J-S58020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

JODY L. KENNY,

                            Appellant                      No. 71 WDA 2014


          Appeal from the Judgment of Sentence Entered July 5, 2012
            In the Court of Common Pleas of Westmoreland County
              Criminal Division at No(s): CP-65-CR-0003920-2010


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

MEMORANDUM BY BENDER, P.J.E.:                        FILED SEPTEMBER 26, 2014

        Appellant, Jody L. Kenny, appeals from the judgment of sentence of 2-



delivery of a controlled substance.            After careful review, we vacate the

judgment of sentence and remand for resentencing.

        The trial court summarized the facts adduced at trial as follows:

               Detective Fontana of the Greensburg Police Department
        testified that he conducted surveillance on a residence as part of
        an investigation headed by Detective Vernail.           The first
        transaction took place on May 6, 2009. The occupants of a first
        floor apartment located at 135 East Pittsburgh Street were
        [Appellant] and her Husband. The detective watched as the


        talked for a minute. Then, the [C.I.] went back to Detective
        Vernail's car. Fontana had a good vantage point during the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S58020-14



      encounter took place on three separate occasions and all of the

      location. Essentially, the [C.I.] went up onto the porch, they
      briefly spoke, and then he handed [Appellant] money and she
      handed him a package and he went off the porch and back to
      Detective Vernal.       Each time, Fontana was conducting
      surveillance and thus he was able to positively identify
      [Appellant].

            Thomas Warren, the [C.I.], testified that he came into
      contact with Detective Jerry Vernail and agreed to cooperate
      with him in his efforts to combat drug trafficking in the city of
      Greensburg. He knew of the East Pittsburgh street address as
      the residence of a drug distributor. He was aware of this fact
      because his ex-girlfriend would purchase drugs from [Appellant].

            According to Mr. Warren[,] the narcotic pill he was
      purchasing was called opana. The cost per pill was either $15.00
      or $20.00.    He made arrangements over the phone with
      [Appellant] to purchase the narcotic pills. Mr. Warren was
      searched both before and after the purchases from [Appellant].
      He provided all the cash the detective gave him to [Appellant]
      and he gave the detective all the opana that she had given to
      him on each occasion. The third and final transaction took place
      on June 3, 2009.

            Trooper Gregg Norton and Detective Jerry Vernail were
      involved in surveillance of the three drug transactions. Each
      time the same scenario unfolded. The [C.I.] would go up onto


      narcotic pills.

           Analysis of the pills was conducted by Maxine Oleyar, a
      Forensic Scientist II with the Pennsylvania State Police Crime
      Lab at Greensburg. Her analysis of the pills indicated that they
      were oxymorphone, a Schedule II Controlled Substance (the
      generic term being opana).

Trial Court Opinion, 12/4/13, at 2-4 (internal citations omitted).




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     On December 9, 2011, following a jury trial, Appellant was convicted

of three counts of delivery of a controlled substance (Delivery), 35 P.S. §

780-113(a)(30). Appellant was sentenced on July 5, 2012, to an aggregate

term of 2-                                  id not initially file a post-sentence

motion or a direct appeal.      However, on July 29, 2013, the trial court

entered an order reinstating her direct appeal rights nunc pro tunc.

Appellant then filed a post-sentence motion on August 8, 2013. That motion

was denied on December 4, 2013. The trial court also issued an opinion on

                                                                       -sentence

motion.     Appellant then filed a timely notice of appeal on January 2, 2014.

     On January 27, 2014, App

for a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The



                                                                  ispositive with

respect to all the issues raised by Appellant in her Rule 1925(b) statement.

Appellant now presents the following questions for our review:

       I.
             post-sentence motion for a judgment of acquittal based
             upon a verdict contrary to the sufficiency of the evidence,
             for the reason that there was insufficient evidence to
             support the guilty verdicts for the offense of [Delivery] at


      II.    Whether the tri
             post-sentence motion for a new trial, for the reason that
             the guilty verdicts for the offense of [Delivery] at counts 1,

             to the weight of the evidence?


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     III.   Whether
            post-sentence motion for a new trial, for the reason that
            trial counsel was ineffective by failing to move for a
            mistrial on the basis that certain members of the jury
            demonstrated that they were biased again

                       -8.   We will address these claims ad seriatum, and

conclude our review with a sua sponte examination of the legality of



                                  Sufficiency

                                                                     cy of the

evidence underlying her conviction for three counts of Delivery.           Our

standard of review of sufficiency claims is well-settled:

             A claim challenging the sufficiency of the evidence is a
      question of law. Evidence will be deemed sufficient to support
      the verdict when it establishes each material element of the
      crime charged and the commission thereof by the accused,
      beyond a reasonable doubt. Where the evidence offered to
      support the verdict is in contradiction to the physical facts, in
      contravention to human experience and the laws of nature, then
      the evidence is insufficient as a matter of law. When reviewing a
      sufficiency claim[,] the court is required to view the evidence in
      the light most favorable to the verdict winner giving the
      prosecution the benefit of all reasonable inferences to be drawn
      from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      In her brief, Appellant cites the appropriate standard of review, as well

as the statute defining her Delivery offenses, 35 P.S. § 780-113(a)(30).

However, her argument in support of the sufficiency claim is merely a bald

assertion that the evidence is insufficient:



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      Appellant argues that the evidence which was presented at trial
      was insufficient to establish that she delivered a controlled
      substance, namely [o]pana pills, to the Confidential Informant
      on any of the three (3) criminal incident dates in question. It is
      maintained that the Commonwealth did not present sufficient
      evidence to sustain a conviction for the [Delivery] offenses
      charged in Counts 1, 2 and 3 of the Commonwealth's
      Information.

                      -14.

      This is the functional equivalent of no argument at all.      Moreover,

Appellant does not cite to any authority in support of the proposition that the

evidence was insufficient in this case, see



claim, see                                                        Accordingly,



                          Weight of the Evidence



the evidence.

         Appellate review of a weight claim is a review of the exercise
      of discretion, not of the underlying question of whether the
      verdict is against the weight of the evidence. Because the trial
      judge has had the opportunity to hear and see the evidence
      presented, an appellate court will give the gravest consideration
      to the findings and reasons advanced by the trial judge when
      reviewing a trial court's determination that the verdict is against
      the weight of the evidence. One of the least assailable reasons

      that the verdict was or was not against the weight of the
      evidence and that a new trial should be granted in the interest of
      justice.

         However, the exercise of discretion by the trial court in
      granting or denying a motion for a new trial based on a
      challenge to the weight of the evidence is not unfettered. The


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      propriety of the exercise of discretion in such an instance may be
      assessed by the appellate process when it is apparent that there
      was an abuse of that discretion. This court summarized the
      limits of discretion as follows:


         wisdom and skill so as to reach a dispassionate conclusion,
         within the framework of the law, and is not exercised for
         the purpose of giving effect to the will of the judge.
         Discretion must be exercised on the foundation of reason,
         as opposed to prejudice, personal motivations, caprice or
         arbitrary actions. Discretion is abused when the course
         pursued represents not merely an error of judgment, but
         where the judgment is manifestly unreasonable or where
         the law is not applied or where the record shows that the
         action is a result of partiality, prejudice, bias or ill will.

Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal citations omitted).

                                                                            testified




and that it would have been possible for him to have stolen some of her pills

on the occasions when he visited her residence. Id. at 15. Thus, Appellant



                                                      Id.

                                                                   e assertion that

the   jury   should   have   believed    her   testimony    over     that   of   the



      [a] new trial should not be granted because of a mere conflict in
      testimony or because the trial judge on the same facts would
      have arrived at a different conclusion. Nor should it ordinarily be
      granted on the ground that the verdict was against the weight of
      the evidence where the evidence is conflicting and the jury might
      have found for either party.


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Eisert v. Jones, 182 A.2d 717, 720 (Pa. 1962).




                                                                      weight of

the evidence claim does not entitle her to relief.

                    Ineffective Assistance of Counsel




                 tiveness. We are precluded from reviewing this claim under

the general rule espoused by our Supreme Court in Commonwealth v.

Grant

a general rule, a petitioner should wait to raise claims of ineffective

                                                      Id. at 738. Recently, in

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court

recognized the existence of only two exceptions to the rule announced in

Grant.   First, a trial court may address ineffectiveness claims where such



                                                                   Holmes, 79

A.3d at 563. Second,

      with respect to other cases an
      seeks to litigate multiple or prolix claims of counsel
      ineffectiveness, including non-record-based claims, on post-
      verdict motions and direct appeal, we repose discretion in the
      trial courts to entertain such claims, but only if (1) there is good
      cause shown, and (2) the unitary review so indulged is preceded
      by the defendant's knowing and express waiver of his

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J-S58020-14


        entitlement to seek PCRA[1] review from his conviction and
        sentence, including an express recognition that the waiver
        subjects further collateral review to the time and serial petition
        restrictions of the PCRA.

Holmes, 79 A.3d at 563-64 (footnote omitted).

        Appellant has not asserted the applicability of either of these

exceptions, nor is there anything in the record that suggests their



claim at this time.      However, we do so without prejudice to her ability to

raise it in a future PCRA petition.

                                   Illegal Sentence

                                                for three counts of Delivery in this

case,    the   Commonwealth        sought      imposition   of   mandatory   minimum

sentences for two of those counts pursuant to 18 Pa.C.S. § 7508.                 See



                         at 1-2. The trial court indicates that these mandatory



our review of the trial transcripts, we can ascertain that the jury empaneled

in this case did not make the determination regarding whether the facts

adduced at trial supported the imposition of the mandatory minimum

sentences imposed by the court.                See N.T., 12/8/11-12/9/11, at 198

(wherein the trial court described the content of the verdict slip to the jury).


____________________________________________


1
    Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.



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This indicates that the mandatory sentences imposed in this case were

illegal.



of right, is non-waivable, and may be entertained so long as the reviewing

                        Commonwealth v. Robinson, 931 A.2d 15, 19 20

(Pa. Super. 2007) (en banc

reviewed sua sponte                   Commonwealth v. Archer, 722 A.2d

203, 209 (Pa. Super. 1998).

       In Commonwealth v. Thompson, 93 A.3d 478 (Pa. Super. 2014),



                                                                          Id.



that mandatory sentence were not determined by the fact-finder nor proven

                              Id. Thus, the Thompson



                         Alleyne v. United States, 133 S.Ct. 2151 (2013).

       According to the Alleyne Court, a fact that increases the
       sentencing floor is an element of the crime. Thus, it ruled that
       facts that mandatorily increase the range of penalties for a
       defendant must be submitted to a fact-finder and proven beyond
       a reasonable doubt. The Alleyne decision, therefore, renders
       those Pennsylvania mandatory minimum sentencing statutes
       that do not pertain to prior convictions constitutionally infirm
       insofar as they permit a judge to automatically increase a
       defendant's sentence based on a preponderance of the evidence
       standard.




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Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super. 2013) (footnote

omitted).

      In Watley, we held that Alleyne

      necessarily implicated Pennsylvania's legality of sentencing
      construct since it held that it is improper to sentence a person to
      a mandatory minimum sentence absent a jury's finding of facts
      that support the mandatory sentence. Application of a
      mandatory minimum sentence gives rise to illegal sentence
      concerns, even where the sentence is within the statutory limits.
      Legality of sentence questions are not waivable and may be
      raised sua sponte by this Court.

Watley, 81 A.3d at 117 18 (footnotes and citations omitted).

      In the present case, the Commonwealth sought imposition of

mandatory sentences because

      Counts Two and Three of the Bill of Information involve two or
      more grams of a Schedule I or II narcotic thereby mandating a
      minimum period of incarceration of two years in a state
      correctional institution and a five thousand dollar ($5,000.00)
      fine pursuant to Section 7508 of the Crimes Code.

Notice, at 1-2.

      Although the Commonwealth failed to cite the specific provision of 18

Pa.C.S. § 7508 in the Notice, we can deduce that the Commonwealth was

referring to Section 7508(a)(2)(i), which reads as follows:

      (2) A person who is convicted of violating section 13(a)(14),
      (30) or (37) of The Controlled Substance, Drug, Device and
      Cosmetic Act where the controlled substance or a mixture
      containing it is classified in Schedule I or Schedule II under
      section 4 of that act and is a narcotic drug shall, upon
      conviction, be sentenced to a mandatory minimum term of
      imprisonment and a fine as set forth in this subsection:

         (i) when the aggregate weight of the compound or mixture
         containing the substance involved is at least 2.0 grams

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        and less than ten grams; two years in prison and a fine of
        $5,000 or such larger amount as is sufficient to exhaust
        the assets utilized in and the proceeds from the illegal


18 Pa.C.S. § 7508(a)(2)(i).

      Thus, synthesizing the dictates of Alleyne with the terms of Section



incarceration and a $5000 fine, the Commonwealth was required to prove to

the jury, beyond a reasonable doubt, that Appellant sold at least 2.0 grams

of a Schedule I or Schedule II narcotic. It is apparent from the record that

the jury was not asked to determine whether the Commonwealth met this

burden, nor is there any evidence that Appellant conceded the matter.

Consequently, the imposition of the mandatory sentence in this case was

illegal under the dictates of Alleyne

sentence and remand this case for resentencing.

     Judgment of sentence vacated.          Case remanded for resentencing

consistent with this memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2014




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