Com. v. Parker, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL PARKER
Appellant No. 307 WDA 2016
Appeal from the Judgment of Sentence dated January 14, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013119-2014
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.
MEMORANDUM BY SOLANO, J.: FILED MAY 09, 2017
Appellant, Michael Parker, appeals from the judgment of sentence
imposed after the trial court convicted him of possession with intent to
deliver a controlled substance (“PWID”), possession of a controlled
substance, and illegal possession of a firearm.1 We affirm.
The trial court recited the factual findings which informed its
disposition as follows:2
On August 22, 2014, officer[s] from the City of Pittsburgh
Bureau of Police, including members of the SWAT team, went to
an apartment building located at 1604 Sandusky Court,
Apartment 279, in the City of Pittsburgh to serve a search
warrant. As the officers neared the main door of the apartment
building, an audible warning was issued to the residents of the
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1
35 P.S. § 780-113(a)(30) and (16), and 18 Pa.C.S. § 6105(c) respectively.
2
The trial court described its factual recitation as “the credible facts relevant
to this appeal.” Trial Court Opinion, 6/22/16, at 1.
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apartment, via a microphone, that officers were about to serve
the search warrant. Officers continued up the stairs of the
apartment building toward apartment 279. When they arrived at
the door to Apartment 279, they again informed the occupants
that they had a search warrant. After making this
announcement three times without a response, officers were
given authority to manually breach the door. Immediately after
the officers breached the door, the door swung back at the
officers. One officer was face to face with [Appellant] and he
immediately identified [Appellant] as being the person behind
the door attempting to push the door closed. Despite the
officer’s best effort to push the door open, [Appellant] was able
to get the door closed and locked. [Appellant] then tried to
barricade the door closed by moving a couch and other furniture
behind the door.
While SWAT officers were attempting to gain entry to the
apartment, Officer Sovko, who was outside and securing the
front door of the apartment building, observed a number of
items being thrown from the window of Apartment 279. Among
the items that were being discarded were four baggies of
cocaine. All four baggies were recovered and the aggregate
weight of the cocaine seized in this case was 101.632 grams.
Officer Friburger ha[d] set up a surveillance point behind a
tree on a hillside near the apartment. He had clear vision into
Apartment 279. He observed [Appellant] and others within a
room in the rear of Apartment 279. While officers were trying to
gain entry into Apartment 279, Officer Friburger observed
[Appellant] remove something black from his waistband.
[Appellant] took a defensive shooting position from behind a
corner of a wall and pointed what Officer Friburger believed to be
a handgun at the front door of Apartment 279 where members
of the SWAT team were attempting to gain entry. Eventually,
police negotiators diffused the situation and all of the occupants,
including [Appellant], raised their hands while in the rear room.
Officer Friburger radioed the other officers that it was safe to
force entry into the apartment. Officers forced entry into the
apartment with a ram and took the residents into custody.
[Appellant] was among them.
A search of the residence yielded a Glock 9 millimeter
handgun recovered from a bedroom drawer. Also recovered
were nine millimeter ammunition as well as other caliber
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ammunition, a stun gun, digital scales and sandwich baggies.
Court papers for [Appellant] were found in Apartment 279. No
drug use paraphernalia was recovered. After [Appellant] was
taken into custody, two cell phones were recovered from him as
well as $950 in cash and a small amount of marijuana. After his
arrest, [Appellant] admitted to the police officers that [the]
firearm recovered in the house belonged to his brother and he
knew it was in the residence.
An analysis of the cell phones seized in this case disclosed
that [Appellant] and his brother had been communicating on
August 19, 2014. The text messages indicated that [Appellant]
and his brother were discussing drug prices and quantities using
street slang to describe the cocaine and prices.
The Commonwealth presented an expert witness to
present an opinion as to whether the cocaine recovered in this
case was possessed with the intent to distribute it. The expert
testified that he considered 101.632 grams of cocaine to be
substantial. Based on this quantity, the existence of a firearm,
digital scales, plastic baggies, the cash recovered from
[Appellant], the lack of use paraphernalia and the contents of
the text messages describing amount and prices of cocaine, the
expert opined that the cocaine was possessed with the intent to
distribute it. The Court found that testimony credible.
Trial Court Opinion, 6/22/16, at 2-4.
The trial court rendered its convictions on October 21, 2015. On
January 14, 2016, the trial court sentenced Appellant to 4 to 10 years’
incarceration for possession with intent to deliver, and a consecutive 1 to 2
years’ incarceration for illegal possession of a firearm.3 Appellant was
sentenced to an aggregate 5 to 12 years’ incarceration. He filed a post-
sentence motion on January 25, 2016, which the trial court denied the
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3
Appellant’s conviction for possessing a controlled substance merged with
his conviction for possession with intent to deliver.
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following day. Appellant then filed this timely appeal, in which he presents
three issues for our review:
1. Whether the trial court erred in holding that the evidence was
sufficient to support the guilty verdicts as to the charges of
possession with intent to deliver and simple possession under
35 Pa.C.S. §§ 780-113(a)(30) and 780-113(a)(16)?
2. Whether the trial court erred in holding that the evidence was
sufficient to support the guilty verdict as to the charge of
person not to possess a firearm under 18 Pa.C.S. §
6105(c)(ii)?
3. Whether the trial court’s sentence of five (5) to twelve (12)
years of incarceration was an abuse of discretion and a
misapplication of the guidelines?
Appellant’s Brief at 5.
With regard to Appellant’s first and second issues, the following
discussion from Commonwealth v. Roberts, 133 A.3d 759, (Pa. Super.
2016), appeal denied, 145 A.3d 725 (Pa. 2016), is applicable:
Appellant’s first contention is the evidence was insufficient to
sustain his convictions for PWID and possession of a controlled
substance.
The standard we apply 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
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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 finder 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. Brooks, 7 A.3d 852, 856–57 (Pa.Super.2010)
(citations omitted).
To sustain a conviction for PWID, “the Commonwealth must
prove both the possession of the controlled substance and the
intent to deliver the controlled substance.” Commonwealth v.
Lee, 956 A.2d 1024, 1028 (Pa.Super.2008) (citations omitted).
It is well settled that “[i]n narcotics possession cases, the
Commonwealth may meet its burden by showing actual,
constructive, or joint constructive possession of the contraband.”
Commonwealth v. Vargas, 108 A.3d 858, 868
(Pa.Super.2014) (en banc) (quotation and quotation marks
omitted). Here, the police did not discover the controlled
substances on Appellant's person, and thus, we must determine
whether the Commonwealth sufficiently established that
Appellant had constructive possession of the controlled
substances.
This Court has defined constructive possession as follows:
Constructive possession is a legal fiction, a pragmatic
construct to deal with the realities of criminal law
enforcement. Constructive possession is an
inference arising from a set of facts that possession
of the contraband was more likely than not. We have
defined constructive possession as “conscious
dominion.” We subsequently defined “conscious
dominion” as “the power to control the contraband
and the intent to exercise that control.” To aid
application, we have held that constructive
possession may be established by the totality of the
circumstances.
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Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super.2012)
(quotation omitted). “The Commonwealth may sustain its
burden by means of wholly circumstantial evidence, and we
must evaluate the entire trial record and consider all evidence
received against the defendant.” Id. (citation omitted).
133 A.3d at 767–68.
Here, Appellant argues that the evidence was insufficient to support
both his drug convictions and conviction of illegal possession of a firearm
because the Commonwealth failed to prove that he constructively possessed
the cocaine ejected from the apartment, and “no officer ever testified that
they saw [Appellant] in actual possession of a firearm.” Appellant’s Brief at
14-15. Appellant emphasizes that there were six people in the apartment
when the cocaine was thrown from the window, there was no DNA or
scientific evidence linking him to either the cocaine or the firearm recovered
from the bedroom, and the text messages with his brother were “too vague,
remote in time and otherwise weak.” Id.
In response, the Commonwealth first asserts that Appellant has
waived both of his sufficiency claims because he fails to develop and support
his arguments with citation to legal authority. Commonwealth Brief at 8,
18; see also Pa.R.A.P. 2119(a) (the argument shall include “discussion and
citation of authorities as are deemed pertinent”). Alternatively, the
Commonwealth liberally references the trial testimony to rebut Appellant’s
claims and argue that the evidence supported a finding that Appellant
constructively possessed both the drugs and the firearm. Commonwealth
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Brief at 8-21. For example, the Commonwealth references Appellant’s
efforts to barricade the door while the police attempted to execute a search
warrant, as well as Officer Sovko’s testimony that he observed the four
baggies being discarded from the apartment. Commonwealth Brief at 11.
The Commonwealth also references Officer Friburger’s observations of
Appellant in a “shooting stance” with what looked to be a firearm, and the
fact that Appellant stated he was aware the firearm was in the apartment.
Id. at 20.
Upon review, and even in the absence of waiver, the Commonwealth’s
rebuttal is supported by the record, and comports with the reasoning of the
trial court. The trial court explained:
The evidence in this case was clearly sufficient to
demonstrate that [Appellant] possessed with intent to deliver
cocaine. The Court agrees with the expert witnesses who
determined that the large quantity of cocaine coupled with the
existence of digital scales and plastic baggies provided ample
proof that the cocaine was intended to be distributed.
[Appellant’s] actions in barricading himself in Apartment 279 and
pointing a firearm at the entry door of Apartment 279 were
indicative of his strong desire to prevent police officers from
entering the apartment. The text messages between [Appellant]
and his brother, in this Court’s view, were discussion[s] about
cocaine quantities and prices. Based on the actions of
[Appellant], this Court believed beyond a reasonable doubt that
[Appellant’s] aggressive actions were taken to prevent the police
from entering the apartment in order to protect the cocaine.
This Court believes that there was sufficient evidence to
demonstrate that [Appellant] resided in the residence and that
his actions clearly demonstrated that he had ability to control the
cocaine that was thrown out the window. This evidence was
sufficient to prove [Appellant] constructively possessed the
cocaine. . . .
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In this case, Officer Friburger testified credibly that he was
able to observe [Appellant] in the apartment remove a black
object from his waistband, take a defensive stance and point the
object at the front entry door of Apartment 279. Though he
could not conclusively testify that he saw a firearm, it appeared
to him that [Appellant] was pointing a firearm at the door where
police officers were about to enter. After the police officers
secured the area where [Appellant] was located, Officer
Friburger’s suspicions were confirmed when the firearm was
recovered in a dresser drawer. [Appellant] admitted that he was
aware that there was a firearm in the residence. This Court
believes this evidence was sufficient to convict him of possessing
the firearm.
Trial Court Opinion, 6/22/16, at 6-7, 9.
Based on our review of the record, we discern no error in the trial
court’s conclusion that the evidence was sufficient to support Appellant’s
drug and firearm convictions. Accordingly, Appellant’s first and second
issues are without merit.
In his third and final claim, Appellant argues that the trial court abused
its discretion in imposing Appellant’s sentence. We may not exercise our
discretion to review this issue unless we first determine that: (1) the appeal
is timely; (2) Appellant preserved his issue; (3) Appellant's brief includes a
concise statement of the reasons relied upon for allowance of an appeal with
respect to the discretionary aspects of his sentences, as required by Rule
2119(f) of the Pennsylvania Rules of Appellate Procedure; and (4) the
concise statement raises a substantial question that the sentences were
inappropriate under the Sentencing Code. Commonwealth v. Flowers,
149 A.3d 867, 870 (Pa. Super. 2016). If the appeal satisfies each of these
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prerequisites, we may accept it and proceed to the substantive merits of the
case. Id. at 87-871.
Instantly, Appellant has satisfied the first, second and third
requirements. Appellant filed a timely appeal, preserved his sentencing
challenge in his post-sentence motion, and has included a separate Rule
2119(f) concise statement in his appellate brief. See Appellant's Brief at 12-
13.4 With regard to a substantial question, our Supreme Court has
explained:
From an appellant's Rule 2119(f) statement, the Superior Court
decides whether to review the discretionary aspects of a
sentence based upon a case-by-case determination as to
whether “a substantial question concerning the sentence exists.”
In the Interest of M.W., 555 Pa. 505, 725 A.2d 729, 731
(1999) (citing Commonwealth v. Tuladziecki, 513 Pa. 508,
522 A.2d 17, 19 (1987)). To demonstrate that a substantial
question exists, “a party must articulate reasons why a particular
sentence raises doubts that the trial court did not properly
consider [the] general guidelines provided by the legislature.”
Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225, 244
(1999) (quoting Commonwealth v. Saranchak, 544 Pa. 158,
675 A.2d 268, 277 (1996)); see Commonwealth v. Goggins,
748 A.2d 721, 727 (Pa.Super.2000), allocatur denied, 563 Pa.
672, 759 A.2d 920 (2000) (appellant is required only to make a
plausible argument that his sentence is either inconsistent with a
particular provision of the Sentencing Code or contrary to the
fundamental norms underlying the sentencing process).
Commonwealth v. Mouzon, 812 A.2d 617, 621–22 (Pa. 2002).
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4
Although the Commonwealth contends that Appellant’s “Rule 2119(f)
statement neither establishes the particular provision of the Sentencing
Code that has been violated nor specifies what or how any fundamental
norm of the Sentencing Code has been offended”, Commonwealth Brief at
23, we do not find that the statement is deficient.
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We conclude that Appellant has raised a substantial question regarding
the propriety of his sentences. Appellant asserts that the trial court imposed
an aggravated-range sentence “despite the trial court’s apparent attempt to
impose a standard-range sentence.” Appellant’s Brief at 16. In support of
this argument, Appellant references a misstatement in the trial court’s Rule
1925(a) opinion in which the court stated that “the sentence imposed at the
firearm conviction was within the standard range.” See id., citing Trial
Court Opinion, 6/22/16, at 14. Appellant also assails the trial court’s
imposition of consecutive sentences, given that “the firearms conviction is in
excess of what the trial court apparently attempted to impose.” Appellant’s
Brief at 17.
“[T]he proper standard of review when considering whether to affirm
the sentencing court’s determination is an abuse of discretion.”
Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011). An abuse of
discretion “is more than a mere error of judgment; thus, a sentencing court
will not have abused its discretion unless ‘the record discloses that the
judgment exercised was manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will.’” Id. (citation omitted). An abuse of discretion
may not be found merely because an appellate court might have reached a
different conclusion. Id.
The trial court sentenced Appellant to an aggregate 5 to 12 years’
incarceration: 4 to 10 years’ incarceration for possession with the intent to
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deliver (with the possession charge merging), and a consecutive 1 to 2
years’ incarceration for illegally possessing a firearm. It is uncontroverted
that Appellant’s 4 to 10 year sentence for possession with intent to deliver
was within the standard range, and his 1 to 2 year sentence for illegally
possessing a firearm was in the aggravated range. The trial court explained
the reason for the sentence on the firearm charge at the sentencing hearing:
On the gun charge, [Appellant] had no business, no
business having a gun. You’ve been charged with gun charges
before. That they didn’t stick, as it is said on the street, doesn’t
change my view of it. You’ve been charged with this kind of
conduct before. You’ve had to answer for it. There’s no way you
didn’t know you shouldn’t be possessing a gun. It doesn’t mean
you were convicted. You weren’t convicted, but you still got
charged with it. You still understood from the authorities that
you’re not to possess a gun. You went and did it anyway, and
you used it in this case in a way that endangered police officers.
I’ll give you, you didn’t fire it. I don’t mean to suggest and I
don’t want the record to reflect that you did. You did not, but
your initial reaction to the announcement of police out there was
to take a defensive position with a gun pointed to the door
where police were. We cannot accept that kind of conduct. We
cannot accept it.
[Appellant] on that count is sentenced to an additional
period of one to two years consecutive to the previous count.
N.T., 1/14/16, at 18-19. In summation, the trial court stated:
The total sentence is 5 to 12 years. That’s the total
sentence.
It’s a shame. You take a healthy young man such as
[Appellant] and have to put him in a cage for that long, but he
has demonstrated that he is a serious danger to the community
generally and to the police community in particular, and I’m
unwilling to consider any lesser penalty for that reason.
Id. at 20.
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The trial court’s reasoning demonstrates that it imposed Appellant’s
sentences with full knowledge of what it was doing and why, and that its
reasoning was not manifestly unreasonable or the result of partiality,
prejudice, bias or ill-will. In addition, at the outset of the sentencing
hearing, the trial court advised that it had ordered a pre-sentence report,
which it “read in its entirety.” N.T., 1/14/16, at 2. Where pre-sentence
reports exist, we presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and other relevant
sentencing considerations and that it weighed those considerations along
with mitigating statutory factors. Commonwealth v. Best, 120 A.3d 329,
348 (Pa. Super. 2015). Having been fully informed by the pre-sentence
report, the sentencing court’s discretion should not be disturbed. Id. at
348-349.
Appellant argues, however, that —
[T]he sentence for Person Not to Possess a Firearm (one (1) to
two (2) years) was an aggravated-range sentence . . ., despite
the trial court's apparent attempt to impose a standard-range
sentence at that count. On that point, the trial court's Rule 1925
opinion . . . states that “the sentence imposed at the firearm
conviction was within the standard range . . .” [Tr. Ct. Op.], p.
14. Under these circumstances, the trial court would appear to
have erred in its application of the sentencing guidelines.
Accordingly, this court should “vacate the sentence and remand
the case to the sentencing court [because] the sentencing court
purported to sentence within the sentencing guidelines but
applied the guidelines erroneously.” 42 Pa.C.S.A. § 9781(c)(1).
Appellant’s Brief at 16-17. Appellant bases this argument on a single
sentence in the trial court’s Rule 1925(a) opinion. That opinion contained a
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lengthy discussion of the legal principles and facts of record that the trial
court considered when imposing Appellant’s sentence. That discussion
reads:
Defendant was sentenced to a term of imprisonment of not less
than 48 months nor more than 120 months relative to the
possession with intent to deliver conviction. He was sentenced
to a consecutive term of imprisonment of not less than 12
months nor more than 24 months relative to the firearm
conviction. . . .
In his final issue, the defendant claims that this Court
erred in sentencing the defendant because the aggregate
sentence was too harsh. His claims are without merit. A
sentencing judge is given a great deal of discretion in the
determination of a sentence, and that sentence will not be
disturbed on appeal unless the sentencing court manifestly
abused its discretion. An abuse of discretion is not a mere error
of judgment; it involves bias, partiality, prejudice, ill-will, or
manifest unreasonableness.
Furthermore, the “[sjentencing court has broad discretion
in choosing the range of permissible confinements which best
suits a particular defendant and the circumstances surrounding
his crime.” Discretion is limited, however, by 42 Pa.C.S.A.
§9721(b), which provides that a sentencing court must
formulate a sentence individualized to that particular case and
that particular defendant. Section 9721(b) provides: “[t]he
court shall follow the general principle that the sentence imposed
should call for confinement that is consistent with the protection
of the public, the gravity of the offense, as it relates to the
impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant . . . .” Furthermore,
In imposing sentence, the trial court is required to
consider the particular circumstances of the offense
and the character of the defendant. The trial court
should refer to the defendant’s prior criminal record,
age, personal characteristics, and potential for
rehabilitation. . . .
In fashioning an appropriate sentence, courts must be
mindful that the sentencing guidelines “have no binding effect, in
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that they do not predominate over individualized sentencing
factors and that they include standardized recommendations,
rather than mandates, for a particular sentence.” A sentencing
court is, therefore, permitted to impose a sentence outside the
recommended guidelines. If it does so, however, it “must
provide a written statement setting forth the reasons for the
deviation.”
A sentencing judge can satisfy the requirement of placing
reasons for a particular sentence on the record by indicating that
he or she has been informed by the pre-sentencing report; thus
properly considering and weighing all relevant factors. . . .
Moreover, the imposition of consecutive rather than
concurrent sentences lies within the sound discretion of the
sentencing court. Title 42 Pa.C.S.A. § 9721 affords the
sentencing court discretion to impose its sentence concurrently
or consecutively to other sentences being imposed at the same
time or to sentences already imposed. “In imposing a sentence,
the trial judge may determine whether, given the facts of a
particular case, a sentence should run consecutive to or
concurrent with another sentence being imposed.”
The record in this case supports the sentence imposed by
this Court. The sentence imposed at the possession with intent
to distribute count was within the standard range of the
sentencing guidelines. Similarly, the sentence imposed at
the firearm conviction was within standard range.
Additionally, this Court considered the presentence report as
noted at the beginning of the sentencing proceeding. This Court
considered the defendant’s recurring history of possessing drugs.
This Court also noted the defendant’s lengthy prior record,
including prior stints in jail. His conduct in this case endangered
police officers. He refused to open the door, took an aggressive
stance and was convicted of possessing a firearm that he pointed
toward police officers. Based on the totality of the
circumstances, this Court believed the defendant had multiple
opportunities to conform his conduct to the law and he
repeatedly chose not to do so. He further demonstrated that he
is a danger to the community. This Court considered the
defendant’s rehabilitative needs, protection of the public,
deterring the defendant from engaging in future similar conduct,
deterring the public from committing such crimes, retribution
and the impact on the victim. The sentence imposed in this case
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was not unduly harsh and properly reflected the defendant’s
culpability in this case.
Tr. Ct. Op. at 1, 11-14 (citations omitted; emphasis added). The single
sentence on which Appellant relies for his argument is the sentence
emphasized in this quotation.
A review of the transcript from Appellant’s sentencing hearing and the
entirety of the trial court’s Rule 1925(a) opinion makes clear that, contrary
to Appellant’s argument, the trial court was cognizant of the relevant law
and guidelines when it sentenced Appellant, and that it was careful to
impose the sentences in accordance with the particular circumstances of
Appellant’s case. The trial court did not “err[] in its application of the
sentencing guidelines.” Appellant’s Brief at 16. Rather, as the court’s
opinion confirms, it recognized that it was entitled to impose a sentence that
was in the aggravated range of the guidelines so long as it explained its
reasons, and the court did explain its reasons — both at the sentencing
hearing and in its Rule 1925(a) opinion. It therefore is clear that the court’s
erroneous sentence stating that Appellant’s sentence for illegally possessing
a firearm “was within the standard range,” Tr. Ct. Op. at 14, does not reflect
the trial court’s intent as gleaned from the entire record. The trial court’s
misstatement therefore does not provide grounds for relief.
Based on the foregoing, the record belies Appellant’s claim that the
trial court abused its sentencing discretion with regard to the 1 to 2 year
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sentence for illegally possessing a firearm and the imposition of consecutive
sentences. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/2017
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