Com. v. Speaks, Jr., E.

J-S11014-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EZRA SPEAKS, JR.
Appellant No. 836 MDA 2014
Appeal from the Judgment of Sentence March 25, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0005425-2012
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J. FILED APRIL 06, 2015
Appellant, Ezra Speaks, Jr., appeals from the judgment of sentence
entered March 25, 2014, by the Honorable Richard A. Lewis, Court of
Common Pleas of Dauphin County. We affirm Speaks’s convictions, but
vacate the judgment of sentence and remand for re-sentencing.
For a detailed account of the underlying facts and procedural history in
this matter, we direct the reader to pages one through nine of the trial
court’s September 11, 2014, memorandum opinion. Briefly, the police
arrested Speaks after a confidential informant facilitated the controlled
purchase from Speaks of crack cocaine. Thereafter, a jury convicted Speaks
of delivery of a controlled substance,1 conspiracy to commit delivery of a
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1
35 P.S. 780-113(a)(30).
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controlled substance,2 and criminal use of a communication facility.3 On
March 25, 2014, the trial court sentenced Speaks to an aggregate term of
three to six years’ imprisonment. Upon motion by the Commonwealth, the
court imposed a mandatory $10,000.00 fine pursuant to 18 Pa.C.S.A. §
7508(a)(2)(i), based upon the jury’s finding that Speaks had delivered an
amount of cocaine in excess of two grams. Speaks filed a timely Post-
Sentence Motion to Preserve Issues and Motion for New Trial or Arrest of
Judgment, which the trial court denied following a hearing. This timely
appeal followed.
Speaks raises the following issues for our review.
1. Whether the trial court erred in sentencing appellant to an
illegal sentence where it sentenced appeallant [sic] to a
mandatory minimum sentence pursuant [sic] to [18 Pa.C.S.A.
§ 7508(a)(2)(i)]?
2. Whether the trial court erred in denying appellant’s post-
sentence motion for arrest of judgment where the jury verdict
of guilty on the charges of: unlawful deliver of a controlled
substance, criminal conspiracy to unlawful delivery of a
controlled substance and criminal use of a communication
facility was against the weight of the evidence, because the
Commonwealth failed to present testimony that an agent of
the Attorney General’s office personally observed appellant
deliver drugs for money; there was no video or photo
surveillance that showed appellant made an unlawful delivery,
and where the wiretap recording presented during trial was
inaudible, such that a transcript needed to be provided to the
jury so that they could understand what was being said?
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2
18 Pa.C.S.A. § 903.
3
18 Pa.C.S.A. § 7512(a).
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Appellant’s Brief at 5 (unnecessary capitalization and underlining removed).
In his first issue on appeal, Speaks correctly notes that the trial court
imposed a mandatory minimum sentence pursuant to 18 Pa.C.S.A.
7508(a)(2)(i), based upon the jury’s finding that the cocaine involved in the
transaction exceeded 2.0 grams. As the parties and trial court are by now
aware, this Court has recently held that § 7508 is facially invalid pursuant to
the Supreme Court of the United States’ decision in Alleyne v. United
States, ___ U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). See
Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014). The
Commonwealth rightly concedes this issue in its brief. See Commonwealth’s
Brief at 10. Furthermore, this issue cannot be waived. See
Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc)
(holding that violations of Alleyne could not be waived). We therefore
vacate the judgment of sentence in its entirety and remand for re-
sentencing. See Commonwealth v. Goldhammer, 517 A.2d 1280, 1283-
1284 (Pa. 1986).
Speaks additionally argues that the jury’s verdict was against the
weight of the evidence presented. Our standard of review is as follows:
The finder of fact is the exclusive judge of the weight of the
evidence as the fact finder is free to believe all, part, or none of
the evidence presented and determines the credibility of the
witnesses.
As an appellate court we cannot substitute our judgment for that
of the finder of fact. Therefore, we will reverse a jury’s verdict
and grant a new trial only where the verdict is so contrary to the
evidence as to shock one’s sense of justice. A verdict is said to
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be contrary to the evidence such that it shocks one’s sense of
justice when “the figure of Justice totters on her pedestal,” or
when “the jury’s verdict, at the time of its rendition, causes the
trial judge to lose his breach, temporarily and causes him to
almost fall from the bench, then it is truly shocking to the
judicial conscience.”
Furthermore, where the trial court has ruled on the weight claim
below, an appellate court’s role is not to consider the underlying
question of whether the verdict is against the weight of the
evidence. Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013)
(quoting Commonwealth v. Cruz, 919 A.2d 279, 281-82 (Pa. Super.
2007)) (citations omitted). It is up to the jury to weigh the evidence,
determine its credibility, and believe all, part, or none of it. See
Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa. Super. 2003).
Instantly, the trial court specifically concluded that the “testimony of
the parties who personally observed the events of August 21, 2012 and
personally participated in the [controlled purchase] transaction is not so
unreliable or contradictory so as to shock the court’s sense of justice and
require the grant of a new trial.” Trial Court Opinion, 9/11/14 at 12. In
light of the extensive corroborating evidence presented at trial and the
testimony of the drug task force agents and of the confidential information
who facilitated the drug transaction, as credited by the jury, we find no
abuse of discretion in the trial court’s conclusion. See id. at 11-12.
Accordingly, Speaks’s weight of the evidence claim merits no relief.
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Convictions affirmed. Judgment of sentence vacated. Case remanded
for re-sentencing consistent with this memorandum. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2015
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