Com. v. Bell, B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
BAHIR ABDUL BELL
Appellant No. 3156 EDA 2013
Appeal from the Judgment of Sentence October 8, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000819-2013
BEFORE: ALLEN, J., OLSON, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED DECEMBER 19, 2014
Bahir Abdul Bell appeals the judgment of sentence imposed October 8,
2013, in the Delaware County Court of Common Pleas. Bell was sentenced
to a mandatory minimum two to five years’ imprisonment1 for his jury
conviction of possession with intent to deliver a controlled substance
(PWID),2 namely codeine. On appeal, Bell challenges the sufficiency of the
evidence supporting the jury’s determination that he possessed drugs with
the intent to deliver them, rather than for his personal use. Although we
conclude the sole issue raised on appeal is meritless, for the reasons set
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1
See 18 Pa.C.S. § 6317 (“Drug-free school zones”).
2
35 P.S. § 780-113(a)(30).
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forth below, we are, nevertheless, constrained to vacate the judgment of
sentence and remand for resentencing.
The facts underlying Bell’s arrest and conviction are aptly summarized
by the trial court as follows:
On December 23, 2010, approximately 11:30 P.M., Officer
Steven Russo, Upper Darby Police Department, was dispatched
to a Wawa convenience store located at 7720 West Chester Pike
in Upper Darby, Pennsylvania. Upon arriving, Officer Russo’s
attention was drawn toward a white vehicle with disabled
headlights parked directly in front of the neighboring and closed
Highland Beverage store. Officer Russo observed that there
were two (2) males located inside this car. Believing that this
motor vehicle may have had a connection to the radio call,
Officer Russo began walking in the direction of the car.
Officer Russo proceeded toward the vehicle for further
inquiry and was approximately twenty (20) feet from the car
when it quickly fled the vicinity. As Officer Russo approached
the motor vehicle he neither had his weapon drawn nor had he
made any verbal contact with the vehicle’s occupants. Officer
Russo on nearing the car before it fled the lot was able to
determine that the two (2) individuals inside the vehicle were
both black males. Officer Russo provided a description over
police radio for a white vehicle with an unknown Virginia license
plate fleeing on West Chester Pike toward State Road.
Officer Russo very quickly received word this car was
stopped at West Chester Pike and State Road by fellow officers.
Upon arriving at this closeby scene, Officer Russo recognized the
same two (2) individuals he had observed inside the while
vehicle only literally seconds prior, one of whom was identified
as Defendant Bell. Defendant Bell was subsequently brought to
the police station where his car was also towed.
After the vehicle was towed, Detective Sergeant Daniel
Lanni and Detective Brad Ross conducted a search of the car.
The detectives were permitted to conduct the search after being
given Defendant Bell’s consent which was formalized through a
Consent to Search Form [Bell] duly executed and signed. Upon
searching the motor vehicle, the detectives concluded the car
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was an Avis rental vehicle on discovering an Avis rental
agreement. The Avis documentation detailed that the car was
rented to a Veronica Bell, later determined to the mother of
Defendant Bell.
While conducting the search of the vehicle, the detectives
found hidden in the trunk’s spare tire compartment a white
prescription bag and a black plastic bag containing a large
prescription bottle. This bottle’s label specified that the
prescription was in [Bell’s] name, and the bottle was further
labeled as Prometh/COD SYP. The prescription bottle contained
a reddish orange liquid. The black bag also held thirteen (13)
small glass vials of two (2) sizes with plastic lids that were as
well filled with a reddish orange liquid similar to the content of
the prescription bottle. Upon laboratory analysis, the thirteen
(13) clear glass vials were found to contain the controlled
substance, codeine, in syrup form.
Trial Court Opinion, 3/31/2014, at 9-11 (record citations omitted).
Bell was subsequently charged with PWID, possession of controlled
substances, possession of a small amount of marijuana and possession of
drug paraphernalia.3 The Commonwealth later proceeded to trial only on
the PWID charge, and withdrew the three remaining counts. In addition,
prior to trial, the court granted the Commonwealth’s motion to amend the
PWID charge to reflect the averment that the offense “occurred within 250
feet of a recreation center.” See Order, 7/11/2013. The jury returned a
verdict of guilty on the charge of PWID, and specifically found the offense
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3
35 P.S. §§ 780-113(a)(30), (a)(16), (a)(31), and (a)(32), respectively.
When Bell’s vehicle was stopped, the police noticed a strong odor of
marijuana emanating from the car. They subsequently recovered a partially
smoked marijuana blunt from Bell’s pants pocket. See Criminal Complaint,
2/17/2011, at 5-6 (Affidavit of Probable Cause).
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occurred “within 250 feet of Apple Pie Day Care, Inc. located at 3 South
State Road, Upper Darby Township, Pennsylvania[.]” Verdict, 7/12/2013.
On September 26, 2013, the trial court sentenced Bell to a mandatory
minimum term of two to five years’ imprisonment pursuant to 18 Pa.C.S. §
6317, for his commission of the offense “within 250 feet of the real property
on which is located a recreation center[.]”4 Id. Bell filed a motion for
reconsideration of sentence requesting credit for additional time-served.
The court filed an amended sentencing order on October 8, 2013, granting
Bell the credit requested, and this timely appeal followed.5
The sole issue raised on appeal challenges the sufficiency of the
evidence. Bell contends the evidence presented was insufficient to prove he
possessed the codeine recovered from the trunk of the vehicle with the
intent to deliver it, rather than for his own personal use. Bell’s Brief at 12.
Specifically, he argues:
There were no cash or cell phones seized. There were no
dilutants or cutting agents f[o]und. And most importantly, the
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4
The parties stipulated at trial that (1) Bell’s vehicle was stopped within 250
feet of Apple Pie Daycare, Inc., and (2) that Apple Pie Daycare Inc. “is
classified as a recreation center pursuant to the applicable statutory
definition.” N.T., 7/11/2013, Volume II, at 182-183.
5
On November 14, 2013, the trial court ordered Bell to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Bell complied with the court’s directive and filed a concise statement on
December 4, 2013.
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investigating officers made no observations of any particular
conduct of [Bell] indicative of drug dealing behavior.
Id. (emphasis in original). Although Bell acknowledges the Commonwealth
presented the testimony of an expert witness who opined Bell possessed the
codeine with the intent to deliver it, Bell asserts the expert’s opinion was
“too weak and inconclusive to support the inference that [he] possessed the
codeine with the intent to deliver it.” Id. at 17.
Our review of a challenge to the sufficiency of the evidence is well-
established:
[W]e evaluate the record in the light most favorable to the
Commonwealth as the verdict winner, giving the prosecution the
benefit of all reasonable inferences to be drawn from the
evidence. “Evidence will be deemed sufficient to support the
verdict when it establishes each material element of the crime
charged and the commission thereof by the accused, beyond a
reasonable doubt.” However, the Commonwealth need not
establish guilt to a mathematical certainty, and it may sustain its
burden by means of wholly circumstantial evidence. Moreover,
this Court may not substitute its judgment for that of the
factfinder, and where the record contains support for the
convictions, they may not be disturbed. Lastly, we note that the
finder of fact is free to believe some, all, or none of the evidence
presented.
Commonwealth v. Taylor, 33 A.3d 1283, 1287-1288 (Pa. Super. 2011)
(internal citations omitted), appeal denied, 47 A.3d 847 (Pa. 2012). See
Commonwealth v. Ratsamy, 934 A.2d 1233, 1236 (Pa. 2007)
(emphasizing appellate court reviewing sufficiency claim “must determine
simply whether the evidence believed by the fact-finder was sufficient to
support the verdict”).
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“To convict a person 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) (citation omitted). The Commonwealth may
prove the defendant’s intent to deliver “wholly by circumstantial evidence.”
Id. (citation omitted). When the intent to deliver is not evident from the
facts, the Commonwealth may present expert testimony on the issue.
Such testimony is admissible to aid in determining whether the
facts surrounding the possession of controlled substances are
consistent with intent to deliver. The amount of the controlled
substance is not “crucial to establish an inference of possession
with intent to deliver, if ... other facts are present.”
Ratsamy, supra, 934 A.2d at 1237 (citation omitted).
After a thorough review of the trial transcript, we find the court, in its
opinion, thoroughly and accurately summarized the testimony of the
Commonwealth’s expert witness, Detective Timothy Bernhardt. See Trial
Court Opinion, 3/31/2014, at 11-14 (summarizing expert’s testimony that
(1) the vials recovered from the trunk were “wholly consistent with the
containers commonly used to package liquid codeine for illicit street sales;”
(2) the vials seized were also in the quantity frequently encountered in
street sales, “one-half (0.5) ounce or one (1) ounce sizes;” (2) the street
value of the vials recovered was $350; (3) the secretive placement of the
vials in the trunk’s spare tire compartment supported an inference of intent
to deliver; (4) the absence of money or cell phones not dispositive; and (5)
an individual possessing codeine for personal use “would not package [it in
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vials] … and keep it secreted in the spare tire compartment of a rental car’s
trunk.”). Furthermore, we conclude the court provides a well-reasoned basis
for its determination that the Commonwealth presented sufficient evidence
to support the jury’s verdict of PWID. See Id. at 14-23. Our review of the
record reveals ample support for the trial court’s conclusion that the jury’s
verdict was based upon “weak and inconclusive” testimony. Bell’s Brief at
17. Therefore, we adopt the sound reasoning of the Honorable Kevin F.
Kelly as dispositive of the one issue raised on direct appeal.
Nevertheless, the trial court imposed a mandatory minimum sentence
pursuant to 18 Pa.C.S. § 6317, a statute that has been found to be
constitutionally infirm in light of the United States Supreme Court’s decision
in Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013). See
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc);
Commonwealth v. Bizzel, ___ A.3d ___, 2014 PA Super 267 (Pa. Super.
December 2, 2014) (applying Newman to Section 6317). Although Bell did
not contest the imposition of the mandatory minimum sentence on appeal,
“a challenge to a sentence premised upon Alleyne … implicates the legality
of the sentence and cannot be waived on appeal.” Newman, supra, 99
A.3d at 90.6 Moreover, this Court may address the legality of a defendant’s
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6
We note that the Pennsylvania Supreme Court recently granted allocatur to
consider, inter alia, “[w]hether a challenge to a sentence pursuant to
Alleyne [] implicates the legality of the sentence as and is therefore non-
(Footnote Continued Next Page)
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sentence sua sponte. Commonwealth v. Watley, 81 A.3d 108, 118 (Pa.
Super. 2013) (en banc), appeal denied, 95 A.3d 277 (Pa. 2014).
In Alleyne, the United States Supreme Court held “[a]ny fact that, by
law, increases the penalty for a crime is an ‘element’ that must be
submitted to the jury and found beyond a reasonable doubt.” Alleyne,
133 S.Ct. at 2155 (emphasis supplied).
In Commonwealth v. Newman, supra, an en banc panel of this
Court concluded that Alleyne rendered the mandatory minimum sentencing
provision of a similar statute, 42 Pa.C.S. § 9712.1, unconstitutional. Like
the statute at issue herein, subsection (c) of Section 9712 permits the trial
court to determine at sentencing whether the elements necessary to
increase the mandatory minimum sentence, i.e., the defendant possessed or
was in close proximity to a firearm while selling drugs, were proven by a
preponderance of the evidence. See 42 Pa.C.S. § 9712.1(c).
The Newman Court vacated the judgment of sentence and remanded
for resentencing without consideration of the mandatory minimum statute.
The Court opined:
Plainly, Section 9712.1 can no longer pass constitutional muster.
It permits the trial court, as opposed to the jury, to increase a
defendant's minimum sentence based upon a preponderance of
the evidence that the defendant was dealing drugs and
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(Footnote Continued)
waivable.” Commonwealth v. Johnson, 93 A.3d 806 (Pa 2014) (granting
allocatur).
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possessed a firearm, or that a firearm was in close proximity to
the drugs. Under Alleyne, the possession of the firearm must
be pleaded in the indictment, and must be found by the jury
beyond a reasonable doubt before the defendant may be
subjected to an increase in the minimum sentence. As that is
not the case instantly, we are constrained to vacate appellant’s
sentence and remand for resentencing without regard for any
mandatory minimum sentence prescribed by Section 9712.1.
Id. at 98.
Furthermore, the Newman Court rejected the Commonwealth’s
suggestion that the illegality of the statute could be remedied upon remand,
by empanelling a jury to consider whether the Commonwealth proved,
beyond a reasonable doubt, the factors necessary to impose the mandatory
minimum. The Court held:
We find that Subsections (a) and (c) of Section 9712.1 are
essentially and inseparably connected. Following Alleyne,
Subsection (a) must be regarded as the elements of the
aggravated crime of possessing a firearm while trafficking drugs.
If Subsection (a) is the predicate arm of Section 9712.1, then
Subsection (c) is the “enforcement” arm. Without Subsection
(c), there is no mechanism in place to determine whether the
predicate of Subsection (a) has been met.
Id. at 101. The Court concluded “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 Pennsylvania following Alleyne.
We cannot do so.” Id. at 102.
Following Newman, this Court in Commonwealth v. Valentine, 101
A.3d 801 (Pa. Super. 2014), vacated a mandatory minimum sentence
imposed pursuant to 42 Pa.C.S. §§ 9712 and 9713, after a jury had
determined that the defendant committed a crime of violence with a
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firearm and in or near public transportation. In that case, the
Commonwealth recognized the potential Alleyne issue, and like the
prosecutor herein, amended the criminal information, prior to trial, to
include the allegations necessary to impose the mandatory minimum
sentences. Id. at 804. Furthermore, similar to the present case, the trial
court in Valentine “permitted the jury, on the verdict slip, to determine
beyond a reasonable doubt” whether the facts supported imposition of the
mandatory minimum. Id. at 811. In concluding that the trial court
performed an “impermissible legislative function,” the Valentine Court
opined:
The trial court erroneously presupposed that only Subsections
(c) of both 9712 and 9713 (which permit a trial judge to
enhance the sentence based on a preponderance of the evidence
standard) were unconstitutional under Alleyne, and that
Subsections (a) of 9712 and 9713 survived constitutional
muster. By asking the jury to determine whether the factual
prerequisites set forth in § 9712(a) and § 9713(a) had been
met, the trial court effectively determined that the
unconstitutional provisions of § 9712(c) and § 9713(c) were
severable. Our decision in Newman however holds that the
unconstitutional provisions of § 9712(c) and § 9713(c) are not
severable but “essentially and inseparably connected” and that
the statutes are therefore unconstitutional as a whole.
Moreover, Newman makes clear 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 Pennsylvania following Alleyne.”
Therefore, the trial court lacked the authority to allow the jury to
determine the factual predicates of §§ 9712 and 9713.
Id. at 811-812 (internal citations omitted).
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Although we recognize the Commonwealth and trial judge attempted
to comply with the dictates of Alleyne, we are constrained by Valentine
and Newman to reverse the judgment of sentence herein, and remand for
resentencing without consideration of the Section 6317 mandatory
minimum.
Accordingly, although we conclude Bell’s challenge to the sufficiency of
the evidence is meritless, we must, nevertheless, vacate the judgment of
sentence and remand for resentencing in light of the erroneous imposition of
the mandatory minimum sentence pursuant to Section 6317.
Judgment of sentence vacated. Case remanded for resentencing
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2014
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