J-S22022-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                  Appellee               :
                                         :
            v.                           :
                                         :
YASIN SHARIF KENNEDY,                    :
                                         :
                  Appellant              :   No. 1365 MDA 2013

        Appeal from the Judgment of Sentence December 13, 2011,
               Court of Common Pleas, Lackawanna County,
           Criminal Division at No(s): CP-35-CR-0000304-2011,
          CP-35-CR-0000306-2011 and CP-35-CR-0003242-2010

BEFORE: PANELLA, DONOHUE and MUNDY, JJ.

CONCURRING AND DISSENTING MEMORANDUM BY DONOHUE, J.:
                                        FILED APRIL 09, 2015

      As the author of the discussion of Kennedy’s first and third issues, I

agree wholeheartedly with the resolution of these issues. I disagree with the

Majority as to the resolution of Kennedy’s second issue because in my view,

there was no evidence to support a conclusion that Kennedy used the phone

to facilitate a drug transaction, and therefore, no underlying felony to

support his conviction of criminal use of communication facility.

      I reiterate that Kennedy attacks his conviction of criminal use of a

communication facility at 10 CR 3242, which involved only the events of

November 3, 2010.       He argues that there was insufficient evidence to

support his conviction because to be found guilty of this crime, the

Commonwealth had to prove that he committed or attempted to commit a
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felony.   It is Kennedy’s position that because the theft by deception and

related conspiracy charge were not felonies, this conviction cannot stand.

Appellant’s Brief at 9-10.

      Criminal use of a communication facility is defined as follows:

            (a) Offense defined.--A person commits a felony of
            the third degree if that person uses a communication
            facility to commit, cause or 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(a).

      To establish evidence sufficient to convict a person of criminal use of

communication     facility,   “the   Commonwealth   must   prove      beyond   a

reasonable doubt that: (1) [the accused] knowingly and intentionally used a

communication facility; (2) [the accused] knowingly, intentionally or

recklessly facilitated an underlying felony; and (3) the underlying felony

occurred.” Commonwealth v. Moss, 852 A.2d 374 (Pa. Super. 2004); see

also Commonwealth v. Rose, 960 A.2d 149 (Pa. Super. 2008) (“Under the

plain language of the statute, one essential element of the crime is that the

person must use the communication facility to bring about a felony.”)

(emphasis in the original).     As Kennedy points out, the theft by deception

and related conspiracy charge were not felonies. Although Kennedy and the

CI spoke over the phone to arrange a meeting on November 3, 2010, and



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although Kennedy took the CI’s money on that date, there is no evidence to

support a finding that Kennedy intended to deliver heroin. Rather, all of the

evidence establishes that Kennedy used the phone to set up the theft by

deception, which, because of the amount of money stolen, was a

misdemeanor offense.

      The trial court likens the facts in Kennedy’s case to those in Moss. In

that case, three co-defendants were convicted of criminal use of a

communication facility in connection with drug sales. The three defendants’

appeals were consolidated before this Court, and we considered the

sufficiency of the evidence as to each defendant’s criminal use of a

communication facility conviction.     The trial court in the present case

analogized the facts underlying Kennedy’s conviction to those of one

particular defendant, Sullivan.   Trial Court Opinion, 10/24/14, at 19.   The

facts with regard to Sullivan were that he engaged in “several telephone

conversations with … a known drug dealer” which were recorded and that

“shortly after one of these conversations, [the drug dealer] was seen

entering Sullivan’s home and leaving after a few minutes.” Moss, 852 A.2d

at 382. This Court concluded that this evidence was sufficient to support the

conclusion that Sullivan used the telephone to cause or facilitate the drug

dealer’s attempted unlawful delivery of a controlled substance, and therefore

that Sullivan’s conviction was proper.     Id. at 382-83.   We reasoned as

follows:



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              We conclude that the evidence, when viewed in the
              light most favorable to the Commonwealth as verdict
              winner, is sufficient to sustain the conviction against
              Sullivan. The record reflects that Sullivan placed a
              telephone conversation to Johnson inquiring about
              purchasing drugs, and that Johnson agreed to make
              the sale. A surveillance report indicates that shortly
              after the second intercepted telephone conversation,
              Johnson was seen briefly entering Sullivan’s home.
              Thus, … [Sullivan] made the necessary preparations
              and arranged a meeting point at which he and
              Johnson would complete the illicit transaction.
              Shortly thereafter, Johnson arrived at [Sullivan’s]
              home and [Sullivan] allowed him inside. This
              evidence, viewed in a light most favorable to the
              Commonwealth, is sufficient to establish that
              Appellant took a substantial step toward completing
              the drug transaction. We will affirm the judgment of
              sentence against Sullivan.

Id. at 383.

     These facts are in stark contrast to the case before us. The evidence,

when viewed in the light most favorable to the Commonwealth, establishes

that Kennedy used a telephone to arrange to meet the CI on November 3,

2010 with the promise to sell the CI a certain amount of heroin.         N.T.,

9/13/11, at 208-10.      Prior to this, Kennedy sold the CI counterfeit heroin

because he thought that the CI was working with the police. Id. at 208. On

November 3, 2010, Kennedy met with the CI, took the CI’s money, and left.

N.T., 9/13/11, at 210; N.T., 9/14/11, at 52. After waiting for a period of

time, the CI came to believe that Kennedy was not returning and informed

the agent with whom he was working of this belief. N.T., 9/13/11, at 210;

N.T., 9/14/11, at 52.       Shortly thereafter, the police stopped Kennedy’s



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vehicle as it entered the Pennsylvania Turnpike.      N.T., 9/14/11, at 56.

Following his arrest, Kennedy stated that he was trying to “rip off” the CI

because he believed the CI was working with the authorities.      Id. at 166.

Unlike in Moss, there is simply no evidence to establish that Kennedy

committed or attempted to commit a drug transaction in connection with the

offense charged regarding the events of November 3, 2010.

     Tellingly, the Majority makes no mention of the trial court’s reliance on

Moss.   It opts instead to view this as a matter of the jury rejecting

Kennedy’s version of events and ultimately concludes that “the evidence …

shows that Kennedy took a substantial step toward completing the drug

transaction.”1 Maj. Mem. at 12.     Yet the Majority expressly bases this

conclusion not on evidence of record, but on a presumption. Id. (“Kennedy

later entered the CI’s vehicle, took the money and left – presumably to

procure heroin.”) (emphasis added). There is no basis for this presumption,

there was absolutely no evidence of Kennedy ever taking money up front

and then procuring heroin.     To the contrary, the evidence consistently

indicated that Kennedy had the heroin in tow when he met with the CIs.

See N.T., 9/13/11, at 201, 206-07; N.T., 9/14/11, at 10-14, 31-35, 140-42,

148-19. The Majority’s conclusion is pure conjecture, and conjecture cannot

support a conviction.   See Commonwealth v. Coleman, 19 A.3d 1111,


1
  I acknowledge that this Court can affirm a trial court’s decision of any
grounds. See Commonwealth v. Singletary, 803 A.2d 769, 772-73
(Pa. Super. 2002).


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1118 (Pa. Super. 2011) (“[I]nferences [drawn from evidence] must flow

from facts and circumstances proven in the record … . The trier of fact

cannot base a conviction on conjecture and speculation and a verdict which

is premised on suspicion will fail even under the limited scrutiny of appellate

review.).”

      For these reasons, I conclude that Kennedy’s conviction of criminal use

of a communication facility must be vacated, and I dissent as to that portion

of the Majority’s decision.




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