Com. v. White-Ashe, K.

J-S51036-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KHORY OMAHR WHITE-ASHE :
:
Appellant : No. 734 MDA 2020
Appeal from the Judgment of Sentence Entered December 18, 2019
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0001407-2018
BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED MARCH 02, 2021
Khory Omahr White-Ashe (Appellant) appeals from his judgment of
sentence entered on December 18, 2019 in the Court of Common Pleas of
Franklin County1 after a jury convicted him of possession with intent to deliver
(PWID) heroin and cocaine, possession of drug paraphernalia (PDP), two
counts of possession of a firearm by a person prohibited from doing so (6105),
and two counts of conspiracy relating to his PWID counts.2 We affirm.
Appellant raises the following issues for our review:
I. Whether the [trial court] erred in finding sufficient evidence
to convict [Appellant] of Count 1, [PWID,] when [Appellant] was
not found in possession of heroin, other persons took
1 We remind counsel that an appeal lies from the judgment of sentence, not
the denial of post-sentence motions. See Commonwealth v. Shamberger,
788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc). Our Prothonotary has
corrected the caption accordingly.
2 35 P.S. § 780-113(a)(30), (32); 18 Pa.C.S. §§ 6105, 903.
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responsibility for the heroin, and the total amount of heroin found
was minuscule?
II. Whether the [trial court] erred in finding sufficient evidence
to convict [Appellant] of Count 2, [PWID,] when [Appellant] was
not found in possession of cocaine or found to be involved in
cocaine deals?
III. Whether the [trial court] erred in finding sufficient evidence
for conviction of Count 3, [6105,] when [Appellant] was not found
to be in possession of a firearm and the firearm was purchased by
a co-defendant?
IV. Whether the [trial court] erred in finding sufficient evidence
for conviction of Count 4, [PDP,] when [Appellant] was not found
to be in possession of drug paraphernalia?
V. Whether the [trial court] erred in finding sufficient evidence
for conviction for Count 5, [6105,] when a co-defendant admitted
that the firearm was his?
VI. Whether the [trial court] erred in finding sufficient evidence
for conviction of Count 6, [conspiracy to sell heroin,] when the
evidence was insufficient to prove that there was an overt act in
pursuance of such conspiracy or proved to have been done by him
or by a person with whom he conspired?
VII. Whether the [trial court] erred in finding sufficient evidence
for conviction of Count [7, conspiracy to sell cocaine,] when the
evidence was insufficient to prove that there was an overt act in
pursuance of such conspiracy or proved to have been done by him
or by a person with whom he conspired?
VIII. Whether the [trial court] abused its discretion in denying
[Appellant’s post-sentence motion] challenging the weight of the
evidence and denying a request for a new trial on Count 1 [PWID]?
IX. Whether the [trial court] abused its discretion in denying
[Appellant’s post-sentence motion] challenging the weight of the
evidence and denying a request for a new trial on Count 2,
[PWID]?
X. Whether the [trial court] abused its discretion in denying
[Appellant’s post-sentence motion] challenging the weight of the
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evidence and denying a request for a new trial on Count 3,
[6105]?
XI. Whether the [trial court] abused its discretion in denying
[Appellant’s post-sentence motion] challenging the weight of the
evidence and denying a request for a new trial on Count 4, [PDP]?
XII. Whether the [trial court] abused its discretion in denying
[Appellant’s post-sentence motion] challenging the weight of the
evidence and denying a request for a new trial on Count 5,
[6105]?
XIII. Whether the [trial court] abused its discretion in denying
[Appellant’s post-sentence motion] challenging the weight of the
evidence and denying a request for a new trial on Count 6,
[conspiracy]?
XIV. Whether the [trial court] abused its discretion in denying
[Appellant’s post-sentence motion] challenging the weight of the
evidence and denying a request for a new trial on Count 7,
[conspiracy]?
XV. Whether the [trial court’s] imposition of consecutive, rather
than concurrent, sentences is unduly harsh, considering the
nature of the crimes and the length of imprisonment?
Appellant’s Brief, at 4-8.
On December 18, 2019, Appellant was sentenced to 60 to 120 months
of imprisonment as to each of the 6105 counts and PWID (heroin), 36 to 120
months of imprisonment for conspiracy relating to PWID (heroin), 18 to 120
months of imprisonment for PWID (cocaine), and 6 to 12 months of
imprisonment for PDP, for an aggregate sentence of 240 to 612 months of
imprisonment as all sentences are consecutive.3 Appellant, who is currently
34 years old, will thus be either in prison or under parole supervision until he
3The trial court noted that the second conspiracy count merged for sentencing
purposes. Trial Ct. Op., 6/19/20, at 2 n.3.
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is approximately 85 years old, should he live that long, and will not be eligible
for parole until he is approximately 55 years old. He challenges the sufficiency
and weight of the evidence as to each conviction, and challenges the trial
court’s sentence, imposed consecutively, as unduly harsh.4
Facts Adduced at Trial
On June 14, 2018, Detective Bradley Kyner of the Chambersburg Police
Department was conducting surveillance of 102 South Federal Street, as
neighbors had noticed a high volume of foot traffic and were concerned about
the possibility of drug trafficking. N.T. Trial, 9/10/19, at 25-26, 31. Detective
Kyner observed several people go in and out of the house. Id. at 32. At one
point, he saw a black male (later identified as Tyler Stone Harrington) exit the
house and conduct what he believed, based on his training and experience, to
be a hand-to-hand drug transaction with two individuals in a vehicle. Id. at
32, 35-36. He photographed two individuals who accessed the house: Luz
Reyes and Harrington. Id. at 33, 35. Detective Kyner also saw Appellant
engaging in what appeared to him to be a hand-to-hand drug sale. Id. at 39.
4 Appellant and the trial court both complied with Pa.R.A.P. 1925. Appellant
was represented by counsel at trial and sentencing but elected to file post-
sentence motions pro se. Trial Ct. Op. at 2. He filed a pro se post-sentence
motion in which he made arguments sounding in weight and the discretionary
aspects of his sentence. See Appellant’s Post-Sentence Motion, 1/15/20, at
1, 4, 7 (Appellant’s motion has eccentric page numbering; we refer to the
pages as they are sequenced in the record). His post-sentence motion was
timely filed, as the trial court afforded Appellant thirty days in which to file it.
See N.T. Sentencing, 12/18/19, at 19. Appellant is represented by counsel
in the present appeal.
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On June 28, 2018, Washington Township Police Detective John Brady,
of the Franklin County Drug Task Force, was conducting surveillance of a
controlled drug buy at a nearby location. N.T. Trial at 42-43, 49, 51-52. He
photographed the hand-to-hand sales he observed, and some of the
photographs he took depict Appellant engaging in such sales. Id. at 47.
Law enforcement obtained a search warrant for 102 South Federal
Street, and Trooper Antjuwan Cox of the Pennsylvania State Police testified
that he was part of the law enforcement team that conducted the search. N.T.
Trial at 99, 102. During the search, Appellant tried to flee but was
apprehended. Id. at 103. Trooper Cox questioned Appellant while the search
was conducted, and Appellant admitted that he was a crack cocaine
distributor. Id. at 104. He also immediately acknowledged the presence of a
firearm in the house and directed Trooper Cox to the bedroom, where he
apparently believed it could be found. Id. As they spoke with one another,
Trooper Cox noticed Appellant focusing not on him but on a bag in the hallway.
Id. at 104. The bag, which was apparently marketed under the brand name
Mossimo, contained a substantial amount of crack cocaine. Id. at 107. Police
recovered two digital scales, drug packaging materials including sandwich
bags, a metal grinder for grinding marijuana, ammunition, and two guns: a
Smith and Wesson .40 caliber handgun and a .22 caliber firearm. Id. at 108-
11, 114. Police also found five cellular phones and $361 in cash, and a baggie
of heroin in the kitchen freezer. Id. at 112, 116. In addition, they found a
food stamp card for an individual who is not otherwise identified in this case;
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Trooper Cox testified that some drug users who receive public benefits trade
their food stamps for narcotics. Id. at 117.
Appellant gave Trooper Cox permission to search his phone and
provided him with the phone’s passcode. N.T. Trial at 118. Trooper Cox
testified that he recovered text messages from Appellant’s phone, including
an exchange with codefendant Demitrus Faust referring to a cocaine sale and
an exchange with his mother in which she warns him to “stop having people
come to [his] house” because the high traffic had drawn the attention of law
enforcement.5 Id. at 122-23. In another text conversation with his mother,
Appellant told her that he has “the stuff” and he would be coming soon with
$3,000. Id. at 124. Two days prior to execution of the search warrant, he
sent a text message to an unknown person that he was back around and that
he had blue bags. Id. at 125. Trooper Cox testified that this referred to
heroin. Id.
Video recovered from Appellant’s phone depicts him holding a bag of
cocaine and discussing how he would package and sell it. N.T. Trial at 126.
Photographs stored in the phone depict blue glassine bags with what Trooper
Cox believed to be heroin and Appellant’s hand and wrist with the Mossimo
bag in the background.6 Id. at 129-30. In another photograph, Appellant is
5 Demitrus Faust entered into a plea agreement at CP-28-CR-0001706-2018
to one count of PWID, under which he was sentenced to 316 days to 23
months of imprisonment, with parole at expiration of the minimum sentence
and upon approval of a home plan. See Judgment of Sentence, 8/14/19.
6 Appellant was apparently photographing his wristwatch.
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touching his beard and in the background cocaine is visible on a table. Id. at
130. Another shows marijuana, a marijuana blunt, and a digital scale. Id.
Franklin County Drug Task Force Detective Jason Taylor testified as an
expert in drug packaging and distribution and rendered his opinion that the
drugs recovered at Appellant’s house were kept in a manner reflecting an
intention to distribute them. N.T. Trial at 157-59, 162. He noted that the
search of Appellant’s house did not yield the type of drug paraphernalia that
one would expect to find if the 100 bags of crack cocaine were for personal
use; nor did police find equipment for the use of heroin. Id. at 163.
Nicholas Stark, a co-owner of Cavalry Firearms, a gun shop, testified
that he sold a Smith and Wesson M&P .40-caliber handgun to Luz Reyes. N.T.
Trial at 54, 56-57. Reyes testified that she entered a guilty plea prior to
Appellant’s trial, and specifically that she pled guilty to conspiring with Stone-
Harrington, Faust, and Appellant to sell cocaine and heroin. Id. at 62, 64-65.
She read from a letter she had written to the trial judge in which she
acknowledged wrongdoing but also attributed her behavior to “allow[ing] a
man who promised the world to use and manipulate me.” Id. at 66. She
identified Appellant as the father of her son, and acknowledged that the two
(as of the time of trial) were still in a romantic relationship. Id. at 69. She
testified that Appellant selling drugs out of her house was something that “just
– it happened.” Id. at 71. She acknowledged that Appellant directed her to
buy the handgun. Id. at 72. She further acknowledged a text message
exchange between herself and Appellant in which she sent him pictures of
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guns from the gun shop and he directed her to purchase a Smith and Wesson.
Id. at 72-73. She confirmed the existence of another text exchange in which
the two were fighting and she expressed a desire to transfer the gun out of
her name, and another exchange in which Appellant wrote, “Baby can you bag
up 10 bags of the white, the scale, $50 a bag, total of 10 bags,” which she
admitted was a reference to packaging drugs for sale. Id. at 75-76.
The Commonwealth played for the jury phone calls between Reyes and
Appellant that were intercepted and recorded during Appellant’s pretrial
incarceration. In one call, Appellant said “you got to move that stuff,” which
apparently referred to drugs. N.T. Trial at 78. He also directed Reyes to
retrieve a bookbag from 102 South Federal Street, as it contained phone
numbers of drug buyers and he wanted her to continue the operation while he
was incarcerated. Id. at 81. In one call, he directed Reyes to get a “little
weigher,” “keep going to the gym,” and “keep your weight up” which were
coded directions to purchase a scale and to obtain more drugs from their
supplier. Id. at 83-84. She admitted having engaged in drug sales at his
direction. Id. at 95.
Jurisdiction
Initially, we must confirm that this Court has proper jurisdiction to act
on Appellant’s appeal, as his sentencing hearing introduced an unusual
variable into our conventional jurisdictional analysis. “We lack jurisdiction to
consider untimely appeals, and we may raise such jurisdictional issues sua
sponte.” Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super.
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2015) (citation omitted). “If a defendant files a timely post-sentence motion,
the appeal period does not begin to run until the motion is decided [. . .
however, a]n untimely post-sentence motion does not toll the appeal period.
Id. (citations omitted).
Nevertheless, this Court has held that, in certain circumstances, a trial
court may permit a defendant to file an otherwise untimely post-sentence
motion nunc pro tunc.
To be entitled to file a post-sentence motion nunc pro tunc, a
defendant must, within 30 days after the imposition of sentence,
demonstrate sufficient cause, i.e., reasons that excuse the late
filing. . . . When the defendant has met this burden and has
shown sufficient cause, the trial court must then exercise its
discretion in deciding whether to permit the defendant to file the
post-sentence motion nunc pro tunc. If the trial court chooses to
permit a defendant to file a post-sentence motion nunc pro tunc,
the court must do so expressly.
* * *
If the trial court does not expressly grant nunc pro tunc relief, the
time for filing an appeal is neither tolled nor extended. . . . [W]hen
the trial court grants a request to file a post-sentence motion nunc
pro tunc, the post-sentence motion filed as a result must be
treated as though it were filed within the 10-day period following
the imposition of sentence.
Commonwealth v. Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (en
banc) (footnote omitted).
Based upon the following, we conclude that the trial court expressly
granted Appellant permission to file a post-sentence motion nunc pro tunc.
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At his sentencing hearing, through counsel, Appellant expressed a desire
to proceed pro se.7 N.T. Sent. at 17. The trial court, appropriately, acted on
a concern that Appellant have new counsel with whom he could discuss the
pro se option before he made the decision. Id. at 18. Trial counsel was
privately retained, but was not retained to represent Appellant post-
sentencing. Id. at 17. Appellant informed the trial court that he had already
prepared a post-sentence motion and was ready to file it. Id. at 19. The trial
court observed that it could not accept his motion until Appellant had waived
his right to counsel. Id. The trial court then asked the Commonwealth if
there would be any objection to enlarging the time in which Appellant might
file his post-sentence motion, and the Commonwealth responded that there
would be no objection. Id. Then, the trial court proposed to grant Appellant
an additional thirty days in which to file a post-sentence motion, thus
providing more time for Appellant to consult with appointed counsel and
decide whether to proceed pro se or with counsel. Id.
Appellant was sentenced on December 18, 2019, and counsel was
appointed the next day. On December 31st, he filed a motion to proceed pro
7 We also note that the trial court, prior to imposing sentence, noted
Appellant’s arguments sounding in the weight of the evidence. N.T. Sent. at
7 (“[Y]ou’re making credible arguments regarding weight and sufficiency of
evidence, but those questions aren’t before me today. Those will be questions
that you can raise with the Superior Court in a direct appeal.”). Thus, we are
assured that Appellant made appropriate efforts to comply with the letter and
spirit of Pa.R.Crim.P. 607, and certainly the trial court was given timely notice
that weight of the evidence would be an appellate issue in this matter.
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se. On January 15, 2020 (28 days post-sentencing), the trial court held a
hearing on Appellant’s motion, granted it, and accepted his post-sentence
motion for filing.8 On January 27th, appointed counsel filed a motion to
withdraw, which was granted on March 13th. The Commonwealth filed an
answer to Appellant’s post-sentence motion on February 13th. On April 17th,
122 days after Appellant’s December 18th sentencing hearing and 94 days
after the filing of Appellant’s post-sentence motion, the trial court denied that
motion. On May 1st, Appellant filed a motion to extend the time in which he
might file an appeal, and the trial court denied the motion on May 11th. On
May 15th, 150 days after his sentence was imposed and 29 days after the trial
court denied his post-sentence motion, Appellant filed his notice of appeal.
Thus, we conclude that the trial court, pursuant to Dreves, expressly
granted Appellant permission to file a post-sentence motion, nunc pro tunc,
within 30 days of the imposition of sentence. Appellant filed his pro se motion
within the permitted time period, and subsequently filed a notice of appeal
within 30 days of the date the trial court denied his post-sentence motion.
Therefore we conclude that the appeal is timely and we may proceed to the
merits of Appellant’s complaints.
Sufficiency and Weight
8 The docket reflects that the trial court’s order permitting Appellant to
proceed pro se was not docketed until the following day, January 16th.
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Appellant argues that the evidence undergirding each of his convictions
is insufficient, and that each conviction is against the greater weight of the
evidence. We review each conviction in series, analyzing both the weight and
sufficiency challenges as we proceed.
In reviewing a challenge to the sufficiency of the evidence, our standard
of review requires this Court to examine all of the evidence admitted at trial,
together with any reasonable inferences that can be drawn therefrom, in the
light most favorable to the party who prevailed below. See Commonwealth
v. Crabill, 926 A.2d 488, 490 (Pa. Super. 2007). If the evidence adduced
below, when viewed through this lens, establishes each element of the
charged crimes beyond a reasonable doubt, then we must affirm. Id. “[W]e
bear in mind that: the Commonwealth's burden may be sustained by means
of wholly circumstantial evidence; the entire trial record is evaluated and all
evidence received against the defendant considered; and the trier of fact is
free to believe all, part, or none of the evidence when evaluating witness
credibility.” Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007)
(citations omitted).
A challenge to the weight of the evidence generally must be preserved
in a post-sentence motion, per Pa.R.Crim.P. 607 (providing that weight
challenges must be brought by oral or written motion before sentencing, or in
a post-sentence motion).9 “As noted in the comment to Rule 607, ‘the purpose
9 The trial court notes that Appellant’s post-sentence motion was
“disorganized and convoluted” and states that “[t]o the extent [Appellant]
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of this rule is to make it clear that a challenge to the weight of the evidence
must be raised with the trial judge or it will be waived.’” Commonwealth v.
Gillard, 850 A.2d 1273, 1277 (Pa. Super. 2004). “Appellate review of a
weight claim is a review of the exercise of discretion, not of the underlying
question of whether the verdict is against the weight of the evidence.”
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted).
A motion for a new trial based on a claim that the verdict is against the weight
of the evidence is addressed to the discretion of the trial court.
Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000);
Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. 1994). A new trial
should not be granted because of a mere conflict in the testimony or because
a factfinder considering the same facts may have arrived at a different
conclusion. Widmer, 744 A.2d at 752. “[T]he role of the trial judge is to
determine that ‘notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight with all the
facts is to deny justice.’” Id. at 752 (citation omitted). “[A] new trial should
be awarded when the jury's verdict is so contrary to the evidence as to shock
one's sense of justice and the award of a new trial is imperative so that right
may be given another opportunity to prevail.” Brown, 648 A.2d at 1189.
PWID, Paraphernalia, & Conspiracy – Cocaine
now raises issues that were not included in his Post-Sentence Motion, we
believe they are waived.” Trial Ct. Op., 6/19/20, at 4 (incorporating Trial Ct.
Op., 4/17/20, responding to post-sentence motion).
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To establish PWID, the Commonwealth must prove that Appellant
knowingly or intentionally possessed a controlled substance with the intent to
manufacture, distribute, or deliver it while not properly registered to do so.10
See 35 P.S. § 780–113(a)(30); Commonwealth v. Brown, 48 A.3d 426,
430 (Pa. Super. 2012). A drug paraphernalia conviction is established when
a defendant uses, or possesses with the intent to use, drug paraphernalia for
the purpose of, among other things, packing, repacking, storing, or otherwise
introducing a controlled substance into the human body in violation of our
anti-narcotics act.11 See 35 P.S. § 780-113(a)(32). Otherwise mundane
packaging materials can constitute paraphernalia; the Commonwealth must
establish that such materials were used or intended to be used with a
controlled substance. Commonwealth v. Torres, 617 A.2d 812, 815 (Pa.
Super. 1992).
Conspiracy is established when, with the intent of promoting or
facilitating commission of a crime, a person agrees with another that “one or
more of them will engage in conduct which constitutes such crime or an
attempt or solicitation to commit such crime” or “agrees to aid such other
person or persons in the planning or commission of such crime or of an
attempt or solicitation to commit such crime.” 18 Pa.C.S. § 903(a)(1) and
(2).
10 Appellant does not claim to be registered to purvey controlled substances.
11 The Controlled Substance, Drug, Device and Cosmetic Act appears at 35
P.S. §§ 780-101 to 780-114.
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“When contraband is not found on the defendant's person, the
Commonwealth must establish ‘constructive possession,’ that is, the power to
control contraband and the intent to exercise that control.” Commonwealth
v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996) (citation omitted). Multiple
individuals may share access, control, and the intent to exercise control over
illegal objects or substances. Id. These elements may be inferred from
examining the totality of the circumstances, and the Commonwealth may
establish constructive possession by circumstantial evidence. Id.
Viewing the evidence pertaining to crack cocaine in the light most
favorable to the Commonwealth, this is not a close call. During the house
search, as soon as Appellant spoke with Trooper Cox and realized that he had
been under surveillance for some time, Appellant volunteered that he was a
crack cocaine dealer, gave Trooper Cox his cellular phone, and provided the
code to unlock the phone as well. Certainly the prodigious quantities of crack
cocaine recovered are consistent with trafficking rather than personal use.
Evidence of conspiracy was also ample, but the conviction can be supported
by this text message, from Appellant to Reyes, alone: “Baby can you bag up
10 bags of the white, the scale, $50 a bag, total of 10 bags.” N.T. Trial at 75-
76. Appellant’s explicit admission not only that he was selling drugs but that
he is a crack cocaine dealer exemplifies his recognition that his operation
had been exposed and there was no further purpose to be served by being
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evasive.12 The digital scales and packaging materials, viewed in this context,
amply support Appellant’s paraphernalia conviction.
The Commonwealth explained the lack of money recovered by opining
that the bulk of drugs meant that Appellant had just gotten (and paid for) a
new quantity of crack cocaine, but had not had a chance to sell any significant
amount of the new batch at that time.13 This makes sense. Appellant’s
challenges to his PWID, conspiracy, and paraphernalia convictions stemming
from crack cocaine collapse under a mountain of evidence, and must fail.
Violations of the Uniform Firearms Act (VUFA)
Appellant challenges his convictions under 18 Pa.C.S. § 6105(a)(1) for
two counts of possession of a firearm by a person prohibited from doing so.
A conviction under this section is predicated on two elements: a conviction of
an enumerated offense, and possession of a firearm.14 Appellant’s arguments
are essentially a retread of his arguments regarding the cocaine and other
12N.T. Trial at 104 (“[Appellant] did admit to me that he was a cocaine – crack
cocaine distributor.”).
13 N.T. Trial at 166-67 (court-qualified expert Detective Taylor testifying,
“Well, [the lack of cash is] easily explainable because the amount of controlled
substances that were found . . . [t]hey had not sold enough to make up the
funds that would account for the sales, so basically they had just acquired the
large amounts of controlled substances and had[n’t] yet made enough sales .
. .” (the transcript says “had yet made enough sales” but it is clear from the
context that the witness meant “hadn’t”.)).
14 See 18 Pa.C.S. § 6105(a)(1).
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incriminating evidence recovered during the search of his home.15 In brief,
we affirm for many of the same reasons that we affirm his convictions for
selling crack cocaine and conspiring to do so, and for possessing paraphernalia
in service of those actions. The evidence established that one of the guns was
purchased by codefendant Reyes at Appellant’s explicit direction, and that he
even told her what to say, should the vendor inquire as to why she was buying
a handgun. That particular gun was recovered from the same Mossimo bag
that the Commonwealth established was used by all coconspirators in the
conspiracy to sell crack cocaine that Appellant directed. Although Appellant
argues that one of the guns was claimed by a codefendant,16 as noted supra
the jury is free to credit all, some, or none of the evidence presented. Both
guns were recovered from the Mossimo bag, and Appellant’s constructive
possession and control of that bag and its contents is firmly established by the
Commonwealth’s evidence. Given that we have already found Appellant’s
connection to the bag via the law of constructive possession to be sound, and
given that there can be no doubt that Appellant had prior convictions
establishing the propriety of a conviction under Section 6105, this claim also
fails.
15 See Appellant’s Brief at 16-18.
16 See Appellant’s Brief at 5.
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PWID & Conspiracy – Heroin
In his first and sixth claim of error, Appellant challenges his convictions
for PWID-heroin and conspiracy thereof. Appellant argues that the
Commonwealth did not establish constructive possession beyond a reasonable
doubt, as the hundredth of a gram of heroin was recovered from a first-floor
refrigerator that multiple people shared and Appellant’s bedroom was on the
second floor. Appellant’s Brief at 12.
The Commonwealth points out that the overall volume of drugs and drug
paraphernalia at Appellant’s house, in concert with the guns recovered by
police, strongly suggests an intent to sell drugs. Commonwealth’s Brief at
10.17 The trial court points out that Reyes, Appellant’s codefendant, testified
that Appellant was involved in the drug trade. Trial Ct. Op. at 5.
The trial court described the evidence supporting Appellant’s PWID-
heroin conviction as follows:
A substance identified as heroin was found at the house
[Appellant] was living in. [Appellant] was observed in the home
on a regular basis. The heroin was found in a dresser drawer in
[Appellant’s] room. [Appellant] had extensive conversations
about selling heroin, including specific amounts and prices that
17 The Commonwealth seems to have confused the heroin and the cocaine, as
it argues from Appellant’s connection to the Mossimo bag, his visible concern
about it during his conversation with Trooper Cox, and the photograph found
in his phone in which the bag is visible. However, it was the crack cocaine
that was found in the bag; the 0.01 grams of heroin was recovered from the
kitchen refrigerator. N.T. Trial at 116. The evidence as to the Mossimo bag
bolsters the Commonwealth’s already-strong case for constructive possession
of the crack cocaine and other contraband found therein, but sheds no light
on the propriety of Appellant’s conviction for PWID-heroin.
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were preserved both in text messages and prison call logs, and
testified to by co-defendant Reyes. One call discussed [Appellant]
needing to get back to 102 Federal Street, where the drugs were
found, to get some “stuff.” Specifically, [Appellant] wanted a
bookbag containing information about people who will buy drugs.
The paraphernalia discovered during the search was indicative of
selling drugs, not using them. This included sales and empty bags
of the kind used for drug distribution. [Appellant] directed others
to sell drugs.
Trial Ct. Op., 4/17/20, at 6 (record citations omitted). Some of these details
are correct, but several are erroneous. There was no heroin found in
Appellant’s room; rather, a bag of crack cocaine was found there. N.T. Trial
at 146. None of the conversations in which Appellant discussed his crack
cocaine business mentioned heroin.18 The rest of the evidence described by
the trial court would seem to apply to Appellant’s crack cocaine business, and
was used by the Commonwealth to establish the particulars of that business.
Likewise, the Commonwealth misstates the facts by asserting that the
hundredth of a gram of heroin was found in the Mossimo bag, which the
Commonwealth established was the key repository for Appellant’s drug trade,
containing the guns, drugs, and packaging material that made up the stock-
in-trade of his commercial venture. Commonwealth’s Brief at 10.
18 In one of the cited conversations, codefendant Reyes acknowledges that
Appellant’s instruction to “bag up 10 bags of the white, the scale, $50 a bag,
total of 10 bags” and “You all got the bags to put the turkeys in” refers to
packaging drugs, but when asked “what kind?” she answered “I don’t
remember.” N.T. Trial at 75-76. Of course, this Court is aware that
euphemisms are common in the drug trade; nevertheless, the Commonwealth
must carry its burden beyond a reasonable doubt with testimony that
establishes each element of the charged crimes and is, at a minimum, facially
credible.
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However, we conclude that Appellant’s conviction is sufficient, as a) the
Commonwealth found a hundredth of a gram of heroin in Appellant’s
refrigerator, b) Appellant used blue bags in packaging narcotics, a color that
the Commonwealth established is ubiquitous in Philadelphia’s heroin trade,
and c) when asked if she understood the consequences of her responses (thus
especially focusing the witness on truthful replies), whether she conspired with
Appellant to sell drugs, and whether those drugs were cocaine and heroin,
codefendant Reyes responded with “Yes.”19 Further, the Commonwealth
established that it is not unusual to see a hundredth of a gram of heroin
packaged for sale.20
Because, if true, this evidence is sufficient to establish that Appellant
was a heroin trafficker, we affirm Appellant’ judgment of sentence as to PWID-
heroin and conspiracy thereof. Likewise, we find Appellant’s weight challenge
unavailing due to the uncontradicted evidence we have just recited.
Denial of Appellant’s Post-Sentence Motion
In his eighth, ninth, tenth, eleventh, twelfth, thirteenth, and fourteenth
claims of error, Appellant argues that the trial court erred in denying his post-
sentence motion challenging the weight of the evidence and denying his
request for a new trial as to each of his convictions. This is essentially a re-
packaging of his argument as to the weight of the evidence, which we analyze
19 N.T. Trial at 116, 125, 65.
20 N.T. Trial at 168.
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alongside this sufficiency arguments as to each conviction; thus, we will not
repeat our analysis here.
Discretionary Aspects of Sentence
Appellant argues that the trial court abused its discretion in imposing
consecutive, rather than concurrent, sentences in this matter, as the sentence
is unduly harsh. Appellant’s Brief at 44-46. His statement per Pa.R.A.P.
2119(f) outlines the four-part test this Court must apply when evaluating such
claims. Id. at 43-44.
To establish that a sentence is unduly harsh, an appellant must show,
“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.
Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation omitted).
An appellant must satisfy a four-part test to invoke this Court's
jurisdiction when challenging the discretionary aspects of a sentence. We must
consider:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant's brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Gonzalez, 109 A.3d at 731 (citation omitted). The trial court notes that the
only challenge Appellant posed in his post-sentence motion was to what he
assumed was the imposition of a mandatory minimum sentence for his PWID-
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heroin conviction. Trial Ct. Op. at 4. Thus, this challenge is waived. In any
event, Appellant is not entitled to imposition of concurrent sentences. This
Court has stated that “a defendant may raise a substantial question where he
receives consecutive sentences within the guideline ranges if the case involves
circumstances where the application of the guidelines would be clearly
unreasonable, resulting in an excessive sentence; however, a bald claim of
excessiveness due to the consecutive nature of a sentence will not raise a
substantial question.” Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.
Super. 2013) (citation omitted). That is exactly what Appellant has presented
here; thus, the claim fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/02/2021
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