Com. v. Rivera, C.

J-S68043-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CARLOS RIVERA
Appellant No. 215 EDA 2015
Appeal from the Judgment of Sentence May 23, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003082-2010
BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED DECEMBER 01, 2015
Appellant, Carlos Rivera, appeals from the May 23, 2012 judgment of
sentence of three to six years’ incarceration, followed by three years of
probation, imposed after the trial court found Appellant guilty of possession
with intent to deliver (PWID) and possession of a controlled substance.1
After careful review, we affirm Appellant’s convictions but vacate the
judgment of sentence and remand for resentencing.
The trial court, sitting as the fact-finder, recited the evidence
presented at trial as follows.
On February 19, 2010 at approximately 2:20
p.m., Philadelphia Police Officer Piotr Planita, along
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1
35 P.S. § 780-113(a)(30) and (16), respectively.
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with Officer Snyder, set up a surveillance narcotic
investigation using a confidential informant on the
2800 block of Hope Street. This investigation was in
connection with two active search warrants for 2802
Hope St. and 2815 Hope St. The confidential
informant was given prerecorded buy money and
told to go to 2802 Hope St. to buy cocaine. Officer
Planita then set up his surveillance on the 2700 block
of Hope St. to observe the confidential informant.
The confidential informant approached
[Appellant] and another male outside of 2802 Hope
St. and engaged both in a brief discussion. Officer
Planita observed a quick hand to hand interaction
between the confidential informant and [Appellant].
[Appellant] then crossed the street to a vacant lot at
approximately 2811 Hope St., where a pickup truck
was parked. [Appellant] bent down next to the
passenger side of the pickup truck, where Officer
Planita briefly lost sight of him. [Appellant] was then
observed returning across the street to the
confidential informant and again engaged in a brief
hand to hand interaction. The confidential informant
then returned to the officers and turned over four
green tinted Ziploc bags containing cocaine.
Officers in the area then executed a search
warrant on 2802 Hope St. [Appellant] fled into the
open doorway of 2802 Hope St. and closed the door
behind him. He was apprehended on the roof of
2806 Hope St. A search incident to arrest was
performed which was negative for both the buy
money and narcotics. Officer Planita then went to
the pickup truck that [Appellant] was seen going to
earlier. From the ground near the passenger side he
recovered a total of 140 packets containing cocaine,
which were identical to the ones recovered from the
confidential informant. Additionally, there were 140
blue Ziploc packets which contained heroin.
Trial Court Opinion, 5/6/15, at 2-3 (citations to notes of testimony omitted).
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Appellant was subsequently charged with PWID and possession of a
controlled substance. A waiver trial commenced on March 27, 2012, after
which the trial court rendered its guilty verdicts. The trial court deferred
sentencing for the preparation of a presentence investigation report. On
May 23, 2012, the trial court sentenced Appellant to three to six years of
incarceration, followed by three years of probation. Relevant to this appeal,
Appellant received a three-year mandatory minimum sentence on the basis
of the weight of the cocaine, pursuant to 18 Pa.C.S.A. § 7508(a)(3)(i).
Appellant did not file a direct appeal. On July 30, 2012, Appellant filed a pro
se petition for post-conviction relief (PCRA). Appellant obtained counsel,
who filed an amended PCRA petition on January 31, 2014. The
Commonwealth filed a response on December 24, 2014, and on January 12,
2015, the trial court reinstated Appellant’s appeal rights nunc pro tunc.
Appellant then filed this timely appeal.2
On appeal, Appellant presents the following two issues for our review.
1. Is Appellant’s PWID conviction against the
sufficiency of the evidence because there was no
admissible evidence that Appellant possessed or
sold narcotics?
2. Is Appellant’s mandatory sentence
unconstitutional and should the matter be
remanded for resentencing?
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2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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Appellant’s Brief at 4.
In his first issue, Appellant challenges the sufficiency of the evidence
and contends that “there was no admissible evidence that Appellant
possessed or sold narcotics.” Appellant’s Brief at 7.
It is well-settled that “[i]n reviewing the sufficiency of the evidence,
we consider whether the evidence presented at trial, and all reasonable
inferences drawn therefrom, viewed in a light most favorable to the
Commonwealth as the verdict winner, support the [fact-finder’s] verdict
beyond a reasonable doubt.” Commonwealth v. Patterson, 91 A.3d 55,
66 (Pa. 2014) (citation omitted), cert. denied, Patterson v. Pennsylvania,
135 S. Ct. 1400 (2015). “The Commonwealth can meet its burden 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. Watley, 81 A.3d 108, 113
(Pa. Super. 2013) (en banc) (internal quotation marks and citation omitted),
appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must
review “the entire record … and all evidence actually received[.]” Id.(internal quotation marks and citation omitted). “[T]he 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.” Id. (citation
omitted). “Because evidentiary sufficiency is a question of law, our standard
of review is de novo and our scope of review is plenary.” Commonwealth
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v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation omitted), cert. denied,
Diamond v. Pennsylvania, 135 S. Ct. 145 (2014).
“When reviewing a challenge to the sufficiency of the evidence with
regards to a PWID conviction, we are mindful that ‘[t]he Commonwealth
must prove both the possession of the controlled substance and the intent to
deliver the controlled substance. It is well settled that all the facts and
circumstances surrounding possession are relevant in making a
determination of whether contraband was possessed with intent to deliver.’”
Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa. Super. 2008), citing
Commonwealth v. Brown, 904 A.2d 925, 931–932 (Pa. Super. 2006),
appeal denied, 919 A.2d 954 (2007).
Here, Appellant specifically avers that “there is … only speculative
evidence tying Appellant to the drugs that were recovered from under snow
near the pickup truck. Appellant had allegedly already completed the
alleged transaction when [A]ppellant allegedly went near the pickup truck.
There were several other males in the vicinity that police believed were
involved in narcotics sales. There is, thus, only speculative evidence to tie
Appellant to the bulk narcotics covered by snow near the pickup truck.”
Appellant’s Brief at 10.
Upon review of the record, particularly the notes of testimony from
Appellant’s waiver trial, we conclude that Appellant’s sufficiency argument
would require us to substitute our judgment for that of the trial court in this
case. The law is clear that we “may not substitute [our] judgment for that
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of the factfinder; if the record contains support for the convictions, they may
not be disturbed.” Commonwealth v. Scott, 967 A.2d 995, 998 (Pa.
Super. 2009) (citations omitted).
Instantly, the trial court considered the facts presented at trial and
concluded that Appellant possessed the cocaine with the intent to deliver.
The trial court reasoned as follows.
The [trial c]ourt made credibility findings based
on the totality of evidence presented at trial. The
[trial c]ourt found the testimony of Officer Planita
and Officer Hardy credible, [and] thus sustained any
credibility challenges from the Defense. Additionally,
the testimony of [Appellant] as to his whereabouts
on that date was found to be incredible.
As such, [the trial court adopts the] facts
presented by the Commonwealth. Officer Planita
witnessed a hand to hand interaction between the
confidential informant and [Appellant], saw
[Appellant] go to the pickup truck, bend down and
then return to the confidential informant and again
have a hand to hand interaction. The items
recovered from the confidential informant matched
those that were recovered from the location where
[Appellant] was seen bending down.
Trial Court Opinion, 5/6/15, at 3-4.
After careful consideration, we discern no abuse of discretion by the
trial court. Viewing the evidence of record, together with all reasonable
inferences in a light most favorable to the Commonwealth, we conclude that
the evidence was sufficient to sustain the trial court’s determination that
Appellant was guilty of PWID.
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In his next issue, Appellant argues that his mandatory minimum
sentence of three to six years’ incarceration “has been rendered illegal by
the United States Supreme Court case of Alleyne v. United States, ___
U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).” Appellant’s Brief at 10.
Appellant further asserts that “[t]his issue is not waived because it attacks
the legality of Appellant’s sentence and is never waived and this Court has,
in any case, been vacat[ing] such sentences sua sponte.” Id. Appellant is
correct. Consonant with our decisions in Commonwealth v. Cardwell, 105
A.3d 748 (Pa. Super. 2014), and Commonwealth v. Fennell, 105 A.3d 13(Pa. Super. 2014), in which we discussed Alleyne and held unconstitutional
the drug trafficking sentencing and penalties of 18 Pa.C.S.A. § 7508, we
agree.
Here, at sentencing, the Commonwealth explained that “the cocaine
recovered … in this case weighed 9.578 grams.” N.T., 5/23/12, at 3. The
Commonwealth stated as follows.
And Your Honor, in accordance with the
mandatory minimum, [Appellant] was convicted
according to Title 18 PACS Section 7508 …
specifically, cocaine between two grams but less
than 10 grams, calls for a mandatory minimum of
three years when an individual is convicted of a
second PWID.
Id. at 3-4.
Appellant’s counsel responded in turn.
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The three to six mando [sic] I would accept
that. Three to six plus three, I have no problem
with. It’s the mandatory minimum.
Id. at 7.
Based on the foregoing, we reiterate our prior holdings in which we
detailed that where no statutory authorization exists for a particular
sentence, that sentence is illegal, subject to correction, and must be
vacated. See Cardwell, supra; Fennell, supra.
In sum, we affirm Appellant’s convictions, vacate the May 23, 2012
judgment of sentence, and remand this case to the trial court for
resentencing without application of the mandatory minimum provisions.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2015
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