Com. v. Rozier, L. ( 2016 )

J-A16028-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LAMAR VASHAWN ROZIER
Appellant No. 1239 WDA 2015
Appeal from the Judgment of Sentence April 22, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0012727-2013
BEFORE: SHOGAN, OLSON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 27, 2016
Appellant, Lamar Vashawn Rozier, appeals from the judgment of
sentence entered on April 22, 2015, as made final by the denial of his post-
sentence motion on July 23, 2015, following his jury convictions of
possession with intent to deliver a controlled substance (PWID), possession
of a controlled substance, and carrying a firearm without a license.1 We
affirm Appellant’s convictions, but remand for resentencing.
We briefly summarize the facts and procedural history of this case as
follows. On June 19, 2013, the Allegheny County Sheriff’s Office responded
to a call of shots fired on the Northside in Pittsburgh, Pennsylvania and a
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1
35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), and 18 Pa.C.S.A.
§ 6106(a)(1), respectively. The trial court also conducted a concurrent
bench trial and found Appellant guilty of persons not to possess a firearm
under 18 Pa.C.S.A. § 6105(a)(1).
*Retired Senior Judge assigned to the Superior Court.
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white van fleeing the scene. Shortly thereafter, Deputy Randy Grossman
pulled over a white van matching that description on the McKees Rocks
Bridge. The driver, Jerrell Knight, identified himself as a jitney driver.
Appellant was in the passenger seat. Knight complied with Deputy
Grossman’s directives to keep his hands visible during the traffic stop, but
Appellant did not. Appellant continued moving inside the vehicle. Once
Deputy Grossman removed Knight from the vehicle, Knight told the officer
that Appellant put a firearm in the vehicle’s glove compartment. Deputy
Grossman searched the vehicle and recovered a loaded Smith and Wesson
.38 special revolver from the glove compartment. Appellant did not have a
valid license to carry a firearm. In a search incident to his arrest, Deputy
Grossman recovered 42 individual packets of heroin and $298.00 in cash
from Appellant’s pockets. Police also recovered two unidentified cell phones
from the floor of the passenger side of the car.
On November 25, 2014, a jury convicted Appellant of PWID,
possession of a controlled substance and carrying a firearm without a
license. The trial court subsequently found Appellant guilty of persons not to
possess a firearm at the conclusion of a concurrent bench trial. This timely
appeal resulted.2
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2
Appellant filed a timely post-sentence motion after the trial court granted
an extension. On July 23, 2015, the trial court denied relief. Appellant filed
a notice of appeal on August 10, 2015. On August 19, 2015, the trial court
entered an order directing Appellant to file a concise statement of errors
(Footnote Continued Next Page)
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On appeal, Appellant presents the following issues for our review:
I. Whether the evidence of record was insufficient to
support a conviction of possession with intent to
deliver since the Commonwealth failed to show that []
Appellant intended to deliver the controlled
substance?
II. Whether the evidence of record was insufficient to
support [Appellant’s] conviction [] of carrying a
firearm without a license since he did not possess the
firearm?
III. Whether the verdict of the jury for possession with
intent to deliver and carrying a gun without a license
is against the weight of the evidence in this case?
IV. Whether the lower court erred in sentencing by failing
to take into consideration that [] Appellant took many
classes in jail, was in a drug pod for a significant
period of time, and participated in a drug program,
the reentry program and the hope program in jail?
Whether the lower court also erred by giving
consecutive sentences, and failing to determine if []
Appellant was eligible for RRRI, CIP, SIP or if the
court costs were waived?
Appellant’s Brief at 7 (complete capitalization and suggested answers
omitted).
Appellant’s first two issues challenge the sufficiency of the evidence
presented by the Commonwealth with regard to his convictions for PWID and
carrying a firearm without a license. We will examine those claims together.
_______________________
(Footnote Continued)
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
on September 1, 2015. On December 10, 2015, the trial court filed an
opinion pursuant to Pa.R.A.P. 1925(a).
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Appellant claims the Commonwealth failed to present sufficient evidence that
he possessed the heroin, recovered from his jacket, with the intent to deliver
it. Id. at 12. Instead, Appellant maintains he “credibly testified that he was
a heroin addict and used between thirty and sixty stamp bags a day [and]
snorted the heroin off his hand while he was in the van.” Id. at 12-13. He
claims no one saw him selling drugs or suggested he did. Id. at 13.
“A claim impugning the sufficiency of the evidence presents us with a
question of law.” Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.
Super. 2014) (citation omitted). Our standard of review is well-established:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant's guilt may be
resolved by the fact-finder 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. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
finder 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.
This standard is equally applicable to cases where the
evidence is circumstantial rather than direct so long as the
combination of the evidence links the accused to the crime
beyond a reasonable doubt. Although a conviction must be
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based on more than mere suspicion or conjecture, the
Commonwealth need not establish guilt to a mathematical
certainty.
Id. (citations and quotations omitted).
When reviewing a challenge to the sufficiency of the evidence with
regards to a PWID conviction,
[t]he Commonwealth must prove both the possession of the
controlled substance and the intent to deliver the controlled
substance. It is well settled that all the facts and
circumstances surrounding possession are relevant in
making a determination of whether contraband was
possessed with intent to deliver.
In Pennsylvania, the intent to deliver may be inferred from
possession of a large quantity of controlled substance.
Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa. Super. 2008) (internal
citation omitted). Further, our Supreme Court explained:
Other factors to consider when determining whether a
defendant intended to deliver a controlled substance include
the manner in which the controlled substance was
packaged, the behavior of the defendant, the presence of
drug paraphernalia, and large sums of cash found in
possession of the defendant. The final factor to be
considered is expert testimony. Expert opinion testimony is
admissible concerning whether the facts surrounding the
possession of controlled substances are consistent with an
intent to deliver rather than with an intent to possess it for
personal use.
Commonwealth v. Ratsamy, 934 A.2d 1233, 1237–1238 (Pa. 2007).
Here, police recovered 42 individually packaged bags of heroin and
“[a]round $300[.00] in random denomination currency.” N.T., 11/24/2014,
at 111. An expert for the Commonwealth testified that the presence of cash
on Appellant’s person, the two cellular phones recovered from the area near
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Appellant’s feet, and a lack of paraphernalia showed the narcotics were
possessed with intent to deliver them. Id. at 119, 123-124. Moreover, he
opined that the packaging of the drugs was indicative of drug sales, because
smaller, individual bags are more expensive to purchase and drug users tend
to buy in bulk for personal consumption. Id. at 120-123. Based upon our
standard of review, we find the foregoing evidence was sufficient to support
Appellant’s PWID conviction.
Next, with regard to carrying a firearm without a license, Appellant
argues the evidence was insufficient because: (1) police found the firearm
in a vehicle he did not own; (2) there was no physical evidence Appellant
handled the weapon, (3) there was another passenger in the front seat
before Appellant, and; (4) Knight, the jitney driver, testified against
Appellant only after the Commonwealth agreed to not prosecute Knight.
Appellant’s Brief at 15.
“[A]ny person who carries a firearm in any vehicle or any person who
carries a firearm concealed on or about his person, except in his place of
abode or fixed place of business, without a valid and lawfully issued license
under this chapter commits a felony of the third degree.” 18 Pa.C.S.A.
§ 6106. Because Appellant was not in physical possession of the firearm,
the Commonwealth was required to establish that he had constructive
possession of it to support his conviction:
Constructive possession is a legal fiction, a pragmatic
construct to deal with the realities of criminal law
enforcement. Constructive possession is an inference arising
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from a set of facts that possession of the contraband was
more likely than not. We have defined constructive
possession as conscious dominion. We subsequently defined
conscious dominion as the power to control the contraband
and the intent to exercise that control. To aid application,
we have held that constructive possession may be
established by the totality of the circumstances.
Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013).
Here, Deputy Grossman testified that he was responding to a call of
gunshots fired. N.T., 11/24/2014, at 32. When pulling over the vehicle at
issue, Appellant initially got out of the car and police ordered him back
inside. Id. at 36. The jitney driver, Jerrell Knight, complied with Deputy
Grossman’s initial demand to show his hands, but Appellant, who was sitting
in the front passenger seat, did not obey. Id. at 39. Deputy Grossman
testified that, despite the van having tinted windows, he could see Appellant
was moving around the passenger compartment. Id. at 39, 44. Appellant
would not exit the vehicle when police ordered him to. Id. at 41. Deputy
Grossman opined that based upon the size of the vehicle, Knight would not
have been able to reach across the car and place the gun in the glove
compartment with the officer watching him. Id. at 44.
The Commonwealth also presented the testimony of Knight. Initially,
the Commonwealth made the jury aware that Knight had been charged with
carrying a firearm without a license, but those charges would be dropped in
exchange for his testimony in this case. N.T., 11/24/2014, at 74-75. Knight
testified that when police pulled the vehicle over, Appellant took a firearm
from his waistband and put it in the glove compartment. Id. at 82. When
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police were handcuffing Knight, he told the officers what Appellant had done.
Id. at 83.
Viewing the evidence in the light most favorable to the
Commonwealth, as our standard requires, we find there was sufficient
evidence that Appellant constructively possessed the firearm. Police were
responding to shots fired when they pulled over the vehicle in question.
Appellant immediately exited the vehicle, was ordered by police back inside,
and then continued moving around despite being told to show his hands.
Appellant displayed behavior indicative of a consciousness of guilt,
specifically, trying to distance himself from the vehicle and making
movements near the glove compartment, where the gun was recovered,
despite police commands to stop. See Commonwealth v. Hughes, 865
A.2d 761, 792 (Pa. 2004) (“The conduct of an accused following a crime,
including ‘manifestations of mental distress,’ is admissible as tending to
show guilt.”). The jitney driver immediately told police that Appellant took a
gun from his waistband and placed it in the glove compartment where police
found it, directly in front of where Appellant was last sitting. In totality, the
evidence was sufficient to show Appellant exercised conscious dominion and
control over the firearm to support his conviction.
In his third issue presented, Appellant maintains his convictions for
PWID and carrying a firearm without a license were against the weight of the
evidence. Appellant essentially relies upon his same arguments in
challenging the sufficiency of the evidence. Appellant’s Brief at 16-17.
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The standard of review employed when deciding a weight of the
evidence claim is well-settled:
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the
discretion of the trial court. A new trial should not be
granted because of a mere conflict in the testimony or
because the judge on the same facts would have arrived at
a different conclusion. Rather, the role of the trial judge is
to determine that notwithstanding all the facts, certain facts
are so clearly of greater weight that to ignore them or to
give them equal weight with all the facts is to deny justice.
It has often been stated that a new trial should be awarded
when the jury's verdict is so contrary to the evidence as to
shock one's sense of justice and the award of a new trial is
imperative so that right may be given another opportunity.
An appellate court's standard of review when presented with
a weight of the evidence claim is distinct from the standard
of review applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court's determination
that the verdict is against the weight of the
evidence. One of the least assailable reasons for
granting or denying a new trial is the lower court's
conviction that the verdict was or was not against
the weight of the evidence and that a new trial
should be granted in the interest of justice.
This does not mean that the exercise of discretion by the
trial court in granting or denying a motion for a new trial
based on a challenge to the weight of the evidence is
unfettered. In describing the limits of a trial court's
discretion, [our Supreme Court has] explained:
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The term discretion imports the exercise of
judgment, wisdom and skill so as to reach a
dispassionate conclusion within the framework of the
law, and is not exercised for the purpose of giving
effect to the will of the judge. Discretion must be
exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course
pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable
or where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations
and quotations omitted).
Upon review, we discern no abuse of discretion in the trial court’s
denial of Appellant’s weight claim. Based on the evidence presented, as set
forth at length above, the jury’s verdict did not shock one’s sense of justice.
The judgment was reasonable, the law was properly applied and record
shows that the trial court’s decision was not the result of partiality,
prejudice, bias or ill-will. As such, Appellant is not entitled to relief on this
claim.
In his last issue presented, Appellant challenges the sentences
imposed by the trial court. More specifically, Appellant claims the trial court:
(1) failed to take into consideration his rehabilitative efforts while
imprisoned; (2) sentenced Appellant to consecutive terms of imprisonment
resulting “in an unfair sentence[,]” and; (3) did not make a record
determination whether Appellant was eligible for the Recidivism Risk
Reduction Incentive (RRRI) program. Appellant’s Brief at 19-20.
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The RRRI Act provides (1) that a sentencing court must designate a
sentence as an RRRI sentence whenever the defendant is eligible for that
designation, and (2) that a defendant is eligible for that designation if he has
not been previously convicted of certain enumerated offenses and does not
demonstrate a history of present or past violent behavior. 61 Pa.C.S.A.
§ 4503. Recently, this Court determined “that it is legal error to fail to
impose a RRRI minimum on an eligible offender. A challenge to a court's
failure to impose an RRRI sentence implicates the legality of the sentence.”
Commonwealth v. Hodge, 2016 WL 4088092, at *2 (Pa. Super. 2016)
(brackets and internal citation omitted). “An illegal sentence must be
vacated.” Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014)
(citation omitted). The Commonwealth concedes that Appellant’s sentence
is illegal and agrees to remand the case for the trial court to make the
statutorily mandated, on the record, RRRI eligibility determination.
Commonwealth’s Brief at 27. We agree. Moreover, because Appellant is
entitled to resentencing, his remaining, discretionary sentencing claims are
moot.
Accordingly, based upon all of the foregoing, we affirm Appellant’s
convictions, but vacate Appellant’s sentence and remand for the trial court
to determine Appellant’s RRRI eligibility.
Convictions affirmed. Sentences vacated. Remand for resentencing
consistent with this memorandum. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2016
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