Com. v. Boyd, H. ( 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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37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. :
:
HYKEEM BOYD, : No. 1747 EDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, May 2, 2013,
in the Court of Common Pleas of Montgomery County
Criminal Division at Nos. CP-46-CR-0006404-2011,
CP-46-CR-0006414-2011
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND SHOGAN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 24, 2014
Hykeem Boyd appeals the judgment of sentence entered on May 2,
2013, in the Court of Common Pleas of Montgomery County. We affirm.
The facts and procedural history of this case are as follows. At trial,
the Commonwealth presented testimony from one witness, Corporal David
Stowell of the Norristown Police Department. Corporal Stowell testified that
on August 15, 2011, he was positioned on the roof of a building to survey a
residence approximately one block away, 127 West Airy Street. While using
binoculars, Corporal Stowell saw another corporal with the Norristown Police
a controlled buy. (Notes of testimony, 2/22/11 at 12.) The CI had
previously been searched and found to be free of contraband. As the CI
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arrived at 127 West Airy Street, appellant exited the house. The two walked
together onto another street, then re-emerged a few seconds later.
vehicle.
The parties stipulated that the other corporal would testify as follows.
On the date in question, Corporal Dumas was running a controlled buy. (Id.
at 13.) The corporal searched the CI, whom he found to be free of drugs
and contraband. He gave the CI money and watched him walk down the
street. The corporal witnessed the CI return to the car minutes later and
hand over contraband. The parties stipulated that a controlled buy took
place and that the contraband was heroin. (Id.) The only fact not
stipulated Id.)
Corporal Stowell also testified to other drug transactions he witnessed
appellant engage in on August 15, 2011. Prior to the controlled buy,
Corporal Stowell witnessed Matthew Works texting and walking in the
direction of 127 West Airy Street. (Id. at 17.) As Works approached the
residence, appellant came out and the two men walked in the same direction
that appellant was later seen walking with the CI. (Id.) A few seconds
later, the men re-emerged and appellant returned to the residence. Works
was stopped by the police and found to be in possession of three pinkish red
bags containing cocaine. (Id. at 18.)
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Going slightly further back in time, Corporal Stowell testified to a
controlled buy which occurred outside the residence. Corporal Stowell
1
Appellant
had been seen going in and out of the residence several times prior to the
transaction with Davita. (Id. at 22.)
Thereafter, Norristown police executed a search warrant at
127 West Airy Street, Apartment 2. In the entryway, police found a letter
addressed to appellant, albeit at a different address, along with mail
addressed to Davita. (Id. at 23-24.) Corporal Stowell testified that
appellant and his sister had just moved into this residence from
137 Ann Street. (Id. at 36.) The apartment at 127 West Airy Street, on the
second and third floors of the building, was reached via stairs from the first
floor foyer. (Id. at 25.) Upon entering the kitchen, the police observed a
juvenile male with approximately 25 bags of crack cocaine at his feet. A
search of the kitchen cupboard revealed approximately 42 bags of heroin
Id.)
Underneath the radiator in the kitchen were a loaded handgun and
approximately 100 bags of crack cocaine. (Id. at 25-26.) A box with
1
Davita Boyd was convicted of possession of a controlled substance with
intent to deliver (heroin), possession of a controlled substance with intent to
deliver (cocaine), and two counts of criminal conspiracy. A panel of this
court affirmed her conviction but remanded the case for re-sentencing
pursuant to Alleyne v. United States, U.S. , 133 S. Ct. 2151
(2013); Commonwealth v. Boyd, No. 235 EDA 2013, unpublished
memorandum (Pa.Super. filed June 23, 2014).
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approximately $1,200 was recovered on a table. Most of the bags of crack
cocaine were the same size, and had the same pinkish/red color, as the bags
recovered from Works. (Id. at 26, 29.) Appellant was seen climbing out the
back window of the apartment when police arrived, but he was immediately
apprehended. (Id. at 41-42.) Upon arrest, a bag of marijuana was
recovered from his pocket. (Id. at 42.)
The Commonwealth brought charges against appellant under two
separate docket numbers. Following a bench trial, in the case at
No. 6404-11, appellant was found guilty of possession with intent to deliver
crack cocaine and heroin, possession of marijuana, and possession of drug
paraphernalia. The trial court found appellant guilty in the case indexed at
No. 6414-11 of possession with intent to deliver (cocaine), possession of
cocaine, and drug paraphernalia. On May 2, 2013, the trial court imposed
the recommended sentence which appellant agreed to; appellant was
to deliver conviction at No. 6404-
for possession with intent to deliver at No. 6414-11. No post-sentence
motions were filed.
Appellant failed to file a direct appeal immediately following the
imposition of judgment of sentence. However, following the filing of a
pro se motion on May 17, 2013, his appeal rights were reinstated nunc pro
tunc on May 23, 2013. Appellant filed a pro se notice of appeal on June 13,
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2013, and he is now represented by counsel. The following issues have
been presented for our review.
I. Whether the Court erred, in granting the
Limine to admit
other bad act evidence pursuant to
Pa.R.E. 404(B) because the probative value of
admitting prior drug sales did not outweigh the
unfair prejudice to appellant?
II. Whether there was insufficient evidence to
support the finding of guilt on the charges of
Possession with Intent to Deliver and
Possession of the Cocaine and Heroin found
inside 127 West Airy Street, Norristown,
Pennsylvania, as the only evidence attempting
to show constructive possession is a letter
found inside the entryway addressed to
appellant at 137 Ann Street, Norristown,
besides his physical presence at the time of the
search?
III. Whether the appellant knowingly, voluntarily,
recommendation to accept a joint
recommended sentence of five (5) to ten (10)
years of incarceration on the Possession with
Intent to deliver charge on file indexed at
6404-2011 and a sentence of one (1) to
three (3) years of incarceration on the
Possession with Intent to deliver charge on file
indexed at 6414-2011 with RRRI eligibility
because appellant mistakenly believed that the
Commonwealth could have sought imposition
of a five year mandatory minimum sentence
for a drug offense being in close proximity to a
firearm, which was not set forth in the Bills of
Information and/or found as a fact at the
bench trial in accordance with the decision of
[Alleyne, supra] and where the
Commonwealth withdrew all firearms charges
at the time of trial?
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IV. Whether the Commonwealth presented
insufficient evidence to establish the weight of
the controlled substances for purposes of
sentencing as the lab reports were never
introduced into evidence at the time of the trial
and/or at the sentencing hearing, which were
relied upon in formulating the sentencing
guidelines and considered by appellant when
accepting a joint recommended sentence?
-5.
The first issue presented concerns whether the trial court erred in
-trial motion and admitting evidence that
appellant had engaged in prior drug sales. The Commonwealth argued that
the prior drug sales would be introduced not to show propensity, but to
demonstrate intent. (Notes of testimony, 2/22/13 at 6.)
Admission of evidence rests within the discretion of the trial court, and
we will not reverse absent an abuse of discretion. Commonwealth v.
Washington
when 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,
Commonwealth v. Martinez, 917 A.2d 856, 859
(Pa.Super. 2007).
Generally speaking, evidence is admissible if it is relev
logically tends to establish a material fact in the case, tends to make a fact
at issue more or less probable or supports a reasonable inference or
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Commonwealth v. Williams, 896
A.2d 523, 539 (Pa. 2006) (citation omitted); Pa.R.E. 402. It is settled law in
this Commonwealth that other bad acts evidence is inadmissible to prove a
Commonwealth v. Brookins,
10 A.3d 1251, 1256 (Pa.Super. 2010), appeal denied, 22 A.3d 1033 (Pa.
2011).
However, bad acts evidence may be introduced for other limited
purposes -- to prove motive, intent, absence of mistake or accident,
common scheme, plan, or design, or to establish the identity of the person
charged with the commission of the crime on trial. Commonwealth v.
Slyman, 483 A.2d 519, 531 (Pa.Super. 1984). Nevertheless, even where
evidence is within one of the above exceptions, its probative value must still
outweigh its prejudicial effect. Commonwealth v. Brozik, 527 A.2d 161,
167 (Pa.Super. 1987).
Appellant was charged with possession with intent to deliver in
connection with the search of 127 West Airy Street. Appellant stipulated
that the drugs found were possessed with the intent to distribute. (Notes of
testimony, 2/22/13 at 43.) Appellant challenged his connection to the
contraband. However, the prior bad acts evidence that appellant had twice
engaged in drug sales immediately after exiting the residence in the days
preceding the search was probative of his status as a drug dealer operating
out of the residence. Testimony was presented that the heroin sold to the
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residence searched. Thus, we find the bad acts evidence was directly
relevant to the charge of possession with intent to deliver cocaine and was
Next, appellant argues that the evidence was insufficient to support his
conviction of possession with intent to deliver. No relief is due.
Our standard of review in a sufficiency of the
evidence challenge is to determine if the
Commonwealth established beyond a reasonable
doubt each of the elements of the offense,
considering all the evidence admitted at trial, and
drawing all reasonable inferences therefrom in favor
of the Commonwealth as the verdict-winner. The
trier of fact bears the responsibility of assessing the
credibility of the witnesses and weighing the
evidence presented. In doing so, the trier of fact is
free to believe all, part, or none of the evidence.
Commonwealth v. Newton, 994 A.2d 1127, 1131 (Pa.Super. 2010),
appeal denied, 8 A.3d 898 (Pa. 2010). The Commonwealth may sustain its
burden by means of wholly circumstantial evidence, and we must evaluate
the entire trial record and consider all evidence received against the
defendant. Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007).
As appellant was not in physical possession of the contraband, the
Commonwealth was required to establish that he had constructive
possession of the seized items to support his convictions.
Constructive possession is a legal fiction, a
pragmatic construct to deal with the realities of
criminal law enforcement. Constructive possession is
an inference arising from a set of facts that
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possession of the contraband was more likely than
not. We have defined constructive possession as
conscious dominion. We subsequently defined
conscious dominion as the power to control the
contraband and the intent to exercise that control.
To aid application, we have held that constructive
possession may be established by the totality of the
circumstances.
Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super. 2012), appeal
denied, 63 A.3d 1243 (Pa. 2013) (internal quotation marks and citation
omitted). Additionally, it is possible for two people to have joint constructive
possession of an item of contraband. Commonwealth v. Bricker, 882
A.2d 1008, 1016-1017 (Pa.Super. 2005).
Appellant argues that he was merely present at the residence and the
letter found inside addressed to him demonstrated that he lived at another
-18.) We disagree; when viewed in the
totality, the facts and circumstances support the finding that appellant was
in constructive possession of the contraband. The letter addressed to
not the only evidence presented. (Trial court opinion, 7/19/13 at 14.) The
Commonwealth presented evidence that appellant was involved in a
controlled heroin purchase and an uncontrolled crack purchase immediately
upon exiting the residence in the days before the search warrant was
executed. The Commonwealth also presented evidence that appellant fled
the house when the police search began. Commonwealth v. Hudson, 955
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A.2d 1031, 1036 (Pa.Super. 2008) (flight is a circumstance tending to prove
consciousness of guilt). Appellant is entitled to no relief.2
The third issue presented concerns the sentence imposed of five to
ten yea
deliver in the case indexed at No. 6404-11. Appellant claims that his
decision to agree to the recommended sentence was not knowing, voluntary,
or intelligent as he mistakenly believed the Commonwealth could have
sought a five-year mandatory minimum based on the drugs he possessed
that Alleyne, supra, would render his sentence illegal.
To the extent that appellant raises a claim of ineffectiveness of trial
find this claim is premature and should properly be raised, if necessary, in a
petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A.
§§ 9541-9546. Our supreme court recently reaffirmed the holding in
2
Appellant now argues that, in its opinion, while the trial court found the
packaging on the heroin and cocaine found in the residence was the same as
that recovered from the prior controlled and uncontrolled buys, the evidence
did not show that the heroin he sold on August 15, 2011, was packaged in
-19.) Appellant also
claims the evidence did not establish that the first controlled buy of heroin
Id. We affirm, albeit based on an
analysis different from that articulated by the trial court. See
Commonwealth v. Harper, 611 A.2d 1211, 1213 n.1 (Pa.Super. 1992)
affirm the decision of the trial court if there is any basis on
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Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), in Commonwealth v.
Holmes
ineffective assistance of counsel are to be deferred to PCRA review; trial
courts should not entertain claims of ineffectiveness upon postverdict
Id.
at 576. The Holmes
cir
exercise of its discretion, determines that a claim (or claims) of ineffective
assistance is both meritorious and apparent from the record so that
immediate consideration and relief is
comprehensive, ineffectiveness claims if such review is accomplished by a
Id. at 577-578.
Instantly, the trial court did not find the claim to be meritorious,
appellant has not stated his intention to waive collateral review. Thus,
neither of the exceptions outlined in Holmes is applicable here, and the
instant claim is not reviewable on this direct appeal.
Additionally, to the extent that appellant raises an illegality of sentence
claim pursuant to Alleyne, we find no relief is due. In Alleyne, the United
States Supreme Court held the following:
Any fact that, by law, increases the penalty for
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the jury and found beyond a reasonable doubt.
Mandatory minimum sentences increase the penalty
for a crime. It follows, then, that any fact that
inc
that must be submitted to the jury.
Alleyne, 133 S. Ct. at 2155. Recently in Commonwealth v. Newman,
A.3d , *2, 2014 WL 4088805 (Pa.Super. 2014) (en banc), this court
reviewed case law tracing where the United States Supreme Court allowed
trial courts to make findings regarding sentencing factors. The Newman
court found that Alleyne may be applied retroactively to cases pending on
direct appeal and an issue under Alleyne pertains to the legality of the
sentence and cannot be waived on appeal. Most importantly, the Newman
court found Alleyne rendered 42 Pa.C.S.A. § 9712.1 unconstitutional. Id.
at *10. See also Commonwealth v. Watley, 81 A.3d 108, 117 (Pa.Super.
2013) (en banc), appeal denied, A.3d (Pa. 2014).
However, the Sixth Amendment concerns present in Alleyne are not
implicated in this case. The Commonwealth did not file notice invoking the
mandatory minimum, and the court never received evidence establishing the
applicability of the mandatory minimum under 42 Pa.C.S.A. § 9712.1(c). At
the sentencing hearing, the parties merely indicated that they jointly
recommended a five-to-ten-year sentence for possession of heroin with
intent to deliver. The trial court did not make a finding concerning whether
found guilty of possessing. Nor is there any indication on the record of the
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terms and circumstances discussed in recommending the sentence to the
trial court. This court relies only on facts of record. Commonwealth v.
Montalvo, 641 A.2d 1176, 1183 (Pa.Super. 1994). Facts dehors the record,
such as assertions that appear only in briefs, are not to be considered.
Commonwealth v. Greer, 866 A.2d 433, 435 n.2 (Pa.Super. 2005).
Appellant is not entitled to relief.
The final issue presented
with intent to deliver cocaine. Appellant argues that the evidence did not
demonstrate the weight of the cocaine found in the residence. He argues
that the weight would impact the offense gravity score for the possession
with intent to deliver convictions. We agree with the Commonwealth that
this claim is waived.
aises a
Commonwealth v. Johnson, 758 A.2d 1214, 1216 (Pa.Super. 2000)
(citation omitted) (challenge to the discretionary aspects of sentence,
alleging erroneous computation of prior record score). Since appellant is
challenging the discretionary aspects of his sentence, we must consider his
brief on this issue a petition for permission to appeal. Commonwealth v.
Yanoff, 690 A.2d 260, 267 (Pa.Super. 1997). See also Commonwealth
v. Tuladziecki, 522 A.2d 17 (Pa. 1987); 42 Pa.C.S.A. § 9781(b).
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Initially, there is a four-part test to determine if we may review the
discretionary aspects of a sentence:
1) the issue must be specifically preserved in a
timely motion to modify sentence; 2) a timely notice
of appeal must be filed; 3) the issue must be set
forth in the issues to be raised on appeal in the
statement of questions presented; and 4) the issue
must be included within a concise statement of
reasons for allowance of appeal which demonstrates
a substantial question that the sentence imposed
was not appropriate under the Sentencing Code.
, 849 A.2d 243, 253-254 (Pa.Super. 2004).
Appellant has not satisfied each of these prerequisites. Appellant did
not raise this issue at sentencing or in a post-sentence motion. Accordingly,
this issue is not preserved for our review. Commonwealth v. Mann, 820
A.2d 788, 794 (Pa.Super. 2003) (stating issues challenging discretionary
aspects of sentencing must be raised in post-sentence motion or by raising
the claim during the sentencing proceedings or the issue is waived).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2014
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