Com. v. McDuffy, M. ( 2014 )

J-S31028-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MORRIS McDUFFY, :
:
Appellant : No. 2691 EDA 2013
Appeal from the Judgment of Sentence Entered August 15, 2013,
In the Court of Common Pleas of Philadelphia County, Criminal Division,
at Nos. CP-51-CR-0008164-2012; CP-51-CR-0025982-2012.
BEFORE: BOWES, SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 30, 2014
Appellant, Morris McDuffy, appeals from the judgment of sentence
entered following his conviction of one count each of possession with intent
substance. We affirm.
We summarize the history of this case as follows. On the evening of
June 26, 2012, Philadelphia Police conducted surveillance on Harmer Street
due to complaints of narcotics sales. During the surveillance, officers
observed Appellant and a co-defendant participating in multiple transactions
on the street. Appellant was arrested and police recovered $332 from his
person. Police also recovered marijuana from the co-defendant and several
of the people observed purchasing from Appellant and the co-defendant. At
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the conclusion of a nonjury trial on April 16, 2013, Appellant was convicted
of the crimes stated above. On August 15, 2013, Appellant was sentenced
to a term of incarceration of eleven and one-half to twenty-three months
plus two years of probation for the PWID conviction. The trial court
d with the
conviction of PWID for the purposes of sentencing. Appellant filed post-
sentence motions on August 19, 2013, which the trial court denied on
September 13, 2013. This timely appeal followed.
Appellant presents the following issues for our review:
convictions where the Commonwealth did not make out their
burden beyond a reasonable doubt due to the lack of evidence
showing that [Appellant] was involved in the sale of marijuana.
II. Whether the verdict was against the weight of the evidence,
where [Appellant] was found in possession of a marijuana
grinder containing marijuana, which would indicate that any
marijuana possession was for personal use.
III. Whether the sentence given by the court was unreasonably
high, where it was in the aggravated range of the guidelines and
the court did not take into consideration the mitigation indicated
in the pre-sentence investigation.
Appellant first argues that there was insufficient evidence to support
his conviction of PWID. Specifically, Appellant contends that only US
currency was retrieved from Appellant, and no drugs were found on his
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person. Appellant alleges that more evidence was required to connect
Appellant to the drug sale activity.
In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial and all reasonable inferences drawn
therefrom, viewed in the light most favorable to the Commonwealth as
verdict winner, were sufficient to prove every element of the offense beyond
a reasonable doubt. Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa.
2009). It is within the province of the fact-finder to determine the weight to
lieve all, part, or none of
the evidence. Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa. Super.
2008). The Commonwealth may sustain its burden of proving every element
of the crime by means of wholly circumstantial evidence. Commonwealth
v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011). Moreover, as an appellate
court, we may not re-weigh the evidence and substitute our judgment for
that of the fact-finder. Commonwealth v. Kelly, 78 A.3d 1136, 1139 (Pa.
Super. 2013).
In order to uphold a conviction for possession of narcotics with the
-113(a)(30), the
Commonwealth must prove beyond a reasonable doubt that the defendant
possessed a controlled substance and did so with the intent to deliver it.
Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000) (en
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banc
Commonwealth v.
Conaway, 791 A.2d 359, 362- ion with
intent to deliver can be inferred from the quantity of the drugs possessed
and other surrounding circumstances, such as lack of paraphernalia for
Commonwealth v. Jones, 874 A.2d 108, 121 (Pa. Super.
2005). Expert opinion testimony
whether the facts surrounding the possession of controlled substances are
Commonwealth v. Ratsamy, 934 A.2d
1233, 1237 (Pa. 2007).
he following cogent
summary of the facts authored by the trial court:
On June 26, 2012 at around 6:30 p.m., Philadelphia Police
Officer Dwayne White and his partner, Officer Little, arrived on
the 5500 block of Harmer Street in Philadelphia after receiving
numerous complaints about the sale of narcotics on the block.
N.T. 4/16/2013 at 10. At this time, Officer White and Officer
Little set up surveillance in an unmarked police vehicle. N.T.
4/16/2013 at 11. The officers then observed [Appellant] and
another individual by the last name Wilkerson. Id. At this time,
Officer White observed an unknown black male, later identified
as Hightower, engage [Appellant] in conversation. N.T.
4/16/2013 at 12. After this conversation, [Appellant] was
observed walking to a silver Lincoln Town Car parked down the
block. N.T. 4/16/2013 at 13. [Appellant] then opened the
passenger door, reached in, and retrieved unknown items. Id.
[Appellant] then received an unknown amount of United States
currency from Hightower and made a pouring motion into
Id. At this time, an unknown black male
wearing a grey shirt, and blue jeans walked down the block and
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had a brief conversation with [Appellant]. Id. [Appellant] again
walked down to the Lincoln Town Car, opened the passenger
door, retrieved unknown items, then handed the items to the
unknown black male. N.T. 4/16/2013 at 13-14. The unknown
black male was unable to be stopped. N.T. 4/16/2013 at 14.
At this time, Mr. Wilkerson was observed having a brief
conversation with an unknown black male, later identified as
Rawls. Id. Wilkerson then reached into his cargo short pocket
and made a hand to hand transaction with Rawls. N.T.
4/16/2013 at 16. Mr. Wilkerson was also observed making a
hand to hand transaction with an unknown black female later
identified as Fatima Mobley. Id. Mr. Wilkerson was also seen at
times going back and forth to the same Lincoln Town Car as
[Appellant]. N.T. 4/16/2013 at 15.
Officer Nance stopped Mr. Hightower, and recovered from
his person were five glass jars, four with green tops and one
with a black top, all stamped with a butterfly, all containing a
green weedy substance, alleged marijuana. N.T. 4/16/2013 at
36. Officer Perone stopped Mr. Rawls, and recovered from his
person was one clear ziplock baggie, with spade symbols on it,
containing a green weedy substance, alleged marijuana. N.T.
4/16/2013 at 38-39. Officer Vaughn stopped Ms. Mobley, and
recovered from her person was one clear ziplock baggie, with
spade symbols on it, containing a green weedy substance,
alleged marijuana. N.T. 4/16/2013 at 39. Officer Linder
stopped [Appellant], and recovered from his person was $332
United States currency. N.T. 4/16/2013 at 40. Officer Soto
stopped Mr. Wilkerson, and recovered from his person were two
clear ziplock baggies with spade symbols on them, each
containing a green weedy substance, alleged marijuana. N.T.
4/16/2013 at 41-42. Recovered from the Lincoln Town Car was
[a] bronze color medal grinder containing a green weedy
substance, alleged marijuana. N.T. 4/16/2013 at 40-41.
All the narcotics were submitted to the chem lab and did
test positive for marijuana. N.T. 9/14/2012 at 36-42.
[Appellant] was arrested and charged with possession with the
intent to deliver a controlled substance, and knowing and
intentional possession of a controlled substance.
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Trial Court Opinion, 11/15/13, at 1-3.
Upon thorough review of the record, we conclude that the evidence
presented by the Commonwealth, although circumstantial, was sufficient to
establish that Appellant both possessed marijuana and possessed it with the
intent to distribute. Thus, viewed in the light most favorable to the
Commonwealth, we conclude that there was sufficient evidence to prove the
elements of PWI
lacks merit.
Appellant next argues that the verdict was against the weight of the
evidence. Basically, Appellant contends that the evidence presented at trial,
amounted to nothing more than mere suspicion and surmise. Appellant
asserts that the trial court abused its discretion in denying his motion for a
new trial as the verdict was against the weight of the evidence.
In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme
Court set forth the following standards to be employed in addressing
challenges to the weight of the evidence:
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, 560
Pa. 308, 319, 744 A.2d 745, 751-52 (2000); Commonwealth
v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A
new trial should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would have
arrived at a different conclusion. Widmer, 560 A.2d at 319-20,
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clearly of greater weight that to ignore them or to give them
Id. at 320,
744 A.2d at 752 (citation omitted). It has often been stated that
and
the award of a new trial is imperative so that right may be given
Brown, 538 Pa. at 435, 648
A.2d at 1189.
with a weight of the evidence claim is distinct from the standard
of review applied by the trial court:
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. Brown, 648 A.2d at 1189. Because the
trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give
the gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial
gainst the
weight of the evidence. Commonwealth v.
Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
One of the least assailable reasons for granting or
that the verdict was or was not against the weight of
the evidence and that a new trial should be granted
in the interest of justice.
Widmer, 560 Pa. at 321-22, 744 A.2d at 753 (emphasis added).
This does not mean that the exercise of discretion by the
trial court in granting or denying a motion for a new trial based
on a challenge to the weight of the evidence is unfettered. In
explained:
judgment, wisdom and skill so as to reach a
dispassionate conclusion within the framework of the
law, and is not exercised for the purpose of giving
effect to the will of the judge. Discretion must be
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exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course
pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable
or where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-85
(1993)).
Clay, 64 A.3d at 1054-1055.
Our review of the record reflects that the trial court addressed
lenge to the weight of the evidence and determined that it
lacked merit. Specifically, the trial court stated the following:
The facts of this case are uncontroverted. Officer White
and Officer Little observed [Appellant] converse with Mr.
Hightower, walk to the silver Lincoln town car and observe
unknown small items. The officers then observed [Appellant]
receive United States currency from Mr. Hightower in exchange
[for] the small items that [Appellant] retrieved from the silver
Lincoln town car. Mr. Hightower was later stopped with five
glass jars, four with green tops and one with a black top, all
stamped with a butterfly, all containing a green weedy
rcotics found on Mr.
Hightower provide clear and convincing evidence that [Appellant]
possessed illegal drugs with the intent to distribute.
***
weight of the evidence.
Trial Court Opinion, 11/15/13, at 5-6, 8.
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Here, the trial court, sitting as the finder of fact, was free to believe
all, part, or none of the evidence against Appellant. The trial judge weighed
the evidence and concluded Appellant committed the crimes in question. We
decline Ap
the evidence. Accordingly, we conclude that the trial court did not abuse its
merit.
In his final issue, Appellant argues that the trial court abused its
discretion in fashioning his sentence. Specifically, Appellant claims that the
trial court abused its discretion when it allegedly failed to take into
consideration mitigating circumstances when the trial court imposed a
sentence in the aggravated range of the sentencing guidelines.
aspects of his sentence. Our standard of review is one of abuse of
discretion. Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal absent a
manifest abuse of discretion. Commonwealth v. Shugars, 895 A.2d 1270,
1275 (Pa. Super. 2006).
Where an appellant challenges the discretionary aspects of a sentence
considered to be a petition for allowance of appeal. Commonwealth v.
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W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we observed in
Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):
[a]n appellant challenging the discretionary aspects of his
four-part test:
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal,
see Pa.R.A.P. 902 and 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, see Pa.R.Crim.P.
defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)). Objections to the discretionary aspects of a sentence are generally
waived if they are not raised at the sentencing hearing or in a motion to
modify the sentence imposed. Id. (citing Commonwealth v. Mann, 820
A.2d 788 (Pa. Super. 2003)). Moreover, where an appellant fails to comply
with Pa.R.A.P. 2119(f) and the Commonwealth objects, the issue is waived
for purposes of review. Commonwealth v. Farmer, 758 A.2d 173, 182
(Pa. Super. 2000).
Herein, the first of the requirements of the four-part test is met
because Appellant brought a timely appeal. Likewise, our review of the
record reflects that Appellant met the second requirement because he raised
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his challenge both at the time of sentencing and in his post-sentence
motion.
However, Appellant has not met the third requirement of the test
because he failed to comply with the requirements of Rule 2119(f).
Specifically, Appellant has not filed a concise statement of reasons relied
upon for the allowance of appeal in his brief. The Commonwealth is aware
of the omission and has objected to this deficiency. See
Brief at 11-12. Accordingly, because of the fatal defect in the appellate
claim and deem it to be waived. Farmer, 758 A.2d at 182. Cf.
Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa. Super. 2002) (holding
that if the appellant fails to comply with Pa.R.A.P 2119(f), Superior Court
may entertain discretionary sentencing claim if Commonwealth does not
P. 2119(f)).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/30/2014
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