J. S15038/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA          :    IN THE SUPERIOR COURT OF
                                      :          PENNSYLVANIA
                  v.                  :
                                      :
MARCEL JENKINS,                       :        No. 3451 EDA 2015
                                      :
                       Appellant      :


          Appeal from the Judgment of Sentence, June 22, 2015,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0014283-2011



COMMONWEALTH OF PENNSYLVANIA          :    IN THE SUPERIOR COURT OF
                                      :          PENNSYLVANIA
                  v.                  :
                                      :
MARCEL JENKINS,                       :        No. 1753 EDA 2016
                                      :
                       Appellant      :


          Appeal from the Judgment of Sentence, June 22, 2015,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0014283-2011


BEFORE: BOWES, J., DUBOW, J. AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED MAY 16, 2017

     Marcel Jenkins appeals the judgment of sentence in which the Court of

Common Pleas of Philadelphia County sentenced him to serve 2 to 4 years’

imprisonment for possession with intent to deliver a controlled substance
J. S15038/17


(“PWID”) followed by a consecutive term of five years’ probation for

conspiracy to commit PWID.1 We affirm.

        The facts, as recounted by the trial court, are as follows:

                     On September 8, 2011, as a result of
              information received, two plainclothes narcotics
              Philadelphia police officers, Officer Thomas Clarke
              and Officer Richard Gramlich, set up surveillance at
              the 2800 block of Kensington Avenue, an area
              notorious for drug trafficking. The officers observed
              [appellant] and Michael Taylor on Kensington Avenue
              in what, from their experience, appeared to be
              several drug transactions. (N.T. 12-4-2014, pp. 33-
              40, 96-102). During their surveillance over the next
              hour, the officers observed numerous transactions in
              which [appellant] and Taylor would retrieve objects
              directly from either a pay phone, or from a white
              trash can located inside of a store on that street, and
              then exchange that object for U.S. Currency with the
              individual who had just approached them. (N.T.
              12-4-2014, pp. 37-38). Officer Richard Gramlich
              testified that on two occasions, individuals who had
              just taken part in one of these exchanges had the
              clear packet they had received still visible in their
              hands when they walked past his vehicle. Officer
              Gramlich further testified that he immediately
              recognized the packets as heroin. (N.T. 12-4-2014,
              pp. 101-102).

                     Once backup uniformed officers arrived to
              arrest [appellant] and Taylor, a large amount of cash
              was found on [appellant’s] person, and the police
              confiscated marijuana from the white trash can
              inside the store, and heroin from the pay phone.
              (N.T. 12-4-2014, pp. 43-44, 128-129). The parties
              stipulated to the chemist report substantiating that
              the items seized were, indeed, marijuana and heroin.
              (N.T. 12-4-2014, p. 132).



1
    35 P.S. § 780-113(a)(30) and 18 P.S. § 903(c), respectively.


                                       -2-
J. S15038/17


Trial court opinion, 7/15/16 at 2-3.

      On December 5, 2014, following a trial, the jury returned guilty

verdicts on the charges for which appellant was sentenced.       On June 22,

2015, the trial court imposed the sentence set forth above. On July 1, 2015,

appellant filed a post-sentence motion.

      On August 12, 2015, appellant filed a notice of appeal to this court.

On September 4, 2015, this court issued a rule to show cause as to why the

appeal should not be quashed as interlocutory because the trial court had

not entered an order regarding the post-sentence motion. On October 26,

2015, this court quashed the appeal as interlocutory.

      Also, on October 26, 2015, the trial court denied the post-sentence

motion on the record but failed to enter an order on the docket.            On

November 12, 2015, appellant filed a notice of appeal to this court.        On

December 17, 2015, this court quashed the appeal as interlocutory because

the trial court had not entered an order regarding the post-sentence motion.

      By order dated June 1, 2016, the trial court entered an order that the

post-sentence motion was denied without a hearing.        On June 10, 2016,

appellant filed a notice of appeal to this court. On August 5, 2016, this court

dismissed this appeal for failure to comply with Pa.R.A.P. 3517 because

appellant did not file a docketing statement. On August 9, 2016, appellant

requested reinstatement of the appeal because he sent the docketing

statement under the docket number of the November 12, 2015 appeal



                                       -3-
J. S15038/17


(No. 3451 EDA 2015) and not under the docket number of the June 10,

2016 appeal (No. 1753 EDA 2016).        Appellant requested that this court

permit the appeal docketed at No. 1753 EDA 2016 to proceed and to dismiss

as duplicative the appeal docketed at No. 3451 EDA 2015.

      By order filed on August 29, 2016, this court granted the application

for reinstatement, vacated the August 4, 2016 order, and reinstated the

appeal.   This court denied appellant’s application to dismiss the appeal at

No. 3451 EDA 2015 and consolidated the two appeals.           This court also

announced that the issue of whether the June 1, 2016 order denying the

post-sentence motion is valid and/or timely would be decided by this panel.

This court finds that the order is valid in that no order was ever entered

previously even though the motion had been denied in open court. Twice,

appellant had his appeal quashed because no order had been issued to deny

the post-sentence motion.    In the interest of allowing appellant his day in

court to present his appeal, this court will treat the June 1, 2016 order as

valid and timely.

      Before this court, appellant contends that the evidence was insufficient

to convict him of PWID and conspiracy.       Appellant also contends that the

trial court abused its discretion when it sentenced him to 2 to 4 years’

imprisonment plus five years of probation.

      Initially, appellant contends that the evidence was insufficient to

support his convictions.



                                    -4-
J. S15038/17


           A claim challenging the sufficiency of the evidence is
           a question of law. Commonwealth v. Widmer,
           560 Pa. 308, 319, 744 A.2d 745, 751 (2000). In
           that case, our Supreme Court set forth the
           sufficiency of the evidence standard:

                 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.
                 Commonwealth v. Karkaria, 533 Pa.
                 412, 625 A.2d 1167 (1993). 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.
                 Commonwealth v. Santana, 460 Pa.
                 482, 333 A.2d 876 (1975).           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.
                 Chambers, 528 Pa. 558, 599 A.2d 630
                 (1991).

           Id. at 319, 744 A.2d at 751.

Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).

     Section 13(a)(30) of The Controlled Substance, Drug, Device and

Cosmetic Act provides:

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

                 ....




                                   -5-
J. S15038/17


                  (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).

       Appellant argues that the Commonwealth’s evidence was insufficient to

establish PWID.    Appellant asserts that Officer Thomas Clarke (“Officer

Clarke”) of the Philadelphia Police Department identified an individual who

wore a “brown/orange Adidas hooded sweatshirt” and another individual who

met with several other individuals and retrieved items from a phone booth or

a trash can in a Chinese store in exchange for United States currency.

(Notes of testimony, 12/4/14 at 61.)      Appellant casts doubt on Officer

Clarke’s ability to see these exchanges from his position parked across the

intersection when he had no binoculars. Appellant argues that when he was

arrested, Officer Clarke should have been able to determine that he was not

the individual Officer Clarke initially observed because he was not wearing

an Adidas hooded sweatshirt but was wearing a brown polo shirt. (Id. at

63.)   Appellant further argues that the police did not recover any drugs,

money, telephones, records of drug transactions, scales, or other evidence

of drug paraphernalia.   Also, the only connection at all between appellant


                                    -6-
J. S15038/17


and the car that was seized was a key that allegedly was around appellant’s

neck though the key was not produced in evidence.

        Appellant’s argument falls short of the mark. He appears to attack the

credibility of the witnesses and the evidence rather than the sufficiency of

the evidence.    Sufficiency claims present questions of law while credibility

presents questions of fact. See Widmer, 744 A.2d at 751-752.

        The Commonwealth presented sufficient evidence to establish a

conviction for PWID. Officer Clarke testified that he had extensive training

and experience in the area of narcotics. In fact, he estimated that he had

witnessed the sale of narcotics more than 10,000 times.                (Notes of

testimony, 12/4/14 at 30-33.) Officer Clarke testified that on September 8,

2012,     between   2:10   and   3:00    p.m.,   he   observed   appellant   and

Michael Taylor (“Taylor”):

             [O]n numerous occasions meet up with individuals.
             They would either go to, on this picture, you see the
             pay phone right there, the back of that pay phone
             there is like a little opening slot, they would reach
             into here, remove an object, reach into it, remove
             items out of that object, that back in there, hand
             over the item for United States currency.

                    And other times they would go to the Chinese
             store. If you look at the picture, the window on your
             far left, you see the white trash can right there, they
             would reach into that white trash can, remove
             something from it, come back out immediately . . .
             and exchange.”

Id. at 37-38.




                                        -7-
J. S15038/17


     Officer Clarke testified that he believed that he was seeing narcotics

transactions. (Id. at 39.) Officer Clarke reported that a rubber glove that

contained heroin was recovered from the pay phone and marijuana was

recovered from the trash can in the Chinese store. (Id. at 43-44.)

     This evidence presented by the Commonwealth was sufficient to

establish that appellant committed PWID. The evidence established that he

participated in what a trained observer believed were drug transactions and

marijuana and heroin were recovered from the places that it appeared that

appellant was frequently returning.

     As to the conspiracy conviction, appellant essentially raises the same

arguments.

     Section 903 of the Crimes Code provides in pertinent part:

             (a)   Definition of conspiracy.--A person is guilty
                   of conspiracy with another person or persons
                   to commit a crime if with the intent of
                   promoting or facilitating its commission he:

                   (1)   agrees with such other person or
                         persons that they or one or more
                         of them will engage in conduct
                         which constitutes such crime or an
                         attempt or solicitation to commit
                         such crime; or

                   (2)   agrees to aid such other person or
                         persons   in   the    planning  or
                         commission of such crime or of an
                         attempt or solicitation to commit
                         such crime.

             (c)   Conspiracy      with    multiple     criminal
                   objectives.--If a person conspires to commit


                                      -8-
J. S15038/17


                  a number of crimes, he is guilty of only one
                  conspiracy so long as such multiple crimes are
                  the object of the same agreement or
                  continuous conspiratorial relationship.

18 Pa.C.S.A. § 903(a), (c).

      The testimony used to support the conviction for PWID coupled with

the testimony of Officer Clarke, that he observed appellant and Taylor both

selling drugs at the same place at the same time and getting the drugs from

the same places, the pay phone and the trash receptacle in the Chinese

store, support the conspiracy charge. (Notes of testimony, 12/4/14 at 37.)

Officer Richard Gramlich of the Philadelphia Police Department corroborated

that Taylor was selling drugs at the same location.        (Id. at 101.)   This

evidence was sufficient to support the conviction for conspiracy. Once again,

appellant primarily challenges the credibility of the witnesses.

      Appellant next contends that his sentence was excessive and the trial

court did not take into account the non-violent nature of his crimes and his

rehabilitative needs as set forth in his pre-sentence investigation report.

Appellant further asserts that the trial court failed to let him adequately

speak at the sentencing hearing.2


2
  Appellant has not actually asserted that his right to allocution was denied.
In the argument section of his brief where he argues that the trial court
abused its discretion when it failed to consider mitigating factors when it
fashioned his sentence, he includes a sentence where he states that the trial
court failed to let him adequately speak and interrupted him almost
immediately. A review of both appellant’s Rule 1925(b) statement and his
statement pursuant to Pa.R.A.P. 2119(f) reveals that he did not raise the
right of a denial of allocution as an issue. Further, a review of the transcript


                                     -9-
J. S15038/17


            [T]he proper standard of review when considering
            whether      to    affirm    the    sentencing   court’s
            determination is an abuse of discretion. . . . [A]n
            abuse of discretion is more than a mere error of
            judgment; thus, a sentencing court will not have
            abused its discretion unless the record discloses that
            the     judgment        exercised     was     manifestly
            unreasonable, or the result of partiality, prejudice,
            bias or ill-will. In more expansive terms, our Court
            recently offered: An abuse of discretion may not be
            found merely because an appellate court might have
            reached a different conclusion, but requires a result
            of   manifest      unreasonableness,      or   partiality,
            prejudice, bias, or ill-will, or such lack of support so
            as to be clearly erroneous.

            The rationale behind such broad discretion and the
            concomitantly deferential standard of appellate
            review is that the sentencing court is in the best
            position to determine the proper penalty for a
            particular offense based upon an evaluation of the
            individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:

                  [W]e conduct a four-part analysis to
                  determine: (1) whether appellant has
                  filed a timely notice of appeal, see
                  Pa.R.A.P. 902 and 903; (2) whether the
                  issue   was   properly  preserved   at



of the sentencing hearing indicates that after appellant stated that he
accepted responsibility for his actions, the trial court provided appellant with
a detailed explanation of the reasons for its sentencing decision.


                                     - 10 -
J. S15038/17


                  sentencing or in a motion to reconsider
                  and modify sentence, see Pa.R.Crim.P.
                  [720]; (3) whether appellant’s brief has
                  a fatal defect, Pa.R.A.P. 2119(f); and
                  (4) whether there is a substantial
                  question that the sentence appealed
                  from is not appropriate under the
                  Sentencing     Code,    42     Pa.C.S.A.
                  § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).

      Here, we begin our analysis by determining whether appellant has

complied with the procedural requirements of challenging the discretionary

aspects of his sentence.    First, appellant timely filed his notice of appeal

pursuant to Pa.R.A.P. 902 and 903. Second, a review of the record reveals

that appellant raised, at both his sentencing hearing and in his motion for

reconsideration, the issues of whether the trial court should impose leniency

because the crime was non-violent and because he had to support his

family. Third, appellant’s brief includes a concise statement of the reasons

relied upon for allowance of appeal with respect to the discretionary aspects

of his sentence in conformance with Pa.R.A.P. 2119(f).       Accordingly, we

must determine whether appellant has raised a substantial question.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”    Commonwealth v. Griffin, 65 A.3d

932, 935 (Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013)

(citation omitted).   “A substantial question exists only when the appellant

advances a colorable argument that the sentencing judge’s actions were



                                    - 11 -
J. S15038/17


either: (1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

process.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012),

appeal denied, 63 A.3d 774 (Pa. 2013) (citation omitted).

      Here, the trial court imposed a standard range sentence after hearing

testimony at the sentencing hearing, reviewing the record, and reviewing

the pre-sentence investigation report.            “[W]here a sentence is within the

standard range of the guidelines, Pennsylvania law views the sentence as

appropriate under the Sentencing Code.” Moury, 992 A.2d at 171. Further,

this court has held that a sentencing court failed to attach sufficient weight

to   mitigating   factors   does   not    raise     a   substantial   question.   See

Commonwealth v. Lopez, 627 A.2d 1229 (Pa.Super. 1993) (allegation that

sentencing court failed to attach sufficient weight to mitigating factors of

record does not present a substantial question); see also Commonwealth

v. Jones, 613 A.2d 587 (Pa.Super. 1992), appeal denied, 629 A.2d 1377

(Pa. 1993) (arguments that sentencing court improperly weighed various

legitimate factors does not raise a substantial question).               “[W]here the

sentencing judge had the benefit of a [PSI] report, it will be presumed that

he or she was aware of the relevant information regarding the defendant’s

character and weighed those considerations along with mitigating statutory

factors.”   Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa.Super.

2013), appeal denied, 85 A.3d 481 (Pa. 2014), quoting Commonwealth



                                         - 12 -
J. S15038/17


v. Bricker, 41 A.3d 872, 876 n.9 (Pa.Super. 2012) (quotation and quotation

marks omitted). Therefore, appellant does not raise a substantial question

with respect to whether the trial court adequately considered mitigating

factors when it imposed a standard range sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/16/2017




                                  - 13 -
