Com. v. Williams, J.

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2023 PA Super 147COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH EDWARD WILLIAMS :
:
Appellant : No. 993 MDA 2022
Appeal from the Judgment of Sentence Entered January 20, 2022
In the Court of Common Pleas of Luzerne County Criminal Division at No:
CP-40-CR-0002417-2019
BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.
OPINION BY STABILE, J.: FILED: AUGUST 4, 2023
Appellant, Joseph Edward Williams, appeals from the January 20, 2022
judgment of sentence imposing 5 to 10 years of incarceration followed by one
year of probation for possession with intent to deliver (“PWID”) a controlled
substance1 (fentanyl) and possession of cocaine.2 The jury found Appellant
not guilty of possession of fentanyl. We affirm.
The record reveals that William Davis was apprehended after a
controlled buy on June 27, 2019. Davis agreed to cooperate with police, led
them to an apartment he shared with his fiancé, Pamela Obitz, and consented
to a search of the premises. Within seconds of entering Davis’s apartment,
police observed Appellant at the apartment’s kitchen table. On the table in
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1 35 P.S. § 780-113(a)(30).
2 35 P.S. § 780-113(a)(16).
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front of Appellant was a scale, and at his feet was a blender with a white
powdery residue in it. Police recovered 171 baggies of fentanyl from the table
in front of Appellant. The parties stipulated that the 171 baggies of fentanyl
weighed 2.7 grams. In a search incident to Appellant’s arrest, police found
one bag of marijuana, one bag of crack cocaine, and $526 in Appellant’s
pockets. A Commonwealth witness testified that the amounts of drugs, cash,
and paraphernalia found on or near Appellant were indicative of drug
distribution.3 Davis explained that he and Obitz, in exchange for drugs for
their personal use, sold drugs for Appellant and allowed him to use their
apartment.
On October 19, 2021, a jury found Appellant guilty of PWID (fentanyl)
and guilty of possession of cocaine, but not guilty of possession of fentanyl,
possession of drug paraphernalia, and possession of a gun with an altered
serial number. The trial court sentenced Appellant as set forth above and
denied Appellant’s motion for reconsideration by order of June 28, 2022. This
timely appeal followed.
Appellant presents three questions:
I. Whether the Commonwealth proved by sufficient evidence
that the Appellant was guilty of [PWID]?
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3 We have culled the relevant facts from pages two through nine of the trial
court’s October 25, 2022 opinion. Except as noted below in connection with
Appellant’s challenge to his conviction for cocaine possession, the pertinent
facts are not in dispute.
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II. Whether the Commonwealth proved by sufficient evidence
that the Appellant was guilty of possession of [cocaine]?
III. Whether the trial court abused its discretion or committed
an error of law in sentencing the Appellant in applying an
incorrect Offense Gravity Score?
Appellant’s Brief at 1.
We begin with Appellant’s challenges to the sufficiency of the evidence,
which we review as follows:
We must determine whether the evidence admitted at trial,
and all reasonable inferences drawn therefrom, when viewed in a
light most favorable to the Commonwealth as verdict winner,
support the conviction beyond a reasonable doubt. Where there
is sufficient evidence to enable the trier of fact to find every
element of the crime has been established beyond a reasonable
doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute our
judgment for that of the fact-finder. The Commonwealth’s burden
may be met 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. Izurieta, 171 A.3d 803, 806 (Pa. Super. 2017).
Section 780-113(a)(16) prohibits knowing possession of a controlled
substance.4 Appellant argues that the following testimony is not sufficient to
support a conviction for knowing possession of cocaine:
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4 Section 780-113(a)(16) prohibits “Knowingly or intentionally possessing a
controlled or counterfeit substance by a person not registered under this act,
(Footnote Continued Next Page)
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Q. Were there any other drugs on the defendant that
day?
A. That day we located an amount of marijuana and I
believe also an amount if I’m not mistaken crack cocaine.
N.T. Trial, 10/19/21, at 110. On cross examination, defense counsel asked
one question:
Q. Where did you find the cocaine?
A. I don’t recall the location of the cocaine.
Id. at 121. In addition, the Commonwealth produced the cocaine as an
exhibit. The parties stipulated that the exhibit contained .21 grams of cocaine.
Appellant argues the Commonwealth’s evidence is so “weak and
inconclusive that, as a matter of law, no probability of fact can be drawn from
the combined circumstances.” Izurieta, 171 A.3d at 806. Appellant asserts,
in conclusionary fashion, that “the Commonwealth did not meet their burden
of proof.” Appellant’s Brief at 7.
Appellant’s argument rests on one aspect of our standard of review but
neglects several other important principles of law. We have explained, for
example, that even where witnesses contradict themselves, these
“inconsistent or contradictory statements may be used to attack the witness’
credibility.” Commonwealth v. Williams, 434 A.2d 717, 719 (Pa. Super.
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or a practitioner not registered or licensed by the appropriate State board,
unless the substance was obtained directly from, or pursuant to, a valid
prescription order or order of a practitioner, or except as otherwise authorized
by this act.” 35 P.S. § 780-113(a)(16).
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1981). Contradictory testimony does not, of itself, require the jury to resort
to speculation. Id. Similarly in the instant case, the witness’s testimony,
while equivocal, stated that police recovered crack cocaine from Appellant’s
person. The jury was free to assess the credibility and weight to be assigned
to this testimony and believe all, part, or none of it regardless the
equivocation. Further, the Commonwealth produced .21 grams of cocaine as
an exhibit. The jury reasonably could have found that this exhibit bolstered
the witness’s testimony, as Appellant cites no evidence that cocaine was
recovered from elsewhere in the apartment. This Court is required, on appeal
from a conviction, to draw all reasonable inferences in the Commonwealth’s
favor, and we are forbidden to substitute our judgment for that of the jury.
Izurieta, 171 A.3d at 806. For the foregoing reasons, Appellant’s argument
does not merit relief.
Next, Appellant argues his conviction for PWID (fentanyl), must fall
because the jury acquitted him of possession of fentanyl, a lesser included
offense. Controlling case law refutes Appellant’s argument:
We note first that inconsistent verdicts, while often
perplexing, are not considered mistakes and do not constitute a
basis for reversal. Consistency in verdicts in criminal cases is not
necessary. When an acquittal on one count in an indictment is
inconsistent with a conviction on a second count, the court looks
upon the acquittal as no more than the jury’s assumption of a
power which they had no right to exercise, but to which they were
disposed through lenity. Thus, this Court will not disturb guilty
verdicts on the basis of apparent inconsistencies as long as there
is evidence to support the verdict. The rule that inconsistent
verdicts do not constitute reversible error applies even
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where the acquitted offense is a lesser included offense of
the charge for which a defendant is found guilty.
Commonwealth v. Burton, 234 A.3d 824, 829 (Pa. 2020) (emphasis
added).
Furthermore, Appellant’s reliance on Double Jeopardy principles is
misplaced. He relies on § 109 of the Pennsylvania Crimes Code:
When a prosecution is for a violation of the same provision of the
statutes and is based upon the same facts as a former
prosecution, it is barred by such former prosecution under the
following circumstances:
(1) The former prosecution resulted in an acquittal. There
is an acquittal if the prosecution resulted in a finding of not guilty
by the trier of fact or in a determination that there was insufficient
evidence to warrant a conviction. A finding of guilty of a lesser
included offense is an acquittal of the greater inclusive offense,
although the conviction is subsequently set aside.
18 Pa.C.S.A. § 109(1). Section 109 does not apply because Appellant was not
acquitted of a lesser included offense in a former prosecution. Rather, the
jury returned an inconsistent verdict during a single prosecution for the lesser
and greater offenses, as is permissible under Burton. Appellant’s second
argument fails.
In his final argument, Appellant asserts that the trial court’s sentence
violated the holdings of Apprendi v. New Jersey, 530 U.S. 466 (2000) and
Alleyne v. United States, 570 U.S. 99 (2013) because the weight of the
fentanyl (2.7 grams), which resulted in an offense gravity score (“OGS”) of
ten rather than nine, was stipulated to by the parties and not found by a jury.
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The OGS of ten resulted in a standard sentencing guideline range of 60 to 72
months; it would have been 48 to 60 months with an OGS of nine.
Appellant misapplies Apprendi and Alleyne. In Apprendi, the United
States Supreme Court held that any fact, other than a prior conviction, which
increases the statutory maximum penalty for an offense must be submitted
to the fact finder and proven beyond a reasonable doubt. Similarly, the
Alleyne Court held that any fact that increases a mandatory minimum
sentence must be submitted to the fact finder and proven beyond a reasonable
doubt. But where the fact in question does not affect the maximum sentence
and the minimum sentence remains within the discretion of the sentencing
court, Apprendi and Alleyne do not apply. The trial court’s “broad
sentencing discretion, informed by judicial fact finding,” does not implicate
Alleyne or Apprendi. Commonwealth v. Hopkins, 117 A.3d 247, 262 n.5
(Pa. 2015). We have explained, therefore, that a fact resulting in an increased
sentencing guideline range, such as the defendant’s use of a deadly weapon,
need not be submitted to the factfinder and proven beyond a reasonable
doubt. Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa.
Super. 2014) (en banc), appeal denied, 104 A.3d 1 (Pa. 2014). Here, the
weight of the fentanyl enhanced the sentencing guideline range; it did not
change the statutory maximum or trigger a mandatory minimum. And the
trial court retained discretion to impose a minimum sentence below, within,
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or above the guideline range. Appellant’s reliance on Apprendi and Alleyne
is misplaced.
Because we have found no merit to any of Appellant’s arguments, we
affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/04/2023
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