J-S12037-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :         IN THE SUPERIOR COURT OF
                                          :               PENNSYLVANIA
            v.                            :
                                          :
ANTOINE WILLIAM DAYD,                     :
                                          :
                  Appellant               :            No. 1082 MDA 2016

          Appeal from the Judgment of Sentence January 26, 2016
             in the Court of Common Pleas of Dauphin County,
            Criminal Division, No(s): CP-22-CR-0005196-2014

BEFORE: PANELLA, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED MARCH 23, 2017

      Antoine William Dayd (“Dayd”) appeals from the judgment of sentence

imposed following his conviction of three counts of firearms not to be carried

without a license, and one count each of possession of firearms prohibited,

possessing instruments of crime, receiving stolen property, and fleeing or

attempting to elude a police officer.1 We affirm.

      In its Opinion, the trial court set forth the relevant factual and

procedural history, which we adopt for the purpose of this appeal. See Trial

Court Opinion, 8/29/16, at 1-3.

      Dayd filed a timely Notice of Appeal, and a court-ordered Pa.R.A.P.

1925(b) Concise Statement of matters complained of on appeal.

      On appeal, Dayd raises the following issues for our review:




1
  See 18 Pa.C.S.A. §§ 6106(a)(1), 6105(a)(1), 907(a), 3925(a); 75
Pa.C.S.A. § 3733(a).
J-S12037-17


     1. Whether the Commonwealth failed to provide sufficient
        evidence at trial to support the guilty verdict on the
        firearm[s] charges?

     2. Whether the verdict was against the weight of the evidence
        presented at trial?

     3. Whether [Dayd] is serving an illegal sentence pursuant to
        Alleyne v. United States, 133 S. Ct. 2151 (2013)?[2]

     4. Whether the sentence received was excessive, as the trial
        court failed to put reasoning on the record for said sentence?

Brief for Appellant at 5 (capitalization omitted, issues renumbered, footnote

added).

     In his first issue, Dayd contends that the evidence was insufficient to

convict him of the firearms charges; namely, firearms not to be carried

without a license and possession of firearms prohibited.    Id. at 10.   Dayd

asserts that the element of possession was not proven for either offense.

Id. at 11. Dayd claims that there was no physical evidence tying him to the

firearms, except his presence in the vehicle in which the firearms were

discovered by police.     Id. at 13.    Specifically, Dayd argues that no

fingerprints were found on the firearms; the firearms were not registered to

him; he did not own the vehicle; and there was no evidence that the

firearms were visible to him while he was driving the vehicle. Id.




2
  In Alleyne, the Supreme Court of the United States held that “facts that
increase mandatory minimum sentences must be submitted to the jury” and
must be found beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2155,
2163.


                                 -2-
J-S12037-17


      In its Opinion, the trial court addressed Dayd’s first issue, set forth the

relevant law, and concluded that the evidence was sufficient to convict Dayd

of the firearms charges.      See Trial Court Opinion, 8/29/16, at 3-5.      We

agree with the reasoning of the trial court and affirm on this basis as to

Dayd’s first issue. See id.

      In his second issue, Dayd contends that the verdict was against the

weight of the evidence presented at trial. Brief for Appellant at 14. Dayd

asserts that the jury rendered a contradictory verdict, as it found him guilty

of the firearms charges, but not guilty of the drug and paraphernalia

charges.   Id. at 15.   Dayd claims that the inconsistent verdicts “shocked

one’s sense of justice,” requiring reversal of his convictions. Id.

      In its Opinion, the trial court addressed Dayd’s second issue, set forth

the relevant law, and concluded that the verdict was not against the weight

of the evidence presented at trial. See Trial Court Opinion, 8/29/16, at 5-6.

We agree with the reasoning of the trial court and affirm on this basis as to

Dayd’s second issue. See id.

      In his third issue, Dayd contends that his sentence is illegal under

Alleyne. Brief for Appellant at 17. Dayd asserts that it is unclear from the

record whether he is serving a mandatory minimum sentence.            Id.   Dayd

claims that “[n]othing was said on the record, nor did the sentencing

guidelines indicate that any mandatories apply.” Id.




                                   -3-
J-S12037-17


      In its Opinion, the trial court addressed Dayd’s third issue, and

determined that his sentence does not violate Alleyne because no

mandatory minimum sentences were imposed.                See Trial Court Opinion,

8/29/16, at 6. We agree with the reasoning of the trial court and affirm on

this basis as to Dayd’s third issue. See id.; see also N.T., 1/26/16, at 1-

14.

      In his final issue, Dayd contends that his sentence is excessive. Brief

for Appellant at 16. Dayd acknowledges that the trial court had the benefit

of a presentence investigation report (“PSI”), which the trial judge reviewed

and incorporated into the record, but claims that the trial judge failed to

state the reasons for imposing her sentence.             Id.      Dayd argues that,

because the trial court failed to sufficiently state the reasons for his sentence

on the record, Dayd’s sentence must be vacated. Id. at 17.

      Dayd’s final issue challenges the discretionary aspects of his sentence.

See Commonwealth v. Smicklo, 544 A.2d 1005, 1009 (Pa. Super. 1988)

(holding that claims relating to statement of reasons requirements are

treated   as   challenges   to   the    discretionary   aspects    of   a   sentence).

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010).       Prior to reaching the merits of a discretionary

sentencing issue,

      [this Court conducts] a four part analysis to determine: (1)
      whether appellant has filed a timely notice of appeal, see


                                       -4-
J-S12037-17


     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. [720]; (3) whether appellant’s brief
     has a fatal defect, [see] 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, [see] 42
     Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).

     In the instant case, Dayd filed a timely post-sentence Motion and a

timely Notice of Appeal, and included in his appellate brief a separate Rule

2119(f) Statement.    As such, Dayd is in technical compliance with the

requirements to challenge the discretionary aspects of his sentence.     See

Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010). Thus,

we will proceed to determine whether Dayd has presented a substantial

question for our review.

     In his Rule 2119(f) Statement, Dayd states that, when imposing his

sentence, the trial court failed to state the reasons for the sentence on the

record. Brief for Appellant at 9.   A claim that a sentencing court failed to

state adequate reasons on the record for the sentence imposed has been

held to raise a substantial question. See Commonwealth v. Krysiak, 535

A.2d 165, 168 (Pa. Super. 1987).

     Pursuant to 42 Pa.C.S.A. § 9721(b):

     In every case in which the court imposes a sentence for a felony
     or misdemeanor, the court shall make as a part of the record,
     and disclose in open court at the time of sentencing, a statement
     of the reason or reasons for the sentence imposed. . . . Failure
     to comply shall be grounds for vacating the sentence and
     resentencing the defendant.


                                 -5-
J-S12037-17



42 Pa.C.S.A. § 9721(b). Thus, the requirement that the trial court articulate

its reasons for the sentence imposed is not discretionary, but mandatory.

See Krysiak, 535 A.2d at 168.

     However, the sentencing judge can satisfy the requirement that

reasons for imposing sentence be placed on the record by indicating that he

or she has been informed by the PSI, thus properly considering and

weighing all relevant factors. See Commonwealth v. Ventura, 975 A.2d

1128, 1135 (Pa. Super. 2009)

     Our review discloses that, while the trial judge did not place on the

record her reasons for imposing sentence upon Dayd, she indicated that she

had ample opportunity to review the PSI and Dayd’s prior record, and

incorporated the PSI into the record. See N.T., 1/26/16, at 6, 7. Because

the trial court clearly relied upon the PSI, and the sentence imposed was

neither outside the applicable guidelines nor unreasonable, we conclude that

the trial judge did not abuse her discretion and, thus, there is no merit to

Dayd’s sentencing claim. See Ventura, 975 A.2d at 1135.3

     Judgment of sentence affirmed.



3
  In his brief, Dayd also contends that the trial court should have taken into
consideration the fact that Dayd has never received treatment for his
addictions. Brief for Appellant at 16. However, this issue was not preserved
for our review in Dayd’s Rule 2119(f) Statement. See Commonwealth v.
Feucht, 955 A.2d 377, 384 (Pa. Super. 2008) (holding that any
discretionary sentencing issue that is not raised in the Rule 2119(f)
statement is waived on appeal). Thus, we decline to address it.


                                 -6-
J-S12037-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/23/2017




                          -7-
                                                                              Circulated 03/10/2017    04:57 PM




COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
                             : DAUPHIN COUNTY, PENNSYLVANIA,
                                                      ~ . ·: ~::=
                                                                                                            ~   t   I

                         v.                         : 1082 MDA 2016
                                                                                        ......~} . -
                                                    : 5196 CR 2014

ANTOINE DAYD                                        : CRIMINAL APPEAL


TRIAL COURT MEMORANDUM OPINION PURSUANT TO PENNSYLVANIA llU~
                OF APPELLATE PROCEDURE 1925(a)

          Presently before the Superior Court of Pennsylvania is the appeal of Antoine Dayd

(hereinafter "Appellant") of this Court's June 8, 2016, order dismissing his Post Sentence

Motion.

                                        Procedural History

          Appellant was arrested and charged with sixteen (16) criminal counts, including Persons

Not to Possess Firearms, Theft by Receiving Stolen Property, Carrying without a License,

Possession with Intent to Deliver, Possession of Instruments of Crimes, Fleeing and/or Eluding,

Unlawful Possession of a Controlled Substance, and Unlawful Possession of Drug Paraphernalia.

A jury trial was held October 26-28, 2015, and Appellant was found guilty on the charges of

Person Not to Possess, Theft by Receiving Stolen Property, Carrying without a License,

Possession of Instruments of Crimes and Fleeing and/or Eluding. He was found not guilty on the

PWI and Unlawful Possession charges.

          Appellant was sentenced on January 26, 2016, to an aggregate sentence of 8 to 16 years

of incarceration with two years of state supervision. He was represented at trial and sentencing

by Gary Kelley, Esq., Attorney Kelley filed a post-sentence motion on February 2, 2016. On

February 5, 2016, Jennifer Tobias, Esq., was appointed as counsel. Briefs were ordered and filed

and this court dismissed the post sentence motion on June 8, 2016.



                                                1 of 7
                                             Factual Background

           At approximately 3 a.m. on August ~2, 2014, Officer Matthew Corby of the Swatara

Police Department, while on patrol in his marked police vehicle, observed a car that had its

registration light burnt out and potentially matched the description of a stolen vehicle. (Notes of

Testimony, Jury Trial, Oct 26-28, 20151, pp. 44-45.) Therefore, Officer Corby ran the license

plate numbers, which delivered a report indicating that the registration was expired, but the car

was not stolen. (Id. at 45). The car was registered to one of the occupants, co-defendant Calvin

Hill-Gamble. (Id. at 100). Subsequently, Officer Corby engaged his fully marked patrol car's

lights and sirens; after about half a mile of pursuing this vehicle, the vehicle came to a stop. (Id.

at 46-48). Upon the vehicle's hasty stop, the three occupants within the vehicle attempted to

escape through the driver's side rear passenger door as well as the front passenger-side door. (Id.

at 52). Officer Corby immediately commanded the occupants to remain in the vehicle with their

hand up. (Id.). Unfortunately, one occupant escaped via the driver's side rear passenger door

and the front seat passenger climbed into the driver's side rear passenger seat and escaped. (Id.

at 52). The only remaining occupant, who had been the driver, later identified as Appellant, was

arrested by Officer Corby. (Id. at 53, 56).

            Appellant was arrested and Mirandized. (Id. at 59). Upon peering through the rear seat

window, Officer Corby observed a clear bag in the backseat cup holder containing a "white

chalky substance" which he recognized as crack cocaine and a black plastic bag on the floor

behind the driver's seat. (Id. at 61). Upon further search of the vehicle, the police found 20 bags

of heroin in the front passenger door and in the black bag behind the driver they found three




 I
     Hereinafter "N.T."


                                                  2 of7
firearms, three ski masks, a pair of binoculars, and another plastic bag that contained several

boxes of ammunition. (Id. at 62-63).

        The guns and ammunition were fingerprinted, but no prints were lifted. (N.T. at 99).

                 Appellant'sStatementof MattersComplained of on Appeal

    •   The evidence was not sufficient to warrant a guilty verdict on the Firearms charges.
    •   The verdict of guilty (Firearms charges) was against the weight of the evidence.
    •   The sentence the Appellant received was excessive, and no reasoning was put on the
        record as to the sentence.
    •   The sentence the Appellant received was illegal under A l!eyne v. United States, 133 S.Ct.
        2151 (2013)
                                            Discussion

        Appellant makes both a sufficiency of the evidence and weight of the evidence claim.

While a challenge to the weight of the evidence concedes sufficient evidence existed to sustain

the jury's verdict, we find it prudent to address both claims. See Commonwealth v. Hunter, 2001

PA Super 38, 768 A.2d 1136 (2001 ). We will first address the sufficiency claim.

            A claim challenging the sufficiency of the evidence is a question of
            law. Evidence will be deemed sufficient to support the verdict when
            it establishes each material element of the crime charged and the
            commission thereof by the accused, beyond a reasonable doubt.
            Commonwealth v. Karkaria, 533 Pa. 412, 625 A.2d 1167 (I 993).
            Where the evidence offered to support the verdict is in contradiction
            to the physical facts, in contravention to human experience and the
            Jaws of nature, then the evidence is insufficient as a matter of law.
            Commonwealth v. Santana, 460 Pa. 482, 333 A.2d 876 (1975).
            When reviewing a sufficiency claim the court is required to view the
            evidence in the light most favorable to the verdict winner giving the
            prosecution the benefit of all reasonable inferences to be drawn from
            the evidence. Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d
             630 (1991).
Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 (2000)

        In this case, Appellant contends that the evidence was not sufficient to warrant a guilty

 verdict on the firearms charges as "possession" as not proven.




                                                3 of7
       Pursuant to the Suggested Standard Jury Instruction (Criminal) 15.6105 "PERSONS

NOT TO POSSESS, USE, MANUFACTURE, CONTROL, SELL, OR TRANSFER A

FIREARM" For a person to "possess" a firearm, he or she must have the intent to control and the

power to control the firearm." This precise language was used in instructing the jury. (N.T. at

435-436).

               Possession can be actual possession, constructive possession or joint constructive

possession.   See Commonwealth v. Gladden, 445 Pa.Super. 434, 665 A.2d 1201 ( 1995), appeal

denied, 544 Pa. 624, 675 A.2d 1243 (1996); Commonwealth v. Magwood, 371 Pa.Super. 620,

538 A.2d 908 ( 1988), appeal denied, 519 Pa. 653, 546 A.2d 57 (1988); Commonwealth v.

Naguski, 223 Pa.Super. 301, 299 A.2d 39 (1972).

            'When contraband is not found on the defendant's person, the
            Commonwealth       must establish       constructive   possession ... .'
            Commonwealth v. Haskins, 450 Pa.Super. 540, 677 A.2d 328, 330
            (1996), appeal denied. 547 Pa. 751, 692 A.2d 563 (1997).
            'Constructive possession is the ability to exercise conscious control
            or dominion over the illegal substance and the intent to exercise that
            control.' Commonwealth v. Kirkland, 831 A.2d 607, 610
            (Pa.Super.2003), appeal denied, 577 Pa. 712, 847 A.2d 1280 (2004)
            (citing Commonwealtli v. Macolino, 503 Pa. 201, 469 A.2d 132
            (1983)). '[T]wo actors may have joint control and equal access and
            thus both may constructively possess the contraband.' Haskins,
            supra at 330. 'The intent to exercise conscious dominion can be
            inferred from the totality of the circumstances.' Kirkland, supra at
            610.
Commonwealth v. Jones, 874 A.2d 108, 121 (Pa.Super.2005).

        We agree with Appellant that very little testimony was dedicated to the element of

"possession" and certainly we cannot contend that Appellant per se had either the power to

control or the intent to control a weapon where another person has equal access to the area.

However, Officer Corby testified that Appellant was the driver of the vehicle, the guns were

obviously within his reach as they were just behind his seat. Further, there were three occupants




                                               4 of7
of the vehicle, three guns, three masks and several sets of gloves. It is a reasonable inference that

each occupant of the car had the intent to control and power to control the firearms, Further

pursuant to Jones supra, it is possible for two or more actors to have joint constructive

possession. Again, the totality of the circumstances fits with the Commonwealth's       argument that

the bag contained "the tools of the trade." Each occupant was to control at least one firearm over

the course of events. Appellant was the driver and did not stop immediately upon being hailed by

police. He drove a little ways into an apartment complex and the other occupants fled, leaving

him stuck in the car.

        We believe there was sufficient evidence to prove the element of "possession" beyond a

reasonable doubt.

        Next Appellant challenges the verdict as being against the weight of the evidence.

Specifical1y, he alleges that there were inconsistencies in the testimony and evidence presented

and that an inconsistent verdict shocks one's sense of justice.

             A motion for new trial on the grounds that the verdict is contrary to
             the weight of the evidence, concedes that there is sufficient evidence
             to sustain the verdict. Thus, the trial court is under no obligation to
             view the evidence in the light most favorable to the verdict winner.
             An allegation that the verdict is against the weight of the evidence
             is addressed to the discretion of the trial court. A new trial should
             not be granted because of a mere conflict in testimony or because
             the judge on the same facts would have arrived at a different
             conclusion .... Trial judges ... do not sit as the thirteenth juror. Rather,
             the role of the trial judge is to determine that "notwithstanding all
             the facts, certain facts are so clearly of greater weight that to ignore
             them or to give them equal weight with all the facts is to deny
             justice."
              Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751-52
              (2000) (citations omitted). We "may not reverse a verdict unless it
              is so contrary to the evidence as to shock one's sense of justice."
             Burns, 765 A.2d at 1 150.
 Commonwealth v. Hunter, 2001 PA Super 38, 768 A.2d 1136 (2001).




                                                 5 of7
       The credibility of witnesses is for the finder of fact (in this case the jury) which is free to

believe all, none or part of the evidence and to assess the credibility of the witnesses.

Commonwealth v. Treiber, 874 A.2d 26 (Pa. 2005).

        We must note that consistency in verdicts is not necessary.

                "[I]nconsistent verdicts, while often perplexing, are not considered
                mistakes and do not constitute a basis for reversal." Commonwealth
                v. Petteway, 847 A.2d 713, 718 (Pa.Super.2004) ( citations omitted).
                Rather, "[t]he rationale for allowing inconsistent verdicts is that it is
                the jury's sole prerogative to decide on which counts to convict in
                order to provide a defendant with sufficient punishment."
                Commonwealth. v, Miller, 441 Pa.Super. 320, 657 A.2d 946, 948
                (1995) (citations omitted). "When an acquittal on one count in an
                indictment is inconsistent with a conviction on a second count, the
                court looks upon the acquittal as no more than the jury's assumption
                of a power which they had no right to exercise, but to which they
                were disposed through lenity. Thus, this Court will not disturb guilty
                verdicts on the basis of apparent inconsistencies as long as there is
                sufficient evidence to support the verdict." Petteway, supra.

Commonwealth v. Frisbie, 2005 PA Super 430, ,i 6, 889 A.2d 1271, 1273 (2005)

We cannot use an inconsistent verdict, such as the one here, to overturn the verdict. We can infer

from the fact that he was found not guilty on all charges related to drugs that the jury was not

convinced beyond a reasonable doubt that Appellant was involved in drug sales that night. We

have no way of knowing which element of those crimes they felt was not proven beyond a

reasonable doubt. There is still enough evidence, as discussed above, to warrant a guilty verdict

on the firearms charges. We admit to finding the verdict curious, but not shocking to our sense of

justice. Inconsistent verdicts are a jury's prerogative.

        Lastly, there was no reference at sentencing to mandatory minimums which are illegal

under Alleyne. The sentencing guidelines do not indicate that mandatory minimums were

utilized. Thus we do not believe that he was sentenced pursuant to any mandatory minimum.




                                                  6 of7
       However, Appellant's complaint regarding the Jack of reasoning put on the record as to

sentence recognized as true. We failed to put a sufficient statement on the record for our

sentence.

       For this reason we ask the Superior Court to vacate the sentence and remand for new

sentencing.




                                                                         Respectfully submitted:




                                                                         Deborah E. Curcillo, Judge



                                                             Dated: __        r=-+--f 7_-°/--+1-/ Y_
Distribution:
The Superior Court of Pennsylvania ~· ~L
Hon. Deborah E. Curcillo ~
Kristie Falbo, Esq., Dauphin County District Attorney's Office J:-t;
Jennifer Tobias, Esq., PO Box 365, Stewartstown, PA 17363~       L-
                                                                                                ..... ·'



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