Com. v. Shields, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANTHONY DWAYNE SHIELDS
Appellant No. 837 WDA 2016
Appeal from the Judgment of Sentence May 13, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002210-2015
BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.
MEMORANDUM BY BOWES, J.: FILED APRIL 10, 2017
Appellant appeals from the aggregate judgment of sentence of ninety-
nine to 198 months incarceration imposed following his convictions for three
counts each of contraband1 and possession of a controlled substance with
intent to deliver, and one count of possession of marijuana. We affirm.
We adopt the trial court’s recitation of the facts ably memorialized in
its Pa.R.A.P. 1925(a) opinion.
On August 20, 2016, Officer Michael Inman was on a routine
patrol when he initiated a traffic stop for an expired registration.
When he approached the vehicle, Officer Inman could smell
marijuana emanating from the vehicle. Appellant was the driver
and sole occupant. Officer Inman ran Appellant's license through
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1
18 Pa.C.S. § 5123(a) (“A person commits a felony of the second degree if
he . . . brings into any prison . . . any controlled substance[.]”).
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PennDot and discovered Appellant had an arrest warrant for a
parole violation and he did not have a valid license to operate a
motor vehicle. Officer Inman took Appellant into custody,
conducted a pat down of Appellant's loose outer clothing and
transported him to the state parole office. When Appellant
arrived at the state parole office, Parole Officer Charles Page
conducted a second pat down search of Appellant's outer
clothing and placed him in a holding cell. Later that morning,
Appellant was taken to the State Correctional Institution at
Albion ("SCI Albion”) to detox. Correctional Officer Casey
Cleveland, who was working as the yard sergeant that day, met
Appellant at the gate of SCI Albion.
As Officer Cleveland got closer to Appellant, he noticed the
strong odor of marijuana coming from his body. Officer
Cleveland asked Appellant five or more times where the
marijuana was located. He warned Appellant if he did not hand
over the drugs, he could be subject to additional charges for
bringing it into the prison and any contraband would be found
anyway during the strip search. Appellant denied having any
marijuana on his body and said he smelled because he was
smoking marijuana when he was picked up.
Appellant was brought immediately to the receiving and
discharging unit area where Officer Cleveland along with Officer
Todd Stafford and Officer Robert Sunafrank conducted a
standard intake search. Appellant was ordered to face the wall,
remove one article of clothing at a time and hand it back to the
officers to be searched. When Appellant handed back his shorts
and underwear, Officer Stafford noticed something was inside
and told Officer Cleveland to be careful as he searched.
Upon further inspection, Officer Cleveland found what he
suspected to be crack cocaine, powder cocaine, heroin and
marijuana hidden in a slit in Appellant's underwear.
....
The powder substance found in Appellant's underwear weighed
6.07 grams and contained cocaine hydrochloride. The rock like
crystals weighed 6.13 grams and contained cocaine base, more
commonly known as crack cocaine. The yellow stamp bags were
tested and found to contain heroin. Finally, the two bags of
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plant material were analyzed and found to contain a total of 3.03
grams of marijuana.
Trial Court Opinion, 7/27/16, at 1-3. Appellant’s first trial resulted in a
mistrial after the jury could not reach a verdict. Appellant was then retried
and convicted, ultimately receiving the aforementioned sentence. Appellant
filed a timely notice of appeal and raises two questions for our review.
I. The evidence in this case was insufficient to support the
charges of possession with intent to deliver.
II. The sentence in this case was manifestly excessive and
clearly unreasonable.
Appellant’s brief at 2.
Before addressing Appellant’s sufficiency of the evidence argument, we
note that his concise statement set forth a boilerplate allegation. “The
issues to be raised on appeal are the defendant’s claim that the evidence
presented at the trial was insufficient to support a finding of guilty of the
charges of which the defendant was convicted[.]” Concise Statement,
6/27/16, at 1. As we stated in Commonwealth v. Garland, 63 A.3d 339,
344 (Pa.Super. 2013), to preserve a challenge to the sufficiency of the
evidence on appeal the concise statement “must state with specificity the
element or elements upon which the appellant alleges that the evidence was
insufficient.” Id. at 344. “Such specificity is of particular importance in
cases where, as here, the Appellant was convicted of multiple crimes each of
which contains numerous elements that the Commonwealth must prove
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beyond a reasonable doubt.” Commonwealth v. Gibbs, 981 A.2d 274, 281
(Pa.Super. 2009). Appellant's statement failed to do so and we could deem
the issue waived even though the trial court elected to address the claim.
“The fact that the Commonwealth did not object to the defect and the trial
court addressed the sufficiency of the evidence issue in the alternative is of
no moment.” Commonwealth v. Roche, --- A.3d ---, 2017 WL 34931(Pa.Super. 2017) (published opinion) (citing cases).
However, Appellant’s argument on appeal is clear and does not require
us to undertake the burdensome task of reviewing each element of all seven
convictions. Our Supreme Court observed in Commonwealth v. Laboy,
936 A.2d 1058 (Pa. 2007), that a less strict waiver approach is justified in
some circumstances:
It may be possible in more complex criminal matters that the
common pleas court may require a more detailed statement to
address the basis for a sufficiency challenge. Here, however, the
common pleas court readily apprehended Appellant's claim and
addressed it in substantial detail.
Id. at 1060. We find this principle applicable herein, since Appellant’s
argument is limited to one element common to the three possession of
intent to deliver crimes. Whether the evidence was sufficient to support
these convictions presents a matter of law; our standard of review is de
novo and our scope of review is plenary. Commonwealth v. Walls, 144
A.3d 926, 931 (Pa.Super. 2016) (citation omitted). In conducting our
inquiry, we
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examine whether the evidence admitted at trial, and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, support the
jury's finding of all the elements of the offense beyond a
reasonable doubt. The Commonwealth may sustain its burden by
means of wholly circumstantial evidence.
Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015). To sustain a
conviction for possession with intent to deliver
the Commonwealth must prove that Appellant knowingly or
intentionally possessed a controlled substance without being
properly registered to do so under the Act. See 35 P.S. § 780–
113(a)(16). The crime of possession of a controlled substance
with intent to deliver requires the Commonwealth to prove an
additional element: that Appellant possessed the controlled
substance with the intent to manufacture, distribute, or deliver
it. See 35 P.S. § 780–113(a)(30).
Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super. 2012). If a
person possesses narcotics with intent to deliver, he is necessarily guilty of
possession. Commonwealth v. Coleman, 130 A.3d 38, 42 (Pa. 2015).
Instantly, Appellant does not challenge the element of possession. He
maintains that the Commonwealth failed to prove he intended to deliver the
drugs.
In this case, no evidence was presented that Mr. Shields tried to
sell the drugs to anyone. He had no other items such as scales
or other packaging items on his person that would be necessary
for a drug dealer to possess in order to package the drugs. No
evidence was presented that Mr. Shields had contacted anyone
to attempt to sell drugs to them. Thus, the Commonwealth did
not sufficiently present evidence against Mr. Shields that would
allow the jury to determine that the drugs were going to be sold
to anyone, as opposed to being for the personal use of Mr.
Shields.
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Appellant’s brief at 7. In determining whether an individual in
possession of drugs intended to deliver2 them, the starting point is the
quantity possessed.
In Pennsylvania, the intent to deliver may be inferred from
possession of a large quantity of controlled substance. It follows
that possession of a small amount of a controlled substance
supports the conclusion that there is an absence of intent to
deliver.
Notably, if, when considering only the quantity of a controlled
substance, it is not clear whether the substance is being used for
personal consumption or distribution, it then becomes necessary
to analyze other factors.
Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa.Super. 2008) (citation
and quotation marks omitted). Herein, the Commonwealth did not rely on
quantity, and we examine the other facts and circumstances. “We
emphasize that, if the quantity of the controlled substance is not dispositive
as to the intent, the court may look to other factors.” Commonwealth v.
Ratsamy, 934 A.2d 1233, 1237 (Pa. 2007). The non-exclusive list of other
factors includes
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2
We note that Appellant argues that the Commonwealth must establish
Appellant intended to sell, as oppose to deliver, the drugs. The
Commonwealth is not required to establish Appellant would profit. See 35.
P.S. § 780-102(b) (defining delivery as the actual, constructive, or
attempted transfer from one person to another); Commonwealth v.
Metzger, 372 A.2d 20, 22 (Pa.Super. 1977) (interpreting the plain meaning
of this language and noting former statute included “sale” in the definition of
the crime).
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the manner in which the controlled substance was packaged, the
behavior of the defendant, the presence of drug paraphernalia,
and [the] sums of cash found in possession of the defendant.
The final factor to be considered is expert testimony. Expert
opinion testimony is admissible concerning whether the facts
surrounding the possession of controlled substances are
consistent with an intent to deliver rather than with an intent to
possess it for personal use.
Id. at 1237–38 (quotation and internal quotation marks omitted). The
relevant factors in this case were Appellant’s possession of drugs prior to
entering the correctional facility, the concealment of the drugs in a slit in
Appellant’s underwear, the manner of packaging, the presence of three
separate types of drugs, and an expert opinion.
We find that the presence of these other factors and the expert opinion
explaining their significance provided a sufficient basis for the jury’s verdicts.
Ratsamy noted that “expert testimony is important in drug cases where the
other evidence may not conclusively establish that the drugs were intended
for distribution.” Id. at 1236. Trooper Shawn Massey, qualified as an
expert witness in the field of narcotic trafficking and investigations, offered
an opinion that Appellant possessed the drugs with the intent to deliver. He
opined that the thirty-one packages of heroin were packaged in a manner
consistent with resale, not personal use. Additionally, he noted that powder
cocaine and crack cocaine are stimulants, while heroin is a depressant. He
stated that a normal user will usually have one or the other type of drug
rather than both. See N.T., 3/6/16, at 84-88. Furthermore, we note that
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Appellant did not possess any use paraphernalia, a circumstance we have
deemed relevant. Commonwealth v. Bess, 789 A.2d 757, 762 (Pa.Super.
2002) (in addition to other factors, the appellant “did not have any drug
paraphernalia to use the drugs himself.”). Therefore, taken together, we do
not find that the evidence was “so weak and inconclusive that as a matter of
law no probability of fact may be drawn from the combined circumstances.”
Ratsamy, supra at 1236, n.2.
Appellant’s remaining issue concerns the discretionary aspects of his
sentence. We apply the following standard of review.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014) (citing
Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa.Super. 2007)). The
right to appeal the discretionary aspects of a sentence is not absolute. We
determine whether Appellant has invoked this Court's jurisdiction by
examining the following four criteria:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief
[complies with] Pa.R.A.P. 2119(f); and (4) whether there is a
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substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa.Super. 2016) (citing
Commonwealth v. Samuel, 102 A.3d 1001, 1006–07 (Pa.Super. 2014)).
Appellant filed a timely notice of appeal. However, he did not preserve this
claim as he failed to present the issue at sentencing or in a motion to
reconsider.3 See Pa.R.Crim.P. 720(A)(1). Instead, he raised the issue for
the first time in his concise statement. Additionally, his brief does not
contain a separate Pa.R.A.P. 2119(f) statement.4 While we may overlook
the latter defect due to the Commonwealth’s failure to object, we may not
ignore the former. “Issues challenging the discretionary aspects of a
sentence must be raised in a post-sentence motion or by presenting the
claim to the trial court during the sentencing proceedings. Absent such
efforts, an objection to a discretionary aspect of a sentence is waived.”
Commonwealth v. Lamonda, 52 A.3d 365 (Pa.Super. 2012) (quoting
Commonwealth v. Shugars, 895 A.2d 1270, 1273–74 (Pa.Super. 2006)).
Hence, the claim is waived.
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3
Appellant, while represented by counsel, submitted a pro se motion.
4
Appellant’s table of contents indicates that the brief contains a separate
statement at page four. However, the submitted brief does not contain that
page.
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Nevertheless, we add that we would not have granted relief on this
claim. Since we lack a separate statement, we have reviewed the merits of
Appellant’s claim. His attack is little more than a boilerplate allegation that
the sentence is unreasonable because of some terms of incarceration were in
the aggravated range and imposed consecutively. The certified record
reveals that the guideline ranges at count one called for a sentence of
twenty-one to twenty-seven months in the standard range, with thirty-three
months in the aggravated range. At counts two and three, the standard
range was twenty-four to thirty months, and the aggravated range started
at thirty-six months. Appellant received a sentence of thirty-three to sixty-
six months at count one, thirty-six to seventy-two months at count two, and
thirty to sixty months at count three. Thus, Appellant received the lowest-
possible aggravated range sentence, i.e., it did not exceed the aggravated
range, at two of the three counts.
Appellant makes no argument as to why this sentence is unreasonable.
His entire argument is as follows:
Pursuant to § 9781(c)(2) the sentences imposed were manifestly
excessive and clearly unreasonable. A judge should impose the
minimum sentence consistent with the protection of the public,
the gravity of the offense, and the rehabilitative needs of the
Appellant. Commonwealth v. Martin, 351 A.2d 650, 656 n.20
(Pa. 1976). Mr. Shields argued various double jeopardy and
constitutionality issues at the time of his sentencing, especially
as it related to his revocation at another docket, but did not
provide to the court any specific details regarding his specific
circumstances or background that would sway the court in terms
of the sentence imposed. The court imposed a sentence close to
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the aggravated range of the sentencing guidelines for Counts 1
and 3, and a sentence in the aggravated range on Count 2.5 The
judge cited Mr. Shields' past record, along with his failure to take
responsibility for his actions, as a reason for the length of the
sentences.
Appellant’s brief at 8 (paragraph break omitted).
As our Supreme Court set forth in Commonwealth v. Walls, 926
A.2d 957 (Pa. 2007), our examination of a sentence is quite deferential, as
the “sentencing court is in the best position to determine the proper penalty
for a particular offense based upon an evaluation of the individual
circumstances before it.” Id. at 961 (citation and quotation marks omitted).
“Simply stated, the sentencing court sentences flesh-and-blood defendants
and the nuances of sentencing decisions are difficult to gauge from the cold
transcript used upon appellate review.” Id.
Pursuant to 42 Pa.C.S. § 9781(c) we can vacate and remand only if we
find 1) that the court intended to sentence within the guidelines but “applied
the guidelines erroneously;” 2) a sentence was imposed within the
guidelines “but the case involves circumstances where the application of the
guidelines would be clearly unreasonable;” or 3) “the sentencing court
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5
It appears that Appellant calculated identical guideline ranges for all
possession with intent to deliver counts. However, count one, which was the
possession of intent to deliver less than one gram of heroin, carried an
offense gravity score of six, whereas the other two counts carried an offense
gravity score of seven. See 204 Pa.Code § 303.15. As we have set forth,
Appellant received two aggravated range sentences.
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sentenced outside the sentencing guidelines and the sentence is
unreasonable.” 42 Pa.C.S. § 9781(c). “In all other cases the appellate court
shall affirm the sentence imposed by the sentencing court.” Id. Herein, the
sentence was within the guidelines. Commonwealth v. Bowen, 975 A.2d
1120, 1128 (Pa.Super. 2009) (sentence within aggravated range constitutes
sentence within the guidelines). Thus, applying the guidelines would have to
be clearly unreasonable. Walls noted that reasonableness is not defined in
the statute and “commonly connotes a decision that is ‘irrational’ or ‘not
guided by sound judgment.’” Id. at 963.
Walls concluded that this Court can find a sentence not guided by
sound judgment or irrational in only two situations. The first is if the
sentencing court did not weigh the “general standards applicable to
sentencing found in Section 9721, i.e., the protection of the public; the
gravity of the offense in relation to the impact on the victim and the
community; and the rehabilitative needs of the defendant. 42 Pa.C.S. §
9721(b).” Id. at 964; see 42 Pa.C.S. § 9721(b) (In determining whether to
impose a sentence of imprisonment, “the 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.). The other situation is where the
sentence is unreasonable under the guidelines provided by 42 Pa.C.S. §
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9781(d), which directs this Court to consider the following four factors in
determining whether the sentence is clearly unreasonable:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
Instantly, Appellant offers no reason for why the sentence is clearly
unreasonable. He simply posits that it is. What is clear to Appellant eludes
us; we would not accept his conclusory statement even if this claim had
been properly preserved. Thus, we would be inclined to deem the argument
waived for failure to present an argument. “[M]ere recitation of boilerplate
law followed by conclusory assertions of error typically does not suffice to
ripen an issue for our review.” Commonwealth v. Dozier, 99 A.3d 106,
111 (Pa.Super. 2014) (citation omitted). That failure notwithstanding, we
have proceeded to conduct the analysis mandated by Walls. With respect
to § 9781(d), the instant offenses would not have occurred but for
Appellant’s outstanding warrant for a parole violation. The court presided
over the trial and sentencing, and attached great weight to Appellant’s past
history in fashioning this sentence. While Appellant concedes that he “did
not provide to the court any specific details regarding his specific
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circumstances or background that would sway the court,” we note that the
judge stated he had reviewed the pre-sentence report. N.T. Sentencing,
5/13/16, at 16. See Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.
1988) (reviewing court must presume court weighed the information in the
report; “It would be foolish, indeed, to take the position that if a court is in
possession of the facts, it will fail to apply them to the case at hand.”).
Thus, we would not deem the decision to apply the guidelines to these
crimes unreasonable when considering these four factors and the deference
owed to the sentencing court.
Since § 9781 would afford no relief, the only remaining question is
whether 42 Pa.C.S. § 9721(b) would do so. We find that the sentencing
court considered the general standards. The judge noted that he had read
the presentence report in its entirety, referenced the “variety of drug
offenses and other offenses,” Appellant’s two prior revocations, and the fact
he was on supervision at the time of these offenses. Hence, as there was no
abuse of discretion and the sentence was neither irrational nor unguided by
sound judgment, we would affirm judgment of sentence in any event.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2017
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