J-A10013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

DONALD E. SIMPSON

                            Appellant              No. 1556 MDA 2014


             Appeal from the Judgment of Sentence August 6, 2014
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002214-2012


BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED APRIL 24, 2015

        Appellant, Donald E. Simpson, appeals from the judgment of sentence

entered in the Dauphin County Court of Common Pleas, following his jury

trial convictions for possession of a controlled substance with the intent to

deliver (“PWID”) and possession of drug paraphernalia.1            We affirm

Appellant’s convictions but vacate and remand for resentencing.

        The trial court opinion sets forth the relevant facts and procedural

history of this case.2 Therefore, we have no need to restate them.

____________________________________________


1
    35 P.S. § 780-113(a)(30), (32).
2
  Appellant timely filed a post-sentence motion on Monday, August 18, 2014,
which the court denied on August 20, 2014. Appellant timely filed a notice
of appeal on September 17, 2014.          The next day, the court ordered
Appellant to file a concise statement of errors complained of on appeal
(Footnote Continued Next Page)
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        Appellant raises three issues for our review:

           WHETHER THE TRIAL COURT ILLEGALLY SENTENCED
           APPELLANT TO A MANDATORY MINIMUM SENTENCE OF
           THREE (3) YEARS’ INCARCERATION PURSUANT TO 18
           PA.C.S.A. § 7508(a)(3)(i) AND 7508(b) WHERE THE
           STATUTE    AT  ISSUE―18     PA.C.S.A. §  7508―IS
           UNCONSTITUTIONAL AS A WHOLE SINCE IT VIOLATES
           APPELLANT’S RIGHT TO A JURY TRIAL UNDER ARTICLE I,
           SECTION IX OF THE PENNSYLVANIA CONSTITUTION AND
           THE SIXTH AMENDMENT TO THE UNITED STATES
           CONSTITUTION?

           WHETHER THE COMMONWEALTH FAILED TO PRESENT
           SUFFICIENT  EVIDENCE   TO  SUSTAIN   APPELLANT’S
           CONVICTIONS WHERE THE COMMONWEALTH FAILED TO
           PROVE THAT APPELLANT POSSESSED THE CONTROLLED
           SUBSTANCE ULTIMATELY DISCOVERED IN THE VEHICLE?

           WHETHER THE TRIAL COURT ERRED IN DENYING
           APPELLANT’S POST-SENTENCE MOTION WHERE HIS
           CONVICTIONS WERE AGAINST THE WEIGHT OF THE
           EVIDENCE SO AS TO SHOCK ONE’S SENSE OF JUSTICE AS
           APPELLANT WAS NEVER SHOWN TO HAVE INTENDED TO
           DELIVER THE CONTROLLED SUBSTANCE HE ALLEGEDLY
           POSSESSED?

(Appellant’s Brief at 6).3

        “Generally, a challenge to the application of a mandatory minimum

sentence is a non-waiveable challenge to the legality of the sentence.”

Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa.Super. 2012),

appeal denied, 617 Pa. 629, 53 A.3d 756 (2012) (quoting Commonwealth

                       _______________________
(Footnote Continued)

pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on October 9,
2014.
3
    Appellant challenges only his PWID conviction in issues two and three.



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v. Brougher, 978 A.2d 373, 377 (Pa.Super. 2009)). “Issues relating to the

legality of a sentence are questions of law, as are claims raising a court’s

interpretation of a statute. Our standard of review over such questions is de

novo and our scope of review is plenary.”    Commonwealth v. Diamond,

945 A.2d 252, 256 (Pa.Super. 2008), appeal denied, 598 Pa. 755, 955 A.2d

356 (2008) (internal citations omitted).

      In Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186

L.Ed.2d 314 (2013), the United States Supreme Court held that any fact

increasing the mandatory minimum sentence for a crime is considered an

element of the crime to be submitted to the fact-finder and found beyond a

reasonable doubt. Id. Here, the court imposed the three year mandatory

minimum sentence under 18 Pa.C.S.A. § 7508 for Appellant’s PWID

conviction. Section 7508(a)(3)(i) sets forth a mandatory minimum sentence

of three (3) years’ imprisonment where a defendant is convicted of PWID

(crack cocaine) when the aggregate weight of the drugs is between two and

ten grams, and the defendant has been convicted of another drug trafficking

offense. See 18 Pa.C.S.A. § 7508(a)(3)(i). Section 7508(b) of this statute

states that its provisions shall not be an element of the crime and

applicability of the statute shall be determined by the court at sentencing by

a preponderance of the evidence. 18 Pa.C.S.A. § 7508(b).

      Recently, in Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.

2014) (en banc), this Court addressed the constitutionality of a mandatory


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minimum sentencing statute containing language similar to Section 7508.

This Court analyzed whether Newman’s mandatory minimum sentence was

constitutional in light of Alleyne. Relying on Alleyne, Newman held that

42 Pa.C.S.A. § 9712.1 (requiring imposition of mandatory minimum

sentence for certain drug offenses committed with firearms) can no longer

pass constitutional muster as it “permits the trial court, as opposed to the

jury,   to   increase    a    defendant’s      minimum     sentence   based     upon    a

preponderance of the evidence that the defendant was dealing drugs and

possessed a firearm, or that a firearm was in close proximity to the drugs.”

Newman, supra at 98.              This Court further held that the subsections of

Section 9712.1       are     so   “essentially    and   inseparably   connected”     that

severance of the statute is not possible, rendering the entire statute

unconstitutional.     Id. at 102.        Thus, this Court vacated Newman’s PWID

sentence     and    remanded       for   resentencing    without   imposition   of     the

mandatory minimum under Section 9712.1.4 See also Commonwealth v.

Cardwell, 105 A.3d 748 (Pa.Super. 2014) (holding trial court erred by

imposing mandatory minimum sentence under Section 7508, even where

parties stipulated to weight of drugs; under Newman and its progeny,

Section 7508(b) is not severable from remainder of statute; remanding for

____________________________________________


4
  This Court also made clear that Alleyne is subject to limited retroactivity;
in other words, Alleyne is applicable only to criminal cases still pending on
direct review. Id. at 90.



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resentencing without imposition of mandatory minimum sentence).

     Additionally, the Controlled Substance, Drug, Device and Cosmetic Act

defines PWID, as follows:

        § 780-113. Prohibited acts; penalties

           (a) The following acts and the causing thereof within
        the Commonwealth are hereby prohibited:

                                 *    *     *

               (30) Except as authorized by this act, the
            manufacture, delivery, or possession with intent to
            manufacture or deliver, a controlled substance by a
            person not registered under this act, or a practitioner
            not registered or licensed by the appropriate State
            board, or knowingly creating, delivering or possessing
            with intent to deliver, a counterfeit controlled
            substance.

35 P.S. § 780-113(a)(30).        To establish the offense of PWID, the

Commonwealth must prove beyond a reasonable doubt that the defendant

possessed   a   controlled   substance     with   the   intent   to    deliver   it.

Commonwealth v. Jones, 874 A.2d 108, 121 (Pa.Super. 2005).

        The trier of fact may infer that the defendant intended to
        deliver a controlled substance from an examination of the
        facts and circumstances surrounding the case. 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 Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa.Super.

2003), appeal denied, 577 Pa. 712, 847 A.2d 1280 (2004)).             “[A]ll of the

facts and circumstances surrounding the possession are relevant and the


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elements of the crime may be established by circumstantial evidence.”

Commonwealth v. Little, 879 A.2d 293, 297 (Pa.Super. 2005), appeal

denied, 586 Pa. 724, 890 A.2d 1057 (2005).

     “When contraband is not found on the defendant’s person, the

Commonwealth must establish constructive possession….” Jones, supra at

121 (quoting Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa.Super.

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.” Jones, supra at

121 (quoting Kirkland, supra at 610).       “The intent to exercise conscious

dominion can be inferred from the totality of the circumstances.”     Jones,

supra at 121 (quoting Kirkland, supra at 610). “Constructive possession

may be found in one or more actors where the item [at] issue is in an area

of joint control and equal access.”    Commonwealth v. Valette, 531 Pa.

384, 388, 613 A.2d 548, 550 (1992).

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Deborah E.

Curcillo, we conclude that Appellant’s first issue warrants remand for

resentencing; and Appellant’s second issue merits no relief. The trial court

opinion discusses and properly disposes of these questions. (See Trial Court

Opinion, filed October 21, 2014, at 6-7) (finding: (1) parties stipulated to

weight of drugs in this case, and jury specifically answered question


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concerning weight of drugs on verdict slip; nevertheless, in light of

Newman, Section 7508 is no longer constitutional, so remand for

resentencing is appropriate;5 (2) Appellant sat in back seat of vehicle; driver

and front passenger of vehicle testified there were no drugs in backseat

before Appellant entered vehicle; Officer Roberts testified he did not see

driver or front passenger make any sudden movements to indicate they

placed drugs in backseat; Officer Roberts recovered drugs from backseat,

where Appellant had been sitting; Appellant had power to control drugs as

person closest to drugs; Commonwealth presented sufficient evidence that

Appellant     constructively     possessed       drugs    recovered   from   vehicle).

Accordingly, we affirm Appellant’s PWID conviction, on the basis of the trial

court’s opinion, and agree with the court that resentencing is necessary

without imposition of the mandatory minimum sentence under Section 7508.

       In his third issue, Appellant argues that the plastic baggies Officer

Roberts recovered on his person were not used to package drugs, but were

sandwich baggies Appellant had in his pocket from his job earlier that day as

a cook at Kentucky Fried Chicken (“KFC”).                Appellant asserts the money

Officer Roberts recovered on his person likewise had nothing to do with

drugs, but was money Appellant obtained from his paycheck the previous

day.     Appellant emphasizes that an earlier court order required the
____________________________________________


5
  The Commonwealth agrees this Court should remand for resentencing
without imposition of the mandatory minimum sentence.



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Commonwealth to return the money recovered from Appellant’s person

because Appellant proved it came from his paycheck.          Appellant contends

that even if he possessed the drugs at issue, the Commonwealth failed to

demonstrate that he intended to deliver the drugs. Appellant concludes the

jury’s PWID verdict was against the weight of the evidence, and this Court

should grant appropriate relief. We disagree.

      When examining a challenge to the weight of the evidence, our

standard of review is as follows:

             The weight of the evidence is exclusively for the
             finder of fact who is free to believe all, part, or none
             of the evidence and to determine the credibility of
             the witnesses. An appellate court cannot substitute
             its judgment for that of the finder of fact. Thus, we
             may only reverse the…verdict if it is so contrary to
             the evidence as to shock one’s sense of justice.

          Moreover, where the trial court has ruled on the weight
          claim below, an appellate court’s role is not to consider the
          underlying question of whether the verdict is against the
          weight of the evidence. Rather, appellate review is limited
          to whether the trial court palpably abused its discretion in
          ruling on the weight claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(internal citations omitted). A “trial court’s denial of a motion for a new trial

based on a weight of the evidence claim is the least assailable of its rulings.”

Commonwealth v. Rivera, 603 Pa. 340, 363, 983 A.2d 1211, 1225

(2009), cert. denied, 560 U.S. 909, 130 S.Ct. 3282, 176 L.Ed.2d 1191

(2010).

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     Instantly, Appellant preserved his challenge to the weight of the

evidence in a timely filed post-sentence motion, which the court denied on

August   20,   2014.    At   trial,   the   jury   heard   testimony   from   the

Commonwealth’s expert witness, Chief John Goshert.              The trial court

summarized Chief Goshert’s testimony as follows:

         In this case, Chief Goshert testified as an expert that [in]
         most situations where there are drugs and small baggies,
         the person in possession of the drugs intends to deliver
         them. In our case, there was one bag of crack cocaine
         along with several bags commonly used to package drugs.
         The incident occurred in a high drug trafficking area of
         Harrisburg City. The lack of drug use paraphernalia is also
         evidence of intent to deliver, as someone who intended to
         use the drugs would generally have some sort of pipe on
         [him]. [Appellant] had no such device. Further, the
         amount of crack cocaine indicates likelihood of delivery.
         Most users have one dose of the drug on them as opposed
         to several. Per Chief Goshert, the street value of the crack
         cocaine found in the vehicle was roughly $500, a fairly
         significant amount of cocaine to carry around if it were
         merely for personal use.

(Trial Court Opinion at 8-9). In his defense, Appellant testified, inter alia:

(1) the drugs recovered from the vehicle were not his; (2) the sandwich

baggies recovered from his person were solely related to his employment at

KFC; (3) the money recovered from his person was legitimate income from

his paycheck, which Appellant received the day before; and (4) the court

previously ordered the Commonwealth to return the money recovered from

Appellant’s person after Appellant proved the money came from his

paycheck.

     The jury was free to reject Appellant’s testimony and accept as true

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testimony from the Commonwealth’s witnesses that Appellant constructively

possessed the drugs at issue with the intent to deliver.   See Champney,

supra.    We see no reason to disrupt the trial court’s decision to deny

Appellant’s weight claim.       See Rivera, supra; Champney, supra.

Accordingly, we affirm Appellant’s convictions, but vacate and remand for

resentencing without imposition of the mandatory minimum sentence under

Section 7508.

      Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2015




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