J-S18011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                    v.

DAVE N. ALL,

                           Appellant                    No. 230 EDA 2014


         Appeal from the Judgment of Sentence December 6, 2013
           In the Court of Common Pleas of Philadelphia County
                        Criminal Division at No(s):
                         CP-51-CR-0002992-2013
                         CP-51-CR-0044036-2011


BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                           FILED APRIL 24, 2015

      Appellant, Dave N. All, appeals from the judgment of sentence of a

mandatory term of two to four years’ incarceration, imposed after he was

convicted, following a nonjury trial, of possession of a controlled substance

and possession with intent to deliver a controlled substance (PWID).       On

appeal, Appellant challenges the sufficiency and weight of the evidence to

sustain his convictions.    After careful review, we conclude that Appellant’s

claims are waived and/or meritless. However, for the reasons stated infra,

we are compelled to vacate Appellant’s mandatory minimum sentence and

remand for resentencing.

      The trial court set forth the facts of this case as follows:
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            On October 15, 2011[,] at around 11:48 a.m., Officer
     Yerges and his partner[,] Officer Hazzard[,] were on patrol in an
     unmarked vehicle, in the area of 70th Street and Elmwood
     Avenue in the city and county of Philadelphia. The officers
     stopped their vehicle on 70th Street, just south of Elmwood. At
     this time, Officer Yerges observed a black male, later identified
     as Antwine Eure, across the street from the officers’ vehicle.
     Officer Yerges observed Eure make a phone call and then walk
     directly into the alleyway behind the 7000 block of Elmwood
     Avenue. Eure then proceeded to the back door of 7006 Elmwood
     Avenue, where he knocked on the door. About a minute later,
     Officer Yerges observed [Appellant], … who [sic] Officer Yerges
     knew had a warrant and recognized from previous interactions,
     open the door. Officer Yerges observed Eure hand an unknown
     amount of United States currency to [Appellant] at which time
     [Appellant] closed the door leaving Eure on the steps. About a
     minute or so later, Officer Yerges observed a male with a striped
     shirt, later identified as Ibrahim Howard, open the door. Howard
     then handed Eure a baseball-size bag of alleged marijuana[,]
     which Eure took and put down his pants in his crotch area.
     Howard then went inside the rear door and Eure walked off the
     block. Officer Yerges allowed Eure to walk about a block, to
     Holbrook Street, where he stopped him.            Officer Hazzard
     recovered a clear bag containing marijuana from Eure’s crotch
     area.

           Officer Yerges then informed Sergeant Brooks of what had
     transpired and that [Appellant] was in the location and that he
     had a warrant. Officer Yerges, along with other officers, went
     through the rear alleyway and knocked on the same rear door
     that Eure [had] approached. When the door opened, [Appellant]
     and Howard were right inside the rear door. Officer Hazzard
     immediately took [Appellant] into custody and Howard was
     apprehended after a short chase inside of the residence.

           Recovered from [Appellant] was $25 United States
     currency along with a round, clear bag containing alleged
     marijuana, which was identical to the bag that was recovered
     from Eure. Howard was searched incident to arrest and nothing
     was found on him. The officers received a consent to search
     from Carmen Williams and recovered from the second floor was
     $109 United States currency and a larger ziplock bag that
     contained nine other clear plastic bags containing alleged
     marijuana. Also recovered were a scale, numerous new and

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      unused packets, a black .25 caliber Beretta Model 21A handgun,
      and five .38 caliber rounds.

           Officer Yerges also testified that the street value of the
      drugs that Eure was stopped with was about $50 and that
      [Appellant] did not live at the address of 7006 Elmwood Avenue.

Trial Court Opinion (TCO), 9/5/14, at 1-3 (citations to the record omitted).

      Based on these facts, the trial court convicted Appellant of possession

of a controlled substance and PWID. The court also concluded that Appellant

had committed these offenses within 1,000 feet of a school, thus triggering

application of the mandatory minimum sentence of two to four years’

incarceration set forth in 18 Pa.C.S. § 6317.    On December 6, 2013, the

court imposed that sentence for Appellant’s PWID conviction. His conviction

of possessing a controlled substance merged for sentencing purposes.

      Appellant did not file a post-sentence motion for reconsideration of his

sentence.   Instead, he filed a timely notice of appeal, as well as a timely

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Herein, he raises two issues for our review:

      I.    The verdict is against the weight of the evidence because:

            a. The evidence was not beyond a reasonable doubt to
               convict [Appellant] of [PWID].

      II.   The evidence was insufficient to support the verdict
            because:

            a.   There was insufficient evidence to convict [Appellant]
                 of [PWID].

Appellant’s Brief at 3.


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      Initially, Appellant’s weight of the evidence claim is waived.         “[A]

weight of the evidence claim must be preserved either in a post-sentence

motion, by a written motion before sentencing, or orally prior to sentencing.”

Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa. Super. 2013) (citing

Pa.R.Crim.P. 607; Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa.

Super. 2011)). “Failure to properly preserve the claim will result in waiver,

even if the trial court addresses the issue in its opinion.”       Id. (citing

Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009)).                    Here,

while Appellant raised a weight of the evidence claim in his Rule 1925(b)

statement and, thus, the trial court addressed it in its opinion, our review of

the record confirms that he did not present this issue prior to sentencing or

in a post-sentence motion. Therefore, it is waived. Griffin, 65 A.3d at 938.

      In Appellant’s second issue, he avers that the evidence was insufficient

to sustain his conviction for PWID.

      The standard we apply in reviewing the sufficiency of the
      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 beyond a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for the
      fact-finder. In addition, we note that 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. Moreover, in applying the above test,
      the entire record must be evaluated and all evidence actually

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      received must be considered. Finally, 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. Caban, 60 A.3d 120, 132-133 (Pa. Super. 2012)

(quoting Commonwealth v. Quel, 27 A.3d 1033, 1037-1038 (Pa. Super.

2011)).

      Appellant first argues that the evidence was insufficient to sustain his

conviction of PWID because there was no evidence corroborating the

testimony of Officer Yerges that Appellant answered the door and accepted

money from Eure. Not only does Appellant fail to cite any legal authority to

support his assertion that such corroborating evidence was necessary, but

his claim essentially attacks the credibility of Officer Yerges, which implicates

the weight of the evidence, not the sufficiency.      See Commonwealth v.

Gaskins, 692 A.2d 224, 227 (Pa. Super. 1997) (stating that challenges to

credibility determinations go to the weight, not the sufficiency, of the

evidence). Therefore, Appellant’s first argument is meritless.

      Appellant also contends that the evidence was insufficient to convict

him of PWID because (1) he was not observed giving narcotics to Eure or

passing Eure’s money to Howard; (2) the $25 found on Appellant’s person

was inconsistent with Officer Yerges’ testimony that the amount of

marijuana found on Eure was worth $50; (3) there was no evidence that

Appellant lived, or was staying, at the property from which Eure purchased


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narcotics; and (4) unlike Howard, Appellant did not attempt to flee from

police, thus indicating he did not have “any consciousness of guilt….”

Appellant’s Brief at 10-11.    In sum, Appellant avers that “based on the

evidence, it is just as likely that Appellant went to the property in question

to purchase marijuana for personal use, and not to sell or conspire to sell

marijuana.” Id. at 11.

      We disagree. First, the fact that Appellant was not the individual who

handed the drugs to Eure, and the fact that he did not flee from police, do

not necessitate reversal of his PWID conviction. Second, the evidence was

sufficient to support the court’s conclusion that Appellant was not merely

present at the property to buy narcotics.    Namely, Officer Yerges testified

that he observed Appellant accept money from Eure immediately before

Howard provided Eure with a bag of marijuana.          Directly following this

transaction, Eure was stopped by police and found to be in possession of a

bag of marijuana that was identical to a bag of marijuana found in

Appellant’s possession upon his arrest. N.T. Trial, 7/25/13, at 17. Appellant

also possessed $25, which the trial court considered as circumstantial

evidence that Appellant evenly split with Howard the $50 value of the bag of

marijuana they sold to Eure.    See TCO at 5.     Viewing the totality of this

evidence in the light most favorable to the Commonwealth, the trial court

was permitted to conclude, beyond a reasonable doubt, that Appellant

possessed a controlled substance with the intent to deliver it.


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       Nevertheless, we are constrained to vacate Appellant’s judgment of

sentence and remand for resentencing, as it is apparent that his sentence is

illegal.1 Recently, the mandatory minimum sentence set forth in 18 Pa.C.S.

§ 6317 was held by this Court to be unconstitutional. Commonwealth v.

Bizzel, 107 A.3d 102 (Pa. Super. 2014) (holding that pursuant to Alleyne

v. United States, 133 S.Ct. 2151 (2013), 18 Pa.C.S. § 6317(b) is

unconstitutional, as are subsections 6317(a) and (c) because they are not

severable from subsection (b)). Accordingly, Appellant’s sentence pursuant

to section 6317 is illegal, and we must vacate his sentence and remand for

resentencing.

       Judgment of sentence vacated.             Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2015


____________________________________________


1
  While Appellant does not challenge his sentence on appeal, legality of
sentencing issues “can never be waived and may be raised by this Court sua
sponte.” Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa. Super. 2014)
(citing Commonwealth v. Orellana, 86 A.3d 877, 883 n.7 (Pa. Super.
2014) (citation omitted)).



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