Com. v. Armstrong, T.

J-S65005-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYRONE ARMSTRONG
Appellant No. 1803 EDA 2013
Appeal from the Judgment of Sentence May 6, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006618-2011
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED DECEMBER 23, 2014
Appellant, Tyrone Armstrong, appeals from the judgment of sentence
entered by the Honorable Patricia H. Jenkins, Court of Common Pleas of
Delaware County, arising from drug trafficking charges prosecuted by the
Pennsylvania Office of the Attorney General. After careful review, we affirm
in all aspects save for the legality of the sentence imposed. As the trial
court cogently noted in its opinion on appeal, the sentence imposed is illegal
under the subsequently published opinion in Alleyne v. United States, and
therefore must be vacated and remanded for resentencing.
This case arises from the Office of the Attorney General’s investigation
into a crack cocaine distribution ring headed by Lester Womack. Armstrong
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S65005-14
concedes that “[t]here is not much question that Lester Womack was the
head of a drug distribution operation.” Appellant’s Brief, at 11.
Furthermore, it is not disputed that the majority of evidence supporting the
charges against Armstrong was circumstantial. Armstrong was never found
with crack cocaine in his possession, nor was any retrieved from persons
who claimed to have bought from him. The evidence against Armstrong
consisted primarily of his statements in recorded phone calls with known
members of the distribution ring, as well as Armstrong’s appearance at a bar
that was a center of activity for Womack’s distribution ring after allegedly
requesting, in slang terms, to purchase an ounce of crack cocaine.
After a trial, a jury convicted Armstrong of one count of Corrupt
Organizations, three counts of Criminal Conspiracy, one count of Dealing in
Proceeds of Illegal Activity, one count of Criminal Use of a Communication
Facility, and one count of Possession with Intent to Deliver Cocaine. The
trial court subsequently imposed a seven to fourteen year mandatory
minimum sentence for the Possession with Intent to Deliver charge, to be
served consecutively to concurrent twelve to twenty-four month sentences
on the remaining charges, yielding an aggregate sentence of eight to sixteen
years of imprisonment. This timely appeal followed.
In his first issue on appeal, Armstrong argues that the evidence
presented at trial does not support his convictions. When determining if
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evidence is sufficient to sustain a conviction, our standard of review is well-
settled:
A claim challenging the sufficiency of the evidence is a question
of law. 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. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention
to human experience and the laws of nature, then the evidence
is insufficient as a matter of law. When reviewing a sufficiency
claim the court is required to view the evidence in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
Commonwealth v. Kendricks, 30 A.3d 499, 508 (Pa. Super. 2011)
(citation omitted).
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute
our judgment for that of the fact-finder. The Commonwealth's
burden may be met by wholly circumstantial evidence and any
doubt about the defendant's guilt is to be resolved by the fact
finder unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the
combined circumstances.
Commonwealth v. Stokes, 38 A.3d 846, 853 (Pa. Super. 2011) (quoting
Commonwealth v. Mobley, 14 A.3d 887, 889-890 (Pa. Super. 2011)).
“[T]he entire record must be evaluated and all evidence actually received
must be considered.” Id., 38 A.3d at 854.
After reviewing the certified record, transcripts, appellate briefs of the
parties, and the opinion of the trial court, we conclude that trial court
thoroughly reviewed the evidence at trial and comprehensively addressed
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the arguments raised by Armstrong. See Trial Court Opinion, 12/18/13, at
2-10, 19-29. We therefore affirm on the basis of the trial court’s well-
written opinion.
In his second issue on appeal, Armstrong contends that the trial court
erred in permitting transcripts of recorded telephone conversations to go to
the deliberation room with the jury. The trial court relied upon
Commonwealth v. Bango, 742 A.2d 1070 (Pa. 1999), in ruling that the
transcripts would be allowed to go to the deliberation room for the jury to
review. Armstrong acknowledges that the trial court issued cautionary
instructions informing the jury that the tapes were the evidence, and that
the transcripts were no more than an aid in analyzing the tapes. See
Appellant’s Brief, at 18. Armstrong, however, argues that Bango is
inapposite, as he alleges that the tapes in this case were “almost
indecipherable, and unfortunately, the jury was left with what they saw, not
with what they heard.” Id.We cannot reach the merits of this claim, as the tapes in question are
not in the certified record. Ordinarily, we can only consider documents
which are part of the certified record. See Roth Cash Register Company,
Inc. v. Micro Systems, Inc., 868 A.2d 1222, 1223 (Pa. Super. 2005).
Furthermore, "[i]t is the obligation of the appellant to make sure that the
record forwarded to an appellate court contains those documents necessary
to allow a complete and judicious assessment of the issues raised on
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appeal." Everett Cash Mutual Insurance Company v. T.H.E. Insurance
Company, 804 A.2d 31, 34 (Pa.Super. 2002) (quoting Hrinkevich v.
Hrinkevich, 676 A.2d 237, 240 (Pa.Super. 1996)).
Since an evaluation of Armstrong’s claim that the tapes were so
garbled as to be impossible for the jury to come to an independent
conclusion as to their contents requires review of the tapes themselves,
Armstrong’s failure to ensure their presence in the certified record is fatal to
his claim. We therefore conclude that Armstrong’s second issue on appeal
merits no relief.
In his third issue on appeal, Armstrong argues that the convictions for
Possession With Intent to Deliver must be reversed as the verdict slip
contained references to the weight of the narcotics alleged to be involved.
In support, he cites to Commonwealth v. Serrano, 61 A.3d 279 (Pa.
Super. 2013), for the proposition that a defendant is entitled to notice, via
Criminal Information, of any element of a crime on the verdict slip.
In Serrano, the defendant was charged with delivery of heroin in the
Criminal Information against him. See id., 61 A.3d at 286-287. The
evidence at trial against Serrano pertained to his involvement with a heroin
distribution ring. However, the verdict slip given to the jury asked the jury
to come to a verdict regarding Serrano’s involvement with distributing
cocaine. See id., at 287. On appeal, a panel of this Court held that the
judgment of sentence for delivery of cocaine must be vacated, as Serrano
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had never been charged with the delivery of cocaine, nor had any evidence
of delivering cocaine been presented to the jury. See id.Here, the weight of the cocaine involved was not an element of the
crime, and the trial court did not instruct the jury to the contrary. See N.T.,
3/25/13, at 19-24. Rather, the weight of the cocaine was, at the time, an
issue regarding the imposition of a mandatory minimum sentence, which
was not within the province of the jury.1 We therefore conclude that
Armstrong’s third issue on appeal merits no relief.
In his final issue on appeal, Armstrong contends that his judgment of
sentence is illegal pursuant to Alleyne v. United States, ___ U.S. ___, 133
S.Ct. 2151, 186 L.Ed.2d 314 (2013). The trial court imposed a mandatory
minimum sentence pursuant to 18 Pa.C.S.A. 7508(a)(3). Alleyne was
published after sentence was imposed in this case, but applies nevertheless.
See Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en
banc) (holding that violations of Alleyne could not be waived).
Furthermore, this Court has since held that, pursuant to Alleyne, section
7508 is facially unconstitutional. See Commonwealth v. Fennell, ___
A.3d ___, 2014 WL 6505791 (Pa. Super., filed November 21, 2014). Both
____________________________________________
1
Furthermore, the jury’s verdict cannot cure the Alleyne issue discussed
below. See Commonwealth v. Fennell, ___ A.3d ___, ___, 2014 WL
6505791 (Pa. Super., filed November 21, 2014) (rejecting the argument that
the requirements of Alleyne could be satisfied by a jury finding that the
factual predicate for imposition of the mandatory minimum had been
established).
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J-S65005-14
the Commonwealth, see Appellee’s Brief, at 41, and the trial court, see Trial
Court Opinion, 12/18/13 at 36-37, concede that a remand for resentencing
is appropriate in this matter.
The only objection to such a procedure comes from Armstrong, who
vaguely alleges that a remand for resentencing “would impinge his
constitutional rights, and suggests that instead, judgment be arrested and
the charges dismissed.” Appellant’s Brief, at 21. Armstrong provides no
citation to authority supporting his request for dismissal, and we can find
none. Rather, as the trial court notes, the proper procedure is a remand for
resentencing. See Commonwealth v. Goldhammer, 517 A.2d 1280,
1283-1284 (Pa. 1986). We therefore vacate the judgment of sentence in its
entirety and remand for resentencing.
Convictions affirmed. Judgment of sentence vacated. Case remanded
for resentencing. Jurisdiction relinquished.
Judge Platt joins in the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2014
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IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY,
PENNSYLVANIA, CRIMINAL DIVISION
COMMONWEALTH OF NO. 6618-11
PENNSYLVANIA
v.
TYRONE ARMSTRONG
Kelly Sekula, Esquire, Attorney for Commonwealth of Pennsylvania
Joseph Del Sordo, Esquire, Attorney for Tyrone Armstrong ~. / . ... / 'C'
JENKINS, J. FILED: if)
I
1/ ,j/
I
/l)
OPINION
A jury found Tyrone Armstrong guilty of racketeering, possession with intent to
deliver a controlled substance ("PWID") and other charges arising from a multi-county
drug enterprise. On May 6, 2013, the Court sentenced Armstrong to an aggregate term of
9-18 years imprisonment. The primary component of this sentence was a mandatory
minimum sentence of7-14 years imprisonment for PWID.
On May 16, 2013, Armstrong filed timely post-sentence motions, which the Court
denied in an order docketed on June 22, 2013. On June 18, 2013, Armstrong filed a
timely direct appeal from the order denying post-sentence motions. On July 9, 2013, he
filed a timely concise statement of matters complained of on appeal ("concise
statement"). Armstrong has raised well over twenty issues in this direct appeal, most of
them pertaining to his challenge to the sufficiency of the evidence. None of the
arguments raised in Armstrong's concise statement have merit except for his objection to
sentence for PWID. For the reasons articulated below,
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Armstrong's judgment of sentence should be vacated and the case remanded for
resentencing on all verdicts of guilt.
I. FACTUAL AND PROCEDURAL HISTORY
This case involves a conspiracy to sell large quantities of crack cocaine in
Philadelphia, Darby (Delaware County) and Coatesville (Chester County). Lester
Womack, the leader of the conspiracy, stored substantial amounts of money and crack in
a house he shared with his mother in Darby, Delaware County. N.T., 3/22/13, pp. 47-52.
Lester Womack manufactured and bagged the crack in Marcus Womack's residence in
Philadelphia. N.T., 3120/13, p. 158. Armstrong, whom Lester Womack! described as his
"right hand man," assisted Womack in counting money and in meeting Womack's main
supplier, Clifford Hopkins. N.T., 3/20/13, p. 150.
The Commonwealth's principal witness was Agent Michael Kelly, the lead
investigator from the Attorney General's Office, who testified as an expert in the areas of
narcotics, narcotics investigations, coded language and drug jargon. N.T., 3/19/13, pp.
95-97, 188-89. In June 2011, Agent Kelly began an investigation into Lester Womack's
crack distribution ring. N.T., 3/19/13, pp. 95-97. Agent Kelly was not aware of Womack
having any type of employment or income source other than drug sales. N.T., 3/20/13, p.
150. Between June and September 2011, confidential informants made multiple
controlled purchases of crack from houses in Coatesville reportedly operated by
Womack, N.T., 3/20/13, pp. 23-31, 41-46. Armstrong was not present during the
controlled purchases. N.T., 3120/13, p. 48. Agent Kelly obtained a warrant to place a
trap and trace pen register device on phone numbers registered to Womack and Ronald
Vann, Jr. N.T., 3/19/13, pp. 97-99. Based on the high volume of calls to Womack's
1 Unless otherwise specified, references to "Womack" in this opinion are to Lester Womack.
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phone, Agent Kelly obtained a warrant for a nonconsensual wiretap on these phones.
N.T., 3/19/13, pp. 100, 103.
The investigation into the drug ring, Operation Breadwinner, took place mainly
during the latter half of September 2011. During that time period, detectives recorded
conversations between Womack and Ronald Vann relating to drug sales in Coatesville,
Chester County. N.T., 3120/13, pp. 58, 68-69. These calls took place daily. N.T.,
3/20/13, p. 58. Womack also spoke with Clifford Hopkins discussing (a) shipments of
cocaine between them (they sold drugs to one another), (b) Hopkins cooking crack from
cocaine that Womack had received from another Delaware County supplier, Ackalith
Kontanone, and (c) the amount of cocaine Hopkins was storing at Womack's mother's
house in Darby, Delaware County. N.T., 3/20/13, pp. 7, 59, 61, 74-75, 81-86, 98, 99-
100, 155-59, 197. Other drug-related phone calls took place between Womack and
Kontanone. N.T., 3/20/13, pp. 71-73, 76-78,86-87.
On September 16,2011, Armstrong and Womack were recorded discussing a sale
of 2 Y4 ounces of cocaine. N.T., 3/20113, pp. 62-63, 65. Agent Kelly recognized
Armstrong's voice on this call because he spoke with Armstrong after his arrest. N.T.,
3/20/13, pp. 64-65, 91-92, 97-98. Womack said that he wanted the cocaine "raw"
(powdered), but Armstrong said that the cocaine had already been "done up" (cooked into
crack). N.T., 3/20/13, pp. 65-66. Womack admonished Armstrong for not calling
Womack earlier to discuss this transaction, because Womack could have "kicked"
(increased) the 2 Y4 ounces to 3Yz ounces by adding a cutting agent to increase the sale
profit. N.T., 3120113, pp. 66-67.
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On September 18, 2011, Officer Peter Sarris observed a meeting in Darby,
Delaware County between Hopkins in his Cadillac and the operator of a white Range
Rover. N.T., 3120/13, pp. 110-12. On September 20, 2011, Officer Shawn McLaughlin
observed a meeting a meeting in Darby between Womack and Kontanone, who was
driving a white Range Rover with license plate HKF1004. N.T., 3/20/13, pp. 119-20.
Officer McLaughlin followed Kontanone's Range Rover to the Grant Terrace Apartments
at 601 Grant Avenue, where it was parked in front of Unit 43. N.T., 3/20/13, p. 120. On
September 21, 2011, the detectives learned that Kontanone was supposed to deliver 2 Y4
ounces of cocaine to Womack's residence. N.T., 3120113, p. 102. Officers obtained a
search warrant for Kontanone's residence at the Grant Terrace Apartments and his Range
Rover, and in the ensuing raid, they seized almost 100 grams of cocaine, contraband and
$17,000 in cash. N.T., 3120/13, pp. 101-03, 127-35.
On September 22, 2011, officers recorded two telephone calls from Womack to
Armstrong in which Womack counted money from sales of crack and asked for
Armstrong's help. N.T., 3/20/13, pp. 149-50. As Womack hung up, he told someone in
the background that Armstrong was his "right-hand man". N.T., 3/20/13, p. 150. On
September 22-23,2011, officers recorded a series of phone calls between Lester Womack
and Marcus Womack plus one phone call from Lester Womack to Armstrong. N.T.,
3/20113, pp. 150-54. The conversation between Lester Womack and Armstrong
concerned Hatfield Street, the street on which Marcus Womack lived. N.T., 3/20/13, p.
154. Lester Womack used Marcus Womack's house for cooking and bagging crack
cocaine. N.T., 3/20/13, pp. 154, 185-86.
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On September 26, 2011, Armstrong called Lester Womack and said: "Yeah, that
shit should be in our account, direct deposit, within 48 hours." N.T., 3/20/13, pp. 202,
228.
On September 27, 2011, Womack called Armstrong and asked where he,
Womack, could obtain empty bags to package crack cocaine. N.T., 3/20/13, pp. 207-08.
Armstrong answered that bags were available in poppy stores, Spanish-owned comer
stores in the city. N.T., 3120/13, pp. 208, 227. Womack was hesitant about going to
poppy stores because he thought he could get robbed or shot. N.T., 3120/13, p. 208. One
minute later, Armstrong telephoned Womack and asked how many "jawns" (ounces) of
cocaine Womack had. N.T., 3/20/13, p. 208-09; N.T., 3/21/13, p. 61. Womack said that
he had two, and Armstrong asked to purchase one ounce for $1,000, which was a normal
street price for an ounce of crack. N.T., 3/20/13, p. 209; N.T., 3/21113, p. 61. Womack
did not want to make this sale because he believed his supplier would not be out until
tomorrow and he (Womack) would bum through two ounces of cocaine tonight. N.T.,
3/20/13, p. 209; N.T., 3121113, pp. 61-62. Womack indicated that he would "go around
there and see ifhe's home," and "go see his guy now who lives in the neighborhood" i.e.,
Womack would go see if his supplier was around so that he could obtain an ounce of
cocaine for Armstrong. N.T., 3121113, pp. 62, 69. One minute after concluding this
conversation, Womack called Clifford Hopkins. N.T., 3/20/13, pp. 209-10.
Ten minutes later, Armstrong called Womack and asked whether Womack heard
back from his supplier. N.T., 3/20/13, pp. 211-12. Womack answered "he's down there
no[w]; that it shouldn't be too long." N.T., 3/20/13, p. 212. Agent Kelly recounted the
conversation as follows: "Armstrong asked if Womack heard from him, meaning Clifford
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Hopkins. Womack replies no, I'm down here now. It's not going to take long. And then
Armstrong asks, oh, you're getting it? And Womack replies, yeah, I'm out here now."
N.T., 3/21113, p. 69. Agent Kelly testified that this conversation was in reference to the
conversation between Womack and Armstrong ten minutes earlier in which Armstrong
inquired about purchasing one ounce of cocaine. N.T., 3120113, p. 212. Later that
evening, Officer Sarris observed Womack meet another male outside the Blue Nile Bar at
52nd and Webster Streets in Philadelphia, Clifford Hopkins' center of operations. N.T.,
3121/13, pp. 7-8, 92. Based on this evidence, Agent Kelly opined that on September 27,
2011, Womack obtained one ounce of cocaine from Hopkins, and Armstrong obtained
this ounce from Womack for redistribution. N.T., 3/21113, pp. 68-69, 91. Police officers
never found this ounce on Armstrong or anyone else. N.T., 3/21/13, pp. 91-92.
On September 28, 2011, Womack called Armstrong and asked whether
Armstrong wanted to open a crack house for Womack in the area of 54 th and Gregg
Avenues in Philadelphia. N.T., 3120/13, p. 243. Later that day, Officer Sarris observed
Armstrong meet Womack on the 6500 block of Upland Street in Philadelphia and drive
away in Armstrong's automobile. N.T., 3121113, pp. 9-10. The men drove to the Blue
Nile bar at 52nd and Webster and entered the bar. N.T., 3/20113, pp. 88-90; N.T., 3121113,
p. 11. When they left the bar, Armstrong placed a white bag or white object in the trunk
of his car. N.T., 3/21113, pp. 11, 15, 34-35. The males drove back to the 6500 block of
Upland Street, where Armstrong dropped Womack off. N.T., 3/21113, p. 17.
On September 29, 2011, Officer Sarris observed Womack's car parked on the
6500 block of Upland Street and Armstrong's car parked on 65 th Street. N.T., 3/21/13, p.
19. Womack was standing at the open passenger door of Armstrong's car, and
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Armstrong was standing at the open driver door. N.T., 3121113, p. 19. Officer Sarris
drove around the block. When he returned, both Womack's and Armstrong's cars were
gone when he returned. N.T., 3/21/13, pp. 21-22. Agent Freddie Chaves observed
Womack and Armstrong drive up to 5657 Hatfield Avenue in Womack's car, enter the
building and leave five minutes later with Marcus Womack. N.T., 3/21113, pp. 116-17.
On the evening of September 29th , Womack complained to Hopkins that he had
lost "28" (28 grams, or one ounce). N.T., 3/21113, pp. 48-49. Agent Kelly explained that
Hopkins had supplied cocaine powder to Womack, but that 28 grams was lost when the
powder was cooked into crack. N.T., 3/21113, pp. 48-49. Hopkins replied that he had
talked to his supplier, and that he would "throw a half a hard on it next time", i.e., in the
next delivery, he would make up for the loss of28 grams of powder by adding 14 grams
of crack. N.T., 3/21/13, pp. 48-49. Womack did not find the arithmetic fair: he
complained that he should not receive just 14 grams of crack after losing 28 grams of
powder. N.T., 3/21113, pp. 48-49, 83. Hopkins replied: "That's why you should have
done the 4Yz, 4Yz", i.e., that is why Womack should have purchased nine ounces. N.T.,
3/21113, p. 49. Womack again disagreed, stating "if I do that, I'm going to lose a 56",
i.e., if he purchased nine ounces of powder, he would have lost 56 grams (two ounces) in
the cooking process. N.T., 3121113, p. 49. Based on this conversation, Agent Kelly
concluded that Womack had purchased 4Yz ounces of cocaine powder from Hopkins,
N.T., 3/21113, p. 50, but was upset about losing one ounce of powder during the cooking
process.
The following day, September 30, 2011, Womack called Armstrong, and
Armstrong asked whether Womack had talked with Old Head, the supplier who had sold
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Womack the cocaine powder. N.T., 3/21/13, pp. 50-51. Womack replied that he would
give Armstrong "14 and a better play", i.e., to make up for the loss of the 28 grams of
powder, the supplier would reduce the price of the next sale and throw in 14 grams of
crack. N.T., 3/21113, p. 52. Armstrong complained that "it was 28", i.e., he had lost 28
grams while cooking the cocaine powder. N.T., 3/21113, p. 52. Womack repeated that
the supplier would make it up by giving Armstrong "a better play and the 14, you hear
me?" i.e., the lower price and the 14 grams of crack would make up for the loss of the 28
grams of powder. N.T., 3/21113, p. 52.
One half hour later, Armstrong called Womack, and Womack said "this shit is
snappin right now, yo, snappin," i.e., his crack was selling fast. N.T., 3/21/13, p. 53.
Womack asked Armstrong "how much of that shit you got left," and Armstrong answered
that he had sold one half ounce and had 2 Yz ounces left. N.T., 3/21/13, pp. 53-54, 70-71.
Womack stated that he might have a customer for the 2 Yz ounces. N.T., 3/21113, p. 54.
Later that morning, Womack called Armstrong and said that he sold "eight" ($8,000) the
night before because the crack was so good. N.T., 3/21113, pp. 54-55. Womack offered
to buy Armstrong's 2 Yz ounces for $2,500; Armstrong made a counteroffer of $3,000.
N.T., 3/21113, p. 55. Armstrong and Womack continued to negotiate throughout the day
in five more telephone calls. N.T., 3/21/13, pp. 56-62. Much of these conversations
concerned whether Womack could contact his supplier, Old Head, to obtain more cocaine
to cook into crack. N.T., 3/21113, pp. 56-62. Finally, Armstrong said he would sell the
cocaine for $2,500, Womack's original offer. N.T., 3/21/13, p. 57. Armstrong then said
"I already made $500," which meant that he already made $500 by selling a half ounce of
cocaine. N.T., 3/21113, p. 57.
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Based on the conversations between Armstrong and Womack from September
28 th through September 30 th , conversations between Womack and Hopkins on September
29th and 30th , and surveillance of Armstrong at the Blue Nile Bar in Philadelphia, Agent
Kelly opined that Armstrong obtained four ounces of cocaine on September 28, 2011,
when he walked out of a Philadelphia bar with a white bag. He then cooked the cocaine
into crack, losing an ounce in the cooking process, and sold it. N.T., 3/21/13, pp. 70, 91-
101; N.T., 3/22/13, p. 14. Police officers never recovered any of the four ounces from
Armstrong. N.T., 3121113, pp. 97-98. Agent Kelly further opined that Armstrong was in
possession of 2Yz ounces of cocaine on September 30, 2011, based on Armstrong's
statement to Womack that he sold half an ounce of the three ounces in his possession.
N.T., 3/22/13, p. 25.
On October 1, 2011, Armstrong and Womack spoke twice on the telephone about
a drug sale to a buyer who bet on college football games and who would not be available
until after the games concluded. N.T., 3/21113, pp. 74-76. Armstrong told Womack that
he would call someone to obtain a supply of cocaine. N.T., 3/21/13, p. 76.
On October 2, 2011, Womack told Armstrong on the telephone that somebody
wanted to purchase 2 Y4 ounces of crack. N.T., 3/21/13, p. 151-52. They also talked
about not putting in enough baking soda while cooking crack, which is why there was not
enough made. N.T., 3/21113, p. 152. They discussed the idea of buying a quarter pound
of cocaine for $3,250, turning it into crack and selling it for $4,500. N.T., 3/21/13, p.
152. Armstrong was ambivalent about this idea because he did not want to have that
much cocaine in his possession in case he got caught by the police. N.T., 3/21113, p. 153.
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Police intercepted over 4,000 calls on Womack's phone and over 5,000 on Vann's
phone over a 21'2 week period. N.T., 3/22/13, p. 10. Police arrested 19 or 20 people as a
result of this investigation, many of whom had drugs or drug-related items in their
possession at the time of arrest. N.T., 3/22/13, p. 11. Police recovered substantial
amounts of crack cocaine, money and contraband from Womack's mother's residence in
Darby, Pennsylvania and from Womack's residence in Philadelphia. N.T., 3/22/13, pp.
46-57.
Count 9 of the amended bills of information2 accused Armstrong of possessing
4.5 ounces of cocaine with intent to deliver on September 28-30, 2011. During jury
instructions, the Court defined PWID's elements of possession and intent to deliver.
N.T., 3/25/13, pp. 19-24,42-45. The Court did not instruct, however, that the amount of
4.5 ounces is an element of PWID, or that the jury was required to find this amount
beyond a reasonable doubt. N.T., 3/25/13, pp. 19-24,42-45.
The jury found Armstrong guilty of corrupt organizations (Count 1), conspiracy to
corrupt organizations (Count 2), dealing in proceeds of unlawful activity (Count 3),
conspiracy to deal in proceeds of unlawful activity (Count 5), conspiracy to possess with
intent to deliver a controlled substance (Count 6), criminal use of a communications
facility (Count 7), and possession with intent to deliver a controlled substance (4.5
ounces) between September 27-30, 2011 (Count 9). N.T., 3/25/13, pp. 59-61; see also
Verdict Slips. The jury acquitted Armstrong of possession with intent to deliver a
controlled substance (one ounce) on September 27,2011 (Count 8). N.T., 3125/13, p. 60.
2The Commonwealth amended the bills of information before jury selection by withdrawing several
charges against Armstrong. N.T., 3/19/13, pp. 4-12.
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II. ARMSTRONG'S CHALLENGES TO SUBJECT MATTER
JURISDICTION
Armstrong argues that there was "insufficient evidence to establish that he
committed any crime in Delaware County or even in Pennsylvania." Concise Statement,
~ 1(a). Although couched in terms of sufficiency of the evidence, this actually is an
objection to this Court's subject matter jurisdiction.
This Court has subject matter jurisdiction over every charge on which the jury
convicted Armstrong. 18 Pa.C.S. § 102, entitled "Territorial Applicability", provides in
relevant part:
[A] person may be convicted under the law of this Commonwealth of an offense
committed by his own conduct or the conduct of another for which he is legally
accountable if either:
(1) the conduct which is an element of the offense or the result which is such an
element occurs within this Commonwealth ... [or]
(3) conduct occurring outside this Commonwealth is sufficient under the law of
this Commonwealth to constitute a conspiracy to commit an offense within this
Commonwealth and an overt act in furtherance of such conspiracy occurs within
this Commonwealth ...
Subject matter jurisdiction relates to the competency of a court to hear and decide the
type of controversy presented. Commonwealth v. Bethea, 574 Pa. 100, 828 A.2d 1066,
1074 (2003) (citing McGinley v. Scott, 401 Pa. 310,164 A.2d 424 (1960». Jurisdiction is
a matter of substantive law. Id., 828 A.2d at 1074; see also 42 Pa.C.S. § 931(a) (defining
unlimited original jurisdiction of courts of common pleas). "[A]ll courts of common
pleas have statewide subject matter jurisdiction in cases arising under the Crimes Code."
Id., 828 A.2d at 1074. Although each court of common pleas possesses the same subject
matter jurisdiction to resolve cases arising under the Crimes Code, "that jurisdiction
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should only be exercised beyond the territorial boundaries of the judicial district in which
it sits in the most limited of circumstances.,,3 Id. at 1075.
The Court will review each charge against Armstrong under these standards.
PWID requires the Commonwealth to prove beyond a reasonable doubt that the
defendant "both possessed the controlled substance and had an intent to deliver that
substance." Commonwealth v. Kirkland, 831 A,2d 607,611 (Pa. Super. 2003). To prove
conspiracy to possess controlled substances with intent to deliver, the Commonwealth
must prove that the defendant: 1) entered into an agreement to commit or aid in PWID
with another person or persons; 2) with a shared criminal intent; and 3) an overt act was
done in furtherance of the conspiracy. Commonwealth v. Watley, -- A,3d --, 2013 WL
6164340, *6 (citing Commonwealth v. Devine, 26 A,3d 1139, 1147 (Pa. Super. 2011)).
"The conduct of the parties and the circumstances surrounding such conduct may create a
web of evidence linking the accused to the alleged conspiracy beyond a reasonable
doubt." Id. The conspiratorial agreement "can be inferred from a variety of
circumstances including, but not limited to, the relation between the parties, knowledge
of and participation in the crime, and the circumstances and conduct of the parties
surrounding the criminal episode." Id.In this case, police officers observed Armstrong attended meetings in Philadelphia
on September 27 and 28,2011. The meeting on September 28 th was with Womack inside
a bar, and following this meeting, Armstrong was holding a white bag outside the bar.
This evidence, viewed in conjunction with Armstrong's phone calls with Womack, show
that the bag contained cocaine. On September 30, 2011, Armstrong agreed to sell
3 Armstrong also raises objections to venue, which is separate and distinct from subject matter jurisdiction.
The venue issues are discussed infra at pp. 16-18.
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cocaine to Womack for $2,500 and then stated that he already made $500 from selling a
half ounce of cocaine. The evidence further shows numerous transactions between
Womack and Clifford Hopkins (Womack's supplier), Ronald Vann and Marcus Womack.
The Commonwealth thus satisfied 18 Pa.C.S. § 102(1) by proving the charges of PWID
and conspiracy to commit PWID against Armstrong with evidence of conduct "within
this Commonwealth."
Dealing in proceeds of unlawful activities is defined in relevant part as follows:
A person commits a felony of the first degree if the person conducts a financial
transaction under any of the following circumstances:
(1) With knowledge that the property involved, including stolen or illegally
obtained property, represents the proceeds of unlawful activity, the person acts
with the intent to promote the carrying on of the unlawful activity.
18 Pa.C.S. § Slll(a). A "financial transaction" is "a transaction involving the movement
of funds by wire or other means or involving one or more monetary instruments. The
term includes any exchange of stolen or illegally obtained property for financial
compensation or personal gain." 18 Pa.C.S. § S111(f). A "transaction" includes "a
purchase, sale, loan, pledge, gift, transfer, delivery or other disposition." Jd. "Conducts"
includes "initiating, concluding or participating in initiating or concluding a transaction."
Jd. A "monetary instrument" includes, among other items, "coin or currency of the
United States." Jd. "Unlawful activity" is "any activity graded a misdemeanor of the
first degree or higher under Federal or State law." Id.
In this case, over a two week period in September and October of 2011, police
officers recorded numerous conversations between Armstrong and Womack discussing
the amount to charge third persons for sales of cocaine. They also negotiated what
Armstrong would charge for selling cocaine to Womack. During one conversation on
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September 30th , Armstrong admitted selling half an ounce of cocaine for $500. Many
conversations took place after police observed Armstrong in Philadelphia carrying a bag
of cocaine in Womack's presence. Womack stored drugs and money from drug sales in
his house in Darby, Pennsylvania, asked Armstrong to help him count money from drug
sales, and referred to Armstrong as his "right-hand man." These transactions demonstrate
that Armstrong "act[ed] with the intent to promote the carrying on of the unlawful
activity" in Pennsylvania. 18 Pa.C.S. § 5111(a)(1). This holds true even if Armstrong
was outside of Pennsylvania during every telephone call with Womack, because "acts
done outside [Pennsylvania], but intended to produce and producing detrimental effects
within it, justify [Pennsylvania] in punishing the cause of the harm." Commonwealth v.
Giusto, 810 A.2d 123, 126 (Pa. Super. 2003) (citing Commonwealth v. Bighum, 452 Pa.
554,307 A.2d 255, 258 (1973)).
Conspiracy to deal in proceeds of unlawful activities occurs when the
defendant 1) enters into an agreement to commit or aid in dealing such proceeds with
another person or persons; 2) with a shared criminal intent; and 3) an overt act is done in
furtherance of the conspiracy. Watley, supra, 2013 WL 6164340, at *6. The meetings
that Armstrong attended in Philadelphia, Womack's storage of money in Darby, and
Womack's sales of drugs in Chester County all satisfy 18 Pa.C.S. § 102(3)'s requisite of
an overt act within Pennsylvania in furtherance of a conspiracy to deal in unlawful
proceeds.
Criminal use of a communication facility takes place when the defendant "uses
a communication facility to commit, cause or facilitate the commission or the attempt
thereof of any crime which constitutes a felony under [the Crimes Code or the Controlled
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Substance, Drug, Device and Cosmetic Act.]" 18 Pa.C.S. § 7S12(a). The many phone
calls between Armstrong and Womack violated § 7S12(a) because they promoted a drug
trafficking conspiracy. Jurisdiction exists in Pennsylvania because the purpose of these
acts was to cause harm inside of Pennsylvania through drug sales. Giusto, supra.
The offense of corrupt organizations provides in relevant part: "It shall be
unlawful for any person employed by or associated with any enterprise to conduct or
participate, directly or indirectly, in the conduct of such enterprise's affairs through a
pattern of racketeering activity." 18 Pa.C.S. § 911(b)(3). "Enterprise" means "any
individual, partnership, corporation, association or other legal entity, and any union or
group of individuals associated in fact although not a legal entity, engaged in commerce
and includes legitimate as well as illegitimate entities and governmental entities." 18
Pa.C.S. § 911 (h)(3). "Racketeering activity" includes PWID, dealing in proceeds of
criminal activities, and conspiracy to commit these offenses. 18 Pa.C.S. § 911(h)(ii),
(iii). "Pattern of racketeering activity" refers to a "course of conduct requiring two or
more acts of racketeering activity, one of which occurred after the effective date of this
section.,,4 18 Pa.C.S. § 911(h)(4).
The discussion above demonstrates that Armstrong was a member of an enterprise
devoted to drug dealing, and that Armstrong participated in the enterprise's affairs
through a pattern of PWID, dealing in proceeds of criminal activities, and conspiracy to
commit PWID and dealing in unlawful proceeds in Pennsylvania. Jurisdiction clearly
exists to prosecute this corrupt organizations offense in Pennsylvania.
Conspiracy to commit corrupt organizations takes place when the defendant
enters into an agreement to engage in corrupt organizations with another person or
4 Section 911 was last amended in 2006.
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persons; 2) with a shared criminal intent; and 3) an overt act is done in furtherance of the
conspiracy. Watley, supra. The discussion above shows that Armstrong engaged in a
conspiracy to commit a pattern of acts in this Commonwealth that constitute corrupt
organizations.
III. ARMSTRONG'S CHALLENGES TO VENUE IN DELAWARE COUNTY
Armstrong contends that there was insufficient evidence to establish that he was
part of the criminal activity under investigation that others perpetrated, so he should have
been "charged and tried in the jurisdiction where the Commonwealth [could] establish
that he committed a crime, not where others might have done so." Concise Statement, ~
1(b). He also states that "jurisdiction" in Delaware County "was not established for any
of the crimes for which [he] was convicted or were alleged to have been committed by
anyone." Concise Statement, ~ 2. Finally, he states that the affidavit proffered by the
Commonwealth to gain "jurisdiction" in Delaware County lacked specificity, was based
on speculation, and contained errors of fact. Concise Statement, ~ 3.
Although Armstrong's phrasing is opaque, he appears to state that Delaware
County was an improper venue for his trial because there is no evidence that he himself
committed a crime in this county. The Court disagrees.
At the outset, paragraph 3 of Armstrong's concise statement is waived due to
vagueness. When the Court directs an appellant to file a concise statement of matters
complained of on appeal under Pa.R.A.P. 1925, any issues that are not raised in such a
statement will be waived for appellate review. Commonwealth v. Dowling, 778 A.2d 683,
686 (Pa.Super.2001), (citing Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 308
(1998)). Similarly, when issues are too vague for the trial court to identify and address,
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that is the functional equivalent of no concise statement at all. Id. Rule 1925 is intended
to aid trial judges in identifying and focusing upon those issues which the parties plan to
raise on appeal. Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa.Super.2002). "When the
trial court has to guess what issues an appellant is appealing, that is not enough for
meaningful review." Id. (citing Dowling, supra). Paragraph 3 of Armstrong's concise
statement, which assails the affidavit proffered by the Commonwealth to obtain
"jurisdiction" in Delaware County, fails to explain why the affidavit is "based on
speculation" or what "errors of fact" it contains. As a result, the Court must guess at
what Armstrong is appealing. This "is not enough for meaningful review." Id.
Turning to the other arguments, the Court has no doubt that venue was proper in
Delaware County. Venue and subject matter jurisdiction are distinct concepts. Bethea,
supra, 828 A.2d at 1074. Venue relates to the right of a party to have the controversy
brought and heard in a particular judicial district. Id. at 1074-75 (citing McGinley, 164
A.2d at 427-28). Venue is predominately a procedural matter and assumes the existence
of jurisdiction, but these terms "are often used interchangeably because they must exist
simultaneously in order for a court to properly exercise its power to resolve a particular
controversy." Id.
Rules of venue
recognize the propriety of imposing geographic limitations on the exercise of
jurisdiction. Venue in a criminal action properly belongs in the place where the
crime occurred. Commonwealth v. Mulholland, 549 Pa. 634, 702 A.2d 1027(1997). This practice recognizes the necessity of bringing a party to answer for
his actions in the place where the crime itself occurred because that is where the
evidence and the witnesses will most likely be located. It would be nonsensical to
transport defendants, evidence and witnesses from Philadelphia to Erie to resolve
criminal charges arising in the former location before a judge andlor jury sitting in
the latter location.
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Generally, venue begins in the court with a geographic connection to the events at
issue.
Id., 828 A.2d at 1075.
More specific venue principles govern prosecutions for criminal conspiracy. The
Commonwealth may bring such prosecutions in any county where the unlawful
combination is formed, or in any county where an overt act is committed by any of the
conspirators in furtherance of the unlawful combination. Commonwealth v. Fithian, 599
Pa. 180,961 A.2d 66, 78 (2008) (citing Commonwealth v. Thomas, 410 Pa. 160, 164, 189
A.2d 255,258 (1963)). The many phone calls between Armstrong and Lester Womack,
and the surveillance evidence of the two men together while Armstrong was holding a
white bag, demonstrate that these men formed a conspiracy to commit PWID and corrupt
organizations. s Moreover, Womack committed an overt act in Delaware County in
furtherance of the conspiracy by storing drugs and money in a house in Darby.
Therefore, it was permissible to try Armstrong in Delaware County on the conspiracy
charges. Fithian, supra. And as a consequence of bringing a conspiracy prosecution in
Delaware County, it became necessary to try him in the same case on all other
substantive charges arising from the same facts as the conspiracy charges (i.e., corrupt
organizations, PWID, dealing in proceeds of unlawful activity, criminal use of
communication facilities), because a separate trial on the substantive charges would have
violated Armstrong's double jeopardy rights and the rule of compulsory joinder
embodied in 18 Pa.C.S. § 1106 .
5 The evidence certainly demonstrated that other men took part in the conspiracy, but for purposes of this
issue, it only is necessary to focus on Armstrong and Womack.
6 It was not necessary, however, to join Lester Womack as a defendant in this case. Pennsylvania does not
require all conspirators to be joined as defendants in one trial. Commonwealth v. Fremd, 860 A.2d 515,
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IV. ARMSTRONG'S CHALLENGES TO THE SUFFICIENCY OF THE
EVIDENCE
Armstrong raises a multitude of challenges to the sufficiency of the evidence.
The standard 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 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. Knox, 50 A.3d 749, 754 (Pa. Super. 2012).
First, Armstrong argues that the evidence was insufficient to convict him of
PWID, because the evidence did not show that he possessed any cocaine or delivered
cocaine to anyone, or that Womack had any cocaine to give to Armstrong. Concise
Statement, ~ 1(c).
Circumstantial evidence alone can prove possession of narcotics. Commonwealth
v. Carpio-Santiago, 14 A.3d 903, 907 (Pa. Super. 2011). For example, in Commonwealth
v. Leskovic, 227 Pa. Super. 565, 307 A.2d 357 (1973), several witnesses testified that the
defendants sold them drug capsules, and one witness described the physical appearance
of the capsules. A pharmacist testified that the drug in question came in capsules that
met the physical description the witness provided. A urine test conducted on a witness,
521 (Pa. Super. 2004) (defendant could be convicted of conspiracy, even though he was the only person
charged with the conspiracy and none of the alleged co-conspirators were charged).
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who testified to having purchased the drug from the defendants, revealed traces of the
drug in question. The Superior Court held that even without chemical analysis of the
actual capsules, the totality of the evidence was enough to sustain a conviction for
dispensing dangerous drugs. Id., 307 A.2d at 358.
Similarly, in this case, the Commonwealth produced sufficient circumstantial
evidence to demonstrate beyond a reasonable doubt that Armstrong was guilty of PWID.
Over a two week period in September and October of 2011, police officers recorded
numerous conversations between Armstrong and Womack discussing the amount to
charge third persons for sales of cocaine. They also negotiated what Armstrong would
charge for selling cocaine to Womack. Police also observed Armstrong in Philadelphia
carrying a white bag in Womack's presence following a meeting in a bar. Womack
stored drugs and money from drug sales in his Philadelphia residence and his mother's
house in Darby, Pennsylvania, asked Armstrong to help him count money from drug
sales, and referred to Armstrong as his "right-hand man." Armstrong agreed to sell
cocaine to Womack for $2,500 and also stated that he had made $500 for selling a half
ounce. Viewed in the light most favorable to the Commonwealth, this evidence
establishes that Armstrong was guilty ofPWID.
Second, Armstrong asserts that there was insufficient evidence that he actually
possessed cocaine due to lack of laboratory analysis or other type of identification (or that
it weighed 4.5 ounces). Concise Statement, , l(d).
The Commonwealth did not present any evidence that controlled substances were
found in Armstrong's residence or on his person. Nor did the Commonwealth present
any laboratory analysis of the cocaine that Armstrong sold. Nevertheless, as discussed
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above in the analysis of subject matter jurisdiction on pages 12-17, the Commonwealth
produced sufficient circumstantial evidence which, viewed in the light most favorable to
the Commonwealth, establishes that he was in possession of cocaine. This conclusion
hardly seems startling: the Commonwealth can utilize circumstantial evidence to prove
murder without finding the victim's body,? so it certainly can prove PWID without
producing or testing the alleged controlled substance.
Third, Armstrong claims that the Commonwealth failed to establish the corpus
delicti ofPWID prior to introducing Armstrong's statements. Concise Statement, ~ l(e).
The corpus delicti rule guards against "the hasty and unguarded character which
is often attached to confessions and admissions and the consequent danger of a
conviction where no crime has in fact been committed." Commonwealth v. Friend, 717
A.2d 568, 569-70 (Pa. Super. 1998). Admission of such statements requires proof by a
preponderance of the evidence that a crime has been committed. Id. (citing
Commonwealth v. Reyes, 545 Pa. 374,681 A.2d 724, 727 (1996). The corpus delicti may
be established by circumstantial evidence. Id.Importantly, the corpus delicti rule does not require the Commonwealth to present
evidence in any particular order. In Friend, the defendant argued that the trial court erred
by admitting his admission before other evidence of crime. The Superior Court
responded:
The corpus delicti rule is not one of constitutional dimension, dealing with the
quantity of evidence known at the time of the statement, nor is it a question of
7See Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552, 554-55 (1963) (circumstantial evidence,
including a complete interruption and cessation in the activities and contacts with other individuals of
vigorous 49-year-old woman who was last seen by a friend lying motionless on the floor with blood on her
head in the house in which she had been living with a man not her husband, sufficiently established corpus
delicti in prosecution for flrst degree murder of the woman although neither the woman's body nor any part
thereof was ever found).
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custody or investigative permissibility. The rule is one of trial evidence. It is not
designed to circumscribe the gathering of evidence. Its applicability turns on the
quantity of evidence, not the order of its gathering ... That appellant's admissions
were introduced before the corpus delicti was completely satisfied is immaterial,
as the Commonwealth ultimately fulfilled that burden.
Id., 717 A.2d at 572.
The same reasoning applies here. Regardless of the order in which the
Commonwealth presented its evidence, it ultimately satisfied the corpus delicti with
circumstantial evidence of Armstrong's possession of cocaine and his conspiracy with
Womack to sell crack.
Fourth, Armstrong challenges the wording of the verdict slip. Count 9 of the
verdict slip stated "possession with intent to deliver. . .4.5 ounces." N.T., 3125/13, p. 52.
Armstrong argues that the reference to 4.5 ounces of cocaine on the verdict slip made this
amount an element of the offense which the Commonwealth had to prove beyond a
reasonable doubt. Concise Statement, ~ l(f).
Armstrong is incorrect. The amount of cocaine is not an element of PWID, so it
was not compulsory for the Commonwealth to prove the amount in order to convict
Armstrong of PWID. 8 PWID requires proof that the defendant "both possessed the
controlled substance and had an intent to deliver that substance." Kirkland, 831 A.2d at
611. The amount of the controlled substance is not "crucial to establish an inference of
possession with intent to deliver, if ... other facts are present." Watley, supra, 2013 WL
6164340, at *4-5 (citing Commonwealth v. Ratsamy, 594 Pa. 176, 934 A.2d 1233, 1237
(2007). The totality of the circumstances can provide sufficient evidence to support a
8 However, as discussed infra on pages 35-37, the Commonwealth did have to prove the amount of cocaine
beyond a reasonable doubt in order to increase Armstrong's mandatory minimum sentence for PWID. This
did not occur -- so while there is sufficient evidence for Armstrong's PWID conviction to stand, there is
insufficient evidence to affirm his mandatory minimum sentence for PWID.
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PWID conviction. Id. at *5. In this case, for the reasons given above, the evidence was
more than adequate to establish Armstrong's guilt for this offense.
Inclusion of "4.5 ounces" on the verdict slip does not change this result, because
the Court's jury instructions on the elements of PWID were proper. The verdict slip
merely "exists to record the result of the jury's deliberation; it is not the deliberation
itself, and the jury's deliberation is guided by the court's charge." Commonwealth v. Ali,
608 Pa. 71,10 A.3d 282,311 (2010); see also id., 10 A.3d at 313 ("the verdict slip exists
merely to record the jury's conclusion after it has deliberated. The verdict slip does not
frame deliberations; the court's charge does"). The Court instructed the jury that PWID
requires proof of four elements: (1) the item is a controlled substance; (2) Armstrong
possessed the item; (3) he was aware of the item's presence and that it was a controlled
substance; and (4) he had the specific intent to deliver it to at least one other person.
N.T., 3/25/l3, pp. 19-20, 42-44. These instructions accurately reflected the elements of
PWID prescribed under Pennsylvania law. Devine, supra. Thus, the verdict of guilt was
proper, notwithstanding the inclusion of"4.5 ounces" on the verdict slip.
Fifth, Armstrong insists that there was insufficient evidence to convict him of
corrupt organizations due to the absence of evidence that he participated in an
enterprise's affairs through a pattern of racketeering activity, or that he engaged in two
predicate crimes. Concise Statement, ~ 1(g). The discussion above demonstrates that the
Commonwealth satisfied all elements of corrupt organizations. There was sufficient
evidence ofPWID and conspiracy to commit PWID (pp. 12-13,19, supra), and there was
circumstantial evidence of dealing in proceeds of unlawful activities and conspiracy to
deal in such proceeds (pp. 13-14, supra, and p. 24, infra).
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Sixth, Armstrong contends that -there was insufficient evidence to convict him of
dealing in proceeds of unlawful activities under 18 Pa.C.S. § 5111(a), because there was
no evidence that he engaged in a financial transaction but only that he might have helped
one of them count money. Concise Statement, ~ 1(h). As discussed above, during a two
week period in September and October of 2011, police officers recorded numerous
conversations between Armstrong and Lester Womack discussing the amount to charge
third persons for sales of cocaine. Many conversations took place after police observed
Armstrong in Philadelphia carrying a bag of cocaine in Womack's presence. Armstrong
and Womack also negotiated what Armstrong would charge for selling cocaine to
Womack.
Critically, during one conversation on September 30th , Armstrong admitted selling
half an ounce of cocaine for $500. Womack stored drugs and money from drug sales in
his house in Darby, Pennsylvania, asked Armstrong to help him count money from drug
sales, and referred to Armstrong as his "right-hand man."
In view of this evidence -- particularly Armstrong's admission to Womack that he
sold half an ounce of cocaine and Womack's request that Armstrong help him count
money from drug sales -- the evidence demonstrates that Armstrong participated in
monetary transactions involving the proceeds of unlawful activity, a crime under 18
Pa.C.S. § 5111.
Seventh, Armstrong complains that there was insufficient evidence to convict
him of unlawful use of a communication facility under 18 Pa.C.S. § 7512 because the
Commonwealth did not prove that any specific underlying offense occurred through use
of a communication facility. Concise Statement, ~ lei). This argument fails, because the
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evidence demonstrates that Armstrong committed PWID through the use of a
communication facility.
Commonwealth v. Moss, 852 A.2d 374 (Pa. Super. 2004), is instructive. Moss
held that because § 7512 does not have a specific scienter requirement, the mens rea for
this provision is found in 18 Pa.C.S. § 302(c), which provides: "When the culpability
sufficient to establish a material element of an offense is not prescribed by law, such
element is established if a person acts intentionally, knowingly, or recklessly with respect
thereto." Thus, to sustain a conviction under § 7512, the Commonwealth must prove that
the defendant (1) knowingly and intentionally used a communication facility; (2)
knowingly, intentionally or recklessly facilitated an underlying felony; and (3) the
underlying felony occurred. Moss, 852 A.2d at 382.
In this case, Armstrong had multiple phone conversations with Lester Womack to
knowingly or intentionally facilitate sales of drugs. Many conversations took place after
police observed Armstrong in Philadelphia carrying a bag of cocaine in Womack's
presence. Armstrong and Womack bargained with one another on the telephone about
the price to charge for drug sales. The conversations also established that both
Armstrong and Womack sold cocaine during this two week period, and that money from
these sales was stored at Womack's mother's residence in Darby. Armstrong's use of the
telephone thus played an integral role in his commission of PWID.
Eighth, Armstrong states that there was insufficient evidence to convict him of
conspiracy because the Commonwealth did not prove that he conspired with anyone else
to commit any crime. Concise Statement, ~ 1(j). The discussion above demonstrates that
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Armstrong conspired with Lester Womack to sell cocaine over the two week period in
September and October 2011.
Ninth, Armstrong states that there was insufficient evidence to establish that he
engaged in a criminal enterprise with anyone but himself or acted for the benefit of
anyone but himself, Concise Statement, ~ 1(k), or that he profited from any criminal
enterprise with anyone but himself. Concise Statement, ~ 1(1). The discussion above
demonstrates that Armstrong engaged in an enterprise with Lester Womack to sell
cocaine over the two week period in September and October 2011, and that he and
Womack both profited from this enterprise.
Tenth, Armstrong makes the following boilerplate objections: there was
insufficient evidence that he possessed a controlled substance (Concise Statement, ~
1(m»; there was insufficient evidence to convict him of any crime (Concise Statement, ~
l(n»; the jury ignored exculpatory evidence which was inconsistent with guilt (Concise
Statement, ~ l(q»; there was a lack of sufficient specificity as to time, date, place and
actions to support any conviction (Concise Statement, ~ 1(r»; and the evidence was
insufficient to sustain the verdict (Concise Statement, ~ 1(u». The discussion above
rebuts these objections.
Eleventh, Armstrong claims that he was not properly identified as a speaker in
any of the taped phone conversations due to the Commonwealth's failure to present an
expert witness in voice identification (Concise Statement, ~ 1(0». He further insists that
the audiotapes did not establish his involvement in any crime (Concise Statement, ~ 1(P».
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Pennsylvania Rule of Evidence 901 provides in pertinent part:
Requirement of authentication or identification
(a) General provision. The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the
following are examples of authentication or identification conforming with the
requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is
claimed to be.
***
(5) Voice identification. Identification of a voice, whether heard firsthand or
through mechanical or electronic transmission or recording, by opinion based upon
hearing the voice at any time under circumstances connecting it with the alleged
speaker.
(6) Telephone conversations. Telephone conversations, by evidence that a call was
made to the number assigned at the time by the telephone company to a particular
person or business, if (A) in the case of a person, circumstances, including self-
identification, show the person answering to be the one called, or (B) in the case of
a business, the call was made to a place of business and the conversation related to
business reasonably transacted over the telephone.
Under Rule 901(b)(5) and (6), a witness may make an identification by voice alone, and
expert testimony is not necessary for voice identification. Commonwealth v. Jones, 954
A.2d 1194, 1197 (Pa. Super. 2008). Identification by voice goes to the weight of the
evidence, not its sufficiency. Id.The Superior Court has held several times that audio recordings were admissible
on the basis of a police officer's testimony that he spoke with the defendant and
recognized the defendant's voice on the audio recording. Commonwealth v. Serrano, 61
A.3d 279, 291 (Pa. Super. 2013) (sufficient foundation supported admission of recorded
telephone conversations between defendant and co-defendant in drug prosecution; agent
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of the Pennsylvania Office of the Attorney General testified that the telephone number
was registered to defendant and that he had personally spoken with defendant and
recognized the voice on the audio recording as belonging to defendant); Commonwealth
v. Starks, 304 Pa. Super. 527, 450 A.2d 1363, 1364-1365 (1982) (finding adequate
foundation for admission of tape recordings where the interviewing detective identified
the tape in its original physical form, and identified the voices and the opening contents
of the recording).
Notably, Pa.R.E. 901(a) and (b) are identical with Federal Rule of Evidence
901(a) and (b). The cases under F.R.E. 901 permit voice identification on the basis oflay
testimony from law enforcement personnel. See United States v. Lampton, 158 F.3d 251,
259 (5th Cir. 1998) (FBI Agent could identify voice on tape through hearing voice "in
prior personal contact"); United States v. Saulter, 60 F.3d 270,276 (7th Cir. 1995) (voice
identification may be made based on "minimal familiarity"; hearing voice on two prior
occasions sufficient to allow witness to identify speaker on tape); United States v. Vitale,
549 F.2d 71, 73 (8th Cir. 1977) (undercover police officer properly allowed to identify
voice on incoming telephone call on basis of three other conversations with person,
where two of these occurred in "face-to-face meetings"); United States v. Watson, 594
F.2d 1330, 1335 (lOth Cir. 1979) (witness had three "face-to-face conversations" with
defendant, one extending "over half an hour"; these sufficed as basis for voice
identification).
Under these authorities, the Court properly admitted the audio recordings of
Armstrong's conversations with Womack into evidence. Agent Kelly testified that he
recognized Armstrong's voice on these recordings because he spoke with Armstrong
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after his arrest. N.T., 3/20/13, pp. 91-92, 97-98. Although expert testimony and
scientific evidence might have been helpful, it was not essential to admission of the audio
recordings.
IV. ARMSTRONG'S CHALLENGE TO THE WEIGHT OF THE EVIDENCE
Armstrong argues that the verdict was against the weight of the evidence because
the jury lumped him together with other drug traffickers such as Womack, and because
the Commonwealth "speculated" on his involvement. Concise Statement, ~ l(S, T).
An allegation that the verdict is against the weight of the evidence
is addressed to the discretion of the trial court. Our Supreme Court has explained
that 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. A motion for new trial on the grounds that the verdict is contrary to the
weight of the evidence, concedes that there is sufficient evidence to sustain the
verdict. Titus, tlte trial court is under no obligation to view tlte evidence in tlte
ligltt most favorable to tlte verdict winner. 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 to prevail. Stated another way, and as the trial court noted, this Court
has explained that the evidence must be so tenuous, vague and uncertain that the
verdict shocks the conscience of the court.
Commonwealth v. Sullivan, 820 A.2d 795, 805-806 (Pa. Super. 2003), appeal denied,
574 Pa. 773, 833 A.2d 143 (2003) (citations and quotations omitted, emphasis in
original). The question the trial court must answer, in the sound exercise of its discretion,
is whether "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." Id., 820
A.2d at 806 (citing Commonwealth v. Widmer, 560 Pa. 308, 320, 744 A.2d 745, 752
(2000)). 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
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verdict is against the weight of the evidence. Widmer, supra, 744 A.2d at 753. "A trial
court's exercise of discretion in finding that a verdict is or is not against the weight of the
evidence is 'one of the least assailable reasons for granting or denying a new trial.' "
Sullivan, supra, 820 A.2d at 806 (citing Widmer, supra, 744 A.2d at 753). The Court
abuses its discretion when 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.
Widmer, 744 A.2d at 753. Discretion is abused where it is not exercised on a foundation
of reason. Id.The Court finds that the verdict was consistent with the weight of the evidence.
The evidence summarized above - particularly the telephone conversations and the
officers' surveillance testimony - demonstrates that Armstrong played an integral role in
a drug dealing conspiracy that spanned Philadelphia, Delaware and Chester Counties.
The Court would have reached the same verdict as the jury had there been a bench trial.
V. ARMSTRONG'S CHALLENGE TO THE AFFIDAVIT OF PROBABLE
CAUSE APPENDED TO HIS CRIMINAL COMPLAINT
Armstrong contends that his arrest "was based on faulty information provided to
the Court by the Commonwealth...thus his arrest was illegal, jurisdiction over him was
improper and his entire prosecution illegal." Concise Statement, ~ 4. Armstrong has
waived this argument by failing to raise it with sufficient specificity in his concise
statement. Lemon, supra, 804 A.2d at 37. The affidavit appended to the criminal
complaint is 25 pages long, most of it single-spaced. Due to the absence of detail in the
concise statement, the Court cannot pinpoint the "information" in the lengthy affidavit
that Armstrong believes is "faulty".
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Moreover, in order to invalidate an arrest warrant, a misstatement of fact in the
affidavit must be both material and deliberate. Commonwealth v. Bradshaw, 290 Pa.
Super. 162,434 A.2d 181 (1981). A misstatement in an affidavit is immaterial if deletion
of the misstatement would still leave sufficient facts to establish probable cause.
Commonwealth v. Wiggins, 239 Pa. Super. 256, 361 A.2d 750, 753 (1976). Here,
Armstrong fails to allege that (or explain why) the alleged misstatements in the affidavit
are material. Therefore, it is impossible for the Court to delve into this issue further.
VI. ARMSTRONG'S CHALLENGE TO TRANSCRIPTS OF INTERCEPTED
TELEPHONE CONVERSATIONS
Armstrong complains that the jury viewed transcripts of his conversations with
Womack, even though the transcripts were not authenticated by the person who prepared
them or anyone else, and then viewed the transcripts again after the close of testimony.
Concise Statement, ~ 5. Based on Commonwealth v. Bango, 560 Pa. 84,742 A.2d 1070(1999), the Court rejects Armstrong's argument.
In Bango, a PWID case, the prosecution played 53 tape-recorded conversations to
the jury during the defendant's trial. The state trooper who had prepared transcripts for
each conversation testified as to whose voices were on the tapes and the substance of the
conversations. The trial court cautioned the jury that the tapes, and not the transcripts,
were the actual evidence, and that the only purpose for the transcripts was to aid the jury
in following the taped conversations. During deliberations, the jury asked the court for
permission to review the tape recordings and the transcripts. The court allowed the
transcripts to go out with the jury but warned them again that the tapes were the evidence
instead of the transcripts, and that the transcripts were only "to help you identify what
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tape it is you are looking for and listening to and guide you somewhat as to what you are
hearing."
The Supreme Court held that trial court's decisions concerning the transcripts
were proper. The Supreme Court first observed that "there are some items that the jury is
never permitted to take with it during its deliberations, [such as] transcripts of any trial
testimony, copies of any written or otherwise recorded confessions by the defendant,
copies of the information, and written jury instructions." Id., 742 A.2d at 88-89 (citing
Pa.R.Crim.P. 1114(2)t The transcripts of the tape recordings "do not fall into any of the
categories of items specifically prohibited either by Pa.R.Crim.P. 1114(2) or by case
law." Id. at 89. The Supreme Court then determined that the trial court acted within its
discretion in permitting use of the transcripts:
Here, in light of the meticulous care taken by the trial court to ensure that the jury
understood that the transcripts were to be used only as guideposts and not as
verbatim translations, we cannot characterize the trial court's decision to permit
the jury to use the transcripts as manifestly unreasonable .. .It is axiomatic that a
trial is a search for the truth. The jury should be assisted, not hindered, in
conducting that search. Here, it is plain that the jury was seeking a complete
understanding of how the voluminous evidence related to the specific crimes with
which appellant was charged. After two hours of deliberation, the jury asked for
the name of each person involved with appellant in each count as well as the tapes
and transcripts pertaining to those counts. The trial court properly realized that the
transcripts could serve as an index to the tapes, assisting the jurors in finding
those tapes that they wished to replay and allowing them to more easily correlate
which of the seventeen recorded voices they were listening to with the
corresponding counts charged against appellant. Not only did the trial court
appropriately instruct the jurors that they could review the transcripts for these
narrowly circumscribed purposes, but the court also clearly instructed the jury that
they, as jurors, were independently responsible for ascertaining the content of the
tapes. Under these somewhat daunting factual circumstances, with the jury
attempting to match a large number of unfamiliar tape-recorded voices to an even
larger number of counts describing disparate incidents of narcotics trafficking, the
trial court prudently addressed the situation by permitting the jury to use the
transcripts as limited guideposts to the recordings. Far from exhibiting manifest
unreasonableness, the trial court's decision was grounded in common sense and
9 In 2000, Rule 1114 was renumbered as Pa.R.Crim.P. 646.
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allowed the jury to evaluate and weigh the evidence in an efficient and reliable
manner.
Id. at 89-90.
This case is on point with Bango. Like the trooper in Bango, Agent Kelly listened
to the telephone calls between Armstrong and Womack and authenticated the transcripts
of the recordings. N.T., 3/20/13, pp. 54-55. Then, like the trial court in Bango, this
Court instructed the jury that the transcripts were simply an "aid to you in determining
the content of the telephone conversations. It's very important that you remember,
however, that the evidence in this case is the telephone conversation that was recorded
and not the transcription. The transcription is provided simply as an aid for you in
listening and discerning the content of the conversations." N.T., 3/20/13, p. 56. The
Court added that "the same instructions pertain to each transcription that will be provided
to you." N.T., 3/20/13, p. 56. Later, during deliberations, the jury asked to see a
transcript concerning when Armstrong said he had four ounces that he cooked and lost 28
grams but made $500. N.T., 3/25/13, p. 45. The Court permitted the jury to see the
transcripts of several conversations relating to this issue but stated:
However, I need to caution you to remember, and this is a very important point,
that these transcripts are not evidence in the case. They are aids to enhance your
understanding of the telephone calls, the audio calls which are the evidence in the
case. And you must be very careful to regard them for that limited purpose only.
Therefore, while you can certainly have the transcripts of the sessions that counsel
and I believe reflect your inquiry, the evidence itself is the audiotape.
N.T., 3/25/13, pp. 45-46.
Permitting the jury to view the transcripts during the presentation of evidence and
deliberations was well within the Court's discretion. As in Bango, there were dozens of
phone conversations between Armstrong, Womack and others, so the jury needed the
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transcripts as guideposts to follow who was talking, when they were talking, and what
they were talking about. Moreover, the Court repeatedly cautioned the jury that they
could only use the transcripts as guideposts, and that the audio recordings were the actual
evidence, and that it was the jury's duty to decide the actual content of the conversations.
This procedure made sense under the circumstances by permitting the jury to evaluate the
evidence in an efficient and reliable manner.
VII. ARMSTRONG'S CHALLENGE TO THE JURY INSTRUCTIONS
Armstrong contends that the Court instructed the jury "that cocaine was a
controlled substance, and that that element of the crime had been established, when in
fact the substance possessed by [Armstrong], if any, was in dispute and was a fact that
had to be determined by the factfinder beyond a reasonable doubt. In effect, the jury was
instructed that [Armstrong] possessed cocaine." Concise Statement, ~ 6.
Armstrong waived this issue by failing to object to the jury instructions relating to
possession of cocaine or PWID. N.T., 3125113, pp. 35, 40-41 (Court asks whether
defense counsel has any objections, but Armstrong's counsel does not object to
instructions on possession or PWID). Armstrong waived this objection by failing to
lodge an objection before jury deliberations. Pa.R.Crim.P. 647(B); Commonwealth v.
Dorm, 947 A.2d 1284, 1288 (Pa. Super. 2009).
In any event, Armstrong is incorrect. Although the Court told the jury that
cocaine is a controlled substance, N.T., 3/25/13, pp. 19-20, the Court instructed that they
jury had to find three additional elements before finding Armstrong guilty of PWID: (a)
Armstrong possessed the substance; (b) he was aware of the item's presence and that it
was a controlled substance; and (c) he had the specific intent to deliver it to at least one
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other person. N.T., 3/25/13, p. 20. Thus, the Court left it to the jury to determine
whether Armstrong actually possessed cocaine. The Court did not in effect instruct the
jury that Armstrong possessed cocaine.
VIII. ARMSTRONG'S CHALLENGE TO VALIDITY OF HIS SENTENCE
Armstrong argues that the Court improperly sentenced him on Count 9 (PWID) to
a mandatory minimum of six years imprisonment10 , because there was insufficient
evidence that (a) he possessed over 100 grams of cocaine; (b) the weight of uncut cocaine
was over 100 grams; and (c) he possessed all 100+ grams of uncut cocaine with intent to
deliver them. Concise Statement, ~ 7. The Court concludes that Armstrong's PWID
sentence is invalid under Alleyne v. United States, -- U.S. --, 133 S.Ct. 2151, 186 L.Ed.2d
314 (2013), a Sixth Amendment decision entered one month after Armstrong's sentence.
Alleyne held that where an "aggravating fact" increases a mandatory minimum
sentence, "the fact is an element of a distinct and aggravated crime. [The fact] must,
therefore, be submitted to the jury and found beyond a reasonable doubt." Id., 133 S.Ct.
at 2162-63 (emphasis added). In this case, the Commonwealth charged Armstrong with
possession of 4.5 ounces of cocaine with intent to deliver; the verdict slip stated the
amount of 4.5 ounces; the jury found him guilty of PWID; and the Court imposed a
minimum sentence of seven years based on its belief that the evidence was sufficient to
require this enhancement ll . Unfortunately, the Court did not instruct the jury that the
amount of 4.5 ounces is an element of PWID, or that the jury had to find this amount
10 The Court actually sentenced Armstrong to 7-14 years imprisonment. N.T., 5/6/13, p. 25.
11 There is no mandatory minimum for PWID when the amount of cocaine is less than two grams. 18
Pa.C.S. § 7508(a)(3). When the Commonwealth proves that amount involved is at least 100 grams, and
when the defendant has at least one conviction for another drug trafficking offense at the time of sentencing
(as Armstrong had here), the mandatory minimum is seven years imprisonment. 18 Pa.C.S. §
7508(a)(3)(iii).
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beyond a reasonable doubt. Consequently, the Court lacked the authority to increase
Armstrong's sentence to a mandatory minimum of 7 years. Id.
This Court has the authority to raise Alleyne sua sponte even though Armstrong
failed to mention Alleyne in his concise statement. Questions about the legality of
Armstrong's sentence are not waivable and may be raised sua sponte by courts on direct
appeal. Watley, supra, 2013 WL 6164340, at *7. Moreover, a decision announcing a
new constitutional rule of criminal procedure must be applied retroactively to all cases
pending on direct appeal. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93
L.Ed.2d 649 (1987); Commonwealth v. Roney, 581 Pa. 587, 866 A.2d 351, 359 n. 32
(2005) (challenge to sentence premised upon Apprendi v. New Jersey, 530 U.S. 466(2000), implicates the legality of that sentence and cannot be waived on direct appeal).
The proper remedy under these circumstances is to vacate the sentences for all of
Armstrong's convictions and to remand so that this Court has the opportunity to
restructure its entire sentencing scheme. Commonwealth v. Goldhammer, 512 Pa. 587,
593, 517 A.2d 1280, 1283-84 (1986); Commonwealth v. Williams, 871 A.2d 254, 266
(Pa.Super.2005) (citing, inter alia, Goldhammer, supra, in remanding for re-sentencing
because trial court's overall sentencing scheme had been disrupted by appellate court's
determination that imposition of separate sentences under two different provisions of
Motor Vehicle Code was improper in this driving under the influence case);
Commonwealth v. Sutton, 400 Pa.Super. 291, 583 A.2d 500, 502 (1990) (citing
Goldhammer, supra, for proposition that "the proscriptions against double jeopardy do
not prevent us from remanding for re[-]sentencing on all bills of information where our
vacation of various related counts has upset the trial court's sentencing scheme");
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Commonwealth v. Vanderlin, 398 Pa.Super. 21, 580 A.2d 820, 831 (1990) (reiterating
that where appellate court cannot determine whether its vacation of sentence on one
count would affect trial court's sentencing on remaining counts, trial court must be given
opportunity on remand to reconsider sentencing). Alleyne precludes sentencing
Armstrong to mandatory minimum sentences for any count, because the jury did not find
any aggravating factors beyond a reasonable doubt. On the other hand, the Court has the
discretion to impose sentences of appropriate length for all counts of conviction under
non-mandatory minimum principles in order to structure the proper penalty for
Armstrong's crimes.
For these reasons, the Court's decisions on all non-Alleyne issues should be
affirmed, but this case should be remanded for resentencing on all counts of conviction.
BY THE COURT:
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