J-S65005-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TYRONE ARMSTRONG

                            Appellant                 No. 1803 EDA 2013


              Appeal from the Judgment of Sentence May 6, 2013
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0006618-2011


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                        FILED DECEMBER 23, 2014

        Appellant, Tyrone Armstrong, appeals from the judgment of sentence

entered by the Honorable Patricia H. Jenkins, Court of Common Pleas of

Delaware County, arising from drug trafficking charges prosecuted by the

Pennsylvania Office of the Attorney General. After careful review, we affirm

in all aspects save for the legality of the sentence imposed.       As the trial

court cogently noted in its opinion on appeal, the sentence imposed is illegal

under the subsequently published opinion in Alleyne v. United States, and

therefore must be vacated and remanded for resentencing.

        This case arises from the Office of the Attorney General’s investigation

into a crack cocaine distribution ring headed by Lester Womack. Armstrong
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S65005-14


concedes that “[t]here is not much question that Lester Womack was the

head   of   a   drug   distribution   operation.”   Appellant’s   Brief,   at   11.

Furthermore, it is not disputed that the majority of evidence supporting the

charges against Armstrong was circumstantial. Armstrong was never found

with crack cocaine in his possession, nor was any retrieved from persons

who claimed to have bought from him.           The evidence against Armstrong

consisted primarily of his statements in recorded phone calls with known

members of the distribution ring, as well as Armstrong’s appearance at a bar

that was a center of activity for Womack’s distribution ring after allegedly

requesting, in slang terms, to purchase an ounce of crack cocaine.

       After a trial, a jury convicted Armstrong of one count of Corrupt

Organizations, three counts of Criminal Conspiracy, one count of Dealing in

Proceeds of Illegal Activity, one count of Criminal Use of a Communication

Facility, and one count of Possession with Intent to Deliver Cocaine.           The

trial court subsequently imposed a seven to fourteen year mandatory

minimum sentence for the Possession with Intent to Deliver charge, to be

served consecutively to concurrent twelve to twenty-four month sentences

on the remaining charges, yielding an aggregate sentence of eight to sixteen

years of imprisonment. This timely appeal followed.

       In his first issue on appeal, Armstrong argues that the evidence

presented at trial does not support his convictions.      When determining if




                                        -2-
J-S65005-14


evidence is sufficient to sustain a conviction, our standard of review 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. Kendricks, 30 A.3d 499, 508 (Pa. Super. 2011)

(citation omitted).

      The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute
      our judgment for that of the fact-finder. The Commonwealth's
      burden may be met by wholly circumstantial evidence and any
      doubt about the defendant's guilt is to be resolved by the fact
      finder unless the evidence is so weak and inconclusive that, as a
      matter of law, no probability of fact can be drawn from the
      combined circumstances.

Commonwealth v. Stokes, 38 A.3d 846, 853 (Pa. Super. 2011) (quoting

Commonwealth v. Mobley, 14 A.3d 887, 889-890 (Pa. Super. 2011)).

“[T]he entire record must be evaluated and all evidence actually received

must be considered.” Id., 38 A.3d at 854.

      After reviewing the certified record, transcripts, appellate briefs of the

parties, and the opinion of the trial court, we conclude that trial court

thoroughly reviewed the evidence at trial and comprehensively addressed

                                     -3-
J-S65005-14


the arguments raised by Armstrong. See Trial Court Opinion, 12/18/13, at

2-10, 19-29.       We therefore affirm on the basis of the trial court’s well-

written opinion.

      In his second issue on appeal, Armstrong contends that the trial court

erred in permitting transcripts of recorded telephone conversations to go to

the   deliberation    room   with    the   jury.   The   trial   court   relied   upon

Commonwealth v. Bango, 742 A.2d 1070 (Pa. 1999), in ruling that the

transcripts would be allowed to go to the deliberation room for the jury to

review.   Armstrong acknowledges that the trial court issued cautionary

instructions informing the jury that the tapes were the evidence, and that

the transcripts were no more than an aid in analyzing the tapes.                  See

Appellant’s Brief, at 18.       Armstrong, however, argues that Bango is

inapposite, as he alleges that the tapes in this case were “almost

indecipherable, and unfortunately, the jury was left with what they saw, not

with what they heard.” Id.

      We cannot reach the merits of this claim, as the tapes in question are

not in the certified record.        Ordinarily, we can only consider documents

which are part of the certified record. See Roth Cash Register Company,

Inc. v. Micro Systems, Inc., 868 A.2d 1222, 1223 (Pa. Super. 2005).

Furthermore, "[i]t is the obligation of the appellant to make sure that the

record forwarded to an appellate court contains those documents necessary

to allow a complete and judicious assessment of the issues raised on


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J-S65005-14


appeal." Everett Cash Mutual Insurance Company v. T.H.E. Insurance

Company, 804 A.2d 31, 34 (Pa.Super. 2002) (quoting Hrinkevich v.

Hrinkevich, 676 A.2d 237, 240 (Pa.Super. 1996)).

      Since an evaluation of Armstrong’s claim that the tapes were so

garbled as to be impossible for the jury to come to an independent

conclusion as to their contents requires review of the tapes themselves,

Armstrong’s failure to ensure their presence in the certified record is fatal to

his claim. We therefore conclude that Armstrong’s second issue on appeal

merits no relief.

      In his third issue on appeal, Armstrong argues that the convictions for

Possession With Intent to Deliver must be reversed as the verdict slip

contained references to the weight of the narcotics alleged to be involved.

In support, he cites to Commonwealth v. Serrano, 61 A.3d 279 (Pa.

Super. 2013), for the proposition that a defendant is entitled to notice, via

Criminal Information, of any element of a crime on the verdict slip.

      In Serrano, the defendant was charged with delivery of heroin in the

Criminal Information against him.      See id., 61 A.3d at 286-287.         The

evidence at trial against Serrano pertained to his involvement with a heroin

distribution ring. However, the verdict slip given to the jury asked the jury

to come to a verdict regarding Serrano’s involvement with distributing

cocaine.   See id., at 287.   On appeal, a panel of this Court held that the

judgment of sentence for delivery of cocaine must be vacated, as Serrano


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J-S65005-14


had never been charged with the delivery of cocaine, nor had any evidence

of delivering cocaine been presented to the jury. See id.

        Here, the weight of the cocaine involved was not an element of the

crime, and the trial court did not instruct the jury to the contrary. See N.T.,

3/25/13, at 19-24. Rather, the weight of the cocaine was, at the time, an

issue regarding the imposition of a mandatory minimum sentence, which

was not within the province of the jury.1             We therefore conclude that

Armstrong’s third issue on appeal merits no relief.

        In his final issue on appeal, Armstrong contends that his judgment of

sentence is illegal pursuant to Alleyne v. United States, ___ U.S. ___, 133

S.Ct. 2151, 186 L.Ed.2d 314 (2013). The trial court imposed a mandatory

minimum sentence pursuant to 18 Pa.C.S.A. 7508(a)(3).                   Alleyne was

published after sentence was imposed in this case, but applies nevertheless.

See Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en

banc)    (holding    that    violations    of   Alleyne   could   not   be   waived).

Furthermore, this Court has since held that, pursuant to Alleyne, section

7508 is facially unconstitutional.         See Commonwealth v. Fennell, ___

A.3d ___, 2014 WL 6505791 (Pa. Super., filed November 21, 2014). Both
____________________________________________


1
  Furthermore, the jury’s verdict cannot cure the Alleyne issue discussed
below. See Commonwealth v. Fennell, ___ A.3d ___, ___, 2014 WL
6505791 (Pa. Super., filed November 21, 2014) (rejecting the argument that
the requirements of Alleyne could be satisfied by a jury finding that the
factual predicate for imposition of the mandatory minimum had been
established).



                                           -6-
J-S65005-14


the Commonwealth, see Appellee’s Brief, at 41, and the trial court, see Trial

Court Opinion, 12/18/13 at 36-37, concede that a remand for resentencing

is appropriate in this matter.

      The only objection to such a procedure comes from Armstrong, who

vaguely alleges that a remand for resentencing “would impinge his

constitutional rights, and suggests that instead, judgment be arrested and

the charges dismissed.”     Appellant’s Brief, at 21.   Armstrong provides no

citation to authority supporting his request for dismissal, and we can find

none. Rather, as the trial court notes, the proper procedure is a remand for

resentencing.    See Commonwealth v. Goldhammer, 517 A.2d 1280,

1283-1284 (Pa. 1986). We therefore vacate the judgment of sentence in its

entirety and remand for resentencing.

      Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.

      Judge Platt joins in the memorandum.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2014




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       IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY,
                 PENNSYLVANIA, CRIMINAL DIVISION


COMMONWEALTH OF                                    NO. 6618-11
PENNSYLVANIA

              v.

TYRONE ARMSTRONG


Kelly Sekula, Esquire, Attorney for Commonwealth of Pennsylvania

Joseph Del Sordo, Esquire, Attorney for Tyrone Armstrong      ~.        / . ...    / 'C'

JENKINS, J.                                        FILED:   if)
                                                                   I
                                                                       1/ ,j/
                                                                              I
                                                                                  /l)
                                      OPINION

       A jury found Tyrone Armstrong guilty of racketeering, possession with intent to

deliver a controlled substance ("PWID") and other charges arising from a multi-county

drug enterprise. On May 6, 2013, the Court sentenced Armstrong to an aggregate term of

9-18 years imprisonment. The primary component of this sentence was a mandatory

minimum sentence of7-14 years imprisonment for PWID.

       On May 16, 2013, Armstrong filed timely post-sentence motions, which the Court

denied in an order docketed on June 22, 2013. On June 18, 2013, Armstrong filed a

timely direct appeal from the order denying post-sentence motions. On July 9, 2013, he

filed a timely concise statement of matters complained of on appeal ("concise

statement"). Armstrong has raised well over twenty issues in this direct appeal, most of

them pertaining to his challenge to the sufficiency of the evidence.              None of the

arguments raised in Armstrong's concise statement have merit except for his objection to

                           sentence for PWID.      For the reasons articulated below,
                                                                                       Circulated 12/09/2014 02:22 PM




Armstrong's judgment of sentence should be vacated and the case remanded for

resentencing on all verdicts of guilt.

I.         FACTUAL AND PROCEDURAL HISTORY

           This case involves a conspiracy to sell large quantities of crack cocaine in

Philadelphia, Darby (Delaware County) and Coatesville (Chester County).                            Lester

Womack, the leader of the conspiracy, stored substantial amounts of money and crack in

a house he shared with his mother in Darby, Delaware County. N.T., 3/22/13, pp. 47-52.

Lester Womack manufactured and bagged the crack in Marcus Womack's residence in

Philadelphia. N.T., 3120/13, p. 158. Armstrong, whom Lester Womack! described as his

"right hand man," assisted Womack in counting money and in meeting Womack's main

supplier, Clifford Hopkins. N.T., 3/20/13, p. 150.

           The Commonwealth's principal witness was Agent Michael Kelly, the lead

investigator from the Attorney General's Office, who testified as an expert in the areas of

narcotics, narcotics investigations, coded language and drug jargon. N.T., 3/19/13, pp.

95-97, 188-89. In June 2011, Agent Kelly began an investigation into Lester Womack's

crack distribution ring. N.T., 3/19/13, pp. 95-97. Agent Kelly was not aware of Womack

having any type of employment or income source other than drug sales. N.T., 3/20/13, p.

150.       Between June and September 2011, confidential informants made multiple

controlled purchases of crack from houses in Coatesville reportedly operated by

Womack, N.T., 3/20/13, pp. 23-31, 41-46.                  Armstrong was not present during the

controlled purchases. N.T., 3120/13, p. 48. Agent Kelly obtained a warrant to place a

trap and trace pen register device on phone numbers registered to Womack and Ronald

Vann, Jr. N.T., 3/19/13, pp. 97-99. Based on the high volume of calls to Womack's

1 Unless   otherwise specified, references to "Womack" in this opinion are to Lester Womack.


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phone, Agent Kelly obtained a warrant for a nonconsensual wiretap on these phones.

N.T., 3/19/13, pp. 100, 103.

          The investigation into the drug ring, Operation Breadwinner, took place mainly

during the latter half of September 2011. During that time period, detectives recorded

conversations between Womack and Ronald Vann relating to drug sales in Coatesville,

Chester County. N.T., 3120/13, pp. 58, 68-69. These calls took place daily. N.T.,

3/20/13, p. 58. Womack also spoke with Clifford Hopkins discussing (a) shipments of

cocaine between them (they sold drugs to one another), (b) Hopkins cooking crack from

cocaine that Womack had received from another Delaware County supplier, Ackalith

Kontanone, and (c) the amount of cocaine Hopkins was storing at Womack's mother's

house in Darby, Delaware County. N.T., 3/20/13, pp. 7, 59, 61, 74-75, 81-86, 98, 99-

100, 155-59, 197. Other drug-related phone calls took place between Womack and

Kontanone. N.T., 3/20/13, pp. 71-73, 76-78,86-87.

          On September 16,2011, Armstrong and Womack were recorded discussing a sale

of 2 Y4 ounces of cocaine.      N.T., 3/20113, pp. 62-63, 65.   Agent Kelly recognized

Armstrong's voice on this call because he spoke with Armstrong after his arrest. N.T.,

3/20/13, pp. 64-65, 91-92, 97-98.      Womack said that he wanted the cocaine "raw"

(powdered), but Armstrong said that the cocaine had already been "done up" (cooked into

crack).    N.T., 3/20/13, pp. 65-66.   Womack admonished Armstrong for not calling

Womack earlier to discuss this transaction, because Womack could have "kicked"

(increased) the 2 Y4 ounces to 3Yz ounces by adding a cutting agent to increase the sale

profit. N.T., 3120113, pp. 66-67.




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       On September 18, 2011, Officer Peter Sarris observed a meeting in Darby,

Delaware County between Hopkins in his Cadillac and the operator of a white Range

Rover. N.T., 3120/13, pp. 110-12. On September 20, 2011, Officer Shawn McLaughlin

observed a meeting a meeting in Darby between Womack and Kontanone, who was

driving a white Range Rover with license plate HKF1004. N.T., 3/20/13, pp. 119-20.

Officer McLaughlin followed Kontanone's Range Rover to the Grant Terrace Apartments

at 601 Grant Avenue, where it was parked in front of Unit 43. N.T., 3/20/13, p. 120. On

September 21, 2011, the detectives learned that Kontanone was supposed to deliver 2 Y4

ounces of cocaine to Womack's residence. N.T., 3120113, p. 102. Officers obtained a

search warrant for Kontanone's residence at the Grant Terrace Apartments and his Range

Rover, and in the ensuing raid, they seized almost 100 grams of cocaine, contraband and

$17,000 in cash. N.T., 3120/13, pp. 101-03, 127-35.

       On September 22, 2011, officers recorded two telephone calls from Womack to

Armstrong in which Womack counted money from sales of crack and asked for

Armstrong's help. N.T., 3/20/13, pp. 149-50. As Womack hung up, he told someone in

the background that Armstrong was his "right-hand man". N.T., 3/20/13, p. 150. On

September 22-23,2011, officers recorded a series of phone calls between Lester Womack

and Marcus Womack plus one phone call from Lester Womack to Armstrong. N.T.,

3/20113, pp. 150-54.     The conversation between Lester Womack and Armstrong

concerned Hatfield Street, the street on which Marcus Womack lived. N.T., 3/20/13, p.

154. Lester Womack used Marcus Womack's house for cooking and bagging crack

cocaine. N.T., 3/20/13, pp. 154, 185-86.




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       On September 26, 2011, Armstrong called Lester Womack and said: "Yeah, that

shit should be in our account, direct deposit, within 48 hours." N.T., 3/20/13, pp. 202,

228.

       On September 27, 2011, Womack called Armstrong and asked where he,

Womack, could obtain empty bags to package crack cocaine. N.T., 3/20/13, pp. 207-08.

Armstrong answered that bags were available in poppy stores, Spanish-owned comer

stores in the city. N.T., 3120/13, pp. 208, 227. Womack was hesitant about going to

poppy stores because he thought he could get robbed or shot. N.T., 3120/13, p. 208. One

minute later, Armstrong telephoned Womack and asked how many "jawns" (ounces) of

cocaine Womack had. N.T., 3/20/13, p. 208-09; N.T., 3/21/13, p. 61. Womack said that

he had two, and Armstrong asked to purchase one ounce for $1,000, which was a normal

street price for an ounce of crack. N.T., 3/20/13, p. 209; N.T., 3/21113, p. 61. Womack

did not want to make this sale because he believed his supplier would not be out until

tomorrow and he (Womack) would bum through two ounces of cocaine tonight. N.T.,

3/20/13, p. 209; N.T., 3121113, pp. 61-62. Womack indicated that he would "go around

there and see ifhe's home," and "go see his guy now who lives in the neighborhood" i.e.,

Womack would go see if his supplier was around so that he could obtain an ounce of

cocaine for Armstrong. N.T., 3121113, pp. 62, 69. One minute after concluding this

conversation, Womack called Clifford Hopkins. N.T., 3/20/13, pp. 209-10.

       Ten minutes later, Armstrong called Womack and asked whether Womack heard

back from his supplier. N.T., 3/20/13, pp. 211-12. Womack answered "he's down there

no[w]; that it shouldn't be too long." N.T., 3/20/13, p. 212. Agent Kelly recounted the

conversation as follows: "Armstrong asked if Womack heard from him, meaning Clifford




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Hopkins. Womack replies no, I'm down here now. It's not going to take long. And then

Armstrong asks, oh, you're getting it? And Womack replies, yeah, I'm out here now."

N.T., 3/21113, p. 69. Agent Kelly testified that this conversation was in reference to the

conversation between Womack and Armstrong ten minutes earlier in which Armstrong

inquired about purchasing one ounce of cocaine. N.T., 3120113, p. 212.          Later that

evening, Officer Sarris observed Womack meet another male outside the Blue Nile Bar at

52nd and Webster Streets in Philadelphia, Clifford Hopkins' center of operations. N.T.,

3121/13, pp. 7-8, 92. Based on this evidence, Agent Kelly opined that on September 27,

2011, Womack obtained one ounce of cocaine from Hopkins, and Armstrong obtained

this ounce from Womack for redistribution. N.T., 3/21113, pp. 68-69, 91. Police officers

never found this ounce on Armstrong or anyone else. N.T., 3/21/13, pp. 91-92.

       On September 28, 2011, Womack called Armstrong and asked whether

Armstrong wanted to open a crack house for Womack in the area of 54 th and Gregg

Avenues in Philadelphia. N.T., 3120/13, p. 243. Later that day, Officer Sarris observed

Armstrong meet Womack on the 6500 block of Upland Street in Philadelphia and drive

away in Armstrong's automobile. N.T., 3121113, pp. 9-10. The men drove to the Blue

Nile bar at 52nd and Webster and entered the bar. N.T., 3/20113, pp. 88-90; N.T., 3121113,

p. 11. When they left the bar, Armstrong placed a white bag or white object in the trunk

of his car. N.T., 3/21113, pp. 11, 15, 34-35. The males drove back to the 6500 block of

Upland Street, where Armstrong dropped Womack off. N.T., 3/21113, p. 17.

       On September 29, 2011, Officer Sarris observed Womack's car parked on the

6500 block of Upland Street and Armstrong's car parked on 65 th Street. N.T., 3/21/13, p.

19.   Womack was standing at the open passenger door of Armstrong's car, and




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Armstrong was standing at the open driver door. N.T., 3121113, p. 19. Officer Sarris

drove around the block. When he returned, both Womack's and Armstrong's cars were

gone when he returned.      N.T., 3/21/13, pp. 21-22. Agent Freddie Chaves observed

Womack and Armstrong drive up to 5657 Hatfield Avenue in Womack's car, enter the

building and leave five minutes later with Marcus Womack. N.T., 3/21113, pp. 116-17.

       On the evening of September 29th , Womack complained to Hopkins that he had

lost "28" (28 grams, or one ounce). N.T., 3/21113, pp. 48-49. Agent Kelly explained that

Hopkins had supplied cocaine powder to Womack, but that 28 grams was lost when the

powder was cooked into crack. N.T., 3/21113, pp. 48-49. Hopkins replied that he had

talked to his supplier, and that he would "throw a half a hard on it next time", i.e., in the

next delivery, he would make up for the loss of28 grams of powder by adding 14 grams

of crack.   N.T., 3/21/13, pp. 48-49.      Womack did not find the arithmetic fair: he

complained that he should not receive just 14 grams of crack after losing 28 grams of

powder. N.T., 3/21113, pp. 48-49, 83. Hopkins replied: "That's why you should have

done the 4Yz, 4Yz", i.e., that is why Womack should have purchased nine ounces. N.T.,

3/21113, p. 49. Womack again disagreed, stating "if I do that, I'm going to lose a 56",

i.e., if he purchased nine ounces of powder, he would have lost 56 grams (two ounces) in

the cooking process. N.T., 3121113, p. 49. Based on this conversation, Agent Kelly

concluded that Womack had purchased 4Yz ounces of cocaine powder from Hopkins,

N.T., 3/21113, p. 50, but was upset about losing one ounce of powder during the cooking

process.

       The following day, September 30, 2011, Womack called Armstrong, and

Armstrong asked whether Womack had talked with Old Head, the supplier who had sold




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Womack the cocaine powder. N.T., 3/21/13, pp. 50-51. Womack replied that he would

give Armstrong "14 and a better play", i.e., to make up for the loss of the 28 grams of

powder, the supplier would reduce the price of the next sale and throw in 14 grams of

crack. N.T., 3/21113, p. 52. Armstrong complained that "it was 28", i.e., he had lost 28

grams while cooking the cocaine powder. N.T., 3/21113, p. 52. Womack repeated that

the supplier would make it up by giving Armstrong "a better play and the 14, you hear

me?" i.e., the lower price and the 14 grams of crack would make up for the loss of the 28

grams of powder. N.T., 3/21113, p. 52.

       One half hour later, Armstrong called Womack, and Womack said "this shit is

snappin right now, yo, snappin," i.e., his crack was selling fast. N.T., 3/21/13, p. 53.

Womack asked Armstrong "how much of that shit you got left," and Armstrong answered

that he had sold one half ounce and had 2 Yz ounces left. N.T., 3/21/13, pp. 53-54, 70-71.

Womack stated that he might have a customer for the 2 Yz ounces. N.T., 3/21113, p. 54.

Later that morning, Womack called Armstrong and said that he sold "eight" ($8,000) the

night before because the crack was so good. N.T., 3/21113, pp. 54-55. Womack offered

to buy Armstrong's 2 Yz ounces for $2,500; Armstrong made a counteroffer of $3,000.

N.T., 3/21113, p. 55. Armstrong and Womack continued to negotiate throughout the day

in five more telephone calls. N.T., 3/21/13, pp. 56-62. Much of these conversations

concerned whether Womack could contact his supplier, Old Head, to obtain more cocaine

to cook into crack. N.T., 3/21113, pp. 56-62. Finally, Armstrong said he would sell the

cocaine for $2,500, Womack's original offer. N.T., 3/21/13, p. 57. Armstrong then said

"I already made $500," which meant that he already made $500 by selling a half ounce of

cocaine. N.T., 3/21113, p. 57.




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        Based on the conversations between Armstrong and Womack from September

28 th through September 30 th , conversations between Womack and Hopkins on September

29th and 30th , and surveillance of Armstrong at the Blue Nile Bar in Philadelphia, Agent

Kelly opined that Armstrong obtained four ounces of cocaine on September 28, 2011,

when he walked out of a Philadelphia bar with a white bag. He then cooked the cocaine

into crack, losing an ounce in the cooking process, and sold it. N.T., 3/21/13, pp. 70, 91-

101; N.T., 3/22/13, p. 14. Police officers never recovered any of the four ounces from

Armstrong. N.T., 3121113, pp. 97-98. Agent Kelly further opined that Armstrong was in

possession of 2Yz ounces of cocaine on September 30, 2011, based on Armstrong's

statement to Womack that he sold half an ounce of the three ounces in his possession.

N.T., 3/22/13, p. 25.

       On October 1, 2011, Armstrong and Womack spoke twice on the telephone about

a drug sale to a buyer who bet on college football games and who would not be available

until after the games concluded. N.T., 3/21113, pp. 74-76. Armstrong told Womack that

he would call someone to obtain a supply of cocaine. N.T., 3/21/13, p. 76.

       On October 2, 2011, Womack told Armstrong on the telephone that somebody

wanted to purchase 2 Y4 ounces of crack. N.T., 3/21/13, p. 151-52. They also talked

about not putting in enough baking soda while cooking crack, which is why there was not

enough made. N.T., 3/21113, p. 152. They discussed the idea of buying a quarter pound

of cocaine for $3,250, turning it into crack and selling it for $4,500. N.T., 3/21/13, p.

152. Armstrong was ambivalent about this idea because he did not want to have that

much cocaine in his possession in case he got caught by the police. N.T., 3/21113, p. 153.




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         Police intercepted over 4,000 calls on Womack's phone and over 5,000 on Vann's

phone over a 21'2 week period. N.T., 3/22/13, p. 10. Police arrested 19 or 20 people as a

result of this investigation, many of whom had drugs or drug-related items in their

possession at the time of arrest.     N.T., 3/22/13, p. 11. Police recovered substantial

amounts of crack cocaine, money and contraband from Womack's mother's residence in

Darby, Pennsylvania and from Womack's residence in Philadelphia. N.T., 3/22/13, pp.

46-57.

         Count 9 of the amended bills of information2 accused Armstrong of possessing

4.5 ounces of cocaine with intent to deliver on September 28-30, 2011. During jury

instructions, the Court defined PWID's elements of possession and intent to deliver.

N.T., 3/25/13, pp. 19-24,42-45. The Court did not instruct, however, that the amount of

4.5 ounces is an element of PWID, or that the jury was required to find this amount

beyond a reasonable doubt. N.T., 3/25/13, pp. 19-24,42-45.

         The jury found Armstrong guilty of corrupt organizations (Count 1), conspiracy to

corrupt organizations (Count 2), dealing in proceeds of unlawful activity (Count 3),

conspiracy to deal in proceeds of unlawful activity (Count 5), conspiracy to possess with

intent to deliver a controlled substance (Count 6), criminal use of a communications

facility (Count 7), and possession with intent to deliver a controlled substance (4.5

ounces) between September 27-30, 2011 (Count 9). N.T., 3/25/13, pp. 59-61; see also

Verdict Slips.    The jury acquitted Armstrong of possession with intent to deliver a

controlled substance (one ounce) on September 27,2011 (Count 8). N.T., 3125/13, p. 60.



2The Commonwealth amended the bills of information before jury selection by withdrawing several
charges against Armstrong. N.T., 3/19/13, pp. 4-12.



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II.     ARMSTRONG'S              CHALLENGES              TO   SUBJECT          MATTER
        JURISDICTION

        Armstrong argues that there was "insufficient evidence to establish that he

committed any crime in Delaware County or even in Pennsylvania." Concise Statement,

~   1(a). Although couched in terms of sufficiency of the evidence, this actually is an

objection to this Court's subject matter jurisdiction.

        This Court has subject matter jurisdiction over every charge on which the jury

convicted Armstrong. 18 Pa.C.S. § 102, entitled "Territorial Applicability", provides in

relevant part:

        [A] person may be convicted under the law of this Commonwealth of an offense
        committed by his own conduct or the conduct of another for which he is legally
        accountable if either:

        (1) the conduct which is an element of the offense or the result which is such an
        element occurs within this Commonwealth ... [or]

        (3) conduct occurring outside this Commonwealth is sufficient under the law of
        this Commonwealth to constitute a conspiracy to commit an offense within this
        Commonwealth and an overt act in furtherance of such conspiracy occurs within
        this Commonwealth ...

Subject matter jurisdiction relates to the competency of a court to hear and decide the

type of controversy presented. Commonwealth v. Bethea, 574 Pa. 100, 828 A.2d 1066,

1074 (2003) (citing McGinley v. Scott, 401 Pa. 310,164 A.2d 424 (1960». Jurisdiction is

a matter of substantive law. Id., 828 A.2d at 1074; see also 42 Pa.C.S. § 931(a) (defining

unlimited original jurisdiction of courts of common pleas). "[A]ll courts of common

pleas have statewide subject matter jurisdiction in cases arising under the Crimes Code."

Id., 828 A.2d at 1074. Although each court of common pleas possesses the same subject

matter jurisdiction to resolve cases arising under the Crimes Code, "that jurisdiction




                                             11
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should only be exercised beyond the territorial boundaries of the judicial district in which

it sits in the most limited of circumstances.,,3 Id. at 1075.

          The Court will review each charge against Armstrong under these standards.

PWID requires the Commonwealth to prove beyond a reasonable doubt that the

defendant "both possessed the controlled substance and had an intent to deliver that

substance." Commonwealth v. Kirkland, 831 A,2d 607,611 (Pa. Super. 2003). To prove

conspiracy to possess controlled substances with intent to deliver, the Commonwealth

must prove that the defendant: 1) entered into an agreement to commit or aid in PWID

with another person or persons; 2) with a shared criminal intent; and 3) an overt act was

done in furtherance of the conspiracy. Commonwealth v. Watley, -- A,3d --, 2013 WL

6164340, *6 (citing Commonwealth v. Devine, 26 A,3d 1139, 1147 (Pa. Super. 2011)).

"The conduct of the parties and the circumstances surrounding such conduct may create a

web of evidence linking the accused to the alleged conspiracy beyond a reasonable

doubt."      Id.    The conspiratorial agreement "can be inferred from a variety of

circumstances including, but not limited to, the relation between the parties, knowledge

of and participation in the crime, and the circumstances and conduct of the parties

surrounding the criminal episode." Id.

         In this case, police officers observed Armstrong attended meetings in Philadelphia

on September 27 and 28,2011. The meeting on September 28 th was with Womack inside

a bar, and following this meeting, Armstrong was holding a white bag outside the bar.

This evidence, viewed in conjunction with Armstrong's phone calls with Womack, show

that the bag contained cocaine.            On September 30, 2011, Armstrong agreed to sell


3 Armstrong also raises objections to venue, which is separate and distinct from subject matter jurisdiction.
The venue issues are discussed infra at pp. 16-18.


                                                     12
                                                                          Circulated 12/09/2014 02:22 PM




cocaine to Womack for $2,500 and then stated that he already made $500 from selling a

half ounce of cocaine.     The evidence further shows numerous transactions between

Womack and Clifford Hopkins (Womack's supplier), Ronald Vann and Marcus Womack.

The Commonwealth thus satisfied 18 Pa.C.S. § 102(1) by proving the charges of PWID

and conspiracy to commit PWID against Armstrong with evidence of conduct "within

this Commonwealth."

        Dealing in proceeds of unlawful activities is defined in relevant part as follows:

        A person commits a felony of the first degree if the person conducts a financial
        transaction under any of the following circumstances:

        (1) With knowledge that the property involved, including stolen or illegally
        obtained property, represents the proceeds of unlawful activity, the person acts
        with the intent to promote the carrying on of the unlawful activity.

18 Pa.C.S. § Slll(a). A "financial transaction" is "a transaction involving the movement

of funds by wire or other means or involving one or more monetary instruments. The

term includes any exchange of stolen or illegally obtained property for financial

compensation or personal gain."      18 Pa.C.S. § S111(f). A "transaction" includes "a

purchase, sale, loan, pledge, gift, transfer, delivery or other disposition." Jd. "Conducts"

includes "initiating, concluding or participating in initiating or concluding a transaction."

Jd.   A "monetary instrument" includes, among other items, "coin or currency of the

United States." Jd. "Unlawful activity" is "any activity graded a misdemeanor of the

first degree or higher under Federal or State law." Id.

        In this case, over a two week period in September and October of 2011, police

officers recorded numerous conversations between Armstrong and Womack discussing

the amount to charge third persons for sales of cocaine.        They also negotiated what

Armstrong would charge for selling cocaine to Womack. During one conversation on



                                             13
                                                                         Circulated 12/09/2014 02:22 PM




September 30th , Armstrong admitted selling half an ounce of cocaine for $500. Many

conversations took place after police observed Armstrong in Philadelphia carrying a bag

of cocaine in Womack's presence. Womack stored drugs and money from drug sales in

his house in Darby, Pennsylvania, asked Armstrong to help him count money from drug

sales, and referred to Armstrong as his "right-hand man." These transactions demonstrate

that Armstrong "act[ed] with the intent to promote the carrying on of the unlawful

activity" in Pennsylvania. 18 Pa.C.S. § 5111(a)(1). This holds true even if Armstrong

was outside of Pennsylvania during every telephone call with Womack, because "acts

done outside [Pennsylvania], but intended to produce and producing detrimental effects

within it, justify [Pennsylvania] in punishing the cause of the harm." Commonwealth v.

Giusto, 810 A.2d 123, 126 (Pa. Super. 2003) (citing Commonwealth v. Bighum, 452 Pa.

554,307 A.2d 255, 258 (1973)).

       Conspiracy to deal in proceeds of unlawful activities occurs when the

defendant 1) enters into an agreement to commit or aid in dealing such proceeds with

another person or persons; 2) with a shared criminal intent; and 3) an overt act is done in

furtherance of the conspiracy. Watley, supra, 2013 WL 6164340, at *6. The meetings

that Armstrong attended in Philadelphia, Womack's storage of money in Darby, and

Womack's sales of drugs in Chester County all satisfy 18 Pa.C.S. § 102(3)'s requisite of

an overt act within Pennsylvania in furtherance of a conspiracy to deal in unlawful

proceeds.

       Criminal use of a communication facility takes place when the defendant "uses

a communication facility to commit, cause or facilitate the commission or the attempt

thereof of any crime which constitutes a felony under [the Crimes Code or the Controlled




                                            14
                                                                             Circulated 12/09/2014 02:22 PM




Substance, Drug, Device and Cosmetic Act.]" 18 Pa.C.S. § 7S12(a). The many phone

calls between Armstrong and Womack violated § 7S12(a) because they promoted a drug

trafficking conspiracy. Jurisdiction exists in Pennsylvania because the purpose of these

acts was to cause harm inside of Pennsylvania through drug sales. Giusto, supra.

           The offense of corrupt organizations provides in relevant part: "It shall be

unlawful for any person employed by or associated with any enterprise to conduct or

participate, directly or indirectly, in the conduct of such enterprise's affairs through a

pattern of racketeering activity."          18 Pa.C.S. § 911(b)(3).   "Enterprise" means "any

individual, partnership, corporation, association or other legal entity, and any union or

group of individuals associated in fact although not a legal entity, engaged in commerce

and includes legitimate as well as illegitimate entities and governmental entities." 18

Pa.C.S. § 911 (h)(3).        "Racketeering activity" includes PWID, dealing in proceeds of

criminal activities, and conspiracy to commit these offenses.          18 Pa.C.S. § 911(h)(ii),

(iii). "Pattern of racketeering activity" refers to a "course of conduct requiring two or

more acts of racketeering activity, one of which occurred after the effective date of this

section.,,4 18 Pa.C.S. § 911(h)(4).

           The discussion above demonstrates that Armstrong was a member of an enterprise

devoted to drug dealing, and that Armstrong participated in the enterprise's affairs

through a pattern of PWID, dealing in proceeds of criminal activities, and conspiracy to

commit PWID and dealing in unlawful proceeds in Pennsylvania. Jurisdiction clearly

exists to prosecute this corrupt organizations offense in Pennsylvania.

           Conspiracy to commit corrupt organizations takes place when the defendant

enters into an agreement to engage in corrupt organizations with another person or

4   Section 911 was last amended in 2006.


                                                  15
                                                                         Circulated 12/09/2014 02:22 PM




persons; 2) with a shared criminal intent; and 3) an overt act is done in furtherance of the

conspiracy. Watley, supra. The discussion above shows that Armstrong engaged in a

conspiracy to commit a pattern of acts in this Commonwealth that constitute corrupt

organizations.

III.   ARMSTRONG'S CHALLENGES TO VENUE IN DELAWARE COUNTY

       Armstrong contends that there was insufficient evidence to establish that he was

part of the criminal activity under investigation that others perpetrated, so he should have

been "charged and tried in the jurisdiction where the Commonwealth [could] establish

that he committed a crime, not where others might have done so." Concise Statement,        ~


1(b). He also states that "jurisdiction" in Delaware County "was not established for any

of the crimes for which [he] was convicted or were alleged to have been committed by

anyone." Concise Statement,    ~   2. Finally, he states that the affidavit proffered by the

Commonwealth to gain "jurisdiction" in Delaware County lacked specificity, was based

on speculation, and contained errors of fact. Concise Statement, ~ 3.

       Although Armstrong's phrasing is opaque, he appears to state that Delaware

County was an improper venue for his trial because there is no evidence that he himself

committed a crime in this county. The Court disagrees.

       At the outset, paragraph 3 of Armstrong's concise statement is waived due to

vagueness. When the Court directs an appellant to file a concise statement of matters

complained of on appeal under Pa.R.A.P. 1925, any issues that are not raised in such a

statement will be waived for appellate review. Commonwealth v. Dowling, 778 A.2d 683,

686 (Pa.Super.2001), (citing Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 308

(1998)). Similarly, when issues are too vague for the trial court to identify and address,




                                             16
                                                                         Circulated 12/09/2014 02:22 PM




that is the functional equivalent of no concise statement at all. Id. Rule 1925 is intended

to aid trial judges in identifying and focusing upon those issues which the parties plan to

raise on appeal. Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa.Super.2002). "When the

trial court has to guess what issues an appellant is appealing, that is not enough for

meaningful review." Id. (citing Dowling, supra). Paragraph 3 of Armstrong's concise

statement, which assails the affidavit proffered by the Commonwealth to obtain

"jurisdiction" in Delaware County, fails to explain why the affidavit is "based on

speculation" or what "errors of fact" it contains. As a result, the Court must guess at

what Armstrong is appealing. This "is not enough for meaningful review." Id.

       Turning to the other arguments, the Court has no doubt that venue was proper in

Delaware County. Venue and subject matter jurisdiction are distinct concepts. Bethea,

supra, 828 A.2d at 1074. Venue relates to the right of a party to have the controversy

brought and heard in a particular judicial district. Id. at 1074-75 (citing McGinley, 164

A.2d at 427-28). Venue is predominately a procedural matter and assumes the existence

of jurisdiction, but these terms "are often used interchangeably because they must exist

simultaneously in order for a court to properly exercise its power to resolve a particular

controversy." Id.

       Rules of venue

       recognize the propriety of imposing geographic limitations on the exercise of
       jurisdiction. Venue in a criminal action properly belongs in the place where the
       crime occurred. Commonwealth v. Mulholland, 549 Pa. 634, 702 A.2d 1027
       (1997). This practice recognizes the necessity of bringing a party to answer for
       his actions in the place where the crime itself occurred because that is where the
       evidence and the witnesses will most likely be located. It would be nonsensical to
       transport defendants, evidence and witnesses from Philadelphia to Erie to resolve
       criminal charges arising in the former location before a judge andlor jury sitting in
       the latter location.




                                            17
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         Generally, venue begins in the court with a geographic connection to the events at
         issue.

Id., 828 A.2d at 1075.

         More specific venue principles govern prosecutions for criminal conspiracy. The

Commonwealth may bring such prosecutions in any county where the unlawful

combination is formed, or in any county where an overt act is committed by any of the

conspirators in furtherance of the unlawful combination. Commonwealth v. Fithian, 599

Pa. 180,961 A.2d 66, 78 (2008) (citing Commonwealth v. Thomas, 410 Pa. 160, 164, 189

A.2d 255,258 (1963)). The many phone calls between Armstrong and Lester Womack,

and the surveillance evidence of the two men together while Armstrong was holding a

white bag, demonstrate that these men formed a conspiracy to commit PWID and corrupt

organizations. s Moreover, Womack committed an overt act in Delaware County in

furtherance of the conspiracy by storing drugs and money in a house in Darby.

Therefore, it was permissible to try Armstrong in Delaware County on the conspiracy

charges. Fithian, supra. And as a consequence of bringing a conspiracy prosecution in

Delaware County, it became necessary to try him in the same case on all other

substantive charges arising from the same facts as the conspiracy charges (i.e., corrupt

organizations, PWID, dealing in proceeds of unlawful activity, criminal use of

communication facilities), because a separate trial on the substantive charges would have

violated Armstrong's double jeopardy rights and the rule of compulsory joinder

embodied in 18 Pa.C.S. § 1106 .



5 The evidence certainly demonstrated that other men took part in the conspiracy, but for purposes of this
issue, it only is necessary to focus on Armstrong and Womack.

6 It was not necessary, however, to join Lester Womack as a defendant in this case. Pennsylvania does not
require all conspirators to be joined as defendants in one trial. Commonwealth v. Fremd, 860 A.2d 515,


                                                    18
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IV.      ARMSTRONG'S CHALLENGES TO THE SUFFICIENCY OF THE
         EVIDENCE

         Armstrong raises a multitude of challenges to the sufficiency of the evidence.

The standard 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 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. Knox, 50 A.3d 749, 754 (Pa. Super. 2012).

        First, Armstrong argues that the evidence was insufficient to convict him of

PWID, because the evidence did not show that he possessed any cocaine or delivered

cocaine to anyone, or that Womack had any cocaine to give to Armstrong. Concise

Statement, ~ 1(c).

        Circumstantial evidence alone can prove possession of narcotics. Commonwealth

v. Carpio-Santiago, 14 A.3d 903, 907 (Pa. Super. 2011). For example, in Commonwealth

v. Leskovic, 227 Pa. Super. 565, 307 A.2d 357 (1973), several witnesses testified that the

defendants sold them drug capsules, and one witness described the physical appearance

of the capsules. A pharmacist testified that the drug in question came in capsules that

met the physical description the witness provided. A urine test conducted on a witness,

521 (Pa. Super. 2004) (defendant could be convicted of conspiracy, even though he was the only person
charged with the conspiracy and none of the alleged co-conspirators were charged).


                                                 19
                                                                          Circulated 12/09/2014 02:22 PM




who testified to having purchased the drug from the defendants, revealed traces of the

drug in question. The Superior Court held that even without chemical analysis of the

actual capsules, the totality of the evidence was enough to sustain a conviction for

dispensing dangerous drugs. Id., 307 A.2d at 358.

         Similarly, in this case, the Commonwealth produced sufficient circumstantial

evidence to demonstrate beyond a reasonable doubt that Armstrong was guilty of PWID.

Over a two week period in September and October of 2011, police officers recorded

numerous conversations between Armstrong and Womack discussing the amount to

charge third persons for sales of cocaine. They also negotiated what Armstrong would

charge for selling cocaine to Womack. Police also observed Armstrong in Philadelphia

carrying a white bag in Womack's presence following a meeting in a bar. Womack

stored drugs and money from drug sales in his Philadelphia residence and his mother's

house in Darby, Pennsylvania, asked Armstrong to help him count money from drug

sales, and referred to Armstrong as his "right-hand man." Armstrong agreed to sell

cocaine to Womack for $2,500 and also stated that he had made $500 for selling a half

ounce.     Viewed in the light most favorable to the Commonwealth, this evidence

establishes that Armstrong was guilty ofPWID.

         Second, Armstrong asserts that there was insufficient evidence that he actually

possessed cocaine due to lack of laboratory analysis or other type of identification (or that

it weighed 4.5 ounces). Concise Statement, , l(d).

         The Commonwealth did not present any evidence that controlled substances were

found in Armstrong's residence or on his person. Nor did the Commonwealth present

any laboratory analysis of the cocaine that Armstrong sold. Nevertheless, as discussed




                                             20
                                                                                     Circulated 12/09/2014 02:22 PM




above in the analysis of subject matter jurisdiction on pages 12-17, the Commonwealth

produced sufficient circumstantial evidence which, viewed in the light most favorable to

the Commonwealth, establishes that he was in possession of cocaine. This conclusion

hardly seems startling: the Commonwealth can utilize circumstantial evidence to prove

murder without finding the victim's body,? so it certainly can prove PWID without

producing or testing the alleged controlled substance.

         Third, Armstrong claims that the Commonwealth failed to establish the corpus

delicti ofPWID prior to introducing Armstrong's statements. Concise Statement, ~ l(e).

         The corpus delicti rule guards against "the hasty and unguarded character which

is often attached to confessions and admissions and the consequent danger of a

conviction where no crime has in fact been committed." Commonwealth v. Friend, 717

A.2d 568, 569-70 (Pa. Super. 1998). Admission of such statements requires proof by a

preponderance of the evidence that a crime has been committed.                              Id. (citing

Commonwealth v. Reyes, 545 Pa. 374,681 A.2d 724, 727 (1996). The corpus delicti may

be established by circumstantial evidence. Id.

         Importantly, the corpus delicti rule does not require the Commonwealth to present

evidence in any particular order. In Friend, the defendant argued that the trial court erred

by admitting his admission before other evidence of crime.                      The Superior Court

responded:

         The corpus delicti rule is not one of constitutional dimension, dealing with the
         quantity of evidence known at the time of the statement, nor is it a question of

7See Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552, 554-55 (1963) (circumstantial evidence,
including a complete interruption and cessation in the activities and contacts with other individuals of
vigorous 49-year-old woman who was last seen by a friend lying motionless on the floor with blood on her
head in the house in which she had been living with a man not her husband, sufficiently established corpus
delicti in prosecution for flrst degree murder of the woman although neither the woman's body nor any part
thereof was ever found).



                                                   21
                                                                                    Circulated 12/09/2014 02:22 PM




         custody or investigative permissibility. The rule is one of trial evidence. It is not
         designed to circumscribe the gathering of evidence. Its applicability turns on the
         quantity of evidence, not the order of its gathering ... That appellant's admissions
         were introduced before the corpus delicti was completely satisfied is immaterial,
         as the Commonwealth ultimately fulfilled that burden.

Id., 717 A.2d at 572.

         The same reasoning applies here.               Regardless of the order in which the

Commonwealth presented its evidence, it ultimately satisfied the corpus delicti with

circumstantial evidence of Armstrong's possession of cocaine and his conspiracy with

Womack to sell crack.

         Fourth, Armstrong challenges the wording of the verdict slip. Count 9 of the

verdict slip stated "possession with intent to deliver. . .4.5 ounces." N.T., 3125/13, p. 52.

Armstrong argues that the reference to 4.5 ounces of cocaine on the verdict slip made this

amount an element of the offense which the Commonwealth had to prove beyond a

reasonable doubt. Concise Statement, ~ l(f).

         Armstrong is incorrect. The amount of cocaine is not an element of PWID, so it

was not compulsory for the Commonwealth to prove the amount in order to convict

Armstrong of PWID. 8 PWID requires proof that the defendant "both possessed the

controlled substance and had an intent to deliver that substance." Kirkland, 831 A.2d at

611. The amount of the controlled substance is not "crucial to establish an inference of

possession with intent to deliver, if ... other facts are present." Watley, supra, 2013 WL

6164340, at *4-5 (citing Commonwealth v. Ratsamy, 594 Pa. 176, 934 A.2d 1233, 1237

(2007). The totality of the circumstances can provide sufficient evidence to support a



8 However, as discussed infra on pages 35-37, the Commonwealth did have to prove the amount of cocaine
beyond a reasonable doubt in order to increase Armstrong's mandatory minimum sentence for PWID. This
did not occur -- so while there is sufficient evidence for Armstrong's PWID conviction to stand, there is
insufficient evidence to affirm his mandatory minimum sentence for PWID.


                                                   22
                                                                        Circulated 12/09/2014 02:22 PM




PWID conviction. Id. at *5. In this case, for the reasons given above, the evidence was

more than adequate to establish Armstrong's guilt for this offense.

        Inclusion of "4.5 ounces" on the verdict slip does not change this result, because

the Court's jury instructions on the elements of PWID were proper. The verdict slip

merely "exists to record the result of the jury's deliberation; it is not the deliberation

itself, and the jury's deliberation is guided by the court's charge." Commonwealth v. Ali,

608 Pa. 71,10 A.3d 282,311 (2010); see also id., 10 A.3d at 313 ("the verdict slip exists

merely to record the jury's conclusion after it has deliberated. The verdict slip does not

frame deliberations; the court's charge does"). The Court instructed the jury that PWID

requires proof of four elements: (1) the item is a controlled substance; (2) Armstrong

possessed the item; (3) he was aware of the item's presence and that it was a controlled

substance; and (4) he had the specific intent to deliver it to at least one other person.

N.T., 3/25/l3, pp. 19-20, 42-44. These instructions accurately reflected the elements of

PWID prescribed under Pennsylvania law. Devine, supra. Thus, the verdict of guilt was

proper, notwithstanding the inclusion of"4.5 ounces" on the verdict slip.

       Fifth, Armstrong insists that there was insufficient evidence to convict him of

corrupt organizations due to the absence of evidence that he participated in an

enterprise's affairs through a pattern of racketeering activity, or that he engaged in two

predicate crimes. Concise Statement, ~ 1(g). The discussion above demonstrates that the

Commonwealth satisfied all elements of corrupt organizations. There was sufficient

evidence ofPWID and conspiracy to commit PWID (pp. 12-13,19, supra), and there was

circumstantial evidence of dealing in proceeds of unlawful activities and conspiracy to

deal in such proceeds (pp. 13-14, supra, and p. 24, infra).




                                             23
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       Sixth, Armstrong contends that -there was insufficient evidence to convict him of

dealing in proceeds of unlawful activities under 18 Pa.C.S. § 5111(a), because there was

no evidence that he engaged in a financial transaction but only that he might have helped

one of them count money. Concise Statement,     ~   1(h). As discussed above, during a two

week period in September and October of 2011, police officers recorded numerous

conversations between Armstrong and Lester Womack discussing the amount to charge

third persons for sales of cocaine. Many conversations took place after police observed

Armstrong in Philadelphia carrying a bag of cocaine in Womack's presence. Armstrong

and Womack also negotiated what Armstrong would charge for selling cocaine to

Womack.

       Critically, during one conversation on September 30th , Armstrong admitted selling

half an ounce of cocaine for $500.   Womack stored drugs and money from drug sales in

his house in Darby, Pennsylvania, asked Armstrong to help him count money from drug

sales, and referred to Armstrong as his "right-hand man."

       In view of this evidence -- particularly Armstrong's admission to Womack that he

sold half an ounce of cocaine and Womack's request that Armstrong help him count

money from drug sales -- the evidence demonstrates that Armstrong participated in

monetary transactions involving the proceeds of unlawful activity, a crime under 18

Pa.C.S. § 5111.

       Seventh, Armstrong complains that there was insufficient evidence to convict

him of unlawful use of a communication facility under 18 Pa.C.S. § 7512 because the

Commonwealth did not prove that any specific underlying offense occurred through use

of a communication facility. Concise Statement,     ~   lei). This argument fails, because the




                                           24
                                                                         Circulated 12/09/2014 02:22 PM




evidence demonstrates that Armstrong committed PWID through the use of a

communication facility.

       Commonwealth v. Moss, 852 A.2d 374 (Pa. Super. 2004), is instructive. Moss

held that because § 7512 does not have a specific scienter requirement, the mens rea for

this provision is found in 18 Pa.C.S. § 302(c), which provides: "When the culpability

sufficient to establish a material element of an offense is not prescribed by law, such

element is established if a person acts intentionally, knowingly, or recklessly with respect

thereto." Thus, to sustain a conviction under § 7512, the Commonwealth must prove that

the defendant (1) knowingly and intentionally used a communication facility; (2)

knowingly, intentionally or recklessly facilitated an underlying felony; and (3) the

underlying felony occurred.   Moss, 852 A.2d at 382.

       In this case, Armstrong had multiple phone conversations with Lester Womack to

knowingly or intentionally facilitate sales of drugs. Many conversations took place after

police observed Armstrong in Philadelphia carrying a bag of cocaine in Womack's

presence. Armstrong and Womack bargained with one another on the telephone about

the price to charge for drug sales.       The conversations also established that both

Armstrong and Womack sold cocaine during this two week period, and that money from

these sales was stored at Womack's mother's residence in Darby. Armstrong's use of the

telephone thus played an integral role in his commission of PWID.

       Eighth, Armstrong states that there was insufficient evidence to convict him of

conspiracy because the Commonwealth did not prove that he conspired with anyone else

to commit any crime. Concise Statement,    ~   1(j). The discussion above demonstrates that




                                            25
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Armstrong conspired with Lester Womack to sell cocaine over the two week period in

September and October 2011.

        Ninth, Armstrong states that there was insufficient evidence to establish that he

engaged in a criminal enterprise with anyone but himself or acted for the benefit of

anyone but himself, Concise Statement,       ~   1(k), or that he profited from any criminal

enterprise with anyone but himself. Concise Statement,          ~   1(1). The discussion above

demonstrates that Armstrong engaged in an enterprise with Lester Womack to sell

cocaine over the two week period in September and October 2011, and that he and

Womack both profited from this enterprise.

       Tenth, Armstrong makes the following boilerplate objections: there was

insufficient evidence that he possessed a controlled substance (Concise Statement,               ~


1(m»; there was insufficient evidence to convict him of any crime (Concise Statement, ~

l(n»; the jury ignored exculpatory evidence which was inconsistent with guilt (Concise

Statement,   ~   l(q»; there was a lack of sufficient specificity as to time, date, place and

actions to support any conviction (Concise Statement,        ~      1(r»; and the evidence was

insufficient to sustain the verdict (Concise Statement,     ~    1(u». The discussion above

rebuts these objections.

       Eleventh, Armstrong claims that he was not properly identified as a speaker in

any of the taped phone conversations due to the Commonwealth's failure to present an

expert witness in voice identification (Concise Statement,      ~   1(0». He further insists that

the audiotapes did not establish his involvement in any crime (Concise Statement, ~ 1(P».




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      Pennsylvania Rule of Evidence 901 provides in pertinent part:

      Requirement of authentication or identification

      (a) General provision. The requirement of authentication or identification as a
      condition precedent to admissibility is satisfied by evidence sufficient to support a
      finding that the matter in question is what its proponent claims.

      (b) Illustrations. By way of illustration only, and not by way of limitation, the
      following are examples of authentication or identification conforming with the
      requirements of this rule:

      (1) Testimony of witness with knowledge. Testimony that a matter is what it is
      claimed to be.

          ***
      (5) Voice identification. Identification of a voice, whether heard firsthand or
      through mechanical or electronic transmission or recording, by opinion based upon
      hearing the voice at any time under circumstances connecting it with the alleged
      speaker.

      (6) Telephone conversations. Telephone conversations, by evidence that a call was
      made to the number assigned at the time by the telephone company to a particular
      person or business, if (A) in the case of a person, circumstances, including self-
      identification, show the person answering to be the one called, or (B) in the case of
      a business, the call was made to a place of business and the conversation related to
      business reasonably transacted over the telephone.

Under Rule 901(b)(5) and (6), a witness may make an identification by voice alone, and

expert testimony is not necessary for voice identification. Commonwealth v. Jones, 954

A.2d 1194, 1197 (Pa. Super. 2008). Identification by voice goes to the weight of the

evidence, not its sufficiency. Id.

       The Superior Court has held several times that audio recordings were admissible

on the basis of a police officer's testimony that he spoke with the defendant and

recognized the defendant's voice on the audio recording. Commonwealth v. Serrano, 61

A.3d 279, 291 (Pa. Super. 2013) (sufficient foundation supported admission of recorded

telephone conversations between defendant and co-defendant in drug prosecution; agent



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of the Pennsylvania Office of the Attorney General testified that the telephone number

was registered to defendant and that he had personally spoken with defendant and

recognized the voice on the audio recording as belonging to defendant); Commonwealth

v. Starks, 304 Pa. Super. 527, 450 A.2d 1363, 1364-1365 (1982) (finding adequate

foundation for admission of tape recordings where the interviewing detective identified

the tape in its original physical form, and identified the voices and the opening contents

of the recording).

        Notably, Pa.R.E. 901(a) and (b) are identical with Federal Rule of Evidence

901(a) and (b). The cases under F.R.E. 901 permit voice identification on the basis oflay

testimony from law enforcement personnel. See United States v. Lampton, 158 F.3d 251,

259 (5th Cir. 1998) (FBI Agent could identify voice on tape through hearing voice "in

prior personal contact"); United States v. Saulter, 60 F.3d 270,276 (7th Cir. 1995) (voice

identification may be made based on "minimal familiarity"; hearing voice on two prior

occasions sufficient to allow witness to identify speaker on tape); United States v. Vitale,

549 F.2d 71, 73 (8th Cir. 1977) (undercover police officer properly allowed to identify

voice on incoming telephone call on basis of three other conversations with person,

where two of these occurred in "face-to-face meetings"); United States v. Watson, 594

F.2d 1330, 1335 (lOth Cir. 1979) (witness had three "face-to-face conversations" with

defendant, one extending "over half an hour"; these sufficed as basis for voice

identification).

        Under these authorities, the Court properly admitted the audio recordings of

Armstrong's conversations with Womack into evidence. Agent Kelly testified that he

recognized Armstrong's voice on these recordings because he spoke with Armstrong




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after his arrest.   N.T., 3/20/13, pp. 91-92, 97-98.       Although expert testimony and

scientific evidence might have been helpful, it was not essential to admission of the audio

recordings.

IV.     ARMSTRONG'S CHALLENGE TO THE WEIGHT OF THE EVIDENCE

        Armstrong argues that the verdict was against the weight of the evidence because

the jury lumped him together with other drug traffickers such as Womack, and because

the Commonwealth "speculated" on his involvement. Concise Statement, ~ l(S, T).

        An allegation that the verdict is against the weight of the evidence

       is addressed to the discretion of the trial court. Our Supreme Court has explained
       that 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. A motion for new trial on the grounds that the verdict is contrary to the
       weight of the evidence, concedes that there is sufficient evidence to sustain the
       verdict. Titus, tlte trial court is under no obligation to view tlte evidence in tlte
       ligltt most favorable to tlte verdict winner. A new trial should be awarded when
       the jury's verdict is so contrary to the evidence as to shock one's sense of justice
       and the award of a new trial is imperative so that right may be given another
       opportunity to prevail. Stated another way, and as the trial court noted, this Court
       has explained that the evidence must be so tenuous, vague and uncertain that the
       verdict shocks the conscience of the court.

Commonwealth v. Sullivan, 820 A.2d 795, 805-806 (Pa. Super. 2003), appeal denied,

574 Pa. 773, 833 A.2d 143 (2003) (citations and quotations omitted, emphasis in

original). The question the trial court must answer, in the sound exercise of its discretion,

is whether "notwithstanding all the facts, certain facts are so clearly of greater weight that

to ignore them or to give them equal weight with all the facts is to deny justice." Id., 820

A.2d at 806 (citing Commonwealth v. Widmer, 560 Pa. 308, 320, 744 A.2d 745, 752

(2000)). 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



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verdict is against the weight of the evidence. Widmer, supra, 744 A.2d at 753. "A trial

court's exercise of discretion in finding that a verdict is or is not against the weight of the

evidence is 'one of the least assailable reasons for granting or denying a new trial.' "

Sullivan, supra, 820 A.2d at 806 (citing Widmer, supra, 744 A.2d at 753). The Court

abuses its discretion 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 at 753. Discretion is abused where it is not exercised on a foundation

of reason. Id.

        The Court finds that the verdict was consistent with the weight of the evidence.

The evidence summarized above - particularly the telephone conversations and the

officers' surveillance testimony - demonstrates that Armstrong played an integral role in

a drug dealing conspiracy that spanned Philadelphia, Delaware and Chester Counties.

The Court would have reached the same verdict as the jury had there been a bench trial.

V.     ARMSTRONG'S CHALLENGE TO THE AFFIDAVIT OF PROBABLE
       CAUSE APPENDED TO HIS CRIMINAL COMPLAINT

       Armstrong contends that his arrest "was based on faulty information provided to

the Court by the Commonwealth...thus his arrest was illegal, jurisdiction over him was

improper and his entire prosecution illegal." Concise Statement,        ~   4. Armstrong has

waived this argument by failing to raise it with sufficient specificity in his concise

statement.   Lemon, supra, 804 A.2d at 37.        The affidavit appended to the criminal

complaint is 25 pages long, most of it single-spaced. Due to the absence of detail in the

concise statement, the Court cannot pinpoint the "information" in the lengthy affidavit

that Armstrong believes is "faulty".



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        Moreover, in order to invalidate an arrest warrant, a misstatement of fact in the

affidavit must be both material and deliberate. Commonwealth v. Bradshaw, 290 Pa.

Super. 162,434 A.2d 181 (1981). A misstatement in an affidavit is immaterial if deletion

of the misstatement would still leave sufficient facts to establish probable cause.

Commonwealth v. Wiggins, 239 Pa. Super. 256, 361 A.2d 750, 753 (1976).                      Here,

Armstrong fails to allege that (or explain why) the alleged misstatements in the affidavit

are material. Therefore, it is impossible for the Court to delve into this issue further.

VI.    ARMSTRONG'S CHALLENGE TO TRANSCRIPTS OF INTERCEPTED
       TELEPHONE CONVERSATIONS

       Armstrong complains that the jury viewed transcripts of his conversations with

Womack, even though the transcripts were not authenticated by the person who prepared

them or anyone else, and then viewed the transcripts again after the close of testimony.

Concise Statement,   ~   5. Based on Commonwealth v. Bango, 560 Pa. 84,742 A.2d 1070

(1999), the Court rejects Armstrong's argument.

       In Bango, a PWID case, the prosecution played 53 tape-recorded conversations to

the jury during the defendant's trial. The state trooper who had prepared transcripts for

each conversation testified as to whose voices were on the tapes and the substance of the

conversations. The trial court cautioned the jury that the tapes, and not the transcripts,

were the actual evidence, and that the only purpose for the transcripts was to aid the jury

in following the taped conversations. During deliberations, the jury asked the court for

permission to review the tape recordings and the transcripts.         The court allowed the

transcripts to go out with the jury but warned them again that the tapes were the evidence

instead of the transcripts, and that the transcripts were only "to help you identify what




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    tape it is you are looking for and listening to and guide you somewhat as to what you are

hearing."

           The Supreme Court held that trial court's decisions concerning the transcripts

were proper. The Supreme Court first observed that "there are some items that the jury is

never permitted to take with it during its deliberations, [such as] transcripts of any trial

testimony, copies of any written or otherwise recorded confessions by the defendant,

copies of the information, and written jury instructions." Id., 742 A.2d at 88-89 (citing

Pa.R.Crim.P. 1114(2)t The transcripts of the tape recordings "do not fall into any of the

categories of items specifically prohibited either by Pa.R.Crim.P. 1114(2) or by case

law." Id. at 89. The Supreme Court then determined that the trial court acted within its

discretion in permitting use of the transcripts:

            Here, in light of the meticulous care taken by the trial court to ensure that the jury
            understood that the transcripts were to be used only as guideposts and not as
           verbatim translations, we cannot characterize the trial court's decision to permit
           the jury to use the transcripts as manifestly unreasonable .. .It is axiomatic that a
           trial is a search for the truth. The jury should be assisted, not hindered, in
           conducting that search. Here, it is plain that the jury was seeking a complete
           understanding of how the voluminous evidence related to the specific crimes with
           which appellant was charged. After two hours of deliberation, the jury asked for
           the name of each person involved with appellant in each count as well as the tapes
           and transcripts pertaining to those counts. The trial court properly realized that the
           transcripts could serve as an index to the tapes, assisting the jurors in finding
           those tapes that they wished to replay and allowing them to more easily correlate
           which of the seventeen recorded voices they were listening to with the
           corresponding counts charged against appellant. Not only did the trial court
           appropriately instruct the jurors that they could review the transcripts for these
           narrowly circumscribed purposes, but the court also clearly instructed the jury that
           they, as jurors, were independently responsible for ascertaining the content of the
           tapes. Under these somewhat daunting factual circumstances, with the jury
           attempting to match a large number of unfamiliar tape-recorded voices to an even
           larger number of counts describing disparate incidents of narcotics trafficking, the
           trial court prudently addressed the situation by permitting the jury to use the
           transcripts as limited guideposts to the recordings. Far from exhibiting manifest
           unreasonableness, the trial court's decision was grounded in common sense and

9   In 2000, Rule 1114 was renumbered as Pa.R.Crim.P. 646.


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        allowed the jury to evaluate and weigh the evidence in an efficient and reliable
        manner.

Id. at 89-90.

        This case is on point with Bango. Like the trooper in Bango, Agent Kelly listened

to the telephone calls between Armstrong and Womack and authenticated the transcripts

of the recordings. N.T., 3/20/13, pp. 54-55. Then, like the trial court in Bango, this

Court instructed the jury that the transcripts were simply an "aid to you in determining

the content of the telephone conversations.        It's very important that you remember,

however, that the evidence in this case is the telephone conversation that was recorded

and not the transcription.    The transcription is provided simply as an aid for you in

listening and discerning the content of the conversations." N.T., 3/20/13, p. 56. The

Court added that "the same instructions pertain to each transcription that will be provided

to you."   N.T., 3/20/13, p. 56.     Later, during deliberations, the jury asked to see a

transcript concerning when Armstrong said he had four ounces that he cooked and lost 28

grams but made $500. N.T., 3/25/13, p. 45. The Court permitted the jury to see the

transcripts of several conversations relating to this issue but stated:

       However, I need to caution you to remember, and this is a very important point,
       that these transcripts are not evidence in the case. They are aids to enhance your
       understanding of the telephone calls, the audio calls which are the evidence in the
       case. And you must be very careful to regard them for that limited purpose only.
       Therefore, while you can certainly have the transcripts of the sessions that counsel
       and I believe reflect your inquiry, the evidence itself is the audiotape.

N.T., 3/25/13, pp. 45-46.

       Permitting the jury to view the transcripts during the presentation of evidence and

deliberations was well within the Court's discretion. As in Bango, there were dozens of

phone conversations between Armstrong, Womack and others, so the jury needed the




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transcripts as guideposts to follow who was talking, when they were talking, and what

they were talking about. Moreover, the Court repeatedly cautioned the jury that they

could only use the transcripts as guideposts, and that the audio recordings were the actual

evidence, and that it was the jury's duty to decide the actual content of the conversations.

This procedure made sense under the circumstances by permitting the jury to evaluate the

evidence in an efficient and reliable manner.

VII.    ARMSTRONG'S CHALLENGE TO THE JURY INSTRUCTIONS

       Armstrong contends that the Court instructed the jury "that cocaine was a

controlled substance, and that that element of the crime had been established, when in

fact the substance possessed by [Armstrong], if any, was in dispute and was a fact that

had to be determined by the factfinder beyond a reasonable doubt. In effect, the jury was

instructed that [Armstrong] possessed cocaine." Concise Statement, ~ 6.

       Armstrong waived this issue by failing to object to the jury instructions relating to

possession of cocaine or PWID.       N.T., 3125113, pp. 35, 40-41 (Court asks whether

defense counsel has any objections, but Armstrong's counsel does not object to

instructions on possession or PWID). Armstrong waived this objection by failing to

lodge an objection before jury deliberations. Pa.R.Crim.P. 647(B); Commonwealth v.

Dorm, 947 A.2d 1284, 1288 (Pa. Super. 2009).

       In any event, Armstrong is incorrect.      Although the Court told the jury that

cocaine is a controlled substance, N.T., 3/25/13, pp. 19-20, the Court instructed that they

jury had to find three additional elements before finding Armstrong guilty of PWID: (a)

Armstrong possessed the substance; (b) he was aware of the item's presence and that it

was a controlled substance; and (c) he had the specific intent to deliver it to at least one




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other person. N.T., 3/25/13, p. 20. Thus, the Court left it to the jury to determine

whether Armstrong actually possessed cocaine. The Court did not in effect instruct the

jury that Armstrong possessed cocaine.

VIII. ARMSTRONG'S CHALLENGE TO VALIDITY OF HIS SENTENCE

            Armstrong argues that the Court improperly sentenced him on Count 9 (PWID) to

a mandatory minimum of six years imprisonment10 , because there was insufficient

evidence that (a) he possessed over 100 grams of cocaine; (b) the weight of uncut cocaine

was over 100 grams; and (c) he possessed all 100+ grams of uncut cocaine with intent to

deliver them. Concise Statement,             ~   7. The Court concludes that Armstrong's PWID

sentence is invalid under Alleyne v. United States, -- U.S. --, 133 S.Ct. 2151, 186 L.Ed.2d

314 (2013), a Sixth Amendment decision entered one month after Armstrong's sentence.

           Alleyne held that where an "aggravating fact" increases a mandatory minimum

sentence, "the fact is an element of a distinct and aggravated crime. [The fact] must,

therefore, be submitted to the jury and found beyond a reasonable doubt." Id., 133 S.Ct.

at 2162-63 (emphasis added). In this case, the Commonwealth charged Armstrong with

possession of 4.5 ounces of cocaine with intent to deliver; the verdict slip stated the

amount of 4.5 ounces; the jury found him guilty of PWID; and the Court imposed a

minimum sentence of seven years based on its belief that the evidence was sufficient to

require this enhancement ll . Unfortunately, the Court did not instruct the jury that the

amount of 4.5 ounces is an element of PWID, or that the jury had to find this amount


10   The Court actually sentenced Armstrong to 7-14 years imprisonment. N.T., 5/6/13, p. 25.

11 There is no mandatory minimum for PWID when the amount of cocaine is less than two grams. 18
Pa.C.S. § 7508(a)(3). When the Commonwealth proves that amount involved is at least 100 grams, and
when the defendant has at least one conviction for another drug trafficking offense at the time of sentencing
(as Armstrong had here), the mandatory minimum is seven years imprisonment. 18 Pa.C.S. §
7508(a)(3)(iii).


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beyond a reasonable doubt. Consequently, the Court lacked the authority to increase

Armstrong's sentence to a mandatory minimum of 7 years. Id.

       This Court has the authority to raise Alleyne sua sponte even though Armstrong

failed to mention Alleyne in his concise statement.       Questions about the legality of

Armstrong's sentence are not waivable and may be raised sua sponte by courts on direct

appeal. Watley, supra, 2013 WL 6164340, at *7. Moreover, a decision announcing a

new constitutional rule of criminal procedure must be applied retroactively to all cases

pending on direct appeal. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93

L.Ed.2d 649 (1987); Commonwealth v. Roney, 581 Pa. 587, 866 A.2d 351, 359 n. 32

(2005) (challenge to sentence premised upon Apprendi v. New Jersey, 530 U.S. 466

(2000), implicates the legality of that sentence and cannot be waived on direct appeal).

       The proper remedy under these circumstances is to vacate the sentences for all of

Armstrong's convictions and to remand so that this Court has the opportunity to

restructure its entire sentencing scheme. Commonwealth v. Goldhammer, 512 Pa. 587,

593, 517 A.2d 1280, 1283-84 (1986); Commonwealth v. Williams, 871 A.2d 254, 266

(Pa.Super.2005) (citing, inter alia, Goldhammer, supra, in remanding for re-sentencing

because trial court's overall sentencing scheme had been disrupted by appellate court's

determination that imposition of separate sentences under two different provisions of

Motor Vehicle Code was improper in this driving under the influence case);

Commonwealth v. Sutton, 400 Pa.Super. 291, 583 A.2d 500, 502 (1990) (citing

Goldhammer, supra, for proposition that "the proscriptions against double jeopardy do

not prevent us from remanding for re[-]sentencing on all bills of information where our

vacation of various related counts has upset the trial court's sentencing scheme");




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Commonwealth v. Vanderlin, 398 Pa.Super. 21, 580 A.2d 820, 831 (1990) (reiterating

that where appellate court cannot determine whether its vacation of sentence on one

count would affect trial court's sentencing on remaining counts, trial court must be given

opportunity on remand to reconsider sentencing).          Alleyne precludes sentencing

Armstrong to mandatory minimum sentences for any count, because the jury did not find

any aggravating factors beyond a reasonable doubt. On the other hand, the Court has the

discretion to impose sentences of appropriate length for all counts of conviction under

non-mandatory minimum principles in order to structure the proper penalty for

Armstrong's crimes.

       For these reasons, the Court's decisions on all non-Alleyne issues should be

affirmed, but this case should be remanded for resentencing on all counts of conviction.

                                                    BY THE COURT:




                                           37
