with him to
buy cocaine, and met and bought cocaine from him twice; verdict was not
against weight of evidence). Accordingly, we affirm on the basis of the trial
court opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2017
-4-
Circulated 09/13/2017 04:18 PM
COMMONWEAL TH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CP - 21 - CR - 2938 - 2015
v. : CHARGES: (1) UNLAWFUL DELIVERY,
MANUFACTURE,
POSSESSION WITH INTENT
TO DELIVER A SCHEDULE II
CONTROLLED SUBSTANCE-
COCAINE (2 COUNTS)
(2) CRIMINAL USE OF
COMMUNICATION FACILITY
(2 COUNTS)
(4) UNLAWFUL POSSESSION
OF DRUG PARAPHERNALIA
(2 COUNTS)
CHAUNCY K. SHIELDS
OTN: T7090996 : AFFIANT: CPL. KEITH R. SEIBERT
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925(a)
Ebert, J., January 11, 2017 -
In this post-sentence appeal, Appellant challenges the sentence imposed upon
him and the weight and sufficiency of the evidence. This opinion is written pursuant to
Pa. R.A.P. 1925(a). Appellant's Concise Statements of the Errors Complained of on
Appeal, which he provided in narrative form, reads as follows:
The Defendant was sentenced to an aggregate state
sentence of 3-8 years on two deliveries of crack cocaine to a
friend working as a Confidential Informant ("Informant") with
the Drug Task Force, with weights of .59 grams and .14
grams, respectively via use of cellular telephones on both
occasions. The drug paraphernalia counts were costs only.
While the individual sentences are within the standard
ranges of the sentencing guidelines they are each at the
uppermost point of the standard range only three months
shy of the aggravated range without explanation or reasons
1
JAN 11 2017 JAN 11 2017
;- __ ::c:t)~t'.): . ·~ ,·'(·\!JI l_(+C~ < )f: ·····-------·-~····--
given and are excessive based on the record. Most of
Defendant's convictions resulting in his prior record score of
5 occurred between 2001 and 2003, i.e., 12-15 years ago.
Further, The evidence at trial was substantially based on the
suspect testimony of the Informant, an admitted drug user
with a faulty memory, and lacking in any other proof except
one surveillance photograph, which showed Defendant
exiting a Burger King restaurant holding a Burger King bag in
a Burger King parking lot, which would have contained a
hamburger if Defendant had been stopped and detained
right then. Instead, he was arrested at a later date.
Consequently, the verdicts were against the weight and
sufficiency of the evidence for the following reasons:
1. The Defendant was not the target of any police narcotics
investigation.
2. The Defendant's name as a drug seller and the nickname
"DQ" originated from the police civilian witness
("Informant"), an arrested and known heroin user that
police squeezed information from and forced her to tell
them a name of "who can you get drugs from right now,
today?".
3. It is alleged that the Defendant's cell phone was called
twice to set up drug deals, but neither the cell phone
carrier nor the owner of the cell number allegedly dialed
were admitted into evidence.
4. The police never spoke to the Defendant on the
telephone, but only claim they overheard the other party
had a "male voice".
5. A car was driven to the alleged drug deals with the
Informant, but no license or ownership information was
ever introduced at trial and the vehicle owner could have
been the "DQ" referred to at trial and setting up deals on
the phone casting doubt upon the Defendant as the
perpetrator.
6. In fact, there was another male in the car referred to in
the Burger King parking lot.
2
7. The alleged transactions were not "controlled buys" as no
marked money was used by police.
8. The alleged seller was never stopped and detained at the
scene of the alleged buys to determine if he had the buy
money or any cocaine or residue in his possession.
9. There was no fingerprint evidence to identify the
perpetrator.
10. The police and Informant both testified the Informant was
a heroin user at the time of the alleged drug deals, yet
the two buys were set up over the telephone for
purchases of crack cocaine; if the Informant and the
Defendant truly knew each other as testified to, the
Defendant would have known the Informant was a heroin
user and clearly would have been suspicious by the
request for crack cocaine.
11. There was no corroborating physical evidence of either
alleged drug deal or the parties involved.
12. Finally, at best, the riddled-with-holes prosecution might
support arguendo that Defendant was a "runner", but
even that scenario is not proven beyond a reasonable
doubt on the trial record.
Statement of Facts
On April 13, 2015, officers of the Cumberland County Drug Task Force made
arrangements to use the services of a Confidential Informant (hereinafter "Cl"), for the
purpose of performing controlled purchases of illegal narcotics.1 When asked to identify
individuals that the Cl knew could provide illegal narcotics to her, the Cl identified
Appellant, among others.2 The Cl identified Appellant as a drug dealer operating under
1
Notes of Testimony, In Re: Trial, September 20, 2016 at 73 (hereinafter, N.T. Trial Day 2 _).
2
Notes of Testimony, in Re: Trial, September 19, 2016 at 23 (hereinafter, N.T.Trial Day 1 _).
3
the street name of "DQ."3 At the time, Appellant was not under investigation by the Drug
Task Force,4 and the police did not provide Appellant's name to the Cl as a suggested
drug dealer or person of interest.5 On April 14, 2015, and April 15, 2015, the Cl called a
telephone number that she identified as Appellant's, in order to set up drug deals for the
purchase of crack cocaine.6 Both times, the Cl spoke to an indlvidual she identified as
Appellant while arranging the drug purchases.'
On April 14, 2015, Appellant agreed to meet Cl in the parking lot of the local
Burger King restaurant. Appellant was photographed arriving at the scene and entering
the Cl's vehicle.8 While inside the vehicle, Appellant provided the Cl with crack cocaine
in exchange for $100. 00 in official funds. 9 Appellant was not arrested at that time, based
on a strategic decision made by those members of the Drug Task Force present at the
scene."
On April 15, 2015, Appellant again agreed to meet Cl, for the purpose of selling
her crack cocaine. This meeting, originally scheduled for the parking lot of a local gas
station, had its location altered at the last moment, and occurred on the side of the
3
N.T. Trial Day 1 at 21.
4
N.T. Trial Day 2 at 120-121.
5
& at 73
6
N.T. Trial Day 1 at 22-23.
7
lg_ at 29.
8
N.T. Tria! Day 2 at 53.
9
&at 79.
10
& at 133-134 (wherein Corporal Seibert explained that, when investigated drug dealers, for strategic reasons
the Drug Task Force typically waits to arrange and carry out multiple drug buys before arresting the dealer).
4
road.11 The Cl picked up Appellant, drove around the block, and again purchased crack
cocaine from Appellant in exchange for $50.00 of official funds.12 While not
photographed on this occasion, Appellant was observed inside the Cl's vehicle and
exiting the vehicle by Corporal Keith Seibert.13 After both meetings, the Cl immediately
rendezvoused with members of the Drug Task Force, 14 and provided them substances
that Appellant stipulated contained cocaine. The Cl was searched prior to and after
meeting Appellant, and no other illegal substances were found on her person or in her
possession at any time. 15
Ultimately, as a result of the investigation Appellant was arrested and charged
with the instant offenses. After a continuance of arraignment on February 02, 2016, to
allow Appellant to secure counsel, Appellant was arraigned on March 01, 2016. The
pretrial conference was continued, at Appellant's request, from March 01, 2016, to May
04, 2016. The Commonwealth requested an unopposed continuance on May 16, 2016,
and the matter was rescheduled for trial on July 11, 2016. Due to the unavailability of
witnesses, the Commonwealth again moved to continue the trial date, over Appellant's
objection. The trial date was rescheduled to September 19, 2016, and the trial was
ultimately held on September 19, 2016, and September 20, 2016.
Appellant was tried on the above-captioned charges, and found guilty on all
counts by a jury of his peers. On October 04, 2016, Appellant was sentenced. At Count
11
N.T. Trial Day 1 at 31.
12
N.T. Trial Day 2 at 86.
13
& at 87-88.
14
N .T. Trial Day 2 at 78, 103.
15
& at 76-78, 82-83, 85, 103.
5
1, two counts of Unlawful Delivery of Cocaine, Defendant was sentenced on each count
to imprisonment in a State Correctional Institute for not less than 18 months nor more
than 5 years. On the charges at Count 2, two counts of Criminal Use of a
Communication Facility, the Defendant was sentenced on each count to 18 months to 3
years to run concurrent to each other but consecutive to the sentence at Count 1. On
Count 4, two counts of Unlawful Possession of Drug Paraphernalia, the Defendant was
sentenced to only pay the costs of prosecution on each count. Accordingly, the
aggregate sentence was three (3) years to eight (8) years. Appellant filed a timely
motion to reconsider sentence on October 14, 2016, which was denied by Order of
Court dated October 19, 2016. Appellant filed his Notice of Appeal on November 03,
2016, and his Concise Statement on November 23, 2016. Appellant, even though
represented by counsel, also filed a prose motion to modify or reconsider sentence,
dated November 16, 2016, and filed of record on December 12, 2016.
Discussion
Out of Appellant's lengthy statement of errors complained of on appeal, this court
was able to discern three principle areas wherein Appellant alleges error. First,
Appellant challenges the length of his standard-range sentence. Second, Appellant
challenges the sufficiency of the evidence. Third, Appellant challenges the weight of the
evidence. For the following reasons, this court should properly be affirmed on appeal.
i. The term of Appellant's sentence
If an appellant's concise statement raises a substantial question that the
sentence imposed is inappropriate under the sentencing code, the Superior Court will
grant permission to appeal and will consider the merits of that appellant's arguments.
6
See Com. v. Malovich, 903 A.2d 124 7, 1252 (Pa. Super. 2006). Generally, a substantial
question is raised when a plausible claim is raised that the sentencing court's actions
were inconsistent with a specific provision of the sentencing code or were contrary to
the fundamental norms underlying the sentencing process. !sh (citing to Com. v.
McAfee, 849 A.2d 270, 274 (Pa. Super. 2004)). A bald assertion of error is not
accepted: rather, an appellant must support his assertions by articulating the way in
which the court's actions violated the sentencing code. kl (citing to Com. v. Mouzon,
812 A.2d 617, 627 (Pa. 2002)). However, the argument that a sentence is manifestly
excessive can raise a substantial question. Com. v. Boyer, 856 A.2d 149, 152 (Pa.
Super. 2004).
If appellate review is granted, the standard of review is that sentencing is vested
in the discretion of the trial court, and will not be disturbed absent a manifest abuse of
that discretion. See Malovich. supra at 1252. An abuse of discretion involves a sentence
which was manifestly unreasonable, or which resulted from partiality, prejudice, bias or
ill will. 19..:. at 1253. It is more than just an error in judgment. kl A sentencing court must
. state on the record its reasons for imposing sentence: nevertheless, a lengthy discourse
on sentencing philosophy is not required. kl Where a sentence is within the standard
range of the guidelines and the sentencing court enjoyed the benefit of a pre-sentence
investigation, Pennsylvania law views the sentence as appropriate under the
Sentencing Code. See Com. v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).
When appellate review of a sentence is granted, the sentence shall be vacated
and remanded if the appellate court finds:
7
1 . The sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
2. The sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly
unreasonable; or
3. The sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
42 Pa. C.S. §9781. In the instant case, Appellant concedes that the sentence he
received was within the guidelines,16 removing prongs 1 and 3 from consideration.
With regard to prong 2, this court enjoyed the benefit of a presentence
investigation.17 Review of that presentence investigation revealed that Appellant has a
prior record score of 5.18 The presentence investigation also revealed that Appellant has
a lengthy and recent criminal history, including guilty pleas to felony charges in 201119
and 2012,20 despite Appellant's attempt to minimize his criminal background and portray
his prior record as largely an unfortunate byproduct of the distant past.21
The standard range sentence on each charge of Unlawful Delivery of Cocaine for
a defendant with a prior record score of 5 was a term of incarceration with a minimum
duration of 12 to 18 months. Appellant was found guilty on two counts of that offense,
16
See Appellant's Concise Statement of Errors Complained of on Appeal, at 2.
17
See Notes ofTestimony, In Re: Sentencing, held October 04, 2016, at 5 (hereinafter N.T. Sentencing_).
18
See Appellant's Guideline Sentence Form.
19
See Cumberland County Criminal Docket No. 2741-2010 (wherein Appellant pied guilty to a charge of
Manufacture, Delivery, or Possessionwith Intent to Manufacture or Deliver, an ungraded felony, on April 14,
2011).
20
See Cumberland County Criminal Docket No. 1370-2012 (wherein Appellant pied guilty to a charge of Receiving
Stolen Property, a felony of the second degree, on September 25, 2012).
21
See Appellant's Concise Statement of Errors Complained of on Appeal, at 2.
8
and sentenced to two concurrent terms of 18 to 60 months of incarceration.
Consecutive to that sentence was the sentence for Appellant's two convictions for
Criminal Use of a Communication Facility. For a defendant with a prior record score of
5, the standard range sentence was, again, a minimum term of incarceration of 12 to 18
months. The sentences for the two counts of Criminal Use of a Communication facility
were concurrent to each other, but consecutive to the sentence for Unlawful Delivery of
Cocaine, giving Appellant a total term of incarceration of 3 to 8 years. This term of
incarceration was exclusively within the standard range and was entered after review of
Appellant's presentence investigation and consideration of both Appellant's background
and the crimes Appellant was convicted of committing by the jury.
Appellant contends that this court erred by not putting on the record reasons or
an explanation to support the specific standard range sentence imposed on him. In
effect, Appellant is attempting to create a new requirement for entering a standard
range sentence. Appellant contends that specific reasons which justify deviation from
the absolute bottom of the standard range must be placed on the record at the time of
sentencing. This interpretation is not grounded in any statutory authority or case law
that this court is aware of. Instead, a sentence in the standard range of the sentencing
guidelines, supported by a presentence investigation, is presumed proper. See Com. v.
Moury, supra at 171.
Other than a bald allegation of excess sentencing Appellant raises no allegation
that in this case a standard range sentence is manifestly unreasonable, or a product of
partiality, prejudice, bias or ill-will. Appellant has a prior record score of 5, and was
convicted of multiple felony offenses in the instant matter. This court enjoyed the benefit
9
of having a presentence investigation available, and reviewed that report in depth. As
noted in the Presentence Report, the Defendant was sentenced by President Judge
Edward Guido on September 25, 2012, for Recklessly Endangering Another Person
(M2) [gun-related], Receiving Stolen Property (F2) [stolen gun] and Possession of
Ecstasy. The Defendant was sentenced to a period of two to four years in a state
correctional institute as noted in the Defendant's probation file. The Defendant was
released from state prison on January 12, 2015.22 Thus the Defendant was only out of
state prison less than 100 days before committing these new crimes. This in and of
itself would have justified an aggravated range sentence based on the fact that the
Defendant committed these offenses while on state parole.
Appellant's sentence reflects the facts of this case as well as this court's
consideration of his background, the need to protect the public, the gravity of the
offenses as they relate to the community, and Appellant's rehabilitative needs. After
those considerations, this court arrived at the conclusion that standard range sentences
were appropriate. Therefore, this court should properly be affirmed on appeal.
ii. The sufficiencyof the evidence against Appellant
In the alternative, Appellant contends that there was insufficient evidence to
sustain guilty verdicts against him for the charges he was convicted of. As stated by the
Supreme Court:
The test for sufficiency of the evidence is whether accepting as
true all of the evidence reviewed in the light most favorable to
the Commonwealth, together with all reasonable inferences
therefrom, the trier of fact could have found that each element of
the offenses charged was supported by evidence and
22
Commonwealth of Pennsylvania Board of Probation and Parole letter to PresidentJudge Edward Guido dated
January 6, 2015.
10
inferences sufficient in law to prove guilt beyond a reasonable
doubt.
Commonwealth v. Lovette. 450 A.2d 975. 977 (Pa. 1982).
Here, Appellant utterly disregards the requirement that all of the evidence be
reviewed in the light most favorable to the Commonwealth, together with all reasonable
inferences therefrom. Rather, Appellant's contemptuous portrayal of the evidence could
charitably be described as presented in the light most favorable to Appellant. Appellant
cherry-picked testimony and evidence, such as pointing out that no fingerprint evidence
identified the offender,23 in order to make his case that there was insufficient evidence
presented at trial to support convicting him of the above-captioned charges. This
purported deficiency in the evidence, as an example, ignores the unrebutted testimony
of Corporal Seibert, who stated that in his experience usable fingerprints generally
cannot (and in this case, were not) be recovered from drug baggies.24 Again, as an
example of the points raised by Appellant, the jury was free to consider the credibility of
Corporal Seibert as well as the lack of fingerprint evidence when determining whether
the Commonwealth met its burden of proving Appellant guilty beyond a reasonable
doubt.
Instead of Appellant's position, the evidence presented taken in the light most
favorable to the Commonwealth demonstrated that on April 14, 2015, and April 15,
2015, Appellant met the Cl, and gave the Cl crack cocaine in exchange for a total of
$150. 00 over the course of two transactions. The Cl testified that she knew Appellant
principally as a drug dealer operating under the alias "DQ." The Cl testified that she
23
See Appellant's ConciseStatement of Errors Complained of on Appeal, at ,J9.
24
N.T. Trial Day 2 at 138-139.
11
used both heroin and crack cocaine prior to becoming an informant,25 which is again
relevant because Appellant argues that the evidence was insufficient because the Cl did
not use cocaine26 and therefore Appellant, if he were a drug dealer, would have known
something was amiss if Cl asked him for cocaine. Appellant's argument on that point
was simply not borne out by the record.
Undercover police officers observed Appellant meeting the Cl on both April 14
and April 15, 2015, and after both meetings the Cl provided police with baggies
containing a substance that Appellant later stipulated contained cocaine. The Cl and her
vehicle were searched before and after the transactions, and no other contraband was
located. The Cl called the same telephone number immediately prior to each
transaction to set up the deals, and spoke with an individual she identified as Appellant
both times. Appellant was identified as the individual who arrived to carry out the drug
transactions.27 Thus, it would be reasonable for a jury to infer that the Cl was able to call
Appellant and arrange to purchase crack cocaine from him, have Appellant meet her in
her vehicle after that call was made, and receive from Appellant a substance that
Appellant stipulated at trial was tested and contained cocaine.28 The Defendant
attempted on cross examination to disparage the confidential informant as a known
heroin and cocaine user. Unfortunately for the Defendant, this Court and the jury
observed the confidential informant in person. She testified that she had been "clean"
25
N .T. Trial Day 1 at 26, 40-41.
26
See Appellant's Concise Statement of Errors Complained of on Appeal, filed November 23, 2016, at ,i 10.
27While Appellant contends that another male individual drove him to the April 14, 2015 transaction and that the
unknown male individual could in fact be "DQ," Appellant does not allege that any other individual accompanied
him to the April 15, 2015 transaction, where the Cl also purchased crack cocaine from him.
28
N.T. Trial Day 2 at 140-141.
12
since February 29, 2016.29 She appeared well dressed, clean cut, and very articulate.
Again, in examining the record, the Defendant presented no evidence to counter this
clear eye witness description of these drug deliveries.
Therefore, there was clearly sufficient evidence for the jury to find
Appellant guilty of the charges against him, and this court should properly be affirmed
on appeal.
iii. The weight of the evidence against Appellant
Finally, Appellant challenges the weight of the evidence against him. To begin,
as stated by the Superior Court in Com. v. Galindes, 2001 PA Super 315, 786 A.2d
1004, 1013 (Pa. Super. 2001), when reviewing the weight of the evidence:
[A] true weight of the evidence challenge 'concedes that
sufficient evidence exists to sustain the verdict' but questions
which evidence is to be believed.
Com. v. Galindes, supra, citing to Armbruster v. Horowitz, 1999 PA Super 333, 744
A.2d 285, 286 (Pa. Super. 1999). The Galindes Court further stated:
An appellate court may review the trial court's decision to
determine whether there was an abuse of discretion, but it
may not substitute its judgment for that of the lower court.
Indeed, an appellate court should not entertain challenges to
the weight of the evidence since our examination is confined
to the "cold record." Com. v. Murray, 408 Pa. Super. 435,
597 A.2d 111, 113 (Pa. Super. 1991 ). Our Court may not
reverse a verdict unless it is so contrary to the evidence as
to shock one's sense of justice. Id. "Finally, the trier of fact
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." Com. v. Valette, 531 Pa. 384, 613
A.2d 548, 549 (Pa. 1992). Our review, therefore, is confined
to whether the trial court abused its discretion.
Com. v. Galindes, supra (emphasis original).
29
N.T. Trial Day 1 at 20.
13
"It is the province of the jury to assess the credibility of witnesses, and a trial
judge will not grant a new trial merely because of a conflict in the testimony or because
he would have reached a different conclusion on the same facts, if he had been the trier
of fact." Com v. VanDiviner, 599 Pa. 617, 630, 962 A.2d 1170 (Pa. 2009) (internal
citations omitted). Here, the jury had the ability to evaluate the credibility of all of the
witnesses, and to weigh the evidence both in favor of and against Appellant. That
testimony and evidence is summarized in greater detail above, but if believed by the
jury it would have shown that the Cl was able to call Appellant on two separate
occasions, arrange to meet with him to purchase crack cocaine, did meet with him twice
and did purchase crack cocaine twice. Ultimately, the jury performed its duty and
weighed the evidence, finding Appellant guilty beyond a reasonable doubt of the
charges against him. In light of the testimony and evidence presented at trial, that
verdict was not so contrary to the evidence as to shock one's sense of justice.
Therefore, this court should properly be affirmed on appeal.
Conclusion
After review of the record, it is clear that Appellant's claimed errors are baseless,
and that the jury's verdict and the sentence entered by this court were both proper.
Appellant attempted to read in a new standard range sentencing requirement that a
court place on the record specific reasons for not entering a sentence at the bottom of
the standard range. In effect, Appellant would have trial courts eliminate the "range"
portion of a standard range sentence, leaving only a minimal "standard" sentence, and
expand the aggravated sentencing range to incorporate sentences previously within the
standard range. Appellant provided no statutory authority or case law citations to
support that proposition, which directly contradicts the very concept of having a
14
"standard range" of sentences. In the alternative, Appellant challenged both the
sufficiency and the weight of the evidence against him. A jury of Appellant's peers had
the opportunity to weigh the evidence available, determine the credibility of the
witnesses, and determine whether the Commonwealth met its burden to prove
Appellant guilty beyond a reasonable doubt. The jury found that the Commonwealth did
so, and the verdict was not so contrary to the evidence as to shock this court's sense of
justice. Therefore, this court should properly be affirmed on appeal.
By the Court,
J.
District Attorney's Office
Public Defender's Office
15