Com. v. Moore, J. ( 2015 )

J-A35036-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES MOORE,
Appellant No. 338 WDA 2014
Appeal from the Judgment of Sentence October 4, 2013
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0001608-2012
BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ.
MEMORANDUM BY BOWES, J.: FILED JANUARY 09, 2015
James Moore appeals from his aggregate judgment of sentence of
twenty to forty years incarceration after a jury found him guilty of numerous
delivery and possession with intent to deliver (“PWID”) counts, two counts of
corrupt organizations, criminal conspiracy, and hindering apprehension. We
affirm the findings of guilt, but vacate his judgment of sentence and remand
for resentencing.
The facts of this case involve a drug trafficking enterprise in which
Appellant was a principal member. Much of the testimony against Appellant
was relayed by eight admitted heroin addicts. One such person,
Jessica Bales, testified to meeting with Appellant in the summer of 2011 to
sell heroin for him. Ms. Bales acknowledged that she did not personally
observe Appellant sell heroin, but maintained that he kept a shoe box
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containing heroin in the ceiling tiles of her apartment. During this time,
Appellant also introduced Ms. Bales to Dominick Haynes, also known as Dot
or Dottie. Mr. Haynes was tried together with Appellant. According to
Ms. Bales, Mr. Haynes stayed at her apartment and she personally witnessed
him sell heroin. She also received heroin in exchange for allowing Appellant
and Mr. Haynes to sell heroin from her residence. Ms. Bales moved later
that fall from that apartment to a trailer in Mennock Manor, Greensburg.
There, Mr. Haynes and Chance “Sky” McKiver sold heroin. Mr. McKiver had
previously sold heroin from Ms. Bales’ prior apartment as well. Mr. Haynes
and Mr. McKiver supplied Ms. Bales with heroin in exchange for using her
home.
During the fall of 2011, Kelsey Graham, a twenty-two-year-old
women and heroin addict, purchased heroin from Appellant. Ms. Graham
averred that Appellant began to provide her with four stamp bags of heroin
in exchange for sex. Further, Ms. Graham traveled with Appellant to New
Jersey on November 1, 2011, so that he could purchase heroin for resale in
Pennsylvania. A New Jersey State Trooper, Daniel Wojcik, was able to
confirm this trip because he had conducted a traffic stop of the two. When
Appellant and Ms. Graham returned to the Greensburg area, Appellant gave
her ten stamp bags of heroin.
Around this same time, Jillian Davis, another heroin addict, returned to
her Hawksworth Garden apartment after a stay in rehab. She then met
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Mr. McKiver and another individual, Tyrone Leonard, in order to purchase
heroin. Ms. Davis allowed the two men to sell heroin from her apartment for
several days. Thereafter, Ms. Davis met Appellant, who inquired if other
dealers could stay at her apartment. She agreed and Mr. Haynes and
Chauncy “Gunner” Bray began to sell heroin in December 2011 and January
2012. In January 2012, Ms. Davis returned to rehab and gave Mr. Bray a
key to her apartment. Mr. Bray agreed to pay her rent for January.
Additional testimony revealed that on December 7, 2011, Appellant
met with Anna Morcheid and Mr. Bray at a Red Robin restaurant. Mr. Bray
had recently been released from prison. Before he was incarcerated,
Mr. Bray provided Appellant with a cell phone containing heroin contacts. In
addition, he had given to Ms. Morcheid a cell phone with contacts of
individuals who purchased cocaine. Mr. Bray and Appellant apparently had
some dispute over a woman. The Red Robin meeting was designed to settle
the issue. While the three individuals were meeting at Red Robin, a
confidential informant (“CI”) working with Detective Jerry Vernail of the
Greensburg Police and State Trooper Greg Norton arranged to purchase
cocaine. Ms. Morcheid left the restaurant and provided crack cocaine to the
CI.
As a result of the Red Robin meeting, Mr. Bray began to sell heroin
that was supplied by Appellant. According to Mr. Bray, Appellant would
provide him with ten bricks of heroin for $2500, and Mr. Bray would sell that
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product for $5000. Mr. Bray indicated that he used other dealers to sell the
heroin, including his girlfriend Nicole Dudek. Mr. Bray estimated that for
three or four weeks he sold between ten and thirty bricks of heroin, provided
to him by Appellant, every few days.
In January 2012, Detective Vernail and Trooper Norton began to utilize
Jimmie Knight as a CI. Mr. Knight would contact a certain 724-217-xxxx
number to arrange for heroin purchases. On January 19, 2012, Mr. Knight
called that number and met Appellant at the Hawksworth Garden
apartments. Trooper Norton was with Mr. Knight at the time in Mr. Knight’s
car. However, Mr. Knight and Appellant walked behind the apartment
building out of Trooper Norton’s sight. Mr. Knight returned with twenty-four
bags of heroin and without the $190 provided by police for the purchase.
A similar incident occurred on January 23, 2012. Mr. Knight
telephoned the aforementioned number and was instructed to return to the
same location. Both he and Trooper Norton traveled to the Hawksworth
Garden apartments. Mr. Knight again went out of the sight of the trooper
for approximately ten to fifteen seconds, when he entered a stairwell.
Mr. Knight then turned over twenty stamp bags of heroin. Although Trooper
Norton did not see Appellant on this date, Mr. Knight maintained that he
twice purchased heroin from Appellant in the Hawksworth Garden apartment
stairwell.
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The following day Trooper Norton and Mr. Knight arranged for an
additional heroin purchase. On this occasion, Mr. Knight called another
number, 412-853-xxxx, and spoke to an individual identified only as “Sosa.”
Trooper Norton was able to purchase fourteen stamp bags of heroin from
Sosa in exchange for $120. The day after this purchase, Trooper Norton and
Mr. Knight were instructed to go to Ms. Bales’ residence at Mennock Manor
to make their desired heroin purchase. Sosa exited Ms. Bales’ trailer and
sold Mr. Knight fifty stamp bags of heroin for $350.
Trooper Norton and Mr. Knight made an additional purchase on
February 7, 2012 at the Days Inn in New Stanton, Pennsylvania. There,
Mr. McKiver sold Mr. Knight twenty-five stamp bags of heroin in exchange
for $200. On February 9, 2012, Trooper Norton purchased heroin from Sosa
at a Knights Inn in Greensburg after telephoning the 724-217-xxxx number.
Trooper Norton bought fifty stamp bags of heroin for $400.
As part of the February 9, 2012 transaction, Detective Vernail
effectuated a traffic stop of a car after its occupants had been observed
buying drugs at the Knights Inn. At police direction, one occupant called the
724-217-xxxx number to arrange for another purchase. Ms. Dudek sold the
individual eleven stamp bags.
Trooper Norton and Mr. Knight again purchased heroin from
Mr. McKiver on February 21, 2012, buying twenty-three stamp bags of
heroin. That same date Appellant contacted Mr. Bray to inquire if he wanted
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Appellant’s “dope” phone with the 724-217-xxxx number and nine bricks of
heroin. Mr. Bray, Ms. Dudek and Kristin Weightman met with Appellant to
discuss drug business. Appellant gave Ms. Weightman the nine bricks of
heroin, suboxone, and a cell phone. Mr. Bray stashed six of the bricks of
heroin and much of the suboxone at Ms. Dudek’s home. Ms. Dudek,
Ms. Weightman, and Mr. Bray then traveled to Ms. Davis’ Hawskworth
Garden apartment. Mr. Haynes arrived later that evening and he and
Ms. Weightman stayed the night. Ms. Weightman was selling heroin from
the apartment that night.
The next day, February 22, 2012, police observed Ms. Weightman
conduct several hand-to-hand drug transactions outside the Hawksworth
Garden apartments. Police pulled over one customer, who admitted to
purchasing heroin from Ms. Weightman. Police witnessed Ms. Weightman
return to apartment B23, Ms. Davis’ apartment, after the drug deals. After
observing a sale, police began to approach Ms. Weightman and another
individual, Kurt McCamley. Mr. McCamley had been instructed by Mr. Bray
to retrieve nine bricks of heroin from Mr. McCamley’s home and bring it to
the apartment.
Police did not intercept Ms. Weightman before she entered the
apartment. Upon approaching the door, police detected a powerful
marijuana smell emanating from the apartment. After knocking and asking
to speak to the renter, police heard some movement inside. They then
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repeatedly identified themselves as police. No one answered and the
troopers forcibly entered. Upon entering, Mr. Bray, who was inside,
attempted to flee and was captured. Police saw, in plain view, the nine
bricks of heroin and a large amount of money. Also present in the
apartment were Mr. Haynes, Mr. McKiver, and Daniel Bizzelle.1 A cellphone
with the 724-217-xxxx number was among the phones located in the
apartment. Appellant was not present.
As part of the investigation, police that same day executed a search
warrant for Ms. Dudek’s home. That search uncovered six bricks of heroin,
suboxone, cash, and cell phones. Police contacted Ms. Dudek, told her of
their discovery, and attempted to arrange for her to turn herself in.
Ms. Dudek lied to police regarding her location and contacted Appellant.
Appellant then arranged for another woman to pick up Ms. Dudek.
Ms. Dudek stayed with Appellant for five days and Mr. Haynes one night.
Both men knew she was wanted by police. After Mr. Haynes expressed
concern about her being at his residence, Ms. Dudek turned herself in to
police. She provided information to Detective Vernail that Ms. Morcheid was
in possession of additional bricks of heroin. Police arrested Ms. Morcheid on
March 2, 2012, in possession of eight bricks of heroin.
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1
Mr. Bizzelle is the younger brother of Chauncy Bray. He was also referred
to at one point as Dante Bizzelle.
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On March 13, 2012, Appellant asked one of his buyers, heroin addict
Laura Beth Stinson, to pick up and house two individuals: Earl Alford and
Khalil Thomas. The two possessed heroin and cash. Ms. Stinson
transported the individuals to her home in exchange for heroin. Trooper
Norton and Mr. Knight made a purchase of thirty-six stamp bags of heroin
from that location that day. Another trooper stopped Ms. Stinson after she
left her residence. Ms. Stinson agreed to allow police to search her home.
Police found Mr. Alford and Mr. Thomas inside. Mr. Alford was seated on a
toilet in the bathroom, the tank of which concealed heroin. Mr. Thomas was
in a bedroom where heroin was found behind a dresser. In April, police were
able to locate Appellant. At the time of his arrest, he had in his possession
another cellphone with the identical 724-217-xxxx number.2
The Commonwealth charged Appellant with twenty criminal counts.
The charges included two counts of corrupt organizations, criminal
conspiracy, twelve counts of delivery of a controlled substance, four counts
of possession with intent to deliver a controlled substance,3 and hindering
apprehension. The jury convicted Appellant of sixteen counts, finding him
not guilty of two delivery counts and two PWID charges. The trial court
____________________________________________
2
A Commonwealth forensics expert testified that an individual can have two
phones with the same number by asking for the telephone subscriber to
reissue a SIM card with that number.
3
We are aware that both delivery and possession with intent to deliver are
governed by the same statute.
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imposed sentence on October 4, 2013. The court sentenced Appellant to
consecutive two and one-half-to-five-year terms of incarceration on the
corrupt organizations crimes. In addition, it imposed five consecutive two-
to-four-year periods of incarceration for delivery and PWID crimes. Lastly,
the court sentenced Appellant, pursuant to a mandatory minimum based on
the weight of the drugs, to five to ten years incarceration. The court
imposed the remaining sentences concurrently. As mentioned, Appellant’s
aggregate sentence was twenty to forty years imprisonment.
Appellant filed a timely post-sentence motion, which included a
challenge to the alleged excessiveness of his sentence. The trial court
denied Appellant’s motion. This timely appeal ensued. The trial court
directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. Appellant complied, and the trial court
authored its Pa.R.A.P. 1925(a) decision. The matter is now ready for this
Court’s review. Appellant raises six issues on appeal.
1. Whether the court below erred [in] failing to grant a motion
for judgment of acquittal, where there was insufficient
evidence to sustain a guilty verdict with respect to the
following charges:
a. Count 4—Delivery of a Controlled Substance—January
2011 to April 19, 2012
b. Count 6—Delivery of a Controlled Substance—Crack
Cocaine—Red Robin—December 7, 2011; and
c. Count 8—Delivery of a Controlled Substance—Heroin—
Hawksworth Apartments—January 23, 2012
2. Whether the court below erred in allowing witnesses to
present improper hearsay testimony, in particular: Jessica
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Bales; Trooper Gregg Norton; Kelsey Graham; and Desiree
Wilson.
3. Whether the court below erred in allowing the Commonwealth
to offer prior bad act testimony from Desiree Wilson and
Jimmie Lee Knight in violation of Pennsylvania Rule of
Evidence 404.
4. Whether the court below erred in allowing evidence to be
presented in violation of the best evidence rule from Tpr.
Daniel Wojcik.
5. Whether the sentence imposed is excessive, failing to
comport with the goal and objectives of the sentencing code,
having not given sufficient weight to the personal history
factors, the time frame in which the incidents occurred, as
well as the factors raised by counsel at the time of
sentencing.
6. Whether the court below erred in imposing mandatory
minimum sentences at Counts 17 (5 to 10 years) and 19 (3 to
6 years) without submitting the weight of the drugs to the
jury in violation of Alleyne v. United States, 133 S. Ct. 2151
(2013).
Appellant’s brief at 5-6.
In conducting a sufficiency of the evidence review, we view all of the
evidence admitted, even improperly admitted evidence. Commonwealth v.
Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc). We consider such
evidence in a light most favorable to the Commonwealth as the verdict
winner, drawing all reasonable inferences from the evidence in favor of the
Commonwealth. Id. When evidence exists to allow the fact-finder to
determine beyond a reasonable doubt each element of the crimes charged,
the sufficiency claim will fail. Id.
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The evidence “need not preclude every possibility of innocence and the
fact-finder is free to believe all, part, or none of the evidence presented.”
Id. In addition, the Commonwealth can prove its case by circumstantial
evidence. Where “the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the combined
circumstances[,]” a defendant is entitled to relief. This Court is not
permitted “to re-weigh the evidence and substitute our judgment for that of
the fact-finder.” Id.
Appellant’s specific challenge relates to the jury’s adjudication on three
separate delivery of heroin charges. Two of those crimes pertain to specific
incidents and another count, count four, was a historical charge relative to
other heroin transactions between January 2011 and April 19, 2012, not
encompassed by the specific charges.
Initially, we note that Appellant begins his argument by setting forth a
weight of the evidence claim and not a sufficiency argument. The two types
of issues are distinct. Indeed, a weight claim concedes that sufficient
evidence exists. Commonwealth v. Lewis, 911 A.2d 558, 566 (Pa.Super.
2006). Muddling the two categories, Appellant proceeds to maintain that the
“historical count was based on speculation and lacked sufficient evidence at
trial to support a finding of guilty.” Appellant’s brief at 13-14. According to
Appellant, the charge was vague and could have permitted the jury to find
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him guilty based on one of the specific incidents. Additionally, he posits that
there was no lab report as to the historical charge.4
The Commonwealth counters that the historical count was “proven, not
by speculation, but by the direct testimony of multiple admitted heroin
addicts.” Commonwealth’s brief at 21. It highlights that Kelsey Graham
testified to purchasing heroin from Appellant the first time she met him.
She also submitted that Appellant provided her with heroin in exchange for
sex. Ms. Graham further maintained that Appellant supplied her with ten
bags of heroin after she transported him to Paterson, New Jersey, so that he
could purchase heroin for resale in Greensburg.
Sarah Householder indicated that she had purchased heroin from
Appellant, and Laura Beth Stinson testified that Appellant provided her with
heroin once or twice. Jillian Davis acknowledged receiving heroin from
Appellant, and Jimmie Knight testified that the first time he met Appellant he
purchased heroin from him. All of the aforementioned witnesses testified
that these purchases occurred between the summer of 2011 and spring of
2012. This overwhelming amount of evidence unequivocally is sufficient to
demonstrate that Appellant delivered heroin at times not specified in the
remaining delivery and PWID counts. Appellant’s argument relative to the
historical count is meritless.
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4
The reason for the lack of a lab report was, of course, because the
individuals who testified about the purchases had used the drug.
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Appellant also contests a December 7, 2011 cocaine delivery and a
January 23, 2012 delivery of heroin. The December incident occurred when
Appellant and Anna Morcheid met with Chauncy Bray, one day after
Mr. Bray’s release from prison, at a Red Robin restaurant. During the
meeting, Ms. Morcheid exited the restaurant and delivered cocaine to a
confidential informant.
Appellant maintains that he was merely present at the restaurant with
Ms. Morcheid when she delivered cocaine and not involved with the cocaine
transaction. The Commonwealth responds that Appellant was liable as an
accomplice and a co-conspirator. It points out that the purpose of the
meeting at Red Robin was to discuss the drug trade. The Commonwealth
highlights that while Mr. Bray was incarcerated, Appellant retained
Mr. Bray’s cellphone with heroin contacts and Ms. Morcheid had Mr. Bray’s
“crack phone.” Hence, it suggests that Mr. Bray, Appellant, and
Ms. Morcheid continued drug operations while Mr. Bray was incarcerated.
Finally, the Commonwealth avers that the jury was instructed that it could
not find Appellant guilty based on his mere presence at Red Robin and is
presumed to have followed that instruction.
The trial court concluded that, because Appellant was charged at count
three of the criminal information with conspiracy to deliver and possession
with intent to deliver a controlled substance and Ms. Morcheid and Mr. Bray
were specifically named in that count as co-conspirators, Appellant was
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liable for their acts in furtherance of the conspiracy. Here, the jury was
charged on both conspiratorial and accomplice liability.5 Appellant did not
challenge either instruction. As recently highlighted, the two concepts are
distinct. Commonwealth v. Knox, __ A.3d __ (Pa. 2014) (filed December
15, 2014); see also commonwealth v. Roebuck, 32 A.3d 613, 622-623
(Pa. 2011). Accomplice liability is offense specific. Knox, supra. A person
is only an accomplice if, acting with intent to facilitate, in this case, a cocaine
delivery, he solicits, aids, agrees or attempts to aid the person in planning or
committing the crime. 18 Pa.C.S. § 306.
A person’s “status as an accomplice relative to some crimes within a
larger criminal undertaking or episode no longer per se renders a defendant
liable as an accomplice for all other crimes committed.” Knox, supra at *2.
Thus, as it relates to accomplice liability, we look to whether the evidence
demonstrated that Appellant promoted or facilitated Ms. Morcheid’s delivery
of cocaine by aiding, agreeing to aid, or attempting to aid her in delivering
that substance.
____________________________________________
5
Justice Eakin in a concurring opinion in Commonwealth v. Knox, __ A.3d
__ (Pa. 2014), disputed that a person can be found guilty of an underlying
possession of a firearm crime as a conspirator. Rather, he opined that the
person is guilty of a conspiracy, which is itself a separate crime, or guilty of
the firearms crime under accomplice liability or joint/constructive
possession. Compare Commonwealth v. Johnson, 26 A.3d 1078,
1096 (Pa. 2011) (Eakin, J., concurring) (“heroin found in a co-conspirator's
possession may be attributable to the defendant as a result of conspiratorial
liability.”).
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With respect to conspiratorial liability, it must be remembered that
conspiracy to commit a substantive offense and the substantive offense itself
are separate crimes. Commonwealth v. Johnson, 26 A.3d 1078, 1090
(Pa. 2011). A conspirator is responsible “for the natural and probable
consequences of acts committed by his fellow conspirator or conspirators if
such acts are done in pursuance of the common design or purpose of the
conspiracy.” Commonwealth v. Roux, 350 A.2d 867, 871 (Pa. 1976).
Hence, illegal narcotics possessed and delivered by one member of a
conspiracy may be attributed to another member of that conspiracy.
The trial court instructed the jury that it could find Appellant guilty
under conspiratorial liability
for the act or acts of another person or persons if each of the
following elements [was] proved beyond a reasonable doubt:
(a) that the other person who committed a specific act was
also a member of the same conspiracy;
(b) that the crime in question was committed while the
conspiracy was in existence; and
(c) that the crime in question was committed to further the
goals of the conspiracy.
N.T., 6/17-24/14, at 1263.
This Court has further held that a person is a conspirator if they “1)
entered into an agreement to commit or aid in an unlawful act with another
person or persons; 2) with a shared criminal intent; and 3) an overt act was
done in furtherance of the conspiracy.” Commonwealth v. Devine, 26
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A.3d 1139, 1147 (Pa.Super. 2011) (discussing concept of conspiracy in the
context of the substantive crime of conspiracy). In examining whether a
conspiracy exists, we consider any association between the alleged
conspirators; knowledge of the commission of the crime; presence at the
scene of the crime, and participation in the object of the conspiracy.”
Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa.Super. 2002) (en
banc) (analyzing substantive crime of conspiracy).
Instantly, the evidence of record demonstrates that Mr. Bray had
previously supplied Appellant with a phone for dealing heroin. Mr. Bray’s
“crack phone” was possessed by Ms. Morcheid. Ms. Morcheid also was
involved in dealing heroin for Appellant, and was later arrested in possession
of a significant quantity of heroin. She met with Mr. Bray and Appellant on
the date in question to facilitate the ongoing drug business. During this
meeting at the Red Robin, Ms. Morcheid delivered crack cocaine to a CI in
the presence of an undercover police officer.
This evidence substantiates that Appellant was actively engaged in an
ongoing conspiracy with Mr. Bray and Ms. Morcheid to sell illegal drugs.
Although Appellant was more involved in the sale of heroin, he was not
merely present at the Red Robin when Ms. Morcheid delivered the cocaine.
Mr. Bray had just been released from prison. Appellant and Ms. Morcheid
were continuing to operate Mr. Bray’s drug enterprise during his
incarceration. Ms. Morcheid was actively involved with aiding Appellant in
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the sale of heroin as well. The evidence was not so weak and inconclusive
that no probability of fact could be derived therefrom. The jury could have
reasonably inferred that Ms. Morcheid was assisting Appellant in selling
cocaine. Accordingly, we decline to upset the jury’s verdict and find
sufficient evidence was introduced to establish Appellant’s guilt.
Appellant’s final sufficiency argument is that Trooper Norton could not
identify Appellant as being present on January 23, 2012, when CI Jimmie
Knight purchased heroin. He submits that Mr. Knight could not recall with
clarity the January 23rd incident and admitted to making other purchases at
the Hawksworth Garden apartments that were consistent with the January
23rd transaction. Without citation to any legal authority, Appellant argues
that the conviction based on the January 23rd event is founded on
speculation.
The Commonwealth rejoins that Mr. Knight identified Appellant as the
person who sold him heroin at least twice in the stairwell of the Hawksworth
Garden apartments. It acknowledges that Mr. Knight admitted to purchasing
heroin after controlled buys for his own use. Nonetheless, it notes that
Trooper Norton did identify Appellant from the January 19th incident and
Mr. Knight telephoned the same 724-217-6662 number on both occasions.
Here, Appellant’s claim fails. The telephone number used on
January 23, 2012 to set up the purchase was the same number of a phone
found on Appellant when he was arrested. Appellant, on January 19, 2012,
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had been personally observed at the same location with Mr. Knight after
Mr. Knight called the number in question to purchase heroin. The evidence
shows that Appellant was the principal supplier of heroin for the other low
level drug sellers. Even if Appellant was not actually present, evidence that
he conspired with those regularly selling heroin from the Hawksworth
Garden Apartments was overwhelming. This is simply not a case where the
evidence is so weak and inconclusive that no probability of fact can be drawn
from it.
The second issue Appellant forwards is that the court erred by
permitting four separate witnesses to offer hearsay testimony. We consider
a trial court’s decision on the admission of evidence under an abuse of
discretion standard. Commonwealth v. Feliciano, 67 A.3d 19,
27 (Pa.Super. 2013) (en banc). Appellant first maintains that certain
testimony by Jessica Bales was improperly admitted. He submits that
Ms. Bales’ testimony that Chauncy Bray instructed her to pick up several
bricks of heroin from one person’s home and transport them to another
house was hearsay. Appellant continues that the co-conspirator exception to
the hearsay rule did not apply. In this regard, Appellant asserts that the
statement evidenced a conspiracy between Mr. Bray and Ms. Bales, but had
no relation to him.
The Commonwealth rejoins that Ms. Bales’ testimony was admissible
under the co-conspirator exception to the hearsay rule. See Pa.R.E.
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803(25). “[T]o establish the admissibility of a coconspirator's statement, it
is not required to prove beyond a reasonable doubt that a conspiracy
existed. Rather, it must only show by a preponderance of the evidence that
a conspiracy existed.” Feliciano, supra at 26-27. The preponderance
standard “may be inferentially established by showing the relation, conduct
or circumstances of the parties.” Id. at 27.
The Commonwealth points out that, prior to the disputed testimony,
Ms. Bales testified that beginning in the summer of 2011 she had discussed
selling heroin with Appellant. She also provided that Appellant stored heroin
in the ceiling tiles of her home and brought other individuals to her residence
to sell heroin. The Commonwealth adds that Ms. Bales testified that she
knew Appellant, Mr. Bray, and Dominick Haynes were involved with selling
heroin together. According to the Commonwealth, this evidence establishes
by a preponderance of the evidence that a conspiracy existed between all of
these individuals to sell illegal drugs. We agree.
Appellant’s paltry argument ignores that the co-conspirator exception
applies to statements made by a party’s co-conspirator during and in
furtherance of the conspiracy. Mr. Bray was part of the conspiracy with
Appellant and his statements to Ms. Bales certainly were made in
furtherance of the conspiracy. See Feliciano, supra at 27 (“To lay a
foundation for the co-conspirator exception to the hearsay rule, the
Commonwealth must prove that: (1) a conspiracy existed between declarant
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and the person against whom the evidence is offered and (2) the statement
sought to be admitted was made during the course of the conspiracy. In
addition, there must be evidence other than the statement of the co-
conspirator to prove that a conspiracy existed.”). Appellant’s position is
without merit.
Next, Appellant contends that the trial court erred in permitting
Trooper Norton to testify to information provided to him by a CI, Jimmie
Knight. In one paragraph, and without citation to legal authority, Appellant
argues that Trooper Norton’s testimony that Mr. Knight identified a person
nicknamed “Jae or Jizzle” as the drug seller was inadmissible hearsay where
other evidence showed that these were Appellant’s nicknames.
The Commonwealth counters that the evidence was not hearsay and,
even if it was hearsay, it fell within the then-existing mental, emotional, or
physical condition exception. We need not delve too deeply into these
arguments because, even assuming arguendo that the statements were
inadmissible hearsay, the identical evidence was properly admitted via
Mr. Knight’s own testimony. Thus, the evidence was merely cumulative of
other properly admitted evidence and could not have had any effect on the
outcome of the trial.
Appellant also challenges testimony from Kelsey Graham. Specifically,
Appellant posits that Ms. Graham’s testimony that Kristen Weightman had
told her that Appellant was upset at Ms. Weightman for messing up money
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connected to heroin transactions was hearsay. He avers that this testimony
does not fall within the co-conspirator exception to the hearsay rule because
it impermissibly bootstraps. In this respect, he argues that the statement
itself is what establishes the conspiracy.
The Commonwealth responds that the evidence was admissible under
the co-conspirator exception since it established Ms. Weightman’s role in the
drug organization through various other sources. It notes that
Ms. Weightman was romantically involved with Appellant for a period, and
that numerous individuals testified that Ms. Weightman sold heroin for
Appellant.
The evidence that Ms. Weightman was involved in the drug conspiracy
is overwhelming. The objected-to statement was not the only evidence that
established a conspiracy between Appellant and Ms. Weightman. Therefore,
Appellant’s argument misses the mark. Moreover, the statement was not
introduced to prove that Ms. Weightman did, in fact, botch various heroin
deals. Hence, the evidence does not qualify as hearsay because it was not
introduced for the truth of the matter asserted. See Pa.R.E. 802. It is not
impermissible bootstrapping to allow the evidence as proof of the conspiracy
when the statement is not being used to prove the truth of the underlying
statement. Appellant’s position with respect to Desiree Wilson is identical to
that leveled as to Ms. Weightman; and, therefore, it fails for the same
reasons.
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Appellant’s third argument on appeal is that the trial court erred in
allowing the introduction of prior bad acts evidence. Appellant challenges
the introduction of two pieces of evidence. First, he asserts that it was error
to allow Desiree Wilson to testify that she heard Appellant slap
Ms. Weightman, presumably over Ms. Weightman’s inability to manage the
money aspect of the heroin dealing and her usage of the product. Second,
Appellant contends that the court erred in permitting Mr. Knight to testify
that Appellant offered him $5,000 not to testify at trial.
As to the testimony of both Ms. Wilson and Mr. Knight, Appellant failed
to object. Appellant earlier objected to Ms. Wilson’s testimony regarding
Ms. Weightman accepting $250 in counterfeit money for heroin, but did not
object to her testimony that Appellant smacked Ms. Weightman. Thus, the
issue is not preserved. Pa.R.A.P. 302(a). With regard to Mr. Knight’s
pertinent testimony, Appellant objected once to the leading nature of one
question, which the trial court sustained. He did not contest the introduction
of evidence that he offered Mr. Knight $5,000 not to testify. Accordingly, his
issue is waived. Further, even if the issue was not waived, we would find no
error in its admission since Mr. Knight’s testimony was admissible to
establish consciousness of guilt. See Commonwealth v. Rega, 933 A.2d
997, 1009 (Pa. 2007) (collecting cases).
The fourth claim Appellant levels on appeal is that the court erred in
disregarding the best evidence rule by permitting New Jersey State Trooper
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Daniel Wojcik to testify to the traffic stop he performed on Kelsey Graham
and Appellant in New Jersey. Prior to testifying, the officer reviewed a video
tape of the traffic stop. Appellant objected at trial and argued that the video
was the best evidence of what occurred and it was improper to ask the
witness about what he viewed on the tape. The Commonwealth responded
that the witness had already described what he saw and was only asking
whether his viewing of the tape before trial allowed him to refresh his
recollection of the traffic stop.
The best evidence rule provides, “To prove the content of a writing,
recording, or photograph, the original writing, recording or photograph is
required, except as otherwise provides in these rules, by other rules
prescribed by the Supreme Court, or by statute.” Pa.R.E. 1002. Appellant
relies on Commonwealth v. Lewis, 623 A.2d 355 (Pa.Super. 1993), in
support. Lewis involved a retail theft trial. Therein, security footage
captured the defendant and another individual shoplifting inside Sears
electronic department. A store security guard apprehended the men and
contacted local police. At trial, the police officer who responded testified
with respect to what he viewed on the surveillance tape. In contrast to this
matter, the officer did not personally observe the acts. We ruled that the
failure to introduce the tape violated the best evidence rule.
This case is easily distinguishable since the officer personally took part
in the traffic stop and viewed the incident himself. The best evidence rule
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was not implicated. Compare Lewis, supra at 359 (“Officer Barclay had
viewed the tape; nevertheless, he did not have first-hand knowledge of
Appellant's alleged act of theft; rather, whatever knowledge he possessed
was gained from his viewing of the videotape. Thus, the original tape should
have been produced.”); see also Pa.R.E. 614 (“A witness may use a writing
or other item to refresh memory for the purpose of testifying while testify, or
before testifying.”).
Appellant’s penultimate issue relates to the discretionary aspects of his
sentence. To adequately preserve a discretionary sentencing claim, the
defendant must present the issue in either a post-sentence motion, or raise
the claim during the sentencing proceedings. Commonwealth v.
Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en banc). Further, the
defendant must “preserve the issue in a court-ordered Pa.R.A.P. 1925(b)
concise statement and a Pa.R.A.P. 2119(f) statement.” Id. Importantly,
“[t]here is no absolute right to appeal when challenging the discretionary
aspect of a sentence.” Id. “[A]n appeal is permitted only after this Court
determines that there is a substantial question that the sentence was not
appropriate under the sentencing code.” Id.
Appellant preserved his issue in his motion to modify his sentence and
his Pa.R.A.P. 1925(b) statement. However, he has failed to include a
Pa.R.A.P. 2119(f) statement in his brief. Nonetheless, the Commonwealth
has not objected to the absence of a Pa.R.A.P. 2119(f) statement.
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Accordingly, we do not find waiver on that basis. See Commonwealth v.
Stewart, 867 A.2d 589 (Pa.Super. 2005).
Appellant acknowledges that the sentences at each count were within
the sentencing guidelines. Nevertheless, he maintains that the court failed to
give sufficient weight to his difficult upbringing and the short period in which
the drug enterprise operated. Thus, he maintains that his twenty-to-forty
year sentence was excessive.
This Court has previously commented on the disparity in our
jurisprudence governing determining substantial questions. See
Commonwealth v. Dodge, 77 A.3d 1263, 1272 n.8 (Pa.Super. 2013).
There, we also discussed that a bald excessiveness claim does not present a
substantial question, but an excessiveness challenge is not per se precluded
from raising a substantial question for review. We noted that claims
pertaining to the sentencing court’s failure to consider or inadequately
considering facts of record had been held in some cases as not presenting a
substantial question. Id. Yet, in a number of other cases, this Court has
found that an allegation that a sentencing court’s sentence was excessive
because it did not consider mitigating factors presented a substantial
question. Id. (citing Commonwealth v. Perry, 883 A.2d 599, 602
(Pa.Super. 2005)). In light of these apparent inconsistencies, we decline to
find that Appellant has not presented a substantial question.
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When considering a discretionary aspects of sentencing claim, we
analyze the sentencing court’s decision under an abuse of discretion
standard. Dodge, supra at 1274. In conducting this review, we are guided
by the statutory requirements of 42 Pa.C.S. § 9781(c) and (d). Id. Section
9781(c) provides that this Court shall vacate a sentence and remand under
three circumstances. Relevant hereto is if the sentence is within the
sentencing guidelines, “but the case involves circumstances where the
application of the guidelines would be clearly unreasonable[.]” 42 Pa.C.S.
§ 9781(c)(2). In addition, we consider:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
In the present case, the sentencing court imposed concurrent
sentences on seven counts and consecutive sentences on an additional nine
counts. These sentences were within the standard range of the sentencing
guidelines. It considered that Appellant headed a large-scale drug operation
and that heroin addiction had devastated the community. The court noted
that Appellant had previously been on probation but continued to pursue
criminal activity. It acknowledged Appellant’s troubled family life and past
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drug history. The court highlighted that Appellant knew the serious effects
of heroin addiction insofar as he did not use the drug, but still sold it, and
took advantage of vulnerable individuals. It also found that he exhibited no
remorse. Finally, the court considered a presentence investigation report.
It is evident from the record that the sentencing court considered the
appropriate guidelines and mitigating and aggravating facts in constructing
its sentence. The reasons given for Appellant’s sentence are sound. The
sentence imposed is not clearly unreasonable; therefore, the court did not
abuse its discretion.
Lastly, Appellant contends that his sentence is unconstitutional under
Alleyne v. United States, 133 S. Ct. 2151 (2013). Alleyne held that facts
that increase a defendant’s mandatory minimum sentence are elements of
the crime and must be proven beyond a reasonable doubt or a defendant’s
jury trial right is violated. Accordingly, many mandatory minimum
sentencing statutes in Pennsylvania are no longer constitutionally sound.
See Commonwealth v. Watley, 81 A.3d 108 (Pa.Super. 2013) (en banc).
More recently, this Court has held that the statute governing drug
mandatories, at issue here, is unconstitutional as a whole and that a
sentence under such a provision is illegal.6 Commonwealth v. Cardwell,
____________________________________________
6
Writing solely for myself herein, I note that I have disagreed with the
rationale expressing that our mandatory minimum sentencing statutes are
not severable. See Commonwealth v. Bizzel, 2014 Pa. Super. 267 (Bowes,
(Footnote Continued Next Page)
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2014 Pa. Super. 263; see also Commonwealth v. Thompson, 93 A.3d 478
(Pa.Super. 2014) (defendant entitled to resentencing pursuant to Alleyne
where the weight of the drugs was not determined by a jury beyond a
reasonable doubt). Accordingly, Appellant is entitled to sentencing relief.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/9/2015
_______________________
(Footnote Continued)
J., concurring). I continue to adhere to that view. Nonetheless, even absent
the severability decisions relative to the mandatory sentencing statutes,
Appellant’s sentence does not fall within the Alleyne harmless error analysis
posited by myself in Bizzel or the majority in Commonwealth v. Watley,
81 A.3d 108 (Pa.Super. 2013) (en banc). Phrased differently, the jury
verdict in this case does not make it clear that it determined that Appellant
possessed the requisite weight of heroin beyond a reasonable doubt. See
Commonwealth v. Thompson, 93 A.3d 478 (Pa.Super. 2014).
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