Com. v. Taylor, K.

J-S21029-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN ERNEST TAYLOR :
:
Appellant : No. 1397 WDA 2019
Appeal from the Judgment of Sentence Entered September 11, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001470-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN ERNEST TAYLOR :
:
Appellant : No. 1398 WDA 2019
Appeal from the Judgment of Sentence Entered September 11, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0005526-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN ERNEST TAYLOR :
:
Appellant : No. 1399 WDA 2019
Appeal from the Judgment of Sentence Entered August 6, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0015237-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-S21029-20
:
v. :
:
:
KEVIN ERNEST TAYLOR :
:
Appellant : No. 1474 WDA 2019
Appeal from the Judgment of Sentence Entered August 6, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0003879-2016
BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED JUNE 2, 2020
In this consolidated appeal, Appellant Kevin Ernest Taylor appeals from
the Judgments of Sentence entered on September 11, 2018 in the Court of
Common Pleas of Allegheny County. Appellant challenges the discretionary
aspect of the sentences imposed in each case, and the sufficiency of the
evidence at Docket Number 3879-2016 (“Case 3879”). After careful review,
we affirm Appellant’s convictions, but remand for resentencing at Docket
Numbers 1470-2016, 5526-2016, and 15237-2016 (collectively, the “PWID
cases”).
We derive the following facts from the Affidavit of Probable Cause, which
the parties stipulated to at Appellant’s bench trial in Case 3879. On March 19,
2016, Stowe Township police officer Robert Breitbarth was on routine patrol
when he observed a black SUV make a U-turn, then cross the double yellow
line multiple times. Officer Breitbarth stopped the vehicle and called Officer
Desimone as backup.
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Appellant was alone in the vehicle. As Officer Breitbarth spoke with
Appellant, Officer Desimone saw multiple stamp bags in the back pouch of the
passenger’s seat. Police searched Appellant’s vehicle and found one unmarked
stamp bag containing heroin on the driver’s seat, a red cut straw containing
white residue in the driver’s door, 21 unmarked stamp bags containing heroin
in the back pouch of the passenger’s seat, and a stolen firearm with the bags
in the back pouch. Police arrested Appellant for possession of narcotics and
possessing a stolen firearm.
The Commonwealth charged Appellant with two counts of Possession of
a Controlled Substance and one count each of Possession of Drug
Paraphernalia, Persons Not to Possess a Firearm, Carrying a Firearm Without
a License, Careless Driving, and Driving on a Roadway Laned for Traffic at
Case 3879.1 The case proceeded to a non-jury trial on June 20, 2018, where,
in addition to the Affidavit of Probable Cause, the parties stipulated that a
prior criminal conviction made Appellant ineligible to carry a firearm and
Appellant was the registered owner of the vehicle that he was driving. N.T.
Trial, 6/20/18, at 6-7.
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1 35 P.S. §§ 780-113(a)(16) and (a)(32); 18 Pa.C.S. §§ 6105(a)(1) and
6106(a)(1); 75 Pa.C.S. §§ 3714(a) and 3309(1), respectively.
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The trial court found Appellant guilty of all charges. The court ordered a
pre-sentence investigation (“PSI”) report and deferred sentencing to
September 11, 2018.
At sentencing, Appellant pled guilty to separate counts of Possession
with Intent to Distribute (“PWID”) in four additional cases, including the three
PWID cases at issue in this appeal.2 Appellant also pled guilty to one count of
Driving under the Influence of a Controlled Substance (“DUI”).3
At Case 3879, the court sentenced Appellant to four to eight years’
incarceration for the Persons Not to Possess a Firearm conviction, $60 in fines
for the driving offenses, and no further penalty for the other convictions. In
the PWID cases, the court sentenced Appellant to four to eight years’
incarceration for each drug conviction to be served concurrently with the
sentence in Case 3879.4 Thus, Appellant’s aggregate term of incarceration is
four to eight years.
On July 10, 2019, following post-conviction relief proceedings, the trial
court reinstated Appellant’s post-sentence and appellate rights nunc pro tunc.
Appellant timely filed Post-Sentence Motions, which the trial court denied on
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2 35 P.S. § 780-113(a)(30).
3 75 Pa.C.S. § 3802(d)(1)(i).
4The court also imposed a sentence of three to six days’ incarceration, six
months’ probation, and a $1,500 fine for a DUI conviction.
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August 6, 2019. Appellant thereafter timely filed a Notice of Appeal and Rule
1925(b) Statement at each Docket Number.
Appellant presents the following issues for our review:
1. Was the evidence insufficient as a matter of law to law to [sic]
sustain the convictions at [Docket Number 3879-2016] for
Person[s] Not to Possess a Firearm; Firearms Not to be Carried
Without a License; two counts of Possession of a Controlled
Substance; and Possession of [Drug] Paraphernalia?
2. Were the sentences imposed on [Appellant] at [Docket
Numbers 1470-2016, 5526-2016, 15237-2016, and 3879-2016],
unreasonable, manifestly excessive, contrary to the dictates of the
Sentencing Code, and an abuse of discretion in that: 1) the court
did not cite to any Sentencing Code factors to justify the
imposition of a term of imprisonment of 4 to 8 years in each case;
2) the sentences do not reflect any consideration of [Appellant’s]
background and characteristics, specifically, his age (64 years
old), poor health, and his drug addiction and rehabilitation needs,
and the remoteness of his prior convictions; 3) the court did not
account for the fact that [Appellant] provides financial, physical
and emotional support to his brother who has cerebral palsy, and
to his children; and 4) the sentences are grossly disproportionate
to the circumstances of the offenses, and contrary to the
fundamental norms underlying the sentencing process?
Appellant’s Br. at 5.5
In his first issue, Appellant challenges the sufficiency of the evidence
supporting the gun and drug possession convictions at Case 3879. He alleges
that the Commonwealth’s evidence was insufficient to prove that he knew of,
and had the ability and intent to exercise control over the contraband that
police found in the back pouch of the passenger’s seat. Appellant’s Br. at 26.
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5 We have reordered Appellant’s issues for ease of analysis.
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Appellant does not challenge the sufficiency of the evidence that he possessed
the contraband found on the driver’s seat and in the driver’s door of his
vehicle. Id. at 24-27.
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). We review a
sufficiency challenge de novo, and our scope of review is limited to the
evidence of record and all reasonable inferences arising therefrom, viewed in
the light most favorable to the Commonwealth as verdict-winner.
Commonwealth v. Robinson, 128 A.3d 261, 264 (Pa. Super. 2015) (en
banc). The evidence is sufficient if it can support every element of the crime
charged beyond a reasonable doubt. Id. The factfinder, is free to believe all,
part, or none of the evidence. Id. The Commonwealth may sustain its burden
by means of wholly circumstantial evidence. Commonwealth v. Irvin, 134
A.3d 67, 76 (Pa. Super. 2016).
Each of the drug and gun offenses at issue here require the
Commonwealth to prove that Appellant “possessed” contraband.6 The
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6 A conviction for Possession of a Controlled Substance requires evidence that
a person “[k]nowingly or intentionally possessed” a controlled substance.
35 P.S. § 780-113(a)(16) (emphasis added).
Possession of Drug Paraphernalia prohibits the “possession with intent to
use[] drug paraphernalia.” 35 P.S. § 780-113(a)(32) (emphasis added).
Section 6105 of the Pennsylvania Uniform Firearms Act of 1995 provides that
a certain class of people, including Appellant, “shall not possess, use,
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Commonwealth may meet its burden of proving possession by establishing
facts from which the factfinder may infer constructive possession.
Commonwealth v. Hall, 199 A.3d 954, 960 (Pa. Super. 2018). “Constructive
possession” is “the ability to exercise a conscious dominion over the
contraband.” Id. at 961 (citation and internal quotation marks omitted). To
prove “conscious dominion,” the Commonwealth must establish that the
defendant had “the power to control the contraband and the intent to exercise
that control.” Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa. Super. 2018)
(citation omitted). Although the Commonwealth may sustain its burden with
wholly circumstantial evidence, a defendant’s mere presence at a place where
contraband is found is insufficient to prove that he exercised dominion and
control over those items. Id. at 36-37.
Constructive possession also requires proof that the defendant had
knowledge of the existence and location of the item. Id. at 37. Importantly,
“[t]he Commonwealth may prove such knowledge circumstantially. That is, it
may prove that the defendant had knowledge of the existence and location of
the items at issue from examination of the totality of the circumstances
surrounding the case, such as whether the contraband was located in an area
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control, sell, transfer or manufacture . . . a firearm in this Commonwealth.”
18 Pa.C.S. § 6105(a)(1) (emphasis added).
Section 6106 states that “any person who carries a firearm in any vehicle”
without a license commits a third degree felony. 18 Pa.C.S. § 6106(a)(1)
(emphasis added).
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usually accessible only to the defendant.” Hall, supra at 961 (citation and
internal quotation marks omitted).
This Court has addressed the issue of constructive possession where an
appellant was alone in a vehicle where officers found contraband. In
Commonwealth v. Best, 120 A.3d 329 (Pa. Super. 2015), we affirmed a
conviction for drug possession where the appellant was alone in the car when
police found marijuana in the center console. In affirming, we reasoned that,
because he was alone in the car, the “appellant, and only [the] appellant, had
conscious dominion over the marijuana.” Id. at 343. Similarly, in
Commonwealth v. Cruz, 21 A.3d 1247 (Pa. Super. 2011), we affirmed
convictions for two firearms offenses based on constructive possession, where
the appellant was alone in the car when police found a firearm in a latched
compartment on the passenger’s side of the vehicle. Id. at 1253.
As in Best and Cruz, Appellant in the instant case was the sole occupant
of the vehicle, and in close proximity to the contraband. In concluding that
the Commonwealth’s evidence was sufficient to prove constructive possession,
the trial court stated:
The facts in this case established that Defendant was the
operator of the vehicle and the sole occupant. When Officer
Desimone approached Defendant's vehicle, he observed in plain
view several bundles of glassine stamp bags in the back
pouch of the passenger seat of Defendant's vehicle. After
Defendant was asked to step out of the vehicle, Officer Breitbarth
found [one] unmarked stamp bag [on] the driver's seat and
a red cut straw with white residue in the driver's door. . .
When Officer Heffley seized the glassine stamp bags from the
passenger seat rear pocket, he located a firearm adjacent to
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the stamp bags. . . Additionally, Defendant is the registered
owner of the vehicle. As such, the evidence was sufficient to
establish the element of possession for all of these offenses.
Trial Ct. Op., 10/28/19, at 8 (emphasis added).
The trial court’s recitation of the facts is supported by the certified
record. Importantly, Appellant was the sole occupant of the vehicle, meaning
that he, and he alone, had the ability to exercise control over all the
contraband in the vehicle. Likewise, given Appellant’s close proximity to the
contraband on his seat, in the driver’s door and the pouch behind the
passenger’s seat, it was reasonable for the factfinder to infer that Appellant
had the ability to exercise control over it.
It was also reasonable for the factfinder to conclude that Appellant had
knowledge of the contraband in his vehicle. Like the stamp bag found on the
driver’s seat, the bags in the back pouch were unmarked, supporting a
reasonable inference that Appellant retrieved the single unmarked stamp bag
from the group of unmarked bags in the back pouch. Similarly, given the close
proximity between the firearm and drugs in the back pouch, it was reasonable
for the factfinder to determine that Appellant likewise knew of the firearm.
Appellant argues that “given the location of the firearm and drugs, it is
possible that someone riding in the back seat of the vehicle surreptitiously
placed the contraband in the seat pocket.” Appellant’s Br. at 27. No party
presented evidence that anyone other than Appellant had access to the
vehicle. Thus, this argument fails.
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Consequently, we conclude that the Commonwealth’s evidence was
sufficient for the trial court to convict Appellant of Possession of a Controlled
Substance, Possession of Drug Paraphernalia, Persons Not to Possess a
Firearm, and Firearms Not to be Carried Without a License.
Appellant’s second issue involves the discretionary aspects of his
sentences at each of the underlying cases. An appellant is not entitled to
review of the discretionary aspects of sentencing as of right, and a challenge
in this regard is properly viewed as a petition for allowance of appeal. 42
Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 522 A.2d 17, 18 (Pa.
1987).
Appellant timely filed a Notice of Appeal, raised his sentencing claim in
a Post-Sentence Motion, and included in his brief a Statement of Reasons for
our review of the discretionary aspects of his sentence, as required by
Pa.R.A.P. 2119(f) and Tuladziecki, supra. However, we may reach the
merits of Appellant’s challenge only if Appellant presents a substantial
question that the sentence imposed is inappropriate under the Sentencing
Code or the fundamental norms underlying the sentencing process.
Commonwealth v. Mrozik, 213 A.3d 273, 275 (Pa. Super. 2019).
An appellant raises a substantial question where he asserts that the trial
court failed to consider relevant sentencing criteria set forth in the Sentencing
Code at 42 Pa.C.S. § 9721(b). Commonwealth v. Riggs, 63 A.3d 780, 786
(Pa. Super. 2012). Here, Appellant contends in his Rule 2119(f) Statement
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that the sentencing court failed to consider relevant Section 9721(b)
sentencing criteria. Appellant’s Br. at 10-12. He has, thus, raised a substantial
question for our review.
We proceed mindful that sentencing is vested in the sound discretion of
the sentencing judge and we will not disturb a sentence absent a manifest
abuse of discretion. Commonwealth v. DiClaudio, 210 A.3d 1070, 1074-75
(Pa. Super. 2019). To obtain relief, the appellant must establish 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. Id. at 1075.
In every case in which a court sentences for a felony or misdemeanor
conviction, the court must state on the record the reason or reasons for the
sentence imposed. 42 Pa.C.S. § 9721(b); Pa.R.Crim.P. 704(c)(2). The
sentencing judge must consider, inter alia, 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.” 42 Pa.C.S.
§ 9721(b). 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 age, personal characteristics,
and potential for rehabilitation. Commonwealth v. Fowler, 893 A.2d 758,
766-67 (Pa. Super. 2006).
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The court is not required to parrot the words of the Sentencing Code on
the record, but the record as a whole must reflect due consideration of the
statutory criteria enunciated in Section 9721(b). Commonwealth v.
Coulverson, 34 A.3d 135, 145 (Pa. Super. 2011). The court satisfies this
requirement when it indicates that a PSI report informed its sentencing
decision. Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013).
In addition to the mandates of Section 9721(b), where a court imposes
an aggravated range sentence it must state on the record the aggravating
circumstances that occasioned the higher sentence. 204 Pa. Code 303.13(c).
A sentencing judge may consider any legal factor in imposing an aggravated
range sentence, but “the sentencing judge’s statement of reasons on the
record must reflect this consideration.” Commonwealth v. Bowen, 975 A.2d
1120, 1122 (Pa. Super. 2009) (citation omitted).
In the instant case, the court imposed a sentence below the mitigated
range at Case 3879. Trial Ct. Op., 10/28/19, at 9. The notes of testimony from
the sentencing hearing indicate that the court reviewed and considered the
PSI report before imposing sentence. Id. at 8; N.T. Sentencing, 9/11/18, at
19-20. Thus, we conclude that the trial court properly considered all relevant
criteria and properly exercised its discretion in sentencing Appellant at Case
3879.
With respect to the three PWID cases, the court sentenced Appellant in
the aggravated range for each drug offense. Trial Ct. Op., 10/28/19, at 9.
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However, the sentencing court did not state any reasons on the record for
sentencing Appellant in the aggravated range. See N.T. Sentencing, 9/11/18,
at 24-28. Because the sentencing court failed to provide a statement of
reasons for imposing the sentences it did in the PWID cases, we are
constrained to vacate the Judgments of Sentence in those cases and remand
for resentencing.7
Convictions affirmed. Judgment of Sentence affirmed at Docket Number
3879-2016. Judgments of Sentence vacated and cases remanded for
resentencing at Docket Numbers 1470-2016, 5526-2016, and 15237-2016.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/2/2020
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7 Before resentencing, we request that the trial court direct the Allegheny
County Department of Court Records to ensure that the certified records at
Docket Numbers 1470-2016 and 5526-2016 are properly organized and
contain all documents relevant to each respective case.
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