J-S16024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOHN INGRAM

                            Appellant                  No. 605 EDA 2013


            Appeal from the Judgment of Sentence January 24, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001592-2011


BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                               FILED MARCH 29, 2016

        John Ingram appeals from the judgment of sentence imposed on

January 24, 2013.1       The trial court found Ingram guilty of possession of a

controlled substance, possession with intent to deliver a controlled substance

(PWID), and conspiracy.2          Ingram was sentenced to serve a mandatory

minimum sentence of three to six years’ incarceration, pursuant to 18

Pa.C.S. § 7508, and three years’ probation. In this appeal, Ingram presents

____________________________________________


1
  We note the unexplained delay in this case, as follows: Ingram filed a
timely notice of appeal on February 25, 2013. On June 5, 2013, the trial
court issued a Pa.R.A.P. 1925(b) order, directing Ingram to file a concise
statement of errors complained of on appeal. Ingram filed the concise
statement on July 28, 2014. The trial court filed its opinion on February 23,
2015. The trial court’s record and opinion were received in this Court on
February 25, 2015.
2
    35 P.S. § 780-113(a)(16), (a)(30), and 18 Pa.C.S. § 903, respectively.
J-S16024-16



three issues, namely, the sufficiency of the evidence, the weight of the

evidence, and the legality of his sentence. Based upon the following, we find

merit solely in the sentencing challenge and, therefore, we vacate the

judgment of sentence and remand for resentencing.

       As the parties are well acquainted with the facts and procedural history

of this case, which are fully set forth in the trial court’s opinion, we do not

restate them. See Trial Court Opinion, 2/23/2015, at 1–5.

       The first issue presented by Ingram is a challenge to the sufficiency of

the evidence.3      “A claim challenging the sufficiency of the evidence is a

question of law.”      Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.

2000).

       The standard we apply in reviewing the sufficiency of evidence is
       whether, viewing all the evidence admitted at trial in the light
       most favorable to the verdict winner, there is sufficient evidence
       to enable the fact finder to find every element of the crime
____________________________________________


3
   We note the Commonwealth’s argument that Ingram’s sufficiency
challenge is waived for failure to specify in his Pa.R.A.P. 1925(b) statement
the elements for which the evidence was insufficient. See Commonwealth
Brief at 7, citing Commonwealth v. Williams, 959 A.2d 1252, 1257–1258
(Pa. Super. 2008). Ingram’s concise statement stated: “The evidence
submitted at trial was insufficient to convict [Ingram] of Possession with
Intent to Distribute, Conspiracy and Intentional Possession of a Controlled
Substance.” Ingram’s Rule 1925(b) Statement, at ¶5. However, we decline
to find waiver and will review Ingram’s sufficiency issue.                See
Commonwealth v. Laboy, 936 A.2d 1058, 1060 (Pa. 2007) (declining to
find waiver for alleged failure of Rule 1925(b) statement to adequately
develop sufficiency of evidence claim where matter was “relatively
straightforward drug case,” evidentiary presentation spanned “mere thirty
pages of transcript,” and trial “court readily apprehended [defendant’s] claim
and addressed it in substantial detail”).



                                           -2-
J-S16024-16


     beyond a reasonable doubt. In applying the above test, we may
     not weigh the evidence and substitute its judgment for that of
     the fact-finder. The facts and circumstances established by the
     Commonwealth need not preclude every possibility of innocence.
     Any doubts regarding a defendant’s guilt may be resolved by the
     fact-finder 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. The Commonwealth may sustain its
     burden of proving every element of the crime beyond a
     reasonable doubt by means of wholly circumstantial evidence.
     The entire record must be evaluated and all evidence actually
     received must be considered. The 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.

Commonwealth v. Ratsamy, 934 A.2d 1235-36, 1237 (Pa. 2007)

(citations and quotation marks omitted).

     Based on our review of the record, the arguments presented by

Ingram, and the relevant case law and statutes, we conclude Ingram’s

sufficiency challenge warrants no relief. Furthermore, as the trial court has

thoroughly addressed this issue in its opinion, we adopt the trial court’s

discussion as dispositive of Ingram’s sufficiency claim.      See Trial Court

Opinion, 2/27/2015, at 6–11. Accordingly, no relief is due.

     The second issue raised by Ingram is a challenge to the weight of the

evidence. The Commonwealth takes the position this issue is waived, and

we find this position to be correct.    Our review confirms that Ingram has

waived this claim by failing to raise it in a post-sentence motion, or by a

written or oral motion prior to sentencing, as required by Pa.R.Crim.P.




                                       -3-
J-S16024-16


607(A).4 Furthermore, the fact that the trial court addressed this claim in its

Pa.R.A.P. 1925(a) opinion does not overcome waiver. See Commonwealth

v. Thompson, 93 A.3d 478, 490-491 (Pa. Super. 2014). Accordingly, we

deem Ingram’s weight claim waived.

        Finally, Ingram contends his sentence is unconstitutional, based upon

Alleyne v. United States, 133 S.Ct. 2151 (2013).                   Here, on January 24,

2013, Ingram received a mandatory sentence of three to six years’

incarceration pursuant to 18 Pa.C.S. § 7508 (“Drug trafficking sentencing

and penalties.”). See Trial Court Opinion, at 5 and n.14. He filed a timely

notice of appeal on February 25, 2013. While this case was pending before

this Court, the United States Supreme Court, on June 17, 2013, decided

Alleyne, holding that “[a]ny fact that, by law, increases the penalty for a

crime is an ‘element’ that must be submitted to the jury and found beyond a

reasonable doubt.” Alleyne, 133 S. Ct. at 2155.
____________________________________________


4
    Rule 607 provides, in pertinent part:

        Rule    607.    Challenges     to      the   Weight   of    the   Evidence

        (A) A claim that the verdict was against the weight of the
        evidence shall be raised with the trial judge in a motion for a
        new trial:

               (1) orally, on the record, at any time before
               sentencing;
               (2) by written motion at any time before sentencing; or
               (3) in a post-sentence motion.

Pa.R.Crim.P. 607(A) (emphasis supplied).



                                            -4-
J-S16024-16


       Applying this mandate, this Court, in Commonwealth v. Newman,

99 A.3d 86 (Pa. Super. 2014) (en banc), concluded that Alleyne rendered

the mandatory minimum sentencing provision at 42 Pa.C.S. § 9712.1

unconstitutional and found the unconstitutional provisions of section 9712.1

were not severable from the statute as a whole.5 The Newman Court also

instructed that Alleyne applies to any criminal case still pending on direct

appeal as of June 27, 2013, the date of the Alleyne decision. Newman, 99

A.3d at 90.     In light of Alleyne and Newman, a panel of this Court, in

Commonwealth v. Cardwell, 105 A.3d 748 (Pa. Super. 2014), appeal

denied, 121 A.3d 494 (Pa. 2015), held section 7508 to be facially

unconstitutional in its entirety. Cardwell, 105 A.3d at 754–755.

       As Ingram’s case was pending on direct review when Alleyne was

decided, Alleyne is applicable. See Newman, supra. In this regard, the

Commonwealth and the trial court have stated that they recognize Alleyne

is applicable, and that the judgment of sentence must be vacated and

remanded for resentencing.6

       In sum, we find no merit in Ingram’s sufficiency challenge, and find

waiver with regard to his challenge to the weight of the evidence. However,

____________________________________________


5
 See also Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (holding
18 Pa.C.S. § 6317 is unconstitutional and non-severable).
6
 See Commonwealth Brief at 8–9; Trial Court Opinion, 2/23/2015, at 12–
14.



                                           -5-
J-S16024-16


as to Ingram’s sentencing challenge, we grant relief in the form of a new

sentencing hearing, based upon Alleyne.

       Judgment of sentence vacated.             Case remanded for resentencing.

Jurisdiction relinquished.7

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/2016




____________________________________________


7
  In the event of future proceedings, the parties are directed to attach a
copy of the trial court’s February 23, 2015, opinion to this memorandum.



                                           -6-
                                                                                          Circulated 03/16/2016 01:20 PM



                                   IN THE COURT OF COl\'fMON PLEAS                                FiLE.D
                                        PHILADELPHIA COUNTY                                       FEB 2 3 2015
                         FIRST JUDICIAL DISTRICT OF PENNSYLVANIA                              Ci1m111a
                                                                                                . . I ,;p~Ji;J,:i
                                                                                                       11 .• -"1~ t •vt'  l;l.
                                                                                                                  1" ., 1 ·
                                       CRIMINAL TRIAL DIVISION                             First Judicial District of PA

     COM1vION\VEALTH OF PENNSYLVANIA                                    CP-Sl-CR-0001592-2011

                            vs.

     JOHN INGR..\M

                                                  OPINION

    KENNEDY, SEAN F., J.                                                           February 2, 2015

            John Ingram ("the Defendant") appeals from the judgment of sentence entered in the

    Philadelphia County Court of Common Pleas, following his conviction                    for possession of a

    controlled substance ("possession"), possession with intent to deliver a controlled substance

    ("P\VID") and criminal conspiracy (conspiracy).' The relevant facts and procedural history are

    as follows.

    FINDINGS OF FACT

            On December 3, 2010,       at approximately 6:00 p.m.,         Officer Nathan Ramos ("Officer

    Ramos") was conducting undercover surveillance on the 1300 block of West Rush Street, in

    Philadelphia, Pennsylvania.'    N.T. l 1/26/2012 at 8-10.         At that time, a female, subsequently

identified as Trisha Clay ("Ms. Clay"), was standing in front of 1318                 West Rush Street and a




1
 35 Pa.C.S. §780-1 l 3(a)( l 6), 35 Pa.C.S. §780· l I 3(a)(30) and 18 Pa.C.S. §903, respectively.
2
 Officer Ramos has been a police officer for more than 13 years and a member of the Narcotic Strike Force for
more than ·fO years. N.T. 11/26/2012 at 9.
                                                              1
     male, subsequently    identified as the Defendant, was standing on the southwest                 corner of Park

     and Rush Streets, in front of 1330 West Rush Street.3 ld. at JO, 16.

            Moments later, an unidentified male approached Ms. Clay. Id. at I 0. Following a brief

     conversation, the male handed money to Ms. Clay, who pulled small objects from the front of

     her pants and handed the objects to the male. Id. As the unidentified male was leaving the area,"

     the Defendant approached Ms. Clay. FoJlowing a brief conversation, Ms. Clay handed money to

    the Defendant, who counted the money as he walked eastbound and then out of view. Id. at 11.

    Approximately three minutes later, the Defendant came back into view and at that time, he

    entered the property located at 1330 West Rush Street ("the Rush Street property"). Id.

    Approximately five minutes later, the Defendant exited the property and returned to the

    southwest comer of Park and West Rush Streets. Id.

           Between 6: 10 and 6:25 p.m., Ms. Clay engaged in seven additional transactions -

    unknown individuals would approach Ms. Clay and following brief conversations, the

    individuals would hand money to Ms. Clay, who would retrieved small objects from the front of

    her pants and hand the objects to the individuals, who would then leave the area. 5 Id. at 11, 13-

    14. At the completion of these transactions, the Defendant again approached Ms. Clay. Id. at

    17. The Defendant spoke with Ms. Clay and then quickly re-entered the Rush Street property.

Id.

           At approximately 6:30 p.m., three additional individuals approached Ms. Clay. Id. at 11-

    12. These individuals, who were subsequently identified as Ashby Waters (C!Ms. Waters"), Brad

Brown ("Mr. Brown") and Barry Crosby ("Mr. Crosby"), were standing with Ms. Clay when the

3
  The Defendant was standing approximately 40 to 50 feet from Ms. Clay. Id. at 14-15.
4
  Officer Ramos notified backup officers of the male's description and direction of travel, but the male was never
located or stopped. Id. at I 0.
~ None of these individuals were stopped. lg. at I I.
                                                          2
     Defendant exited the Rush Street property.   Id. Upon exiting the property, the Defendant

     approached the area where Ms. Clay, Ms.Waters, Mr. Brov, 11 and Mr. Crosby were standing and
                                                                   1




     at that time, the Defendant handed small objects to Ms. Clay. Id. at 12, 18-19. After the

     Defendant handed the small objects to Ms. Clay, Ms. Clay handed small objects to Ms. Waters,
     6Mr.
            Brown and Mr. Crosby, in exchange for money. Id. at 12, 18-19.      As Ms, Waters, Mr.

     Brown and Mr. Crosby began to leave the area, Ms. Clay handed money lo the Defendant, who

     counted the money while walking westbound on Rush Street. Id. at 12. Officer Ramos called

    for back-up officers to come into the area and stop all of the aforementioned individuals. Id.

              At the conclusion of Officer Ramos' testimony, the Commonwealth presented additional

    evidence pursuant to stipulations by and between counsels: Ms. Waters was stopped by Officer

    Brooks, who recovered one blue-tinted ("blue"), heat-sealed Ziploc packet of crack cocaine

    from the highway, which she had observed Ms. Waters discard. Id. at 22. Mr. Brown was

    stopped by Sergeant Dutch and then turned over to Officer Brooks, who recovered two blue,

    heat-sealed Ziploc packets of crack cocaine'' from the highway, which Sergeant Dutch had

    observed Mr. Brown discard. Id. at 23. Mr. Crosby was stopped by Officers Bartle and Santiago

    and Officer Santiago recovered one blue, heat-sealed Ziploc packet of crack cocaine from the
                                                            9
    highway, which he had observed Mr. Crosby discarded.        Id. at 23-24.   Ms. Clay was stopped by
                                                                                          10
Officer Reilly, who recovered 13 blue, heat-sealed Ziploc packets of crack cocaine,            as well as

$25.00, from Ms, Clay's person. Id. at 24-25.




1
    £xJ1ibit C-1.
E   Exhibit C-2.
s Exhibit C-3.
io   Exhibit C-4.
                                                    3
                The Commonwealth       then presented the testimony of Officer Gregory Fagan ("Officer

     Fagan").    On December 3, 20 I 0, Officer Fagan, who was in a marked vehicle and in uniform,

     was working in a back-up capacity to Officer Ramos, in the area of 1300 West Rush Street.11

     N.T. I l/26/2012 at 26. At approximately 6:30 p.m., Officer Ramos put out inforination for the

     Defendant. Id. Officer Fagan went to the 2800 block of North l 31h Street, where he observed

     and then stopped the Defendant. Id. at 26-27. Officer Fagan recovered$ I 00.00 from the

     Defendant's person. Id. at 27. He arrested the Defendant and placed him in the police vehicle.

     Id, At that point, Officer Ramos directed Officer Fagan to the Rush Street property. Id. Officer

     Fagan went to the Rush Street property and knocked on the door. Id. The door was answered

     by a female, who identified herself as Brittany Hayward ("Ms. Hayward"), Id.

             Officer Fagan introduced himself to Ms. Hayward and he questioned her about the

 Defendant. Id.         He gave Ms. Hayward a consent-to-search form. Id. at 28. Officer Fagan

 explained the form to Ms. Hayward, who then signed the form. ld. at 28, 30. Based upon his

 conversation with Ms. Hayward, Officer Fagan searched the living room closet of the Rush

 Street property. Id. at 28, 30-31. He recovered $121.00 and a WD40 can from the closet. Id. at

28, 30-31. The WD40 can had a removable bottom. Id. at 28, 31-32. Upon removing the

bottom of the can, Officer Fagan recovered a clear plastic sandwich bag that contained 60 blue,

heat-sealed Ziploc packets of crack cocaine. 12 Id.

            At the conclusion of Officer Fagau's testimony, the Commonwealth rested its case. The

Defendant did not testify or present any witnesses. Rather, he rested on the record created by the

Commonwealth.



11
     Officer Fagan has been a member of the Philadelphia Narcotic Strike Force for 13 years. Id. at 31.
12
     Exhibit C-6. (The Defendant did not object to this Exhibit.)
                                                            4
     PROCEDURAL         HISTORY

             The Defendant was arrested on December 3, 20 I 0.                    Thereafter,     the Defendant was

     charged with the crimes of possession, PWID and conspiracy.                See, Bill of Infonnatiou.      The bill

     of information noted that the Commonwealth intended to proceed under 1 S Pa.C.S. §7508

     (relating to mandatory sentencing and penalties for drug trafficking).            Id. Following a bench trial

     held on November 26, 2013, the Trial Court found the Defendant                             guilty of all of the

 aforementioned      crimes, relative to all of the seized drugs. N. T. 11/26/20 l 2 at 34. Sentencing

 was deferred, pending a pre-sentence investigation ("PSl").13                Id. On January 24, 2013, the Trial

 Court sentenced the Defendant to serve the mandatory minimum sentence of three to six years in

 prison, in accordance with the 18 Pa.C.S. §7508/1 plus three years of reporting probation.15

 N.T. 1/24/2013 at 9. On January 25, 2013, the Defendant filed a timely notice of appeal. On

 June 5, 2013, the Trial Cou11 issued a 1925(b) order, directing the Defendant to file a concise

 statement of errors complained          of on appeal.       The Defendant filed the statement on July 28,

2014.

MATTERS CO.MPLAINED OF ON APPEAL

           The Defendant's 1925(b) asserts:

       1. On November 26) 2012, the   Commonwealth proceeded to trial with Bills of
          Information that did not state
                                       the exact weight of the drugs it was proceeding
          against Petitioner and the   mandatory minimum only applicable if the
          Commonwealth seeks it by     providing notice after conviction and before
          sentencing. Notwithstanding Petition was tried and convicted by this Court on

13
    The PSI report documents that at the time of sentencing, the Defendant had five prior convictions for PWlD. PSl
Report.
 14
    IS Pa.C.S. §7508 directs that where a defendant is convicted of P\.VID involving cocaine in an aggregate weight
between two and ten grams, a minimum sentence of one year in prison is to be imposed; however, a minimum
sentence of three years in prison is to be imposed where the defendant has a prior drug trafficking convictions at the
time of sentencing. 18 Pa.C.S. §7508(a)(3)(i). At the time of sentencing, the Defendant's counsel acknowledged
that the weight of the drugs exceeded two grams and that the Defendant had five prior P\VTD convictions. N.T.
1/24/2013 at 4-5.
•~ The crime of simple possession merged with the crime of PWID, for sentencing purposes. Sentencing Order.
                                                           5
              PWID, Conspiracy and K &I after a waiver trial. On January 24, 2013, this
             Court sentenced Petitioner to 3-6 years for the PWID, and the conspiracy after
             concluding that the conviction was for narcotics in excess of the mandatory
             minimum as required by statute and that Petitioner had been convicted
             previously of P\.VID, which increased the sentence.      See 18 Pa.C.S 7508
             (relating to drug trafficking sentencing and penalties).

        2.    This Court's conclusion that the amount of the drugs was in excess of the
             mandatory minimum as found in the sentencing hearing and that Petitioner had
             a previous PWID conviction runs contrary to Alleyne v. US, 133 Supreme
             Court 2151 (2013), which requires any mandatory weights must be proven
             beyond a reasonable doubt. Alleyne at 2155 ("[a]ny fact that, by law, increases
             the penalty for a crime is an 'element' that must be submitted to the jury and
             found beyond a reasonable doubt. Mandatory minimum sentences increase the
             penalty for a crime. It follow, then, that any fact that increases the mandatory
             minimum is an element that must be submitted-to the jury").

       3. The section mandating a mandatory minimum is not severable as it would still
          require the court to make a special finding or insert a new element that is not
          part of the Bills of Information or the Statute as required by the Legislature.

       4. Additionally, the conviction cannot stand as it was against the weight of the
          evidence. Commonwealth v. Farquharson, 467 Pa. 50 (Pa. I 976) ("Courts in
          this jurisdiction have recognized that where the evidence offered to support a
          verdict of guilt is so unreliable and/or contradictory as to make any verdict
          based thereon pure conjecture, a jury may not be permitted to return such a
          finding."); Commonwealth v. Bennett, 224 Pa. Super, 238, 240 (Pa.Super. 1973)
          ("a case should not go to the jury where the party having the burden offers
          testimony of a witness, or of various witnesses, which is so contradictory on the
          essential issue that any finding by the jury would be a mere guess.").

       5. The evidence submitted at trial was insufficient to convict Petitioner of
          Possession with intent to Distribute, Conspiracy, and Intentional Possession of
          a Controlled Substance.

l 925(b) Statement, Paragraphs 1-5.

DISCUSSION16

             I.      Sufficiency Claim -The evidence presented was sufficient to support the
                     Defendant's convictions for possession, PWID and conspiracy.



16
     For case of discussion, the Trial Court's opinion addresses the issues in an order different than that presented   by
the Defendant.
                                                              6
             In a sufficiency claim, the appellate court considers all of the evidence admitted at trial,

     and all reasonable   inferences drawn from said evidence, in the light most favorable to the verdict

     winner. Conunonwealth      v. Jones, 87 4 A.2d 108, 120 (Pa. Super. 2005).          The court then

     determines whether the evidence was sufficient to enable the trier-of-fact to find that all of the

     elements of the crime were established beyond a reasonable doubt. Id.               The appellate court may

     not weigh the evidence or substitute its judgment for that of the trier-of-fact.          lcl. Furthermore:

            The facts and circumstances established by the Commonwealth need not preclude every
            possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by
            the fact-finder 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. The Commonwealth
            may sustain its burden of proving every element of the crime beyond a reasonable doubt
            by wholly circumstantial evidence.... [T)he finder of fact while passing upon the
            credibility of witnesses and the weight of the evidence produced is free to believe all, part
            or note of the evidence.

     Id. at 120-21 (quoting Commonwealth v. Bullock, 830 A.2d 998, 1000 (Pa.Super. 2003)).

            The Defendant, herein, claims, without elaboration, that the evidence was insufficient to

 support his convictions for possession, P\.VID and conspiracy. At trial, the Defendant's counsel

 ("the defense counsel") challenged the sufficiency of the evidence as it related to the drngs

 recovered from the Rush Street property, onJy. Defense counsel argued that the evidence

presented failed to establish that the Defendant had any ties to the property, that he obtained

drugs from the Rush Street property and/or that the drugs recovered from the property were part

of the conspiracy. Supplemental N.T. 11/26/2012 at 3-4.17                 The Trial Court rejected these

contentions as meritless and convicted U1e Defendant for the aforementioned crimes, based upon




17
   The original transcript from the November 26, 2012 proceedings noted that the parties' closing arguments were
taken but not transcribed. N. T. I I /26/2012 at 33-34. The closing arguments were subsequently transcribed at the
Trial Court's request and rhereafrer provided to the Court in a supplemental transcript referenced herein as
"Supplemental N.T. 11/26/2012."
                                                           7
  all of the recovered drugs.   A review of the evidence presented supports the Trial Court's

  determination.

            a.     Possession   and r,:\'ID

            To sustain a conviction for the crime of possession, the Commonwealth must prove that

 the defendant knowingly or intentionally possessed the seized crack cocaine. 35 Pa.C.S. §780-

  1 I 3(a)(l6). To sustain a conviction for PWID~ the Commonwealth must prove an additional

 element - that the defendant possessed the seized crack cocaine with the intent to deliver it. See,

 35 Pa.C.S. §780-l 13(a)(30); Commonwealth v. Bmwn, 4~ A.3d 426, 430 (Pa.Super. 2012). ·

 "The intent to deliver can be inferred from the surrounding facts and circumstances."

 Commonwealth v. Perez, 931 A.2d 703, 708 (Pa.Super. 2007) (citing Commonwealth v.

 Kirkland, 831 A.2d 607, 611 (Pa.Super. 2003), appeal denied, 847 A.2d 1280 (Pa. 2004)).

 "Factors to consider in determining whether the drugs were possessed with the intent to deliver

 include the particular method of packaging, the form of the drug, and the behavior of the

defendant." Id. (quoting Kirkland, supra at 611 ).

         Where no drugs are found on the defendant's person, the Commonwealth must prove

beyond a reasonable doubt that the defendant constructively possessed the drugs seized by the

police. Brown, supra at 430 (citing Kirkland, snpra at 611).

         Constructive possession is an inference arising from a set of facts that possession of the
        contraband was more likely than not. We have defined constructive possession as
        'conscious dominion.' \Ve 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
        circumstances.

Id. (quoting Commomvealtb v. Parker, 847 A.2d 745, 750 (Pa.Super. 2004)) (internal citations

omitted).


                                                  8
             In the instant case, the evidence presented, as summarized above, left no doubt that the

  Defendant constructively possessed all of the seized drugs and further, that he did so with the

  intent to deliver. Significantly, the Defendant was the only person observed entering and exiting

  the Rush Street property. He was observed entering and then exiting the property immediately

  before he handed small objects to Ms. Clay, who then handed small objects to Ms. Waters, Mr.

  Brown and Mr. Crosby approached Ms. Clay. The drugs recovered from Ms. Clay, Ms, Waters,

 Mr, Brown, Mr. Crosby and the Rush Street property were identical in packaging and type, i.e.

 blue, heat-sealed Ziploc packets of crack cocaine.

         Moreover, as detailed below, the Commonwealth established beyond a reasonable doubt

 that the Defendant conspired with Ms. Clay to possess with intent to deliver all of the seized

 drugs. "Successful proof of a conspiracy makes each co-conspirator fully liable for all of the

 drugs recovered, without the necessity of proving constructive possession." Perez, supra at 709

 (citing Commomvealth v. Holt, 711 A.2d IO 11, ] 017 (Pa.Super. 1998), appeal denied, 781 A.2d

 l 45 (Pa. 2001).

         When viewed in the light most favorable lo the Commonwealth, there can be no question

that the evidence presented was sufficient to support the Defendant's convictions for possession

and PWID.

        b.        Conspiracy

        To sustain a conviction for criminal conspiracy, the Commonwealth is required to prove

that the defendant entered into an agreement to commit or aid in an unlawful act with another

person or persons, with a shared criminal intent and further, that an overt act was done in

furtherance of the conspiracy.    18 Pa.C.S. §903; Commonwealth v. Henni~m1_. 753 A.2d 245, 253

(Pa.Super. 2000) (quoting Commonwealth v. Rios, 684 A.1025, 1030 (Pa. l 996), cert. denied,

                                                   9
  520 U.S. 1231 (1997)).    "This   overt act need not be committed by the defendant; it need only be

  committed by a co-conspirator." Id. (citing Commonwealth v. Johnson, 791 A.2d 778, 784

 (Pa.Super. 1998) (en bane), appeal denied, 739 A.2d 1056 (Pa. 1999). AdditionalJy,      proof of an

 express or written agreement is not required; rather, an agreement may be inferred from a variety

 of circumstances.    Conunonwealth v. Perez, 931 A.2d 703, 708 (Pa.Super. 2007) (citing Jones,

 supra at 121-122).

         Circumstances which are relevant, but not sufficient themselves, to establish a corrupt

 confederation include: an association between the alleged co-conspirators; knowledge of the

 commission of a crime; presence at the scene of the crime; and/or participation in the object of

 the conspiracy. Id. at 708-09 (citing Commonwealth v. Swerdlow, 636 A.2d 1173, 1177

 (Pa.Super. 1994).    "The presence of these circumstances may furnish a 'web of evidence' linking

 the accused to an alleged conspiracy beyond a reasonable doubt when vie-wed in conjunction

 with each other and in the context in which they occurred." Swerdlow. supra.

        The summary of evidence in this case reveals facts and circumstances that clearly link the

Defendant to a conspiratorial confederation with Ms. Clay for the pm-pose of trafficking crack

cocaine. On December 3, 2010, between the hours of approximately 6:00 p.m. and 6:30 p.m.,

Officer Ramos observed Ms. Clay engaging in numerous transactions characteristic of drug

trafficking. During this same time period, the Defendant was seen interacting with Ms. Clay, on

three occasions - The Defendant spoke lo Ms. Clay; he received money from Ms. Clay; and, he

handed small objects to Ms. Clay, which she then handed to Ms. Waters, Mr, Brown and Mr.

Crosby. During th.is same time period, the Defendant was seen entering and exiting the Rush

Street properly on two occasions - As noted above, the Defendant entered and exited the Rush

Street property immediately before he approached Ms. Clay and handed her the small objects

                                                  10
  which she, in turn, handed to Ms. Waters, Mr. Brown and Mr, Crosby. As noted above, drugs

  were recovered from Ms. Clay, Ms. Waters, Mr. Brown and Mr. Crosby that were identical in

 packaging and type to those recovered from the Rush Street property.

         When viewed in the light most favorable to the Commonwealth, there can be no question

 that the evidence presented was sufficient to support the Defendant's conviction for conspiracy.

         U.       Weight of the Evidence - The Trial Court's verdict was not against the
                  weight of the evidence.

         The Defendant also claims that the verdict was against the weight of the evidence.         A

 weight of the evidence claim concedes the sufficiency of the evidence.          Commonwealth v.

 Widmer, 744 A.2d 745, 751 (Pa. 2000).         A weight claim addresses the discretion of the trial

 court. Id. at 752 (citing Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. 1994)). On review,

 the appellate court decides whether the trial court abused its discretion when ruling on the weight

claim; it does not consider U1e underlying question of whether the verdict was against the weight

of the evidence.    Id. at 753.   An abuse of discretion will only be found where the verdict is so

contrary to the evidence as to shock one's sense of justice. Commonwealth v. Diges, 949 A.2d

873 (Pa. 2008).

        Instantly, the Defendant contends that the Commonwealth's evidence was so unreliable

and/or contradictory as to make any verdict based thereon pure conjecture.          Relying on the

defense counsel's closing argument at trial, the Trial Court assumes that this claim pertains to the

alleged inconsistency    between Officer Ramos' preliminary hearing testimony and his trial

testimony. At trial, the defense attorney questioned Officer Ramos about his preliminary hearing

testimony.

               Q: Now,    rm going to read you some   lines.


                                                 11
                   Line 17: Okay. Did [the Defendant] go into 1330 before or after [Ms. Water, Mr.
           Brown and Mr. Crosby] started talking to Ms. Clay?
                   A: He was in there before.
                   Q: Okay. So when (the Defendant] came out was there any exchange or signs of
           talk between Ms. Clay and [the Defendant] at that time for all those three?
                    A: None that I know of.
                   Q: Do you remember testifying to that?
                   A: Yes, he never spoke to any one of those three.
                   Q: So the question was: Did he speak to Ms. Clay? Your understanding of the
           question was, did he speak to the three?
                   A. Yes.

 N.T. 11/26/2014 at 18-19.

           Notwithstanding     the defense   counsel's challenge,   the · Trial Judge accepted   the

 Commonwealth's evidence, including the testimony of Officer Ramos, as credible. Officer

 Ramos' trial testimony was clear, detailed and consistent. The. Trial Court found that the Officer

 Ramos' preliminary hearing testimony, as outlined above, was proffered in response to a

compound and convoluted question. Officer Ramos reasonably explained that said testimony

was proffered based upon a misunderstanding of the questioned asked. Moreover, the record

contains      overwhelmingly    support for the Trial Court's       conclusion that the Defendanl

constructively possessed all of the seized drugs.

        Given the evidence of record, which was essentially uncontroverted, the verdict rendered

in this case would not shock one's sense of justice. Rather, the record supports the conclusion

that the verdict rendered is overwhelmingly supported by the weight              of the evidence.

Accordingly, the Defendant's weight of the evidence claim must fail.

       III.      Legality of Sentence - The sentence imposed on January 24, 2013 was illegal
                 and accordingly, the sentence most be vacated and the matter remanded for
                 resentencing without consideration of the mandatory minimum sentencing
                 provisions at 18 Pa.C.S. §7508.

       The Defendant also asserts that the Trial Court's imposition of the mandatory minimum


                                                  12
     mandatory minimum sentence under 18 Pa.C.S. § 7508. Issues regarding the legality of a

     sentence are questions of law and accordingly, the reviewing court's standard of review is de

     nova.    Commonwealth     v. Akbar, 91 A.3d 227, 238 (Pa.Super. 2014) (citation omitted).          "A

     challenge to the legality of a sentence may be entertained so long as the reviewing court has

     jurisdiction."   Commonwealth     v. Borovichka,     18 A.3d 1242, 1254 n.4 (Pa.Super. 2014).

              Instantly, at the time of the Defendant's    sentencing hearing, there was no dispute that the

     mandatory minimum sentence-provisions         under §7508 were applicable to the Defendant's          casc.18

 Moreover, at the time of sentencing, the sentencing scheme set forth at Section 7508 was deemed

 constitutional. See, McMillan v. Pennsvlvania, 477 U.S. 79 (1986) (holding that Pennsylvania's

 mandatory minimum sentencing statutes, i.e, 42 Pa. C.S. §9712, was constitutional); See also,

 Ha!1'is v. U.S., 536 U.S. 545, 568 (2002) (finding that McMillan, supra, was still sound).

             On June 17, 2013, the United States Supreme Court announced its decision in AlJevne v.

 U.S, _U.S._,             133 S.Ct. 2151   (2013 ). The Allevne Court held:

             Any fact that, by law, increases the penalty for a crime is an "element" that must be
             submitted to the jury and found beyond a reasonable doubt. Mandatory minimum
             sentences increase the penalty for a crime. lt follows, then, that any fact that increases
             the mandatory minimum is an element that must be submitted to the jury.

Alleyne, 133 S.Ct. at 2155.

             At the time that Alleyne was announced, the Defendant's appeal was pending before the

Superior Court. In Commomvealth v. Newman, 99 A.3d 86 (Pa.Super. 2014), the Superior Court

held that a challenge to a sentence premised upon Allevne implicates the legality of the sentence

and cannot be waived on appeal. Id. at 89. The Court further held that subsections of mandatory


18
   As noted above, the Commonwealth issued an information notifying the Defendant that it intended to proceed
under 18 Pa.C.S. §7508. At sentencing, Defendant's counsel stated that the Defendant's conviction for PWTD
involved cocaine in an aggregate weight over two grams, that the Defendant bad five prior PWlD convictions and
chat a mandatory minimum sentence oftb.ree to six years was applicable. N.T. 1/24/2013 at 4-5.
                                                          13
     minimum statutes, that permit a trial court to impose a mandatory minimum sentence based on

     the court's finding, by a preponderance of the evidence, rather than under the reasonable doubt

     standard, as required by the Constitution, was not severable from the remainder of the statute and

     therefore, the statute was unconstitutional iJ.1 its entirety. Id. at 98, 101-103.19

             In view of the above, the Trial Court agrees that the sentence imposed on January 24,

     2013 was illegal and accordingly, the sentence should be vacated and the matter remanded for re-

     sentencing.

     CONCLUSION

             WHEREFORE, the Trial Cou11 respectfully requests that the Defendant's convictions for

 possession, PWID and conspiracy be affirmed on appeal; and further, that the matter be

 remanded for resentencing, without consideration to the mandatory minimum sentencing

 provisions at 18 Pa.C.S. §7508.




                                                                       BY THE COURT:

                                                                   C'_.. _.---~·---




                                                                       SEAN F. KENNEDY, J.




19
  See also, Commonwealth v. Ferguson. 20 I 5 WL 49438 (Pa.Super. I/5/20 I 5 ); Commonwealth v. Var!!as. 20 J 4
WL 744678 (Pa.Super. 12/31/2014); Commonwealth v. Fennell, 2014 WL 650579l(Pa.Super. 11/21/2014);
Commonwealth v. Lawrence, 99 A.3d 116, 123 (Pa.Super. 2014); Commonwealth v. Valentine, IOI A.3d 801
(Pa.Super.2014); Commonwealth v. Watlev, SI A.3d 108, I 17· I I 8 (Pa.Super 2013).

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