J-S05016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHAREAF WILLIAMS

                            Appellant                No. 1253 MDA 2016


             Appeal from the Judgment of Sentence March 1, 2016
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0001217-2013


BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                        FILED FEBRUARY 24, 2017

        Appellant, Shareaf Williams, appeals from the judgment of sentence

entered after a jury convicted him of several crimes flowing from his

attempted sale of heroin to an addict. On appeal, Williams raises two

challenges to the sufficiency of the evidence supporting his convictions, and

two challenges to the sentence imposed by the trial court. After careful

review, we affirm.

        In 2013, the Commonwealth charged Williams with one count of

possession of heroin with intent to deliver, one count of possession of

heroin, one count of criminal use of a communication facility, and one count


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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of possession of drug paraphernalia. In December 2015, these charges were

tried before a jury.

      At trial, the Commonwealth presented the following evidence. Brandon

Warner testified that he was a heroin addict, and that he called Williams to

arrange a purchase of three bags of heroin. See N.T., Jury Trial, 12/7/15, at

18; 20-21. Williams directed Warner to meet him at a house at the corner of

First and High Streets in Williamsport. See id., at 22. Warner testified that

he knew Williams, as he had spoken to him approximately fifteen times in

the month prior to that date. See id., at 25-26.

      Warner’s wife drove him to the specified house, and Warner expected

to consummate a street transaction with Williams. See id., at 22-23.

Instead, Williams got into Warner’s car and directed him to have his wife

drive around the block. See id., at 23. Warner’s wife began to drive away,

but was immediately pulled over by police. See id. Warner testified that

when questioned by the arresting officer, State Trooper Robert Williamson,

he admitted he had a needle in the car. See id., at 25.

      Trooper Williamson testified that after questioning Warner and his

wife, he believed he had grounds for arresting Warner, his wife, and Williams

for attempting to engage in a narcotics transaction. See id., at 37. Williams

was searched pursuant to his arrest, and the police discovered three small

baggies containing heroin. See id., at 37-38.




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      Trooper Justin Snyder testified as an expert witness on the habits of

drug dealers and addicts. See id., at 47-50. Trooper Snyder testified that

heroin users usually purchased small amounts of heroin for personal use.

“Very rare do you see them buy in bulk.” Id., at 53. He testified that he

believed that Williams possessed the three bags of heroin with the intent to

sell them to Warner. See id., at 52.

      Williams did not present any witnesses, but focused on deficiencies in

the Commonwealth’s case. For instance, he highlighted the fact that police

had failed to confirm whether the phone in Williams’s possession when he

was arrested had received a call from Warner. See id., at 41; 57.

      The jury convicted Williams on all charges. After receiving and

reviewing a pre-sentence investigation report (“PSI”), the trial court

sentenced Williams to an aggregate term of imprisonment of four to

eighteen years. Williams filed post-sentence motions challenging the

sufficiency and weight of the evidence supporting his convictions, as well as

challenges to the discretionary aspects of his sentence. The trial court

denied Williams’s motions, and this timely appeal followed.

      On appeal, Williams raises two challenges to the sufficiency of the

evidence at trial, and two challenges to the discretionary aspect of his

sentence. We will address Williams’s challenges to his conviction, issues

number three and four, first.




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      Issues three and four are both challenges to the sufficiency of the

evidence at trial to support the jury’s verdict. Our standard of review for a

challenge to the sufficiency of the evidence is to determine whether, when

viewed in a light most favorable to the verdict winner, the evidence at trial

and all reasonable inferences therefrom are sufficient for the trier of fact to

find that each element of the crimes charged is established beyond a

reasonable doubt. See Commonwealth v. Dale, 836 A.2d 150, 152 (Pa.

Super. 2003). “The Commonwealth may sustain its burden of proving every

element of the crime beyond a reasonable doubt by means of wholly

circumstantial evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661

(Pa. Super. 2007) (citation omitted).

      “[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.” Id. (citation omitted). Any

doubt raised as to the accused’s guilt is to be resolved by the fact-finder.

See id. “As an appellate court, we do not assess credibility nor do we assign

weight to any of the testimony of record.” Commonwealth v. Kinney, 863

A.2d 581, 584 (Pa. Super. 2004) (citation omitted). Therefore, we will not

disturb the verdict “unless the evidence is so weak and inconclusive that as

a matter of law no probability of fact may be drawn from the combined

circumstances.” Bruce, 916 A.2d at 661 (citation omitted).

      In issue three, Williams argues that “the small amount of recovered

heroin [in this case] reflects personal use, not product for sale.” Appellant’s


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Brief, at 25. Furthermore, Williams asserts that under the circumstances, it

was just as likely that he was purchasing heroin from Warner. See id.

      Williams’s arguments are beside the point. Warner testified that he

arranged a transaction to purchase heroin from Williams. Trooper Snyder

testified that, in his expert opinion, Warner was purchasing heroin from

Williams. The jury was entitled to credit the testimony of both witnesses,

and infer that Williams possessed the heroin with the intent to sell it to

Warner. William’s issue number three merits no relief on appeal.

      In his fourth numbered issue, Williams challenges the sufficiency of the

evidence supporting his conviction for criminal use of a communication

facility. The offense of criminal use of a communication facility is defined as

follows.

      A person commits a felony of the third degree if that person uses
      a communication facility to commit, cause of facilitate the
      commission or the attempt thereof of any crime which
      constitutes a felony under this title or under the act of April 14,
      1972 (P.L. 233, No. 64), known as The Controlled Substance,
      Drug, Device and Cosmetic Act. Every instance where the
      communication facility is utilized constitutes a separate offense
      under this section.

18 Pa.C.S.A. § 7512. Thus, to support a conviction under Section 7512, the

Commonwealth must establish beyond a reasonable doubt that

       (1)  Appellant[]    knowingly   and    intentionally  used    a
      communication facility; (2) Appellant[] knowingly, intentionally
      or recklessly facilitated an underlying felony; and (3) the
      underlying felony occurred … Facilitation has been defined as
      “any use of a communication facility that makes easier the
      commission of the underlying felony.”


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Commonwealth v. Moss, 852 A.2d 374, 382 (Pa. Super. 2004) (internal

citations omitted).

      Williams argues that the Commonwealth failed to establish that the

transaction occurred, and thus, the Commonwealth could not prove the third

Moss element. See Appellant’s Brief, at 26. However, once again, Williams’s

argument    misses    the    point.   We    have    already   concluded      that   the

Commonwealth presented sufficient evidence to establish that Williams

committed possession of heroin with the intent to deliver it to Warner. That

is the underlying felony, not any actual transaction. The use of cell phones

facilitated Williams’s intent to deliver the heroin to Warner. As a result, the

Commonwealth’s evidence was sufficient to support the conviction.

      In the alternative, Williams argues that the Commonwealth did not

provide text or phone records establishing that Warner and Williams had

communicated. While such evidence is certainly more objective than

Warner’s testimony, Warner’s testimony is just as certainly sufficient to

support the conviction. If, as the jury was entitled to do, the jury believed

Warner’s   testimony,       that   was     enough    to   establish   that     Warner

communicated his desire to purchase heroin to Williams over the phone, and

that Williams replied by informing Warner where to meet to consummate the

transaction. Williams’s fourth issue on appeal merits no relief.

      Returning to Williams’s first two issues on appeal, they are both

challenges to the discretionary aspects of the sentence imposed by the trial


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court. “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). “Two requirements must be met before we

will review this challenge on its merits.” Id. (citation omitted).

      “First, an appellant must 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.” Id. (citation omitted). “Second, the

appellant must show that there is a substantial question that the sentence

imposed is not appropriate under the Sentencing Code.” Id. (citation

omitted). That is, “the sentence violates either a specific provision of the

sentencing scheme set forth in the Sentencing Code or a particular

fundamental norm underlying the sentencing process.” Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (citation omitted).

      We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See id. “Our inquiry must focus on

the reasons for which the appeal is sought, in contrast to the facts

underlying the appeal, which are necessary only to decide the appeal on the

merits.” Id. (citation omitted); see also Pa.R.A.P. 2119(f).

      In the present case, Williams’s appellate brief contains the requisite

Rule 2119(f) concise statement. In his statement, Williams asserts that the

trial court exhibited bias against him during sentencing. This claim raises a


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substantial question. See Commonwealth v. Williams, 69 A.3d 735, 744

(Pa. Super. 2013).

      Williams’s Rule 2119(f) statement does not support his second

sentencing claim: That the trial court abused its discretion in imposing an

aggravated range sentence on the possession with intent to deliver

conviction. Normally, this omission would render the issue waived for

appellate review. However, the Commonwealth declined to file a brief in this

appeal. It therefore missed its opportunity to object to this defect. In light of

the Commonwealth’s disinterest in this appeal, we decline to find waiver.

See Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014) (declining to find waiver where

Commonwealth did not object to Appellant’s failure to comply with Rule

2119(f)).

      After reviewing the record, we conclude that neither of Williams’s

sentencing challenges are meritorious. The sentencing court may have used

arguably inartful language when it stated, “I think … there is a special place

in hell for [drug dealers] who take advantage of the weakness of others,

especially when it comes to an addiction, which is disease, taking advantage

of the disease, nature of people [sic].” N.T., Sentencing, 3/1/16, at 13.

However, a review of this statement, which we quote verbatim, in context

reveals that it was not an indication of personal animus or bias against

Williams:


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     I think what struck me, Mr. Williams, is just the fact that you
     have so many possession with intent to deliver charges. You
     started out from a very early age it feels like involved in drugs.
     The fact that you in your description of how drugs play a part in
     your life, where you say you don’t use, to me that cuts even
     more against you when you’re found with heroin that you are a
     dealer and we all know because we can’t help but read about it
     in the newspaper, hear about it on the TV or see it on the
     internet how heroin is decimating our communities, not just
     Williamsport; but the Commonwealth of Pennsylvania, across the
     United States, just people dying of heroin right and left. The
     individuals that sell heroin it’s not just heroin any more it’s got
     heroin with something else in it. This last batch of drugs had
     fentanyl in it, which apparently packed quite a punch because
     there were a number of people that overdosed not expecting to
     have such potent heroin. So that – that’ s really something that I
     have to consider, the fact that you did go to trial and although
     you have the right to protect your record for appeal, the fact
     that I’m really not seeing a whole lot of remorse. I disagree with
     the Commonwealth on one thing. Having been in the system for
     as long as I have been and understanding the generational
     nature of this business, being involved in the criminal justice
     system, that sometimes it takes a teacher, a family friend, a
     member of the clergy, perhaps a parole agent to show an
     individual involved in the criminal justice system a different way,
     that it isn’t all about fast money, it isn’t all about the thrill of
     trying to beat the cops or getting around the system and so it’s
     on that point that I disagree that maybe, I’m not saying that it’s
     the cure for everything; but maybe that would have changed
     something in your progression. Maybe not though. Because if
     you choose to hang around with people who deal drugs you’re
     going to sell drugs. If you choose to hang around people who
     don’t honor the law and respect the law, that’s the way you’re
     going to behave. So unless you are willing to really live that
     change, the best parole agent in the world isn’t going to help
     you because you’re never going to – it’s never going to stick. I
     think the fact that you were on supervision in Philadelphia
     County or just even if you weren’t that you were just very
     recently on supervision and came up here within weeks or
     months of being incarcerated to continue your business up here,
     boy, that’s certainly not mitigating and I can’t think of a better
     argument for an aggravated range sentence than that. We are
     what we repeatedly do. I mean I know that’s not the full quote
     from Aristotle, but it sure seems like that when I see people who

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      – people who steal are thieves. People who deal drugs, drug
      dealers, you’re preying upon the weaknesses of others. I think
      there is one could argue there is a special place in hell for people
      who take advantage of the weaknesses others, especially when
      it comes to an addiction, which is a disease, taking advantage of
      the disease, nature of people. So being born in Philadelphia and
      raised in the suburbs this isn’t about us and them mentality, this
      is about us as a community keeping away people who trying to
      hurt our community regardless of where you’re from. You could
      become – you could be from High Street, you could be from Park
      Avenue, you could be from wherever, Loyalsock Township in the
      County of Lycoming it’s just this is the kind of behavior that’s
      gotta stop. So Miss Ippolito is correct because this is your at
      least second conviction for possession with the intent to deliver,
      your statutory maximum is 30 years. So I could conceivably put
      your max up that long and that would place you almost as old as
      I am when you could conceivably be off supervision. That’s a
      long time where if you’re not willing to do anything about it it’s
      not going to change your behavior at all. So think that what I’m
      going to do is I’m going to sentence you consecutively on Counts
      1 and 2, so I’m not going to go as high as the Commonwealth is
      recommending; but I’m going to go to 48 months to 18 years as
      a total overall sentence.

Id., at 11-14. This passage demonstrates that the trial court’s “special place

in hell” statement was but a small part of a lengthy analysis that also

explicitly considered Williams’s difficult childhood, among other things.

Viewed in this context, we do not believe the trial court exhibited bias or

personal animus against Williams.

      In his second issue, Williams contends that the trial court abused its

discretion in imposing an aggravated range sentence for his possession of

heroin with intent to deliver conviction. Given the above quoted passage, we

conclude that the trial court’s decision to aggravate Williams’s sentence was

reasonable. The trial court was concerned with the threat Williams posed to


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the community, the likelihood that he would soon re-offend when he was

released from incarceration, and his need for extensive rehabilitation. These

all reasonably militated in favor of an aggravated range sentence. We cannot

conclude that this decision was an abuse of the trial court’s discretion, and

therefore William’s final issue on appeal merits no relief.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2017




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