Com. v. Hargroves, T. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYREE CALVIN HARGROVES, :
:
Appellant : No. 685 EDA 2018
Appeal from the Judgment of Sentence November 20, 2017
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000315-2017
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY PANELLA, J. FILED FEBRUARY 19, 2019
Appellant, Tyree Calvin Hargroves, appeals from the judgement of
sentence entered in the Monroe County Court of Common Pleas. He argues
the court erred in denying his motion to suppress evidence obtained from a
cell phone; in finding the evidence sufficient to convict him of attempted
possession with intent to deliver (“PWID”) heroin, attempted PWID cocaine,
criminal conspiracy, attempted PWID, and criminal use of a communication
facility; in finding the weight of the evidence supported his verdicts; and in
imposing consecutive sentences. We affirm.
The record supports the following factual summary provided by the trial
court.
In December 2016, a bench warrant was issued for the Defendant,
Tyree Hargroves, for failure to appear at a proceeding before the
Monroe County Court of Common Pleas. Officers with the Pocono
Mountain Regional Police Department ("PMRPD"), who were
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familiar with the Defendant, went to the area near 9157
Brandywine Drive in Coolbaugh Township, which was known to be
the residence for the Defendant's girlfriend. While conducting
surveillance, Detective/Corporal Lucas Bray observed the
Defendant on the porch of the residence shoveling snow and in
the driveway clearing snow from a running vehicle.
Detective/Corporal Bray continued surveillance while he awaited
assistance from another officer. Before the arrival of additional
officers, the Defendant left the residence in the vehicle.
Detective/Corporal Bray followed the Defendant and observed him
stop the vehicle in front of a residence at 2415 Winding Way in
Coolbaugh Township. At that location, Detective/Corporal Bray
observed a male, later identified as Joseph Nemeth, walk to the
driver's side of the Defendant's vehicle, at which time a hand to
hand transaction occurred between Nemeth and the Defendant
and Nemeth then returned to his residence. As the Defendant
drove away, additional officers finally arrived and a traffic stop
was initiated on the Defendant's vehicle a short distance from the
Nemeth residence to detain the Defendant on a bench warrant.
At the time of the traffic stop, the Defendant was on a video phone
call with his girlfriend. The cell phone that the Defendant was
using for that call was seized and later searched pursuant to a
search warrant. In addition to the cell phone, the Defendant was
in possession of three (3) $100 bills folded together outside his
wallet and an additional $117. Officers also observed rubber bands
inside the vehicle consistent with those used to bundle heroin.
Utilizing his K-9 partner, Niko, PMRPD Corporal Matt Nero
conducted a K-9 sniff of the Defendant's vehicle. K-9 Niko alerted
to the driver's side of the vehicle for the scent of drugs. No drugs
were ultimately found in the vehicle; rather, only the rubber bands
were found in and around the driver’s side of the vehicle.
When Detective/Corporal Bray confronted the Defendant about
the hand to hand transaction he observed on Winding Way, the
Defendant admitted to Detective/Corporal Bray that the $300
came from Nemeth, but alleged it was a loan and denied it was
for the sale of drugs. When Detective/Corporal Bray and Corporal
Nero questioned Nemeth regarding the hand to hand transaction,
Nemeth and his girlfriend admitted the Defendant was their drug
dealer and they arranged for him to take the $300 to purchase
heroin and cocaine. Detective/Corporal Bray reviewed Nemeth's
cellular phone and observed communications consistent with
Nemeth's statements. The subject communications happened
within a short time before the hand to hand exchange was
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observed. Following the execution of a search warrant on the
Defendant's phone, Detective/Corporal Bray located the same
communications Nemeth admitted to and contained on Nemeth's
phone.
This evidence was submitted at trial through the testimony of
Nemeth, Monroe County District Attorney's Office Detective Brian
Webbe, Corporal Nero and Detective/Corporal Bray, as well as
through Nemeth and the Defendant's cell phones. Following
deliberations, the jury found the Defendant guilty of two (2)
counts of Criminal Attempt-Possession With Intent to Deliver
("PWID"), 35 P.S. § 780-113(a)(30), (being for one (1) count
cocaine and one (1) count heroin), Criminal Conspiracy to Commit
PWID, 18 Pa. C.S. § 903, and Criminal Use of Communication
Facility, 18 Pa. C.S. § 7512. On November 20, 2017, this
Honorable Court sentenced the Defendant [to] a total aggregate
sentence of incarceration in a state correctional institution of not
less than forty-eight (48) months nor more than ninety-six (96)
months.
Trial Court Opinion, dated 1/30/18, at 2-4.
Hargroves filed timely post-sentence motions, which the court denied.
He then filed this timely appeal. We will address Hargroves’ sufficiency
challenges to his conviction, issues number four and five, first.
Issues four and five are both challenges to the sufficiency of the
evidence at trial to support the jury’s verdict. Our standard of review for a
challenge to the sufficiency of the evidence is to determine whether, when
viewed in a light most favorable to the verdict winner, the evidence at trial
and all reasonable inferences therefrom are sufficient for the trier of fact to
find that each element of the crimes charged is established beyond a
reasonable doubt. See Commonwealth v. Dale, 836 A.2d 150, 152 (Pa.
Super. 2003). “The Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means of wholly
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circumstantial evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa.
Super. 2007) (citation omitted).
“[T]he facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence.” Id. (citation omitted). Any doubt
raised as to the accused’s guilt is to be resolved by the fact-finder. See id.“As an appellate court, we do not assess credibility nor do we assign weight
to any of the testimony of record.” Commonwealth v. Kinney, 863 A.2d
581, 584 (Pa. Super. 2004) (citation omitted). Thus, we will not disturb the
verdict “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.”
Bruce, 916 A.2d at 661 (citation omitted).
In issue four, Hargroves challenges the sufficiency of the evidence
supporting his conviction for attempted PWID – heroin, attempted PWID –
cocaine, and criminal conspiracy for attempted PWID. He specifically contends
there was not a purchase of drugs, there was not a significant step taken to
purchase, and there was no sale of drugs. See Appellant’s Brief, at 28.
Furthermore, Hargroves asserts that even if he was going to purchase drugs,
it would only have constituted joint ownership of drugs rather than a sale of
drugs. See id.Hargroves’s arguments are beside the point. Nemeth testified that he
made an agreement with Hargroves whereby Nemeth would pay Hargroves
and Hargroves would purchase drugs for Nemeth and Nemeth’s girlfriend. See
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N.T., 10/5/17, at 42-44. In addition, Detective Bray testified that he witnessed
a hand-to-hand transaction, or exchange of money for drugs, between
Nemeth and Hargroves, and Hargroves drive away, seemingly in order to
procure the drugs for Nemeth and Nemeth’s girlfriend. See id. at 118-119.
The jury was entitled to credit the testimony of both witnesses, and infer that
Hargroves arranged for the attempted possession of both heroin and cocaine
with the intent to sell it to Nemeth. Thus, Hargroves’ issue number four merits
no relief on appeal.
In his fifth numbered issue, Hargroves challenges the sufficiency of the
evidence supporting his conviction for criminal use of a communication facility.
The offense of criminal use of a communication facility is defined as follows.
A person commits a felony of the third degree if that person uses
a communication facility to commit, cause or facilitate the
commission or the attempt thereof of any crime which constitutes
a felony under this title or under the act of April 14, 1972 (P.L.
233, No. 64), known as The Controlled Substance, Drug, Device
and Cosmetic Act. Every instance where the communication
facility is utilized constitutes a separate offense under this section.
18 Pa.C.S.A. § 7512 (footnote omitted). Thus, to support a conviction under
section 7512, the Commonwealth must establish beyond a reasonable doubt
that
(1) Appellant[] knowingly and intentionally used a
communication facility; (2) Appellant[] knowingly, intentionally or
recklessly facilitated an underlying felony; and (3) the underlying
felony occurred … Facilitation has been defined as “any use of a
communication facility that makes easier the commission of the
underlying felony.”
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Commonwealth v. Moss, 852 A.2d 374, 382 (Pa. Super. 2004) (internal
citations omitted).
Hargroves argues the Commonwealth failed to establish that an
underlying felony occurred, and thus, the Commonwealth could not prove the
third Moss element. See Appellant’s Brief, at 30. We have already concluded
that the Commonwealth presented sufficient evidence to convict Hargroves of
attempted PWID of heroin and cocaine. The court in Moss clearly states “[t]he
express language of § 7512(a) prohibits use of a communications facility to
facilitate the attempted commission of an underlying felony.” Moss, at 382.
The record reflects that the use of cell phones facilitated Hargroves’
attempt at possessing illegal drugs with the intent to deliver them to Nemeth.
See N.T., 10/5/17, at 41-42, 132. The Commonwealth provided text records
establishing Hargroves and Nemeth had communicated. See id., at 41-42,
132, 171. This evidence, along with the testimony of Nemeth and Detective
Bray, was certainly sufficient to support the convictions. If, as the jury was
entitled to do, the jury believed the witness testimony, that was enough to
establish that Nemeth communicated to Hargroves his desire to purchase
heroin and cocaine by text message, and that Hargroves replied by informing
Nemeth where to meet to consummate the payment for the transaction.
Hargroves’ fifth issue on appeal merits no relief.
Issues three and six are both challenges to the weight of the evidence
at trial to support the jury’s verdict.
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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, 832 A.2d 403, 408 (Pa. 2003) (internal
citations omitted).
When the challenge to the weight of the evidence is predicated on
the credibility of trial testimony, our review of the trial court’s
decision is extremely limited. Generally, unless the evidence is so
unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not cognizable
on appellate review.
Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (internal
quotes and citations omitted).
In his third numbered issue, Hargroves contends that the verdict in this
case “shocks the conscience” since he was convicted of Attempted PWID when
he did not possess any drugs. See Appellant’s Brief, at 23. Hargroves’
argument is unfounded as actual possession is not required for a charge of
attempt. Hargroves’ guilt hinged on the jury’s determination of witness
credibility, including Nemeth and Detective Bray, and its interpretation of
Hargroves’ text messages. The trial court did not find the witness testimony
so unreliable as to shock its conscience. We find no abuse of discretion in the
court’s assessment of the weight of the evidence at trial. We cannot agree
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with Hargroves that the verdict “completely shocks the conscience.” Thus, we
conclude that Hargroves’ third issue merits no relief.
In his sixth numbered issue, Hargroves contends that the trial court
abused its discretion when the court did not grant his motion to set aside the
verdict on Count 4, criminal use of a telecommunications facility, asserting
that the verdict was against the weight of the evidence. As we previously
addressed, the evidence at trial was clearly sufficient to show that Hargroves
used his cell phone to send text messages to facilitate the attempted sale of
drugs, thereby using the phone to commit a felony. It is clear that the trial
court did not find the evidence so unreliable as to shock its conscience. Thus,
we find no abuse of discretion in the trial court’s denial of Hargroves’ challenge
to the weight of the evidence on Count 4. Hargroves’ sixth issue merits no
relief.
Although issues one and two are labeled as distinct abuse of discretion
challenges, we find the arguments made are simply challenges to the
sufficiency and weight of the evidence presented at trial. As we have already
addressed these issues above, we find it unnecessary to respond to these
issues separately and similarly find them to be without merit.
In his seventh numbered issue, Hargroves asserts that the trial court
erred in denying his pretrial motion to suppress. Specifically, Hargroves
argues the Commonwealth did not show that he sent the relevant messages.
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He contends the messages were not authenticated, and are thus inadmissible
and must be suppressed.
Our standard of review in addressing a challenge to a trial court’s
denial of a suppression motion is whether the factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. When reviewing the ruling of the
suppression court, we must consider only the evidence of the
prosecution and so much of the evidence of the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the record supports the findings of the
suppression court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations
omitted).
“It is within the suppression court’s sole province as factfinder to pass
on the credibility of witnesses and the weight to be given to their testimony.
The suppression court is free to believe all, some or none of the evidence
presented at the suppression hearing.” Commonwealth v. Elmobdy, 823
A.2d 180, 183 (Pa. Super. 2003) (citation omitted).
Hargroves challenges the authentication of the text messages. Under
the rules of evidence, text messages may be authenticated at trial by: “(1)
testimony from either the author or the sender; (2) circumstantial evidence,
including distinctive characteristics like information specifying the author-
sender or reference to or correspondence with relevant events preceding or
following the message; or (3) any other facts or aspects of the message that
signify it to be what its proponent claims.” Commonwealth v. Murray, 174
A.3d 1147, 1156-57 (Pa. Super. 2017) (citations and internal quotation marks
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omitted); see also Pa.R.E. 901. The court in Murray found that the
Commonwealth had sufficiently authenticated text messages recovered from
defendant’s cell phone because the cell phone was in defendant’s possession
when he was taken into custody. Id. Additionally, the content of the
messages, indicating the sender’s expectation that he might be getting locked
up that day and alluding to an item taken from the “bully,” was consistent
with the defendant’s description to his parole agent of the incident in which
he acquired the gun in question. Id.Here, Hargroves’s cell phone was taken from him at the time of his
arrest. See N.T., Suppression Hearing, 5/15/17, at 10. Hargroves was
currently using the cell phone at the time of his arrest to call his girlfriend.
See id., at 9-10. Further, Nemeth’s cell phone and corresponding text
messages was seized and provided both sides of the conversation between
Nemeth and Hargroves. See id., at 12-13. Both sides of the conversation
corroborated the chronology of events witnessed by Detective Bray,
specifically Hargroves arriving at Nemeth’s home for the cash transfer, and
Nemeth coming outside to deliver the cash to Hargroves. See id., at 14. The
record supports the trial court’s reasoning to authenticate the text messages
under Murray. Thus, the trial court did not abuse its discretion in rejecting
the motion to suppress. Hargroves’ seventh issue on appeal merits no relief.
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Finally, Hargroves contends the trial court abused its discretion in
imposing consecutive sentences1. Hargroves argues that the charges were the
result of the same action, and thus should not carry consecutive sentences.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted).
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate under
the Sentencing Code, 42. Pa.C.S.A. § 9781(b).
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1 Hargroves’s argument on this issue is not clear. His statement of the issue
claims the court abused its discretion in imposing consecutive sentences.
However, he opens his argument with a claim that the consecutive sentences
should have merged. Merger is claim that implicates the legality of the
sentence, not the discretionary aspects of the sentence. See Commonwealth
v. Baldwin, 985 A.2d 830, 833 (Pa. 2009). Even if we were to treat
Hargroves’s argument as an argument for merger, he is due no relief. “A
merger is prohibited unless two distinct facts are present: 1) the crimes arise
from a single criminal act; and 2) all of the statutory elements of one of the
offenses are included in the statutory elements of the other.” Id. Count 1 is
specifically for PWID of heroin, while Count 2 is specifically for PWID of
cocaine. See Criminal Information Charges, filed 3/22/17. Thus, we find that
Counts 1 and 2 do not merge for sentencing purposes as they are distinct
criminal acts. And Count 4 would not merge as it required the use of a
telecommunications facility, an element which is not required under the PWID
offenses.
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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted; brackets in original).
“If a defendant fails to include an issue in his Rule 2119(f) statement,
and the Commonwealth objects, then the issue is waived and this Court may
not review the claim.” Commonwealth v. Karns, 50 A.3d 158, 166 (Pa.
Super. 2012) (citation omitted). Hargroves failed to include the required
Pa.R.A.P. 2119(f) statement with his brief. See Appellant’s Brief, at 20. And
the Commonwealth has objected to this failure. See Appellee’s Brief, at 20.
Thus, we are constrained to find this issue waived.
As we conclude that none of Hargroves’ issues on appeal merit relief,
we affirm the judgement of sentence.
Judgement of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/19
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