Com. v. Kennedy, Y.

J-S22022-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
YASIN SHARIF KENNEDY, :
:
Appellant : No. 1365 MDA 2013
Appeal from the Judgment of Sentence December 13, 2011,
Court of Common Pleas, Lackawanna County,
Criminal Division at No(s): CP-35-CR-0000304-2011,
CP-35-CR-0000306-2011 and CP-35-CR-0003242-2010
BEFORE: PANELLA, DONOHUE and MUNDY, JJ.
CONCURRING AND DISSENTING MEMORANDUM BY DONOHUE, J.:
FILED APRIL 09, 2015
As the author of the discussion of Kennedy’s first and third issues, I
agree wholeheartedly with the resolution of these issues. I disagree with the
Majority as to the resolution of Kennedy’s second issue because in my view,
there was no evidence to support a conclusion that Kennedy used the phone
to facilitate a drug transaction, and therefore, no underlying felony to
support his conviction of criminal use of communication facility.
I reiterate that Kennedy attacks his conviction of criminal use of a
communication facility at 10 CR 3242, which involved only the events of
November 3, 2010. He argues that there was insufficient evidence to
support his conviction because to be found guilty of this crime, the
Commonwealth had to prove that he committed or attempted to commit a
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felony. It is Kennedy’s position that because the theft by deception and
related conspiracy charge were not felonies, this conviction cannot stand.
Appellant’s Brief at 9-10.
Criminal use of a communication facility is defined as follows:
(a) Offense defined.--A person commits a felony of
the third degree if that person uses a communication
facility to commit, cause or facilitate the commission
or the attempt thereof of any crime which constitutes
a felony under this title or under the act of April 14,
1972 (P.L. 233, No. 64), known as The Controlled
Substance, Drug, Device and Cosmetic Act. Every
instance where the communication facility is utilized
constitutes a separate offense under this section.
18 Pa.C.S.A. § 7512(a).
To establish evidence sufficient to convict a person of criminal use of
communication facility, “the Commonwealth must prove beyond a
reasonable doubt that: (1) [the accused] knowingly and intentionally used a
communication facility; (2) [the accused] knowingly, intentionally or
recklessly facilitated an underlying felony; and (3) the underlying felony
occurred.” Commonwealth v. Moss, 852 A.2d 374 (Pa. Super. 2004); see
also Commonwealth v. Rose, 960 A.2d 149 (Pa. Super. 2008) (“Under the
plain language of the statute, one essential element of the crime is that the
person must use the communication facility to bring about a felony.”)
(emphasis in the original). As Kennedy points out, the theft by deception
and related conspiracy charge were not felonies. Although Kennedy and the
CI spoke over the phone to arrange a meeting on November 3, 2010, and
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although Kennedy took the CI’s money on that date, there is no evidence to
support a finding that Kennedy intended to deliver heroin. Rather, all of the
evidence establishes that Kennedy used the phone to set up the theft by
deception, which, because of the amount of money stolen, was a
misdemeanor offense.
The trial court likens the facts in Kennedy’s case to those in Moss. In
that case, three co-defendants were convicted of criminal use of a
communication facility in connection with drug sales. The three defendants’
appeals were consolidated before this Court, and we considered the
sufficiency of the evidence as to each defendant’s criminal use of a
communication facility conviction. The trial court in the present case
analogized the facts underlying Kennedy’s conviction to those of one
particular defendant, Sullivan. Trial Court Opinion, 10/24/14, at 19. The
facts with regard to Sullivan were that he engaged in “several telephone
conversations with … a known drug dealer” which were recorded and that
“shortly after one of these conversations, [the drug dealer] was seen
entering Sullivan’s home and leaving after a few minutes.” Moss, 852 A.2d
at 382. This Court concluded that this evidence was sufficient to support the
conclusion that Sullivan used the telephone to cause or facilitate the drug
dealer’s attempted unlawful delivery of a controlled substance, and therefore
that Sullivan’s conviction was proper. Id. at 382-83. We reasoned as
follows:
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We conclude that the evidence, when viewed in the
light most favorable to the Commonwealth as verdict
winner, is sufficient to sustain the conviction against
Sullivan. The record reflects that Sullivan placed a
telephone conversation to Johnson inquiring about
purchasing drugs, and that Johnson agreed to make
the sale. A surveillance report indicates that shortly
after the second intercepted telephone conversation,
Johnson was seen briefly entering Sullivan’s home.
Thus, … [Sullivan] made the necessary preparations
and arranged a meeting point at which he and
Johnson would complete the illicit transaction.
Shortly thereafter, Johnson arrived at [Sullivan’s]
home and [Sullivan] allowed him inside. This
evidence, viewed in a light most favorable to the
Commonwealth, is sufficient to establish that
Appellant took a substantial step toward completing
the drug transaction. We will affirm the judgment of
sentence against Sullivan.
Id. at 383.
These facts are in stark contrast to the case before us. The evidence,
when viewed in the light most favorable to the Commonwealth, establishes
that Kennedy used a telephone to arrange to meet the CI on November 3,
2010 with the promise to sell the CI a certain amount of heroin. N.T.,
9/13/11, at 208-10. Prior to this, Kennedy sold the CI counterfeit heroin
because he thought that the CI was working with the police. Id. at 208. On
November 3, 2010, Kennedy met with the CI, took the CI’s money, and left.
N.T., 9/13/11, at 210; N.T., 9/14/11, at 52. After waiting for a period of
time, the CI came to believe that Kennedy was not returning and informed
the agent with whom he was working of this belief. N.T., 9/13/11, at 210;
N.T., 9/14/11, at 52. Shortly thereafter, the police stopped Kennedy’s
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vehicle as it entered the Pennsylvania Turnpike. N.T., 9/14/11, at 56.
Following his arrest, Kennedy stated that he was trying to “rip off” the CI
because he believed the CI was working with the authorities. Id. at 166.
Unlike in Moss, there is simply no evidence to establish that Kennedy
committed or attempted to commit a drug transaction in connection with the
offense charged regarding the events of November 3, 2010.
Tellingly, the Majority makes no mention of the trial court’s reliance on
Moss. It opts instead to view this as a matter of the jury rejecting
Kennedy’s version of events and ultimately concludes that “the evidence …
shows that Kennedy took a substantial step toward completing the drug
transaction.”1 Maj. Mem. at 12. Yet the Majority expressly bases this
conclusion not on evidence of record, but on a presumption. Id. (“Kennedy
later entered the CI’s vehicle, took the money and left – presumably to
procure heroin.”) (emphasis added). There is no basis for this presumption,
there was absolutely no evidence of Kennedy ever taking money up front
and then procuring heroin. To the contrary, the evidence consistently
indicated that Kennedy had the heroin in tow when he met with the CIs.
See N.T., 9/13/11, at 201, 206-07; N.T., 9/14/11, at 10-14, 31-35, 140-42,
148-19. The Majority’s conclusion is pure conjecture, and conjecture cannot
support a conviction. See Commonwealth v. Coleman, 19 A.3d 1111,
1
I acknowledge that this Court can affirm a trial court’s decision of any
grounds. See Commonwealth v. Singletary, 803 A.2d 769, 772-73
(Pa. Super. 2002).
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1118 (Pa. Super. 2011) (“[I]nferences [drawn from evidence] must flow
from facts and circumstances proven in the record … . The trier of fact
cannot base a conviction on conjecture and speculation and a verdict which
is premised on suspicion will fail even under the limited scrutiny of appellate
review.).”
For these reasons, I conclude that Kennedy’s conviction of criminal use
of a communication facility must be vacated, and I dissent as to that portion
of the Majority’s decision.
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