Com. v. Morroni, J. ( 2018 )

J-A32030-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACOB ALLEN MORRONI, :
:
Appellant : No. 239 MDA 2017
Appeal from the Judgment of Sentence August 30, 2016
In the Court of Common Pleas of Centre County
Criminal Division at No.: CP-14-CR-0001599-2015
BEFORE: OTT, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED MARCH 23, 2018
Appellant, Jacob Allen Morroni, appeals from the Judgment of
Sentence entered by the Centre County Court of Common Pleas following his
convictions after a jury trial of Possession of a Controlled Substance With
Intent to Deliver (“PWID”)1 and related offenses. We affirm on the basis of
the trial court’s January 5, 2017 Opinion.
In September 2014, Appellant arranged to sell bath salts to his friend
William Blankenship, who was working closely with Pennsylvania State Police
Trooper Kevin Reese as an informant. At the time, Appellant had an active
felony warrant. Shortly after Appellant appeared at Blankenship’s home in
Centre County to make the sale, Trooper Reese and Trooper Steven
Peterson apprehended him. From a search of Appellant’s person, police
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1 35 P.S. § 780-113(a)(30).
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* Retired Senior Judge assigned to the Superior Court.
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recovered twelve glassine bags of synthetic marijuana, eight glassine bags
of bath salts, drug paraphernalia, brass knuckles, $277, and a cell phone. A
subsequent search of Appellant’s cell phone showed several incriminating
messages that referred to similar prior drug transactions with others.
Police also arrested Joseph Winter, who had driven Appellant to
Blankenship’s home and accompanied Appellant inside, and charged him
with possessing bath salts and drug paraphernalia. Winter later admitted to
police that he had agreed to drive Appellant to Blankenship’s home for the
drug sale in exchange for one bag of bath salts.
The Commonwealth charged Appellant with PWID, Criminal Use of a
Communication Facility, two counts of Possession of a Controlled Substance,
Possession of Drug Paraphernalia, and Prohibited Offensive Weapons.2
Appellant proceeded to a one-day jury trial, at which the
Commonwealth presented testimony from, inter alia, Blankenship, Winter,
Trooper Reese, and Trooper Peterson. Appellant did not testify and
presented no evidence. He conceded his guilt regarding Possession of Drug
Paraphernalia, Prohibited Offensive Weapons, and the two counts of
Possession of a Controlled Substance, arguing that he had the drugs and
paraphernalia for his personal use only. N.T. Trial, 4/4/17, at 246-47, 252.
The jury convicted Appellant of all charges.
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235 P.S. § 780-113(a)(30); 18 Pa.C.S. § 7512; 35 P.S. § 780-113(a)(16);
35 P.S. § 780-113(a)(32); and 18 Pa.C.S. § 908, respectively.
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On August 30, 2016, the trial court sentenced Appellant to an
aggregate term of 27 to 54 months’ incarceration. Appellant filed a timely
Post-Sentence Motion, which the trial court denied on January 5, 2017.
On February 1, 2017, Appellant filed a Notice of Appeal. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents five issues for our review:
I. Did the lower [c]ourt err in denying Appellant’s “Motion for a
New Trial/Motion for Judgment of Acquittal” by affirming its
decision to allow the Commonwealth to introduce evidence of
Appellant’s alleged prior bad acts?
II. Did the lower [c]ourt err in denying Appellant’s “Motion for a
New Trial/Motion for Judgment of Acquittal” by affirming its
denial at trial of Appellant’s oral Motion for Judgment of Acquittal
as to [c]ount 1 - Possession with Intent to Deliver and [c]ount 2
- Criminal Use of a Communication Facility?
III. Did the lower [c]ourt err in denying Appellant’s “Motion for a
New Trial/Motion for Judgment of Acquittal” by denying
Appellant’s claim that the verdicts as to said [c]ounts were
contrary to the evidence?
IV. Did the lower [c]ourt err in denying Appellant’s “Motion for a
New Trial/Motion for Judgment of Acquittal” by denying
Appellant’s claim that the verdicts as to said [c]ounts were
contrary to the weight of the evidence?
V. Did the lower [c]ourt err in denying Appellant’s “Motion to
Modify Sentence” in that the sentences imposed are excessive,
inappropriate and disproportionate to the amount of confinement
necessary to protect the public and to punish Appellant?
Appellant’s Brief at 9-10.
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Pa.R.E. 404(b)
In his first issue, Appellant challenges the admission of evidence
“recovered from [his] cellular phone purporting to show that [he] had
engaged in drug dealing in the past.” Appellant’s Brief at 19.
The “[a]dmission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial court clearly
abused its discretion.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa.
Super. 2015) (citation and quotation omitted). “Accordingly, a ruling
admitting evidence will not be disturbed on appeal unless that ruling reflects
manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such
lack of support to be clearly erroneous.” Commonwealth v. Huggins, 68
A.3d 962, 966 (Pa. Super. 2013) (citations and internal quotations omitted).
Pennsylvania Rule of Evidence 404(b) prohibits evidence of a
defendant’s prior bad acts “to prove a person’s character” or demonstrate
“that on a particular occasion the person acted in accordance with the
character.” Pa.R.E. 404(b)(1). Nevertheless, the Rule further provides that
prior bad acts evidence “may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Pa.R.E. 404(b)(2).
“In a criminal case, this evidence is admissible only if the probative
value of the evidence outweighs its potential for unfair prejudice.” Pa.R.E.
404(b)(2). See also Daniel J. Anders, Ohlbaum on the Pennsylvania Rules
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of Evidence § 404.11 et. seq. (2018 ed. LexisNexis Matthew Bender).
“Where evidence of prior bad acts is admitted, the defendant is entitled to a
jury instruction that the evidence is admissible only for a limited purpose.”
Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa. Super. 2016) (citation
omitted).
The Honorable Katherine V. Oliver, sitting as the trial court, has
authored a comprehensive, thorough, and well-reasoned Opinion, citing
relevant case law in addressing Appellant’s evidentiary claim. We, thus,
affirm on the basis of the trial court’s January 5, 2017 Opinion. See Trial
Court Opinion, dated 1/5/17, at 3-5 (concluding that the cell phone evidence
referring to Appellant’s prior drug transactions was properly admitted under
Pa.R.E. 404(b)(2) because: (1) it established Appellant’s intent to commit
PWID; (2) it rebutted Appellant’s personal-use defense; and (3) “the
probative value of the evidence outweighed any unfair prejudicial effect.”).3
Sufficiency of the Evidence
In his second and third issues, Appellant essentially contends that the
evidence was insufficient to support his convictions for PWID and Criminal
Use of a Communication Facility. See Appellant’s Brief at 23-27.
We review claims regarding the sufficiency of the evidence by
considering whether, “viewing all the evidence admitted at trial in the light
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3 The trial court also provided a jury instruction about the limited purpose of
this evidence. See N.T. Trial, 7/26/16, at 285-86.
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most favorable to the verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime beyond a reasonable
doubt.” Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014)
(citation and quotation omitted). Further, a conviction may be sustained
wholly on circumstantial evidence, and the trier of fact—while passing on the
credibility of the witnesses and the weight of the evidence—is free to believe
all, part, or none of the evidence. Id. at 40. In conducting this review, the
appellate court may not weigh the evidence and substitute its judgment for
the fact-finder. Id. at 39-40.
To prove the offense of PWID, the Commonwealth must demonstrate
beyond a reasonable doubt that: (1) the accused possessed a controlled
substance; and (2) the accused had the intent to deliver it to another. 35
P.S. § 780-113(a)(30); Commonwealth v. Taylor, 33 A.3d 1283, 1288
(Pa. Super. 2011).
The offense of Criminal Use of a Communication Facility is defined as
follows: “A person commits a felony of the third degree if that person uses a
communication facility to commit, cause or facilitate the commission or the
attempt thereof of any crime which constitutes a felony under . . . The
Controlled Substance, Drug, Device and Cosmetic Act.” 18 Pa.C.S. §
7512(a). The statute defines a communication facility as “a public or private
instrumentality used or useful in the transmission of signs, signals, writing,
images, sounds, data or intelligence of any nature transmitted in whole or in
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part, including, but not limited to, telephone, wire, radio, electromagnetic,
photoelectronic or photo-optical systems or the mail.” 18 Pa.C.S. § 7512(c).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the comprehensive and well-reasoned Opinion of the trial
court, we conclude that there is no merit to Appellant’s sufficiency claims on
appeal. Accordingly, we affirm on the basis of the trial court’s Opinion. See
Trial Court Opinion at 5-8 (finding that (1) Appellant conceded his
possession of the drugs; (2) the Commonwealth witnesses testified about
arranging by phone specifically to purchase drugs from Appellant; and (3)
Appellant’s text messages of prior drug sales using coded language
confirmed Appellant’s intent to sell the drugs). Appellant’s sufficiency
challenge, thus, fails.
Weight of the Evidence
We next address Appellant’s assertion, contained in discussion of both
his third and fourth issues, that the jury’s verdict was against the weight of
the evidence. In support, Appellant presents essentially the same
sufficiency arguments as addressed above, and utterly fails to address how
the trial court abused its discretion in denying his post-trial weight
challenge. Appellant’s Brief at 28.
We note that the weight to be given the evidence “is exclusively for
the finder of fact who is free to believe all, part, or none of the evidence and
to determine the credibility of the witnesses.” Commonwealth v.
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Champney, 832 A.2d 403, 408 (Pa. 2003) (quotation and citations
omitted). A trial court reviewing a challenge to the verdict based on the
weight of the evidence may grant relief only if “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.” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation
omitted).
The trial court’s denial of a weight claim is the least assailable of its
rulings. Commonwealth v. Diggs, 949 A.2d 873, 879-80 (Pa. 2008); see
Commonwealth v. Morgan, 913 A.2d 906, 909 (Pa. Super. 2006) (stating
that because trial court is in best position to view the evidence presented, an
appellate court will give that court ”the utmost consideration” when
reviewing its weight determination). On appeal, this Court may not consider
the underlying question of whether the verdict is against the weight of the
evidence; instead, we are limited to evaluating only the trial court’s exercise
of discretion in denying that claim. Commonwealth v. Morales, 91 A.3d
80, 91 (Pa. 2014). As our Supreme Court has made clear, reversal is only
appropriate “where the facts and inferences disclose a palpable abuse of
discretion[.]” Id. (citations omitted, emphasis in original).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the comprehensive and well-reasoned Opinion of the trial
court, we conclude that there is no merit to Appellant’s weight of the
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evidence claim on appeal. The trial court carefully evaluated the record and
the evidence in reviewing Appellant’s weight claim. See Trial Court Opinion
at 8-9. We discern no abuse of discretion in the trial court’s denial of
Appellant’s weight claim. Accordingly, we affirm.
Sentencing
In his final issue, Appellant challenges the discretionary aspects of his
sentence. He avers that the trial court did not adequately consider his
statements regarding the collateral consequences of his new sentence.
Appellant’s Brief at 16, 29-31.
Challenges to the discretionary aspects of sentence are not appealable
as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super.
2015). Rather, an appellant challenging the sentencing court’s discretion
must invoke this Court’s jurisdiction by (1) filing a timely notice of appeal;
(2) properly preserving the issue at sentencing or in a motion to reconsider
and modify the sentence; (3) complying with Pa.R.A.P. 2119(f), which
requires a separate section of the brief setting forth “a concise statement of
the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence[;]” and (4) presenting a substantial
question that the sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S. § 9781(b). Id. (citation omitted).
Herein, Appellant has complied with the first three requirements:
Appellant filed a timely appeal, raised this specific sentencing challenge in a
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Post-Sentence Motion,4 and included in his Brief the required Pa.R.A.P.
2119(f) Statement. Therefore, we next determine whether Appellant raises
a substantial question requiring us to review the discretionary aspects of the
sentence imposed by the trial court.
“We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Hicks, 151
A.3d 216, 227 (Pa. Super. 2016) (citation and quotation omitted). The
determination of whether a particular issue raises a substantial question is to
be evaluated on a case-by-case basis. Commonwealth v. Bishop, 831
A.2d 656, 660 (Pa. Super. 2003). An appellant raises a “substantial
question” when he “sets forth a plausible argument that the sentence
violates a provision of the sentencing code or is contrary to the fundamental
norms of the sentencing process.” Commonwealth v. Crump, 995 A.2d
1280, 1282 (Pa. Super. 2010) (citation omitted).
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4 Insofar as Appellant summarily argues in his Pa.R.A.P. 2119(f) Statement
that the trial court abused its discretion by stating “insufficient and/or no
articulable reasons . . . at the time of sentencing[,]” see Appellant’s Brief at
16, he has waived this claim for failing to preserve it in his Post-Sentence
Motion. See Appellant’s Post-Sentence Motion, filed 9/9/16, at 4-6;
Appellant’s Brief in Support of Post-Sentence Motion, filed 11/1/16, at 9-11.
See also Leatherby, supra at 83; Commonwealth v. Frederick, 475
A.2d 754, 764 (Pa. Super. 1984) (finding that defendant waived claim that
sentencing court erred in “failing to adequately state its reasons for the
sentence on the record” where he failed to preserve it in a motion to modify
sentence).
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An argument that the sentencing court failed to adequately consider
mitigating factors in favor of a lesser sentence does not present a
substantial question appropriate for our review. Commonwealth v.
Miklos, 159 A.3d 962, 970 (Pa. Super. 2017), appeal denied, 170 A.3d
1042 (Pa. 2017); see also Commonwealth v. Williams, 562 A.2d 1385,
1388 (Pa. Super. 1989) (en banc) (concluding that an allegation that the
sentencing court did not adequately consider various factors is, in effect, a
request that this court substitute its judgment for that of the lower court in
fashioning a defendant’s sentence).
Here, Appellant claims in his argument section that the trial court did
not adequately consider his statements regarding the collateral
consequences of his new sentence. See Appellant’s Brief at 29-31
(pertaining to his sentence adversely impacting his place on waitlists for
rehabilitative programs in prison). This issue does not present a substantial
question.5 Accordingly, we will not review the merits of this claim. See
Miklos, supra at 970; Williams, supra at 1388.
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5 Insofar as Appellant attempts to expand his argument to include other
challenges to the discretionary aspects of his sentence, we will not address
them since Appellant did not include these grounds in his 2119(f) Statement.
See Appellant’s Brief at 29-31 (stating that the aggregate of his consecutive
sentences rendered an excessive sentence). Moreover, we note that “a
sentencing court generally has discretion to impose multiple sentences
concurrently or consecutively, and a challenge to the exercise of that
discretion does not ordinarily raise a substantial question.”
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014).
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Moreover, even had Appellant presented a substantial question, he
would not be entitled to relief. After a thorough review of the record,
including the sentencing transcript, the briefs of the parties, the applicable
law, and the comprehensive and well-reasoned Opinion of the trial court, we
conclude that there is no merit to Appellant’s sentencing claims. See Trial
Court Opinion at 10-11 (finding that (1) Appellant’s drug sales presented
“serious dangers to the public, and victimize[d] the community as a
whole[,]” which required standard-range sentences in order to rehabilitate
Appellant; and (2) no other factors persuaded the court that it should
impose mitigated sentences or run each of Appellant’s sentences
concurrently).
The parties are instructed to attach a copy of the trial court’s January
5, 2017 Opinion to all future filings.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/23/2018
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Circulated 03/02/2018 02:29 PM
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IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA
CRIMINAL ACTION-LAW
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JACOB ALLEN MORRONI, ) ,.._,
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Attorney for the Commonwealth: Stacy Parks Miller, EsqJ�i:- .. , C.}1 J
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OPINION AND ORDER
Presently before the Court is Defendant's "Post-Sentencing" Motion filed on
September 9, 2016. The matter has been briefed by Defendant and the Commonwealth.
Argument was scheduled for December 12, 2016, following several continuance requests.
At the time of argument, both Parties agreed to submit the matter for decision on the
briefs. For the reasons discussed below, Defendant's Post-Sentencing Motion is denied
in its entirety.
BACKGROUND
Defendant's criminal charges in this case arise from events that occurred on September
15, 2014. On August 20, 2015, the following charges were filed against Defendant: (1)
Possession with Intent to Deliver or Manufacture Controlled Substance, 35 Pa. C.S.A. § 780-
113(a)(30)("PWID"); (2) Criminal Use of Communication Facility, 18 Pa. C.S.A. § 7512(a); (3)
Possession of a Controlled Substance without a Valid Prescription Order, 35 Pa. C.S.A. § 780-
lo DRDDS
113(a)(l6) (two counts); (4) Possession of Drug Paraphernalia, 35 Pa. C.S.A. § 780-l 13(a)(32);
and (5) Make Repairs/Sell/Etc. Offensive Weapons 18 Pa. C.S.A. § 908(a). Following a one day
trial, the jury found Defendant guilty on all counts.1 A sentencing hearing was held on August
30, 2016. Defendant was sentenced to an aggregate term of 27 to 54 months in a State
Correctional Institution ("SCI"), consecutive to the SCI sentence he was serving at the time of
sentencing for unrelated robbery convictions.
Pre-trial motions in limine were filed by Defendant and the Commonwealth. The
Commonwealth's motions included a Notice oflntent to Introduce Evidence of Prior Bad Acts
Pursuant to Pa.R.E. 404(b), specifically in regard to text and Facebook messages retrieved from
Defendant's cellular phone ("404(b) Notice"). Argument was held regarding the motions in
limtne on July 20, 2016. The Court deferred ruling on the issues raised by the Commonwealth's
404(b) Notice and Defendant's objections thereto until after presentation of foundational
evidence, including the actual messages at issue, taken outside of the presence of the jury at the
start of trial on July 26, 2016. Following that presentation, and during the course of trial, the
Court sustained Defendant's objections to the proffered evidence, in part, and overruled the
objections, in part.
In his Post-Sentencing Motion filed September 9, 2016, Defendant asserts five separate
grounds for post-sentence relief. These grounds are addressed below.
Suppression Motion
Defendant withdrew this ground for relief in his Brief in Support of Post-Sentence
Motion, which was also confirmed on the December 12, 2016 argument date.
I
At trial, Defendant admitted the sufficiency of the evidence for conviction on the charges at Counts 3, 4 and 5.
2
Prior Bad Acts Evidence
Defendant contends the Court erred in permitting the Commonwealth to introduce
evidence of "prior bad acts," specifically, text messages and Facebook messages tending to show
that Defendant had engaged in drug dealing communications and transactions involving Bath
Salts and Synthetic Marijuana on other occasions before the night of his arrest. The
Commonwealth offered this evidence for the purpose of proving intent to satisfy the intent
element of the PWID charge against Defendant and to rebut an anticipated entrapment defense.
Pennsylvania Rule of Evidence 404(b)(1) prohibits introduction of evidence of a "crime,
wrong or other act" for the purpose of proving bad character or criminal propensity to show that
a person acted in conformity therewith on a given occasion. See Pa. R.E. 404(b)(l). However,
various exceptions to the general rule are codified in Rule 404(b)(2). Rule 404(b)(2) provides:
Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.
In a criminal case this evidence is admissible only if the probative
value of the evidence outweighs its potential for unfair prejudice.
Pa. RE. 404(b)(2). Courts interpreting Rule 404(b)(2) have permitted introduction of "other bad
acts" evidence to demonstrate the intent element of a possession with intent to deliver charge.
See e.g., Commonwealth v. Echevarria, 575 A.2d 620, 623 (Pa. Super. 1990).
In the case at bar, the Commonwealth introduced evidence of various text messages and
Face book messages retrieved from Defendant's cellular phone, along with testimony from
Trooper Steven Peterson to assist the jury in interpreting the messages. These messages tended
to establish that Defendant had engaged in drug trafficking transactions involving Bath Salts and
Synthetic Marijuana, the same substances at issue in the instant case, on other occasions close in
time to the date of Defendant's arrest. This evidence tended to refute the defense theory that
3
�.
Defendant was simply a heavy drug user who possessed these substances on the night in question
for his personal use only, and to establish that Defendant did have the requisite intent on the date
in question for conviction on the PWID charge.
As Defendant notes, (see Def. Br. Supp. Post-Sentence Mot., at p. 3), the Court ruled on
each of the proffered messages individually after an initial offer of proof by the Commonwealth.
In so ruling, the Court considered the Commonwealth's reason for seeking to introduce the
messages, and balanced the probative value of each message in relation to the potential for
prejudice. As to those messages the Court permitted the Commonwealth to introduce into
evidence, the Court concluded that the messages were probative of the element of intent
underlying the PWID charge, and that the probative value of the evidence outweighed any unfair
prejudicial effect. Accordingly, the Court concluded that the messages were admissible under
Pa.RE. 404(b)(2).
Defendant challenges the admission of this evidence by arguing that any probative value
is outweighed by the prejudice to Defendant. In this vein, Defendant attacks the probative value
of the evidence by challenging the Commonwealth's interpretation of the text messages and
challenging the credibility of a confidential informant who informed police that Defendant was
dealing drugs. The Commonwealth presented the testimony of Trooper Peterson of the
Pennsylvania State Police, qualified as an expert in drug trafficking investigations, at trial
regarding his opinion as to the meaning of the text and Facebook messages based on his training
and experience. The jury was free to accept or reject this testimony, and was so instructed as
part of the closing charge. Contrary to Defendant's argument, the fact that the messages were
open to more than one interpretation does not eliminate the potential probative value of the
messages.
4
---------------------·· ····-.
Defendant's argument that the credibility of the confidential informant, Mr. Blankenship,
should be subjected to "heavy scrutiny" is equally unavailing. Whether Mr. Blankenship was
credible or not was a question for the jury's determination. See Commonwealth v. Vandivner,
962 A.2d 1170, 1178 (Pa. 2009). Furthermore, even assuming Defendant is correct that it was
Mr. Blankenship who initially lead the police to believe Defendant to be a drug dealer, and even
assuming, arguendo, that Mr. Blankenship's testimony could not be credited, the opinion
testimony from Trooper Peterson was not dependent on Mr. Blankenship's testimony, but on
Trooper Peterson's experience and training pertaining to drug trafficking investigations.
Finally, Defendant does not identify any specific prejudice as relates to any of the
messages individually or as to the messages collectively.' The Court thus assumes that the
prejudice about which Defendant complains is the possible inference from the evidence that
Defendant possessed the Bath Salts and Synthetic Marijuana on September 15, 2014 with intent
to distribute, as opposed to possessing these illegal drugs for personal use only. The fact that
evidence tends to establish a defendant's guilt does not render that evidence unfairly prejudicial.
Commonwealth v. Gordon, 673 A.2d 866, 870 (Pa. 1996). The Court concludes that Defendant's
claim of unfair prejudice is without merit.
Sufficiency of Evidence (Counts 1 and 2)
Defendant contends the Court erred in denying his motion for judgment of acquittal as to
Count 1, PWID, and Count 2, Criminal Use of a Communication Facility, made at the close of
the Commonwealth's case in chief.
2Defendant does not specifically identify the content of the messages at issue, resting on the position that he
objected to introduction of all of the messages. While it is true that Defendant objected to admission of any of the
proffered 404(b) evidence, given the failure to cite the content of the messages, and the fact that a trial transcript was
not requested, it is difficult for the Court to address Defendant's complaints message by message in ruling upon
Defendant's Post-Sentencing Motion.
5
A motion for judgment of acquittal is a challenge to the sufficiency of the
Commonwealth's evidence to sustain a conviction. Commonwealth v. Abed, 989 A.2d 23, 26
(Pa. Super. 2010). A motion for judgment of acquittal will only be granted when the
Commonwealth has failed to meet its burden of proof beyond a reasonable doubt with respect to
each of the elements that comprise the offense at issue. Id. In determining whether all elements
of the offense have been sufficiently proven, the Court is required to view the evidence and
reasonable inferences derived therefrom in the light most favorable to the Commonwealth as the
verdict-winner. Commonwealth v. Thomas, 54 A.3d 332, 335 (Pa. 2012). Doubts resolving a
defendant's guilt are to be resolved by the finder of fact, except when the evidence is "so weak
and inconclusive that as a matter of law no probability of fact may be drawn from the combined
circumstances." Commonwealth v. Richard, 2016 Pa. Super 247, at 9 (Nov. 15, 2016) (quoting
Commonwealth v. Brown, 23 A.3d 544, 559-60 (Pa. Super. 2011)).
The statutory offenses of PWID and Criminal Use of a Communication Facility are
defined, in pertinent part, as follows:
(30) Except as authorized by this act, the manufacture, deliver, or
possession with intent to manufacture or deliver, a controlled
substance by a person not registered under this act, or a practitioner
not registered or licensed by the appropriate State board, or
knowingly creating, delivering or possessing with intent to deliver,
a counterfeit controlled substance.
35 Pa. C.S.A. § 780-l 13(a)(30).
(a) Offense defined. --A person commits a felony of the third
degree if that person uses a communication facility to commit,
cause or facilitate the commission or the attempt thereof of any
crime which constitutes a felony under this title or under the
act of April 14, 1972 (P.L. 233, No. 64),3 known as The
Controlled Substance, Drug, Device and Cosmetic Act. Every
instance where the communication facility is utilized
constitutes a separate offense under this Section.
3
35 Pa.C.S.A. § 780-l 13(a)(30).
6
18 Pa. C.S.A. § 7512(a).
Defendant concedes the evidence was sufficient to establish his possession of Bath Salts
and Synthetic Marijuana, such that those elements of the PWID charge are not at issue.
Defendant's primary argument rests upon his contentions that he possessed the drugs for
personal use only, that Mr. Blankenship was not a credible witness, and that text messages
between Defendant and Mr. Blankenship on the day in question are open to interpretation and do
not establish that Defendant was engaged in drug dealing beyond a reasonable doubt. (See Def.
Br. Supp. Post-Sent. Mot., at pp. 5-8). As to the Criminal Use of Communication Facility
charge, Defendant argues that because the PWID charge cannot stand, the Criminal Use charge,
which is dependent on the PWID charge, also fails.
Defendant's arguments disregard much of the evidence presented by the Commonwealth
at trial and ignore the well-established principles that findings of fact and determinations of
witness credibility are solely within the province of the jury. See Vandivner, 962 A.2d at 1178.
As outlined in the Commonwealth's brief, the evidence at trial included testimony from William
Blankenship, Trooper Steven Peterson and Trooper Kevin Reese. Mr. Blankenship testified that
Defendant had provided him with drugs on an occasion prior to the night of Defendant's arrest,
and that Defendant had agreed to bring him Bath Salts on the night he was arrested. This
agreement was made by telephone while Mr. Blankenship was at the police barracks and in the
presence of Troopers Reese and Peterson. Evidence of the agreement was also presented by way
of text messages found on Defendant's cellular phone by Trooper Reese. Defendant
subsequently arrived at Mr. Blankenship's home with Bath Salts on September 15, 2014, the day
of his arrest. In addition, Trooper Peterson was qualified as an expert in the field of drug
investigations. He testified to his opinion that various text messages obtained from Defendant's
7
phone from before the events at issue indicated that Defendant had been dealing drugs, and also
that the messages related to the events leading to Defendant's arrest were evidence of drug
dealing. Trooper Reese testified that Defendant was found in possession of Bath Salts and
Synthetic Marijuana, along with drug paraphernalia and brass knuckles, at the time of his arrest.
Trial testimony also established that the drugs in Defendant's possession were individually
packaged, with numerous bags of each substance.
The Commonwealth also presented testimony from Joseph Winter, who was with
Defendant on his arrival to Mr. Blankenship's residence on September 15, 2014. Mr. Winter
testified that Defendant asked him for a ride to Mr. Blankenship's on the date in question and
that Defendant gave him a bag of Bath Salts in exchange for the ride. Although Mr. Winter
testified that Defendant had not told him the reason for going to Mr. Blankenship's, Trooper
Reese testified that Mr. Winter told him that Defendant advised Mr. Winter he needed a ride to
make a drug sale.
The evidence summarized above was sufficient to meet the Commonwealth's burden of
proving, beyond a reasonable doubt, that Defendant possessed Bath Salts and/or Synthetic
Marijuana with the intent to deliver them to another person, and that Defendant had used his
cellular phone, (a "communication facility"), to arrange a drug deal with Mr. Blankenship.
Accordingly, the Court concludes that Defendant's motion for judgment of acquittal was
properly denied, and Defendant is not entitled to post-sentence relief on his sufficiency of
evidence challenge.
Weight of the Evidence {Counts 1 and 2)
A challenge to the weight of the evidence requires inquiry into whether, "notwithstanding
all the facts, certain facts are so clearly of greater weight that to ignore them or to give them
8
equal weight with all the facts is to deny justice." Commonwealth v. Richard, supra, at 10-11
(quoting Interest ofJB., 2016 WL 4547955, at *10-11). In considering a weight of the evidence
challenge, the Court must determine whether the jury's verdict is so contrary to the evidence as
to "shock one's sense of justice" and dictate that a new trial be granted in order that "right may
be given another opportunity to prevail." Id. Determinations as to witness credibility are within
the sole discretion of the jury as fact finder, and a trial judge may not grant a new trial based on
mere conflicts in testimony or because the judge would have decided differently. Vandivner, 962
A.2d at 1177.
In challenging the weight of the evidence, Defendant incorporates the same arguments
put forth in his motion for judgment of acquittal. These arguments are no more persuasive in the
weight of the evidence context. As a threshold matter, it is the role of the jury, as the sole finder
of fact, to resolve conflicts in testimony and questions of credibility. Commonwealth v.
Vandivner, supra. It is also the prerogative of the jury to determine the weight to be afforded
each witnesses' testimony, and whether to accept all, part, or none of the testimony. Id. at 1177.
As discussed above, the evidence in the case at bar was sufficient to establish the offenses
against Defendant beyond a reasonable doubt, and Defendant's arguments to the contrary
disregard much of the trial evidence as well as controlling legal principles. Although the
evidence might, conceivably, have permitted the jury to conclude that Defendant was a serious
drug abuser and that he possessed the Bath Salts and Synthetic Marijuana for personal use only,
the jury's conclusion otherwise is certainly not so contrary to the evidence as to shock one's
sense of justice. Thus, Defendant's weight of the evidence challenge is denied.
9
Motion to Modify Sentence
Sentencing is a matter vested in the sound discretion of the sentencing judge.
Commonwealth v. High, 450 A.2d 158, 159 (Pa. Super. 1982). The decision whether to impose
concurrent or consecutive sentences for multiple offenses is to be made by the sentencing judge
with a view toward the factors set forth in 42 Pa. C.S. A. § 927l(b). Commonwealth v. Marts,
889 A.2d 608, 612 (Pa. Super. 2005). Those factors are: (1) the protection of the public; (2) the
gravity of the offense in relation to the impact on the victim and community; and, (3) the
rehabilitative needs of the Defendant. 42 Pa. C.S.A. § 9271(b).
In fashioning an appropriate sentence, the Court must consider the "particular
circumstances of the offense and the character of the defendant." Commonwealth v. Moury, 992
A.2d 162,171 (Pa. Super. 2010). When a presentence investigation report was considered by the
sentencing court, the law presumes the sentencing court was aware of information contained
therein as to the defendant's background and character, and that this information was duly
considered by the court. See id. The sentencing court must also consider the sentencing
guidelines established by the Pennsylvania Sentencing Commission. When the court imposes
sentence within the standard guideline range, the sentence is viewed as appropriate under
Pennsylvania law. Id.
In the case at bar, the Court imposed an aggregate sentence of 27-54 months, broken
down as follows:
(a) Count 1-PWID: 18-36 months, consecutive to that sentence imposed on Defendant at
Centre County docket number CP-14-CR-1659-2014 for unrelated criminal conduct;
(b) Count 2-Criminal Use of a Communication Facility: 18-36 months, concurrent to
Count 1;
(c) Count 5-Use/Possession of Drug Paraphernalia: 6-12 months, concurrent to Count 1;
10
..-...__
(d) Count 6-Possession of Offensive Weapons: 9-18 months, consecutive to Count 1.
(e) No separate sentences were imposed for Counts 3 and 4, both possession charges that
merged with Count 1.
Defendant argues that these sentences are excessive, inappropriate and disproportionate,
and requests that the sentences be reduced and/or run concurrently with the sentences imposed at
criminal docket number CP-14-CR-1659-2014. Defendant cites to his 3 to 6 year aggregate
sentence at the 1659-2014 docket, his exemplary prison record to date, and his desire to
participate in rehabilitative programs at the prison sooner than would be permitted due to his
aggregate minimum sentence after sentencing in the instant case, and based on prison policy.
In imposing sentence, the Court considered the circumstances of the offenses, the
information set forth within the Pre-Sentence Investigation Report, the Sentencing Guidelines,
and the memoranda and arguments of counsel. The Court was guided by the principle that a
sentence of confinement must be consistent with the protection of the public, the gravity of the
offenses, and the rehabilitative needs of the Defendant. The sale of harmful illegal drugs in the
community presents serious dangers to the public, and victimizes the community as a whole.
Given the offense gravity scores for the offenses charged and Defendant's prior record score of
5, each of the sentences imposed was within the standard range set by the Sentencing Guidelines.
Although prison policies may delay the rehabilitative programming available to Defendant, the
Court was not persuaded that this factor, or any other circumstances, warranted a mitigated
sentence under the circumstances of this case. Nor does the Court agree that it would be
appropriate to run Defendant's sentences concurrent to his sentences for violent criminal conduct
on a completely separate occasion charged at docket number 1659-2014.
In sum, and in accordance with the authorities cited above, the Court concludes that
Defendant's sentence was appropriate and, thus, denies Defendant's motion to modify sentence.
11
Consistent with the above, the Court enters the following Order:
11- ORDER
AND NOW, this S- day of January, 2017, consistent with the foregoing
Opinion, Defendant's Post-Sentence Motions are DENIED.
BY THE COURT
Katherine V. Oliver, Judge
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