Com. v. Stanford, R. ( 2015 )

J-A35007-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RONALD STANFORD,
Appellant No. 1513 WDA 2013
Appeal from the Judgment of Sentence Entered August 22, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002099-2012
BEFORE: BENDER, P.J.E., BOWES, J., and ALLEN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 20, 2015
Appellant, Ronald Standford, appeals from the judgment of sentence
of five to ten years’ incarceration, imposed after a jury convicted him of
possession of a controlled substance (cocaine), and possession with intent to
deliver (PWID) a controlled substance (cocaine). Appellant challenges the
sufficiency of the evidence to sustain his PWID conviction, as well as the
legality of his mandatory minimum sentence imposed pursuant to 18 Pa.C.S.
§ 7508. After careful review, we affirm Appellant’s conviction, but vacate his
judgment of sentence and remand for resentencing.
The trial court summarized the facts of this case as follows:
On September 2, 2011, at approximately 5:00 PM, City of
Pittsburgh police were working in plain clothes in the Homewood
neighborhood of Pittsburgh. Their attention was drawn to a
Hyundai Sonata automobile because they saw it: travel at a high
rate of speed; fail to use a turn signal when it swerved to the
side of the road; and[] park on the sidewalk in front of a housing
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complex which is well-known for violent drug activity. As a
result, the police pulled behind the Sonata and activated their
lights and siren to execute a traffic stop. [Appellant] … who was
the front seat passenger, exited the vehicle and began to walk
away. When he was ordered back to the car, he became
extremely confrontational. The police looked into the vehicle
and saw, right in the middle of the front passenger seat, a large
piece of crack cocaine. The cocaine weighed 12.81 grams.
[Appellant] was searched and a cell phone and $516.00 was
found on his person. No use paraphernalia was found for the
ingestion of the crack cocaine. After [Appellant] was
[1]
Mirandize[d], he admitted that the crack cocaine was his, and
reported [that] he was unemployed. An expert testified at trial
that, with the facts as described above, [Appellant] possessed
the cocaine with the intent to deliver it.
Trial Court Opinion (TCO), 6/3/14, at 1.
Based on these facts, Appellant was convicted of the above-stated
offenses. On August 22, 2013, the court sentenced him to a mandatory
term of five to ten years’ incarceration pursuant to 18 Pa.C.S. §
7508(a)(3)(ii). Appellant filed a timely notice of appeal, as well as a timely
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Herein, he presents two questions for our review:
I. Was the trial court’s imposition of the mandatory minimum
sentence under 18 Pa.C.S.A. § 7508(a)(3)(ii) illegal when the
factfinder never found the facts necessary beyond a reasonable
doubt for the imposition of the mandatory minimum, as required
by the United States Supreme Court in Alleyne v. United
States, 133 S. Ct. 2151 (2013)?
II. Was the evidence insufficient to prove [PWID] beyond a
reasonable doubt when the evidence merely showed that
[Appellant] was only in possession of the drugs, not that he
intended to distribute them?
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1
See Miranda v. Arizona, 384 U.S. 436 (1966).
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Appellant’s Brief at 5 (unnecessary capitalization omitted).
For ease of disposition, we will address Appellant’s challenge to the
sufficiency of the evidence first. To begin, we note our standard of review of
a challenge to the sufficiency of the evidence:
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
Here, Appellant solely challenges his conviction for PWID, arguing that
the Commonwealth failed to proffer sufficient proof that he possessed the
crack cocaine with the intent to deliver it. Appellant argues that the jury
should have believed his testimony that he possessed the cocaine for
personal use, based on the following facts: (1) the 12.81 grams of cocaine
“was not an enormous amount[,]” (2) the Commonwealth’s expert testified
that it was possible to possess that much cocaine for personal use, (3) the
drugs were not packaged for sale and there was no drug distribution
paraphernalia recovered, (4) he testified that he possessed $516 from his
monthly Social Security disability check and was planning to use that money
to buy a “bulk amount” of crack cocaine for his personal use, (6) no police
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officer witnessed Appellant sell drugs or was informed that Appellant sold
drugs, and (7) Appellant did not admit to selling drugs. See Appellant’s
Brief at 25-31.
Appellant essentially asks this Court to view the evidence in the light
most favorable to him, and to make credibility determinations different from
those reached by the jury. Our standard of review does not permit this
Court to do either. See Koch, 39 A.3d at 1001; Commonwealth v.
Shaver, 460 A.2d 742, 745 (Pa. 1983) (citations omitted) (“It is solely the
province of the trier of fact to pass upon the credibility of witnesses and to
give it such weight as may be accorded to the evidence therein produced.
The factfinder is free to believe all, part or none of the evidence.”).
Instead, viewing the evidence in the light most favorable to the
Commonwealth, as we must, we conclude that it was reasonable for the jury
to infer that Appellant intended to sell the crack cocaine. Namely, Appellant
was stopped in an area known for drug activity and immediately became
confrontational when approached by police. In his possession, Appellant had
a large quantity of cash ($516), yet admitted to the officers that he did not
have a job. Appellant also possessed 12.81 grams of crack cocaine. The
Commonwealth’s expert in narcotics trafficking testified that such a large
amount of cocaine indicated that Appellant intended to sell the drugs. N.T.
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Trial, 5/28/13-5/30/13, at 94-95.2 Moreover, while the drugs were not
packaged in a manner typical for sale, Appellant had no use paraphernalia in
his possession, and he did not appear to the arresting officers to be under
the influence of any drugs. Id. at 80. We conclude that these facts were
sufficient to permit the jury to infer that Appellant possessed the crack
cocaine with the intent to deliver it. See Commonwealth v. Brown, 904
A.2d 925, 932 (Pa. Super. 2006) (finding evidence sufficient to prove the
appellant possessed cocaine with intent to deliver it where he fled from
police; police recovered a plastic bag containing one “large chunk” of cocaine
totaling 5.71 grams; the defendant had $308 on his person, yet told police
he was unemployed; one officer “had knowledge of [the defendant] and his
activities” as a result of the officer’s surveillance of “different drug dealers in
the area;” and, based on these facts, an expert in narcotics trafficking
testified that the defendant intended to sell the cocaine). Accordingly,
Appellant’s conviction for PWID must stand.
Appellant next challenges the legality of his sentence, arguing that
application of the mandatory minimum term set forth in 18 Pa.C.S. §
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2
While Appellant is correct that the officer conceded the drugs could have
been possessed for personal use, he did so reluctantly. On cross-
examination, the officer was asked, “Is it possible for a person to have this
amount of crack cocaine on their person for personal use and not to deliver
it?” The officer replied: “Anything is possible[,] but in 18 years I’ve never
seen it.” Id. at 99.
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7508(a)(3)(ii)3 violated the United States Supreme Court’s holding in
Alleyne v. United States, 133 S. Ct. 2151 (2013).
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3
That mandatory minimum sentencing statute states, in pertinent part:
(a) General rule.--Notwithstanding any other provisions of this
or any other act to the contrary, the following provisions shall
apply:
…
(3) A person who is convicted of violating section
13(a)(14), (30) or (37) of The Controlled Substance, Drug,
Device and Cosmetic Act where the controlled substance is
coca leaves or is any salt, compound, derivative or
preparation of coca leaves or is any salt, compound,
derivative or preparation which is chemically equivalent or
identical with any of these substances or is any mixture
containing any of these substances except decocainized
coca leaves or extracts of coca leaves which (extracts) do
not contain cocaine or ecgonine shall, upon conviction, be
sentenced to a mandatory minimum term of imprisonment
and a fine as set forth in this subsection:
…
(ii) when the aggregate weight of the compound or
mixture containing the substance involved is at least
ten grams and less than 100 grams; three years in
prison and a fine of $15,000 or such larger amount
as is sufficient to exhaust the assets utilized in and
the proceeds from the illegal activity; however, if at
the time of sentencing the defendant has been
convicted of another drug trafficking offense: five
years in prison and $30,000 or such larger amount
as is sufficient to exhaust the assets utilized in and
the proceeds from the illegal activity; and
…
(b) Proof of sentencing.--Provisions of this section shall not
be an element of the crime. Notice of the applicability of this
section to the defendant shall not be required prior to conviction,
(Footnote Continued Next Page)
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According to the Alleyne Court, a fact that increases the
sentencing floor is an element of the crime. Thus, it ruled that
facts that mandatorily increase the range of penalties for a
defendant must be submitted to a fact-finder and proven beyond
a reasonable doubt. The Alleyne decision, therefore, renders
those Pennsylvania mandatory minimum sentencing statutes
that do not pertain to prior convictions constitutionally infirm
insofar as they permit a judge to automatically increase a
defendant's sentence based on a preponderance of the evidence
standard.
Commonwealth v. Thompson, 93 A.3d 478, 493-494 (Pa. Super. 2014)
(quoting Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super. 2013)
(footnote omitted)). The trial court, however, argues that Appellant’s
sentence is not illegal under Alleyne, reasoning:
As to the weight of the cocaine, the defense stipulated at trial
that the substance [Appellant] admitted to possessing weighed
12.81 grams. In support of the stipulation, a crime lab report
was admitted into evidence without objection. Defense counsel
even admitted in his closing argument to the jury that the
weight of the cocaine was 12.81 grams. Because of the
stipulation and defense arguments, the weight of the substance
was never at issue and the sentence imposed is not illegal.
TCO at 2.
_______________________
(Footnote Continued)
but reasonable notice of the Commonwealth's intention to
proceed under this section shall be provided after conviction and
before sentencing. The applicability of this section shall be
determined at sentencing. The court shall consider evidence
presented at trial, shall afford the Commonwealth and the
defendant an opportunity to present necessary additional
evidence and shall determine, by a preponderance of the
evidence, if this section is applicable.
18 Pa.C.S. § 7508(a)(3)(ii), (b).
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Recently, in Commonwealth v. Fennell, 2014 WL 6505791 (Pa.
Super. November 21, 2014), this Court held that 18 Pa.C.S. § 7508 is
unconstitutional in its entirety under Alleyne and this Court’s en banc
decision in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en
banc) (holding that 18 Pa.C.S. § 9712.1, which has the same format as
section 7508, is unconstitutional in its entirety in light of Alleyne). See
also Commonwealth v. Cardwell, 2014 WL 6656644 (Pa. Super.
November 25, 2014) (holding that 18 Pa.C.S. § 7508 is unconstitutional for
the same reasons as set forth in Fennell). The Fennell Court further
clarified that the defendant’s stipulation during trial to the type and total
weight of the narcotics he possessed did not render the Alleyne error
harmless where the statute was unconstitutional, as a whole. Fennell, 2014
WL 6505791, at *5-6.
In light of Alleyne, Newman, and Fennell, it is clear that Appellant’s
mandatory minimum sentence imposed pursuant to 18 Pa.C.S. § 7508 is
illegal. Consequently, while we affirm Appellant’s underlying convictions, we
vacate his judgment of sentence and remand for resentencing, without
imposition of a mandatory minimum term.
Judgment of sentence vacated. Case remanded for further
proceedings. Jurisdiction relinquished.
Judge Allen joins this memorandum.
Judge Bowes files a concurring memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2015
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