Com. v. Williams, S. ( 2017 )


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  • J-S05016-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    SHAREAF WILLIAMS
    Appellant                No. 1253 MDA 2016
    Appeal from the Judgment of Sentence March 1, 2016
    In the Court of Common Pleas of Lycoming County
    Criminal Division at No(s): CP-41-CR-0001217-2013
    BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*
    MEMORANDUM BY PANELLA, J.                        FILED FEBRUARY 24, 2017
    Appellant, Shareaf Williams, appeals from the judgment of sentence
    entered after a jury convicted him of several crimes flowing from his
    attempted sale of heroin to an addict. On appeal, Williams raises two
    challenges to the sufficiency of the evidence supporting his convictions, and
    two challenges to the sentence imposed by the trial court. After careful
    review, we affirm.
    In 2013, the Commonwealth charged Williams with one count of
    possession of heroin with intent to deliver, one count of possession of
    heroin, one count of criminal use of a communication facility, and one count
    ____________________________________________
    *
    Retired Senior Judge assigned to the Superior Court.
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    of possession of drug paraphernalia. In December 2015, these charges were
    tried before a jury.
    At trial, the Commonwealth presented the following evidence. Brandon
    Warner testified that he was a heroin addict, and that he called Williams to
    arrange a purchase of three bags of heroin. See N.T., Jury Trial, 12/7/15, at
    18; 20-21. Williams directed Warner to meet him at a house at the corner of
    First and High Streets in Williamsport. See id., at 22. Warner testified that
    he knew Williams, as he had spoken to him approximately fifteen times in
    the month prior to that date. See id., at 25-26.
    Warner’s wife drove him to the specified house, and Warner expected
    to consummate a street transaction with Williams. See id., at 22-23.
    Instead, Williams got into Warner’s car and directed him to have his wife
    drive around the block. See id., at 23. Warner’s wife began to drive away,
    but was immediately pulled over by police. See id. Warner testified that
    when questioned by the arresting officer, State Trooper Robert Williamson,
    he admitted he had a needle in the car. See id., at 25.
    Trooper Williamson testified that after questioning Warner and his
    wife, he believed he had grounds for arresting Warner, his wife, and Williams
    for attempting to engage in a narcotics transaction. See id., at 37. Williams
    was searched pursuant to his arrest, and the police discovered three small
    baggies containing heroin. See id., at 37-38.
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    Trooper Justin Snyder testified as an expert witness on the habits of
    drug dealers and addicts. See id., at 47-50. Trooper Snyder testified that
    heroin users usually purchased small amounts of heroin for personal use.
    “Very rare do you see them buy in bulk.” Id., at 53. He testified that he
    believed that Williams possessed the three bags of heroin with the intent to
    sell them to Warner. See id., at 52.
    Williams did not present any witnesses, but focused on deficiencies in
    the Commonwealth’s case. For instance, he highlighted the fact that police
    had failed to confirm whether the phone in Williams’s possession when he
    was arrested had received a call from Warner. See id., at 41; 57.
    The jury convicted Williams on all charges. After receiving and
    reviewing a pre-sentence investigation report (“PSI”), the trial court
    sentenced Williams to an aggregate term of imprisonment of four to
    eighteen years. Williams filed post-sentence motions challenging the
    sufficiency and weight of the evidence supporting his convictions, as well as
    challenges to the discretionary aspects of his sentence. The trial court
    denied Williams’s motions, and this timely appeal followed.
    On appeal, Williams raises two challenges to the sufficiency of the
    evidence at trial, and two challenges to the discretionary aspect of his
    sentence. We will address Williams’s challenges to his conviction, issues
    number three and four, first.
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    Issues three and four 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
    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). Therefore, 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 three, Williams argues that “the small amount of recovered
    heroin [in this case] reflects personal use, not product for sale.” Appellant’s
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    Brief, at 25. Furthermore, Williams asserts that under the circumstances, it
    was just as likely that he was purchasing heroin from Warner. See 
    id.
    Williams’s arguments are beside the point. Warner testified that he
    arranged a transaction to purchase heroin from Williams. Trooper Snyder
    testified that, in his expert opinion, Warner was purchasing heroin from
    Williams. The jury was entitled to credit the testimony of both witnesses,
    and infer that Williams possessed the heroin with the intent to sell it to
    Warner. William’s issue number three merits no relief on appeal.
    In his fourth numbered issue, Williams 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 of 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. 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).
    Williams argues that the Commonwealth failed to establish that the
    transaction occurred, and thus, the Commonwealth could not prove the third
    Moss element. See Appellant’s Brief, at 26. However, once again, Williams’s
    argument    misses    the    point.   We    have    already   concluded      that   the
    Commonwealth presented sufficient evidence to establish that Williams
    committed possession of heroin with the intent to deliver it to Warner. That
    is the underlying felony, not any actual transaction. The use of cell phones
    facilitated Williams’s intent to deliver the heroin to Warner. As a result, the
    Commonwealth’s evidence was sufficient to support the conviction.
    In the alternative, Williams argues that the Commonwealth did not
    provide text or phone records establishing that Warner and Williams had
    communicated. While such evidence is certainly more objective than
    Warner’s testimony, Warner’s testimony is just as certainly sufficient to
    support the conviction. If, as the jury was entitled to do, the jury believed
    Warner’s   testimony,       that   was     enough    to   establish   that     Warner
    communicated his desire to purchase heroin to Williams over the phone, and
    that Williams replied by informing Warner where to meet to consummate the
    transaction. Williams’s fourth issue on appeal merits no relief.
    Returning to Williams’s first two issues on appeal, they are both
    challenges to the discretionary aspects of the sentence imposed by the trial
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    court. “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). “Two requirements must be met before we
    will review this challenge on its merits.” 
    Id.
     (citation omitted).
    “First, an appellant must set forth in his brief a concise statement of
    the reasons relied upon for allowance of appeal with respect to the
    discretionary aspects of a sentence.” 
    Id.
     (citation omitted). “Second, the
    appellant must show that there is a substantial question that the sentence
    imposed is not appropriate under the Sentencing Code.” 
    Id.
     (citation
    omitted). That is, “the sentence violates either a specific provision of the
    sentencing scheme set forth in the Sentencing Code or a particular
    fundamental norm underlying the sentencing process.” Commonwealth v.
    Tirado, 
    870 A.2d 362
    , 365 (Pa. Super. 2005) (citation omitted).
    We examine an appellant’s Rule 2119(f) statement to determine
    whether a substantial question exists. See 
    id.
     “Our inquiry must focus on
    the reasons for which the appeal is sought, in contrast to the facts
    underlying the appeal, which are necessary only to decide the appeal on the
    merits.” 
    Id.
     (citation omitted); see also Pa.R.A.P. 2119(f).
    In the present case, Williams’s appellate brief contains the requisite
    Rule 2119(f) concise statement. In his statement, Williams asserts that the
    trial court exhibited bias against him during sentencing. This claim raises a
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    substantial question. See Commonwealth v. Williams, 
    69 A.3d 735
    , 744
    (Pa. Super. 2013).
    Williams’s Rule 2119(f) statement does not support his second
    sentencing claim: That the trial court abused its discretion in imposing an
    aggravated range sentence on the possession with intent to deliver
    conviction. Normally, this omission would render the issue waived for
    appellate review. However, the Commonwealth declined to file a brief in this
    appeal. It therefore missed its opportunity to object to this defect. In light of
    the Commonwealth’s disinterest in this appeal, we decline to find waiver.
    See Commonwealth v. Antidormi, 
    84 A.3d 736
    , 759 (Pa. Super. 2014),
    appeal denied, 
    95 A.3d 275
     (Pa. 2014) (declining to find waiver where
    Commonwealth did not object to Appellant’s failure to comply with Rule
    2119(f)).
    After reviewing the record, we conclude that neither of Williams’s
    sentencing challenges are meritorious. The sentencing court may have used
    arguably inartful language when it stated, “I think … there is a special place
    in hell for [drug dealers] who take advantage of the weakness of others,
    especially when it comes to an addiction, which is disease, taking advantage
    of the disease, nature of people [sic].” N.T., Sentencing, 3/1/16, at 13.
    However, a review of this statement, which we quote verbatim, in context
    reveals that it was not an indication of personal animus or bias against
    Williams:
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    I think what struck me, Mr. Williams, is just the fact that you
    have so many possession with intent to deliver charges. You
    started out from a very early age it feels like involved in drugs.
    The fact that you in your description of how drugs play a part in
    your life, where you say you don’t use, to me that cuts even
    more against you when you’re found with heroin that you are a
    dealer and we all know because we can’t help but read about it
    in the newspaper, hear about it on the TV or see it on the
    internet how heroin is decimating our communities, not just
    Williamsport; but the Commonwealth of Pennsylvania, across the
    United States, just people dying of heroin right and left. The
    individuals that sell heroin it’s not just heroin any more it’s got
    heroin with something else in it. This last batch of drugs had
    fentanyl in it, which apparently packed quite a punch because
    there were a number of people that overdosed not expecting to
    have such potent heroin. So that – that’ s really something that I
    have to consider, the fact that you did go to trial and although
    you have the right to protect your record for appeal, the fact
    that I’m really not seeing a whole lot of remorse. I disagree with
    the Commonwealth on one thing. Having been in the system for
    as long as I have been and understanding the generational
    nature of this business, being involved in the criminal justice
    system, that sometimes it takes a teacher, a family friend, a
    member of the clergy, perhaps a parole agent to show an
    individual involved in the criminal justice system a different way,
    that it isn’t all about fast money, it isn’t all about the thrill of
    trying to beat the cops or getting around the system and so it’s
    on that point that I disagree that maybe, I’m not saying that it’s
    the cure for everything; but maybe that would have changed
    something in your progression. Maybe not though. Because if
    you choose to hang around with people who deal drugs you’re
    going to sell drugs. If you choose to hang around people who
    don’t honor the law and respect the law, that’s the way you’re
    going to behave. So unless you are willing to really live that
    change, the best parole agent in the world isn’t going to help
    you because you’re never going to – it’s never going to stick. I
    think the fact that you were on supervision in Philadelphia
    County or just even if you weren’t that you were just very
    recently on supervision and came up here within weeks or
    months of being incarcerated to continue your business up here,
    boy, that’s certainly not mitigating and I can’t think of a better
    argument for an aggravated range sentence than that. We are
    what we repeatedly do. I mean I know that’s not the full quote
    from Aristotle, but it sure seems like that when I see people who
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    – people who steal are thieves. People who deal drugs, drug
    dealers, you’re preying upon the weaknesses of others. I think
    there is one could argue there is a special place in hell for people
    who take advantage of the weaknesses others, especially when
    it comes to an addiction, which is a disease, taking advantage of
    the disease, nature of people. So being born in Philadelphia and
    raised in the suburbs this isn’t about us and them mentality, this
    is about us as a community keeping away people who trying to
    hurt our community regardless of where you’re from. You could
    become – you could be from High Street, you could be from Park
    Avenue, you could be from wherever, Loyalsock Township in the
    County of Lycoming it’s just this is the kind of behavior that’s
    gotta stop. So Miss Ippolito is correct because this is your at
    least second conviction for possession with the intent to deliver,
    your statutory maximum is 30 years. So I could conceivably put
    your max up that long and that would place you almost as old as
    I am when you could conceivably be off supervision. That’s a
    long time where if you’re not willing to do anything about it it’s
    not going to change your behavior at all. So think that what I’m
    going to do is I’m going to sentence you consecutively on Counts
    1 and 2, so I’m not going to go as high as the Commonwealth is
    recommending; but I’m going to go to 48 months to 18 years as
    a total overall sentence.
    Id., at 11-14. This passage demonstrates that the trial court’s “special place
    in hell” statement was but a small part of a lengthy analysis that also
    explicitly considered Williams’s difficult childhood, among other things.
    Viewed in this context, we do not believe the trial court exhibited bias or
    personal animus against Williams.
    In his second issue, Williams contends that the trial court abused its
    discretion in imposing an aggravated range sentence for his possession of
    heroin with intent to deliver conviction. Given the above quoted passage, we
    conclude that the trial court’s decision to aggravate Williams’s sentence was
    reasonable. The trial court was concerned with the threat Williams posed to
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    the community, the likelihood that he would soon re-offend when he was
    released from incarceration, and his need for extensive rehabilitation. These
    all reasonably militated in favor of an aggravated range sentence. We cannot
    conclude that this decision was an abuse of the trial court’s discretion, and
    therefore William’s final issue on appeal merits no relief.
    Judgment of sentence affirmed. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/24/2017
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