Com. v. Landers, D. ( 2014 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DARRELL LANDERS, : No. 1217 EDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, March 14, 2013,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. 51-CR-0003725-2011
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND SHOGAN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 21, 2014
Following a jury trial, Darrell Landers was found guilty of possession
with intent to deliver a controlled substance and possession of a controlled
substance. Herein, he appeals the promptness of his trial, the sufficiency
and weight of the evidence, and the discretionary aspects of his sentence.
No relief is due.
The facts, as summarized by the Honorable Earl W. Trent, Jr., are as
follows:
The Commonwealth presented evidence of an
investigation involving suspected narcotics activity
and the observation of a narcotics transaction.
Police Officer Robert Montague, badge number 6480,
testified regarding his role in a narcotics
investigation on November 11, 2010. N.T. 1/29/13
at 9. Officer Montague conducted narcotics
surveillance in the area of 5000 Griscom Street. Id.
at 12. At approximately 11:20 a.m., Officer
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Montague, from a distance of approximately half a
block, observed Appellant standing outside of
5022 Griscom Street. Id. at 12, 15. At
approximately 11:50 a.m., a white male, later
identified as Robert Kleinfelder, approached
Appellant. Id. After a brief conversation,
Mr. Kleinfelder handed Appellant an undetermined
amount of United States currency. Id. at 13. After
receiving the currency, Appellant walked up steps in
between 5022 and 5024 Griscom Street and
returned to Mr. Kleinfelder a few seconds later. Id.
Appellant was out of Officer Montague’s view upon
ascending the steps. N.T. 1/29/13 at 16. Appellant
then handed small objects to Mr. Kleinfelder, who
accepted them and walked northbound on Griscom
Street. Id. Officer Montague put out flash
information to fellow officers pertaining to
Mr. Kleinfelder. Id. at 17. Officer Sean Kennelly,
badge number 3221, responded to the flash
information and stopped Mr. Kleinfelder once he
appeared to be out of the seller’s view. Id. at 43,
45. Recovered from Mr. Kleinfelder were two
packets, one yellow and one clear, containing
marijuana. Id. at 44, 64.
At approximately 12:15 p.m., a white female,
later identified as Catherine Price, approached
Appellant, who was standing outside the same
property. N.T. 1/29/13 at 17. Their interaction
mirrored that of Appellant and Mr. Kleinfelder.
Ms. Price handed Appellant an undetermined amount
of United States currency. Id. at 17-18. Appellant
walked up the same steps for a few seconds,
returned and handed Ms. Price small objects. Id. at
18. Upon receiving the objects, Ms. Price walked
southbound on Griscom Street. Id. Officer
Montague again put out flash information to fellow
officers, this time regarding Ms. Price. Id. Officer
Andre Hudgens, badge number 7402, responded to
the flash information provided by Officer Montague.
Id. at 53. Officer Hudgens stopped Ms. Price on
Griscom Street and recovered one purple tinted
packet containing crack cocaine from her left hand.
N.T. 1/29/13 at 53, 65.
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At approximately 12:35 p.m., Appellant
proceeded to walk northbound at which time
Officer Montague put out flash information to have
him stopped. Id. at 19. Officer Thomas Fitzgerald,
badge number 4698, received a radio call regarding
Appellant and subsequently stopped him on the
5000 block of Griscom Street. Id. at 38. Recovered
from Appellant was $49 United States currency. Id.
Trial court opinion, 11/5/13 at 1-3.
On January 28, 2013, appellant proceeded to a jury trial and was
convicted of the aforementioned crimes. On March 14, 2013, the court
denied appellant’s oral post-verdict motion challenging the weight of the
evidence,1 and he was sentenced to an aggregate term of one to two years’
incarceration to be followed by three years’ reporting probation.2 On
March 19, 2013, appellant filed a motion to modify sentence; the motion
was denied by order of court the same day. (Docket #4.) This timely
appeal followed.
The following issues have been presented for our review:
A. The trial court abused its discretion by denying
Appellant’s Motion to Dismiss where the
Commonwealth was not ready to commence
trial until 29 days after the adjusted run date.
B. The evidence was insufficient to enable the
jury to find that Appellant possessed
contraband beyond a reasonable doubt.
1
See notes of testimony, 3/14/13 at 3-4.
2
Appellant was found eligible for the Commonwealth’s Recidivism Risk
Reduction Incentive Program.
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C. Appellant is entitled to a new trial because the
trial court abused its discretion by denying
Appellant’s motion that the verdict was against
the weight of the evidence.
D. Appellant’s sentence should be vacated
because the trial court abused its discretion by
sentencing Appellant to one-to-two years
where the standard sentencing range was
three-to-twelve months.
Appellant’s brief at ii.
Appellant first asserts that the trial court abused its discretion by
denying appellant’s motion to dismiss pursuant to the speedy trial rule,
Pa.R.Crim.P., Rule 600, 42 Pa.C.S.A. We note with dismay that the trial
court failed to make any specific findings at the hearing on this motion, or in
its Rule 1925(a) opinion. Nevertheless, our review of the record indicates
that Rule 600 was not violated.
Our standard of review relating to the application of
Rule 600 is whether the trial court abused its
discretion. Our scope of review is limited to the
evidence on the record of the Rule 600 evidentiary
hearing and the findings of the trial court. We must
view the facts in the light most favorable to the
prevailing party.
Commonwealth v. Robbins, 900 A.2d 413, 415 (Pa.Super. 2006), appeal
denied, 907 A.2d 1102 (Pa. 2006).
Charges may only be dismissed under Rule 600 where a defendant on
bail is not brought to trial within 365 days of the date on which the criminal
complaint against him was filed. See Commonwealth v. Dixon, 907 A.2d
468, 476 (Pa. 2006); see also Pa.R.Crim.P., Rule 600(A)(3) (trial “shall
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commence not later than 365 days from the date on which the complaint is
filed.”). However, Rule 600 also provides for the exclusion of certain time
from its calculation. Subtracting excluded time results in an adjusted run
date, and if trial commences before the adjusted run date, there is no
violation of the rule. Commonwealth v. Tickel, 2 A.3d 1229, 1233
(Pa.Super. 2010), appeal denied, 23 A.3d 541 (Pa. 2011). In calculating
the Rule 600 run date, certain periods must be excluded including “delay at
any stage of the proceedings as results from the unavailability of the
defendant . . . or any continuance granted at the request of the defendant.”
Rule 600(C)(3). Additionally, the run date may be extended by “excusable
delay”; that is, delays that “occur as a result of circumstances beyond the
Commonwealth’s control and despite due diligence.” Commonwealth v.
Brown, 875 A.2d 1128, 1135 (Pa.Super. 2005), appeal denied, 891 A.2d
729 (Pa. 2005).
Appellant was arrested on November 11, 2010, and the complaint was
filed the following day. Thus, the mechanical run date was Monday,
November 14, 2011, as November 12, 2011, fell on a Saturday. 3 See
1 Pa.C.S.A. § 1908. Appellant’s trial commenced on January 28, 2013.
However, accounting for both excludable and excusable delays, an
3
We note that appellant and the Commonwealth have failed to observe that
November 12, 2011 was a Saturday. (See appellant’s brief at 19;
Commonwealth’s brief at 11.)
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examination of the record reveals the Commonwealth was duly diligent and
brought appellant to trial before the adjusted run date.
Reviewing the parties’ briefs and the scant argument made at the
hearing before trial on January 29, 2013, we note the Commonwealth
concedes that the time period of November 30, 2010, to January 25, 2011,
constitutes a 56-day delay chargeable to the Commonwealth.
(Commonwealth’s brief at 11-12.) On November 30, 2010, the police officer
was not present for the preliminary hearing due to an illness, and the police
laboratory had not provided a seizure analysis. The Commonwealth also
accepts responsibility for a 65-day delay. (Id. at 12.) On January 25, 2011,
the preliminary hearing was continued because the laboratory still had not
provided the seizure analysis.
On March 31, 2011, 139 days after the filing of the complaint, a
preliminary hearing was held and appellant was held for court on all charges.
The case was continued to April 21, 2011, for the provision of discovery.
Subsequently, the case was scheduled for trial for May 18, 2011; 187 days
had elapsed since the filing of the complaint. The Commonwealth presented
a plea offer which appellant rejected, and the docket indicates that the trial
court set the date of June 16, 2011, by an order granting a motion for a
continuance, but the record is silent as to who made the motion. 4 However,
4
If the motion was made by the defense, the ensuing 29-day period would
have been excludable. Commonwealth v. Hill, 736 A.2d 588, 591 n.9 (Pa.
1999).
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even assuming that the motion was made by the Commonwealth, only
216 days had elapsed since the filing of the complaint by the June 16, 2011
listing.
On June 16, 2011, appellant requested a jury trial, which resulted in a
235-day delay as the next date for which the case was listed for trial was
February 6, 2012. Such time is excludable as the Commonwealth was duly
diligent during that period, and appellant requested a jury trial necessitating
reassigning the case to another judge. In the alternative, this time was
clearly excusable as scheduling matters are beyond the control of the
Commonwealth. Commonwealth v. Ramos, 936 A.2d 1097, 1104
(Pa.Super. 2007), appeal denied, 948 A.2d 803 (Pa. 2008). Thus, the
adjusted run date was advanced 235 days from the mechanical run date of
November 14, 2011, giving the Commonwealth until Friday, July 6, 2012, to
try appellant.
Thereafter, appellant concedes that the next time period was
excludable; specifically, the 203-day period between February 6, 2012, to
August 27, 2012, as the trial court granted a joint request for a continuance.
See Commonwealth v. Hunt, 858 A.2d 1234, 1243 (Pa.Super. 2004)
(en banc), appeal denied, 875 A.2d 1073 (Pa. 2005) (joint requests for a
continuance are excludable). This excludable time adjusted the run date to
Friday, January 25, 2013.
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The docket indicates that on May 23, 2012, trial was scheduled for
September 4, 2012. However, on September 4, 2012, when the trial was
scheduled to begin, one of the Commonwealth’s police witnesses was
unavailable due to an injury sustained while on duty. The court granted a
78-day continuance to November 13, 2012. Appellant does not challenge
this time-period, and the adjusted run date was again advanced to Monday,
April 15, 2013, as April 13, 2013, was a Saturday.
By the November 13, 2013 listing, the parties again made a joint
request for a 76-day continuance to January 28, 2013, the date appellant’s
trial actually began. Again, as joint requests are excludable, appellant does
not challenge this 76-day period, which set the adjusted run date to July 1,
2013, as June 30, 2013, fell on a Sunday.
Clearly, the Commonwealth complied with Rule 600 as appellant was
tried on January 28, 2013. Appellant was brought to trial within the
Rule 600 period, and trial counsel had no reason for filing a Rule 600
motion.
Next, appellant claims the evidence was insufficient to enable the jury
to find he possessed the contraband beyond a reasonable doubt. When
addressing a claim that the evidence was not sufficient to sustain the
verdict, we must determine whether, viewing all the evidence admitted at
trial and all reasonable inferences therefrom in a light most favorable to the
Commonwealth as the verdict winner, the trier of fact could conclude that all
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of the elements of the offense were established beyond a reasonable doubt.
Commonwealth v. Bardo, 709 A.2d 871, 876-877 (Pa. 1998). The
credibility of witnesses is within the province of the trier of fact, who is free
to believe all, part, or none of the evidence. Commonwealth v. Bagari,
579 A.2d 942, 944-945 (Pa.Super. 1990).
In the instant case, we have thoroughly reviewed the evidence
adduced at trial. Viewing that evidence in the light most favorable to the
Commonwealth as the verdict winner, we conclude that the evidence was
sufficient to sustain the verdicts. We rely on the well-reasoned opinion of
the trial court in support of our decision to affirm on this issue. (Trial court
opinion, 11/5/13 at 4-6.)
Appellant also argues that the verdict was against the weight of the
evidence.
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. 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
court’s determination that the verdict is against the
weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the
lower court’s conviction 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.
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
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weight of the evidence is unfettered. In describing
the limits of a trial court’s discretion, we have
explained[,] [t]he term “discretion” imports the
exercise of 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 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.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in the
original) (citations omitted).
In the instant case, the trial court rejected appellant’s claim. The trial
court reasoned as follows:
Appellant pointed to the lack of drugs recovered
from either his person or immediate area. N.T.
3/14/2013 at 4. Appellant’s argument hinges upon
the dubious premise that a PWID conviction cannot
be sustained as to sales which exhaust the seller's
stash. Officer Montague detailed two transactions
during which Appellant maintained his position. N.T.
1/29/13 at 13-18. After the conclusion of the second
transaction, Appellant was observed leaving the
location. Id. at 19. Considering that the officers’
testimony did not demonstrate that Appellant’s
supply was recently replenished, the jury may have
reasonably interpreted the abandonment of his
position and the lack of narcotics recovered from
Appellant as consistent with the tactic of selling from
a finite stash of narcotics, possibly until depletion.
The jury reasonably accepted police testimony
detailing Appellant’s perceived execution of narcotics
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sales, and attached significant weight thereto. The
recovery of narcotics from the suspected buyers may
have been viewed as corroborating the officers’
testimony. Furthermore, the jury may have
determined that the cash recovered from Appellant
constituted the proceeds of the previously observed
sales. The jury’s findings of fact, based largely upon
the officers’ testimony, are certainly not shocking to
one’s sense of justice.
Trial court opinion, 11/5/13 at 7. After reviewing the record, and deferring
to the trial court’s determination of credibility, we conclude that the trial
court did not abuse its discretion in finding the verdicts were not against the
weight of the evidence.
Finally, appellant challenges the discretionary aspects of his sentence.
Prior to addressing this issue, we must first determine if his claim is properly
before us.
An appellant who challenges the discretionary
aspects of a sentence in a criminal matter shall set
forth in his brief a concise statement of the reasons
relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence. The
statement shall immediately precede the argument
on the merits with respect to the discretionary
aspects of sentence.
Pa.R.A.P. 2119(f). “A failure to include the Rule 2119(f) statement does not
automatically waive an appellant’s argument; however, we are precluded
from reaching the merits of the claim when the Commonwealth lodges an
objection to the omission of the statement.” Commonwealth v. Love, 896
A.2d 1276, 1287 (Pa.Super. 2006), appeal denied, 940 A.2d 363 (Pa.
2007). Appellant has failed to include a Rule 2119(f) statement in his brief,
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and the Commonwealth has objected to this omission. (Commonwealth’s
brief at 29-30.) Accordingly, appellant’s final issue is waived.
Judgment of sentence affirmed.
Shogan, J. joins the Memorandum.
Bowes, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2014
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