Com. v. Boyd, M. ( 2014 )

J-S33024-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL SHAYNE BOYD,
Appellant No. 2333 EDA 2013
Appeal from the Judgment of Sentence of May 30, 2012
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000814-2011
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STABILE, JJ.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 26, 2014
Appellant, Michael Shayne Boyd, appeals from the judgment of
sentence entered on May 30, 2012, as made final by the denial of post-
sentence motions, following his jury trial convictions for two counts of
aggravated assault, firearms not to be carried with a license, possessing an
instrument of crime (PIC), and possession with intent to deliver a controlled
substance (PWID).1 Upon careful consideration, we affirm.
The trial court aptly summarized the facts of this case as follows:
In the early evening hours of January 8, 2008,
[Appellant] went to the home of Ricardo Ramos and Julian
Trombetti, located at 112 East Nields Street, West Chester,
Pennsylvania for the purpose of selling marijuana to Mr.
Ramos. Mr. Ramos previously contacted [Appellant] earlier
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1
18 Pa.C.S.A. §§ 2702, 6106, and 907; 35 P.S. § 780-113(a)(30),
respectively.
J-S33024-14
that same day to set up the drug transaction. [Appellant]
arrived at the residence alone and was carrying a black
briefcase containing 373.5 grams of marijuana. The
marijuana was packaged in several, clear plastic, [Z]iplock
bags. While at the residence, [Appellant] sold an unknown
amount of this marijuana to Mr. Ramos.
arrival was Julian Trombetti and another individual named
Juan Terrero. Mr. Terrero was a friend of Mr. Ramos and Mr.
Trombetti and had come to the residence looking to
purchase marijuana from Mr. Ramos. Mr. Terrero had
previously made plans to get together with his friend, Jose
Turbi, to smoke marijuana. While Mr. Terrero was inside
the residence he received a call from his friend, Mr. Turbi,
who began to question him about the guy inside with the
briefcase. Mr. Terrero informed Mr. Turbi that the briefcase
contained a large amount of marijuana at which time Mr.
Turbi told him he was going to rob [Appellant] of the
briefcase. Mr. Terrero attempted to talk Mr. Turbi out of his
plan but to no avail. Mr. Terrero left the residence after
buying a small amount of marijuana from Mr. Ramos and
proceeded to walk to a nearby pizza shop, known as
Riggtown, to purchase paraphernalia for him and Mr. Turbi
to smoke the purchased marijuana. [Appellant] remained
While [Appellant] was still in the residence, Mr. Ramos
took out the trash. As he approached the outdoor trashcan,
Mr. Turbi jumped from the shadows near the trashcans in
an apparent attempt to rob him. However, when Mr. Turbi
realized it was Mr. Ramos and not [Appellant] he drew back
and asked Mr. Ramos if the guy with the briefcase was still
inside the residence. Mr. Ramos stated that he was but told
Mr. Turbi to leave the residence and not follow through with
the plan to rob [Appellant]. Mr. Turbi walked away and Mr.
Ramos assumed the plan was now aborted. Mr. Ramos
went back inside the residence but did not inform
intentions.
After approximately 45 minutes [Appellant] exited the
residence, taking his briefcase of marijuana with him. Mr.
Ramos and Mr. Trombetti went upstairs to conceal the
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recently purchased marijuana. Approximately one minute
heard gunshots from the front of their residence. The two
men immediately ran downstairs and opened the front door
to observe the commotion. [Appellant] abruptly pulled his
car to the front of the residence and yelled out the window
to them that he had just been robbed but the person who
[Appellant] then proceeded to speed off down Nields Street
in his vehicle.
Within minutes of the robbery and shooting, Mr. Turbi
drove to the pizza shop and met up with Mr. Terrero. Mr.
Terrero could see that Mr. Turbi was in physical pain and
also
he just robbed shot him. The two men dumped the
in Middle Alley. Middle Alley is located several blocks away
from Nields Street and is on the way to Chester County
Hospital. Once in the alleyway, Mr. Turbi removed his
leather coat, which revealed a single gunshot wound to his
upper right back.
After the two men hid the briefcase in the trashcan, Mr.
Terrero drove Mr. Turbi to Chester County Hospital. Several
hours later, Mr. Turbi was flown to Temple University
treated. Mr. Turbi survived the shooting but the bullet
penetrate
neck hitting the traverse process of his cervical spine and
coming to a rest behind his jaw. To date, the bullet remains
In the hours and weeks following the shooting,
[Appellant] bragged to a number of his friends and
acquaintances about the robbery and how he shot the
robber in the back. He paid his roommate, Sienna Tinus,
and her boyfriend to dispose of the weapon (a silver semi-
automatic .380 handgun) which she and her boyfriend
agreed to do. Several weeks after the shooting, [Appellant]
got a tattoo on the upper middle portion of his back. The
tattoo depicted [a] caliber .380 [handgun] with one bullet
pointing up and one pointing down. According to Ms.
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Tinus[,] who testified at trial[,] the tattoo represented a
badge of honor for shooting Mr. Turbi.
Trial Court Opinion, 12/3/2013, at 1-3.
On appeal, Appellant presents the following issues for our review:
1. Did the trial court err in concluding that the witness
Victor Joiner was entitled to assert his right to remain
silent and in precluding [A]ppellant from calling Joiner as
testimony before the jury?
2. Did the trial court err in prohibiting cross-examination of
Commonwealth witness Terrero on the fact that Terrero
was on state parole for an aggravated assault offense
committed with a gun, and had previously been
convicted of receiving a stolen firearm, when the defense
theory in this case was that Terrero and Turbi conspired
to commit an armed robbery, and that Terrero had
possessed the gun that actually shot Mr. Turbi, and
where Terrero had enhanced exposure in this case based
on prior weapons offenses?
3.
marijuana] illegal, where it was constructed only to
comply with an unconstitutional mandatory minimum
and federal constitutional rights, including his Sixth
Amendment rights, in violation of the rule announced in
Alleyne v. United States?
and our standard of review is well settled:
The admissibility of evidence is at the discretion of the trial
court and only a showing of an abuse of that discretion, and
resulting prejudice, constitutes reversible error. An abuse
of discretion is not merely an error of judgment, but is
rather the overriding or misapplication of the law, or the
exercise of judgment that is manifestly unreasonable, or the
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result of bias, prejudice, ill-will or partiality, as shown by
the evidence of record. Furthermore, if in reaching a
conclusion the trial court over-rides or misapplies the law,
discretion is then abused and it is the duty of the appellate
court to correct the error.
Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013)
(internal citations and quotations omitted).
In his first issue, Appellant argues that the trial court erred by denying
relief on his motion in limine precluding him from calling Victor Joiner to
testify because Joiner invoked his Fifth Amendment right to remain silent.
-21. As Appellant notes, Joiner made two statements
to police in 2008 following the crimes at issue. Id. at 19. In the first
statement, Joiner claimed that Juan Terrero told Joiner that Terrero
accidentally shot the victim. Id. In the other statement, Joiner told police
Id. Counsel for
Joine
2008 about who had shot [the victim], any statement he made at trial could
Id.
of incrimination because the falsity of such statements [made four years
before trial], a [m]isdemeanor false statements to police officers, was
subject to a two- Id. at 21. In a footnote,
when
he gave two separate recorded statements to police about the subject
Id. at 21, n.1.
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Initially, upon review, we conclude that Appellant has waived appellate
review of his opening claim. In his Rule 1925(b) statement, Appellant
waived his right to remain silent[
Appellant relegates this contention to an undeveloped footnote wherein he
cites a single case and does not cite to the record. An appellate brief must
provide citations to the record and to any relevant supporting authority. See
Pa.R.A.P. 2119(c); Commonwealth v. Berry, 877 A.2d 479, 485 (Pa.
urt will not become the counsel for an appellant and
Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super. Ct. 2006).
Hence, we find that Appellant waived his original contention by failing to
develop that claim on appeal.
On appeal, Appellant presents an alternate legal theory, contending
that Joiner did not risk prosecution for making false statements to police
because the statute of limitation for that crime had already expired prior to
trial. This Court cannot review a case upon a theory different from that
relied upon in the trial court, or raised for the first time on appeal.
Commonwealth v. Thur, 906 A.2d 552, 566 (Pa. Super. 2006), citing
Commonwealth v. Gordon, 528 A.2d 631, 638 (Pa. Super. 1987) (holding
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that this Court cannot review a theory of error different from the theory
presented to the trial court even if both theories support the same basic
allegation of error giving rise to the claim for relief). Moreover
statute of limitations claim was not included in his 1925(b) statement and is
waived for that reason, as well. Commonwealth v. Hill, 16 A.3d 484, 494
-settled, and firmly
establishes that: Rule 1925(b) sets out a simple bright-line rule, which
obligates an appellant to file and serve a Rule 1925(b) statement, when so
ordered; any issues not raised in a Rule 1925(b) statement will be deemed
waived; the courts lack the authority to countenance deviations from the
Rule's terms; the Rule's provisions are not subject to ad hoc exceptions or
selective enforcement; appellants and their counsel are responsible for
complying with the Rule's requirements; Rule 1925 violations may be raised
by the appellate court sua sponte, and the Rule applies notwithstanding an
Assuming, arguendo, Appellant did not waive appellate review, there is
silent or, alternatively, that expiration of the statute of limitations defeated
issue, our scope of review is plenary, as it is with any review of questions of
Commonwealth v. Morley, 681 A.2d 1254, 1256 (Pa. 1996). In
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Amend. V.
At the outset, we are mindful that the Fifth Amendment
privilege against self-incrimination must be given a liberal
construction. Even the most feeble attempt to claim a Fifth
Amendment privilege must be recognized. [The United
States] Supreme Court [has] stated:
The privilege reflects a complex of our fundamental
values and aspirations, and marks an important
advance in the development of our liberty. It can be
asserted in any proceeding, civil or criminal,
administrative or judicial, investigatory or
adjudicatory; and it protects against any disclosures
which the witness reasonably believes could be used
in a criminal prosecution or could lead to other
evidence that might be so used. [The United States
Supreme] Court has been zealous to safeguard the
values which underlie the privilege.
Commonwealth v. Molina, 33 A.3d 51, 63-64 (Pa. Super. 2011) (internal
citations, quotations, ellipsis, and original brackets omitted) (emphasis in
original).
at 11. Joiner gave
police two different statements about the shooting in this matter. Id. at 12-
14. Counsel argued:
Your Honor, there are two different statements. Assuming
that [Joiner] is compelled to testify, he is going to be
testifying falsely in
discussions briefly with [the Commonwealth], the word
here, contrary to one of those two statements, certainly it
raises the spectre of possible perjury prosecution. And, I
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that the [F]ifth [A]mendment is appropriate if he wishes to
invoke it, which he informed me he did.
Id.Joiner in a Catch-22 situation. If he is compelled to testify, if he says
anything contrary to either of those statements, he has subjected himself to
Id. at 30.
We agree. Mindful that the Fifth Amendment is to be liberally
clear. Joiner made statements to police in 2008. Id. at 13-14. The statute
of limitations for perjury, 18 Pa.C.S.A. § 4902, and/or unsworn falsification
to authorities, 18 Pa.C.S.A. § 4904, is five years. See 42 Pa.C.S.A. §
5552(b). Hence, had Joiner testified at trial in April 2012, he could have
been subjected to criminal prosecution. There is no basis for a finding of
Appellant. As such, we discern no abuse of discretion by the trial court in
allowing Joiner to exercise his constitutional right to not testify. Thus,
Appellant has waived this issue, but it is otherwise without merit.
In his second issue, Appellant contends that the trial court improperly
in limine precluding cross-
two prior convictions for aggravated assault and receiving stolen property.
-26. Both crimes involved firearms. Id. at 22. As
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Appellant reco
admissible, and not the details thereof, and so excluded all reference to
Id. at 22-
convictions involved the unlawful use of firearms was the proper subject of
exposure if he [were] actually charged and convicted of the [r]obbery and
shooting [consistent with] the defense theory of the case, and because the
fact that the prior convictions involved the unlawful use of a firearm
increased the risk that the police would conclude that he had criminal
Id. at 22.
As previously stated, we review evidentiary rulings for an abuse of
confront a witness under the confrontation clause of the Sixth Amendment is
a question of law for which our standard of review is de novo and our scope
Commonwealth v. Dyarman, 33 A.3d 104, 106 (Pa.
i.e., evidence which tends to
make the existence or non-existence of a material fact more or less
probable, is admissible, subject to the prejudice/probative value weighing
Commonwealth v. Dillon,
925 A.2d 131, 136 (Pa. 2007), citing -
examination may be employed to test a witness' story, to impeach
credibili
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Commonwealth v. Hyland, 875 A.2d 1175, 1186 (Pa. Super. 2005)
witness, evidence that the witness has been convicted of a crime, whether
by verdict or by plea of guilty or nolo contendere, must be admitted if it
to crimes committed within 10 years. Pa.R.E. 609(b).
There is no dispute that both of Terr
assault conviction is not in the nature of crimen falsi
admissible as a crime of dishonesty or false statement. Commonwealth v.
Moore, 715 A.2d 448, 452 (Pa. Super. 1998). Receiving stolen property is
a crime of crimen falsi and admissible under Rule 609. Commonwealth v.
Treadwell
conviction, if introduced solely to impeach a defendant's credibility, should
be limited to the name, time and place and punishment received in the prior
offense, in order to minimize the potential prejudice and distraction of issues
Allen v. Kaplan, 653
A.2d 1249, 1254 (Pa. Super. 1995) (internal quotations and ellipsis
omitted), citing Commonwealth v. Jones, 108, 378 A.2d 471, 477 (Pa.
Super. 1977).
Here, the trial court determined:
In the present case, the fact that Mr. Terrero was
currently on state parole and that he had a prior conviction
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for receiving stolen property is proper impeachment
evidence. Relevant evidence that conforms to Pa.R.E. 609
is generally limited to the nature of the conviction, the date
of the offense, the grading of the offense and the sentence
imposed as a result of that offense.
Here, Mr. Terrero[] was incarcerated on the aggravated
assault charge until his ultimate release on parole in 2005.
Although, he was released from custody within the last ten
years[,] this conviction is for a crime of violence and not for
one that involved dishonesty or false statement. Since it
does not reflect upon the veracity of Mr. Terrero, it normally
cannot be used to impeach his testimony. However, this
conviction is admissible because Mr. Terrero voluntarily
disclosed it to the jury during direct examination. However,
the underlying predicate facts that gave rise to the
convictions are not admissible. Specifically, the fact that
the aggravated assault was committed with a gun and that
Mr. Terrero had previously been convicted of receiving a
stolen firearm is irrelevant in the instant case. For
example, it makes no difference whether Mr. Terrero was in
receipt of stolen jewelry, electronics or firearms; or whether
he used a knife, slingshot or baseball bat to commit the
aggravated assault offense. In other words, the predicate
facts of the convictions are not relevant to admissibility.
case that Mr. Terrero and Mr. Turbi conspired to commit the
armed robbery of [Appellant], and that Mr. Terrero
possessed the gun that actually shot Mr. Turbi, the cross-
examination of the underlying facts that gave rise to the
conviction is still irrelevant and improper. Although,
evidence of interest or bias on the part of a witness is
admissible and constitutes a proper subject for cross-
examination, the impeachment of a witness must still
comport with Pa.R.E. 609.
[Appellant] failed to produce any corroborating evidence
at trial that Mr. Terrero shot Mr. Turbi. Conversely, Mr.
that Mr. Turbi and he conspired to rob [Appellant].
Furthermore, Mr. Terrero denied possessing a weapon and
shooting Mr. Turbi on January 8, 2008.
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[Appellant] from examining whether Mr. Terrero had an
improper interest or bias when speaking with police or while
case that Mr. Terrero lied to the police to cover up his own
involvement in the shooting; defense counsel could have
elicited that information properly [through a different line of
questioning].
* * *
raises a myriad of potential collateral matters. Specifically,
cross-examination of Mr. Terrero regarding the underlying
predicate facts of his prior conviction could mislead the jury.
Essentially, defense counsel is trying to show that Mr.
Terrero had a propensity to commit violent crimes with a
firearm and that he acted in conformity with this
characteristic on January 8, 2008. Because the underlying
factual predicate facts do not have the tendency to make a
fact in the instant case any more or less probable than it
would be without the evidence, [the trial court] properly
concluded the evidence was irrelevant.
Trial Court Opinion, 12/3/2013, at 8-9 (internal record and legal citations
omitted).
We agree. The trial court appropriately determined that Terrero
conviction for receiving stolen property was admissible to impeach the
witness, but was limited in scope to the name, time, and place of the
have been admissible but for Ter
direct examination and, again, was limited by the perimeters of Rule 609.
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or negotiations with the Commonwealth.2 However, the factual predicate for
we discern no abuse of discretion or error of law in limiting the scope of
cross-
In his final issue presented, Appellant contends that the trial court
erred in imposing a mandatory minimum sentence pursuant to 42
Pa.C.S.A. § 9712.1 because he was convicted of PWID in conjunction with
-29. He claims that Section 9712.1
enhanced sentence on the basis of a new and aggravated crime which must
be proven to the satisfaction of the fact-
Id. at 28. For this proposition, Appellant cites the United States Supreme
Alleyne v. United States, 133 S.Ct. 2151 (2013).
establish conclusively that [Appellant] possessed a gun while possessing
Id. More specifically, he submits the
evidence suggests that he retrieved a firearm only after the briefcase of
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2
Davis v. Alaska, 415 U.S. 308 (1974).
juvenile adjudication for burglary
was entirely excluded from trial. Here, the trial court permitted the
-179. The
ng on
guilt. Thus, the jury could make an informed judgment as to the weight to
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marijuana was stolen. Id. He also maintains that the trial court erred by
imposing a flat five year sentence, without setting a minimum or maximum
sentence. Id. at 26-27.
Commonwealth v.
Watley, 81 A.3d 108 (Pa. Super. 2013) (en banc) controls. In that case:
[..D]uring the pendency of [Watl
United States Supreme Court decided Alleyne v. United
States, U.S. , 133 S.Ct. 2151 (2013). Therein, the
Supreme Court held that the defendant's jury trial rights
were infringed where the federal court applied a federal
mandatory minimum statute for brandishing a firearm
where the fact of brandishing was not presented to the jury
or established beyond a reasonable doubt. The Alleyne
decision expressly overturned Harris v. United States,
536 U.S. 545 (2002), a decision that had upheld a challenge
to McMillan v. Pennsylvania, 477 U.S. 79 (1986),
following Apprendi v. New Jersey, 530 U.S. 466 (2000).
In McMillan, the defendant alleged that Pennsylvania's
mandatory minimum statute at 42 Pa.C.S. § 9712, a closely
analogous statute to the applicable mandatory statute
herein, was unconstitutional because the fact that the
defendant visibly possessed a firearm was not presented to
the jury and established beyond a reasonable doubt.
According to the Alleyne Court, a fact that increases the
sentencing floor is an element of the crime. Thus, it ruled
that facts that mandatorily increase the range of penalties
for a defendant must be submitted to a fact-finder and
proven beyond a reasonable doubt. The Alleyne decision,
therefore, renders those 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. The court
sentenced [a]ppellant under 42 Pa.C.S. § 9712.1, a
mandatory minimum statute allowing a judge to increase a
sentencing floor based on a preponderance of the evidence
finding that the defendant or his accomplice possessed a
gun during the commission of PWID.
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* * *
[In Watley], the jury determined that [Watley]
possessed the firearms in question as it found him guilty of
two separate firearms violations. The firearms in question
were undisputedly located within the same vehicle as the
Ecstasy; indeed, one of the guns was found in the same
glove compartment as the drugs. Hence, the jury did
determine beyond a reasonable doubt the facts necessary to
subject [Watley] to the mandatory minimum, i.e., that
[Watley] possessed the firearms when he committed the
PWID offense.
Nevertheless, in Commonwealth v. Johnson, 910
A.2d 60 (Pa. Super. 2006), and Commonwealth v.
Kearns, 907 A.2d 649 (Pa. Super. 2006), this Court
concluded that specific jury findings relative to the charge
for which the defendant is being sentenced are necessary
where Apprendi is implicated. In Johnson, the panel
addressed a claim that the defendant's sentence of
seventeen and one-half years to forty years for attempted
murder was illegal where the victim was shot in the foot.
The statutory maximum for attempted murder is twenty
years absent a finding that the victim suffered serious
bodily injury, in which case the maximum increases to forty
years. The Johnson Court reasoned that any finding by the
jury of serious bodily injury for aggravated assault could not
be used to infer that the jury found serious bodily injury for
the attempted murder charge.
Similarly, the Kearns panel, in discussing a jury trial
right claim, asserted that a conviction at one count does not
establish an element necessary for increasing a sentence at
another charge. In Kearns, a jury convicted the defendant
of involuntary manslaughter and endangering the welfare of
defendant argued that his jury trial rights were violated as it
related to the manslaughter charge because the jury did not
find that the victim was under twelve or that the child was
in his care, custody or control, and he was sentenced to a
higher maximum based on those facts.
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The Commonwealth argued that it presented
uncontradicted evidence that the victim was two years old
and was in the care, custody and control of the defendant.
In addition, the Commonwealth maintained that the
defendant's conviction for EWOC established that the victim
was in his care, custody and control. The panel rejected
those arguments, first by stating that the volume of
Kearns, supra at 658. It also
found that utilizing a jury finding on another charge for
id. at 659, which it viewed as
improper. Finally, the Kearns Court asserted that the
elements of EWOC did not align with or establish the care,
custody and control aspect of involuntary manslaughter.
Under the reasoning of the Johnson and Kearns panels,
since juries may render inconsistent verdicts, it is necessary
that the element giving rise to the sentencing increase be
specifically found by the jury in relation to the count on
which the defendant is being sentenced.
However, while we allow inconsistent verdicts, that
doctrine is used to prevent overturning convictions that are
inconsistent with an acquittal on another charge, not to
disregard a jury's factual findings on valid convictions. See
Commonwealth v. Frisbie, 889 A.2d 1271, 1273 (Pa.
guilty verdicts on
the basis of apparent inconsistencies as long as there is
we accept a jury's ability to potentially exercise leniency
does not require us to disregard, for purposes of
sentencing, its uncontroverted determination of facts that
subject a defendant to an increased punishment, which
under then-existing law did not have to be alleged in the
criminal information. Indeed, an acquittal is not considered
a specific factual finding. Commonwealth v. Carter, 444
Pa. 405, 282 A.2d 375, 376 (1971). More importantly,
neither Johnson nor Kearns involved retroactivity
concerns since Apprendi was decided well before the
defendants' trials in those cases. Phrased differently, the
Commonwealth in Johnson and Kearns could have simply
followed Apprendi, whereas here, the prosecution was
proceeding under prevailing law. A case far more analogous
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to the one presented here is United States v. Cotton, 535
U.S. 625 (2002).
In Cotton, the United States Supreme Court declined to
reverse several sentences based on an Apprendi claim that
was raised for the first time on appeal, where Apprendi
had not been filed at the time of sentencing. In Cotton, a
federal grand jury returned an indictment against multiple
defendants for conspiracy to distribute and possess[ion]
with intent to distribute cocaine and cocaine base. The
original indictment specified the charge as involving five or
more kilograms of cocaine and fifty grams or more of
cocaine base. A subsequent superseding indictment,
however, only alleged that there was a detectable amount
of cocaine and cocaine base. The amount of cocaine and
cocaine base triggered an increased statutory maximum.
A jury convicted the defendants, and the district court
found, based on the evidence introduced at trial, that the
increased statutory maximum was applicable. While the
defendants' case was pending on appeal, the Supreme
Court decided Apprendi. Thereafter, the defendants
contended for the first time that their sentences were
invalid because the drug quantity was not included in the
indictment or submitted to the petit jury. A divided Fourth
Circuit Court of Appeals vacated the sentences based on
Apprendi, concluding that the federal plain error doctrine
applied and that a court is without jurisdiction to impose a
sentence for an offense not charged in an indictment. The
High Court reversed, first finding that a defect in a federal
indictment is not jurisdictional and opining that the evidence
establishing the sentencing enhancement was overwhelming
and essentially uncontroverted. The court found that no
plain error existed and that sentencing the defendant based
on facts not included in the indictment or presented to the
petit jury was not improper.
Although Pennsylvania law no longer has plain error
review, illegal sentencing claims are one of the few
remaining vestiges of that doctrine. Accordingly, we find
Cotton instructive and persuasive. Contrary to the
defendant in Johnson, who contested the facts necessary
to increase his sentencing maximum, namely, whether
serious bodily injury resulted from shooting the victim
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therein in the foot, [Watley] never disputed the evidence
that the firearms were in close proximity to the Ecstasy.
Rather, [Watley] challenged that he was the person present
in the vehicle who fled the scene, i.e., identity. [Watley]
certainly was on notice that the Commonwealth sought to
prove that he possessed two firearms and the jury was
presented with evidence of those facts. More important, the
jury's finding on the two firearms charges in this matter is
directly aligned with the requirement under § 9712.1 that
the defendant possess a gun, as opposed to the EWOC and
involuntary manslaughter elements [at] issue in Kearns.
Succinctly put, the jury did render a specific finding as to
whether Appellant possessed the handguns found in the
car; the reason it did not do so in conjunction with the
PWID count is that the prevailing law at the time, unlike in
Kearns and Johnson, did not require such a procedure.
Similar to Cotton, the uncontroverted evidence in
[Watley] established that one firearm was located in the
same glove compartment as the drugs and another
handgun was located on the passenger-side floor in close
proximity to the drugs, and the jury determined beyond a
reasonable doubt that [Watley] possessed those firearms.
Therefore, the facts necessary to establish application
of the mandatory minimum sentence not only were
essentially undisputed and overwhelming, they were
determined by the jury. Since [Watley] was convicted
of PWID and unlawfully possessing two firearms
relative to the same incident, the factual predicates
for determining the mandatory minimum were proven
to a jury beyond a reasonable doubt, and his sentence
is not illegal.
Commonwealth v. Watley, 81 A.3d 108, 116-121 (Pa. Super. 2013) (en
banc) (footnotes omitted).
Here, the jury convicted Appellant of both PWID and firearm offenses
arising out of the same criminal episode. As the trial court noted, and the
facts adduced at trial revealed, Appellant left the subject residence carrying
a briefcase of marijuana and within one minute after his departure, two
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eyewitnesses heard gunshots. Immediately thereafter, the two witnesses
also heard Appellant exclaim that he had been robbed, but he had shot the
robber in the back. Due to the rapid succession of events, the trial court
properly concluded the PWID and firearm offenses resulted from the same
occurrence.
As such, according to Watley, the factual predicate for determining
the mandatory minimum sentence under Section 9712.1 was proven to a
Turbi; thus, Appellant like Watley challenged only identity while on
notice that the Commonwealth sought to prove both firearm possession and
may have been retrieved from a location separate and apart from the
marijuana. We are satisfied under the circumstances of this case that the
jury found, beyond a reasonable doubt, that Appellant possessed a firearm
ses of
exercise of power over a weapon, which may be proven through evidence of
a direct, physical association between the defendant and the weapon or
evidence of constructive control. Constructive control, in this setting,
an analogue to constructive possession, entails the ability to
exercise a conscious dominion and the intent to do so
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Commonwealth v. Hanson, 82 A.3d 1023, 1036-1037 (Pa. 2013)
(emphasis added).
Moreover, our Supreme Court has recently determined that imposition
of a flat five-year sentence for PWID is legally proper when applied with the
mandatory minimum sentence provision under 42 Pa.C.S.A. § 9712.1. The
Pennsylvania Supreme Court has opined:
[U]nder 1 Pa.C.S. § 1933, the general provision of 42
Pa.C.S. § 9756(b)(1), regarding minimum and maximum
sentences, must yield to the specific sentencing provisions
of Section 9712.1(a) and Section 780 113(f)(2),
respectively requiring a five-year mandatory minimum
sentence and a maximum sentence of no more than five
years for a violation of Section 780 113(a)(30). As such,
the trial court properly imposed a flat, five-year prison
sentence for [a] PWID conviction.
Commonwealth v. Ramos, 83 A.3d 86, 94 (Pa. 2013). For all of the
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2014
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