J-S68043-15




NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CARLOS RIVERA

                            Appellant                  No. 215 EDA 2015


             Appeal from the Judgment of Sentence May 23, 2012
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003082-2010


BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                         FILED DECEMBER 01, 2015

        Appellant, Carlos Rivera, appeals from the May 23, 2012 judgment of

sentence of three to six years’ incarceration, followed by three years of

probation, imposed after the trial court found Appellant guilty of possession

with intent to deliver (PWID) and possession of a controlled substance.1

After careful review, we affirm Appellant’s convictions but vacate the

judgment of sentence and remand for resentencing.

        The trial court, sitting as the fact-finder, recited the evidence

presented at trial as follows.

                    On February 19, 2010 at approximately 2:20
              p.m., Philadelphia Police Officer Piotr Planita, along
____________________________________________


1
    35 P.S. § 780-113(a)(30) and (16), respectively.
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            with Officer Snyder, set up a surveillance narcotic
            investigation using a confidential informant on the
            2800 block of Hope Street. This investigation was in
            connection with two active search warrants for 2802
            Hope St. and 2815 Hope St.            The confidential
            informant was given prerecorded buy money and
            told to go to 2802 Hope St. to buy cocaine. Officer
            Planita then set up his surveillance on the 2700 block
            of Hope St. to observe the confidential informant.

                  The      confidential     informant   approached
            [Appellant] and another male outside of 2802 Hope
            St. and engaged both in a brief discussion. Officer
            Planita observed a quick hand to hand interaction
            between the confidential informant and [Appellant].
            [Appellant] then crossed the street to a vacant lot at
            approximately 2811 Hope St., where a pickup truck
            was parked. [Appellant] bent down next to the
            passenger side of the pickup truck, where Officer
            Planita briefly lost sight of him. [Appellant] was then
            observed returning across the street to the
            confidential informant and again engaged in a brief
            hand to hand interaction. The confidential informant
            then returned to the officers and turned over four
            green tinted Ziploc bags containing cocaine.

                   Officers in the area then executed a search
            warrant on 2802 Hope St. [Appellant] fled into the
            open doorway of 2802 Hope St. and closed the door
            behind him. He was apprehended on the roof of
            2806 Hope St. A search incident to arrest was
            performed which was negative for both the buy
            money and narcotics. Officer Planita then went to
            the pickup truck that [Appellant] was seen going to
            earlier. From the ground near the passenger side he
            recovered a total of 140 packets containing cocaine,
            which were identical to the ones recovered from the
            confidential informant. Additionally, there were 140
            blue Ziploc packets which contained heroin.

Trial Court Opinion, 5/6/15, at 2-3 (citations to notes of testimony omitted).




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       Appellant was subsequently charged with PWID and possession of a

controlled substance. A waiver trial commenced on March 27, 2012, after

which the trial court rendered its guilty verdicts.   The trial court deferred

sentencing for the preparation of a presentence investigation report.       On

May 23, 2012, the trial court sentenced Appellant to three to six years of

incarceration, followed by three years of probation. Relevant to this appeal,

Appellant received a three-year mandatory minimum sentence on the basis

of the weight of the cocaine, pursuant to 18 Pa.C.S.A. § 7508(a)(3)(i).

Appellant did not file a direct appeal. On July 30, 2012, Appellant filed a pro

se petition for post-conviction relief (PCRA).   Appellant obtained counsel,

who filed an amended PCRA petition on January 31, 2014.                    The

Commonwealth filed a response on December 24, 2014, and on January 12,

2015, the trial court reinstated Appellant’s appeal rights nunc pro tunc.

Appellant then filed this timely appeal.2

       On appeal, Appellant presents the following two issues for our review.

              1. Is Appellant’s PWID conviction against the
                 sufficiency of the evidence because there was no
                 admissible evidence that Appellant possessed or
                 sold narcotics?

              2. Is     Appellant’s     mandatory        sentence
                 unconstitutional and should the       matter be
                 remanded for resentencing?
____________________________________________


2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.




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Appellant’s Brief at 4.

      In his first issue, Appellant challenges the sufficiency of the evidence

and contends that “there was no admissible evidence that Appellant

possessed or sold narcotics.” Appellant’s Brief at 7.

      It is well-settled that “[i]n reviewing the sufficiency of the evidence,

we consider whether the evidence presented at trial, and all reasonable

inferences drawn therefrom, viewed in a light most favorable to the

Commonwealth as the verdict winner, support the [fact-finder’s] verdict

beyond a reasonable doubt.” Commonwealth v. Patterson, 91 A.3d 55,

66 (Pa. 2014) (citation omitted), cert. denied, Patterson v. Pennsylvania,

135 S. Ct. 1400 (2015). “The Commonwealth can meet its burden by wholly

circumstantial evidence and any doubt about the defendant’s guilt is to be

resolved by the fact finder unless the evidence is so weak and inconclusive

that, as a matter of law, no probability of fact can be drawn from the

combined circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113

(Pa. Super. 2013) (en banc) (internal quotation marks and citation omitted),

appeal denied, 95 A.3d 277 (Pa. 2014).       As an appellate court, we must

review “the entire record … and all evidence actually received[.]”        Id.

(internal quotation marks and citation omitted).    “[T]he trier of fact while

passing upon the credibility of witnesses and the weight of the evidence

produced is free to believe all, part or none of the evidence.” Id. (citation

omitted). “Because evidentiary sufficiency is a question of law, our standard

of review is de novo and our scope of review is plenary.” Commonwealth

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v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation omitted), cert. denied,

Diamond v. Pennsylvania, 135 S. Ct. 145 (2014).

      “When reviewing a challenge to the sufficiency of the evidence with

regards to a PWID conviction, we are mindful that ‘[t]he Commonwealth

must prove both the possession of the controlled substance and the intent to

deliver the controlled substance.    It is well settled that all the facts and

circumstances    surrounding    possession   are   relevant   in   making    a

determination of whether contraband was possessed with intent to deliver.’”

Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa. Super. 2008), citing

Commonwealth v. Brown, 904 A.2d 925, 931–932 (Pa. Super. 2006),

appeal denied, 919 A.2d 954 (2007).

      Here, Appellant specifically avers that “there is … only speculative

evidence tying Appellant to the drugs that were recovered from under snow

near the pickup truck.     Appellant had allegedly already completed the

alleged transaction when [A]ppellant allegedly went near the pickup truck.

There were several other males in the vicinity that police believed were

involved in narcotics sales. There is, thus, only speculative evidence to tie

Appellant to the bulk narcotics covered by snow near the pickup truck.”

Appellant’s Brief at 10.

      Upon review of the record, particularly the notes of testimony from

Appellant’s waiver trial, we conclude that Appellant’s sufficiency argument

would require us to substitute our judgment for that of the trial court in this

case. The law is clear that we “may not substitute [our] judgment for that

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of the factfinder; if the record contains support for the convictions, they may

not be disturbed.”       Commonwealth v. Scott, 967 A.2d 995, 998 (Pa.

Super. 2009) (citations omitted).

      Instantly, the trial court considered the facts presented at trial and

concluded that Appellant possessed the cocaine with the intent to deliver.

The trial court reasoned as follows.

                      The [trial c]ourt made credibility findings based
               on the totality of evidence presented at trial. The
               [trial c]ourt found the testimony of Officer Planita
               and Officer Hardy credible, [and] thus sustained any
               credibility challenges from the Defense. Additionally,
               the testimony of [Appellant] as to his whereabouts
               on that date was found to be incredible.

                     As such, [the trial court adopts the] facts
               presented by the Commonwealth. Officer Planita
               witnessed a hand to hand interaction between the
               confidential  informant   and     [Appellant],  saw
               [Appellant] go to the pickup truck, bend down and
               then return to the confidential informant and again
               have a hand to hand interaction.          The items
               recovered from the confidential informant matched
               those that were recovered from the location where
               [Appellant] was seen bending down.

Trial Court Opinion, 5/6/15, at 3-4.

      After careful consideration, we discern no abuse of discretion by the

trial court.    Viewing the evidence of record, together with all reasonable

inferences in a light most favorable to the Commonwealth, we conclude that

the evidence was sufficient to sustain the trial court’s determination that

Appellant was guilty of PWID.




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      In his next issue, Appellant argues that his mandatory minimum

sentence of three to six years’ incarceration “has been rendered illegal by

the United States Supreme Court case of Alleyne v. United States, ___

U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).” Appellant’s Brief at 10.

Appellant further asserts that “[t]his issue is not waived because it attacks

the legality of Appellant’s sentence and is never waived and this Court has,

in any case, been vacat[ing] such sentences sua sponte.” Id. Appellant is

correct. Consonant with our decisions in Commonwealth v. Cardwell, 105

A.3d 748 (Pa. Super. 2014), and Commonwealth v. Fennell, 105 A.3d 13

(Pa. Super. 2014), in which we discussed Alleyne and held unconstitutional

the drug trafficking sentencing and penalties of 18 Pa.C.S.A. § 7508, we

agree.

      Here, at sentencing, the Commonwealth explained that “the cocaine

recovered … in this case weighed 9.578 grams.” N.T., 5/23/12, at 3. The

Commonwealth stated as follows.

                    And Your Honor, in accordance with the
              mandatory minimum, [Appellant] was convicted
              according to Title 18 PACS Section 7508 …
              specifically, cocaine between two grams but less
              than 10 grams, calls for a mandatory minimum of
              three years when an individual is convicted of a
              second PWID.

Id. at 3-4.

      Appellant’s counsel responded in turn.




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                  The three to six mando [sic] I would accept
            that. Three to six plus three, I have no problem
            with. It’s the mandatory minimum.

Id. at 7.

      Based on the foregoing, we reiterate our prior holdings in which we

detailed that where no statutory authorization exists for a particular

sentence, that sentence is illegal, subject to correction, and must be

vacated. See Cardwell, supra; Fennell, supra.

      In sum, we affirm Appellant’s convictions, vacate the May 23, 2012

judgment of sentence, and remand this case to the trial court for

resentencing without application of the mandatory minimum provisions.

      Judgment of sentence vacated.     Case remanded for resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2015




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