Com. v. Simpson, D.

J-A10013-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONALD E. SIMPSON
Appellant No. 1556 MDA 2014
Appeal from the Judgment of Sentence August 6, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002214-2012
BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 24, 2015
Appellant, Donald E. Simpson, appeals from the judgment of sentence
entered in the Dauphin County Court of Common Pleas, following his jury
trial convictions for possession of a controlled substance with the intent to
deliver (“PWID”) and possession of drug paraphernalia.1 We affirm
Appellant’s convictions but vacate and remand for resentencing.
The trial court opinion sets forth the relevant facts and procedural
history of this case.2 Therefore, we have no need to restate them.
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1
35 P.S. § 780-113(a)(30), (32).
2
Appellant timely filed a post-sentence motion on Monday, August 18, 2014,
which the court denied on August 20, 2014. Appellant timely filed a notice
of appeal on September 17, 2014. The next day, the court ordered
Appellant to file a concise statement of errors complained of on appeal
(Footnote Continued Next Page)
J-A10013-15
Appellant raises three issues for our review:
WHETHER THE TRIAL COURT ILLEGALLY SENTENCED
APPELLANT TO A MANDATORY MINIMUM SENTENCE OF
THREE (3) YEARS’ INCARCERATION PURSUANT TO 18
PA.C.S.A. § 7508(a)(3)(i) AND 7508(b) WHERE THE
STATUTE AT ISSUE―18 PA.C.S.A. § 7508―IS
UNCONSTITUTIONAL AS A WHOLE SINCE IT VIOLATES
APPELLANT’S RIGHT TO A JURY TRIAL UNDER ARTICLE I,
SECTION IX OF THE PENNSYLVANIA CONSTITUTION AND
THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION?
WHETHER THE COMMONWEALTH FAILED TO PRESENT
SUFFICIENT EVIDENCE TO SUSTAIN APPELLANT’S
CONVICTIONS WHERE THE COMMONWEALTH FAILED TO
PROVE THAT APPELLANT POSSESSED THE CONTROLLED
SUBSTANCE ULTIMATELY DISCOVERED IN THE VEHICLE?
WHETHER THE TRIAL COURT ERRED IN DENYING
APPELLANT’S POST-SENTENCE MOTION WHERE HIS
CONVICTIONS WERE AGAINST THE WEIGHT OF THE
EVIDENCE SO AS TO SHOCK ONE’S SENSE OF JUSTICE AS
APPELLANT WAS NEVER SHOWN TO HAVE INTENDED TO
DELIVER THE CONTROLLED SUBSTANCE HE ALLEGEDLY
POSSESSED?
(Appellant’s Brief at 6).3
“Generally, a challenge to the application of a mandatory minimum
sentence is a non-waiveable challenge to the legality of the sentence.”
Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa.Super. 2012),
appeal denied, 617 Pa. 629, 53 A.3d 756 (2012) (quoting Commonwealth
_______________________
(Footnote Continued)
pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on October 9,
2014.
3
Appellant challenges only his PWID conviction in issues two and three.
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v. Brougher, 978 A.2d 373, 377 (Pa.Super. 2009)). “Issues relating to the
legality of a sentence are questions of law, as are claims raising a court’s
interpretation of a statute. Our standard of review over such questions is de
novo and our scope of review is plenary.” Commonwealth v. Diamond,
945 A.2d 252, 256 (Pa.Super. 2008), appeal denied, 598 Pa. 755, 955 A.2d
356 (2008) (internal citations omitted).
In Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151, 186
L. Ed. 2d 314 (2013), the United States Supreme Court held that any fact
increasing the mandatory minimum sentence for a crime is considered an
element of the crime to be submitted to the fact-finder and found beyond a
reasonable doubt. Id. Here, the court imposed the three year mandatory
minimum sentence under 18 Pa.C.S.A. § 7508 for Appellant’s PWID
conviction. Section 7508(a)(3)(i) sets forth a mandatory minimum sentence
of three (3) years’ imprisonment where a defendant is convicted of PWID
(crack cocaine) when the aggregate weight of the drugs is between two and
ten grams, and the defendant has been convicted of another drug trafficking
offense. See 18 Pa.C.S.A. § 7508(a)(3)(i). Section 7508(b) of this statute
states that its provisions shall not be an element of the crime and
applicability of the statute shall be determined by the court at sentencing by
a preponderance of the evidence. 18 Pa.C.S.A. § 7508(b).
Recently, in Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.
2014) (en banc), this Court addressed the constitutionality of a mandatory
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minimum sentencing statute containing language similar to Section 7508.
This Court analyzed whether Newman’s mandatory minimum sentence was
constitutional in light of Alleyne. Relying on Alleyne, Newman held that
42 Pa.C.S.A. § 9712.1 (requiring imposition of mandatory minimum
sentence for certain drug offenses committed with firearms) can no longer
pass constitutional muster as it “permits the trial court, as opposed to the
jury, to increase a defendant’s minimum sentence based upon a
preponderance of the evidence that the defendant was dealing drugs and
possessed a firearm, or that a firearm was in close proximity to the drugs.”
Newman, supra at 98. This Court further held that the subsections of
Section 9712.1 are so “essentially and inseparably connected” that
severance of the statute is not possible, rendering the entire statute
unconstitutional. Id. at 102. Thus, this Court vacated Newman’s PWID
sentence and remanded for resentencing without imposition of the
mandatory minimum under Section 9712.1.4 See also Commonwealth v.
Cardwell, 105 A.3d 748 (Pa.Super. 2014) (holding trial court erred by
imposing mandatory minimum sentence under Section 7508, even where
parties stipulated to weight of drugs; under Newman and its progeny,
Section 7508(b) is not severable from remainder of statute; remanding for
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4
This Court also made clear that Alleyne is subject to limited retroactivity;
in other words, Alleyne is applicable only to criminal cases still pending on
direct review. Id. at 90.
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resentencing without imposition of mandatory minimum sentence).
Additionally, the Controlled Substance, Drug, Device and Cosmetic Act
defines PWID, as follows:
§ 780-113. Prohibited acts; penalties
(a) The following acts and the causing thereof within
the Commonwealth are hereby prohibited:
* * *
(30) Except as authorized by this act, the
manufacture, delivery, or possession with intent to
manufacture or deliver, a controlled substance by a
person not registered under this act, or a practitioner
not registered or licensed by the appropriate State
board, or knowingly creating, delivering or possessing
with intent to deliver, a counterfeit controlled
substance.
35 P.S. § 780-113(a)(30). To establish the offense of PWID, the
Commonwealth must prove beyond a reasonable doubt that the defendant
possessed a controlled substance with the intent to deliver it.
Commonwealth v. Jones, 874 A.2d 108, 121 (Pa.Super. 2005).
The trier of fact may infer that the defendant intended to
deliver a controlled substance from an examination of the
facts and circumstances surrounding the case. Factors to
consider in determining whether the drugs were possessed
with the intent to deliver include the particular method of
packaging, the form of the drug, and the behavior of the
defendant.
Id. (quoting Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa.Super.
2003), appeal denied, 577 Pa. 712, 847 A.2d 1280 (2004)). “[A]ll of the
facts and circumstances surrounding the possession are relevant and the
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elements of the crime may be established by circumstantial evidence.”
Commonwealth v. Little, 879 A.2d 293, 297 (Pa.Super. 2005), appeal
denied, 586 Pa. 724, 890 A.2d 1057 (2005).
“When contraband is not found on the defendant’s person, the
Commonwealth must establish constructive possession….” Jones, supra at
121 (quoting Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa.Super.
1996), appeal denied, 547 Pa. 751, 692 A.2d 563 (1997)). “Constructive
possession is the ability to exercise conscious control or dominion over the
illegal substance and the intent to exercise that control.” Jones, supra at
121 (quoting Kirkland, supra at 610). “The intent to exercise conscious
dominion can be inferred from the totality of the circumstances.” Jones,
supra at 121 (quoting Kirkland, supra at 610). “Constructive possession
may be found in one or more actors where the item [at] issue is in an area
of joint control and equal access.” Commonwealth v. Valette, 531 Pa.
384, 388, 613 A.2d 548, 550 (1992).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Deborah E.
Curcillo, we conclude that Appellant’s first issue warrants remand for
resentencing; and Appellant’s second issue merits no relief. The trial court
opinion discusses and properly disposes of these questions. (See Trial Court
Opinion, filed October 21, 2014, at 6-7) (finding: (1) parties stipulated to
weight of drugs in this case, and jury specifically answered question
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concerning weight of drugs on verdict slip; nevertheless, in light of
Newman, Section 7508 is no longer constitutional, so remand for
resentencing is appropriate;5 (2) Appellant sat in back seat of vehicle; driver
and front passenger of vehicle testified there were no drugs in backseat
before Appellant entered vehicle; Officer Roberts testified he did not see
driver or front passenger make any sudden movements to indicate they
placed drugs in backseat; Officer Roberts recovered drugs from backseat,
where Appellant had been sitting; Appellant had power to control drugs as
person closest to drugs; Commonwealth presented sufficient evidence that
Appellant constructively possessed drugs recovered from vehicle).
Accordingly, we affirm Appellant’s PWID conviction, on the basis of the trial
court’s opinion, and agree with the court that resentencing is necessary
without imposition of the mandatory minimum sentence under Section 7508.
In his third issue, Appellant argues that the plastic baggies Officer
Roberts recovered on his person were not used to package drugs, but were
sandwich baggies Appellant had in his pocket from his job earlier that day as
a cook at Kentucky Fried Chicken (“KFC”). Appellant asserts the money
Officer Roberts recovered on his person likewise had nothing to do with
drugs, but was money Appellant obtained from his paycheck the previous
day. Appellant emphasizes that an earlier court order required the
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5
The Commonwealth agrees this Court should remand for resentencing
without imposition of the mandatory minimum sentence.
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Commonwealth to return the money recovered from Appellant’s person
because Appellant proved it came from his paycheck. Appellant contends
that even if he possessed the drugs at issue, the Commonwealth failed to
demonstrate that he intended to deliver the drugs. Appellant concludes the
jury’s PWID verdict was against the weight of the evidence, and this Court
should grant appropriate relief. We disagree.
When examining a challenge to the weight of the evidence, our
standard of review is as follows:
The weight of the evidence is exclusively for the
finder of fact who is free to believe all, part, or none
of the evidence and to determine the credibility of
the witnesses. An appellate court cannot substitute
its judgment for that of the finder of fact. Thus, we
may only reverse the…verdict if it is so contrary to
the evidence as to shock one’s sense of justice.
Moreover, 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. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S. Ct. 2906, 159 L. Ed. 2d 816 (2004)
(internal citations omitted). A “trial court’s denial of a motion for a new trial
based on a weight of the evidence claim is the least assailable of its rulings.”
Commonwealth v. Rivera, 603 Pa. 340, 363, 983 A.2d 1211, 1225
(2009), cert. denied, 560 U.S. 909, 130 S. Ct. 3282, 176 L. Ed. 2d 1191
(2010).
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Instantly, Appellant preserved his challenge to the weight of the
evidence in a timely filed post-sentence motion, which the court denied on
August 20, 2014. At trial, the jury heard testimony from the
Commonwealth’s expert witness, Chief John Goshert. The trial court
summarized Chief Goshert’s testimony as follows:
In this case, Chief Goshert testified as an expert that [in]
most situations where there are drugs and small baggies,
the person in possession of the drugs intends to deliver
them. In our case, there was one bag of crack cocaine
along with several bags commonly used to package drugs.
The incident occurred in a high drug trafficking area of
Harrisburg City. The lack of drug use paraphernalia is also
evidence of intent to deliver, as someone who intended to
use the drugs would generally have some sort of pipe on
[him]. [Appellant] had no such device. Further, the
amount of crack cocaine indicates likelihood of delivery.
Most users have one dose of the drug on them as opposed
to several. Per Chief Goshert, the street value of the crack
cocaine found in the vehicle was roughly $500, a fairly
significant amount of cocaine to carry around if it were
merely for personal use.
(Trial Court Opinion at 8-9). In his defense, Appellant testified, inter alia:
(1) the drugs recovered from the vehicle were not his; (2) the sandwich
baggies recovered from his person were solely related to his employment at
KFC; (3) the money recovered from his person was legitimate income from
his paycheck, which Appellant received the day before; and (4) the court
previously ordered the Commonwealth to return the money recovered from
Appellant’s person after Appellant proved the money came from his
paycheck.
The jury was free to reject Appellant’s testimony and accept as true
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testimony from the Commonwealth’s witnesses that Appellant constructively
possessed the drugs at issue with the intent to deliver. See Champney,
supra. We see no reason to disrupt the trial court’s decision to deny
Appellant’s weight claim. See Rivera, supra; Champney, supra.
Accordingly, we affirm Appellant’s convictions, but vacate and remand for
resentencing without imposition of the mandatory minimum sentence under
Section 7508.
Judgment of sentence vacated; case remanded for resentencing.
Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2015
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