Com. v. Handy, M. ( 2016 )


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  • J-S62038-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    MIKAIL TALIB HANDY
    Appellant                  No. 1 MDA 2016
    Appeal from the Judgment of Sentence August 25, 2015
    In the Court of Common Pleas of Lycoming County
    Criminal Division at No(s): CP-41-CR-0002025-2014
    BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
    MEMORANDUM BY GANTMAN, P.J.:                       FILED AUGUST 18, 2016
    Appellant, Mikail Talib Handy, appeals from the judgment of sentence
    entered in the Lycoming County Court of Common Pleas, following his jury
    trial convictions of possession with intent to deliver (“PWID”), delivery of a
    controlled substance, simple possession, and criminal use of communication
    facility.1 We affirm.
    The relevant facts and procedural history of this case are as follows.
    On August 8, 2014, a confidential informant (“CI”) used a cell phone to
    arrange a purchase of cocaine. A state trooper drove the CI in an unmarked
    vehicle to a rendezvous point and provided the CI with $200.00 cash. The
    CI subsequently exited the vehicle and entered a white Chevrolet Impala
    ____________________________________________
    1
    35 P.S. §§ 780-113(a)(30), (a)(16); 18 Pa.C.S.A. § 7512(a), respectively.
    J-S62038-16
    with tinted windows driven by Appellant.        After a few minutes, the CI
    emerged from the Impala and handed cocaine to the police.       The CI later
    identified Appellant by photo array as the driver of the Impala and the
    person who had sold her the cocaine. On October 25, 2014, police arrested
    Appellant with $644.00 in cash, a Chevrolet key fob, and two cell phones;
    one of the cell phone numbers matched the number the CI had used to
    arrange the drug purchase.
    On June 2, 2015, a jury convicted Appellant of PWID, delivery of a
    controlled substance, simple possession, and criminal use of communication
    facility.   The trial court sentenced Appellant on August 25, 2015, to an
    aggregate term of eighteen (18) months’ to five (5) years’ incarceration. On
    September 2, 2015, Appellant, with new counsel, filed a motion for
    extension of time to file a post-sentence motion, which the court granted.
    On October 13, 2015, Appellant timely filed a post-sentence motion.     The
    court denied Appellant’s post-sentence motion on December 3, 2015.
    Appellant timely filed a notice of appeal on December 30, 2015. On January
    4, 2016, the trial court ordered Appellant to file a concise statement of
    errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant
    timely complied on January 21, 2016.
    Appellant raises the following issues on appeal:
    THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE
    BECAUSE THE COMMONWEALTH’S EVIDENCE DID NOT
    IDENTIFY…APPELLANT AS THE ACTOR.
    -2-
    J-S62038-16
    THE EVIDENCE SUBMITTED AT…APPELLANT’S TRIAL IN
    THIS MATTER WAS INSUFFICIENT TO MEET THE
    COMMONWEALTH’S      BURDEN      OF     PROVING
    THAT…APPELLANT WAS THE ACTOR FOR EACH OFFENSE
    CHARGED IN THE INFORMATION BEYOND A REASONABLE
    DOUBT.
    (Appellant’s Brief at 7).
    After a thorough review of the record, the briefs of the parties, the
    applicable law, and the well-reasoned opinion of the Honorable Dudley N.
    Anderson, we conclude Appellant’s issues merit no relief.     The trial court
    opinion comprehensively discusses and properly disposes of the questions
    presented.    (See Trial Court Opinion, filed December 3, 2015, at 1-4)
    (finding: (1) to extent Appellant attempted to impeach CI’s testimony, that
    testimony was corroborated by other witnesses; guilty verdict was not
    contrary to evidence and did not shock one’s sense of justice; (2)
    Commonwealth presented audio recordings and testimony of CI, four state
    troopers, and one city police officer; CI testified that she arranged over
    phone conversation to buy cocaine from Appellant, police drove CI in
    unmarked vehicle to meeting location, she met with Appellant in white
    Chevrolet Impala, and she purchased cocaine from Appellant; state trooper
    who transported CI confirmed CI’s story, and also testified that CI identified
    Appellant in photo array; second state trooper in backseat of police vehicle
    confirmed CI’s story; third trooper testified that while he was surveilling
    residence, he observed Appellant leave residence and drive away in white
    Chevrolet Impala minutes before drug transaction occurred; fourth trooper
    -3-
    J-S62038-16
    testified that on date of incident, he followed white Chevrolet Impala and
    subsequently observed Appellant exit vehicle; city police officer testified that
    Appellant possessed two cell phones and $644.00 in cash at time of arrest;
    prison audio recordings of Appellant after his arrest revealed he told his
    fiancée he had been “hustling”; another witness explained “hustling” meant
    selling   drugs;   evidence   was   sufficient   to   sustain   all   of   Appellant’s
    convictions). Accordingly, we affirm on the basis of the trial court opinion.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/18/2016
    -4-
    Circulated 08/05/2016 03:35 PM
    IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA
    COMMONWEAL TH OF PENNSYLVANIA                          NO. CR-2025 -2014 /
    vs.
    MIKAIL HANDY,
    Defendant                                                               .
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    OPINION IN SUPPORT OF ORDER OF DECEMBER'~W.5,                                            .i:
    IN COMPLIANCE WITH RULE 1925(A) OF·~i;:PJ                                         _;;
    THE RULES OF APPELLATE PROCEDURE,           m                                      °"
    In response to Defendant's Statement of Matters Complained of on Appeal, filed
    January 21, 2016, as the issues raised therein are those which were raised in Defendant's Post-
    Sentence Motion, the Court chooses to rely on the Opinion and Order entered in disposing of
    that motion, dated December 3, 2015.
    Dated: ·?._ -     \ - '\ k,                  Respectfully submitted,
    \ ·\. J ~~~~
    Dudle~. Anderson, Judge
    cc:   Jistrict     Attorney
    ~n.        Dudley N. Anderson
    /-.
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    IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA
    COMMONWEAL TH OF PENNSYLVANIA                  : NO. CR- 2025 - 2014             /
    vs.                                      : CRIMINAL DIVISION
    MIKAIL HANDY,
    Defendant
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    OPINION AND ORDER                r:-->'< · .'                ...... rn
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    Before the Court is Defendant's Post-Sentence MotiQIJ;l~~d ~tob~~ 13,
    !.,   -        -<
    2015. Argument was scheduled for November 17, 2015, but just prior to the time
    for argument, counsel agreed to have the court rule on the motion based on the
    motion only.
    After a jury trial on June 2, 2015, Defendant was convicted of one count
    each of possession with intent to deliver crack cocaine, delivery of crack cocaine,
    possession of crack cocaine and criminal use of a communication facility. On
    August 25, 2015, Defendant was sentenced to 18 months to five years
    incarceration for possession with intent to deliver, and a concurrent term of 6
    months to two years incarceration for criminal use of a communication facility.
    The other two charges were held to merge for sentencing purposes.                In his Post-
    Sentence Motion, Defendant contends there was insufficient evidence to support
    the verdict, that the verdict was against the weight of the evidence, and that the
    sentence was excessive.
    In addressing a challenge to the sufficiency of the evidence, the court is to
    view all of the evidence admitted at trial in the light most favorable to the
    Commonwealth as verdict winner, and the verdict will be upheld if there is
    sufficient evidence to enable the fact-finder to find every element of the crimes
    charged beyond a reasonable doubt. Commonwealth v. Adams, 
    882 A.2d 496
    (Pa
    Super. 2005). A "weight of the evidence" claim contends the verdict is a product
    of speculation or conjecture, and requires a new trial only when the verdict is so
    contrary to the evidence as to shock one's sense of justice. Commonwealth v.
    Dougherty, 
    679 A.2d 779
    (Pa. Super. 1996).
    At trial, the Commonwealth presented the testimony of a confidential
    informant, four state troopers and a city police officer, as well as audio recordings
    of two conversations Defendant had while in the county prison after his arrest.
    The confidential informant testified that on August 8, 2014, she arranged
    over the telephone to buy cocaine from a certain person, that a state trooper
    transported her that day to the proposed location and provided her with buy
    money, that she met with someone in a white Chevy Impala (identified by her at
    trial to be the defendant), provided him with the money and received from him
    · two bags of crack cocaine, and then returned to the trooper's vehicle and provided
    him with the drugs.
    The trooper who transported the informant to the buy location confirmed
    the informant's testimony regarding having transported her that date and provided
    her with buy money, and testified further that he observed her getting into the
    white Chevy Impala, and then observed her returning to his vehicle and that she
    then provided him with two bags of crack cocaine. He also testified that when he
    presented her with a photo array about a month later, she identified the defendant
    as the person who had sold her the drugs on that date.
    A second trooper testified that he had been in the back seat of the vehicle
    which transported the informant to the buy location on the date on question, that
    he observed a white Chevy Impala, observed the informant get into the Impala,
    2
    observed the vehicle drive away and then seconds later, observed the informant
    return to the car and tum over the drugs she had purchased.
    A third trooper testified that he had been surveilling a certain residence on
    the date in question, that he observed the defendant go into and out of that
    residence and then drive away in a white Chevy Impala, and that within three to
    four minutes thereafter he was informed by the trooper involved in the controlled
    buy that he and the informant were meeting with the person in that vehicle.
    A fourth trooper testified that on the date in question he observed the white
    Chevy Impala and then followed it and observed the informant get out of the
    Impala and walk toward the trooper's vehicle.
    A city police officer testified that he arrested Defendant based on the arrest
    warrant issued by the State Police, and that at the time of arrest, Defendant had on
    his person two cell phones and $644 in cash. One of the cell phones had the same
    number that had been used by the informant to contact the person from whom she
    purchased the cocaine on August 8, 2014.
    The audio recordings of two conversations Defendant had while in the
    county prison after his arrest evidenced Defendant's statement to his fiance that
    he had been "hustling", which was explained by another witness to refer to selling
    drugs.
    Considering all of this evidence, the court finds there is sufficient evidence
    of each of the elements of all of the crimes charged to support the jury's findings
    of guilt: Defendant possessed crack cocaine with the intent to deliver it, he did
    deliver it, and he used a cell phone to arrange the delivery.
    With respect to Defendant's claim that the verdict was against the weight
    of the evidence, while defense counsel did attempt to raise an issue respecting the
    3
    identity of the person from whom the informant purchased the cocaine, and also
    attempted to impeach the informant's credibility by pointing out that she was
    testifying for the Commonwealth in exchange for leniency with respect to
    outstanding charges against her, and by highlighting her prior crimes of
    dishonesty, as the informant's testimony was corroborated by others, the verdict
    is not contrary to the evidence and certainly does not shock one's sense of justice.
    Finally, to address the claim that the sentence of 18 months to five years is
    excessive, 1 the court is guided by the general principle that the sentence imposed
    should be the minimum sentence consistent with the protection of the public, the
    gravity of the offense, and the rehabilitative needs of the defendant. See
    Commonwealth v. Hoag, 
    665 A.2d 1212
    (Pa. Super. 1995). In this case, the
    standard range for the offense, based on Defendant's prior record score of"5", is
    12 to 18 months. The court sentenced Defendant to the top of the standard range
    based on the fact that he had three previous felony drug convictions and thus a
    lighter sentence would not serve to protect the public; it appears that Defendant
    will simply continue to sell drugs once he is released based on his history.
    Further, Defendant's conviction now, following those previous convictions,
    indicates that any rehabilitative efforts have failed and would at this time serve no
    purpose. Considering all the circumstances, the court believes the sentence
    imposed was not excessive.
    I
    The court will consider only this portion of the sentence as the other portion, the sentence of six months to two
    years, is to run concurrent, and Defendant did not specify which of the two sentences he is addressing by his
    motion. Therefore, the longer sentence will be considered as being the subject of the motion.
    4
    ORDER
    AND NOW, this      3'.' J._day of December   2015, for the foregoing reasons,
    Defendant's Post-Sentence Motion is hereby DENIED.
    BY THE COURT,
    ./
    cc:     DA
    vpn
    -./
    yary Weber, Esq.
    vf-lon. Dudley Anderson
    5
    

Document Info

Docket Number: 1 MDA 2016

Filed Date: 8/18/2016

Precedential Status: Precedential

Modified Date: 8/18/2016