Com. v. Williams, M. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL WILLIAMS, :
:
Appellant : No. 735 EDA 2014
Appeal from the Judgment of Sentence February 12, 2014,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0010059-2013
BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED APRIL 21, 2015
Michael Williams (“Williams”) appeals from the February 12, 2014
judgment of sentence entered by the Court of Common Pleas, Philadelphia
County, following a conviction of possession with intent to deliver a
controlled substance (“PWID”), 35 P.S. § 780-113(a)(30), and knowingly
and intentionally possessing a controlled substance (“K&I”), 35 P.S. § 780-
113(a)(16). For the reasons set forth herein, we affirm Williams’ conviction,
but vacate his judgment of sentence and remand for resentencing.
The facts and procedural history is as follows:
On July 18, 2013, at 12:45 p.m., Officer [David]
Rausch was conducting surveillance on the 2300
block of Nichols Street in the city and county of
Philadelphia, Pennsylvania. The officer observed
[Williams] standing outside the row homes between
2314 and 2316 Nichols Street, "talking to a couple of
gentlemen on the block." "At approximately 12:50
[p.m.], an unknown black male [wearing] a white
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and blue shirt and black pants approached [Williams]
to engage in a brief conversation." The "unknown"
male handed [Williams] money, which [Williams]
placed in the back pocket of his shorts. [Williams]
then walked across the street and entered an
abandoned row home located at 2319 Nichols Street.
[Williams] entered the premises through an unlocked
door and remained inside for about twenty seconds.
When [Williams] emerged, he walked back to the
unknown male and "handed him small items," after
which the individual walked away. Officer Rausch
described this individual to back-up officers, but the
officers could not locate him after he departed from
[Williams]. (N.T., 2/10/14, pp. 14-18).
A few minutes later, at approximately 1:00 p.m.,
another black male wearing a blue shirt and tan
pants approached [Williams] and handed him
money, which [Williams] placed in the back pocket of
his shorts. As before, [Williams] walked across the
street, entered 2319 Nichols Street, and remained
inside for about twenty seconds. When [Williams]
emerged, he walked back to the unknown male and
handed him "small items." Following this transaction,
the unknown male walked away and was neither
located nor stopped by back-up officers. (N.T.,
2/10/14, pp. 18-19).
At approximately 1:15 p.m., another individual
approached [Williams] and handed him money,
which [Williams] placed in the back pocket of his
shorts. Same as the previous two transactions,
[Williams] walked across the street, entered 2319
Nichols Street, and remained inside for about twenty
seconds. When [Williams] emerged, he walked back
to the individual and handed him "items." Officer
Rausch described this individual to back-up officers,
including Officer [Steven] Shippen, who
subsequently detained and identified the individual
as Dwayne Carson. Officer Shippen recovered a
silver metal container from Mr. Carson, which
contained two Xanax pills, four Methadone pills, and
one Roxicodone pill. (N.T., 2/10/14, pp. 19-20, 29).
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Following his transaction with Mr. Carson, [Williams]
walked down Nichols Street toward Ridge Avenue,
upon which Officer Rausch directed back-up officers
to apprehend him. The arresting officer recovered
$185.00 from the back pocket of [Williams’] pants,
and was informed by [Williams] that [Williams] lived
not at 2319 Nichols Street -- which he was seen
entering three times -- but several blocks away at
2812 West Marsden Street. The arresting officer
recovered no narcotics from [Williams’] person (N.T.,
2/10/14, pp. 19-20, 27, 37).
Officers Rausch and [John] Mulqueeney (among
other officers) subsequently searched the premises
at 2319 Nichols Street. [According to] Officer
Mulqueeney [] the sole piece of furniture in the
premises was a couch located about ten feet from
the front door. The residence "was obviously
abandoned" and was covered with trash "all over the
place." Officer Mulqueeney observed an "amber pill
bottle" sitting beside a couch cushion, which
contained sixty-six (66) Endoset pills weighing a
total of 28.64 grams. When Officer Mulqueeney
searched beneath the couch cushion, he discovered
"one clear plastic baggie containing five clear heat-
sealed packets of ... crack cocaine," which weighed
less than 2 grams. Although police officers
discovered no paperwork linking [Williams] or
anyone else to the abandoned property, [Williams]
was the only person whom Officer Rausch observed
enter or exit the premises. (N.T., 2/10/14, pp. 33-
38).
Trial Court Opinion, 8/22/14, at 2-4.
Williams was charged with PWID and K&I. On February 10, 2014,
Williams waived his right to a jury trial and proceeded to a bench trial. At
trial, the Commonwealth presented the testimony of Officers Rausch,
Shippen, and Mulqueeney. Williams did not offer any witness or evidence.
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At the conclusion of the Commonwealth’s case, the trial court found Williams
guilty of both charges.
On February 12, 2014, the trial court sentenced Williams to a
mandatory minimum of five to ten years of incarceration on the charge of
PWID. The trial court did not impose a penalty on the K&I charge. Williams
did not file a post-sentence motion challenging his convictions or sentence.
On March 5, 2014, Williams filed a timely notice of appeal. On July 1,
2014, Williams filed a statement of matters complained of on appeal
pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure.
Pa.R.A.P. 1925(b). On appeal, Williams raises the following issues for our
review:
1. [Whether] the verdict is against the weight of the
evidence because the evidence was not beyond a
reasonable doubt to convict [Williams] of Possessing
With the Intent to Deliver the narcotics inside the
abandoned house[?]
2. [Whether] the evidence was insufficient to support
the verdict because there was insufficient evidence
to convict [Williams] of the mandatory amount of
narcotics recovered from inside the abandoned
house[?]
Williams’ Brief at 3.
For his first issue on appeal, Williams argues that the trial court’s
verdict is against the weight of the evidence. Id. at 8-10. Williams asserts
that the trial court “abused [its] discretion by accepting the Commonwealth’s
version of the events without considering the lack of evidence or
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contradictory evidence recovered from the different parties and property.”
Id. at 10. Williams contends that the verdict is against the weight of the
evidence because the Commonwealth failed to introduce evidence that
Williams sold narcotics to the first two individuals he was observed
interacting with, the narcotics recovered from the third alleged buyer did not
match the narcotics found inside the house, and there was no evidence
linking Williams to the house containing the narcotics. Id. at 9-10.
After reviewing the record, we conclude that Williams waived this issue
for appellate review. Rule 607 of the Pennsylvania Rules of Criminal
Procedure provides that “a weight of the evidence claim must be preserved
either in a post-sentence motion, by a written motion before sentencing, or
orally prior to sentencing.” Pa.R.Crim.P. 607. In this case, Williams did not
file a post-sentence motion. Moreover, Williams did not preserve this issue
in an oral or written motion prior to sentencing. We note that while the trial
court makes no mention of waiver and addresses Williams’ claim in its
1925(a) opinion, this Court has established that “[f]ailure to properly
preserve the claim will result in waiver, even if the trial court addresses the
issue in its opinion.” Commonwealth v. Thompson, 93 A.3d 478, 490
(Pa. Super. 2014) (citing Commonwealth v. Lofton, 57 A.3d 1270, 1273
(Pa. Super. 2012)). Accordingly, we will not address the merits of Williams’
claim.
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For his second issue on appeal, Williams presents a sufficiency of the
evidence claim. Williams’ Brief at 10-12.1 Williams asserts that the
Commonwealth failed to prove that he “was in possession or constructive
possession of the narcotics found in the ‘abandoned property’ beyond a
reasonable doubt.” Id. at 11.
Our standard of review in assessing the sufficiency of the evidence is
well settled:
The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all of 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
1
We note that in his concise statement of matters complained of on appeal,
Williams raises a sufficiency of the evidence claim, stating that “[t]here was
insufficient evidence to convict [him] of the mandatory amount of narcotics
recovered from inside the abandoned house.” Although we could find this
statement to be too vague to permit review, Williams’ brief presents
argument relating to his PWID conviction, claiming that “the Commonwealth
did not prove that [he] was in possession or constructive possession of the
narcotics found in the ‘abandoned property’ beyond a reasonable doubt.”
Williams’ Brief at 11. Accordingly, we address the merits of his claim.
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record must be evaluated and all evidence actually
received must be considered. Finally, the trier of fact
while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to
believe all, part or none of the evidence.
Commonwealth v. Helsel, 53 A.3d 906, 917-18 (Pa. Super. 2012) (citing
Commonwealth v. Bricker, 41 A.3d 872, 877 (Pa. Super. 2012)).
In order to sustain a conviction of PWID, “the Commonwealth must
prove beyond a reasonable doubt that the defendant possessed a controlled
substance and did so with the intent to deliver it.” Commonwealth v.
Bricker, 882 A.2d 1008, 1015 (Pa. Super. 2005). It is well settled that “[i]n
narcotics possession cases, the Commonwealth may meet its burden by
showing actual, constructive, or joint constructive possession of the
contraband.” Commonwealth v. Vargas, __ A.3d ___, 2014 WL 7447678,
at *8 (Pa. Super. Dec. 31, 2014) (quoting Commonwealth v. Thompson,
428 A.2d 223, 224 (Pa. Super. 1981)). In this case, the police did not
discover the narcotics on Williams’ person. Thus, we must determine
whether the Commonwealth sufficiently established that Williams had
constructive possession of the narcotics.
This Court has established that
[c]onstructive possession is a legal fiction, a
pragmatic construct to deal with the realities of
criminal law enforcement. Constructive possession is
an inference arising 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
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“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. Brown, 48 A.3d 426, 430 (Pa. Super. 2012) (quoting
Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (internal
citations omitted)). “The Commonwealth may sustain its burden by means
of wholly circumstantial evidence, and we must evaluate the entire trial
record and consider all evidence received against the defendant.” Brown,
48 A.3d at 430 (citing Commonwealth v. Markman, 916 A.2d 586, 598
(Pa. 2007)).
In this case, the record reflects that the narcotics were discovered
inside of an abandoned house located at 2319 Nichols Street. N.T., 2/10/14,
at 23-24, 34-35. Officer Rausch testified that Williams did not use a key to
enter the property. Id. at 16. Officer Mulqueeney further testified that
“[t]he front door was open, it was shut, but you could tell it wasn’t latched.
It was a wooden door you could push open[.]” Id. at 35. The police officers
did not find anything in the house linking Williams to the property. Id. at
26. Thus, the record does not contain evidence to establish exclusive
control over the property. In these situations, “where more than one person
has equal access to where drugs are stored, presence alone in conjunction
with such access will not prove conscious dominion over the contraband. ….
‘[T]he Commonwealth must introduce evidence connecting [the defendant]
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to the specific room or areas where the drugs were kept.’” Vargas, 2014
WL 7447678, at *8 (quoting Commonwealth v. Ocasio, 619 A.2d 352,
354-55 (Pa. Super. 1993)). Upon review of all the facts and circumstances
in this case, we conclude that the evidence presented at trial was sufficient
to connect Williams to the specific area where the police officers discovered
the narcotics to prove that he had control and possession of them.
Officer Rausch testified that he observed Williams engage in three
separate hand-to-hand transactions wherein Williams would accept money
from an individual, walk into the front door of the abandoned house at 2319
Nichols Street, exit the property approximately twenty seconds later, and
hand the individual small items. Id. at 15-19. The police officers testified
that they discovered five heat-sealed packets of crack cocaine and an
unlabeled “amber pill bottle” containing sixty-six (66) pills, located inside the
abandoned house, nestled in a couch cushion. Id. at 23-24, 34-35. The
couch was located inside of the abandoned house, approximately ten feet
from the door. Id. at 34. The house contained no other furniture. Id. at
35. The police officers’ testimony that Williams entered the house for a
mere twenty seconds therefore establishes that Williams only had enough
time to access those areas of the house close to the door. Thus, the police
officers’ testimony regarding the close proximity of the front door to the
couch and the testimony that the house was otherwise vacant, is sufficient
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to establish circumstantial evidence connecting Williams to the specific area
where the narcotics were found.
Moreover, although the house located at 2319 Nichols Street was
abandoned and unsecured in that no key was needed to enter and the door
was not latched, the police officers testified that no one other than Williams
entered or exited the property during the relevant period in question. This
evidence establishes that although Williams was not the only person with
access to the property generally, Williams was the only person with access
to the property at the time the police officers discovered the narcotics. In
Commonwealth v. Hutchinson, 947 A.2d 800 (Pa. Super. 2008), this
Court determined that the appellee “had the ability and intent to exercise
conscious control and dominion over the [narcotics] … when only he had
access to the same at the relevant time.” Id. at 807. Pursuant to our
standard of review, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, we are not persuaded that the evidence
was so weak and inconclusive so as to be insufficient to establish that
Williams constructively possessed the narcotics discovered in the abandoned
house to support a conviction of PWID. Accordingly, we do not disturb the
trial court’s determination in this respect.
Finally, we note that in his brief, Williams references the validity of his
sentence and states that “[i]f this Court wishes to retroactively apply
Commonwealth v. Newman, [99 A.3d 86, 97-98, 103 (Pa. Super. 2014)
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(en banc) (finding the imposition of a mandatory minimum sentence
unconstitutional and remanding the case “for the re-imposition of sentence
without consideration of any mandatory minimum sentence”)], Appellant
would be pleased to get a new sentencing hearing without any mandatory
minimum being applied.” Williams’ Brief at 11. In its opinion, the trial court
does not address the merits of any challenge to Williams’ sentence. The trial
court presumed that because Williams’ claim of error was vague and
because counsel did not dispute the five to ten year mandatory minimum or
the weight of the narcotics discovered at the abandoned house, Williams’
challenge was directed to the sufficiency of the evidence to sustain his PWID
conviction.
Although Williams failed to preserve a challenge to his sentence on
appeal, this Court has established that “a challenge to a sentence premised
upon [mandatory minimum sentences] implicates the legality of the
sentence and cannot be waived on appeal.” Newman, 99 A.3d at 90.
Moreover, it is well settled that this Court may address the legality of a
defendant’s sentence sua sponte. Commonwealth v. Watley, 81 A.3d
108, 118 (Pa. Super. 2013) (en banc), appeal denied, 95 A.3d 277 (Pa.
2014). Accordingly, we will address the legality of Williams’ sentence.
The trial court sentenced Williams to a mandatory minimum sentence
of five to ten years of incarceration under 18 Pa.C.S.A. § 7508(a)(2)(ii),
which provides, in relevant part:
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§ 7508. Drug trafficking sentencing and penalties
(a) General rule.—Notwithstanding any other
provisions of this or any other act to the contrary,
the following provisions shall apply:
***
(2) A person who is convicted of violating section
13(a)(14), (30) or (37) of The Controlled Substance,
Drug, Device and Cosmetic Act where the controlled
substance or a mixture containing it is classified in
Schedule I or Schedule II under section 4 of that act
and is a narcotic drug shall, upon conviction, be
sentenced to a mandatory minimum term of
imprisonment and a fine as set forth in this
subsection:
***
(ii) when the aggregate weight of the compound or
mixture containing the substance involved is at least
ten grams and less than 100 grams; three years in
prison and a fine of $15,000 or such larger amount
as is sufficient to exhaust the assets utilized in the
proceeds from the illegal activity; however, if at the
time of sentencing the defendant has been convicted
of another drug trafficking offense: five years in
prison and $30,000 or such larger amount as is
sufficient to exhaust the assets utilized in and the
proceeds from the illegal activity;
***
18 Pa.C.S.A. § 7508(a)(2)(ii).
In Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013), the United
States Supreme Court held that facts that increase mandatory minimum
sentences “must be submitted to the jury and found beyond a reasonable
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doubt.” Id. at 2155.2 This Court subsequently determined that the decision
in Alleyne renders “Pennsylvania mandatory minimum sentencing statutes
that do not pertain to prior convictions[] constitutionally infirm insofar as
they permit a judge to automatically increase a defendant’s sentence based
on a preponderance of the evidence standard.” Watley, 81 A.3d at 117
(footnote omitted).
In Thompson, this Court addressed the constitutionality of the
mandatory minimum sentence that is at issue in the case at bar, holding
that section 7508(a)(2)(ii) cannot be constitutionally applied in light of
Alleyne, as “the facts that permit[] application of [the] mandatory sentence
[are] not determined by the fact-finder nor proven beyond a reasonable
doubt.” Thompson, 93 A.3d at 493-94. This Court thereafter determined
that section 7508 is unconstitutional in its entirety under Alleyne. See
Fennell, 105 A.3d at 20; see also Cardwell, 105 A.3d at 754-55. In
reaching its conclusion, the Fennell and Cardwell Courts relied upon the
holding in Newman wherein this Court determined that “it is manifestly the
province of the General Assembly to determine what new procedures must
be created in order to impose mandatory minimum sentences in
2
This Court recently noted that under the Due Process Clause, a defendant
that elects a non-jury trial is “entitled to have the extra element of the
aggravated offense found by the factfinder beyond a reasonable doubt
pursuant to Alleyne.” Commonwealth v. Fennell, 105 A.3d 13, 17 (Pa.
Super. 2014); Commonwealth v. Cardwell, 105 A.3d 748, 751 (Pa.
Super. 2014).
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Pennsylvania following Alleyne.” Newman, 105 A.3d at 18. As this Court
has provided an express determination that the statute under which the trial
court sentenced Williams is unconstitutional, we are bound by the result.
Accordingly, we conclude that the trial court’s sentence pursuant to section
7508(a)(2)(ii) is illegal and must be vacated.
Judgment of sentence vacated. Case remanded for resentencing
without imposition of a mandatory minimum term. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2015
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